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District Court of Appeal, Third District, California.

COOKE et ux. v. RAMPONI et ux.

Civ. 7796.

Decided: January 27, 1951

Earl C. Berger, San Francisco, for appellants. Geary, Spridgen & Moskowitz, Santa Rosa, for respondents.

The defendants have appealed from a judgment enjoining them from obstructing or in any way interfering with plaintiffs' use as owners of an easement of a roadway over defendants' lands.

In 1937 plaintiffs purchased approximately 160 acres of land in Sonoma county. The only useable roadway permitting access to the property from a public highway was a dirt and gravel road which crossed adjoining lands then owned by the State of California and used by the state as a part of the Sonoma State Home. The state property contained something in excess of 200 acres and is now owned by defendants Antonio and Eda Ramponi. This property was originally acquired by the state in 1920 and was conveyed to Gerald Foster in 1944 who, later that same year, transferred the same to defendants. The roadway, which is the subject of this litigation, connects plaintiffs' property with what is referred to as the Lovall Valley Road and was in existence as early as 1886 and was then used by the Cookes' predecessors in title, one Herbert Tracy. According to Tracy it was not used from 1907, when he acquired the property, until he did so about the time the state acquired the property presently owned by the Ramponis. A second road known as the Tracy Road, which approached plaintiffs' property from a different direction than the litigated roadway, has fallen into complete disrepair and has been unused for a considerable length of time.

Just prior to plaintiffs' purchase of the property Charles Cooke corresponded with Carl E. Applegate, Deputy Director of the Department of Institutions of the State of California, inquiring as to the use of the roadway crossing the state lands. The record contains no evidence of the contents of this letter other than the statement by Cooke that it was to confirm the ‘understanding I had regarding this right of way.’ Applegate wrote in reply that the state had never objected to the use of the roadway by the prior owner of the adjoining land, and would make no objection to the Cookes' use of the roadway.

Between 1937 and 1941 the Cookes did little to improve their property. However, starting in the middle of the year 1941 they constructed a residence and made other improvements on their land, spending in excess of $15,000.00. During the process of this construction Mary Louise Cooke called upon Dr. F. O. Butler, Medical Superintendent of the Sonoma State Home, and H. H. Waterhouse, Business Manager of the Home, to inquire whether the state would bear a portion of the cost of improving the roadway. She was informed by said officials that although they believed the state was not justified in bearing any part of the expense she and her husband could make whatever improvements they wished without interference from the state.

In 1944 the State of California conveyed the land upon which the litigated roadway is situated to Foster. Shortly after Foster acquired title he and Mary Louise Cooke discussed the Cookes' use of the roadway and reached an agreement that he would bear one-third and the Cookes two-thirds of the cost of maintenance and repair of the roadway. The Cookes hired a bulldozer to scrape the road, they contributing $27.50 and Foster about $15.00 as their respective shares of the cost.

In the Fall of 1944 Foster conveyed his land to the Ramponis, defendants herein. Soon thereafter Mary Louise Cooke had a conversation with Antonio Ramponi respecting the maintenance and repair of the roadway but Ramponi refused to bear any portion of the cost. The end result of the conversation was that the Cookes could do what they wished about the maintenance of the road so long as they did not bother the Ramponis. Subsequently, and prior to the commencement of this litigation, the Cookes had the ditches cleaned and deepended, the road scraped and graded again and surfaced with oil, and installed culverts. Following this, Ramponi indicated to the Cookes that the roadway was his private roadway, that the Cookes did not have the right to use it, and that he would not permit their free use of it. Plaintiffs then filed their action by which they sought to have a prescriptive easement to the use of the road and enjoin defendants from interfering with plaintiffs' use thereof.

