Haley v. Los Angeles County Flood Control Dist.

• Decision Date: 23 July 1959
• Citation: 342 P.2d 476,172 Cal.App.2d 285
• Court: California Court of Appeals Court of Appeals
• Parties: John O. HALEY, Plaintiff and Appellant, v. LOS ANGELES COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic, Defendant and Respondent. Civ. 23716.

Page 476

342 P.2d 476

172 Cal.App.2d 285

John O. HALEY, Plaintiff and Appellant, v. LOS ANGELES COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic, Defendant and Respondent.

Civ. 23716.

District Court of Appeal, Second District, Division 2, California.

July 23, 1959.

Rehearing Denied Aug. 18, 1959.

James M. Gammon, Los Angeles, for appellant.

Harold W. Kennedy, County Counsel, Edwin P. Martin, Deputy County Counsel, Los Angeles, for respondent.

ASHBURN, Justice.

Plaintiff sues to quiet title to the unused portion of a strip of land over which his predecessors granted an easement to defendant for flood control purposes. A general demurrer to his second amended complaint was sustained without leave to amend and plaintiff appeals from the ensuing judgment of dismissal.

Plaintiff is the successor in interest to Lucius and Jeannette Vogel who, on August 10, 1932, conveyed to the Flood Control District a perpetual easement for flood control purposes across certain land owned by them. The deed recites that it is made 'in the consideration of the benefits to be deriver by the undersigned by the establishment and maintanance of the official channel hereafter referred to and for other valuable considerations'; grants 'a perpetual Easement for flood control purposes in, over and across the following described real property situate in the County of Los Angeles.' Here follows a metes and bounds description. The deed then specifies that: 'The easement herein granted shall include the right to construct, reconstruct, inspect, maintain and repair a channel and protection works for the purpose of confining the waters of Los Angeles River in a single channel and the right to enter upon and to pass and repass over and along said land to deposit tools, implements and other materials thereon to take therefrom and use earth, rock, sand and gravel for the purpose of excavating, widening and deepening and otherwise rectifing the channel and for the construction, maintenance and repairs of embankments and other protection work by said District it's officers, agents and employes and by persons under contract with it and their employes whenever and wherever necessary for flood control purposes. * * * To have and to hold together with the right to do all things necessary to be done for the purpose of confining the water of said stream within said right way.' Appellant alleges that the easement was granted in order 'to procure the protection of the land herein referred to from said periodic floods,' which averment refers back to the statement 'that said property was interesected by the Los Angeles River, which was subject to annual overflow of said river and to shifting of the channel thereof.' The parcel described appears to be 826.78 feet in width at the north and sellers had agreed to the purchase and It is not possible to determine from the complaint whether this strip of land is but a part of a larger parcel owned by the grantors or whether it covers their entire holding. suggestion, as a fact, of that which is not this question when propounded at oral argument.

The complaint alleges that the district built a permanent flood control channel through the property and 'bisected' it that the channel has a width of 300 feet, the bottom and sides being lined with concrete and the banks protected by levees approximately 16 feet in width and 15 feet in height. It is also averred that immediately adjacent to the levees on the west side the state has constructed a permanent paved freeway, 175 feet wide, which occupies the major portion of the land west of the channel; that along the easterly side and immediately adjacent to the levee, a public sewer district of the county has constructed a sanitary sewer occupying 20 feet of the property on the east side of the channel. Also that 'said improvement [flood control channel] is the only improvement planned or intended to be constructed by the Los Angeles County Flood Control District for the purposes as aforesaid and for the purposes mentioned in the said easement.' And '[t]hat all of the rest, residue and remainder of said property has not been and is not now used by the defendant for the purpose specified in said easement; that more than twenty-five years have elapsed since the granting of said easement and said time is a reasonable time for the defendant to select a route for the said easement and the same has been selected as aforesaid.' The presently unused parcels are two strips on the extreme east and west sides of the easement parcel. The District has refused to convey to plaintiff those portions of the property. Plaintiff prays for an adjudication of all adverse claims of defendant to said unused portions of the property; that defendant be declared to have no right, title or interest therein; that plaintiff's title thereto be quieted; and for other relief.

