Herzog v. Grosso

• Decision Date: 07 July 1953
• Citation: 259 P.2d 429,41 Cal.2d 219
• Parties: HERZOG et al. v. GROSSO et al. L. A. 22313.
• Court: California Supreme Court

Page 429

259 P.2d 429

41 Cal.2d 219

HERZOG et al. v. GROSSO et al.

L. A. 22313.

Supreme Court of California, in Bank.

July 7, 1953.

W. P. Smith and Henry F. Walker, Los Angeles, for appellants.

Nathan E. Gillin and Button & Herzog, Hollywood, for respondents.

TRAYNOR, Justice.

This action presents a controversy between owners of a private road and easement and the owners of the servient tenement. The following diagram, not drawn to scale, shows the relationship of the road and easement to the parcels of land involved.

Mrs. Mildred Schneider originally owned the land bounded by Blair Drive, Hollywood Freeway, the Rosin property, and the Universal Pictures property. The land is hilly with the crest of the hill at the center. Plaintiffs Leonard and Alma Herzog purchased parcel 1 in 1944 and built a home thereon. At that time the only access to a public road from parcel 1 was a road over the Rosin property to Barham Boulevard. Since Rosin retained the right to revoke permission to use the road, plaintiffs did not buy parcel 1 until Mrs. Schneider deeded to them parcel 2, a strip of land 25 feet wide, and granted them an easement for road and public utility purposes over parcel 3, a strip of land 30 feet wide and 155 feet long. A road was bulldozed around the hill on parcels 2 and 3 from parcel 1 to Blair Drive. A telephone pole was erected on parcel 3 at the point marked 'x' on the diagram, about 115 feet from Blair Drive. The road was dirt surfaced, about 14 feet wide, and sloped downhill from Blair Drive to plaintiffs' home. The grade was about 4.5% to the telephone pole and about 8.3% for the next 110 feet. Plaintiffs used both the Rosin road to Barham Boulevard and the new road to Blair Drive.

Mr. and Mrs. Connor bought the property to the west of parcels 2 and 3 in December, 1945. Defendants Paul and Madolyn Grosso acquired parcel 3 and the hilltop property in March, 1949. Difficulties between defendants and plaintiffs soon arose. In November, 1949, Paul Grosso regraded the road from his property to Blair Drive. He dumped large quantities of dirt on parcels 2 and 3 and on the Connor property. ¹ The regrading resulted in a fill that blocked all passage from plaintiffs' property to Blair Drive. Plaintiffs protested and were assured that the road would eventually be made passable, but it remained blocked. In March, 1950, defendants erected a fence at the point where parcel 3 joined Blair Drive. The fence extended across 14 feet of the easement and was equipped with gates designed to close the remaining 16 feet.

On September 2, 1950, plaintiffs received notice that they could no longer use the Rosin road. Thereafter their only access to the public streets was over parcels 2 and 3. After further protests by plaintiffs, Grosso cut a ramp across the fill to parcel 2. The new road ran on the west side of the telephone pole, on the Connor property. The road was narrow, steep, and dangerous. In early October Herzog placed posts and reflectors along the edge of the road to prevent automobiles from going over the bank. Grosso removed the posts and reflectors. In November, 1950, plaintiffs engaged a contractor to pave parcels 2 and 3. Grosso ordered the men to leave and when they did not do so, dumped dirt on the parts of the road that had been fine graded preparatory to final surfacing. Several days later Grosso dug up the road with a plow attached to a tractor. On December 20th, plaintiffs obtained a temporary restraining order, and thereafter Grosso did not interfere with plaintiffs' use of the road. In February, 1951, plaintiffs paved the road and placed it in the condition it was in at the time of the trial, May, 1951. During the period between September, 1950, and February, 1951, it was difficult to use the road. In rainy weather the road was slippery, and plaintiffs were forced to leave their car at the entrance and walk through the mud.

The road was surveyed shortly before the trial. The grade over the fill made by Grosso was level for the first 68 feet from Blair Drive, thence 4.3% uphill to a point near the telephone pole, thence 14.6% downhill for the next 110 feet. One 40-foot part of this 110 feet had a grade of 17.2%. At the telephone pole the fill was 6 feet over the original level. An appraiser, duly qualified as an expert witness, testified that 'the steep grade immediately approaching the short turn and a steep incline is sufficient cause for an estimate of damage. This condition creates and extreme fire hazard and safety hazard to all users.' He stated that the road was 'like driving into the banks of the Grand Canyon.' The appraiser testified that in his opinion the increase in grade had depreciated the fair market value of the property by $8,700.

