Guttenberger v. Woods

51 Cal. 523

• Court: California Supreme Court
• Decided: July 1, 1876
• Docket: No. 5228
• Status: Published

Opinion

By the Court:

The Court finds that the wall in controversy stands upon the east line of the plaintiff’s lot and wholly on his land; but above the surface of the ground several portions of the wall project some inches over the adjoining lot of the defendant. The action is in equity to compel the defendant to desist from the use of the wall, and to remove the joists which have been inserted into it. But it is a familiar maxim in courts of equity that he who seeks equity must do equity; and so long as the plaintiff’s wall projects over the defendant’s land, thereby obstructing its free use and enjoyment, a court of equity will refuse to the plaintiff the redress which he seeks, except on the condition that he shall remove so much of the wall as projects over the defendant’s land. The decree omits that condition and is, to that extent, erroneous.

The judgment and order are reversed and the cause remanded, with an order to the court below to modify the judgment in accordance with this opinion.