Opinion
Rehearing Denied May 7, 1964.
Frank J. Kanne, Jr., Los Angeles, for plaintiff and appellant.
Russell E. Parsons, Macfarlane, Schaefer & Haun, by Russell R. Pratt, Henry Schaefer, Jr., William Gamble, E. J. Caldecott and Jerol R. Hodges, by Russell R. Pratt, Los Angeles, for defendants and respondents.
JEFFERSON, Justice.
On December 31, 1961, plaintiff, The Brown Derby Hollywood Corporation, brought action seeking a mandatory injunction compelling defendant Hatton to remove a building extension at the rear of his restaurant of approximately 5' by 40', which extension was constructed on land held by plaintiff as a sublessee from defendant Broadway-Hale Stores, Inc. and used as an automobile parking lot to accommodate the The trial court, in finding that the building extention was constructed on land leased by plaintiff and that defendant Hatton had not acquired any right to build the extension. Nevertheless concluded that plaintiff had an adquate remedy at law; had not suffered irreparable injury, and, was therefore not entitled to a mandatory injunction requiring the moval of the encroaching structure. The court gave plaintiff a judgment for damages in the sum of $728.79 against defendant Hatton. Judgment was entered for defendants Haun and Broadway. Plaintiff appeals from the judgment.
A more complete statement of the facts follows:
On February 20, 1951, a written lease was made by the predecessor in interest of defendant Haun, as lessor, to defendant Broadway, as lessee, for a term expiring February 28, 1980. The demised premises included: '* * * all of that portion of said Lots 7 and 8 owned by lessor except that portion in the front thereof now occupied by the existing building thereon. * * *' The lease provided, among other things, that the tenant in the 'existing building' was entitled to enter upon the demised premises '* * * for the purpose of causing the removal of garbage,' the right to entry being limited to reasonable hours to be fixed by the lessee from time to time so as to interfere as little as possible with the lessee's use of the demised premises.
On June 1, 1952, a written sublease was made by defendant Broadway to plaintiff of a parcel of land which included the land covered by the Haun lease of February 20, 1951. Also reserved to the senior lessor's tenant of the 'existing building,' was the right to enter on the demised premises '* * * for the purpose of causing the removal of garbage.'
In April 1945, the predecessor in interest of defendant Haun leased part of the building, for which the right of garbage disposal was reserved over the adjoining property in the lease of February 20, 1951, and subsequent sublease of June 1, 1952, to defendant Hatton, and the latter has operated it since that time as a restaurant. Haun thus represents the fee ownership of all of the land involved in this action.
From a time shortly after he began operations is 1945, defendant Hatton used the 5' X 40' strip of land, which ran along the rear of his restaurant, for the storage of garbage, trash and rubbish, without objection either by the prior occupants of the leased premises or by plaintiff. Garbage and rubbish collectors for the City of Los Angeles used the leased premises to pick up and empty the garbage and rubbish cans left on the strip by Hatton's employees. The collection was accomplished between 11 p. m. and 7 a. m. The strip was marked by a predecessor in interest of plaintiff, by the erection of 4 or 5 iron posts, which were in place at the time plaintiff entered into his sublease in 1952. When these posts were knocked down by automobiles in 1954 or 1955, a white line was painted marking the strip. In 1961, defendant Hatton was notified by the Los Angeles Health and Fire Departments that he could not continue the uncovered and unenclosed storage of garbage on the strip. After negotiations to rent additional space failed, on November 2, 1961, defendant Hatton, with the approval of his lessor defendant Haun, began construction of an extension to the rear of In his defense Hatton maintained at the trial that he had acquired a prescriptive right to the use of the strip. The trial court found, however, that neither the reservations in the leases concerning the rights of garbage removal, defendant Hatton's practice of keeping garbage cans on portions of the five foot strip, nor the directives from the health and fire departments, authorized defendant Hatton to encroach upon plaintiff's leasehold. The court further found that the additional did not damage any free-hold estate; that it did not constitute an obstruction to the use of the remainder of the plaintiff's leasehold for the parking of cars. Concluding that a mandatory injunction would not afford material benefit to plaintiff and that monetary relief would, under the circumstances, be entirely adequate, the court gave judgment for damages at the rate of $10 per month from November 2, 1961, to March 31, 1969, on which date Hatton's lease terminates. For the period from March 31, 1969, to the expiration of plaintiff's term on January 31, 1980, the court did not award damages, but concluded that 'the extent of common ownership permits plaintiff to make any proper adjustment starting April 1, 1969.'