The trial court entered judgment in favor of plaintiffs. The judgment declares plaintiffs' and defendants' respective rights in the easement; orders defendant Paul Grosso to alter the first 120 feet of parcel 3 to conform to a map attached to the judgment; orders defendants to remove the fence and gate at the entrance; and enjoins defendants from interfering with plaintiffs' use of the easement. The judgment also awards plaintiffs damages against defendant Paul Grosso as follows: $7,000 to both plaintiffs for permanent depreciation in the value of their property; $521.82 to both plaintiffs as compensation for miscellaneous expenditures; $2,000 to plaintiff husband and $2,000 to plaintiff wife for interference with their comfortable use and enjoyment of their home; $1,500 to plaintiff husband and $1,500 to plaintiff wife for worry and anxiety for the safety of themselves, their daughter, and their guests; $2,000 to plaintiff husband and $2,000 to plaintiff wife as exemplary damages. Defendants appeal from the judgment.

The judgment provides that defendants to not have 'any estate, right, title or interest whatsoever in and to said easement' and that defendants 'are hereby forever enjoined and restrained from asserting any claim whatsoever in and to plaintiffs' said easement.' Defendants contend that the decree unduly restricts their rights in parcel 3, that it is the only means of access to Blair Drive for themselves and their employees, agents, guests, and deliverymen, and that they have to use parcel 3 to obtain water, telephone, electricity, gas and other public utility facilities. Other parts of the judgment provide that defendants are the owners 'in fee simple of the thirty foot strip of land in, upon, under and over which plaintiffs' said easement described in said parcel 3 extends'; that defendants have the right to use parcel 3 for road purposes; and that defendants may use parcel 3 for other purposes 'consistent with the employment of said easement by plaintiffs and which does (not) unreasonably interfere with the use of said easement by plaintiffs.' It thus appears that the judgment does not unreasonably restrain defendants from the use of parcel 3.

The judgment declares that defendants have no right to maintain the fence and gates at the juncture of the road and Blair Drive and orders their removal forthwith. Defendants contend that the trial court erred, relying on the rule that 'the owner of the servient tenement may make any use of the land that does not interfere unreasonably with the easement.' City of Pasadena v. California-Michigan, etc., Co., 17 Cal.2d 576, 579, 110 P.2d 983, 985, 133 A.L.R. 1186. The trial court found that the fence and gates interfered with plaintiffs' free use and enjoyment of the easement. Plaintiffs' home is located in a large city and the road should be kept unobstructed for adequate access by the fire department, police department, and other public agencies. Cf. Los Angeles City Ordinance 97940, § 18.09. The trial court did not go beyond the evidence in this case by ordering the removal of the fence and gates. See Smith v. Worn, 93 Cal. 206, 214-215, 28 P. 944. Defendants suggest that they should be allowed to maintain the gates and fence to prevent motorists from mistaking the road for a public road and entering defendants' property. Plaintiffs concede that defendants are 'free to put up any sign deemed necessary as would not unreasonably interfere with plaintiffs' use of the easement.' It would appear that defendants could thus be adequately protected.

The judgment provides that 'plaintiffs have a right to construct and maintain a wooden guard rail on parcel 3 along the northwesterly boundary thereof, said guard rail to be one of the general types usually used along public highways.' Defendants contend that the judgment thereby unduly burdened the servient tenement. By the grant of the easement, however, plaintiffs acquired the right to do such things as are reasonably necessary to their use thereof. Ward v. City of Monrovia, 16 Cal.2d 815, 821-822, 108 P.2d 425; North Fork Water Co. v. Edwards, 121 Cal. 662, 666, 54 P. 69, 28 C.J.S., Easements, § 76b. Since the road adjoins a steep embankment, guard rails are reasonably necessary and would not unduly burden the servient tenement.

The trial court found that 'as a direct, natural and proximate result and consequence of the acts and conduct of the defendant * * * each of said plaintiffs were caused further to suffer nervousness, worry, and mental distress for the safety of themselves and their daughter and others obliged to use said road on account of the dangerous conditions under which said defendant, Paul J. Grosso, forced them and their family to use said parcels 2 and 3 in going to and from their said home.' Damages of $1,500 were awarded to each plaintiff. Defendant contends that the award cannot be sustained insofar as it is predicated upon distress and worry for 'the safety of * * *...