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

OWSLEY et ux. v. HAMNER et al.*

Civ. 17525.

Decided: June 27, 1950

George R. Maury and S. L. Kurland, Los Angeles, for appellants, and also Alden F. Houck, Los Angeles. Murchison & Myers, Los Angeles, for respondents.

Appellants sued for a judicial declaration of their rights under a written lease executed to respondent in 1929 by their predecessor in interest, Harrison-Cordingly, Incorporated. The corporation was owner of a parcel of land at the intersection of Kinross and Broxton Avenues in University Village in Los Angeles County. The general area is the site of the University of California at Los Angeles and has developed into a wealthy and populous community. When the lease was executed, the building was in the course of construction. The portion selected by respondent was clearly defined upon the plans in use by the builder and it was described in the lease as follows: ‘That certain store space on the first floor of the University Professional Building, situated on the Northwest corner of the intersection of Broxton Ave. and Kinross Ave. in University Village, Westwood Hills, County of Los Angeles, State of California, said store premises hereby leased having a total square footage of approximately 3,000 sq. feet and a frontage of approximately thirty (30) feet on Broxton Ave. just North of the entrance to Building, store including mezzanine and basement and running through to the alley. Also room 17 x 18 to be used as shoe store. Also approximately 440 sq. feet on second floor to be used as tailoring shop or executive offices as long as the business shall warrant same in the judgment of lessee * * *.’ The rental was based on a percentage of sales and provided for quiet enjoyment, but is silent with respect to appurtenances, easements or incidents of the demised area.

The street floor of the building is divided into four stores. Store No. 1 occupies the southeast corner of the building. Store No. 2 is the area leased to respondent described in the above quoted lease and occupies the north side of the building. Between stores 1 and 2 lies a passageway from Broxton Avenue to the center of the building where it is enlarged into a patio open through the second floor to the top of the building. Store No. 3 opens on Kinross Avenue. A passageway from Kinross to the patio separates stores 1 and 3 giving a continuous passageway through to Broxton Avenue with the patio at the elbow. Store No. 4 is just west of store No. 3. Except for the center open area these passageways are arched over and the second floor is solid above them.

The title of the property passed to appellants in 1945. Their desire to improve and alter the unleased, open areas of patio and passageways being opposed by respondent, this action was instituted in May, 1946. After a trial, judgment was awarded plaintiffs but on appeal this court (Division I) reversed the judgment on the grounds that (1) in view of the absence from the lease of any mention of appurtenances, the lease passed as an incident ‘everything necessarily used with it or reasonably necessary to the enjoyment of the part demised’; (2) for the proper construction of an instrument, the circumstances under which it was made may also be shown so that the judge can be placed in the position of the authors of the writing, citing Code Civil Procedure, section 1860. Owsley v. Whelan Drug Co., 83 Cal.App.2d 454, 189 P.2d 50. Such holding are the law of the case.

The Patio Was Not Leased.

This court is now to determine whether under the lease aided by the testimony of witnesses at the second trial respondent has an casement on the open area between stores 1 and 2, the patio and the passageway to Kinross Avenue.

Appellants allege that the patio is unimproved and that they intend immediately to permit the lessee of store No. 1 to make alterations and additions by extending its walls north and west to enclose the open spaces on the first floor. Respondent's answer and his present contentions are that he had a right to keep the patio open and to require the passageway from Broxton to Kinross to remain open and in the same condition as at the time of the completion of the building in 1929 and until the expiration of the lease. In other words, respondent claims an easement upon the passages and patio by virtue of his lease and of what the lessor told him at the time of its execution.

