MOSS ESTATE CO v. RIESE WILL

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District Court of Appeal, Fourth District, California.

MOSS ESTATE CO. v. ADLER. IN RE: RIESE'S WILL.*

Civ. 4636.

Decided: May 27, 1953

L. W. Wrixon, San Francisco, Joseph J. Yovino-Young, Oakland, And Deadrich, Gill & Bates, Bakersfield, for appellant. West, Vizzard, Howden & Baker, Bakersfield, for respondent.

Plaintiff and respondent, on December 4, 1950, brought this action to quiet title to a water well physically located approximately 50 feet from the common boundary line between the property of plaintiff and defendant and on property owned by plaintiff. The complaint is in the usual form. Defendant's answer, filed February 13, 1951, denies generally the allegations of the complaint and alleges by way of cross-complaint that plaintiff, on January 1st, 1947, leased, for a ten-year period, a portion of its property to Mesa Farms; that the lessee drilled a water well thereon and installed and maintained an extensive irrigation distributing system, not only on plaintiff's property but also on defendant's property, which land the lessee leased from defendant; that defendant therefore not only claimed an interest in the lands, well, and subterranean waters underlying plaintiff's land but sought an order declaring defendant's rights in and to the water taken and to be taken in the future from the well; and sought judgment against plaintiff for the fair value of subterranean waters taken by plaintiff from the lands of defendant since January 1, 1947.

On April 16, 1952, more than one year later, defendant moved for leave to file an amendment to the answer, alleging generally that in 1946, one W. M. Fisher, Secretary of the Moss Estate Co., acted as counsellor and financial advisor for defendant concerning her properties; that defendant reposed confidence in him; that in 1946, relying thereon, Fisher induced defendant to execute the lease of her lands to an unknown lessee but in the name of Fisher, who represented that the well and irrigating system would be drilled upon the common dividing line and for the joint benefit of the adjoining parcels of land owned by plaintiff and defendant, and that the sum of $10,000 should be paid by the lessors to Mesa Farms for such improvements upon termination of the two leases; that these representations were false; and that she did not discover their falsity until March 25, 1950. The claim is for damages for $15,000 for such false representations and by reason of the unjust enrichment of plaintiff due to the fact that the well was drilled 50 feet from the common dividing line and upon plaintiff's property. Defendant seeks an order declaring her rights in and to the water taken and to be taken in the future, for judgment against the plaintiff, and for the fair value of the subterranean waters already taken.

In opposition to the motion, plaintiff's attorney filed an affidavit alleging that defendant unduly delayed any request for permission to file an amended answer; that on March 14, 1951, a request to set the cause for trial was made; that defendant demanded a jury trial on March 28, 1951; that the action was set for trial on April 28, 1952, and notice thereof was given defendant on January 24, 1952; that on February 29, 1952, counsel for defendant wrote counsel for plaintiff confirming an agreement that if defendant desired to amend the answer and cross-complaint such amendment would be forthcoming within sixty days of the date of the letter; that the cause had been at issue for 13 months and on April 16, 1952, defendant, for the first time, raised the issue of fraud in connection with the transaction; and that the filing of the amendment would require additional investigation by plaintiff to disprove the charges. Request for a denial of the motion was made. After a full hearing on April 21, 1952, the request to file the amended answer was denied. The matter came on for trial on April 29, 1952, without a jury. Evidence was taken on behalf of plaintiff. Defendant produced certain evidence, and again requested the court to file the amended answer, which request was denied. Defendant made an offer of proof generally in accordance with the allegations of the proposed amended answer, which offer was rejected. Judgment was entered in favor of plaintiff as prayed.

Two issues are presented on this appeal. (1) Under the state of the pleadings, did the trial court commit error in refusing to admit the evidence of fraud offered by appellant? (2) Did the trial court commit error in refusing to file the amended answer?

Ordinarily, in an action to quiet title brought for the purpose of determining any adverse claim of the defendant the plaintiff is not required to set forth the nature of the defendant's claim. However, under sec. 738, Code Civ.Proc., where a clear record title is in the defendant and plaintiff cannot show title in himself until he has successfully attacked his adversary's title, he must allege and plead the pertinent facts relied upon to show the fraud or other ground upon which he relies. Kroeker v. Hurlbert, 38 Cal.App.2d 261, 267, 101 P.2d 101. Conversely, it has been held in United Land Association v. Pacific Improvement Co., 139 Cal. 370, 378, 69 P. 1064, 72 P. 988, affirmed in United Land Association v. Abrahams, 208 U.S. 614, 28 S.Ct. 569, 52 L.Ed. 645, that in a suit to quiet title the defendant could not be called upon to do any more than negative the plaintiff's cause of action unless he seeks to avail himself of an equitable title against the legal title of the plaintiff, which he must specifically plead.

Certain exceptions to this general rule are indicated. See Banning v. Marleau, 121 Cal. 240, 53 P. 692; 12 Cal.Jur. 1056, sec. 95, and cases cited; and Bird v. Murphy, 72 Cal.App. 39, 236 P. 154, where it is said, quoting from syllabus No. 1:

‘In an action to quiet title to real property, where the complaint contains the simple allegations of a suit to quiet title but is silent as to the source of plaintiff's title, a general denial of plaintiff's allegations as to the ownership and possession of the property in question is sufficient to raise the issue of a fraudulent transfer to plaintiff, even though the allegations of defendant's cross-complaint are insufficient for that purpose, particularly where the sufficiency of such answer and cross-complaint are not attacked, by demurrer or otherwise.’

