Continental Baking Co. v. Katz

Citation67 Cal.Rptr. 761,439 P.2d 889,68 Cal.2d 512
CourtUnited States State Supreme Court (California)
Decision Date30 April 1968
Parties, 439 P.2d 889 CONTINENTAL BAKING COMPANY, Plaintiff, Cross-defendant and Respondent, v. William KATZ et al., Defendants, Cross-complainants and Appellants. L.A. 28728.

Page 761

67 Cal.Rptr. 761
68 Cal.2d 512, 439 P.2d 889
CONTINENTAL BAKING COMPANY, Plaintiff, Cross-defendant and Respondent,
William KATZ et al., Defendants, Cross-complainants and Appellants.
L.A. 28728.
Supreme Court of California,
In Bank.
April 30, 1968.

Page 763

[439 P.2d 891] [68 Cal.2d 516] William Katz, in pro. per.

Stapleton & Isen, F. G. Stapleton and Gerald F. Miller, Los Angeles, for plaintiff, cross-defendant and respondent.

SULLIVAN, Justice.

In this action in which both parties seek injunctive relief in respect to an easement, defendants and cross-complainants 1 (hereafter referred to collectively as [68 Cal.2d 517] Katz) appeal from orders granting plaintiff and cross-defendant Continental Baking Company (Continental) a preliminary injunction and denying Katz a preliminary injunction. 2

We granted a hearing in this court after decision by the Court of Appeal, Second Appellate District, Division Five for the purpose of giving further consideration to the issues raised, including certain issues not discussed by the Court of Appeal. After a thorough examination of the cause, we have concluded that the Court of Appeal has correctly resolved the threshold issue as to the admissibility of extrinsic evidence to explain the instrument granting the easement involved. Accordingly that portion of

Page 764

[439 P.2d 892] the opinion of the Court of Appeal, authored by Presiding Justice Kaus and concurred in by Justices Hufstedler and Stephens, dealing with such issue is adopted (with some additional discussion of our own) as and for the opinion of this court on the threshold issue. Such portion of the opinion (with appropriate deletions and additions as indicated) is as follows: 3

The pivotal issue in this lawsuit is this: did a grant deed dated December 29, 1941, from the predecessor in interest of defendants and cross-complainants William Katz et al., (Katz) to plaintiff and cross-defendant, Continental Baking Company, (Continental) create an easement for ingress and egress merely to a small parcel of land conveyed to Continental by the same deed, or was the easement appurtenant to a much larger parcel also owned by plaintiff.

[68 Cal.2d 518] We illustrate the problem by the sketch below. It is not to scale and omits unnecessary details. Certain facts mentioned in this opinion in later pages will become clearer by reference to the sketch.


These facts are not in dispute: Continental has owned parcel A since 1929 and has operated a bakery thereon. Parcel B was, in 1941, owned by California Consumers Corporation (Consumers). On December 29 of that year Consumers, by grant

Page 765

[439 P.2d 893] deed, conveyed to Continental certain interests in real property which in that deed are called 'parcel 1' and 'parcel 2' respectively. Parcel 1 (see sketch) was described by metes and bounds. After the legal description the deed recites: 'Said parcel of land has no frontage on any public street of record.'

Without any connective words, the deed then goes on to describe parcel 2 as follows: 'A non-exclusive easement for ingress and egress over a strip of land 20 feet wide * * * described as follows: * * *.' Then there follows a metes and bounds description of the area covered by the easement, which is 232.66 feet long. Consumers reserved to itself the right to build a structure over the easement, with a minimum ground clearance of 18 feet and the right 'to support such structure with posts and walls located on such strip in such a way as to interfere as little as practicable with said right of ingress and egress.' No dominant tenement is described as such.

[68 Cal.2d 519] By various other conveyances in 1941, 1942 and 1943 Continental acquired property south of parcel 1. This property is designated as parcel C on the sketch.

In 1952 Consumers deeded parcel B to Katz. Located on the westerly portion of that parcel is an office building. Parking for the tenants is provided immediately to the east of the building and west of the easement.

Until 1962 the bakery's west wall was located 20 feet east of the eastern line of the easement and 16 feet south of the northerly property line of parcel A. That year Continental enlarged the bakery by extending it 20 feet further west, right up to the easement. This 20 feet (sic) strip east of the easement had heretofore been used as a driveway. 4 At the same time the 16 feet between the bakery and the street were converted from a grassy, bushy strip to a concrete loading area. It will be observed that if, as Katz contends, the easement serves only parcel 1, it may not be used to reach this loading area from the street.

In January 1963, Katz, by letter, informed Consumers that he considered parcel 2 as an easement appurtenant to parcel 1 only; further, the letter took essentially the same position which he is maintaining at the present time with respect to what he considered an overburdening of the easement by Continental.

