William D. Pettis, Plaintiff and Appellant, v. GENERAL TELEPHONE COMPANY OF CALIFORNIA (1966)

Pettis, a landowner, appeals from a summary judgment in favor of defendants General Telephone Company and Southern California Gas Company on his fifth amended complaint for an injunction and damages for trespass.

During construction of the Santa Ana Freeway in 1953 the State of California requested the telephone and gas companies to reroute their existing facilities in the construction area, and the companies did so pursuant to “Utility Encroachment Permits” which allowed them to bury their transmission lines under real property owned by the State.  (Sts. & Hy.Code, § 670 et seq.)   In 1957, the State sold as excess and conveyed by grant deed a portion of the freeway property containing the buried utility lines to plaintiff's grantors, the Bloom group, which in turn sold and conveyed the property to Pettis in 1959.   Through an apparent slipup the deed of conveyance from the State to the bloom group made no reference to the utility lines.   In November 1960 Pettis filed a complaint against the utilities and the Bloom group, seeking a quiet title to the property, an injunction to compel removal of the utility lines, and damages for trespass.   In his fifth amended complaint Pettis pleaded that the public records had not disclosed the claims of the utilities to subsurface rights and that he had acquired the property without notice or knowledge of their claims.   On the utilities' motion that the action was without merit as to them, summary judgment was granted in their favor.  (Code civ.Proc. § 437c.)

We think this ruling was correct.

 Clearly, plaintiff was not entitled to injunctive relief, for actions to quiet title or to enjoin use cannot be maintained when private property has been put to a public use and the public interest has intervened.   “It is well established that public policy denies an injunction and permits only the recovery of damages where private property has been put to a public use by a public service corporation and the public interest has intervened.   [Citations.]  This principle is based upon the policy of protecting the public interest in the continuation of the use to which the property has been put, not upon any dilatoriness by a property owner in asserting his rights, nor upon a justification that the property rights were subject in any event to condemnation.”  (Loma Portal Civic Club v. American Airlines, Inc., 61 Cal.2d 582, 588–589, 39 Cal.Rptr. 708, 712, 394 P.2d 548, 552.)   Since a portion of plaintiff's property presently serves a public use, summary judgment on the causes of action for quiet title and for an injunction is proper, because opposition by the utilities to Pettis' demand for quiet title is deemed the equivalent of a cross-complaint for condemnation of a right of way and Pettis' remedy is limited to his action for damages.  (Frustuck v. City of Fairfax, 212 Cal.App.2d 345, 370–371, 28 Cal.Rptr. 357.)

 As to damages, a claim of permanent trespass is an adequate way to plead damages in inverse condemnation for the taking of a right of way for public use (Frustuck v. City of Fairfax, 212 Cal.App.2d 345, 364–365, 28 Cal.Rptr. 357), and Pettis has set forth such a claim.   Has he sustained it against a motion for summary judgment on the ground that his claim has no merit?

The property was first acquired by the State for use as a highway interchange between the Santa Ana Freeway and Firestone Boulevard under the State's authority to acquire property for freeway purposes and buy and sell and exchange additional property along the right of way to prevent the creation of odd-shaped and unusable remnants.  (Calif.Const., Art. I, sec. 141/212;  Code Civ.Proc., §§ 1237, 1238;  Sts. & Hy.Code, §§ 102, 104, 104.1, 118.)   By statute public utilities are entitled to place their lines across or along freeways and highways, subject to reasonable regulation by the Department of Public Works.  (Pub.Util.Code, § 7901;  Sts. & Hy.Code, §§ 708–711.)   The physical location of utilities within a freeway or highway is regulated by the Department through a system of permits, which specify the location of utility encroachments on the freeway or highway.  (Sts. & Hy.Code, §§ 117, 670 et seq.)   Such permits are classified as licenses, since they may be modified or revoked at anytime, although without prejudice to prior rights arising out of joint use agreements, franchise rights, or contractual obligations.  (Sts. & Hy.Code, §§ 673, 680, 703.)   Since the Department is necessarily required to coordinate the location of a large number of facilities in any construction project, it has been given the power to require physical relocation of existing utilities.  (Sts. & Hy.Code, §§ 673, 680.5–683, 690, 691, 703, 704, 706.)

