Loma Vista Inv., Inc. v. Roman Catholic Archbishop of Los Angeles
| Decision Date | 26 February 1958 |
| Citation | 158 Cal.App.2d 58,322 P.2d 35 |
| Court | California Court of Appeals Court of Appeals |
| Parties | LOMA VISTA INVESTMENT, Inc., a corporation, Lewis A. Crank, Ronald D. Thomas, Shirley M. Thomas, Albert T. Fuller, Barbara E. Fuller, Robert D. Michael, Lida Mae Michael, Gordon Platt Talcott, Elizabeth Patricia Talcott, Waldo Bedford Matheson, Vivian Louise Matheson, Garland F. Garrett, Gwenn M. Garrett, Fred L. Mitchell, Dolores R. Mitchell, Joseph D. Chaves, Eileen K. Chaves, Roy Anthony Balling, Doris Wanda Balling, E. Loopesko, Bonnie K. Loopesko, Rudolph J. Merrick, Molly Merrick, Howard B. Lawrence and Cecile W. Lawrence, Plaintiffs, v. The ROMAN CATHOLIC ARCHBISHOP OF LOS ANGELES, a corporation sole, formerly the Roman Catholic Bishop of Los Angeles and San Diego, a corporation sole, Title Insurance and Trust Company, a corporation, Louis Sentous, Jr., John C. Sentous, First Doe, Second Doe, Third Doe, Fourth Doe, Fifth Doe, Sixth Doe, and Seventh Doe, Defendants, LOMA VISTA INVESTMENT, Inc., a corporation, Lewis A. Crank, Ronald D. Thomas, Shirley M. Thomas, Albert T. Fuller, Barbara E. Fuller, Robert D. Michael, Lida Mae Michael, Gordon Platt Talcott, Elizabeth Patricia Talcott, Waldo Bedford Matheson, Vivian Louise Matheson, Garland F. Garrett, Gwenn M. Garrett, Fred L. Mitchell, Dolores R. Mitchell, Joseph D. Chaves, Eileen K. Chaves, Roy Anthony Balling, Doris Wanda Balling, E. Loopesko, Bonnie K. Loopesko, Howard B. Lawrence and Cecile W. Lawrence, Appellants, v. The ROMAN CATHOLIC ARCHBISHOP OF LOS ANGELES, a corporation sole, Respondent. Civ. 22373. |
R. D. Sweeney and John L. Mace, Los Angeles, for appellants.
Waters, Arditto & Waters, Mary E. Waters, and Wm. Marshall Morgan, Los Angeles, for respondent.
Appeal by plaintiffs from a judgment of nonsuit in a suit to quiet title to an alleged prior easement of a portion of Hill Street 1 in the County of Los Angeles, and for declaratory relief.
Augustin Machado, at the time of his death in 1865, owned an undivided one-fourth interest in Rancho La Ballona in the County of Los Angeles which he devised half to his wife, Ramona Machado, and half to his 13 children in equal shares. In 1868 the entire rancho was partitioned and a portion was allotted to Ramona and the 13 children. In 1876, at the suit of Ramona, the portion theretofore allotted to her and the children was partitioned. The decree in that suit is referred to as the Machado decree. The property partitioned consisted of 13,919.90 acres and presently comprises most of Culver City and Santa Monica, part of the city of Los Angeles, and county territory. The strip of land in dispute here was laid out and set apart as a street by the referee in the partition proceeding by metes and bounds corresponding with the boundaries of the adjacent tracts.
The property and the roads and streets adjudicated in the decree were platted and the plat thereof was recorded in the office of the county recorder of the County of Los Angeles on April 29, 1876.
In 1874 the following was added to section 764 of the Code of Civil Procedure:
'Before making partition or sale the referees may, wherever it will be for the advantage of those interested, set apart a portion of the property for a way, road, or street, and the portion so set apart must not be assigned to any of the parties or sold, but must remain an open and public way, road, or street, unless the referees shall set the same apart as a private way for the use of the parties interested, or some of them, their heirs and assigns, in which case it shall remain such private way.'
Code Amdts. 1873-4, p. 325. The amendment for the first time authorized referees in partition proceedings to set apart a portion of the property for a way, road, or street which 'must not be assigned to any of the parties * * * but must remain an open and public way, road, or street.'
Pursuant to the amendment, the decree contained this provision:
'It is furthermore ordered, adjudged, and decreed that the following described roads and streets are laid out and shall remain forever open for the common use & benefit of all the parties hereto, to-wit:'
On July 5, 1889 the board of supervisors of the County of Los Angeles adopted a resolution declaring that all roads and streets theretofore platted and recorded were forthwith public highways of the county.
On January 30, 1950 plaintiff Crank wrote to the road commissioner of the County of Los Angeles stating he was interested in the abandonment of Hill Street by the county, that it had never been developed by the county; asking the road commissioner to prepare the necessary petition for abandonment; and stating he would obtain the necessary signatures to the petition for filing with the board of supervisors. On April 19, 1955 the board of supervisors adopted a resolution finding that the portion of Hill Street in controversy here 'is unnecessary for present or prospective public use' and declared it vacated as a public highway.
Plaintiffs and defendants in their respective titles are successors by mesne conveyances to parties in the Machado decree. Plaintiff Lewis A. Crank acquired a tract of land included in the decree which abuts on portions of Hill Street but not on the portion involved in this suit. Retaining one portion, he conveyed the remainder of the tract to Loma Vista Investment, Inc., which caused it to be subdivided into two tracts. Some of the subdivided lots were conveyed to other plaintiffs and some are still owned by the corporation. Only four of plaintiffs own land abutting on Hill Street but their lands do not abut on the portion over which plaintiffs claim the easement.
Defendant became the owner of a tract of land included in the decree. The land abuts on both sides of the portion of Hill Street over which plaintiffs seek to establish the easement. Defendant's land is a cemetery. The easterly terminus of Hill Street dead-ends in the cemetery. Thus the portion of Hill Street over which plaintiffs seek to establish an easement is a cul-de-sac; it is entirely surrounded by defendant's cemetery except at its west end. It is not paved or curbed but is a dirt road about 7 feet wide. The properties of plaintiffs and all means of ingress to and egress from their properties are to the west of the cemetery; that is, the property in suit is not and cannot be used as a means of ingress to or egress from their properties. Plaintiffs concede 'that the easement sought to be established herein is not an easement of necessity; that is, that the plaintiffs do not find it absolutely necessary to use the portion of Hill Street here involved in going to or from their properties.'
Plaintiffs assert the Machado decree was a grant of private easements; the easement in the portion of Hill Street in suit never became a public highway by dedication; the private easement has not been extinguished; and it existed in the public highway after the board of supervisors declared it to be a public highway contemporaneously with the public use, and survived the vacation of the public highway. Defendant asserts the Machado decree created public roads and streets under the authority of section 764 of the Code of Civil Procedure, and that on vacation of the portion in suit title vested in him as the owner of the contiguous property.
Machado v. Title Guarantee & T. Co., 15 Cal.2d 180, 99 P.2d 245, decides this suit. In that case the court construed the Machado decree. As we read the opinion, it held that the roads and streets laid out and set apart by the referee in the 1876 partition suit were public ways. The facts of that case material to this are related in the opinion. The court stated (15 Cal.2d at page 182, 99 P.2d at page 245):
'This is a suit to quiet title to a strip of land which was set apart for a public way in a partition proceeding in 1876 but which was never accepted, used or improved for such purpose and was formally...
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