ROTHSCHILD v. WOLF (1941)

Plaintiffs brought this action for a declaratory judgment establishing the rights of the parties in certain real property fronting on Main street in the city of Stockton. Defendants bring this appeal from a judgment in favor of plaintiffs.

The plaintiffs, J. B. Rothschild and S. V. Rothschild, are the owners of the easterly portion of lot five on Main street, and the defendant, Franklin Wolf, is the owner of lot seven, the adjoining property. In 1905 Andrew Wolf, the father of this defendant, was the owner of both pieces of property. During that year he erected certain improvements upon the lots in question which, the court found, consisted of two separate structures, two stories in height and extending over both lots. The second floor of both buildings was designed to be used for business and professional offices. A hallway, parallel to Main street, ran the entire length of the second floor from the end of one building to the end of the other, and the sole means of access to this hallway from Main street was by means of a stairway in the building located on lot five, plaintiffs' property. After the death of Andrew Wolf in 1911, a decree of distribution was entered by the superior court of San Joaquin county in accordance with an agreement dividing the property among his heirs. The decree provided in part: ‘* * * that the stairway on Main Street then and now used for the purposes of ingress and egress to and from the properties hereinbefore mentioned, and fronting on Main Street of Stockton, California, should be kept and maintained as a stairway for the use of all the properties hereinbefore mentioned * * * so long as the Lot on which said stairway is now built is occupied by the building on said Lot, of which building said stairway forms a part.’ The stairway on plaintiffs' property has since been used jointly as a means of entrance to the second fllor hallway by the tenants of both buildings, and it is this arrangement which plaintiffs seek the right to terminate.

Plaintiffs alleged that the building on their property has become obsolete and that they desire to destroy the building, together with the stairway, and erect a modern building upon the premises. A judgment was asked declaring the rights of the parties and decreeing that the plaintiffs might remove their building, including the stairway, and that thereafter all rights on the part of the defendants in plaintiffs' land should terminate. Defendants alleged in their answer that the stairway on plaintiffs' property was the only direct means of entrance to the second floor of their property and that, under the terms of the decree of distribution plaintiffs had no right to terminate the stairway easement by a voluntary destruction of the building on lot five. In a cross-complaint defendants prayed for a decree adjudging that the stairway in the building on lot five should be maintained for the use of defendants' property on lot seven until the building on plaintiffs' property should be destroyed without the fault of the plaintiffs or their successors in interest. The trial court rendered its judgment decreeing that plaintiffs might remove the building upon their premises, including the stairway, and that the rights of the defendants in the stairway should terminate upon the removal of plaintiffs' building.

In this appeal defendants urge that the improvements constructed by Andrew Wolf in 1905 constituted a single building extending over both lots five and seven. Considerable evidence was introduced upon this question at the trial, however, and the finding of the court that the improvements constituted two separate buildings has substantial support in the record. The only question requiring our consideration, therefore, is the determination of the rights of the parties under the terms of the decree of distribution in the estate of Andrew Wolf. Defendants contend that the language of the instrument creates an easement which cannot be terminated by the voluntary destruction of plaintiffs' building.

It is established that the right to use a stairway on the property of another constitutes a grant in the nature of an easement. The easement, however, is in the building rather than in the land. Thus, it is held that the destruction of the building in which the stairway is located also extinguishes the easement since there is no longer a servient tenement in existence upon which the right can operate. Cohen v. Kutner Co., 177 Cal. 592, 171 P. 424, L.R.A.1918D, 410; Muzio v. Erickson, 41 Cal.App. 413, 182 P. 974; Civ.Code, § 811(2); Brechet v. Johnson Hardware Co., 139 Minn. 436, 166 N.W. 1070, L.R.A.1918D, 691; Shirley v. Crabb, 138 Ind. 200, 37 N.E. 130, 46 Am.St.Rep. 376; Rudderham v. Emery Bros., 46 R.I. 171, 125 A. 291, 34 A.L.R. 602; 9 Cal.Jur. 959; 19 C.J. 955; 17 Am.Jur. 1024; 2 Thompson, Real Property, 1939, p. 362; 34 A.L.R. 606; 1918, 6 Cal.L.Rev. 299. Defendants do not contest the validity of the rule set forth in the cases cited, but they contend that the rule is operative only where the servient tenement is destroyed without the fault or consent of the owner. Thus, admitting that the destruction of plaintiffs' building by natural forces would terminate defendants' stairway easement by destroying the servient tenement, it is argued that the plaintiffs cannot accomplish the same result by a voluntary destruction of the building.

