Laux v. Freed

• Decision Date: 29 January 1960
• Citation: 2 Cal.Rptr. 265,348 P.2d 873,53 Cal.2d 512
• Court: California Supreme Court
• Parties: , 348 P.2d 873 Adolph D. LAUX and Joyce H. Laux, Plaintiffs and Respondents, v. William J. FREED and Bertell F. Freed, Defendants and Appellants. Sac. 6892.

Page 265

2 Cal.Rptr. 265

53 Cal.2d 512, 348 P.2d 873

Adolph D. LAUX and Joyce H. Laux, Plaintiffs and Respondents, v. William J. FREED and Bertell F. Freed, Defendants and Appellants.

Sac. 6892.

Supreme Court of California, In Bank.

Jan. 29, 1960.

Ralph W. Rutledge and Richard E. Patton, Colusa, for appellants.

Donald W. Littlejohn and Florence J. Westfall, Colusa, for respondents.

SCHAUER, Justice.

This is an appeal by defendants from only that portion of a judgment which purports to alter the terms of, and place limits on the use of a right of way granted by, a deed to them from plaintiffs, and which enjoins use of the right of way other than as limited by the judgment. We have concluded that the trial court's judgment results in varying the terms of the written grant, rather than merely interpreting it, and is without support in the record, and that the portion of the judgment appealed from should therefore be reversed. For convenience, plaintiff husband and defendant husband will hereinafter sometimes be referred to as plaintiff and defendant, respectively.

In August, 1947, plaintiff and defendant acquired as partners certain range land in Colusa County, California. Plaintiff testified that during the deer hunting seasons of 1947 through 1951, the parties and their invitees and guests hunted deer upon the range land. For the season of 1949 or 1950 they leased out the deer hunting rights, such leasing being referred to as 'commercial hunting'; plaintiff and defendant, however, reserved the right to also hunt on the property with their own guests. Plaintiff did not know 'how many permits or licenses' to hunt were sold by the lessee in that year.

Until 1952 the parties owned and 'farmed or operated this property as partners.' In that year by agreement the partnership was dissolved and the land divided into two parcels. As above shown, for five or six years preceding dissolution of the partnership both parcels had been used seasonally for deer hunting and the road which is the subject of the right of way here disputed had been used by the partners and their guests or licensees. (Likewise, as hereinafter shown, both parcels and the deeded right of way over the road continued to be used for deer hunting for some four years after the dissolution.) It was (at least inferentially) mutually intended that the two parcels should be substantially equal; i. e., that the division should be reasonably fair to each equal partner; and it was agreed that the flip of a coin would determine which portion each partner should receive. As partners, as hereinafter discussed in more detail, the parties were in a fiduciary relationship and each owed to the other the highest good faith and fairness. Plaintiff won the toss and chose the northerly parcel; defendant thereby received the southerly part, also known as the 'back half of the range' or the 'brush patch.'

For many years there had been a private road (the road hereinabove mentioned) crossing the northerly portion which road was used as a means of access to the southerly portion and which at the time of the division of the land was the only road into the back part of the latter portion, although there were 'other ways to get into the place.' Prior to the division, and as a part of the dissolution agreement pertaining to equalization of value and accessibility of each parcel, the partners agreed that 'whoever got' this back half, or 'southerly parcel,' of the range, should also receive and have a right of way across the northerly parcel over the private access road. As a part of the theretofore orally agreed upon division defendant, to whom the back (southerly) part went, received from plaintiff a grant deed to 'all the real property * * * described as follows:

'A right of way over a road as presently constructed along the East Branch of Sand Creek, in the (legal description).' Plaintiff, himself, prepared the deed following oral discussions with his partner. No limitation as to either purpose or use by defendant, of the right of wat so conveyed is stated in the deed.

