Kerr Land & Timber Co. v. Emmerson

• Decision Date: 25 March 1965
• Citation: 233 Cal.App.2d 200,43 Cal.Rptr. 333
• Court: California Court of Appeals Court of Appeals
• Parties: KERR LAND & TIMBER CO., a California corporation, Plaintiff, Cross-Defendant and Respondent, v. R. H. EMMERSON and A. A. Emmerson, Individually and doing business as R. H. Emmerson & Son, a co-partnership, Defendants, Cross-Complainants and Appellants. Civ. 21517.

Page 333

43 Cal.Rptr. 333

233 Cal.App.2d 200

KERR LAND & TIMBER CO., a California corporation, Plaintiff, Cross-Defendant and Respondent, v. R. H. EMMERSON and A. A. Emmerson, Individually and doing business as R. H. Emmerson & Son, a co-partnership, Defendants, Cross-Complainants and Appellants.

Civ. 21517.

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

March 25, 1965.

Hearing Denied May 19, 1965.

Mathews & Traverse, Eureka, for appellants.

Mitchell & Henderson, Eureka, for respondent, Cooley, Crowley, Gaither, Godward, Castro & Huddleson, San Francisco, of counsel.

SIMS, Justice.

Defendants and cross-complainants Emmerson, et al., as owners of the easement hereinafter referred to, have appealed from a judgment and decree granting the plaintiff and cross-defendant Kerr Land & Timber Co., as owner of the servient tenement, an injunction which limits the scope of the use of the easement, and denying them any relief on their cross-complaint.

Both sides agree that the controversy between the parties to this action arises over the construction of the provisions of a paragraph of an agreement entered into by their respective predecessors in interest, and the nature and scope of the easement thereby granted. In addition to evidence of the derivation of title of the present parties and of the use actually made of the servient tenement by appellants, their predecessors in interest and their respective licensees, the record reflects that a prior judgment in this action in favor of appellants' immediate grantors and against respondent's transferors denying an injunction was reversed by decision of the District Court of Appeal for the Third Appellate District. (Kerr v. Brede (1960) 180 Cal.App.2d 149, 4 Cal.Rptr. 443.) The extent to which the opinion on that appeal defines the respective rights and obligations of the parties was put in issue at the trial and in the briefs before this court.

The material facts are set forth as they chronologically unfold in retrospect:

In 1945 and 1946 the lumbering industry in Humboldt County was just becoming aware of the merchantability of fir timber located at a distance from existing mills. Fir which had been considered of little or no value, and which had in fact been destroyed by ranchers, was sought after. By 1948 most rights to the timber were in the hands of mill and logging operators and the market began to rise following a period of fairly stable low prices.

In 1945 one Barr, respondent's predecessor in interest, owned the lands herein involved which will be referred to as the Barr Ranch. It contains about 6,300 acres of which about 5,000 consist of timber lands. The ranch lies between two public roads, the Maple Creek Road which traverses the westerly side of the ranch, and the Snow Camp Road which is separated from the ranch by intervening parcels to the east. The two roads join to the northwest and run to Korbel on state route 299, which in turn leads to Arcata. A third public road connects the two other roads and traverses the northerly portion of the Barr Ranch. In April 1946 the ranch was bounded by 13 separate parcels involving 11 different owners of which those lying to the east and south, and designated as Russ, Coward and Salisbury, have been particularly referred to in the record of this case. To the southeast of the Coward parcel, and underlying the easterly projection of the course of the easement in question are holdings designated as Wiggins, and section 36. To the north of section 36 and apparently east of the Russ parcel lies what is referred to as the Prairie Lake Ranch which is owned by one of the original plaintiffs Kerr. It and section 36 are traversed to the east by the Snow Camp Road. A consulting forester, familar with the area estimated that as of 1946 the holdings referred to above, with the exclusion of portions of the Wiggins Ranch to which timber rights had been disposed of in 1945, would yield about 90,000,000 board feet of timber; and that such production would constitute a very attactive integrated unit for a logger and would of itself justify the construction of the type of road that was subsequently laid out over the Barr Ranch.

Appellants' predecessor in interest Dolly Varden Lumber Company was a corporation which was engaged in the lumber business and operated a sawmill in Arcata, approximately 25 miles from the Barr Ranch. It appears to be assumed from evidence of the holdings of Dolly Varden in 1950, and of appellants as its successors in 1962, that Dolly Varden in 1945 had the same timber interests in the area as were attributed to appellants at the time of trial. ¹ In any event, it does appear that in 1950 Dolly Varden had timber rights in the Maple Creek Basin on the Barr Ranch (acquired in 1946 as hereinafter set forth), and in the parcels referred to as Coward and section 36, which together with its holdings in the Snow Camp Upper Redwood Creek Area comprised fifty or sixty million board feet. At that time the bulk of Dolly Varden's timber was in a 15,000 acre tract in middle and lower Redwood Creek which was served by entirely different road systems from that involved here.