The futility of respondent's contention is readily disclosed by the statutory law. A tenant for years has no rights to the leasehold other than ‘such as are given to him by the * * * instrument by which his tenancy is acquired, or by the last1 section.’ Civ.Code, sec. 820; Code Civ.Proc., sec. 1971. A leasehold on realty for a term exceeding a year ‘can be transferred only by operation of law, or by an instrument’ subscribed by the transferor or his authorized agent. Civ.Code, sec. 1091. Such an instrument is necessary to the validity of a transfer. Code Civ.Proc., sec. 1967. A lease of real property or of an interest therein for longer than one year is invalid unless it is in writing signed by the lessor. Civ.Code, sec. 1624, subd. 4. The scope of the rights embraced within a servitude and the term of its duration are determined by the terms of the grant. Civ.Code, sec. 806.

Such statutes have been uniformly followed in determining the extent of any servitudes included within a lease. In Wright v. Best, 19 Cal.2d 368, 121 P.2d 702, it was held that the lessee of a mining claim had no benefits other than those strictly defined by the lease and that to allow him to pollute the stream from mines operated by him would permit the burden of an easement to be increased beyond the scope of the grant contrary to established principles. In Owsley v. Whelan, supra, 83 Cal.App.2d, at page 457, 189 P.2d at page 52, Justice Doran declared the general rule to be that ‘everything which belongs to the demised premises or is used with, and appurtenant to, them and which is reasonably essential to their enjoyment passes as an incident to them, unless specially reserved. * * * ‘A thing is appurtenant to something else when it stands in the relation of an incident to and is necessarily connected with the use and enjoyment of the principal * * * and agreeing in its nature and quality with the thing to which it is appendant or appurtenant.’' Because of the holding of Mayer v. Hazzard, 10 Cal.App.2d 1, 3, 51 P.2d 189, 190, that ‘rights of ingress and egress by the usual way pass to the tenant, although not specifically mentioned in the lease,’ respondent conceives that his claim of right to an easement on the patio is established. But ways of ingress and egress into and from a building do not contemplate spacious, decorated halls extending through the structure. In Zurich General Accident & Liability Assurance Co. Ltd. v. Industrial Accident-Commission, 132 Cal.App. 101, 22 P.2d 572, 573, it was held that the ‘mutual assent of the parties, essential to the formation of a contract, must be gathered from the language employed by them, and the law imputes to a person an intention corresponding to the reasonable meaning of his words and acts.’ By the modern law of contract the mere state of mind of the parties, with reference to the meeting of the minds, is not the essential object of the inquiry, the terms of the promised act being determinable by an external and not by an internal standard, that is to say, by an objective rather than the subjective test. The court is not at liberty to revise an agreement while professing to construe it nor does it have the right to make a contract for the parties different from that actually made by them. 17 C.J.S., Contracts, § 328, pp. 778–781.

The writing of the parties contains no covenant to maintain the patio as an open space or as an unimproved area. There is not the vaguest reference in the lease to the passageway between stores No. 1 and No. 2. No claim is made by respondent that he was deceived by any word or act into signing the lease. No effort was ever made to reform the writing and no basis for its revision is suggested. In such state of the record, the rights of appellants should be protected by the statutes above cited and especially by section 820, Civil Code. However, by respondent's claim of an easement he insists not only upon the right to have the show windows abutting upon the patio kept open, but he demands also that the passageway leading from the patio to the Kinross entrance be retained and that such entrance remain open. There is no agreedent in the lease upon which such claim could possibly be made except that clause which provides that in the installation of the wiring and in the arrangement of the entrances, stairs, ventilators, plumbing and electrical fixtures the lessor's architect will cooperate with the architect of the lessee ‘so as to conform to the lessee's plan for the placing of store fixtures. Also to install oak plank flooring, window-backs, windows and lighting fixtures as per sketches to be supplied by lessee.’ Nothing in such clause can reasonably be construed into an enlargement of respondent's rights as lessee. It was a mere provision to make installations in lessee's incompleted store as he desired them.

