Elliott v. McCombs

109 P.2d 329, 17 Cal. 2d 23, 1941 Cal. LEXIS 243

• Court: California Supreme Court
• Decided: January 16, 1941
• Docket: L. A. 16547
• Status: Published

Opinions

EDMONDS, J.

It was successfully asserted in the trial court that a right of way for road purposes was granted under deeds made by a common predecessor in interest of the parties to this action. By the terms of the decree appealed from the respondent's title and right to the use of a strip of land is quieted against the appellants and the latter are enjoined from interfering with such use.

The controversy concerns land within the area bounded by the four streets shown on the diagram, all of which was

acquired by San Fernando Mission Land Company many years ago under a deed which described it as lots 9, 10, 15 and 16 according to a map of record. Deeds of the land company have conveyed portions of these lots, designated on the diagram by letters, by metes and bounds. This action was commenced by the respondent, as the owner of parcel B, to quiet title to an easement and right of way over the north 30 feet of parcels F and G and the south 30 feet of parcel A.

Pursuant to the requirements of a contract of sale made in 1919, the terms of which are not disclosed, by a deed dated June 20, 1922, the land company conveyed parcel A ‘ ‘ except the south 30 feet thereof reserved for road purposes ’ ’ and parcel F “except the north 30 feet thereof reserved for road purposes” to one Rice, appellant Virgil McCombs’ immediate grantor. Some years later Rice commenced an action against the land company and, in 1930, secured a decree by default quieting his title to this land, including that part of each parcel which had been reserved for road purposes. At the time that action was filed, the land company had conveyed all of its interest in the property shown on the diagram except that reserved for road purposes. On May 22, 1930, the date of the decree quieting Rice’s title, there was recorded a deed made by him conveying parcels A and F to appellant Virgil McCombs with no reservation of a right of way.

In 1922, the land company conveyed parcels B and H to Title Guarantee and Trust Company without reservation or any mention of the rights of way reserved in its deed to parcels A and F. Later, Title Guarantee and Trust Company conveyed parcel B, reserving the south 30 feet for road purposes. The respondent acquired title to this parcel by mesne conveyances containing the same reservation. Parcel H was also conveyed by the land company’s grantee with a reservation of the right to use the north 30 feet for road purposes.

The land of appellant Eva McCombs is parcel G which was conveyed by the land company in 1923 with a reservation of the north 30 feet for road purposes. She acquired title by a deed containing the same reservation.

All of the other parcels shown on the diagram were conveyed by the land company in earlier years. Parcel I was deeded in 1920 subject to a, reservation of the north 30 feet for road purposes. However, in 1926 the land company executed a deed to the then owner quitclaiming any interest in this land. The deed to parcel D was made in 1921 without reservation. In the same year it conveyed parcels C and E by deeds reserving for road purposes the south 30 feet of the land described.

Two days before the present action was commenced, the land company and Title Guarantee and Trust Company executed various deeds quitclaiming the south 30 feet of parcels A, B, C, D, and E, and the north 30 feet of parcels F, G, H, and I to the owners of parcels abutting therein. These two corporations also separately executed deeds, bearing the same date, quitclaiming to the. owners of abutting parcels all right, title and interest in and to an easement for road purposes in and over the south 30 feet of parcels A, B, C, D, and E and the north 30 feet of parcels F, G, H and I.

The trial court found that it was the intention of the land company “to create a right of way for road purposes sixty feet in width . . . connecting the roadways . . . known as Hayvenhurst Avenue and Balboa Avenue . . . ; that for several years prior to the commencement of this action said sixty-foot strip between lots 10 and 15 has been used for road purposes by the owners of property abutting thereon . . . and others who chose to use the same, and that said strip is now a well-defined roadway; that at the time the defendants acquired title to their properties said strip was being so used. ...” That as to parcels A and F owned by Virgil McCombs “there was no user of that portion of the sixty-foot strip and right of way for road purposes . . . ”; that all of the grantees mentioned in the deeds of the 60 foot strip across the entire quarter section, dated October 24, 1936, from the land company to the title company, are the owners of “some parcel of property abutting upon said easement for road purposes, and that collectively they own all of such abutting property”; “at the time defendants acquired their respective properties, . . . they had such constructive notice as was given by the public records that a reservation for road purposes, sixty feet in width lying between lots 9 and 10 on the north, and lots 15 and 16 on the south, was reserved for road purposes . . . ; that at the time San Fernando Mission Land Company, a corporation, had divested itself of all interest in . . . [the land shown on the diagram] except its interest in said sixty-foot reservation for road purposes. ...”