The power to relocate existing utilities was exercised by the Department in this instance.   But four years after relocation the property in which the lines had been relocated was sold by the State as excess to plaintiff's grantors, the Bloom group.   In legal effect, the Department abandoned a portion of the freeway without expressly reserving from abandonment any easements for existing utilities.  (Sts. & Hy.Code, §§ 72, 72.5, 104.1, 837, 838.)   Normally when an abandonment is pending the Department notifies a utility of its proposed action and asks whether under the provisions of Streets and Highways Code, section 72.5, the utility wishes to raise its existing permit to the dignity of an easement.   In the absence of a response from the utility, the Department assumes that the utility is not interested in securing reservation of an easement.  (State of California, Division of Highways, Right of Way Manual, §§ 7.123, 7.118.)   This is the point at which someone or something slipped up, for the grant deed from the State to Pettis' grantors, the Bloom group, contained no reservations covering the existing underground utility lines.   On the paper record we are forced to accept Pettis' argument that the conveyance of the property by the State in fee simple without reservation extinguished the licenses conferred on the utilities by the terms of their encroachment permits (Sts. & Hy.Code, § 104.5) and failed to create easements by express grant or reservation.

 Did the utilities acquire easements in this property in some other fashion?   Their period of adverse use from 1957 to 1960 only amounted to three years and hence was insufficient to establish easements by prescription.   However, it is possible to acquire easements in property by implied grant or implied reservation.  (Civ.Code, § 1104.)   An easement by implied reservation may arise whenever there occurs a transfer of property put to an obvious, permanent, and beneficial use, of whose use the transferee has knowledge or is chargeable with knowledge.   A purchaser of such property with knowledge of its public use for right-of-way purposes may take the property subject to the creation of a servitude for the right of way.   In Southern Pacific Company v. Los Angeles Milling Co., 177 Cal. 395, 402, 170 P. 829, 832 the court stated the general rule:  “Where the owner of one tract of land sells part of it and that part is burdened by an obvious easement in favor of other persons, or other parts of the larger tract, an implied understanding arises that the burdens and correlative advantages shall continue as they existed before the separation of the title.”   The theory of the creation of an easement by implication is that the vendor in his conveyance impliedly reserves the right to continue the use, either for himself or for the benefit of third parties, and the purchaser impliedly consents to the burden of such use.

 Essentially, the doctrine of easement by implication employs a legal fiction to take care of things left undone which ought to have been done.   Under the fiction we formally declare that the creation of an easement was the unperformed intention of both parties to the conveyance, or would have been their intention if they had been reminded of it at the time.   For the owner of a dominant tenement, the implication of consent is easily arrived at, since normally he is the one to benefit.   The difficulty comes when we seek to impose a legally-created servitude on the servient owner whose estate is being diminished under the fiction that he consented to the reservation or would have consented to it had the subject been brought up.   To do this, we must find knowledge by the grantee of the pre-existing use of the property at the time of the conveyance or we must attribute such knowledge to him, for if he had no knowledge whatsoever of the use we would have no basis from which to infer his consent to the diminution of his estate.   Even the best of legal intentions and of judicial efforts to cure mistakes will not justify the taking of private property for the benefit of another without just compensation.   A purchaser of real property in fee takes the property subject only to servitudes of which he knows or should know.  (Pollard v. Rebman, 162 Cal. 633, 634–635, 124 P. 235;  Amerco, Inc. v. Tullar, 182 Cal.App.2d 336, 338, 6 Cal.Rptr. 71.)   Accordingly, the keystone to the doctrine of easement by implied consent is knowledge or notice by the servient owner of the pre-existing use of the property.   An easement by implication may arise from actual knowledge of the use of the property, or it may be based on constructive notice of a use of the property which is obvious, permanent, beneficial, and either visible or readily deducible.

