Ajax Magnolia One Corp. v. Southern Cal. Edison Co.

• Decision Date: 09 February 1959
• Citation: 334 P.2d 1053,167 Cal.App.2d 743
• Court: California Court of Appeals Court of Appeals
• Parties: AJAX MAGNOLIA ONE CORPORATION, a corporation, et al., Plaintiffs and Respondents, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant and Appellant. Civ. 5959.

Page 1053

334 P.2d 1053

167 Cal.App.2d 743

AJAX MAGNOLIA ONE CORPORATION, a corporation, et al., Plaintiffs and Respondents, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant and Appellant.

Civ. 5959.

District Court of Appeal, Fourth District, California.

Feb. 9, 1959.

Hearing Denied April 8, 1959.

Rutan, Lindsay, Dahl, Smedegaard, Howell & Tucker, Milford W. Dahl, Richard M. Barker, Santa Ana, Bruce Renwick and Victor E. Koch, Los Angeles, for appellant.

Mize, Larsh, Mize & Hubbard, Santa Ana, for respondents.

STONE, Justice pro tem.

During the year 1931 the defendant and appellant Southern California Edison Company, a corporation, obtained right of way easements over three parcels of real property in Orange County for the purpose of constructing and maintaining power lines over and across the land described therein. At that time the property consisted of three separately owned parcels all being used for agricultural purposes. During the intervening years the property was sold and subdivided into residential lots.

The plaintiffs, who own lots in the subdivision, filed an action in declaratory relief contending that they had the right to construct fences, clothes lines, patios, fish ponds, swimming pools, swings, and gymnasiums, and to plant trees on the right of way. The defendant denied plaintiffs' right to erect or place any of the enumerated improvements on the right of way and contended that it had the right of full, complete, unobstructed and unrestricted use of the strip of land 90 feet in width covered by the easement.

The court found and by its judgment decreed as follows:

'That the plaintiffs as owners of the servient tenement may not place, construct or install any building or other structure upon the real property included within the description of the easement owned by the defendant, Southern California Edison Company, or in any way obstruct the necessary and convenient use of said easement and right of way by said defendant without the written consent of the said defendant.'

The court also found,

'That the right to construct fences by the plaintiffs upon or over the real property included within the description of the easement owned by the defendant Southern California Edison Company is given by the terms of the easement with the right to the said defendant to install and use gates.'

Plaintiffs did not appeal from the portion of the judgment prohibiting them from building any sort of structure other than a fence upon the easements but the defendant has appealed from that portion of the judgment which permits the construction of fences subject to the right to install and use gates.

Looking first at the two agreements granting the Edison Company a right of way, we find them identical insofar as the language pertinent to this case is concerned. The clauses which define the purposes of the easement and the rights of the grantee are as follows:

'* * * the Grantor hereby gives and grants to the Grantee, its successors and assigns, the right, privilege and authority to construct, erect, alter, enlarge, improve, repair, remove, replace, operate and maintain electric transmission lines consisting of steel or wooden towers or steel or wooden poles, with necessary guys, foundations and anchors, together with overhead and/or underground electric transmission wires, ground cables, telephone and telegraph wires, with insulators and cross-arms placed on said towers or poles, and other necessary or convenient appurtenances connected therewith, across, over, under and upon a strip of land, * * *

'1. That the Grantee, its successors and assigns, shall at all times have ingress to, and egress from, said land for the purpose of constructing, repairing, renewing, altering, changing, enlarging, removing, replacing, patrolling and operating said transmission lines. (Said right of entry may be by trucks, automobiles, or other vehicles, or by foot, as may suit the convenience of the Grantee.) * * *

'6. That the Grantor, his heirs or assigns, will not allow or permit any building or other structure to be erected or placed within the boundaries of said land and/or right-of-way strip, except such as shall be approved in writing by the Grantee, its successors or assigns, or allow or permit any accumulation of explosive or inflammable material within the lines of said land and/or right-of-way strip or so near thereto as to constitute, in the opinion of the Grantee, its successors or assigns, a menace or danger to said transmission lines * * *

'8. That the Grantor, his heirs or assigns, shall have the right to use the lands affected by this easement in any way not inconsistent herewith; but it is understood and agreed that it is the intention of the parties hereto to grant to the Grantee, its successors and assigns, the fullest rights necessary or convenient to enable them to use the same without interference for the purposes hereinbefore set out. This easement shall include any and all rights necessary or convenient over, under and upon said land which the Grantee shall desire to exercise in connection with the construction, maintenance and operation of said transmission lines, whether specifically mentioned herein or not * * *'

The clause concerning gates in fences which the trial court construed as modifying the foregoing grant reads:

'The Grantee shall have the right to install and use gates in any fence or fences which shall now or hereafter be constructed across any portion of said land and/or right of way stip * * *

The third easement with which this appeal is concerned was acquired by deed rather than by agreement but the question on appeal is essentially the same. The clauses of the deed expressing the nature of the easement and the rights of the grantee are as follows:

'* * * those permanent and exclusive easements and rights of way to construct, reconstruct, maintain, operate, enlarge, improve, remove, repair and renew an electric transmission line consisting of a line of steel towers, poles, and/or other structures, wires, cables, including ground wires, both overhead and underground, and communication circuits, with necessary and convenient foundations, guy wires and anchors, insulators and cross-arms placed on said structures, and other appurtenances connected therewith, convenient and necessary for the construction maintenance, operation, regulation, control and grounding of electric transmission lines for the purpose of transmitting, distributing, regulating, using and...