Goble v. Dotson

• Decision Date: 07 May 1962
• Citation: 21 Cal.Rptr. 769,203 Cal.App.2d 272
• Parties: Farris Carter GOBLE and Melva L. Goble, his wife, Plaintiffs and Respondents, v. Earl DOTSON and Maxine Dotson, his wife, Defendants and Appellants. Civ. 20170.
• Court: California Court of Appeals Court of Appeals

Page 769

21 Cal.Rptr. 769

203 Cal.App.2d 272

Farris Carter GOBLE and Melva L. Goble, his wife, Plaintiffs and Respondents, v. Earl DOTSON and Maxine Dotson, his wife, Defendants and Appellants.

Civ. 20170.

District Court of Appeal, First District, Division 1, California.

May 7, 1962.

Burce B. Bruchler, Lakeport, for appellants.

Phil N. Crawford, Lakeport, for respondents.

BRAY, Presiding Justice.

In an action containing a count for specific performance and one for damages, the court denied specific performance but awarded plaintiffs $2,500 damages. Defendants appeal.

QUESTIONS PRESENTED.

1. Is the alleged agreement barred by section 1971, Code of Civil Procedure?

2. Was parol evidence thereof admissible?

RECORD.

Defendants owned real property located on the shore of Clear Lake. August 15, 1956, after preliminary negotiations, plaintiffs and defendants signed an agreement in which plaintiffs agreed to purchase and defendants agreed to sell 'one lot description to be furnished when surveyed' for $7,000, payable $50 per month including interest at 6 per cent; buyer could pay balance at any time. An escrow was opened in a title company, a survey was made and a preliminary title report obtained. On November 13, 1956, defendants executed and delivered a deed of the property to plaintiffs. In about a year and a half plaintiffs completed payment on the promissory note they had given in connection with the purchase. The deed provided in part: 'This deed is given and accepted upon the condition that no piers, boat houses or boat harbors shall be constructed, erected or maintained' on the property. The deed also provided a grant of 'a non-exclusive right of way for road purposes over and across a 12 foot right of way * * *.'

Over objection, testimony was introduced concerning an oral understanding of the parties that as part of the purchase of the property, plaintiffs would get certain boat berthing rights in a nearby lagoon plus the right to obtain water pumped from a well owned by defendants. Defendant Earl Dotson told plaintiffs that the Dotson land was being divided into seven or eight parcels, each parcel to have the same restriction on the use of the waterfront, but each parcel would be provided with two boat spaces on the lagoon, each lot owner to have the same boat rights as the other owners. A communal boathouse was to be built, but its exact location on the lagoon was uncertain.

About one and a half years after plaintiffs received their deed, defendants excavated a channel off the lagoon and erected a large boathouse. Defendants periodically assured plaintiffs that the boathouse would be built, and did not repudiate the oral agreement until after plaintiffs objected to the form of the proposed written agreement, which we discuss hereinafter. In the spring of 1959 plaintiffs told defendants that they intended to sell their parcel, and, for the protection of all concerned, wanted the boat rights put in writing. Defendants agreed to do this. The rights were to be appurtenant to the land, could not be sold separately from it, or retained if the land were sold. Defendants admitted that plaintiffs were entitled to the boathouse rights. It was understood that plaintiffs were to bear their share of the expenses. Defendants drew up an instrument (which was never signed).

This document was similar to the agreement given Roller, as hereinafter set forth, but contained an additional clause to the effect that if plaintiffs sold to a party who already owned property in the tract the boathouse rights would lapse. This was aimed at Louis C. Roller, who then was the only other purchaser in the tract. Defendants had made to Roller the same oral representations to the effect that the restrictions, the boat rights, and the pump rights, would apply to all eight parcels.

