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District Court of Appeal, Third District, California.

Adolph D. LAUX and Joyce H. Laux, Plaintiffs and Respondents, v. William J. FREED and Bertell F. Freed, Defendants and Appellants.

Civ. 9432.

Decided: February 09, 1959

Ralph W. Rutledge and Richard E. Patton, Colusa, for appellants. Florence J. Westfall and Donald W. Littlejohn, Colusa, for respondents.

Defendants appeal from that portion of the judgment which determined the extent of a grant of right of way by a deed to them from the plaintiffs, and which enjoined the use of the right of way other than as provided by the decree.

Plaintiff, Adolph D. Laux, and defendant, William J. Freed, operated the property involved as partners from 1943 until 1952. In 1952 the partnership was dissolved and the land divided into two parcels. A flip of a coin determined the parcel each partner would receive. Laux won the toss and chose the northerly portion, Freed taking the remaining or southerly half. As a part of the dissolution Freed was granted a right of way over a private road which crossed the parcel of Laux. The grant read:

‘For value received Adolph D. Laux and Joyce H. ,Laux, his wife, Grant and Joyce H. Laux, his wife, Grant Freed, his wife, as Joint Tenants, all that real property situate in the County of Colusa, State of California, described as follows: A right of way over a road as presently constructed along the East Branch of Sand Creek, in the East half of Section 18, and the Northeast quarter of Section 19, Township 13 North, Range 3 West, Mount Diablo Base and Meridian.’

The trial court found that the right of way was granted for the sole purpose of moving livestock, hay, machinery and other farming equipment; that the leasing by defendants of their land for the use of deer hunters, with specific instructions to use the right of a way and no other, had unreasonably increased the burden on the servient tenement and was a use not contemplated at the time the grant was made; that such use was an unauthorized change in the burden of said easement; and that access to defendants' property was not limited to the roadway but also could be gained by a county road. From such findings the court concluded that plaintiffs were entitled to judgment against defendants; that defendants should be enjoined and restrained from using or permitting the right of way granted to be used for commercial hunters; and that the use of the road should be limited to the purposes for which it was granted. Defendants now appeal from the judgment which was entered pursuant thereto.

The evidence shows that from the time plaintiffs and defendants acquired the property as partners they and their guests hunted both parcels. During the 1949 or 1950 deer season the parties as partners leased the hunting rights to one Lawrence. Although there is no direct evidence that the lessee used the premises for so-called ‘commercial hunting,’ the evidence is reasonably susceptible of such an inference; in other words, the testimony shows that when Laux was asked on cross-examination how many permits were sold by Lawrence, he replied he didn't know. The lease with Lawrence was not exclusive, and the partners and their friends continued to hunt both parcels. During the course of the trial the attorney for defendants sought to show that the number of hunters presently using the right of way was no greater than when the range was being operated by the partnership. Objections by plaintiffs' counsel that such evidence was immaterial were sustained by the trial court.

In 1952 the parties partitioned the property, and the right of way in question was granted. In 1956 both parties leased their respective lands for commercial hunting. The defendants leased theirs to one Steidlmayer who sold memberships entitling the holders to hunt defendants' land. The lessee specifically instructed the holders to use the road over plaintiffs' land.

Laux testified that prior to the execution of the grant there was a discussion in which it was stated that whoever got the back half of the range should have the right of way over the roadway in question for the purpose of caring for his cattle in winter, or for whatever was needed to care for his cattle and property; that defendants agreed to such an arrangement, and that this fact was mentioned by Laux to Freed on several occasions; that Freed said he wished the road for deer hunters; that Laux said it was not for that purpose; that he would not grant it for such a purpose; that after the agreement was made, Laux asked Freed if he could cross defendants' property to hunt on the range south of defendants' land; that Freed refused the request, stating: ‘You stay off of my place with your hunters and I will stay off of your place.’ These conversations were categorically denied by Freed, but he did testify that conversations concerning the right of way had taken place prior to the execution of the grant therefor.

The primary question raised by defendants is whether or not parol evidence may be introduced to show the intent and purpose of the parties in granting the right of way. Their argument is that oral testimony was improperly admitted since it varied the terms of the grant (citing Lewis v. Brown, 22 Cal.App. 38, 133 P. 331). In reply plaintiffs rely upon section 1856 of the Code of Civil Procedure which provides in part that ‘* * * circumstances under which the agreement was made or to which it relates, * * *’ should not be excluded since under the section referred to therein, Code of Civil Procedure, section 1860, it is provided: ‘For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument, and of the parties to it, may also be shown, so that the Judge be placed in the position of those whose language he is to interpret.’

In accordance with such statutory mandate, our courts have held that ‘* * * the question [as to the extent of a right of way] has been uniformly regarded by the courts as one of fact, for the jury. The extent of the right and duty of the respective owners towards each other is to be determined by the language of the grant, and all the circumstances existing at the time the grant was made. ‘Nothing passes as incident to such a grant but that which is necessary for its reasonable and proper enjoyment.’ [Citation.] ‘What is necessary for such reasonable and proper enjoyment of the way granted, and the limitations thereby imposed on the use of the land by the proprietor, depends upon the terms of the grant and the purposes for which it was made, the nature and situation of the property subject to the easement, and the manner in which it has been used and occupied.’ [Citing cases.]' Smith v. Worn, 93 Cal. 206, 214–215, 28 P. 944, 946.

It would seem to follow that since the trial court, in order to understand the purposes and intent of the grant, properly admitted evidence for that purpose, and since such evidence was amply sufficient to support the determination of the court, such evidence was likewise sufficient to support the findings that defendants' use was unreasonable and not within the contemplation of the parties, and hence the remaining contentions which raise the same questions are, for the same reasons, invalid and need no further discussion.

The judgment is affirmed.

PEEK, Acting Presiding Justice.

SCHOTTKY, J., and WARNE, J. pro tem., concur.

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