Haddad v. Abel

SHINN, P. J. Pursuant to a contract consisting of escrow instructions under date of August 27, 1956, Mary Haddad purchased from Frank L. Abel and Edythe W. Abel, owners as joint tenants, a parcel of land (Lot 1), and from Milo M. Kensrue and Helen L. Kensrue, owners as joint tenants, an adjoining parcel (Lot 2). The parcels comprised two or more building sites on a hillside in Los Angeles. Mrs. Haddad paid the Abels $5,250 and Lot 1 was placed in the name of her daughter, Evelyn, who gave back a note and trust deed for an equal amount. The Kensrues were paid $10,500 as the full price of Lot 2. The level portions of the lots were built up of filled ground to the extent of about one half of their total surface area, the fill ranging from 2 to 40 feet in depth. The fill was uncompacted. Adjoining Lot 1 on the west was a lot owned by one Morris. All the building sites on the lots had been formed by excavating into the hillside to create level spaces or benches which are commonly called “pads.” The level area of the Morris lot was about 30 feet below the level of Lot 1; where the two lots joined a high bank stood at an angle of 80 or 90 degrees. In order to qualify as building sites under ordinance Number 100347 of the city, the portion of the fill which was on Lot 1 would have to be removed and compacted, as it was replaced, but Lot 2 could be made use of by the sinking of caissons to solid ground. The major portion of the fill was on Lot 1. In order to render the Morris lot, and perhaps Lot 1, available for residential construction under the ordinance it was necessary that the bank at the edge of Lot 1 be regraded to a slope of not over 45 degrees.

The property had previously been owned by one Smith, who was the grantor of Abel and Kensrue. Smith had made the excavations for the creation of the building sites and had spread out the removed material beyond the solid portions of the benches. He was under an obligation to permit Morris to cut back 15 feet into Lot 1 in order to regrade the bank to an angle of 45 degrees. At the time he sold the lots to [295]Abel and Kensrue, the latter signed escrow instructions stating that they were buying the property “as is,” were aware of ordinance Number 100347 and that the outer area was filled, and also that they knew that Morris, the adjoining property owner, had a right to cut into 15 feet of Lot 1 in order to grade his lot so as to comply with the ordinance.

It was proved that prior to the trial of the action, Mary Haddad, in order to comply with the city ordinance, had caused to be removed 16,000 yards of the fill and had it compacted when it was replaced and that she had granted to Morris the right to invade Lot 1 for 15 feet in order to regrade his lot.