Plaintiff contends that the trial court abused its discretion in finding that plaintiff suffered no irreparable damages and that it had an adequate remedy at law.
In a leading case discussing the law relative to encroachments, the court in Christensen v. Tucker, 114 Cal.App.2d 554, 250 P.2d 660, enunciated the circumstances under which a trial court is justified in exercising its discretion to deny a mandatory injunction in encroachment cases. The court stated, 114 Cal.App.2d at pages 562-563, 250 P.2d at page 665:
'It is our view that the better reasoned cases hold that in encroachment cases the trier of the fact possesses some discretion in determining whether to grant or to deny the mandatory injunction. In exercising that discretion, and in weighing the relative hardships, the court should consider various factors. It starts with the premise that defendant is a wrongdoer, and that plaintiff's property has been occupied. Thus, doubtful cases should be decided in favor of the plaintiff. In order to deny the injunction, certain factors must be present: 1. Defendant must be innocent--the encroachment must not be the result of defendant's willful act, and perhaps not the result of defendant's negligence. In this same connection the court should weigh plaintiff's conduct to ascertain if he is in any way responsible for the situation. 2. If plaintiff will suffer irreparable injury by the encroachment, the injunction should be granted regardless of the injury to defendant, except, perhaps, where the rights of the public will be adversely affected. 3. The hardship to defendant by the granting of the injunction must be greatly disproportionate to the hardship caused plaintiff by the continuance to the encroachment and this fact must clearly appear in the evidence and must be proved by the defendant.' (See also Pahl v. Ribero, 193 Cal.App.2d 154, 163, 14 Cal.Rptr. 174, wherein the aforesaid rules of the Christensen case are quoted with approval; and see also annotation in 28 A.L.R.2d 679.)
In the instant case it is conceded that the encroachment was not innocent but the intentional act of defendant Hatton. Moreover, the encroachment was not trivial--it was very substantial, consisting of the taking of exclusive use and possession of a 5' X 40' parcel of plaintiff's long-term leased property.
Defendants argue that rules stated in the Christensen case supra, the Pahl case supra, and the cases cited therein, should not be applicable to the facts of this case, because those cases involved adjoining landowners, Had plaintiff's lease restricted its use of the leased property to that of a parking lot, this argument might have merit. However, the use of the property is not so restricted. In the approximately 16 years remaining on the lease, it is entirely conceivable that plaintiff might desire to make other use of its highly valuable commercial property, such as, to double-deck the parking area or construct buildings with appropriate driveway facilities, either covered or uncovered, which would preserve defendant Hatton's right to ingress and egress for garbage removal purposes.
It is well established that, in general, the legal remedy of damages is inadequate in all cases affecting land or any interest in land. (Remmers v. Ciciliot, 59 Cal.App.2d 113, 119, 138 P.2d 306.) Moreover, as stated in Pomeroy's Equity Jurisprudence, 5th Ed.1941 Vol. 4, at page 965: "It is only adequate (the remedy at law) when the injured party can, by one action at law, recover damages which constitute a complete and certain relief for the whole wrong,--a relief virtually as efficient as that given by a court of equity.' The judgment in the instant case purported merely to award damages for the period from November 2, 1961, to March 31, 1969, when defendant Hatton's lease expires. Plaintiff's lease runs until January 31, 1980. Obviously, the judgment does not award damages for the 'whole wrong.'
In cases where the encroachment was not innocent but an intentional act courts have not hesitated to order the removal of the encroaching structure. (Agmar v. Solomon, 87 Cal.App. 127, 261 P. 1029; Morgan v. Veach, 59 Cal.App.2d 682, 139 P.2d 976.) Here, the construction of the building addition by defendant Hatton on plaintiff's leased premises was not the result of error or neglect, but was willful and intentional, and it was conducted in the face of a written notice from plaintiff's counsel demanding that the construction work be stopped. The property rights of others cannot be thus violated with hope that reviewing courts will weigh equities and determine that the need of the encroacher exceeded the resulting damages to the one encroached upon. We conclude that under the circumstances of this case the trial court erred in not granting the mandatory injunction prayed for. In so holding, it becomes unnecessary for us to pass on the other contentions raised by plaintiff.
The judgment is affirmed insofar as it holds in favor of defendants Haun and Broadway Hale Stores, Inc. In all other respects the judgment is reversed and the cause remanded with instructions to the trial court to set aside the findings of fact and conclusions of law and to make new findings and conclusions, entering judgment thereon in accordance with the views herein expressed. Respondent Hatton shall bear the costs of all parties on appeal.
BURKE, P.J., and KINGSLEY, J., concur.