Kytasty v. Godwin

• Citation: 102 Cal.App.3d 762,162 Cal.Rptr. 556
• Parties: Helen KYTASTY, Plaintiff, Cross-Defendant and Appellant, v. M. F. GODWIN, etc. et al., Defendants, Cross-Defendants and Respondents, Wesley H. Mathews et al., Defendants, Cross-Complainants and Respondents. Civ. 18090.
• Decision Date: 26 February 1980
• Court: California Court of Appeals

Page 556

162 Cal.Rptr. 556

102 Cal.App.3d 762

Helen KYTASTY, Plaintiff, Cross-Defendant and Appellant, v. M. F. GODWIN, etc. et al., Defendants, Cross-Defendants and Respondents, Wesley H. Mathews et al., Defendants, Cross-Complainants and Respondents.

Civ. 18090.

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

Feb. 26, 1980.

Hillyer & Irwin and Dale R. Larabee, San Diego, for plaintiff, cross-defendant and appellant.

Romney, Andersen & Allen and Clyde A. Romney and James M. Allen, San Diego, for defendants, cross-defendants and respondents.

Scales, Patton, Ellsworth & Corbett and Luke R. Corbett and Ralph E. Hughes, San Diego, for defendants, cross-complainants and respondents.

COLOGNE, Acting Presiding Justice.

Helen Kytasty brought this action to quiet title to her property over which the defendants claimed an easement. In the first trial, the court awarded Kytasty judgment and ordered defendant M. F. Godwin to convey title to the subject parcel free and clear of easements. This judgment was modified granting the 60-foot easement, but a new trial was ordered because, among other reasons, indispensable parties were not before the court. After the retrial, the trial court awarded judgment confirming a 60-foot easement on Kytasty's property in favor of certain of the defendants, describing the easement by metes and bounds. Kytasty appeals.

At the outset, we should state an often forgotten rule that our court is bound by the established rules of appellate review that all factual matters will be viewed most favorably to the prevailing party and in support of the judgment (Nestle v. City of Santa Monica, 6 Cal.3d 920, 925, 101 Cal.Rptr. 568, 496 P.2d 480; 6 Witkin, Cal. Procedure (2d ed. 1971) § 245, p. 4236).

On November 1, 1968, M. F. Godwin, doing business as M. F. Godwin Land Co. (Land Co.) ¹ purchased 320 acres of land in rural San Diego County from Aslesen and Maun. The unpaid balance of the purchase price was secured by three separate deeds of trust on portions of the property. Each deed of trust described a separate portion of the 320-acre parcel and each contained a provision reserving to the beneficiaries (Aslesen and Maun) a right to a 60-foot road easement from Old Coach Road to the center of a creek bed and then "in a generally northeasterly direction along said creek bed" through the property subject of the purchase money trust deed. These deeds of trust were duly recorded.

On the same day it purchased the property, Land Co. sold the northerly 160 acres to Wesley H. Mathews, a practicing criminal attorney, and his wife Nancy A. Mathews. When Mr. and Mrs. Mathews visited the property in the spring and summer of 1968 before the purchase, they reached it using Old Coach Road, a dedicated county dirt road, and then by means of "a very rutted dirt road" drove to their parcel. The rutted dirt road meandered northeasterly from the county road following "in close proximity" a creed bed. The Mathews were able to drive their sedan-type passenger car on this route and while it was apparently narrow and travel was made difficult by boulders, trees and brush, it was not impossible to traverse and they were able to reach the 160 acres in question. This route was the only means of access at the time.

In his discussion with George Wright, manager of the Land Co., Mathews was assured an access easement existed across the lower 160 acres. Mathews testified that when Wright referred to an access easement he meant "(t)his rutted road that took off from Old Coach Road . . . ." Wright testified he told Mathews that Mathews would have an access easement to the northern 160 acres.

Land Co. conveyed the northern 160 acres to Mathews by grand deed which made no reference to an easement. At the time of purchase, Mathews asked Wright, "Well, is there any problem about getting in and out?" and Wright said "No. We have got an easement through, which I understand to be an easement or access for ingress and egress." Mathews was told by Wright and (he thought) the escrow officer the language in his grant deed was "(s)ubject to a trust deed in favor of . . . Aslesen and . . . Maun," and it spelled out an easement for ingress and egress. We note here in passing there was no testimony Mathews saw the Aslesen and Maun trust deed itself or understood the specific terms as to the location or width, but the trial court did specifically find Wright and Mathews "intended and attempted to create an easement for ingress, egress, road and public utilities purposes" over the real property and generally along the route described in the Aslesen and Maun deed of trust.

