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

GLATTS et al. v. HENSON et al.

Civ. 15652.

Decided: June 06, 1947

Roland Maxwell and Paul H. Marston, both of Pasadena, for appellants. Vernon M. Brydolf, of Pasadena, for respondents Hal T. and Helen G. Simpson. Alfred S. Chapman, of Los Angeles, for A. B. Chapman Estate and Alfred S. Chapman, trustee. Bissell & Atwill and John R. Atwill, Jr., all of Pasadena, for respondents Fred C. and Alice Henson.

Prior to November, 1926, the A. B. Chapman Estate, a corporation, was owner of lot 14 of tract 901, Los Angeles county, as shown by a recorded ‘Licensed Surveyor Map.’ There were 26 numbered lots in the subdivision which lies north of and adjacent to Colorado street and near its intersection with Madre street in Pasadena. None of the 26 lots was ever sold by number but the tract was subsequently sold in parcels described by metes and bounds by the Chapman estate and William Chapman, a testamentary trustee. The estate and the trustee are hereinafter referred to jointly as the Chapmans. The area involved herein consists of five of such parcels in the southeast corner of lot 14, as indicated by the map below. This action was brought to quiet plaintiff's title to the easterly 30 feet of parcel 4.

By deed of the Chapmans to Glatts of February 18, 1938, conveying parcel 4 it was provided as follows: ‘Reserving unto the grantor, its successors or assigns, as easement for road purposes, together with the right to dedicate the same to the public use over the easterly 30 feet of the herein described parcel of land.’ Evidently resolved to gain and hold the strip which their grantors had reserved, plaintiffs entered upon and occupied it, and in 1938 constructed an office, a warehouse and a garage on the westerly 17 1/212 feet thereof. Further to fortify their claim of title, on September 25, 1945, they caused the city of Pasadena to quitclaim its interest in and title to the easement over the 30-foot strip to plaintiffs. By virtue of such quitclaim deed and of their alleged adverse possession for a period of more than five years prior to the commencement of this action plaintiffs maintain that they now hold a permanent fee-simple title to the 30-foot strip against the world.

The court below rejected plaintiffs' demand but quieted their title to parcel 4 subject to easements for road purposes in favor of defendants as follows:

(a) An easement in favor of the Chapmans over the entire 30 feet for road purposes, together with the right to dedicate the same to the public use, which right was reserved by the Chapman deed of June, 1932, to Braley and February 18, 1938, to Glatts;

(b) an easement for free and unhindered road purposes over the easterly 12.50 feet as granted by Chapman to defendants Henson July 20, 1937;

(c) an easement for road purposes over the entire 30 feet as granted to defendant Braley by deed June 3, 1932, which same easement was thereafter conveyed along with parcel 5 to the Simpsons.

The court found (1) that the easement granted to Pasadena by the Chapman deed of June 30, 1931, was not exclusive either by the express terms of the grant, by the nature of the easement or by virtue of the purpose for which it was granted; (2) that only the naked legal title to the 30-foot strip passed to plaintiffs by the city's deed of September 25, 1945; (3) that plaintiffs have interfered with the free use by defendants Henson of the easterly 12.50 feet of parcel 4 and have denied them the free use thereof for ingress and egress to and from parcels 1 and 3.

Pursuant to such findings the court adjudged that the Hensons own an easement for road purposes over the easterly 12.50 feet of parcel 4; that Simpsons own an easement for road purposes over the entire 30-foot strip; that the Chapmans are the owners of an easement for road purposes and of the right to dedicate such easement to the public use over the entire 30-foot strip. The title of each of the defendants was quieted as to his easement and plaintiffs were enjoined from interfering with their rights of ingress to or egress from their respective parcels and were ordered to remove all obstructions on the 30-foot strip.

The findings are supported by the Chapman deed of June 30, 1931, whereby Pasadena was vested with title to parcel 1 and ‘an casement for road and pipe line purposes over a strip of land 25 feet wide’ along the easterly side of parcel 4, 12.5 feet of which lies along the westerly side of parcel 5. Such easement was not exclusive to the city. No conveyance of the 30-foot strip was ever executed to the city. Consequently all that was ever conveyed by Pasadena to plaintiffs was such interest as it had acquired, which was a nonexclusive right to make a road upon and to lay pipes under the easterly 12 1/212 feet of parcel 4, unless it had acquired an easement by user over the entire 30 feet.

