ROMERO v. DEPARTMENT OF PUBLIC WORKS (1939)

From a judgment in favor of defendants predicated upon the sustaining of a general demurrer to their complaint in an action to compel defendants to complete condemnation proceedings or to pay for land alleged to have been unlawfully taken by them, plaintiffs appeal.

The essential facts alleged in the complaint are:

In 1891 Bonafacio Marquez owned certain real property at the mouth of the Santa Monica canyon in Los Angeles county, and on July 23, 1891, he agreed to sell and convey to the Pacific Improvement Company a strip of this land 100 feet wide on condition that a railroad be located on said land. Thereafter, September 8, 1891, said Marquez died intestate while the railroad was in the course of construction, and, upon the petition of Pacific Improvement Company, the probate court on October 25, 1892, ordered the administratrix of the Marquez estate to convey all the right, title, and interest of the decedent and his estate in the aforementioned 100 feet of land to Pacific Improvement Company. This the administratrix did October 27, 1892, by a deed which contained among others this provision: “This deed is made upon the express condition that the land hereby conveyed shall be used by the party of the second part, its successors or assigns, for railroad purposes, and in the event that said party of the second part, its successors or assigns, shall fail so to use said land for railroad purposes then and thereupon said land shall revert to and become vested in the heirs of said Bonafacio Marquez, deceased.”

From 1892 to January 25, 1934, a railroad was actually located on said land and continuously used. On January 25, 1934, the use of such railroad was discontinued. The plaintiffs are the heirs or successors in interest of said Bonafacio Marquez, deceased.

This is the sole question necessary to be determined:

After having located a railroad on the strip of land conveyed, and operated the same for over forty years, did the successors of the original grantee commit a breach of the reversionary condition in the deed set forth above by ceasing to use the property for railroad purposes?

This question must be answered in the negative. The law is established in California that, where property is conveyed upon condition that it be used for a certain purpose, and that in the event it is not so used title is to revert to the grantor, there is not a breach of this condition if the property is used for the purpose designated for a reasonable period and thereafter is not used for the designated purpose. Hasman v. Union High School, 76 Cal.App. 629, 245 P. 464; Booth v. County of Los Angeles, 124 Cal.App. 259, 12 P.2d 72; O.T. Johnson Corp. v. Pacific E.R. Co., 19 Cal.App.2d 306, 65 P.2d 368; Jeffersonville, Madison & Indianapolis Railroad Co. v. Barbour, 89 Ind. 375.

In Hasman v. Union High School, supra [76 Cal.App. 629, 245 P. 465], a deed to the high school district contained a clause providing: “* provided the same shall be used for the purpose of maintaining thereon a high school; otherwise, the above described property shall revert to and become the property of the party of the first part, his heirs, or assigns.”

The grantee went into possession and maintained a high school on the granted land from 1893 until 1922. In 1920 a different site was chosen for the high school, new buildings were erected and the old buildings used only occasionally during stormy weather for athletic purposes. The administratrix of the estate of the grantor brought an action to recover the property and to quiet title, claiming that the provision in the deed just quoted had been breached. In denying the plaintiff relief the court said, 76 Cal.App. at page 633, 245 P. at page 466:

“The deed involved in this case can be reasonably interpreted so as to avoid a forfeiture, even without applying the rule of strict construction discussed in the foregoing decisions. In compliance with the literal terms of the deed, the property was ‘used for the purpose of maintaining thereon a high school,’ and the deed does not provide for a reversion upon the discontinuance of such use, but only upon failure to so use it. Adapting the language of the opinion in Texas & Pacific R. Co. v. City of Marshall, supra [136 U.S. 393, 10 S.Ct. 846, 34 L.Ed. 385], the condition of the deed was satisfied when the high school district, in good faith, and without any intention at the time of changing the location of the school, erected buildings on the property and conducted a high school therein for 29 years, and until the interests of the school demanded a change of location. Such use of the property was a permanent use under the authorities herein cited. ‘If, by a condition that certain buildings or a certain structure shall be permanently located upon the granted land, it is meant simply that this land shall in good faith be selected as the site of such buildings or structure, and that the same shall be erected upon the granted land, the condition is fulfilled by the erection of the buildings or structure upon the land, and the use of it for a time for the purpose intended, though the use of it for this purpose is subsequently abandoned.’ Jones on The Law of Real Property in Conveyancing, § 687. See, also, Crane v. Hyde Park, 135 Mass. 147; Maddox v. Adair (Tex.Civ.App.) 66 S.W. 811; Jeffersonville etc. R.R. Co. v. Barbour, 89 Ind. 375.

