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Court of Appeal, Second District, Division 5, California.

CONTINENTAL BAKING COMPANY, a Delaware corporation, Plaintiff and Respondent, v. William KATZ, Evelyn Ruth Katz, Stanley Balik, Hilda Balik, Harry Friedman, Mac J. Friedman, Ernest Levine, et al., Defendants and Appellants.

Civ. 30081.

Decided: August 22, 1967

William Katz, Los Angeles, for appellants. Stapleton & Isen, F. G. Stapleton and Gerald Miller, Los Angeles, for respondent.

The pivotal issue in this lawsuit is this: did a grant deed dated December 29, 1941, from the predecessor in interest of defendants and cross-complainants William Katz, et al., (Katz) to plaintiff and cross-defendant, Continental Baking Company, (Continental) create an easement for ingress and egress merely to a small parcel of land conveyed to Continental by the same deed, or was the easement appurtenant to a much larger parcel also owned by plaintiff.

We illustrate the problem by the sketch below. It is not to scale and omits unnecessary details. Certain facts mentioned in this opinion in later pages will become clearer by reference to the sketch.

These facts are not in dispute: Continental has owned Parcel A since 1929 and has operated a bakery thereon. Parcel B was, in 1941, owned by California Consumers Corporation (Consumers). On December 29 of that year Consumers, by grant deed, conveyed to Continental certain interests in real property which in that deed are called ‘parcel 1’ and ‘parcel 2’ respectively. Parcel 1 (see sketch) was described by metes and bounds. After the legal description the deed recited: ‘Said parcel of land has no frontage on any public street of record.’

Without any connective words, the deed then goes on to describe parcel 2 as follows: ‘A nonexclusive easement for ingress and egress over a strip of land 20 feet wide * * * described as follows: * * *’ Then there follows a metes and bounds description of the area covered by the easement, which is 232.66 feet long. Consumers reserved to itself the right to build a structure over the easement, with a minimum ground clearance of 18 feet and the right ‘to support such structure with posts and walls located on such strip in such a way as to interfere as little as practicable with said right of ingress and egress.’ No dominant tenement is described as such.

By various other conveyances in 1941, 1942 and 1943 Continental acquired property south of parcel 1. This property is designated as parcel C on the sketch.

In 1952 Consumers deeded parcel B to Katz, Located on the westerly portion of that parcel is an office building. Parking for the tenants is provided immediately to the east of the building and west of the easement.

Until 1962 the bakery's west will was located 20 feet east of the eastern line of the easement and 16 feet south of the northerly property line of parcel A. That year Continental enlarged the bakery by extending it 20 feet further west, right up to the easement. This 20 foot strip east of the easement had heretofore been used as a driveway. At the same time the 16 feet between the bakery and the street were converted from a grassy, bushy strip to a concrete loading area. It will be observed that if, as Katz contends, the easement serves only parcel 1, it may not used to reach this loading area from the street.

In January, 1963 Katz, by letter, informed Consumers that he considered parcel 2 as an easement appurtenant to parcel 1 only; further, the letter took essentially the same position which he is maintaining at the present time with respect to what he considered an overburdening of the easement by Continental.

Just what if anything transpired between the parties thereafter, we do not know. It is undisputed to erect a low will or fence from the northerly property line along the easterly edge of the easement. (See sketch.) This wall, while it would not necessarily have interfered with any longitudinal traffic along the easement, would have made it impossible to drive a vehicle directly from a concrete loading area onto the easement. A few chalk marks on the ground in the area of the proposed wall, on the basis of which Continental obtained a temporary restraining order, thus dramatically and cheaply pinpointed the controversy.

The present appeal is from an order granting a preliminary injunction restraining Katz from interfering with Continental's use of the easement and an order denying a preliminary injunction to Katz.1 An appeal from the order granting Continental a temporary restraining order was also noticed, but since that order became merged in the preliminary injunction, the appeal is moot and must be dismissed. (Scovill Mfg. Co. v. Skaggs Pay Less Drug Stores, 45 Cal.2d 881, 883, 291 P.2d 936.)