Following the partition in 1952, plaintiff and defendant and their invitees and guests hunted upon each other's lands as well as upon their own during the deer season of that year. In 1953, however, a boundary fence was erected and thereafter each party hunted only upon his own lands. During the 1953 through 1955 seasons defendant and his invitees and guests, apparently as had been contemplated by the parties at the time of partition, used the right of way over the road across plaintiff's land to reach the land of defendant. In 1956 both defendant and plaintiff leased 'exclusive' deer hunting rights 'commercially' on their respective lands to individual lessees. The lessee of defendant's land 'sold memberships' for hunting purposes and, pursuant to instructions by defendant, told the deer hunters that they were to use the right of way to reach the land. Inferribly it was at this time that plaintiff became dissatisfied with defendant's use of the right of way. He thereupon (some four years after the partnership dissolution and division of the property) brought this suit, alleging that the right of way was granted 'for the sole purpose of the use of the defendants to reach their property, and also for * * * driving and hauling cattle and feed across said right-of-way to reach defendants' property,' and seeking to limit its use accordingly.

Although as hereinabove mentioned the defendants appeal from only that portion of the judgment which purports to limit the extent of the granted right of way, it makes for a clearer understanding of the case to briefly mention other issues that were tried and resolved. The first cause of action alleged: 'That on or about the 29th day of August, 1952, the plaintiffs executed and delivered to the defendants a right-of-way as follows, to-wit: For Value Received, Adolph D. Laux and Joyce H. Laux, his wife, grant to William J. Freed and Bertell F. Freed, his wife, as Joint Tenants, all the real property situate in the County of Colusa, State of California, described as follows: A right of way over a road as presently constructed along the East Branch of Sand Creek, in the East half of Section 18 * * * That pursuant to the provisions of said right-of-way defendants were entitled to use said road only as constructed and existing as of August 29, 1952.' Plaintiffs further alleged that after the partition of the property and the delivery of the respective deeds from defendants to plaintiffs and from plaintiffs to defendants the defendants 'changed the course of said road from its original location of 1952 as it was constructed when the said right-of-way was granted,' and that defendants 'constructed a bridge over an excavation made by the defendants' and changed the course of the stream. Plaintiffs also alleged that in 1956 the defendants commenced the construction of another bridge to replace the previous one which had been washed out and in process of reconstruction of the bridge took materials from plaintiffs' land.

Plaintiffs in their second cause of action alleged the granting of the right of way and the terms hereinabove quoted and further averred: 'That the said right-of-way hereinabove described granted by the plaintiffs to the defendants was granted for the sole purpose of the use of the defendants to reach their property, and also for the purpose of the defendants driving and hauling cattle and feed across said right-of-way to reach defendants' property. That in the year 1956, the defendants leased their aforesaid described real property for deer hunting purposes during the deer hunting season of 1956; that the lessee of the hunting privileges of said premises has and is issuing memberships to numerous individuals for the purpose of hunting on the defendants' aforedescribed property. That the plaintiffs in the year 1956 leased their aforedescribed premises for hunting during the deer season of 1956.' (Italics added.) Plaintiffs further alleged that at the point the right of way commences on plaintiff's land they erected a gate and locked it with a chain and lock, delivering to defendants a key for the purpose of entry. 'That since the commencement of deer hunting season in the year 1956, and pursuant to the specific instructions of the defendants, a large number of people who have purchased hunting rights on defendants' land are entering plaintiffs' land over the aforesaid right-of-way granted to the defendants; that plaintiffs have requested the defendants to cease delivering said keys to said deer hunters and that defendants instruct said deer hunters not to cross plaintiffs' land; but defendants * * * fail and refuse, to do so; that said hunters are entering the land of the plaintiffs at the instruction of the defendants; (that the entry of said hunters upon plaintiffs' land is not for the primary purpose of gaining access to the defendants' land, but for the purpose of hunting on plaintiffs' land enroute to the defendants' land. ¹ ) * * * That the present use of said premises by the lessees of the defendants' is an unauthorized change of burden of the easement and is harmful to the plaintiffs' in that it has disrupted the hunting of the plaintiffs' lessee; that plaintiffs' lessee threatens to cancel his lease because of the use of the right-of-way by defendants' hunters.' (Italics added.)

The trial court found that prior to the year 1952 plaintiffs and defendants jointly owned all of the real property concerned in this litigation; 'that in the year 1952 Plaintiffs Laux and Defendants Freed (by mutual agreement) partitioned said property, Plaintiffs Laux (by the toss of a coin) becoming the owners of the land' referred to by the parties as the northerly parcel and defendants Freed becoming the owners of the southerly part, or 'brush patch.' To effect such conveyance each of the parties delivered to the other a deed conveying the grantors'...