But pursuant to the ruling made by the court on the former appeal, respondent attempted to enlarge his leasehold interest by parol proof. He produced a number of witnesses to testify concerning the value to his lease of an easement on the passageways and patio, but not one of them said that such space is essential to render the demised premises tenantable. As to the proof by which he aimed to place the judge in the ‘situation of the contracting parties' he had no evidence save his own testimony by which he undertook to prove a contemporaneous understanding with the lessor that the patio was to remain open during the term of the lease. But he himself testified that at no time during his negotiations with Mr. Cordingly, president of Harrison-Cordingly, Inc., was anything said by the latter respecting the closing of the patio; that when the lease was drawn it was submitted to respondent who in turn passed it on to his attorney who read it.

Mr. Cordingly contradicted every statement of respondent's testimony with respect to what the latter had said during the negotiations for the lease. He testified that nothing was said in reference to the construction of bay windows, such as were actually installed, or to their use for display purposes. In no conversation was a corner location or a secondary corner mentioned, or that the patio could or could not be closed, or whether the public would be able to view the windows in the patio. While several conversations were had concerning the rental, nothing was said about structures. Whether the Kinross archway entrance would remain open during the entire term of the lease and its extensions, nothing was said by either party. Hamner never said that he considered either the Kinross or the Broxton archway included within the leased area, or that he would receive light and air through the mezzanine windows during the term of the lease, nor did the witness tell Hamner that the Kinross passageway would be kept open always. The possibility of closing the entire open space was never discussed before the lease was signed. Mr. Hamner never said that he rented the premises because of the assistance of numerous display windows on the patio. Neither did the witness tell Hamner the building would never be remodeled or that it would remain in exactly the same condition during the lease term, or even think of any changes in the structure. Now, if the writing executed did not contain all that was intended, how can it be expanded to include rights to an additional 2000 square feet if the lessor never said a word to indicate that such area should be included? Can lessee's rights be enlarged merely because 17 years after the lease was executed he conceived that much of his conversation had been omitted from the written memorial of their agreement?

In support of his contention respondent cites two New York decisions: Doyle v. Lord, 64 N.Y. 432, 21 Am.Rep. 629, and Hamilton v. Grayhill, 19 Misc. 521, 43 N.Y.S. 1079. In each of them the space which the landlord would have closed was held to be an appurtenance of the demised premises because they were not tenantable without such space. Also, there is no value in Commonwealth v. Richardson, 312 Mass. 632, 48 N.E.2d 678, 146 A.L.R. 648. After the tenant-plaintiff had occupied his apartment on the second floor, the landlord constructed a building on the area 14 feet wide between the apartment and the sidewalk. The lease implied a promise that the tenant would not thus be ‘fenced in’ and the character and value of the apartment so impaired.

In the instant case it cannot be said that the use of the patio is necessary to the tenancy of store No. 2 or that conversations contemporaneous with the execution of the lease can be received to modify the written words. To very the terms of a lease by parol is violative of the statute of frauds. Civ.Code, sec. 1624, subd. 4. A written agreement is considered as containing all the terms agreed upon except where a mistake or imperfection of the writing is put in issue. Code Civ.Proc., sec. 1856.

No Easement Gained By License.

In view of the utter absence from the lease of any agreement to grant respondent a tenant's rights to the use of the patio and passageways and in view of the fact that the only man with whom respondent negotiated for the lease never by any utterance of his own promised respondent the right to use the patio throughout the term of his lease, he must establish his asserted easement on the patio and passage either by a license or by a favorable interpretation of the lease with the aid of parol proof. It is true that although respondent was not granted exclusive possession of the patio against all the world, he has to the present time enjoyed the use of it as a licensee. Kaiser Co. v. Reid, 30 Cal.2d 610, 619, 184 P.2d 879. But merely because of such enjoyment by virtue of an implied license he has gained no permanent right as lessee of the open space. He has used it merely because the lessor in the early years of the village saw no use for it, because such use did not harm the owners and because the latter made no objection, but not because respondent had a ‘right’ thereto. Kennedy v. Burnap, 120 Cal. 488, 493, 52 P. 843, 40 L.R.A. 476. Upon neither a permissive use nor an oral contract alone can a 30-year lease or an easement be acquired. Stoner v. Zucker, 148 Cal. 516, 83 P. 808, 113 Am.St.Rep. 301, 7 Ann.Cas. 704. It is the general rule that one who rests his claim to an easement upon conversation contemporaneous with a written lease, has no rights thereto which are enforceable unless perhaps where the licensee has made investments upon the faith of his license and with knowledge of the owner. No such investment is shown here.

