Kitzman v. Newman

This is an appeal by the defendants from a judgment awarding damages to the plaintiffs. The defendants’ building was on land adjoining that of the plaintiffs on Ventura Boulevard in the Encino section of the City of Los Angeles. The defendants extended their building across a sidewalk theretofore used by the public and thereby obstructed the view of the front of plaintiffs’ building by persons proceeding along Ventura Boulevard in an easterly direction.

The defendants have elected to present their appeal on a settled statement pursuant to rule 7(a) of the California Rules of Court.

At the place where the two buildings are located, Ventura Boulevard runs in an easterly and westerly direction and is the principal business street in the community. The buildings are on the south side of the boulevard. The plaintiffs’ property is to the east of that of the defendants. In the latter part of 1953 the defendants commenced the construction of their one-story building containing four stores. It was completed in January of 1954. As a part of the project, the defendants constructed a concrete sidewalk, which was 10 feet in width, across the entire front of their lot This sidewalk was immediately adjacent to the front of their building. The space of 20 feet which separated the sidewalk from the paved surface of Ventura Boulevard was covered by the defendants with black asphalt paving and was thereafter used as a parking area for automobiles. Wooden blocks were installed to prevent vehicles from driving onto the concrete sidewalk. For a period of about six and one-half years, ending in June of 1960, pedestrian use was made of the sidewalk by some members of the general public proceeding along that side of Ventura Boulevard.

Shortly after the defendants’ building was completed, the plaintiffs erected on their lot a one-story building containing four stores. They located the front of their structure on a line even with that of the front of the defendants’ building. On the front of the plaintiffs’ building were stone flower-boxes and the doors and windows of the four stores were in a recessed position about 2 feet to the rear of the front line of the building. The space between the plaintiffs’ building and the curb of Ventura Boulevard was approximately 15 feet in width, and at the time the plaintiffs acquired their lot, it was subject to an expressly dedicated easement for sidewalk purposes over that entire space. The plaintiffs constructed a concrete pavement thereon for use as a sidewalk.

As has been indicated, the front building lines of the two

The lot which adjoined the plaintiffs’ property on the east was unimproved, but on the lots to the east of it were business buildings. When the defendants’ building and that of the plaintiffs were built, the front building lines thereof conformed with those of the buildings to the east in the same block. Immediately adjacent to the defendants’ property was the property of a church which extended to the end of the block on the west.

For many years prior to 1954 the public had established a sidewalk course in the block. It ran along the concrete sidewalk in front of the improved properties on the easterly portion of the block, over the vacant lot easterly of the plaintiffs’ property and over the front of the plaintiffs’ unimproved property. At this point some of the public would continue to walk across the defendants’ property, turn north and walk along a walkway between the defendants’ property and the church property, and then turn west and pass in front of the church property along a dirt path which ran in front of some benches. Some of the public, however, would not turn north to the pathway just described, but they would continue in a westerly direction over a pathway across the church property which passed in front of a brick wall. The same means of passage would be used by persons going in the opposite direction. After passing over the front of the plaintiffs’ unimproved properties, others of the public would walk at various angles across the front of the defendants’ property to reach the dirt pathway in front of the benches on the church property. The pathway in front of the benches was approximately 15 to 20 feet to the north of the original dirt sidewalk route over the respective lots of the plaintiffs and the defendants before the erection of the buildings thereon, but the pathway near the front brick wall on the church property was approximately even with the original dirt sidewalk route over the plaintiffs’ and defendants’ lots, both before and after the construction of their respective buildings.

After the construction of the Kitzman and Newman buildings in 1954 and the installation of the concrete pavement in front of each of the buildings, the public used approxi

A building permit dated November 29, 1959, was issued to the defendants by the Department of Building and Safety of the City of Los Angeles. The permit authorized them to remodel their original store building so as to change it into a two-story office building. It also permitted the construction of the front of the building on a line 10 feet to the north of the front of the existing building, with the result that a portion thereof would be on the entire area, 10 feet in width, previously allotted to the concrete sidewalk in front of the original building. The detailed plans for such extension of the front line of the building were approved as part of such permit as of January 7, 1960.

When the defendants acquired their lot, there were in existence no express dedications of easements over that property for sidewalk purposes. In December of 1959, the defendants granted to the City of Los Angeles an easement for street purposes on the remaining northerly 20 feet of their lot, this being the portion which had previously been covered with black asphalt paving and used for the parking of automobiles in front of the original building. The granting of such easement, however, was not a condition precedent to the granting of a permit by the city for the erection of the new structure.

Dr. Kitzman, one of the plaintiffs, was a veterinarian and conducted a small animal clinic in one of the stores in the plaintiffs’ building. The three other stores were rented to tenants who maintained signs and window displays relating to their respective businesses.

When the defendants started their new building project, the plaintiffs immediately objected, both orally and by formal notice, to the elimination or obstruction of the sidewalk in front of the defendants’ property. When the project continued, the plaintiffs filed the present action for an injunction and for damages.

