Keeler v. Haky

• Decision Date: 15 May 1958
• Citation: 325 P.2d 648,160 Cal.App.2d 471
• Court: California Court of Appeals Court of Appeals
• Parties: Fred E. KEELER and Laurine L. Keeler, Plaintiffs and Appellants, v. Leon HAKY and Elsie Haky et al., Defendants and Respondents. Civ. 22825.

Page 648

325 P.2d 648

160 Cal.App.2d 471

Fred E. KEELER and Laurine L. Keeler, Plaintiffs and Appellants, v. Leon HAKY and Elsie Haky et al., Defendants and Respondents.

Civ. 22825.

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

May 15, 1958.

Rehearing Denied June 11, 1958.

Hearing Denied July 9, 1958.

L. Dean Petty, Beverly Hills, Jean Wunderlich, Los Angeles, for appellants.

John E. Sisson, Guy T. Graves, Los Angeles, for respondents.

LILLIE, Justice.

An action for declaratory relief, injunction and damages was brought by plaintiffs, successors to the grantors and owners in fee of the servient estate, Lot 1, against defendants, successors to the grantees and owners in fee of the dominant estate, Lot 11, and the appurtenant easement thereto, to determine the rights of the parties in the easement created over Lot 1 under a grant deed dated April 17, 1934. The matter was heard before the court sitting without a jury. The trial judge found that the easement was created for the sole use and benefit of the defendants' predecessors in interest and that the exclusive use thereof by defendants was not a violation of the rights of the plaintiffs. From a judgment in favor of defendants, plaintiffs appeal.

The primary question is whether the instrument granting the easement to defendants' predecessors in interest conveyed to them an easement to the exclusion of the owners of the servient tenement.

The deed, among other things, provided: 'Whereas, there is on the northerly twenty (20') feet of said first herein described parcel of real property, a private road, or alleyway, extending from the east to west a distance of one hundred forty (140') feet, as shown on the plan hereto annexed and made a part thereof by this reference.' After reciting the consideration therefor, it continued: 'hereby grant unto said Security First National Bank of Los Angeles, a national banking association, its successors and assigns, the full and free right for it and them, its and their tenants, servants, visitors and licensees, in common with all others having like right, at all times hereafter to and including the 31st day of July, 2027, with or without horses, carts, carriages, motors or other vehicles, for all purposes connected with the use of said grantee's land, to pass and repass along, over and upon said private road or alleyway hereinbefore described. To have and to hold said easement to the said Security-First National Bank of Los Angeles, a national banking association, its successors and assigns, as appurtenant to its said land herein described.'

Defendants have been and are now using the easement, surfaced with concrete and marked off by painted white lines for parking stalls, as a permanent parking lot for ten or eleven cars owned by tenants in defendants' apartment building. These stalls have been assigned to defendants' tenants by name and apartment number.

There is no claim of right by prescriptive use. The easement was created by a grant deed and the nature and extent of the respective rights are governed by its terms. In construing an instrument conveying an easement, the rules applicable to the construction of deeds generally apply. Eastman v. Piper, 68 Cal.App. 554, 229 P. 1002. If the language is clear and explicit in the conveyance, there is no occasion for the use of parol evidence to show the nature and extent of the rights acquired. A written agreement, unless it is ambiguous, must be construed by a consideration of its own terms. The meaning and intent thereof is a question of law and the reviewing court is not bound by the trial court's findings and conclusions regarding such intent and meaning. Brant v. California Dairies, Inc., 4 Cal.2d 128, 48 P.2d 13; Buehler v. Reilly, 157 Cal.App.2d 338, 321 P.2d 128.

The language of the grant deed, dated April 17, 1934, is clear and free from ambiguity and uncertainty and does not create such a condition as to require or authorize the court to consider extrinsic evidence as to the meaning of the written agreement between the parties. The terms clearly show that until 2027, the grantees, in common with others having like right, have the unrestricted right to pass and repass over a private alleyway of explicit description and location, for all purposes connected with the use of their land. We cannot hold in line with the trial court's ruling that by the employment of the terms 'full and free' and 'all purposes' the use was intended to be exclusive to the grantees and for all purposes connected with their property. The document clearly indicates that the right which is unrestricted, or 'free and full' is the right to 'pass and repass' across the easement, and even the extent of this right is limited by the use of others who have the same, or like, right. The phrase 'all purposes' as used in the instrument does not imply that all rights in connection with the use of the dominant estate are conveyed, but only the right to pass and repass for all purposes connected with the use of grantees' land. A fair interpretation of the language of the conveyance permits the grantees to pass and repass for all purposes connected with the use of their estate.