The Law Of Servitude Excludes The Easement.

If respondent has no easement on the patio solely by virtue of the written terms or with the aid of parol evidence, whither shall he turn? The law of servitudes does not supply the deficiency. Not only must any provision of a written instrument which is claimed to create such a servitude be strictly construed, but any doubt must be resolved against the easement. The instrument which created the relationship of landlord and tenant is the final and exclusive memorial of their mutual intent. Any understanding not incorporated in it is immaterial in the absence of a reformation of the writing. Werner v. Graham, 181 Cal. 174, 180, 183 P. 945. This rule is supported by every consideration of sound public policy. Any other would make questions of titles to real property largely dependent upon the uncertain recollection or testimony of interested witnesses. McBride v. Freeman, 191 Cal. 152, 155, 215 P. 678. In the instant controversy the lease and all inferences favorable to respondent aided by all the testimony presented in proof of an agreement for an easement and ‘anything whatever which can be seized upon and given construction as an expression of such intent’ fail to establish his claim. [181 Cal. 174, 183 P. 948] The Supreme Court refused to enforce a covenant which rested in parol with the announcement that equity would certainly withhold its hand if such a restriction ‘is not imposed by grant, but is sought to be created by parol.’ Long v. Cramer Meat & Packing Co., 155 Cal. 402, 101 P. 297, 298. In Berryman v. Hotel Savoy Co., 160 Cal. 559, 117 P. 677, 679, 37 L.R.A.N.S., 5, the court declared ‘the intention of the parties should be ‘determined by a fair interpretation of the grant or reserve creating the easement’ * * * in all these cases it is better to get at the intention of the grantor from the language of the deed, interpreted in the light of the attending circumstances.' Therefore, it was not intended by the court in Owsley v. Whelan Drug Co. that the trial court should make a new lease or create new covenants for the old. Its duty under that decision was to determine ‘everything necessarily used with [it] or reasonably necessary to the enjoyment of the part demised.’ [83 Cal.App.2d 454, 189 P.2d 52.] That the patio is not necessary to the enjoyment of the lease is demonstrated by the subsequent discussion.

The Lease Authorizes Alterations.

Not only is there no covenant against the lessors' making reasonable repairs and alterations, but the lease specifically authorizes alterations to be made. The clauses of the lease prescribing the rights of the respective parties are in no sense abridged. Therefore, the clause which permits the lessors to make alterations and additions is unaffected by Owsley v. Whelan Drug Co. It reads as follows: ‘The lessor shall have the right to [sic] all reasonable times to enter into and upon the premises hereby leased for the purpose of inspecting the same and for the purpose of maintaining the building and making repairs, alterations or additions thereto without any rebate of rent to the lessee for any loss of occupancy or a quiet enjoyment of the premises thereby occasioned.’ In commenting upon the foregoing clause the opinion in Owsley v. Whelan Drug Co., while agreeing that the lessor has a duty as well as a right to enter the premises for the purpose of repairing dilapidations, implies that a reentry cannot be made for the purpose of making extensive alterations. But the purpose of that appeal was to establish the right of the defendant to introduce parol proof of the circumstances attending the execution of the lease. Now, since the evidence does not satisfactorily establish that respondent was granted an easement on the patio, and since appellants are authorized by the lease to make alterations upon the unleased portion of the building, there is neither reason nor authority for denying them the right to do so. In Spring Street Realty Co. v. Trask, 126 Cal.App. 765, 15 P.2d 195, the lease provided that the lessee had the right to make any alterations and improvements, provided it did not alter the general character of the building and it appeared from the lease that both parties contemplated such alterations and that lessee might sublet space in the building. It was held that the lessee was entitled to findings in the language of the lease and to a decree entitling it to make such alterations as provided by the lease and that the combining of such building with lessee's own, adjacent structure by cutting through the wall of the leased premises was not violative of any covenant. If it was right under that lease to award lessee the right to make alterations why should not the appellants in the instant action be allowed to make ‘alterations or additions' to their building as provided by the lease in effect when they acquired it, especially since the alterations contemplated are to be made upon a portion of the building not under lease to anyone? If they may not do so, of what value is a written reservation in a lease for the owner to enter, repair and alter his building? If they may not, of what virtue is the final, written, exclusive memorial of the agreement whereby respondent was enabled to house and maintain his business? Certainly by awarding such right to appellants there would be no invasion of the estate conveyed to respondent by the lease which is the sole means for measuring his rights. Civil Code, sec. 820.