The appellants contend that the reservation in some, but not all, of the deeds made by the land company did not operate to reserve, for the mutual benefit of all adjoining parcels, the use of the strip of land which is in controversy. Furthermore, declare appellants, the trial court erred in its conclusion of law that the judgment secured by Rice against the land company did not terminate the easement claimed by the respondent, and at the time of the conveyance to them they had no actual or constructive notice of an easement over their land for the benefit of adjoining land.

Respondent, in support of the judgment, urges that the language used in the deed from the land company to Rice states exceptions and not reservations; therefore, the 60 foot strip of land was not conveyed. Title to this strip, she insists, remained in the land company, subject to the vested and irrevocable right in Rice and his successors in interest to use it for road purposes.

In a grant of real property it is presumed that the grantor intended to convey a fee-simple title unless it appears from the grant that a lesser estate was intended. (Civ. Code, sec. 1105.) And as the court said in Parks v. Gates, 186 Cal. 151, 155 [199 Pac. 40], “there is a vast difference between a grant for purposes of ‘right of way’ for a road and a grant of land ‘to be used for a road’. The latter grant may be entirely consistent with the conveyance of a fee-simple title, as a road may be maintained as readily on land held in fee as under an easement, but the grant of land as a right of way recognizes nothing but an easement.” This rule was applied in Cooper v. Selig, 48 Cal. App. 228 [191 Pac. 983], where the court construed a deed conveying land to the city of Los Angeles for the purposes of a public road as passing the fee-simple title. Under the same principle of construction, the language in the deed of the land company to Rice conveyed a fee-simple title to him with the reservation of an easement on the part of the grantor. (See Winston v. Johnson, 42 Minn. 398 [45 N. W. 958]; Coon v. Sonoma etc. Co., 182 Cal. 597 [189 Pac. 271]; Las Posas Water Co. v. Ventura County, 97 Cal. App. 296 [275 Pac. 817].)

The next question is whether this easement is in gross or appurtenant to the land. A reservation, of course, must be to the grantor, or to the grantor’s property, and cannot be made to a stranger to the deed. (Butler v. Gosling, 130 Cal. 422 [62 Pac. 596]; Beardslee v. New Berlin Light etc. Co., 207 N. Y. 34 [100 N. E. 434, Ann. Cas. 1914B, 1287; Simmons v. Northern Pac. R. Co., 88 Wash. 384 [153 Pac. 321, 155 Pac. 1039, Ann. Cas. 1918C, 1184].) Here, again, the answer requires an interpretation of the deed. The appellants contend that no mutuality of benefit for adjoining parcels can be inferred from the language of the reservations, and that as the deeds do not declare that the reservations are for the benefit of the adjoining parcels, they were intended to be personal to the grantor. Further, declare the appellants, assuming that the land company intended the reservations for the benefit of the adjoining parcels, as the grantees of parcels conveyed with reservations have no right of way over parcels deeded free of reservations, there is no mutuality of benefit in the adjoining landowners, and therefore the easement may not be enforced.

This argument is based upon two misconceptions. The first is the appellants’ assumption that the benefit of the reservations was intended to be personal to the grantor because there is nothing to indicate a contrary intention. However, when the language of a deed is ambiguous, and it does not clearly appear whether the easement was intended to be in gross or appurtenant to land, it is never construed as personal when it may fairly be construed as appurtenant to some other estate. (Hopper v. Barnes, 113 Cal. 636 [45 Pac. 874]; Eastman v. Piper, 68 Cal. App. 554 [229 Pac. 1002]; Nay v. Bernard, 40 Cal. App. 364 [180 Pac. 827]; 19 C. J. 868.) The cases which apply this rule also hold that in ascertaining the intention of the grantor, as in any other contract, in the absence of an express declaration, the nature of the easement may be determined by evidence aliunde the deed. An easement, therefore, may be appurtenant although the deed does not expressly declare it to be so, and the law favors such an interpretation.

The evidence shows that the land company, in selling portions of lots 9, 10, 15, and 16, reserved a 30 foot strip for road purposes in six of the nine conveyances of land along an east-west median line. From this and other evidence the trial court was justified in finding that it intended to provide a 60 foot road from Balboa Avenue to Hayvenhurst Avenue. And a road is primarily laid out for the benefit of the adjoining land owners. It must be remembered that the purpose of the land company was to sell the property which it had acquired as lots 9, 10, 15, and 16, and that it would have no use for an easement in gross. On the contrary, the logical purpose of the grantor in reserving an easement would be to give grantees of land bordering upon the east-west median line of the tract offered for sale an outlet from their property at that point. Parcels A, B, D, E, and H each contain approximately 10 acres and the other parcels about 20 acres each. The owners of land having that amount of acreage could well use and might reasonably require access to their land by means other than the public streets shown on the diagram. The only logical conclusion to be drawn from these facts is that the easements were created for the benefit of the adjacent property.

