ZIERATH v. McCANN, 20 Cal.App. 561 (1912)

129 P. 808


Civ. No. 1176.Court of Appeal of California, Second District.
December 9, 1912.

Page 562

APPEAL from a judgment of the Superior Court of the County of Los Angeles. N. P. Conrey, Judge.

The facts are stated in the opinion of the court.

J. F. Conroy, for Appellants.

H. H. Appel, for Respondent.

SHAW, J. —

Action for an injunction. As shown by the complaint, plaintiff with his family occupied as a residence a house located in the rear of one fronting upon a street of Los Angeles, both of which were inclosed by a fence through which, by gates and over a walk extending from the street, plaintiff and his family had means of egress and ingress to said dwelling. The means of obtaining a supply of water for use by the occupants of the house and land connected therewith was by pipes and hydrants through which it was conveyed. Plaintiff’s use of the house and appurtenances thereto was under and by virtue of a lease whereby one William F. McCann, alleged to be the owner of the entire property, demised the same to him for a term of one year. Defendants nailed up and closed the gates, obstructed the right of way extending from the street to the house, and cut and obstructed the pipe-line through which the supply of water was furnished plaintiff for domestic use. Upon these facts, all of which, except the alleged ownership of McCann, were found by the court, judgment was entered restraining defendants from a further commission of the alleged acts.

Defendants appeal from the judgment, claiming that the complaint fails to state facts entitling plaintiff to equitable

Page 563

relief in that he had an adequate remedy at law in an action for damages, and further that an injunction will not be granted to prevent merely threatened or repeated naked trespasses. Conceding the other propositions, there is no merit in the contention that an action at law would constitute an adequate remedy. Closing the gates and otherwise obstructing the right of way, thus depriving plaintiff of the right of ingress and egress to the dwelling, and cutting and otherwise obstructing the water pipes, thus depriving him of a supply of water for domestic use, are allegations of facts from which damages, the amount of which cannot be ascertained, must necessarily follow.

Other errors assigned are that the court failed to find upon the issue of ownership alleged in the complaint to have been in McCann, plaintiff’s lessor, and likewise failed to find upon the question of defendants’ solvency, put in issue by the pleadings. Since plaintiff was shown to have been in the peaceable possession as occupant of the property, it was immaterial in whom the title was vested. Moreover, McCann was not a party to the suit and the title was not a subject to be litigated therein. Since the injury was irreparable and the damages, as found by the court, of such a character that it was impossible to estimate the same, it was likewise immaterial whether or not defendants were solvent. In no case could the findings have affected the judgment given, and hence the failure to find thereon, even if error, was harmless.

Judgment affirmed.

Allen, P. J., and James, J., concurred.

Page 564