Nature of the Case
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Facts
P owned certain land known as Arroyo Seco in South Pasadena. D made a contract with public authorities for the construction of a concrete bridge across the Arroyo Seco. P and D entered into a written agreement whereby D was granted rights to haul gravel and earth from P's land for the construction of the bridge. The estimate called for the removal of 114,000 cubic yards. D agreed to pay 5 cents per cubic yard for the first 80,000 yards, the next 10,000 were free of charge, and the balance was to be paid at the 5-cent rate. D only used 50,131 yards but paid only $900. P sued for the balance of $1,606.55 and for a failure to take more than 50,131 yards. P alleged that D procured 50,869 yards from another source. D denied P's land contained enough earth and gravel in excess of what had been taken. The trial court determined that only 50,131 yards were above the water level and that no greater amount could have been taken from D's land except at a great expense and delay of up to 10-12 times the cost. It is also declared that the word 'available' is used in the findings to mean capable of being taken and used advantageously. It was not 'advantageous or practical' to have taken more material from plaintiff's land, but it was not impossible. P got the judgment for the unpaid amounts plus judgment for the amounts not taken. D appealed.
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