An intention to convey an exclusive interest in a strip of land over which an easement is granted cannot be imputed to the owner of the servient tenement in the absence of a clear indication of such intention. The extent of a servitude is determined by the terms of the grant. Civil Code, sec. 806. What the grantor of the servient tenement does not expressly convey in granting an easement he may use so long as he does not unreasonably interfere with the grantee's use of the easement. City of Pasedena v. California-Michigan Land and Water Company, 17 Cal.2d 576, 579, 110 P.2d 983, 133 A.L.R. 1186. The identical deed involved herein (Chapman to Pasadena) was under consideration in the cited case, wherein it was also held that since the grantor retained the right to use the land reasonably he reserved also the power to transfer such privilege to third persons.

That Chapman had no intention of granting an exclusive easement either to the city or to Braley is reasonably inferred from the circumstances. They owned other land adjacent to or served by the easement road. Also, at the time of their conveyance of parcel 5 to Braley on June 3, 1932, they declared in the deed their ownership of ‘a strip of land 60 feet wide,’ agreed to dedicate without expense to Braley the strip to the public for street purposes, and granted an easement to him over the strip until such time as it should be dedicated. By the Chapman deed of June 30, 1931, the city agreed to release the easement along the east line of parcel 4 whenever the extension of Madre street 267 feet north of Colorado street should be completed. From the language of the deed, the situation of the parties, and the nature of the easement, affecting three separate parcels, it is evident that no exclusive easement to Pasadena was intended. Civil Code, sec. 806. Ballard v. Titus, 157 Cal. 673, 110 P. 118, cited by appellant is not applicable to the issue of the exclusiveness of the easement. The question there involved was whether the dominant owner had the right to use the entire width of his easement. The court did not even consider whether the servient owner or his grantee might concurrently use the easement. Nothing passes by grant of an easement but what is reasonably necessary to its proper enjoyment. Parks v. Gates, 186 Cal. 151, 154, 199 P. 40.

It follows that since the easement of the city was not exclusive, the identical easement could be granted concurrently to others over the same area. Even though an owner grant an easement over land which is adjacent to that conveyed to his grantee, he retains dominion over his own land and a subsequent grantee thereof becomes possessed of all the rights that were reserved by the deed which first conveyed the easement. Brookshire Oil Company v. Casmalia Ranch Oil & Development Company, 156 Cal. 211, 217, 103 P. 927; City of Pasadena v. California—Michigan Land and Water Company, supra, 17 Cal.2d at page 579, 110 P.2d 983, 133 A.L.R. 1186.

It is not clear that at the time of its quitclaim to plaintiffs in 1945 Pasadena had any moral right to convey the 30-foot strip. It owned no lands to be served by the easement, and never used it after the sale of parcels 1 and 2 to Henson, July 27, 1937. Since it had no need for the easement and did not use it for over eight years prior to its quitclaim to plaintiffs, the concurrent easements theretofore conveyed by Chapman to the Hensons, grantees of parcel 2, to Riek and Knapp, grantees of parcel 3, and to Braley, grantee of parcel 5, could not have interfered with the city's enjoyment of its easement conveyed to it by Chapman as an appurtenance to parcel 1. Inasmuch as the several grantees of Chapman could concurrently enjoy the easement over parcel 4, it cannot in reason be said that the easement granted to any of them excluded the others from a full enjoyment thereof, and each was a continuing easement. Moreover, the Chapman deed to the city by unmistakable language reserved not only the 12.5-foot easement over parcel 4 but also ‘the right to dedicate the same to the public use.’ Such language in a conveyance in the public records was itself a notice to plaintiffs not only that the Chapmans had specifically reserved such interest in the land but also that they intended to dedicate the strip to public uses. Having knowledge of such reservation and intention and of the easements granted by the deeds of the other parcels, plaintiffs cannot be convicted of good faith in their attempt to acquire title to the strip by occupying it and by obtaining the quitclaim of Pasadena on the theory that the 30-foot easement had been granted to the city contemporaneously with the grant of parcel 5.