With respect to the relationship of various lots in the block to the line of Ventura Boulevard, the settled statement

The trial court found that, as to the area upon which the defendants constructed a sidewalk in front of their original building, it was the intention of the defendants to dedicate that strip of land to the public as an easement for street purposes; that use by the public of the sidewalk was not permissive; and that “the said easement was accepted by the public

In the Laguna Beach case, the court stated (68 Cal.App.2d, at pp. 44-45) : “In determining whether the use shown indicates an acceptance of an implied intention to dedicate to public use or whether it is merely permissive, the rules laid down and some of the broad statements made in the various decisions must be considered in the light of the facts in each ease. Obviously, the surrounding circumstances affect the nature and extent of the rule which is to be applied in a particular case. Naturally, more evidence of an intent to dedicate to public use is required in an open country where the public has been in the habit of going at will, without any clearly defined roadways. Even in cities and towns different circumstances call for different rules. It should take stronger evidence to show an implied dedication where people have cut across a vacant lot as a matter of convenience, and the general circumstances indicate that neither the owner nor the public ever intended to establish a road there. On the other hand, a deliberate action on the part of all of the owners in a certain area for the purpose of bringing the general public into and through that area and providing them with a fixed route and permanent roadway is a different matter and naturally gives rise to presumptions which cannot be overlooked. ’ ’

In the present case the defendants constructed the sidewalk in front of their building in such a manner that it constituted part of the route generally taken by the public in traveling by foot along Ventura Boulevard in the block in which the buildings of the plaintiffs and defendants were situated. In fact, the placing of asphalt on the part of the defendants’ lot immediately adjoining the boulevard for the purpose of providing parking spaces for automobiles clearly indicated that the concrete walk was the area over which it was intended that pedestrians should travel. There was substantial evidence in support of the trial court’s finding that the defendants made no objection to such use of the concrete strip and took no action to give notice to the public that such use was only permissive. That use continued without interruption for approximately six and one-half years. While it is true that the record does not disclose that

In Klaber v. Lakenan, 64 F.2d 86 [ 90 A.L.R. 783 ], injunctive relief was sought against the maintenance of a sidewalk canopy and signs in front of a theatre adjoining the plaintiff’s property. The complaint was that the canopy and signs obstructed a view of the plaintiff’s store building from the street. While it was held that the denial of the relief sought was warranted under the facts of that ease, Circuit Judge Kenyon stated (64 F.2d at p. 91) : “The decided weight of authority as well as sound reason is in favor of the proposition that an abutting owner of property on a public highway has the easement, not only of light, air, and access, but of a reasonable view of his property from such public street.” (See also Northio Theatres Corp. v. 226 Main Street Hotel Corp., 313 Ky. 329 [ 231 S.W.2d 65 , 67]; Rogers v. Scaling (Tex.Civ.App.) 298 S.W.2d 877 , 880; Kelbro, Inc. v. Myrick, 113 Vt. 64 [ 30 A.2d 527 , 530].) In the Kelbro case, the court stated (30 A.2d at p. 530) : “An important right of this nature is the abutter’s right of view to and from the property, from and to the highway; that is, his right to see and to be seen. This right of reasonable view has been generally recognized by the weight of authority and has been protected in numerous eases where encroachments on streets or sidewalks obscure the visibility of signs, window displays or show eases.”

In Williams v. Los Angeles Ry. Co., 150 Cal. 592 [ 89 P. 330 ], the obstruction of which the plaintiff complained had been erected on the sidewalk and was about nine feet from the walls and windows of the plaintiff’s building. The Supreme Court stated (150 Cal., at pp. 594-595) : “Every lot fronting upon a street has, as appurtenances thereto, certain private easements in the street, in front of and adjacent to the lot, which easements are a part of the lot, and are private property as fully as the lot itself, though exercised in the

‘1 These private easements are,—-1. The right of ingress and egress to and from the lot over and by means of the adjacent portion of the street [citations]; 2. The right to receive light from the space occupied by the street, and to the circulation of air therefrom [citations]; and 3. The right to have the street space kept open so that signs or goods displayed in and upon the lot may be seen by the passersby, in order that they may be attracted as customers to patronize the business carried on thereon. [Citations.] The plaintiff, as the owner of the lot abutting on the street, was possessed of these private easements. The structure erected by the defendant was, at the place where it was situated, to some extent an obstruction to the exercise of all of these easements. To the extent of the space occupied, it absolutely excluded all other use, either for passage, light, air, or view.” (See also Goycoolea v. City of Los Angeles, 207 Cal.App.2d 729 , 735 [ 24 Cal.Rptr. 719 ].)