The Patio Is Not Essential To Respondent's Enjoyment Of His Lease.

Respondent has sublet the greater portion of the floor space of store No. 2 to Ames and Walker who conduct therein a clothing store, respondent having reserved for his own tailoring shop an oblong space about 8′ x 24′ adjacent to the north wall of the patio. From actual tests made by Mr. Ames he discovered that the patio windows are of negligible value for display because they fade merchandise. The witness Tucker, an assistant of Mr. Ames who helps with the general sales and sales promotion work and plans, assembles and installs window displays, investigated the pulling power of windows for sales purposes and for six months he tested both the front windows on Broxton Avenue and those facing the patio. Such tests were made systematically ‘alternating the displays so as to keep them fresh.’ In every test he had made to the day he testified the patio windows proved of little or no value. He was of the opinion that they are constantly costing his firm money. The damage to the merchandise caused by the sunlight in those windows ‘far exceeds the returns.’ If the patio windows are useless for display they are not essential to the conduct of either a clothing or a tailoring business, and to close them would not even be calculated to render any part of store No. 2 untenantable which is the test of the value of an appurtenance. Clark v. Mountain States Life Insurance Co., 1 Cal.App.2d 301, 36 P.2d 848. Close them and the Broxton street entrance would continue as the only entrance to the store and to the display windows.

That respondent is not entitled to a continuance of the open patio and passageways merely because it serves as a convenience is determined not only by the language of the Civil Code, section 820, but by appellate decisions. In Harrison v. Zeigler, 51 Cal.App. 429, 196 P. 914, 916, the space leased was within a building and was used as a cafe. It extended back to a hallway which in turn connection with the rear part of the lobby of the hotel. From the hallway also access was had to a lavatory located in the rear of the building. At the time of the lease, a door opened from the east and of the hallway into the cafe. When defendants commenced remodeling they indicated their purpose to remove the lavatory and to close the hallway and door leading to the cafe. Plaintiffs sought to enjoin them. They contended that the hallway and door were appurtenant to the cafe, were covered by the lease, that the lavatory with toilet were essential to their enjoyment of the leased premises and that they had an oral understanding for their use. After observing that the lease made no mention of the door, the hall or the lavatory and toilet, the court held that the door, passageway and toilet facilities did not pass to appellants with the cafe space and said: ‘Rights and easements may and do pass to lessees by implication; ‘but, where the express words of the grant are not sufficient, the implication which supplies those words flows either from a reasonable necessity, or, considering all the circumstances, from the manifest intention of the parties.’ * * * ‘Since the parties did not adjudge it important enough to contract respecting the use’ ‘of the doorway, passage, and toilet facilities ‘in plain terms, is the necessity so strong as to make the demands of the appellants (lessees) appear reasonable’? It is very clear from the findings of the trial court, which * * * are amply supported by the evidence, that the use of the door, passageway, and toilet facilities in connection with appellants' business was merely a convenience, but is not necessary to the beneficial use of the property. The door, passageway, and toilet facilities are therefore not appurtenant to the restaurant premises, and there is no implied reason which will prevent the respondent from closing the same.'

