Earle

Plaintiffs brought this action to recover the sum of three thousand dollars as damages alleged to have been sustained through the act of defendant in removing from the land of plaintiffs a certain building. The facts, in so far as they are necessary to be stated to illustrate the controversy, are as follows: In 1888 the grantor of plaintiffs leased certain ground, which was a lot of land situated in the city of San Diego, to one Goddard, for a term of five years. At the time this lease was made the ground was bare of any buildings or other improvements, and Goddard proceeded to place thereon a structure which he moved from another part of the city. The structure was in form a frame building, in the main designed to be used for a livery stable, but having some rooms upstairs and several small side rooms which were subsequently rented for store purposes. That portion designed to be used for a livery stable had no floor. Goddard intended to use the building in carrying on his business as a livery stable keeper, and he did so use it, as did also successive tenants of the property, including the defendant. All of the building was used for such purposes, except a portion upstairs…

I concur in the judgment. I am of opinion, however, that the sufficiency of the evidence to support an estoppel is not involved. The facts constituting an estoppel were not pleaded, and, therefore, in my opinion, all of the evidence tending to establish such estoppel was improperly received and the court erred in relation thereto.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 13, 1913.