Smith v. Kraintz
| Decision Date | 23 March 1962 |
| Citation | 201 Cal.App.2d 696,20 Cal.Rptr. 471 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Roland A. SMITH, Petitioner and Appellant, v. R. J. KRAINTZ, Respondent. Civ. 19848. |
MacDonald, Brunsell & Walters, William Walters, Oakland, for appellant.
John A. Nejedly, Dist. Atty., by Robert Brunsell, Deputy Dist. Atty., Martinez, for respondent.
Plaintiff appeals from a judgment denying his petition for writ of mandate to compel defendant, building inspector of the County of Contra Costa, to issue a building permit for a structure on a lot owned by plaintiff. A building permit was issued on September 29, 1960, but was revoked on October 7, 1960 on the ground that the application for the permit had not disclosed the existence of an easement, or right of way, for the benefit of the public generally and of Bethel Island County Fire Protection District in particular.
In 1959, plaintiff bought a lot on the easterly part of which there is a ramp leading to a levee. The building he wishes to erect would cover part of the ramp and would make impossible its use for access by the public. Plaintiff testified that, although he was told by his grantor of the existence of the ramp, he was not told that it was an open right of way, and that he understood it to be a personal ramp of the grantor's. There is nothing in the record which either clearly admits or clearly contradicts this testimony, and the judgment was not based on prior knowledge, actual or constructive, by the grantee, of public use of the ramp.
The court made findings and conclusions of law that a right of way belonged to the public because of (1) reservation of said right of way in a deed to Goodrich, plaintiff's grantor, from Goodrich's grantor, Hollender, (2) open and notorious user by the public and especially by the fire department since 1952, or at the latest 1953, and (3) dedication by Hollender and Goodrich and acceptance by the public of the right of way. (Throughout this opinion, the names Hollender and Goodrich are given in the singular, for convenience, although each of these parties was married and their spouses are parties.)
Prior to 1952, Hollender owned the property, and in that year he sold it to Goodrich, and placed in the deed a reservation of a 'non-exclusive right of way for road purposes and public utilities.' The reservation described the portion of the lot now used for the ramp, but at that time there was no ramp, nor was there a road, but in 1952 or 1953 a public road was constructed adjacent to the property, and from this road the ramp was built to the levee. Mr. Hollender, the former owner, contributed the sand for the ramp, neighboring property owners contributed funds for the fill, and the county supplied a culvert.
From the time of its construction, the ramp has been used by 'anyone, or everyone,' according to Goodrich's testimony, and without asking permission from Goodrich, because, he testified, it was the understanding with the immediate property owners when they helped to build the road and ramp, that the ramp was to be used by the public. Specifically, it was used by the fire department for access to the levee.
The deed from Goodrich to Smith does not contain any reservation, but describes the entire lot.
Before discussing the subject of dedication, we advert to appellant's contention that revocation of the permit was improper, even if there were an easement, because there was no fraud in the applying for it. This is without merit. Ordinance No. 1372 of the County of Contra Costa permits revocation of building permits for 'fraud, misrepresentation or false statement contained in an application.' There was a false statement, although not a fraudulent one, in the application for the building permit, wherein plaintiff described himself as the owner of the property. We have come to the conclusion, as set forth below, that he was not the owner in the sense referred to in the application, because of the existence of the easement. The application contains a warning that the permit 'does NOT INCLUDE any construction within the Public Right of Way.' Thus, there having been no building following the permit, and the permit having contained a false statement, the proper authority, in this case the chief building inspector, could revoke it (Trans-Oceanic Oil Corp. v. City of Santa Barbara, 85 Cal.App.2d 776, 783, 194 P.2d 148.) It is true that there is no express representation by the applicant that he is the owner of the property, but simply his description as owner in the application, but we find this sufficient to constitute, within the meaning of the...
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