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District Court of Appeal, Third District, California.


Civ. 8071.

Decided: August 12, 1952

Leo C. Dunnell, William H. Herbert, Adey May Dunnell, Fairfield, Bradley & Million, Vallejo, for appellants. Robert H. Gerdes and W. R. Dunn, San Francisco, Burt D. Goodman, Fairfield, Frederick W. Mielke, J., San Francisco, for respondent.

The defendants have appealed from a judgment in plaintiff's favor granting a mandatory injunction requiring the removal of a garage building constructed beneath electric power lines of the plaintiff. The cause was before this court on a previous appeal. 92 Cal.App.2d 401, 206 P.2d 1138. It was there held that defendants' answer sufficiently alleged facts constituting a defense, and the judgment sustaining plaintiff's general demurrer to the amended answer without leave to amend was reversed. The present appeal is before this Court after a trial on the merits.

In 1917 the plaintiff acquired by grant from M. Dos Reis and A. Dos Reis an easement to maintain two electric power lines across the property of the grantors. The right of way thus acquired was 40 feet wide. In 1920 the same grantors conveyed a second right of way for a third line 25 feet wide and paralleling the first. Each grant was for fifty years, and each contained the following restriction: ‘The parties of the first part [Dos Reises] will not erect or construct or permit to be erected or constructed beneath said lines of poles and wires any buildings, structures or improvements, excepting from the above, however, roads and fences, it being understood that the parties of the first part shall have the right to farm said land as they may desire.’ The conveyances were recorded in 1917 and 1920 respectively. Pursuant to the rights acquired by the two grants, plaintiff constructed transmission lines across the Dos Reis property.

In 1945 the defendants Minnettes purchased a lot fifty feet wide and one hundred feet deep from the successors of Dos Reis. This lot originally formed a part of the Dos Reis ranch. The transmission lines in question crossed this lot. The record chain of title shows that the lot was first conveyed by the Dos Reises to the Vallejo Industrial Properties Company who transferred the same to S. and Louise Hommel, who in turn conveyed to the defendants. Only the first of these conveyances excepts therefrom the rights of way in question.

At the time defendants purchased the lot the property had been zoned for commercial uses by the County of Solano. Following a hearing before the County Planning Commission defendants were granted a use permit to build a garage, and construction was started in January, 1947. Upon the request of plaintiff work was stopped in June, 1947. The building, which is fifty-two feet wide and forty-two feet long and of concrete block construction reinforced with steel, was substantially complete at the time of plaintiff's request. Plaintiff by its action sought to compel the removal of the building. As previously stated, the order of the trial court sustaining plaintiff's demurrer to defendants' answer without leave to amend was reversed by this Court. 92 Cal.App.2d 401, 206 P.2d 1138. Upon retrial on the merits the trial court gave judgment for plaintiff as prayed. The court found generally in favor of plaintiff and in particular that defendants had expended approximately $9,000 in construction of the building and that it could not be removed without destruction.

Defendants make three main contentions on appeal: (1) That the findings do not support the judgment in that the evidence is insufficient to show that the right of way described in the grants crosses defendants' property; (2) that the right to enforce the easement against the erection of buildings under the power lines was waived and abandoned by plaintiff; (3) that the trial court abused its discretion in granting an injunction compelling the removal of the structure.

It appears unnecessary to discuss the first two contentions. The questions so raised are essentially predicated upon questions of fact which were either directly or inferentially determined against defendants, and therefore this Court, under the well-established rule, is bound by such determination. However, it appears that defendants' third contention is well founded, and hence we shall limit our discussion to that question.

Injunctive relief is not a matter of right, but depends upon the circumstances of each case. The applicable principles are set forth in Clough v. W. H. Healy Co., 53 Cal.App. 397, 400, 200 P. 378, 379, as follows:

‘A court of equity will, in a proper case, award a mandatory injunction for the protection and preservation of an easement; will enjoin a threatened interference, and require a defendant to repair an injury already done or to remove an obstruction already erected. * * *; but it is not in every case of a permanent obstruction that such relief will be granted. Each case is determined according to the particular circumstances; and it rests in the sound discretion of the court whether or not a mandatory injunction will issue. To entitle the complainant to equitable relief the right must be clear, and an injunction of the character here in question will be denied when the obstruction does not constitute a material interference with the right of the owner of the easement, or where the damage sustained by him is merely nominal. The court will consider the expense which would be occasioned to the defendant if the writ be granted, as against the inconvenience to be suffered by the complaint if it be refused; and where the removal of the obstruction would bring no actual advantage, or the expense entailed thereby would be entirely disproportionate to the benefit resulting, the complainant will be relegated to his legal remedy for the vindication of his right.’

Thus, in Wright v. Best, 19 Cal.2d 368, at page 386, 121 P.2d 702, 712, the court, in commenting upon the equitable doctrine of the “balancing of the conveniences” stated:

‘* * * Under this doctrine, a court of equity may deny injunctive relief and relegate the plaintiff to his remedy at law, if the benefit resulting to him from the granting of the injunction will be slight as compared to the injury caused the defendant thereby.’ See also Vesper v. Forest Lawn Cemetery Ass'n, 20 Cal.App.2d 157, 163, 67 P.2d 368; Lowe v. Copeland, 125 Cal.App. 315, 323, 13 P.2d 522; Rothaermel v. Amerige, 55 Cal.App. 273, 275, 203 P. 833.

Applying the above principles to the present case it appears that the evidence does not warrant the issuance of the injunction. The defendants, as the trial court found, had no actual knowledge of the grants of easements containing the restrictions here in question nor did they wilfully or deliberately invade the rights of plaintiff. The plaintiff presented no evidence showing that the building materially interferes with its use of the easement, or that there is any interference with the actual transmission of electric power. At best it is only inferable that the building might hamper operations to a degree, such as are not rendered impossible by the existence of the building beneath the lines. Furthermore, although the evidence is not clear, it would appear that the wires nearest to the building, and hence the ones most likely to present problems, belong to a power company not a party to this proceeding. Again referring to the rule above stated, in considering the hardship of the parties, it appears that the granting of the injunction would result in the total destruction of a $14,000 building, certainly a substantial loss to the appellants, while the respondent would receive little, if any, benefit.

For the foregoing reasons the judgment is reversed, and the cause remanded for the sole purpose of determining the amount of damages, if any, sustained by plaintiff.

PEEK Justice.

SCHOTTKY, Justice pro tem., and VAN DYKE, J., concur.