Just what if anything transpired between the parties thereafter, we do not know. It is undisputed that in May 1965 Katz threatened to erect a low wall or fence from the northerly[68 Cal.2d 520] property line along the easterly edge of the easement. (See sketch.) This wall, while it would not necessarily have interfered with any longitudinal traffic along the easement, would have made it impossible to drive a vehicle directly from the concrete loading

Page 766

[439 P.2d 894] area onto the easement. A few chalk marks on the ground in the area of the proposed wall, on the basis of which Continental obtained a temporary restraining order, thus dramatically and cheaply pinpointed the controversy.

The present appeal is from an order granting a preliminary injunction restraining Katz from interfering with Continental's use of the easement and an order denying a preliminary injunction to Katz. 5 An appeal from the order granting Continental a temporary restraining order was also noticed, but since that order became merged in the preliminary injunction, the appeal is moot and must be dismissed. (Scovill Mfg. Co. v. Skaggs etc. Drug Stores, 45 Cal.2d 881, 883, 291 P.2d 936.)

At the hearing it developed that the attorneys for Continental thought that they could based their claim that the easement was servient to parcel A as well as to parcel 1 on a 1924 deed from the then owner of parcel A to Katz' and Consumers' predecessor in title, Globe Ice Cream Company (Globe). That deed conveyed parcel B to Globe and contained a clause, called a condition subsequent, which would have prohibited Globe from erecting any building or structure on the 20-foot strip in question. It also provided that the strip was not to be used 'for any purpose except for ingress, egress, parking facilities and allied uses * * * except fences of concrete, iron, or concrete and iron, not to exceed 3 feet in height.' Katz successfully objected to any consideration of that deed as an easement, claiming correctly that plaintiff's complaint was not based thereon. An attempt to be permitted to amend the complaint was unsuccessful.

The key ruling at the hearing was to the effect that plaintiff was permitted to introduce extrinsic evidence to show that parcel 2 was intended to be an easement for ingress and egress to parcel A as well as to parcel 1. We think that this ruling which, as we see it, is the basis legal problem in the lawsuit, was correct. (Katz' position in this ruling may be [68 Cal.2d 521] stated as follow: that when a deed purporting to grant an easement is uncertain or ambiguous as to whether the easement is appurtenant or in gross or, if it is appurtenant and the dominant tenement is not stated, as to the land to which the easement is appurtenant, evidence Aliunde the deed is admissible to resolve such uncertainty or ambiguity; that, on the contrary, where, as here, there is no question as to whether the easement is appurtenant or in gross and where the dominant tenement is stated in the deed, there is no uncertainty or ambiguity, and extrinsic evidence is not admissible to vary the terms of the deed. In other words, Katz contends that where, as in the instant case, the deed granting the easement also conveys a parcel of land without making any reference thereto as the dominent tenement of the easement, it must be concluded as a matter of law that such parcel is the sole and exclusive dominant tenement and that the easement cannot be construed as appurtenant to any other adjoining land owned by the grantee but not mentioned in the deed.

[Easements of way may be either appurtenant or in gross (Civ.Code, § 801, subd. 4, § 802, subd. Five] and where by grant the extent thereof is determined by the terms of the grant. (Civ.Code, § 806; see Laux v. Freed (1960) 53 Cal.2d 512, 524--525, 2 Cal.Rptr. 265, 348 P.2d 873; Whalen v. Ruiz (1953) 40 Cal.2d 294, 302, 253 P.2d 457; Rest., Property, §§ 471, 482, 483.) 'Grants are to be interpreted in like manner with contracts in general. * * *.' (Civ.Code, § 1066; see Laux v. Freed, supra, 53 Cal.2d 512, 523, 2 Cal.Rptr. 265, 348 P.2d 873; Elliott v. McCombs (1941) 17 Cal.2d 23, 29, 109 P.2d 329; Paddock v. Vasquez (1953) 122 Cal.App.2d 396, 399--

Page 767

[439 P.2d 895] 400, 265 P.2d 121; Kerr v. Brede (1960) 180 Cal.App.2d 149, 151, 4 Cal.Rptr. 443; Wall v. Rudolph (1961) 198 Cal.App.2d 684, 692, 18 Cal.Rptr. 123, 3 A.L.R.3d 1242; Kerr Land & Timber Co. v. Emmerson (1965) 233 Cal.App.2d 200, 219, 43 Cal.Rptr. 333.)

[Although extrinsic evidence is not permitted in order to add to, detract from, or vary the terms of an integrated written agreement, extrinsic evidence is admissible in order to explain what those terms are. (Masterson v. Sine (1968] 68 A.C. 223, 226--227, 65 Cal.Rptr. 545, 436 P.2d 561; Nofziger v. Holman 1964) 61 Cal.2d 526, 528, 39 Cal.Rptr. 384, 393 P.2d 696; see Lauz v. Freed, supra, 53 Cal.2d 512, 522, 527, 2 Cal.Rptr. 265, 348 P.2d 873...

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