At the hearing it developed that the attorneys for Continental thought that they could base their claim that the easement was servient to parcel A as well as to parcel 1 on a 1924 deed from them owner of parcel A to Katz' and Consumers's predecessor in title, Globe Ice Cream Company (Glode). That deed conveyed parcel B to Globe and contained a clause, called a condition subsequent, which would have prohibited Globe from erecting any building or structure on the 20 foot strip in question. It also provided that the strip was not to be used ‘for any purpose except for ingress, egress, parking facilities and allied uses * * * except fences of concrete, iron, or concrete and iron, not to exceed 3 feet in height.’ Katz successfully objected to any consideration of that deed as an easement, claiming correctly that plaintiffs' complaint was not based thereon. An attempt to be permitted to amend the complaint was unsuccessful.

The key ruling at the hearing was to the effect that plaintiff was permitted to introduce extrinsic evidence to show that parcel 2 was intended to be an easement for ingress and egress to parcel A as well as to parcel 1. We think that this ruling which, as we see it, is the basic legal problem in the lawsuit, was correct. The trial court relied on Schofield v. Bany, 175 Cal.App.2d 534, 346 P.2d 891, and we have found no case more directly in point. In Schofield there was a grant of an easement to an adjoining land owner. The granting clause read as follows: ‘An easement over and along a 20 foot Right of Way, as the same now exists, and which Right of Way leads from the Easterly line of the Northeast quarter of Section 14, in Township 9 North, Range 10 West, M. D. M., and running thence in a general Southwesterly direction to a point on the Easterly line of the Southeast quarter of the Northwest quarter of said Section 14.’ (Ibid., p. 536, 346 P.2d p. 892.) The question was whether or not the easement was appurtenant to the parcel then owned by the grantee. Testimony was admitted that one Dicke, the grantee of the easement, had used the road in question from 1946 until 1952 without any recorded easement for the benefit of the property adjoining the servient tenement. In connection with the sale of his property to one Hemphill, it became necessary for Dicke to acquire a recorded easement which he obtained for $1.00. On appeal it was contended that the extrinsic evidence should not have been admitted. The contention was answered as follows: ‘Intent of the parties may be ascertained from the language of the deed and from relevant parol evidence, including that which described the surrounding facts and circumstances existing at the time of the conveyance in question. ‘As stated in Wright v. Best, 19 Cal.2d 368, at page 383, 121 P.2d 702, at page 711: ‘* * * when the deed does not expressly declare an easement to be appurtenant, or when the language of the deed is ambiguous, and it does not clearly appear whether an easement was intended to be in gross or appurtenant to land, evidence aliunde the document is admissible to determine the nature of the easement and to establish a dominant tenement.’ (See also, Elliott v. McCombs, 17 Cal.2d 23, 29, 109 P.2d 329; Balestra v. Button, 54 Cal.App.2d 192, 198, 128 P.2d 816; Eastman v. Piper, 68 Cal.App. 554, 568, 229 P. 1002.)' W. C. Dillon & Co., Inc. v. Barton, 159 Cal.App.2d 18, 20, 323 P.2d 462, 463. Or as stated in Elliott v. McCombs, supra, 17 Cal.2d at page 29, 109 P.2d [329,] at page 333, ‘* * * when the language of a deed is ambiguous, and it does not clearly appear whether the casement was intended to be in gross or appurtenant to land, it is never construed as personal when it may fairly be construed as appurtenant to some other estate. [Citing cases.] The cases which apply this rule also hold that in ascertaining the intention of the grantor, as in any other contract, in the absence of an express declaration, the nature of the easement may be determined by evidence aliunde the deed. An easement, therefore, may be appurtenant although the deed does not expressly declare it to be so, and the law favors such an interpretation.’ See also 17 Cal.Jur.2d 92.' (Ibid., pp. 536–537, 346 P.2d p. 893.)

The only distinction between Schofield and the present case is that the 1941 deed describes two parcels. That, however, does not make it any clearer that the easement described in parcel 2 was intended to serve only parcel 1. It is arguable that it points away from such an intention, for as long as the draftsman had to describe parcel 1 anyway, it would have been an easy matter to state by appropriate connective words that the easement described in parcel 2 was appurtenant to parcel 1.