“Had it been the intention of Kerr that the property should revert upon the discontinuance of its use for high school purposes, it would have been so easy to have so stated, in plain and simple language, that it must be inferred from the terms actually employed that such was not his intention.” (Italics added.)

In Booth v. County of Los Angeles, supra, plaintiff sought to quiet title to property which had been conveyed to the county of Los Angeles in 1884 by a deed containing this clause: “This conveyance is made for the purpose of a road or highway, to revert to said J.J. Harshman, his heirs and assigns if not so used.”

The county maintained a road upon the property for a period of thirty-two years and then ceased to use it for that purpose. In denying the plaintiff relief the court said, 124 Cal.App. at page 261, 12 P.2d at page 72:

“We are of the opinion that the judgment must be affirmed. The law of the case may be taken from the opinion in the case of Hasman v. Union High School, 76 Cal.App. 629, 245 P. 464, 465.*

“Without further citation, reference may be had to the authorities cited in the Hasman Case, all going to support the rule.

“Paraphrasing a portion of the opinion in the main case cited, had it been the intention of the grantor herein that the property should revert upon the discontinuance of its use for road purposes, it would have been so easy to have so stated in plain and simple language that it must be inferred from the terms actually employed that such was not the intention of the grantor. There appears nothing harsh or inequitable in upholding the rule. It may be assumed, from a general experience, that the entire object of the condition was accomplished when a road or public highway was established and accepted by the public. Cases holding to a seemingly contrary view as cited by appellant are distinguished in the cases cited herein.”

In O.T. Johnson Corp. v. Pacific E.R. Co., supra, this court in passing upon a somewhat analogous situation to that presented in the instant case says, 19 Cal.App.2d at page 311, 65 P.2d at page 370: “As there was no express provision in the agreement, or in the deed, that passenger service should be continued perpetually, the position of plaintiffs cannot be maintained unless it be on the theory that an agreement to devote land to a particular use implies an agreement to perpetually devote it to that use. The authorities are strongly against such a construction.”

Applying the rule above stated to the facts of the instant case, it appears that the original deed, under which plaintiffs claim, provided that the grantee should use the granted property for railroad purposes, and that if the grantee should “fail so to use” the conveyed land “for railroad purposes” the property should revert to the grantor. Under the conceded facts the grantee did use the land for railroad purposes for more than forty years. Therefore the grantee did not fail to use the granted land for railroad purposes, and there being no breach of the condition in the deed, no inchoate reversionary rights ripened into a vested present right in plaintiffs to have possession and title to the devised property.

The cases cited by appellants are all factually distinguishable from the instant case and are therefore inapplicable. For example, appellants strongly rely upon Johnston v. City of Los Angeles, 176 Cal. 479, 168 P. 1047, 1048, in which it appears that a deed was executed to the city of Los Angeles conveying land to be used for the maintenance of a dam etc. The deed contained a reversionary clause reading as follows: “It being also expressly understood and agreed by and between the parties hereto, that in case the party of the second part shall cease to use the said premises for the said purposes of the erection and maintaining of said dam, reservoir, and ditch, that then and in that case the said premises hereinbefore conveyed shall revert to and become the property of the said party of the first part, his heirs, executors, administrators or assigns.”

The city after acquiring the property used it for a period as part of its irrigating system and then ceased to use it for such purposes, and the residuary devisee of the grantor successfully maintained an action to recover the property under the forfeiture clause in the deed. This case, however, is clearly distinguishable from the instant case, because in Johnston v. City of Los Angeles, supra, the deed provided that in case the grantor “shall cease to use” the premises for the designated purposes the property should revert to the grantor. In the instant case there was no such provision in the deed, but simply a provision that the property be used for railroad purposes. Note that this distinction is clearly pointed out in Hasman v. Union High School, supra, 76 Cal.App. at page 634, 245 P. at page 464.

There is no merit in plaintiffs' contention that when the property ceased to be used for railroad purposes there was a failure of consideration for the original contract to convey the property and the deed subsequently executed. The contract provided that it was made in consideration of one dollar and “the benefits to be derived by me in the construction of a railroad along the beach and across my property”. The contract further provided that it should be void “in case said Railroad shall not be located on said land”. The railroad was located on the land, which clearly constituted a valid consideration for the contract and subsequent deed. See on this last point Bell v. Southern Pacific R. Co., 144 Cal. 560, 77 P. 1124.

In view of the foregoing conclusions it is not necessary for us to discuss the other points presented by plaintiffs' counsel.

The judgment appealed from is affirmed.

McCOMB, Justice.

We concur: MOORE, P.J.; WOOD, J.