ROSECRANS ET AL v. PACIFIC ELECTRIC RY CO ET AL

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District Court of Appeal, Second District, Division 2, California.

ROSECRANS ET AL. v. PACIFIC ELECTRIC RY. CO. ET AL.

Civ. 13670.

Decided: July 09, 1942

Paul Overton and J. G. Leovy, both of Los Angeles, for appellants. Frank Karr, C. W. Cornell, and Randolph Karr, all of Los Angeles, for respondents.

Plaintiffs seek to quiet title to certain lands and right of way which had been conveyed for railroad purposes, to compel defendants to reconvey the lands and right of way to plaintiffs and to remove their rails and appliances therefrom. Defendants filed a general demurrer and also a special demurrer in which it is charged that it cannot be ascertained from the amended complaint whether the defendant railway company has continued to operate freight trains over the right of way. The action is founded upon an alleged breach of a condition subsequent in the conveyance. The trial court sustained the demurrer without leave to amend and plaintiffs have appealed from the ensuing judgment.

An instrument of conveyance was executed on September 17, 1907, by the predecessors in interest of plaintiffs conveying the property in dispute to the predecessors in interest of defendants. The instrument contained the following provisions: “The aforesaid right–of–way is granted upon the express condition that second party or its assigns shall establish and maintain over the railway * * * a daily service of not less than eighteen local passenger cars or passenger trains each way; and that second party or assigns shall on each and every day run not less than eighteen local passenger cars or passenger trains each way over said railway. * * * Each of the conditions * * * is hereby declared to be a condition and not a personal covenant * * * and the breach by second party or assigns of any of said conditions will render the conveyance null and void, and upon such breach the right–of–way hereby granted shall revert to first party, his heirs or assigns. * * * Each of the aforesaid conditions is made for the benefit of first party, his heirs and assigns, and shall bind second party, his heirs and assigns and the right–of–way hereby granted.”

It is alleged in the amended complaint that the defendant railway company has since January 1, 1941, failed to operate and maintain a daily service of not less than eighteen local passenger cars or passenger trains each way “and is not now operating or maintaining any passenger cars or passenger trains whatever over said railroad.” It is now argued that the failure of the railway company to continue the operation of passenger cars over the right of way should be held to be a breach of a condition subsequent and that plaintiffs have a right to a reconveyance.

The question before us must be considered in the light of the rule that conditions subsequent are not favored in law and that no provision in a deed relied upon to create a condition subsequent will be so interpreted if the language used in the deed will bear any other reasonable construction. Conner v. Lowery, 94 Cal.App. 323, 326, 271 P. 118.

The determination of the question involves the construction of the words “shall establish and maintain,” as they appear in the instrument of conveyance. The question whether a provision that a railway company shall maintain service requires the maintenance of perpetual service has been passed upon by the reviewing courts in a number of the states, but the decisions are not uniform. The majority follow the rule that the rendition of service is not required to be perpetual in order to prevent a forfeiture. In a notation in 7 A.L.R. 817, 818, it is said: “The majority of jurisdictions seem to hold that, in the absence of a specified term of years or of express and suitable words showing an intention that performance shall be perpetual, a covenant or condition subsequent for the maintenance of a railroad or its appurtenances is sufficiently complied with by a performance covering a term of years, varying in the cases which have so held from five to sixty years.” (In Texas & Pac. Ry. Co. v. Marshall, 136 U.S. 393, 10 S.Ct. 846, 847, 34 L.Ed. 385), cited by the author, defendant railway company contracted with the city of Marshall, for a valuable consideration, that it would “permanently establish its eastern terminus and Texas office at the city of Marshall, and will also establish and construct at said city the main machine–shops and car–works.” The railway company established its offices and built its shops as called for by the contract, maintained them for a period of eight years, then moved to another city. The Supreme Court held that the agreement “did not amount to a covenant that the company would never cease to make its eastern terminus at Marshall; that it would forever keep up the depot at that place; that it would for all time continue to have its machine–shops and car–shops there, and that, whatever might be the changes of time and circumstances, of railroad rivalry and assistance, these things alone should remain forever unchangeable. * * * The word ‘permanent’ does not mean forever, or lasting forever, or existing forever.”

The decisions of the California courts are in line with the majority rule. In Hasman v. Elk Grove Union High School, 76 Cal.App. 629, 245 P. 464, 465, the deed provided that the property conveyed should “be used for the purpose of maintaining thereon a high school; otherwise, the above described property shall revert to and become the property of the party of the first part, his heirs, or assigns.” A high school was maintained on the property conveyed for approximately twenty–nine years. The successors in interest of the grantor sought to enforce a condition subsequent under the claim that the defendant was no longer maintaining the high school on the property. The reviewing court affirmed a judgment in favor of the defendant, holding that “to maintain a school does not necessarily mean to keep it up perpetually.” The court based its decision on a number of cases, notably Texas & Pac. Ry. Co. v. Marshall, supra.

A case bearing a striking similarity to the case now before us is O. T. Johnson Corp. v. Pacific E. R. Co., 19 Cal.App.2d 306, 65 P.2d 368. In that case the plaintiff had entered into an agreement with the defendant railroad company in which it was provided that the plaintiff should convey a right of way and defendant railway company should complete its road. The agreement further provided: “That upon the completion of said railroad and the commencement of operation of passenger cars thereon and thereover, regular local passenger cars or trains shall be operated each way (East and West making direct connections to and from Los Angeles) over said line through the said property of the parties of the first part at intervals of not greater than one hour between the hours of six o'clock a. m. and eight o'clock p. m. of each day making not less than fifteen local trains to be operated each way every twenty–four hours.” It was further provided that if the land conveyed should thereafter be used for other than railroad purposes or “if any of the foregoing conditions shall be violated” the title to the land should revert to the grantors. The railway company operated passenger cars over the right of way for the period of eighteen years and thereafter operated freight cars only. The plaintiff then demanded a reconveyance and upon refusal of the defendant to make a reconveyance the plaintiff sought compensation for taking the reversionary interest in the land. As in the present case, the demurrer was sustained without leave to amend and on appeal the judgment was affirmed, the reviewing court holding that the defendant was not obligated to maintain passenger service perpetually. In support of its decision the court referred to Texas & Pac. Ry. Co. v. Marshall, supra, and Hasman v. Elk Grove Union High School, supra.

Plaintiffs call attention to the language in the deed in which it is provided that “on each and every day” not less than eighteen local passenger cars should be operated and argue that the definitions of the words “each” and “every,” as found in the dictionary, indicate that defendants are obligated to continue maintaining the passenger service. We find nothing in the language used in the deed to justify this contention. As was held in the Johnson case, where provision was made for the operation of cars at intervals of not greater than one hour of each day, the provision “relates to the frequency of service rather than to its duration.”

The judgment is affirmed.

W. J. WOOD, Justice.

MOORE, P. J., and McCOMB, J., concurred.