The defendants assert that the public right of way for sidewalk purposes over their land was extinguished by the granting of the permit by the Department of Building and Safety of the City of Los Angeles for the extension of their building. Of a similar contention, Circuit Judge Kenyon stated in Klaber v. Lalcenan, supra, 64 F.2d 86 , at page 91 : “The permission of a city council to erect an obstruction thereto is no defense where the rights of a property owner have been infringed. A city cannot consent that the owner of one lot may appropriate portions of the street in front of his neighbor’s property, or so use the street in front of

The defendants’ argument with respect to “a rule of law in regard to abandonment by relocation of an easement for road or highway purposes” does not strengthen their position. The factual situation presented in this case does not show that there had been any actual relocation of the sidewalk, although a different sidewalk course appears to have been in contemplation by the city at the time of the trial. As has been noted, the granting by the defendants to the city of an easement for street purposes over the front 20 feet of their lot, being the portion theretofore paved by the defendants for parking purposes, was not a condition precedent to the issuance of the permit for the relocation of the front of the defendants’ building.

The right of the plaintiffs to recover damages from the defendants remains for consideration. “ The injury in so far as it affects the value of their property is a right peculiar to the owners and any interference with it constitutes a private as well as a public nuisance.” (Fitzgerald v. Smith, 94 Cal.App. 480 , 485 [ 271 P. 507 ].) Where the damage to real property is permanent in nature, compensation is to be measured by the decrease in the market value of the property injured. (See Spaulding v. Cameron, 38 Cal.2d 265 , 270 [ 239 P.2d 625 ] ; Guttinger v. Calaveras Cement Co,, 105 Cal.App. 2d 382 , 387 [ 233 P.2d 914 ].)

The defendants contend that the trial court used an improper basis in determining the issue of damages. They argue that the defendants’ interference with the view of the plaintiffs’ building by persons traveling in an easterly direction on Ventura Boulevard was one of temporary duration since the plaintiffs, as of the time of trial, had filed a petition with the city for the vacation of as much as 10 feet of the sidewalk easement across their property so that the front of their building could be extended. They assert in their brief that such an extension has been made since the trial. But this court must be guided by the record before it. That record shows that such an extension would not be in line with the front line of the defendants’ building, although the two lines

It is to be noted that the plaintiffs filed their action on July 26, 1960. Therein it was alleged that the defendants were constructing an extension of their building so that the front wall thereof would be 10 feet closer to the center of Ventura Boulevard. It was also alleged “that said defendants have caused to be prepared the foundation upon which to erect said wall and unless restrained from so doing, intend to complete the construction thereof.” A further allegation was that as a result of the defendants’ action, “plaintiffs have suffered great and substantial injury and will continue to suffer great and substantial injury, and damages have accrued and shall accrue to plaintiffs by reason of said action.” Equitable relief by way of preliminary and permanent injunctions was sought, together with damages. A temporary restraining order was issued, which caused a cessation of construction for a short period of time, but a preliminary injunction was denied. Thereafter the defendants continued with the construction and completed their building prior to the trial. The trial court denied a permanent injunction but rendered a judgment for damages in favor of the plaintiffs.

At the time of the trial, the defendants’ building extended across the space formerly occupied by the concrete sidewalk and bordered upon the easement for street purposes which had been granted by the defendants to the city by a deed dated December 8, 1959, which was accepted by the city several months prior to the obstruction of the sidewalk. It was in the light of that factual situation that the trial court had to determine the issues then before it. The governing law is stated in Union Oil Co. v. Reconstruction Oil Co., 20 Cal. App.2d 170 , at page 183 [ 66 P.2d 1215 ]: “However, it is a familiar principle of equitable procedure that equity having once acquired jurisdiction of the subject matter of an action will retain it to the end that a complete adjudication of all conflicting rights may be had and a final determination of all matters in controversy may be accomplished. The damage suffered by respondent occurred after the suit for injunctive

The trial court had before it photographs which clearly illustrated the nature of the effect upon the plaintiffs’ property of the extension of the defendants’ building over the sidewalk area.

Dr. Kitzman, one of the plaintiffs, testified that prior to the extension of the defendants’ building, the signs and windows in his building were easily viewed by persons in automobiles and by pedestrians traveling along Ventura Boulevard in an easterly direction from a point as far as 800 or 900 feet westerly of his property. After the construction of the defendants’ new building, such view of the plaintiffs’ premises did not arise until a person reached a point approximately due north of the west wall of his building. With respect to his property, Dr. Kitzman also testified as to vacancies and reduced rentals. In his opinion, the fair market value of the plaintiffs’ property immediately prior to the extension of the defendants’ building was $75,000, but the fair market value immediately after such construction was $48,000.

A real estate appraiser testified that, in his opinion, tbe plaintiffs’ property had a fair market value of $55,000 prior to the extension of the defendants’ building and a fair market value of $36,000 thereafter. He expressed the further opinion that the cause of the decrease in value was the construction of the addition to the defendants’ building which blocked the view from the west of the store signs and window displays on the plaintiffs’ property.

The real estate agent who had been employed to obtain tenants for the plaintiffs’ vacant stores testified that, in his opinion, the reason for the decrease in rental value was the loss of view of the tenants’ stores, windows, displays and signs because of the defendants’ new building. He stated that a person could not see the stores until he was “right on top of them.”

The trial court determined the amount of damages suffered