In the instant case plaintiff's complaint was factually the same as there involved. Defendant's answer is a general denial of plaintiff's allegation of ownership of the well. The cross-complaint alleged certain facts pertaining to the two written leases involved. It alleged that the lessee drilled a well 50 feet from the common boundary line; that under the terms of plaintiff's lease the lessee was obligated to drill the well and install an extensive irrigating system on defendant's adjoining land; that water was pumped from said well and in so doing subterranean waters were taken from defendant's land by plaintiff without the consent of defendant; that defendant claims a right and interest in the land, wells and subterranean waters underlying the lands of plaintiff so long as said well remains in use. Then follows a prayer for an order of the court declaring defendant's rights therein, for judgment for the fair value of the subterranean waters taken by plaintiff from defendant's lands since January 1, 1947, and for general relied. (At the trial, request for money damages was waived by counsel for defendant.) No demurrer was interposed to this cross-complaint. Plaintiff answered and denied generally these allegations and alleged that whatever water was taken from said well was withdrawn with the knowledge and consent of cross-complainant.

It does appear that the pleadings in the instant case come well within the facts recited in the Bird case. See, also, Howe v. Brock, 86 Cal.App.2d 271, 272, 194 P.2d 762; Woodcock v. Petrol Corporation, 48 Cal.App.2d 652, 656, 120 P.2d 889; and District Bond Company v. Pollack, 19 Cal.2d 304, 307, 121 P.2d 7, 9, where it is said: ‘A party who requests equitable relief must satisfy the equitable claims interposed by the opposing party. * * * The trial court could not quiet appellant's title to the property without protecting the interests of respondent therein.’ (Citing cases.) To the same effect are Richman v. Bank of Perris, 102 Cal.App. 71, 83, 282 P. 801; and Peterson v. Gibbs, 147 Cal. 1, 5, 81 P. 121.

Here, as in the Bird case, it may be questioned whether the cross-complaint, as such, would be sufficient to constitute a pleading alleging fraud on the part of plaintiff, but plaintiff was there informed as to the nature of defendant's claim to a right in and to the well, and to defendant's claimed proportionate share in the production of water therefrom by reason of some alleged leasehold agreement. Many of the facts submitted in the offer of proof, which would have been admissible and material under the pleadings, were stipulated to by the parties, but the evidence which might have afforded defendant any equitable relief, as suggested in the amended answer, was refused.

Having in mind the allegations of the proposed amended answer, we shall determine whether it was an abuse of discretion to deny defendant's motion under the circumstances related. It does appear that there was considerable delay on the part of defendant in making the motion and that counsel for defendant may, or should have had knowledge of the alleged facts at the time he filed the original answer. However, these facts are not conclusive.

In 21 Cal.Jur. p. 204, sec. 140, it is said:

‘A court is rarely justified in denying leave to amend so as to obviate an objection that the facts constituting a defense are not embraced within the issues or properly pleaded. A motion to amend may not be denied merely upon the ground that the amendment, if allowed, might defeat a recovery by plaintiff, or that the subject matter thereof was known to defendant at the time he filed his original answer.’ See, also, Woodcock v. Petrol Corporation, supra; and Tolbard v. Cline, 180 Cal. 240, 245, 180 P. 610.

In the instant case, by the answer and cross-complaint, it was clearly shown that defendant claimed some interest in the well by reason of the execution of the joint leases. Plaintiff apparently knew of these facts since plaintiff's complaint was verified by its secretary, Mr. Fisher, who defendant claims misrepresented the facts while acting as defendant's confidential advisor in the matter of the execution of the lease, and who was present in court at the trial. It would appear to us that plaintiff would suffer no great inconvenience or prejudice by the filing of the amended answer.

Since the real gist of plaintiff's action is to deny to defendant any right or interest in or to the well it does seem just that if defendant can establish some right under the amended answer by virtue of some fraud or misrepresentation of plaintiff's agent who, it is claimed, occupied a fiduciary relationship with defendant in making the representation, this alleged claim should be fairly determined by the trial court before granting to plaintiff, in this equitable action, the relief prayed for by it.

On the motion for permission to amend the answer the proffered evidence of defendant was set forth in detail and, if true, it might call for a full consideration of defendant's claim as against plaintiff's claim before it would be entitled to have all of defendant's rights and interests in the well unconditionally and forever foreclosed.

Copies of letters between Fisher and defendant are attached as exhibits. They indicate that Fisher had, for many years, transacted for defendant practically all of the business affairs of the Riese estate in connection with the lease and property here involved; that he was at the same time secretary for plaintiff corporation. Witnesses stated that Fisher falsely represented to defendant that the well must be drilled upon plaintiff's property becaue of the elevation of the land; that Fisher demanded from defendant five to ten per cent commission for his services in negotiating the lease because defendant stood to make approximately $8,000 and receive other reversionary benefits from the lease; that defendant refused to pay a commission because Fisher was not a licensed real estate broker; that Fisher refused to divulge the name of the lessee and told defendant he would take the lease in his own name and would sublease it because that was the only way he could obtain his commission in the transaction; that in 1950 she learned from the lessee that it would have preferred drilling the well on defendant's land because it would have been more feasible; that she then accused Fisher of misrepresenting the facts and that in May, 1950, he endeavored to have defendant sign an agreement quitclaiming any interest which the estate might have in the well located on plaintiff's property, but that defendant refused to do so and that this action followed.

Under the circumstances related, it appears to us that the trial court abused its discretion in refusing the motion to file the amended answer. The ends of justice would have been better met by allowing the amendment and considering defendant's evidence in connection with plaintiff's claim to the uninterrupted use of the well. It does not appear that any unreasonable delay or inconvenience would have been occasioned by so doing. The motion for new trial should have been granted.

Judgment reversed.

GRIFFIN, Justice.

BARNARD, P. J., and MUSSELL, J., concur.