In April and May 1969, Wright hired Dale's Tractor Service to grade the road "to get Mathews to his property." After the road grading into the Mathews property had been completed, Mathews and Wright used the improved roadway to move in equipment to drill a well, remove trees and take out sand and gravel.

In May 1969, Kytasty became interested in the 40-acre parcel owned by Land Co. and located south of the parcel purchased by Mathews. The dirt road used by Mathews ran through this parcel. Kytasty visited the property five or six times before she finally purchased it and reached it each time by way of the same rutted jeep trail that left Old Coach Road. She did not travel up the road beyond her property but knew it continued on and was passable in an automobile. She made no effort to inform herself of the history of the road or of the people using it. Kytasty executed a contract of purchase from Land Co. of the 40 acres on May 27, 1969. Her contract made no reference to any easement being reserved.

After Kytasty went into possession, Wright finished grading the road and she made no effort to stop him. She actually used the graded road herself.

On August 1, 1972, almost four years after acquiring the property and after the graded road had been completed into Mathews' property, the Mathews conveyed their interest in the 160 acres to Douglas and M. Earlene Talbot, trustees, who in turn conveyed 40 acres each to four separate limited partnerships, Old Coach Properties, Ltd. # 1, Old Coach Properties, Ltd. # 2, Old Coach Properties, Ltd. # 3, and Old Coach Properties, Ltd. # 4. The parcel transferred to Old Coach Properties, Ltd. # 4 was later in turn transferred to Coach Properties, Ltd. (These limited partnerships are collectively referred to as the limited partnerships.) The grant deed from Mathews to Talbots, as well as the deeds to the limited partnerships, contained a description of the 60-foot easement in language similar to that contained in the Aslesen and Maun deeds of trust.

When the limited partnerships sought county authority for a lot split, they were apparently told they needed easements for access. Wright, as agent of Financial, prepared, executed and caused to be recorded an easement 60 feet wide across the property of Financial (Land Co.) as well as over the property of Kytasty, even though it no longer owned the Kytasty property, had not sought her approval of the easement and had no authority to act as her agent. The right to this easement was granted to Talbots.

During the trial, the court appointed a surveyor who prepared a legal description of the centerline of the graded roadway and the judgment awarding the easement incorporated the legal description he prepared as well as the somewhat more vague and general description used previously in the deed of trust. The trial court concluded there was an implied easement for ingress and egress and, if for any reason the implied easement is not supported on appeal, there was an easement by necessity. No party was guilty of unclean hands or did any act which would estop him from asserting the rights gained here.

The note and deed of trust in favor of Aslesen and Maun has been paid off and reconveyance by the trustee has been completed. It is no longer an encumbrance on any of the parcels with which the court is concerned.

The parties concede there was no valid deed of easement over the Kytasty property. If any rights exist, they are by reason of an implied easement or easement by necessity.

Civil Code section 1104 reads:

"WHAT EASEMENTS PASS WITH PROPERTY. A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed."

Thus the code creates an implied easement as an exception to the general rule that interests in real property can only be created by an express writing or by prescription (see 3 Cal.R.E.Rev., Miller & Starr, § 18.21, at p. 298; Bowman: Ogden's Revised Cal. Real Property Law, Vol. 1, § 13.24 at pp. 554-555). The law with regard to implied easements is not uncertain and was most amply summarized by this court in Orr v. Kirk, 100 Cal.App.2d 678, at page 681, 224 P.2d 71, at page 73:

"The elements necessary to create a 'quasi easement' or grant by implication, upon severance of unity of ownership in an estate, are: (1) a separation of title (which implies unity of ownership at some former time as the foundation of the right); (2) necessity that before separation takes place the use which gives rise to the easement shall be so long continued and obvious as to show it was meant to be permanent; and (3) the easement must be reasonably necessary to the beneficial enjoyment of the land granted. (Citation.) The law does not favor the implication of easements. Such implication can only be made in connection with a conveyance, and in view of the rule that a conveyance is to be construed against the grantor, the court will imply an easement in favor of the grantee more easily than it will imply an easement in favor of a grantor. Whether an easement...