Any claim that the deed makes no reservation or exception in favor of the grantors is without merit. First of all, a reservation or exception is stated, and in positive terms, that all others having the same right may also pass and repass. Secondly, there is little question that the grantors retained this right with others, for an easement deed does not 'grant' anything to the servient estate since it retains all that which the deed does not give away. City of Pasadena v. California-Michigan Land and Water Co., 17 Cal.2d 576, 110 P.2d 983, 133 A.L.R. 1186.

Obviously, the parties had in mind an 'alleyway' or 'road' that others might use, but which was to be 'private,' not dedicated to public use, and which was to be used for moving vehicular traffic. No mention was made of storage of vehicles or a permanent parking lot to be used exclusively by the owners of the dominant estate. Instead, the deed expressly gives the right to 'pass and repass,' which implies movement and transfer from one place to another, to the grantees in common with all others having a like right.

The extent of a servitude is determined by the terms of the grant creating it. Sec. 806, Civil Code. Where an easement is founded on a grant, only those interests expressed therein and necessary for its reasonable and proper enjoyment pass from the owner of the fee. City of Pasadena v. California-Michigan Land and Water Co., supra. The interest expressed in the instant deed is only the right to pass and repass for all purposes connected with the use of the grantees' land. If permanent parking were permitted for defendants' tenants the effect would be to make the use exclusive to them. This cannot be implied from the clear language of the deed. In City of Pasadena v. California-Michigan Land and Water Co., 17 Cal.2d 576, at page 578, 110 P.2d 983, at page 985, the Supreme Court, speaking of such an implication, said: 'Furthermore, an 'exclusive easement' is an unusual interest in land; it has been said to amount almost to a conveyance of the fee. 2 Thompson, Real Property 1939, § 578; Jones, Easements, § 378, p. 302. No intention to convey such a complete interest can be imputed to the owner of the servient tenement in the absence of a clear indication of such an intention. See Reiver v. Voshell, 18 Del.Ch. 260, 264, 158 A. 366; Jones, supra, § 379, p. 303.'

If we are to hold that this easement includes the right to permanently park vehicles thereon, we must find that it is necessarily incident to the right to pass and repass for all purposes connected with defendants' land. This we cannot do. It is obvious that any permanent occupation by way of parking, or otherwise, which excludes the use of plaintiffs and others having a like right to pass and repass, is entirely foreign to the grant. The right to pass and repass conveyed by the deed in the case at bar is not unlike an easement of ingress and egress. The record herein excludes any evidence of the occasional or temporary parking that normally accompanies the movement of vehicles in and out of, or over, a location such as that found in various cases cited by respondents. On the contrary, the undisputed evidence establishes parking of a permanent nature by tenants who live on the dominant estate. Certain tenants have been assigned stalls created on the concrete surface of the easement by painted white lines. The entire area accommodates ten or eleven cars. As between the tenants and defendants, the right to use parking facilities there is created by lease of an apartment in the building owned by the defendants. Defendants, by nine signs painted on the wall of the plaintiffs' building abutting the easement, reserved this area exclusively for parking for their tenants. The signs read: 'Private Parking,' 'For Tenants Only, Police Tickets Issued to Violators,' and 'Private Parking, Violators Prosecuted.' Clearly, this is not a use compatible with the terms of the grant. It does not constitute a reasonably and proper enjoyment of an easement to pass and repass, and prevents and interferes with the passing and repassing of the vehicles of others, including plaintiffs, who have a like right with defendants.

A similar grant was construed in Gillespie v. Weinberg, 148 N.Y. 238, 42 N.E. 676, in which the court held that a deed giving the grantee a right to use a specified portion of an adjoining lot...