Appellant relies upon cases such as Youngstown Steel Products Co. v. City of Los Angeles, 38 Cal.2d 407, 240 P.2d 977, and Winslow v. City of Vallejo, 148 Cal. 723, 84 P. 191, 5 L.R.A.,N.S., 851. In the Youngstown Steel case the court says, 38 Cal.2d at page 410, 240 P.2d at page 979. 'It is well settled that if the location of a right of way is not defined by the grant, a reasonably convenient and suitable way is presumed to be intended, and the right cannot be exercised over the whole of the land. [Citations.] Where the right of way has been used at a particular location with the acquiescence of the servient owner, the parties have, in effect, placed their own practical construction upon the grant, and the easement will be regarded as fixed at that place. [Citations.] Once the location of an easement has been finally established, whether by express terms of the grant or by use and acquiescence, it cannot be substantially changed without the consent of both parties. [Citations.]'

This deed defines the width of the parcel over which the easement was granted, and the following language of 3 Tiffany Real Property (3d Ed.) § 805, page 333, seems pertinent: 'A grant or reservation of a right of passage over a space of a named width has been construed as giving a right of way, not of that width, but of merely a convenient width, to be located upon that space.' ¹ But the Winslow case, supra, 148 Cal. 723, at page 726, 84 P. at page 192 says: '[I]f the language of the grant in question, viewed in the light of all the conditions existing when it was executed, clearly gave to the defendant a right in excess of the one actually used, such right would still exist, notwithstanding the exercise for a time of a lesser privilege.'

Plaintiff's allegations seem to establish, under the foregoing authorities, that the location of defendant's flood control channel is now fixed in the place heretofore chosen for it. But the grant does not stop with a right to an original construction. It also conveys incidental easements for reconstruction, maintenance and repair of the channel and the right to pass and repass for the deposit of tools and other materials and to take earth, rock, sand and gravel for the purpose of excavating, widening and deepening or otherwise rectifying the channel and the maintenance and repair of embankments and other protection work. Ward v. City of Monrovia, 16 Cal.2d 815, 821, 108 P.2d 425, 429 refers to 'the well-recognized rule that an express or implied grant of an easement carries with it certain secondary easements essential to its enjoyment, such as the right to make repairs, renewals, and replacements,' and further says: 'Such incidental easements may be exercised so long as the owner thereof uses reasonable care and does not increase the burden on or go beyond the boundaries of the servient tenement, or make any material changes therein.' See, also, Woods Irrigation Co. v. Klein, 105 Cal.App.2d 266, 270, 233 P.2d 48. While the complaint alleges that 'said improvement,' meaning the flood control channel, 'is the only improvement planned or intended to be constructed by the [defendant] for the purposes * * * mentioned in the said easement' it does not aver that there can or will be no future need for widening or deepening or otherwise rectifying the channel (which would be within its present width due to the freeway on the west side and the public sewer on the east), or for the taking of earth, rock, sand and gravel for all or any of said purposes. It does not allege abandonment or intent to abandon.

It is well settled in this state that an easement created by grant is not lost by mere nonuser. City of Vallejo v. Scally, 192 Cal. 175, 177, 219 P. 63; Griffin v. Parker, 124 Cal.App. 701, 705, 13 P.2d 403; Glatts v. Henson, 31 Cal.2d 368, 371, 188 P.2d 745; Clark v. Redlich, 147 Cal.App.2d 500, 507, 305 P.2d 239. By statute the extent of the servitude is determined by the terms of the grant (Civ.Code, § 806), and only servitudes acquired by enjoyment shall be extinguished by disuse (Id., § 811, subd. 4). For an easement acquired by grant to be thus lost it must be accomplished with an express or implied intention of abandonment. Smith v. Worn, 93 Cal. 206, 212, 28 P. 944; Watson v. Heger, 48 Cal.App.2d 417, 420-421, 120 P.2d 153; Whelan v. Zahniser, 92 Cal.App.2d 770, 775, 207 P.2d 629; Flanagan v. San Marcos Silk Co., 106 Cal.App.2d 458, 462-463, 235 P.2d 107. As stated in Parker v. Swett, 40 Cal.App. 68, 74, 180 P. 351, 353: 'It is true that the plaintiff and his predecessors have neglected for 25 years to exercise their right to lay a pipe line, but an easement founded upon a grant cannot be lost by mere nonuser, no matter how long that nonuser may continue. Currier v. Howes, 103 Cal. 431, 437, 37 P. 521; Walker v. Lillingston, 137 Cal. 401, 70 P. 282. And such an easement may only be lost by abandonment when the intention to abandon clearly appears.' Such is the weight of authority. See, 17 Cal.Jur.2d, § 36, p. 144; 17A Am.Jur., § 172, p. 779; 28 C.J.S. Easements § 60(b), pp. 725-726; 98...