In August, 1956, and prior to the sale to plaintiffs, Roller discussed with defendant Earl Dotson the buying of a lot in the tract, and was told by defendant that with each lot that was sold a right to build a boathouse on the lagoon was to go with the lot. However, before the sale was closed, defendant stated that he would build a boathouse and each lot owner would have space in it for two boats. Then on September 4, Roller and defendants entered into a written agreement which recited that a boathouse was to be built to be 'for the use of Second Party [Roller] and other purchasers of land within the tract from First Parties,' Roller to be provided space in the boathouse 'consisting of a slip for two boats * * *.' '8. The parties hereto hereby agree that said exclusive right to use a portion of the boathouse shall not be deemed or construed to be an interest in real property, but that it shall be appurtenant to the real property conveyed by First Parties to Second Party as hereinabove mentioned; that such right may not be sold or transferred by Second Party to any person or persons except to a purchaser or purchasers of the real property belonging to Second Party as herein mentioned, and that Second Party may not maintain the right to use a portion of said boathouse, in the event that he sells said real property, such right, in the event of a sale of said real property by Second Party, may only be transferred to said purchaser, or revert to First Parties.' There was no restriction on the conveyance of boathouse rights in the event of a sale to other parcel owners.

When plaintiffs learned that defendants had executed the Roller agreement, they requested defendants to give them the agreement as promised, offering to pay their proportion of the cost of the boathouse. They had not requested it earlier because the boathouse had not been completed and they had not had an occasion to use a boathouse. It was then that defendants delivered to plaintiffs the unsigned document before mentioned, which plaintiffs rejected because of the clause terminating the rights upon sale to the owner of a lot in the tract.

A title company escrow officer testified that ordinarily boathouse rights such as those granted by defendants to Roller would be contained in an agreement separate from the deed.

There was evidence that the boat rights alone were worth $2,500-$3,000, and that the value of the land, for which plaintiffs paid $7,000, was worth $2,500-$3,000 less without the boat rights.

Defendant Earl Dotson stated that he had never even intimated that the boathouse was to be anything but commercial, that at the time he sold the land to plaintiffs he had no plans to divide up the land, and that he told neither plaintiffs nor Roller that they would have rights to berth their boats in the lagoon. Yet this is inconsistent with the fact that he did give Roller boathouse rights and that, when plaintiffs asked him for an agreement similar to the one given Roller, defendants immediately produced such an agreement, the only difference being a clause, the effect of which was to make the boathouse rights ineffective if plaintiffs sold to Roller.

Defendants complain that the only oral testimony corroborating plaintiffs' story was that of Mrs. Goble's brother. The credibility of plaintiff Farris Goble and his brother-in-law was a matter for the trial court to determine. It is clear that the court believed them.

Apparently, plaintiffs assisted defendants in their application to the board of supervisors for a boathouse permit, but when they learned that the permit issued defendants was for a commercial boathouse, they petitioned the board to set aside the permit.

1. SECTION 1971, CODE OF CIVIL PROCEDURE.

Defendants contend that their demurrer to the complaint should have been sustained on the ground that the alleged agreement violated the statute of frauds. They also contend that parol evidence of the agreement should not have been admitted for the same reason and that its admission was an attempt to vary the terms of a written instrument by parol evidence.

Section 1971 provides: 'No estate or interest in real property * * * can be created, granted, assigned, surrendered, or declared, otherwise than by * * * a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same * * *.' Section 1973, subdivision 4, Code of Civil Procedure, and section 1624, subdivision 4, Civil Code, also require an agreement 'for the sale of real property, or of an interest therein' to be in writing.

Whether the right to berth a boat is an interest in real property has not been determined in California. The discussion in Powell on Real Property, volume 3, page 388, footnote 30, would indicate that in other jurisdictions it is so considered. (The agreement given by defendants to Roller provides that the right given him is not to be construed as an interest in real property.) 'An easement is an interest in the land of another, which entitles the owner of the easement to a limited use or enjoyment of the other's land.' (2 Witkin, Summary of Cal.Law, p. 1015.) The right in question is not one of those listed in section 801, Civil Code. However, by specifying certain servitudes that may be attached to land for the benefit of the dominant tenement, the section does not purport to designate all such servitudes. (Wright v. Best (1942) 19 Cal.2d 368, 121 P.2d 702). Water is a part and parcel of the land to which it is appurtenant and any attempt to convey an interest in it is within section 1971. (Stepp v. Williams (1921) 52 Cal.App. 237, 198 P. 661.) In Empire Investment Co. v. Mort (1915) 169 Cal. 732, 147 P. 960, an oral agreement to build and maintain certain levees near the property purchased was held to be an interest in land as to which the statute of frauds applied.

Plaintiffs allege that the terms and provisions of the oral agreement of the parties were those set forth in the proposed agreement attached to the complaint as exhibit I. This states: 'The parties hereto hereby agree that said exclusive right to use a portion...