Plaintiffs contend that the city's quitclaim of the 30-foot strip to them resulted in a merger. This cannot be so for three reasons: (1) Pasadena was at no time grantee of a 30-foot easement. It was granted an easement over 12.5 feet along the east line of parcel 4. The only easement conveyed by Chapman over the 30-foot strip was granted to Braley June 3, 1932, in the deed of parcel 5 which Braley subsequently conveyed with the 30-foot easement to Simpson. Whatever interest the city had in the westerly 17 1/212 feet of the 30-foot strip was contained in the reservation by Chapman in the deed to Braley which was for the immediate use of the several owners of the five parcels and for the perpetual use of the public, to be dedicated at a future time. (2) But even though Pasadena had been the grantee of the entire 30-foot easement, it could not by quitclaim deed terminate the easement which had been specifically granted to the owner of parcel 5 to which it became appurtenant. Elliott v. McCombs, 17 Cal.2d 23, 31, 109 P.2d 329. By its quitclaim deed to plaintiffs the city merely conveyed its legal interest in the strip. Such a conveyance could not affect the easements of any of the defendants or the rights of the Chapmans which they had reserved for the benefit of the public. Smith v. Smith, 21 Cal.App. 378, 380, 131 P. 890, 891. In the Smith case the subdivider had exhibited to his purchasers a map showing an alley to be used by his purchasers for ingress to and egress from the properties acquired from him. His representations and their reliance upon them ‘were sufficient as to such parties to establish said strip as an alleyway.’ His subsequent attempt to convey the fee title of the alley to a stranger was abortive. All that he conveyed ‘was the naked legal title, subject to the easement.’ (3) Moreover, not only from the deed records did plaintiffs have notice that Pasadena had never been granted an easement over the 30-foot strip but also that it had been specifically transferred by mesne conveyance to Simpson and had been reserved for the public use in the very deed to plaintiffs. In other words, the easement over the entire 30 feet became an appurtenance of parcels 1, 2, 3 and 5 and not a personal right of the owner of any of them. An intended easement is never construed as personal if it may fairly be construed as appurtenant to the dominant estate. Civil Code, Sec. 662; Wright v. Best, 19 Cal.2d 368, 383, 121 P.2d 702. It is appurtenant despite the absence of an express declaration in the conveyances of the other parcels. Elliot v. McCombs, supra. The original deed to the city suggests no inference other than that the easement over the 25 feet thereby conveyed was intended to be an appurtenance of parcel 1, as does likewise the deed to Braley imply that an easement over the 30-foot strip became appurtenant to parcel 5 by virtue of the Braley deed as well as by deed to plaintiffs ‘reserving unto the grantor, its successors or assigns' an easement over the 30-foot strip for road purposes. Inasmuch as the easement over the 30-foot strip of parcel 4 is an appurtenance of each of the properties served by the easement the deeds transferring them conveyed the easements which had become attached to each parcel as an appurtenance. Civil Code, secs. 1084, 1085, 1104.

An appurtenant easement as a right of way cannot by the owner of the dominant estate be converted into an easement in gross, nor be separated from the dominant estate, nor be transferred by deed as a separate entity apart from the land to which it is attached, but may be transferred only by a conveyance of the servient estate unless the grant of its creation has expressly excepted it from the terms of the deed. Shonafelt v. Busath, 66 Cal.App.2d 5, 14, 151 P.2d 873; Conaway v. Toogood, 172 Cal. 706, 712, 158 P. 200; 17 Am.Jur. p. 1013, sec. 125, p. 1015, sec. 127. To honor the quitclaim deed of the 30-foot strip by the city herein would be tantamount to a declaration that the owner of a dominant estate may create an easement in gross out of an appurtenant right, in violation of a cardinal principle of the law of real property. Since the city owned nothing when it executed the quitclaim deed of the 30-foot strip, that instrument transferred exactly nothing.

Plaintiffs assert title to the 30-foot strip by adverse possession. Such a claim has no equitable basis. The deed of June 3, 1932, to Braley having explicitly reserved an easement over the 30-foot strip ‘for road purposes' plaintiffs thereby knew that they could not have acquired a greater interest in that strip than Braley had obtained. Also, they knew that the deed from Braley to Simpson had been delivered one year, seven months and 21 days before the quitclaim to them by the city. With the knowledge that others had in good faith acquired easements over the 30-foot strip six years before they had purchased parcel 4, more than six years prior to their erecting the structure on the westerly 17 1/212-foot portion of the 30-foot strip and over 13 years prior to the city's quitclaim, how could they in good conscience have occupied it and have asserted ownership of it in a court of equity? Their rights perished at the moment of conception. In equity no claim to property may be successfully asserted which has as its foundation a scheme or plan whereby an innocent possessor who has purchased it and given notice of his ownership may be deprived of his rights.