Most of the cases in which the courts have held that destruction of the building constituting the servient tenement extinguishes the stairway easement have involved destruction by natural causes over which the servient owner had no control. See 34 A.L.R. 606. But the question of a voluntary destruction of the servient tenement in a similar situation was presented to the court in Union National Bank of Lowell v. Nesmith, 238 Mass. 247, 130 N.E. 251. In that case two adjoining buildings were erected in 1852 with a common entrance, stairways and landings. A successor in title to one of the buildings proposed to tear it down and erect a new one without making provision for the common entrance and stairways. The court held, in 1921, that this could be done, saying (238 Mass. page 249, 130 N.E. page 252): ‘Where there is an easement of way through a building as distinguished from such right upon and over land without reference to a structure thereon, the incorporeal hereditament is measured and limited by the existence of the structure in which it only can exist and be exercised; and the person owning the easement by the evident intent of the parties has no easement in the servient estate apart from the building. If the structure ceases to exist, the right ends as there is nothing upon which it can be exercised. * * * In the opinion of a majority of the court, the easement is also lost when the building is destroyed by the intentional act of the owner of the servient estate. The person entitled to such right has no interest in the land as such. * * * He cannot compel the servient owner to maintain thereon a building, and restrain him in the use of his land * * *. The parties did not intend to and did not create a right of any greater permanency in the use of the petitioner's building than was assured by the character of the structure and the likelihood that the owner would not for a considerable time change the manner of the use of his premises. This is the reasonable construction of their rights.’ See Cotting v. City of Boston, 201 Mass. 97, 87 N.E. 205; 3 Tiffany, Real Property, 3d Ed., 1939, p. 354. Very few cases have discussed the problem of voluntary destruction, and the question has not previously been passed upon in this state. Defendants rely upon certain language in Muzio v. Erickson, supra, as indicating that the rule is limited to destruction of the servient building without the fault of the owner, but the court in that case was dealing with an accidental destruction by fire and did not have in mind the specific problem here considered. An easement of this kind requires both a dominant and a servient tenement and a complete destruction of the servient tenement destroys the easement because one of the requisite elements of such a property interest is lacking. Cf. Bonney v. Greenwood, 96 Me. 335, 341, 52 A. 786; Day v. Walden, 46 Mich. 575, 586, 10 N.W. 26; Jones, Easements, p. 673, § 838. This is true even though the interest granted has been described as one which was to endure ‘forever’. Cohen v. Kutner Co., supra. The conclusion is inescapable, therefore, that the grantee of a stairway easement who possesses merely a right measured by the existence of the particular structure has no property interest which survives the total destruction of the servient tenement, even though that destruction be accomplished by an act of the owner.

In a particular case, however, the question whether the owner of the servient building may properly proceed to destroy it depends upon the intention of the parties. Assuming, under the principles set forth above, that the stairway easement would be terminated by any destruction of the servient structure, the easement owner might nevertheless be entitled to the aid of a court in preventing such destruction or in recovering damages where the destruction is in violation of the clear intention of the parties. In the present case the instrument provides that ‘the stairway on Main Street * * * should be kept and maintained as a stairway for the use of all the properties * * * so long as the Lot on which said stairway is now built is occupied by the building on said Lot, of which building said stairway forms a part.’ This language in no way limits the power of the owner of the servient structure in dealing with his own property, nor does it suggest that he must maintain the building in its present form for any particular period of time. In the absence of a clear indication of the intent of the parties, it is impossible to imply, as suggested by defendants, that the parties intended the plaintiffs' building to be maintained in its present form, despite changing circumstances, pending its destruction by natural causes. The imposition of affirmative duties upon an owner of land should result only from a clear expression of the intent of the parties, and should not be implied in the absence of such an expression. See Coulter v. Sausalito Bay Water Co., 122 Cal.App. 480, 494, 10 P.2d 780; Civil Code, § 806. The agreement itself does not indicate that any such obligation is imposed upon the owner of the servient building, and there are strong objections of policy to the creation of such an affirmative burden of implication. An implied obligation to maintain the building until its destruction by natural causes or by order of the public authorities might easily result in a situation where the building could neither be disposed of nor replaced for a considerable period of time, contrary to the settled policy against undue restrictions upon the free use and alienation of property. See Friesen v. City of Glendale, 209 Cal. 524, 529, 288 P. 1080; 7 Cal.Jur. 733; 3 Tiffany, Real Property, 1939, p. 474. Furthermore, the implication of such an obligation might conceivably result in the building's reaching such a dangerous condition as to subject the owner to liability in tort to persons who might be injured in its occupation or use. It follows, therefore, that no such obligation can be implied from the agreement involved here.

A far more reasonable interpretation of the instrument is that the parties intended the stairway easement to endure for the normal life of plaintiffs' building. Both buildings were new at the time the agreement was entered into, and the stairway easement was designed to endure for a period measured by the character of plaintiffs' structure and the probability that it would not be replaced for a considerable period of time. See Union National Bank of Lowell v. Nesmith, supra. The arrangement thus contemplated has in fact been carried out, and we can find no basis upon which defendants are entitled to the intervention of a court to prevent the contemplated improvements upon plaintiffs' property.

It was not error to admit evidence of the depreciation and obsolescence which has taken place in plaintiffs' building. The granting of a declaratory judgment lies within the discretion of the trial court (Code of Civ.Proc., § 1061), and the plaintiffs cannot be penalized for attempting to show that the action was brought in good faith.

The judgment is affirmed.

I dissent.

It is clear to me that the terms of the agreement as reflected in the decree of distribution are for the benefit of both parties and that each is bound to respect the rights of the other, at least to the extent of precluding a voluntary destruction of the other's right.

The agreement provides ‘that the stairway on Main Street then and now used for the purposes of ingress and egress to and from the properties hereinbefore mentioned, and fronting on Main Street in Stockton, California, should be kept and maintained as a stairway for the use of all the properties hereinbefore mentioned * * * so long as the lot on which said stairway is now built is occupied by the building on said lot, of which building said stairway forms a part’. I have italicized the portions of the agreement creating the servitude to emphasize the point that it was unquestionably the intention of the parties that each should continue to have the use and benefit of the stairway as long as the building or any part thereof dependent upon the use of the stairway occupies the lot and is reasonably fit for use, and that neither party may deny to the other the right to such use.

The covenant in the agreement is sufficiently definite and certain. The entire lot is occupied by the building of which the stairway is a part. There is no showing that the building is unfit of profitable occupancy. It is of good construction, although not in conformity with restrictions not prescribed for new buildings. In my opinion, the District Court of Appeal for the Third Appellate District was correct in declaring that under the agreement of the parties the right of the defendants would cease in the event the building be destroyed without the fault of the owner of the servient tenement, and in modifying the judgment accordingly. Rothschild v. Wolf, 104 P.2d 685.

GIBSON, Chief Justice.

We concur: EDMONDS, J.; TRAYNOR, J.; SPENCE, J. pro tem.