The findings pertinent to the issues raised were (1) that shortly before plaintiffs purchased their property they were informed by a letter addressed to them from the Deputy Director of the Department of Institutions that the State of California did not object to the use of the road by the previous owners and would not object to plaintiffs' use. (2) That after plaintiffs began construction of a residence on the property Mrs. Cooke spoke to the Medical Superintendent of the Sonoma State Home and to the Business Manager thereof asking if the state would bear a portion of the cost of repair and maintenance of the litigated road. The state, knowing of the improvements and of the substantial sums being expended by plaintiffs on their property and knowing that said plaintiffs were using said roadway as their only means of ingress and egress, informed plaintiffs that they might do whatever they wished in regard to such maintenance and repair of said road, even to the building of a new one. (3) That plaintiffs entered into an agreement with G. E. Foster, the successor in interest to the state and the predecessor in interest to the defendants Ramponi, that Foster would bear one-third and plaintiffs two-thirds of the cost of the maintenance of the road and that Foster in turn would not interfere with plaintiffs' use thereof, and (4) that defendants Ramponi informed plaintiffs they could do anything they wished as to the repairs of the road but that he would not share in the expenses. The judgment which was thereafter entered decreed that plaintiffs had an irrevocable license to use the road for the purposes of ingress and egress to and from their property for so long as the nature of their use required the continuance of the license, and defendants were estopped to deny plaintiffs' rights. The court further enjoined defendants, their agents and those acting for them from hampering plaintiffs' use of the road.

As stated in Stoner v. Zucker, 148 Cal. 516, 520, 83 P. 808, 810, it is a well recognized principle in this state that ‘where a licensee has entered under a parol license and has expended money, or its equivalent in labor, in the execution of the license, the license becomes irrevocable, the licensee will have a right of entry upon the lands of the licensor for the purpose of maintaining his structures or, in general, his rights under his license, and the license will continue for so long a time as the nature of it calls for.’ (See also 13 C.L.R. 166.) It is also the rule that ‘When a party relies upon expenditure upon the faith of a license as an estoppel, the evidence of the facts constituting the estoppel should be clear, and the expenditure should not be trivial in amount.’ McCarthy v. Mutual Relief Ass'n, 81 Cal. 584, 588, 22 P. 933, 934; See also 16 Cal.Jur. 288, and Baum v. Denn, 187 Or. 401, 211 P.2d 478.

Here the record shows that plaintiffs purchased their property during the ownership of the ‘servient’ tenement by the state. However it was not until approximately three years thereafter that they made any substantial or permanent improvements to the property or made expenditures of money sufficient to come within the rule as stated. Furthermore the record shows that the state, through its agents, only became aware of plaintiffs' activities and their project after it was under way. Also it appears that the sole basis for the reliance of plaintiffs was a letter by the Deputy Director of the Department of Institutions previously quoted. Although the transcript contains numerous comments that the authority of the Deputy Director would be shown there is nothing in the record to show that this was actually done. While it is true that the state may be subject to the principle of estoppel in a proper case, in no event will an estoppel operate against the state where the act or contract relied upon to create the estoppel is outside of the powers of the officials involved, see Wheeler v. City of Santa Ana, 81 Cal.App.2d 811, 185 P.2d 373, nor will the doctrine be ‘lightly invoked’ where the state is involved. Pacheco v. Clark, 44 Cal.App.2d 147, 153, 112 P.2d 67. It is therefore apparent that plaintiffs have not sustained the burden upon this theory of their case.

Proceeding to an examination of the facts and the circumstances surrounding the period of Foster's ownership the record shows that a bulldozer was used for a day and laborers were employed to remove the annual accumulation of trash and debris from the ditches along the road; that for such work Foster expended $15.00, and $27.50 was paid by plaintiffs. It further appears that all buildings or other substantial improvements relating to the home of the plaintiffs had been completed prior to Foster's acquisition of the property. Such facts do not appear sufficient under the rules as enunciated in the cited cases.

It is our further conclusion that at most, any license given to plaintiffs by the Ramponis was merely permissive in character. No substantial improvements of any character were undertaken until the disagreement of the parties, or was there any appreciable expenditure of money or other detriment suffered by plaintiffs during such period. The grading and surfacing of the road following their disagreement with the Ramponis is wholly immaterial to the question herein presented.

It should be noted also that Mrs. Cooke, when asked upon cross-examination whether she had ever notified either Foster or the Ramponis that she and her husband contemplated making certain improvements upon their property which would not be made if there were any difficulty over the roadway, she replied in the negative and that she was not in the habit of discussing her affairs with either of them.

The judgment is reversed.

PEEK, Justice.

ADAMS, P. J., and VAN DYKE, J., concur.

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