Daroux

The demurrer of respondents to appellant’s complaint was sustained and a temporary restraining order by which the former had been forbidden and enjoined from building upon a portion of their property was dissolved. The appeals of plaintiff are from the judgment and from the order dissolving the temporary injunction.

The facts are simple and undisputed. M. Graf was the owner of lot 5 in the block bounded by H, Eighth, I, and Ninth' Streets, in the city of Sacramento. He conveyed by deed on April 21, 1888, the south ninety feet of the east forty feet of his lot to Knights of Pythias hall association of Sacramento, plaintiff’s predecessor in interest. The deed in which the grantor was designated as “party of the first part” and the grantee as “party of the second part” contained the following language:

Defendants by mesne conveyances and after the death of M. Graf became the owners of the south ninety feet of the west forty feet of said lot 5 and they served upon plaintiff notice of their intention to excavate and build thereon. Appellant thereupon commenced this action to enjoin them from placing any structure on the easterly five feet of their lot. The only question involved in…