Kerr v. Brede

• Decision Date: 20 April 1960
• Citation: Kerr v. Brede, 180 Cal.App.2d 149, 4 Cal.Rptr. 443 (Cal. App. 1960)
• Court: California Court of Appeals
• Parties: Guy Burdette KERR, William J. Kerr and Dorothy C. Kerr, Plaintiffs and Appellants, v. Herbert C. BREDE, Jr., Herbert C. Brede, Sr., Samuel J. Davis and R. L. Davis, Defendants and Respondents. Civ. 9743.

Page 443

4 Cal.Rptr. 443

180 Cal.App.2d 149

Guy Burdette KERR, William J. Kerr and Dorothy C. Kerr, Plaintiffs and Appellants, v. Herbert C. BREDE, Jr., Herbert C. Brede, Sr., Samuel J. Davis and R. L. Davis, Defendants and Respondents.

Civ. 9743.

District Court of Appeal, Third District, California.

April 20, 1960.

Rehearing Denied May 16, 1960.

Mitchell & Henderson, Eureka, and Cooley, Crowley, Gaither, Castro & Huddleson, San Francisco, for appellants.

Mathews & Traverse, Eureka, for respondents.

PEEK, Justice.

Defendants own an easement of right-of-way across plaintiffs' timber land, acquired by grant. For several years prior to the filing of the present complaint defendants, by licensing independent loggers and truckers to use the road, have in effect operated a toll road. Plaintiffs contend that this licensing is in violation of the terms of the contract entered into by the predecessors in interest of the parties, and accordingly seek injunctive relief. The only issue presented is the construction of paragraph 6 of that contract which provides:

'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, assings 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.' (Emphasis added.)

The trial court viewed the italicized clause as 'entirely gratuitous' and denied the relief sought. We have concluded that the court's decision was erroneous.

It is well settled that '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 , 321 P.2d 128.' Keeler v. Haky, 160 Cal.App.2d 471, 474, 325 P.2d 648, 650. It is the further rule that a grant is to be construed in like manner with contracts generally. Civil Code, § 1066; Paddock v. Vasquez, 122 Cal.App.2d 396, 399-400, 265 P.2d 121. Thus 'the whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.' Civ.Code, § 1641. Stated otherwise a '* * * contract should be construed * * * as an entirety,...