Kennedy v. Rosecrans Gardens, Inc.

Plaintiff sues for damages for trespass upon his land and for an injunction. He appeals from a judgment for defendant.

Plaintiff owned a parcel, we shall call “A,” 145 feet wide and more than 900 feet in length. Defendant owned “B” immediately east of “A.” Plaintiff owned parcel “C” immediately east of “B.” Both parties were desirous of subdividing their respective parcels. They entered into an agreement under which defendant agreed to convey to plaintiff a strip along the westerly edge of “B” ranging in width from 17 to 28 feet which we shall call “D.” Plaintiff conveyed “C” to defendant and received a purchase money trust deed for $2,500. It was agreed that if defendant did not subdivide “C” within six months it would reconvey “C” to plaintiff and he would give a release of the trust deed.

The deeds, with the agreement, were placed in escrow on or about February 6, 1951, and were recorded May 25, 1951. Defendant did not subdivide “C,” but reconveyed it to plaintiff who gave a release of the trust deed. Plaintiff therefore retained title to the strip “D.”

Defendant subdivided “B” and in doing so raised the grade 24 or more inches. By plaintiff’s evidence, which was not…