1 P.2d 440 | Cal. | 1931
This is an action by a purchaser to rescind a contract for the sale of real estate. The plaintiff entered into a written agreement to purchase from the defendant a lot and three-story concrete building on the northeast corner of Kearny and California Streets in San Francisco, for the sum of $150,000. A deposit of $1,000 was paid at the time the agreement was signed. The said agreement provided that the purchaser had "seven days in which to report any defects in either title or survey". Within the specified time plaintiff gave notice of rescission and demanded *113 the return of his first payment, claiming that the property encroached upon the street, and that the title was consequently defective. Upon the refusal of the defendant vendor to return the deposit, this action was brought.
There is no dispute about the fact of the encroachment, and the evidence sustains the court's finding in that regard, which reads as follows: "That . . . the building on said premises encroached on property belonging to the city and county of San Francisco for a length along the California street frontage of at least 35 feet and to the extent of two inches on the westerly end, tapering to an encroachment of seven-eighths of an inch to the easterly end . . . That said encroachment consists only of the marble veneer at base of buildings and a slight overlap of the concrete behind the marble." The record contains uncontradicted evidence that the overlap could be eliminated at a cost of $200.
[1] The question presented by these facts is, of course, whether the encroachment renders the title of the vendor defective. In the absence of a special express requirement of, e.g., a "perfect" title, it is sufficient if the title bemarketable; and a marketable title has been defined generally as one free from reasonable doubt. The case of Kenefick v.Schumaker,
The effect of encroachments upon the marketability of title is a problem which does not appear to have been directly presented in any California case, but it has received the attention of the courts of other states, and in particular of the state of New York. In this latter jurisdiction a most curious line of decisions may be noticed. The earlier cases, such as EmpireRealty Corp. v. Sayre,
We have before us no evidence of the policy of the municipal authorities of the city of San Francisco, nor would we be disposed to give much weight to such policy in reaching our decision in the instant case. [3] We think that if it should appear that the city has a right of action based upon the encroachment and that the enforcement of that right would cause substantial loss to the owner, the title cannot be said to be free from reasonable doubt. A purchaser *115 should not be compelled to rely upon past acquiescence or mere indifference on the part of city officials to substantial interference with the property rights of the people. Hence we shall treat this case as if the city were prepared to enforce these rights, and we shall determine the question of marketability by considering what would be the result of an action brought by the city against the owner.
The answer seems to be clearly indicated in the cases ofRothaermel v. Amerige,
There is nothing in the cases from other jurisdictions which is inconsistent with the conclusion we have reached. Even in the later New York decisions, the encroachments which were held to render the title unmarketable were substantial ones, which, it was decided, the municipality could have removed, and the removal would have required a considerable expenditure. Thus, in the Acme Realty Co. case, supra, the encroachments included show windows, oriel windows, and bay windows of masonry, projecting one foot beyond the building line, a portico of limestone projecting one foot, and a stoop projecting four feet. The court found that the cost of removal would be over $5,000, that proceedings by city authorities were imminent, and that removal would damage the building and decrease its rental and fee value. The opinion states (
We are therefore satisfied with the trial court's conclusion that the title to the property was marketable and that the contract of sale was valid and enforceable.
The judgment is affirmed.
Curtis, J., Richards, J., Seawell, J., Shenk, J., Waste, C.J., and Preston, J., concurred.