Now respondent is not in the slightest degree in a more favorable position than were the lessees in the Harrison-Ziegler case. Whatever he may testify now as to what he said in 1929 it is beyond dispute that he did not adjudge the proposed patio and the inside windows fronting thereon of sufficient importance to request that his lease stipulate that they should never be closed. Clearly, then, basing a conclusion upon respondent's own appraisal of the value of the patio and windows it cannot be said that they are necessary to his full enjoyment of his leasehold granted by the lease even though the windows and the patio might serve his convenience. It is true that the court found that the uninterrupted use of both the Kinross and Broxton entrances is ‘necessary to the full and beneficial use of the portion of the premises leased’ and that the use of the windows for display purposes and for light and air are of substantial benefit to respondent. But there is not a word of proof to establish that the Kinross entrance is necessary to the full and beneficial use by respondent of the premises leased to him. He invokes the testimony of the witnesses Mann, Boone, Campbell, Crawford and Nollac as support of the quoted finding. But a careful inspection of the testimony of those witnesses discloses nothing more than that the continued use of the Kinross entrance, the patio and its adjacent windows would be of value to respondent and the latter closes his argument with the observation that appellants did not ‘offer disinterested expert witnesses in support of his contention that the patio windows and entrance were of no value to respondent.’ The value of the use of such portions of the building was immaterial. The issue was whether they were essential to respondent's tenancy. In order for respondent to establish that the windows, patio and entrances are appurtenances of the leased premises, he must prove that without them his store would be rendered untenantable. Harrison v. Ziegler, supra.

Respondent did not acquire an easement by user. It is the rule that while there is no grant of a right to air and light from any length of continuous enjoyment, yet when the relation of landlord and tenant exists between the parties, the rule is so qualified that if the thing claimed as appurtenance is an incident of the demised premises, that is to say, if it is the thing without which the demised premises would become so untenantable as to result in an eviction, actual or constructive, the thing will pass to the tenant by implication. If it is shown that a deprivation of the claimed appurtenance would not render the premises untenantable it was not included within the lease. Clark v. Mountain States Life Ins. Co., 1 Cal.App.2d 301, 303, 36 P.2d 848. From the Clark case it is clear that a tenant may not successfully assert that an inconvenience he might suffer by having his view shut off, or by being forced to walk 100 feet farther to fetch his wood and water, or to travel an additional hundred yards in order to reach his cowpen, means that he has been deprived of a necessity or that by reason of such inconvenience the demised premises are untenantable. An easement uncertain in extent and duration without a written record of its existence ‘fettering estates, and laying an embargo upon the hand of improvement, which carries the trowel and the plane, and, as applied to a subsequent purchaser, against the spirit of our recording acts, and not demanded by any consideration of public policy * * * should not be held to exist by mere implication.’ Kennedy v. Burnap, 120 Cal. 488, 491, 52 P. 843, 844. Also, it is the established law that a proprietor of land may not by user acquire an easement over adjoining land for passage of light and air. Western Granite & Marble Co. v. Knickerbocker, 103 Cal. 111, 113, 37 P. 192. No right of this character can be acquired without express grant of an interest in, or covenant relating to, the lands over which the right is claimed. Kennedy v. Burnap, supra; Civ.Code, sec. 820; see Walter Henry Cook: Legal Analysis in the Law of Prescriptive Easements, 15 S.C.L.R. 44.

The judgment is reversed with instructions to enter judgment that defendant Hamner has no right to use or occupy any portion of the building of plaintiffs other than that described in his lease or to the light or air from any other portion of the building and that plaintiffs may dispose of the patio in such manner as they shall determine and building restrictions allow.


1.  Section 819, Civil Code: ‘A tenant for years or at will, unless he is a wrongdoer, by holding over, may occupy the buildings, take the annual products of the soil, work mines and quarries open at the commencement of his tenancy.’

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.

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