Darr v. Lone Star Industries, Inc.

• Decision Date: 11 July 1979
• Citation: 157 Cal.Rptr. 90,94 Cal.App.3d 895
• Court: California Court of Appeals Court of Appeals
• Parties: James Monroe DARR, Plaintiff and Appellant, v. LONE STAR INDUSTRIES, INC., a Delaware Corporation, Defendant and Respondent. Civ. 17415.

Page 90

157 Cal.Rptr. 90

94 Cal.App.3d 895

James Monroe DARR, Plaintiff and Appellant, v. LONE STAR INDUSTRIES, INC., a Delaware Corporation, Defendant and Respondent.

Civ. 17415.

Court of Appeal, Third District, California.

July 11, 1979.

Rehearing Denied Aug. 8, 1979.

Hearing Denied Sept. 6, 1970.

Jones, Lamb, Jarboe & Boli, Michael S. Jarboe, Sacramento, for plaintiff and appellant.

Hardy, Erich & Brown, Van Longyear, John Quincy Brown, Jr., Sacramento, for defendant and respondent.

REYNOSO, Associate Justice.

This appeal follows a judgment dismissing plaintiff's personal injury action entered upon an order granting defendant's motion for nonsuit.

Plaintiff sustained injury when he dove into the American River from a low level bridge located a short distance downstream from the public bridge crossing at Sunrise Boulevard in Sacramento County. As a result of the dive, plaintiff suffers partial permanent paralysis. Following the accident, plaintiff filed a complaint for damages. ¹ At the close of plaintiff's case, defendant filed a motion for nonsuit based on Civil Code section 846, which effectively relieves an "owner of any estate in real property" of liability for injuries resulting from certain recreational activities, including water sports. ² The trial court granted the motion.

We have determined that, as a matter of law, defendant's interest in the bridge from which plaintiff dove and was injured did not amount to an "ownership of any estate in real property" within the meaning of Civil Code section 846. Consequently, defendant cannot invoke the protection of the statute. We reverse the order granting a nonsuit and remand the matter for further proceedings.

I

The following recitation of facts serves as useful background. At the time of the accident, defendant was aware that steel culverts and pilings placed in the river by its predecessor in interest, Pacific Cement Aggregate, Inc. (hereinafter "PCA"), resided beneath the surface of water below the bridge. Defendant was also aware that people commonly dove from the bridge. Indeed, from 1965 until the time of the accident, PCA, and later defendant, employed various precautionary measures to prevent the public's vehicular and pedestrian use of the bridge. Defendant and its predecessor posted "No Trespassing" signs, erected cable barriers at the end of the bridge, and employed guards during hauling periods. However, defendant made no attempt to warn the public of the specific danger posed by the submerged culverts and pilings.

Relevant to the issue which we find dispositive are these additional facts. The bridge in question was used by defendant to haul gravel from one side of the river to the other. The property upon which the bridge was built, the bed of the American River, is owned by the State of California. In 1965, Natomas Company (hereinafter "Natomas") owner of the property from which the gravel was hauled, obtained a "Right of Entry Permit" from the State Lands Commission. This document conveyed a right-of-way to Natomas to permit its access over the river at the place of the future bridge site. Subsequently, defendant asserts, Natomas granted PCA the right to enter its property to remove gravel. ³ PCA then constructed the bridge, apparently pursuant to its agreement with Natomas, in an effort to facilitate its gravel operation. Prior to the accident, defendant succeeded to PCA's interests, including whatever right of entry PCA had acquired from Natomas. Defendant remained in control of the bridge until September 10, 1974, when it quitclaimed its rights and interests in the bridge to the County of Sacramento.

II

A motion for nonsuit is the equivalent of a demurrer to evidence or motion for a directed verdict. (Code Civ.Proc., § 581c; e. g., Estate of Easton (1931) 118 Cal.App. 659, 662, 5 P.2d 635; Bush v. Wood (1908) 8 Cal.App. 647, 97 P. 709.) The trial court indulges in every legitimate evidentiary inference in favor of the party against whom the motion is directed and may grant the order only if, as a matter of law, such a reading of the facts do not sustain that party's case. (E.g., Estate of Lances (1932) 216 Cal. 397, 400, 14 P.2d 768.) Thus, we shall examine the viability of plaintiff's claim that defendant's interest in the real property at issue did not constitute ownership of any estate in real property.