Applying the principles of easement by implication to the present case we conclude that if the Bloom group, and its grantee Pettis, had actual knowledge of the presence of utility lines on the property, or found sufficient indications to put them on constructive notice of such presence, then the utilities possessed valid easements for their transmission lines which had been created by implied reservation at the time of the sale of the property to the Bloom group by the State.  (Civ.Code, § 1104;  Fristoe v. Drapeau, 35 Cal.2d 5, 9, 215 P.2d 729;  Palvutzian v. Terkanian, 47 Cal.App. 47, 52, 190 P. 503;  Kallenburg v. Long, 39 Cal.App. 731, 179 P. 730;  Nay v. Bernar, 40 Cal.App. 364, 180 P. 827;  Rosebrook v. Utz, 45 Cal.App.2d 726, 729, 114 P.2d 715.)

 Ordinarily, the critical issue of knowledge by the Bloom group and Pettis of the existence of the utility lines would have to be resolved as a triable question of fact and could not be determined on summary judgment.   (Jones v. Harmon, 175 Cal.App.2d 869, 879, 1 Cal.Rptr. 192.)   But plaintiff in his fifth amended complaint declared under oath that the Bloom group at all times therein mentioned had knowledge of the subsurface claims of the utility defendants and concealed its knowledge of the claims at the time it conveyed the property to him.   Knowledge of the subsurface claims implies knowledge of the presence of utility lines and their existing use.   Clearly, then, plaintiff's own pleading set out sufficient knowledge of existing utility uses by the Bloom group to support the creation of easements by implied reservation to cover existing utility uses at the time the Bloom group acquired the property.   Plaintiff's verified pleading along with the affidavits submitted by the utilities in support of their motion for summary judgment provide an ample showing that valid easements came into existence in 1957.   On such a showing, the burden then fell on plaintiff to tender proof that such easements were terminated in 1959 by reason of the conveyance of the property to him as a good faith purchaser without knowledge, actual or constructive, of the existing utility uses which gave rise to the original creation of the easements in 1957.   The burden on plaintiff to show his good faith purchase without knowledge is similar to that placed on the grantee of a second deed to show his lack of knowledge of an unrecorded first deed.  (Amerco, Inc. v. Tullar, 182 Cal.App.2d 336, 338, 6 Cal.Rptr. 71.)   But Pettis' pleading failed to aver his good faith purchase without knowledge of the transmission lines and of existing utility uses and thus failed to rebut the presumption that an easement once established continues to exist.  (Code Civ.Proc. § 1963(32);  Kidder v. Stevens, 60 Cal. 414, 419;  Metteer v. Smith, 156 Cal. 572, 574, 105 P. 735.)

It was, of course, possible that Pettis' pleading had been inadvertent or maladroit and that he would submit an affidavit on the motion for summary judgment correcting the omissions of his pleading and setting forth a different state of affairs.   Pettis did nothing of the sort.   His affidavit in opposition to the motion failed to deny knowledge of the underground lines and failed to deny knowledge of their use for utility purposes at the time of his purchase.   Rather, Pettis reiterated his allegation that the claims of the utilities to subsurface use had not been set out in the title reports he relied on when he bought the property.   His was a denial that he knew of the utilities' claims, not a denial that he knew about their transmission lines.   Lack of knowledge of a claim to property is quite a different matter from lack of knowledge of the use of property.   The trial court could properly infer that Pettis drew a distinction between knowledge of the underground lines and knowledge of formal claims of easement, that he did not predicate his suit on his ignorance of the transmission lines, but on the representations of the Bloom group and the title company that no formal claims of easement existed.   The verified complaint and Pettis' affidavit, from what they left unsaid, support the conclusion that Pettis knew about the underground lines but thought they were on the property without any basis in law and that he could either expel them or make them pay handsomely for the privilege of staying.

 We conclude that on the motion for summary judgment the defendants established without substantial contradiction all elements necessary to prove the creation of easements by implied reservation at the time of the conveyance of the property by the State to the Bloom group, and that Pettis, with full opportunity to rebut this showing, was unable or unwilling to do so.   We further conclude that these easements continued in existence at the time the property was acquired by Pettis because Pettis was unable to show a good faith purchase without knowledge of the existence of the transmission lines and their use for utility purposes.   We do not, of course, pass upon any claims between Pettis and the Bloom group.

The judgment is affirmed.

FLEMING, Justice.

ROTH, P.J., and HERNDON, J., concur.