In 1946, and continuously thereafter to and through the time of trial, it was the custom, practice, and usage in Humboldt County for the owners in a timber basin where checkerboard ownerships existed to enter into reciprocal right of way agreements which permitted each other to cross their lands for the purpose of the removal of their respective timber.

By written agreement dated May 3, 1946, Barr in consideration of the payment of $19,000 sold to Dolly Varden all the timber on his lands. The easement in controversy is the subject of paragraph 6 of the agreement and reads as follows: '6. Sellers hereby grant to Purchaser a perpetual and exclusive right-of-way and easement upon, over and across Sellers' lands. Said right-of-way and easement shall be forty (40) feet in width and shall be located upon Sellers' lands along such route as may be selected by Purchaser, and shall be used by Purchaser, its successors, assigns and licensees, for road and highway purposes, for the purpose of transporting logs, timber, machinery, logging equipment, and all other properties in any way incident to or connected with the logging, timber and lumber business, over and across the Sellers' lands, and for the purpose of maintaining, operating, repairing and reconstructing power lines, telephone lines and other utility services across Sellers' lands, it being the intention of the Purchaser to use such right-of-way and easement for the purpose of connecting properties owned or to be owned, or controlled or to be controlled by Purchaser and lying on various sides of the Sellers' lands with each other and with existing roads and existing utility services.'

Between 1946 and March 1950 a logging road of mainline, as distinguished from spur logging road characteristics, was constructed across two miles of the Barr Ranch and to the east line of the Coward Ranch by Dolly Varden. It is in part visible from the Kerr's ranch residence. There is no evidence as to the direct use of this road by Dolly Varden during this period. In 1948 the Way Brothers built a sawmill on the Coward property which they operated until it burnt September 16, 1954. They processed logs up to four and a half feet in diameter, and trucked the finished lumber and the logs they were unable to process out the road over the Barr Ranch. During this period the logs came from the Coward and Barr parcels, pursuant to a logging-sawmilling agreement with Dolly Varden, and the Ways paid $1.00 per thousand board feet for lumber and logs hauled across the road. Subsequently, after November 1952 they processed logs hauled by Holmes Douglas from the Kerr Prairie Lake Ranch, and in 1953 or 1954 logs from the Wiggins' property under rights of Roddiscraft.

During the years 1948 and 1949 Dolly Varden, for a fee, licensed one Bolster to use the easement for transportation of logs from a Russ Ranch to another lumber company. This ranch lay between the two county roads, but concededly is not the Russ property which is adjacent to the Barr Ranch.

In 1950 the Kerrs acquired the Barr Ranch from Barr, and in 1954 they repurchased the rights to the remaining timber from Dolly Varden. In 1955 Dolly Varden conveyed to Buck Mountain Logging Co. (Erickson), which in turn conveyed to Maple Creek Timber Company (Bredes and Davis) in 1956. This action was filed by the Kerrs May 28, 1957, and in 1960 while it was pending on the first appeal the Kerrs conveyed to respondent corporation, and the appellants acquired the remaining rights under the 1946 agreement with knowledge of the litigation. ²

During the period from 1950 through 1955 Dolly Varden did not use the easement directly. It did, however, in 1950 acquire a right of way over the Wiggins' property for the purpose of extending the road easterly from the Coward property to the Snow Camp Upper Redwood Creek Area. In the spring of 1951 arrangements were made with Hanson Brothers, who had timber rights from Humboldt Plywood (subsequently Roddiscraft, Inc., and at trial Weyerhaeuser Company) in the area east of the Snow Camp Road, for the latter to extend the road easterly to a junction with the Snow Camp Road in the southeast corner of section 36. Hanson Brothers completed two or three miles of road to make this connection, about seven miles over all from the Maple Creek Road. They hauled out about 9,000,000 board feet of logs in 1951 at the rate of between 25 to 30 truck loads a day. The Kerrs did not become aware of this extension or its use to haul timber from outside the Maple Creek Basin until 1955. In that year they found Erickson (Buck Mountain Logging Co.) exercising logging rights he had acquired from Dolly Varden in section 36, and engaged him to haul some logs. They were advised that they could get through to Snow Camp public road in traveling to...