The type of property interest granted Natomas from the State Lands Commission is of primary importance in this case: Defendant could not have succeeded to a property interest more expansive than what PCA had acquired from Natomas. Therefore, we scrutinize the state document granting the right of entry permit to Natomas to ascertain the nature of the interest conveyed: The document expressly permits a right of entry upon a strip of sovereign land in the bed of the American River. It further describes Natomas' interest in the riverbed as "a right of way easement with standard terms and conditions." (Emphasis supplied.) Natomas has an easement in the riverbed. The bridge was constructed to perfect that interest. In accordance with the accepted definition of an easement, Natomas' interest is in the land of another (the state), and defendant as owner of the interest is entitled to a limited use (bridge crossing) of the other's land. (Goble v. Dotson (1962) 203 Cal.App.2d 272, 277, 21 Cal.Rptr. 769; Zlozower v. Lindenbaum (1929) 100 Cal.App. 766, 770, 281 P. 102; Rest. of Property (1944) § 450, Comment (A).) Put simply, because the state granted a right of way over its property in the riverbed, it transferred an easement. (Marin County Hospital Dist. v. Cicurel (1957) 154 Cal.App.2d 294, 316 P.2d 351; Moakley v. Los Angeles Pacific Ry. Co. (1934) 139 Cal.App. 421, 34 P.2d 218.) In circumstances such as these, in which an entity obtains a right of way over state waterbeds, our Supreme Court defines the nature of the property interest acquired as follows: "(B)efore a bridge can be constructed over (state lands underlying navigable waters) an Easement must be secured from the state." (Emphasis added.) (Southlands Co. v. City of San Diego (1931) 211 Cal. 646, 664, 297 P. 521, 529.)

The document did not transfer a leasehold to Natomas. A leasehold vests exclusive possession of the property to the lessee, even against the owner of the fee (Von Goerlitz v. Turner (1944) 65 Cal.App.2d 425, 429, 150 P.2d 278) and is based on a privity of estate between lessor and lessee. (See Ellingson v. Walsh, O'Connor & Barneson (1940) 15 Cal.2d 673, 104 P.2d 507; Samuels v. Ottinger (1915) 169 Cal. 209, 146 P. 638, Bowman, Ogden's Revised California Real Property Law (1974) Vol. I, p. 491.) By contrast, the interest acquired by Natomas did not divest the state of its possession in the riverbed. Nor does the use of the words "leased for two years" in the state document transform Natomas' interest into a leasehold. An easement may be conveyed for any length of duration. The term "lease" in this context, like the terms "fee simple absolute" or "fee simple defeasible" merely describes the length in duration of the interest conveyed. It does not describe the nature or quality of the interest conveyed. (See Callahan v. Martin (1935) 3 Cal.2d 110, 43 P.2d 788; Renden v. Geneva Development Corp. (1967) 253 Cal.App.2d 578, 61 Cal.Rptr. 463; Irvin v. Petitfils (1941) 44 Cal.App.2d 496, 112 P.2d 688.)

Defendant agrees that Natomas was granted an easement. But it misconstrues the law when it maintains that because an easement is an interest in real property, it necessarily constitutes an estate in real property. ⁴ An interest in land is not presumptively an estate in land: the term estate is confined to those interests in land which are or may become possessory. (E. g., Rest. of Property (1936), § 9; Bowman, supra, at pp. 25-26; Powell on Real Property, Estates (1977) Vol. II, ch. 12, § 172.) The California Civil Code, for example, lists four types of estates in real property, all of them possessory interests. ⁵ Defendant correctly notes that an easement is an interest in real property. (See Witkin, Summary of Cal.Law, Real Property, § 341, pp. 2041-2042.) However, they fail to note that an easement is a nonpossessory interest in real property. (Elliott v. McCombs (1941) 17 Cal.2d 23, 109 P.2d 329.) Indeed, that an easement involves use of another's land evidences its nonpossessory character. As such, it cannot be an estate in real property. (See 3 Witkin, supra, Real Property, § 340; Rest. of Property, supra, § 450, Comment (A).) Powell states the rule succinctly: "While an easement is clearly an 'interest in land' . . . it is equally clearly never an 'estate in land.' " (Powell, supra, Vol. III, ch. 34, § 405, Easements and Licenses.)

We conclude that, as a matter of law, any interest that defendant could have had in the right-of-way over the riverbed was nonpossessory, hence, could not have constituted an estate in real property. Thus, the motion for nonsuit based on section 846 was improperly granted.

We reverse the order granting the nonsuit and remand for further proceedings consistent with this opinion.

PUGLIA, P. J., concurs.

EVANS, Associate Justice, dissenting.

I dissent.

The majority conclude that a "right of entry" or easement granted by the State of California upon which a bridge over the American River was constructed by the permittee or holder of the easement is not an "estate in real property" as envisioned by Civil Code section 846. It is my conviction that under the law of this state, they are wrong. They narrowly interpret the phrase "owner of any estate in real property" in the manner suggested by the injured plaintiff. Plaintiff and the majority seem to suggest that the phrase is defined by Civil Code section 761. ¹ Again, I conclude to the contrary. The section is not definitive of the word "estate." It is merely the description of four general types of estates in the context of their duration. ²

For example, it has...