City and County of San Francisco v. Main, 23 Cal.App. 86, 137 P. 281, does not support plaintiffs' contention. There the property occupied adversely was effectively closed for a period of ten years against all uses by every person who had any titular interest in an easement over the land. In the instant action neither the Chapmans nor any of their grantees were denied use of the strip for road purposes by the structure of plaintiffs. Until such denial the statutory period could not begin to run. Title to the land having been reserved by the Chapmans for the purpose of dedicating it to the public use, such right could not have been violated by the structure until after an actual dedication. Nor were the rights of the Braleys or of the Simpsons to use the strip for road purposes ever denied them by the presence of the structure. Therefore their future rights thereto cannot be thwarted until after an actual dedication. It is a rule widely recognized that an adverse claim cannot be successfully asserted as to land reserved to the grantor in the very instrument which is the basis of an adverse claimant's alleged right. 1 Cal.Jur., p. 495, sec. 5. Having gained title to his land by the deed which reserved to the grantor the right to dedicate a portion of the area conveyed to the public, the grantee thereby acknowledges the superior claim of the grantor to such portion.

To gain title by adverse possession the occupancy of the possessor must be exclusive. The hostile character of such possession is the very essence of a prescriptive title. Not only must the occupant hold a hostile intent against the world but the owner must have knowledge of such hostility. Pacific Gas & Electric Company v. Crockett Land & Cattle Company, 70 Cal.App. 283, 289, 233 P. 370; 1 Cal.Jur., p. 535. As to plaintiffs' claim of title by adverse possession the evidence is substantially recited above. While Mr. Glatts gave testimony to the effect that he had effectively closed the roadway over the easement at all times subsequent to his acquisition of parcel 4, Mr. Henson's testimony which was adopted by the court was that at the time of his purchase of parcels 1 and 2 in 1937 he found access thereto from Colorado street over a dirt road which passed over the easement on the east side of parcel 4; that he constructed a building on his property in 1937 which he used for storage and a carpenter shop; that he and his employees rode in and out over the easement; that in 1939 he built a factory on parcel 2 for the manufacture of scientific instruments and hired 28 employees who traveled ‘in and out over this roadway’; that the materials used in his factory were brought in only over the same roadway, and that he has continuously used the easement to the time of trial. He never found it closed except on three or four occasions ‘when Mr. Glatts parked his truck crosswise,’ and on New Year's day when he had a grandstand and the policeman ‘would not let us go through.’ At one time on request he consented that Mr. Glatts might stack lumber on the easterly 12.5 feet of parcel 4. There is no evidence that during the seven years of their possession of the 17 1/212 feet prior to filing this action the Chapmans had knowledge of plaintiffs' intention to deny to any one the right to use the roadway or that they intended to resist use of the entire 30 feet after its dedication by the Chapmans. The presence of the structure upon the strip might reasonably have been compatible with plaintiffs' recognition of Chapmans' reservations in their deeds to plaintiffs and to the Braleys.

Plaintiffs contend that it was not necessary for them to prove payment of taxes on the 30-foot strip or that no taxes were assessed. Such contention is contrary to the statute defining the mode of gaining title by adverse possession. Code Civil Proc. § 325. It was indispensable to the proof of their case that such evidence be adduced. The decisions cited by plaintiffs (Biggs Ditch Company v. Jongste, 24 Cal.2d 298, 303, 149 P.2d 1; McMorris v. Pagano, 63 Cal.App.2d 446, 146 P.2d 944) involve attempts to establish easements by user over the lands of others. Of course the plaintiff in such an action is not required to prove that he has paid taxes on an easement which is nonassessable, as held by both of the cited decisions. But plaintiffs' failure herein to prove their payment of taxes on the 30-foot strip leaves their proof incomplete for the establishment of a prescriptive title.

The judgment is affirmed.

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.