More particularly, the evidence compels the conclusion that the easement was for the benefit of the land later acquired by the respondent. This property borders on no main street, and its only means of access is along the median east-west line. The nearest street to this land is Balboa Avenue to the west, which can only be reached by passing over Parcel A or F or both. Certainly no property owned by the land company at the time it sold parcels A and F to Rice could have been more clearly intended to receive the benefits of the easement then reserved than the land owned by the respondent.

In urging that this conclusion is erroneous because there was no mutuality in the provisions of the various deeds, the appellants have misconceived the nature of the interests created. They insist that the rule stated in Werner v. Graham, 181 Cal. 174 [183 Pac. 945]), is controlling. But that case concerns equitable servitudes in land and restrictive covenants which are equitable in nature. An easement, on the other hand, creates an interest in the land. (Eastman v. Piper, supra; Gale on Easements, 9th Ed., p. 7.) It is an interest which gives a privilege to a particular person or owner of property to enjoy a right over the property of another. (Jones on Easements, pp. 1 and 2; Thompson on Real Property, Perm. Ed., vol. 1, p. 502.) As it is an interest in land it can only be created by grant, express or implied, or prescription, and not by parol. (Eastman v. Piper, supra.) It is an incorporeal interest in the servient estate. (Kellett v. Ida Clayton etc. Wagon Road Co., 99 Cal. 210 [33 Pac. 885]; Thompson on Real Property, Perm. Ed., vol. 1, p. 506.) The principles governing equitable servitudes are therefore not applicable, and it was not necessary for the respondent to show that each deed made by the land company contained a reservation similar to that in the deed to Rice. Her cause of action depends upon the rights which were created by that deed in favor of the land company and to which she succeeds as the subsequent owner of the adjoining land.

Construing the reservation over parcels A and F as appurtenant to the land, the respondent’s right to a judgment against the appellant Virgil McCombs depends upon whether the land company owned parcel B at the time the easements were created.

It appears that in 1919 the land company made a contract of sale with Rice and in 1922 made a deed in fulfillment of that contract. The respondent’s land was conveyed by the land company to Title Guarantee and Trust Company, her predecessor in interest, about three years after Rice purchased parcels A and F on contract but before the deed was made to him. However, a contract for the sale of real estate may be specifically enforced by the purchaser, equity regarding as done that which ought to be done; it considers the purchaser to be the owner of the land. (Tiffany, Real Property, 3d ed., vol. 1, p. 528; Orange Cove Water Co. v. Sampson, 78 Cal. App. 334 [248 Pac. 526], Retsloff v. Smith, 79 Cal. App. 443 [249 Pac. 886].) The vendor who retains the legal title as security for the payment of the purchase price has no greater rights than he would possess if he had conveyed the land and taken back a mortgage. (Miller v. Waddingham, 91 Cal. 377 [27 Pac. 750, 13 L. R. A. 680].) The vendee, particularly after he goes into possession of the land under an executory contract, is for all purposes the owner and the vendor retains mere legal title. (Thompson on Real Property, Perm. Ed., vol. 8, p. 522.)

The record shows that Rice took possession of the property following the execution of the contract of sale; he thereby became the equitable owner with all the benefits incident to such ownership, and the land was subject to any easements reserved for the benefit of the grantor or the grantor’s property. It necessarily follows that the benefits of that easement attached to the property and may now be enforced by the respondent.

The judgment secured by Rice quieting his title against the land company does not bind the respondent who was not a party to that action. Also the subsequent quitclaim deed executed by the land company to Virgil McCombs did not terminate the respondent’s easement to a right of way appurtenant to her land. But the respondent’s rights as against him must be limited to a decree quieting her title to the use for road purposes of the south 30 feet of parcel A and the north 30 feet of parcel F and enjoining any interference with that use.

However, when the deed to parcel G was made, the land company had conveyed all of the other parcels shown on the diagram, and the reservation in it could not have been made for the benefit of any other property. But it must be presumed that this provision in the deed was made to carry out some purpose, and “an interpretation which gives effect is preferred to one which makes void”. (Sec. 3541, Civ. Code.) It must, therefore, be construed as an easement in gross.

By a deed executed in 1936, the land company granted to the respondent and others all of its rights to the easement in and over the property of Eva McCombs. Under this deed the respondent acquired a title to the right of way and is entitled to have that title quieted and to an injunction against any interference with her use of the northerly 30 feet of parcel G for road purposes. (Callahan v. Martin, 3 Cal. (2d) 110, 121 [43 Pac. (2d) 788, 101 A. L. R. 871].)

The judgment is therefore reversed with directions to enter judgment in favor of the respondent in accordance with the conclusions which have been stated, respondent to recover her costs on appeal.

Gibson, C, J., Traynor, J., Spence, J., pro tem., Carter, J., and Shenk, J., concurred.