It is just as inferable from the four corners of the instrument that the parties wanted to save double notary fees, as it is to conclude that the easement was to be

The key ruling that extrinsic evidence was admissible was therefore correct. Unfortunately the manner in which the evidence was admitted was not correct.

Counsel for appellant offered three documents. The first was what looks like a letter from Consumers to Continental, dated October 11, 1940. In that letter there is reference to a pending real estate transaction whereby certain portions of parcel C were to be conveyed by Consumers to Continental. It refers to a preliminary report of the Title Insurance and Trust Company, which report is the second document that was offered by plaintiffs. In that report the easement is described as parcel 3 and the following statement is made by the writer of the letter concerning the inclusion of parcel 3: ‘You will note in Title report with respect to Parcel #3 that a reservation was made in the original deed for an easement for private roadway for ingress and egress along a strip 20 ft. wide, lying along the westerly line of the property now owned by the Continental Baking Company, and according to this easement you would have the right of ingress and egress across the 20 ft. strip of our property to the triangular parcel which is to be conveyed to you.’ The third document purports to be another letter from Consumers to Continental dated November 6, 1940 in which the following appears: ‘It was our understanding that you were agreeable to promptly entering into escrow, when you could be assured that in effecting transfer to you of the two tracts, that ingress and egress would be available to the triangular parcel designated as #3. Under date of October 11th, we forwarded you preliminary report of the Title Insurance and Trust Company, showing the parcel to be transferred and including the data with respect to easement for private roadway for ingress and egress along the strip 20 ft. wide, lying along the westerly line of the property now owned and to be retained by the California Consumers Corporation.’ Katz objected to the admission of there documents on several grounds. Among other things he said: ‘* * * at this time I interpose the objection to each and all of there documents on the ground that there is no foundation laid; on the ground that they are hearsay; * * *’ In reply counsel for plaintiff said: ‘Well, insofar as the authentication is concerned, I can have a witness testify. In fact, we got them from the general counsel of Continental Baking Company, so they are obviously business records under the liberal interpretation. Insofar as hearsay is concerned, they come within one very clear exception, and that is, they are an admission against interest by a predecessor in title of Mr. Katz, by the California Consumers Corporation, and it is an admission; states in there that they are talking about an easement; that we don't even need a deed because we already have this easement for private roadway purposes. Now, that as an admission would be admissible as an exception to the hearsay rule. * * *’ The court then inquired how it was to know that Consumers was the predecessor in interest of Katz. Reference was made to certain declarations which were before the court and the exhibits were then admitted.

We understand that in some legal systems it is assumed that documents are what they purport to be, unless shown to be otherwise. With us it is the other way around. Generally speaking, documents must be authenticated in some fashion before they are admissible in evidence. This was true at the time of the hearing in this case and is true under the Evidence Code (§ 1400 et seq) although the code in many instances eases certain former requirements.2 In the case at bar the court simply took counsel's word for it that he could have a witness lay the necessary foundation and that he, the attorney, had obtained the documents from the general counsel of Continental so that they were ‘business records under the liberal interpretation.’

While we have just as much faith in counsel's sincerity as the trial court evidently had, such faith does not take the place of testimony or judicial notice.

The reception of the documents in evidence was therefore erroneous. Inasmuch as they are highly persuasive, we cannot say the error was harmless.

Since the documents were received in support of plaintiff's request for a preliminary injunction and in opposition to Katz', both orders must be and are hereby reversed.

Continental may well reapply for another preliminary injunction and so may Katz. We note from the superior court file that neither party has made any attempt to bring this case to trial. There may be factors in this situtation of which we are not aware, but the way it looks to us much unnecessary time and effort in the superior court and, perhaps again in this court, could be saved if instead of another preliminary skirmish the parties proceeded to an immediate trial on the merits.

The appeal from the order granting a temporary restraining order is dismissed. The orders granting an denying preliminary injunctions are reversed.


1.  Katz had sought a preliminary injunction which would have prevented any use of the easement for the benefit of parcel A and, in addition, enjoined certain uses of the easement, which he considered an overburden, regardless of their purpose.

2.  For example, a purported copy of a writing in the custody of a public entity is prima facie evidence of the existence and content of the writing if it purports to be published by the authority of the public entity. (Evid.Code, § 1530.)

KAUS, Presiding Justice.


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