Marin County Hospital Dist. v. Cicurel

• Decision Date: 08 October 1957
• Citation: 154 Cal.App.2d 294,316 P.2d 32
• Court: California Court of Appeals Court of Appeals
• Parties: MARIN COUNTY HOSPITAL DISTRICT, a Public Corporation, and Schultz Investment Co., a Corporation, formerly known as 'Schultz Co.', Plaintiffs and Respondents, v. William C. CICUREL, Eleanor, Cicurel, et al., Defendants and Appellants. Civ. 17426.

Page 32

316 P.2d 32

154 Cal.App.2d 294

MARIN COUNTY HOSPITAL DISTRICT, a Public Corporation, and Schultz Investment Co., a Corporation, formerly known as 'Schultz Co.', Plaintiffs and Respondents, v. William C. CICUREL, Eleanor, Cicurel, et al., Defendants and Appellants.

Civ. 17426.

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

Oct. 8, 1957.

Philip S. Ehrlich, Irving Rovens, San Francisco, for appellants.

Gardiner, Riede & Elliott, William T. Bagley, San Rafael, for respondents.

PETERS, Presiding Justice.

Plaintiffs and defendants own adjoining parcels of land in Marin County, which parcels, prior to 1909, were owned by a common grantor. Defendants admittedly own a 10-foot right-of-way along their northern boundary on the land of plaintiffs. Defendants, in addition, claim an easement, or a covenant running with the land, across the lands of plaintiffs and connecting with their 10-foot easement so that they will have ingress and egress to their lands from the north. Plaintiffs brought this action to quiet their title against these claims of defendants. The trial court quieted plaintiffs' title and defendants appeal.

There is no doubt that defendants' basic deed from the common grantor contains language referring to the claimed right-of-way across the lands of plaintiffs. The precise question to be determined is whether that language merely created a personal covenant, as held by the trial court, or created a covenant running with the land, or an easement, as contended by defendants.

In 1909 J. E. Manlove owned all the lands now owned by plaintiffs and defendants. On May 10, 1909, Manlove and his wife deeded to Allyce T. Aiken the parcel of land now owned by defendants. The deed describes the parcel conveyed by metes and bounds, recites that the Manloves 'grant, bargain and sell' to Aiken 'and to her heirs and assigns, forever,' the parcel of land involved 'together with a right of way for all purposes of travel or as a roadway over and along a strip of land having a uniform width of ten feet and lying immediately north' of the parcel conveyed. This clearly conveyed to Aiken and easement along her northern boundary across the lands retained by the Manloves. The deed then recites that the Manloves also agree 'to extend one of the roads of the tract to connect with said strip as to give ingress and egress thereto to vehicles, if so requested by' Aiken.

On November 11, 1909, Aiken deeded the property to Davis by a deed containing this language: 'together with the right granted to said Allyce T. Aiken by J. E. Manlove and Margaret I. Manlove, by deed dated May 10, 1909 * * * to have said Manlove extend one of the roads in the tract of land, of which the above described property is a part.'

On September 30, 1910, Davis deeded the property to the Hoopers and the same language appears as quoted above in the Aiken-Davis deed. Then in 1915 Hooper conveyed the property to himself and wife, in which deed the property was described by reference to the description in the Aiken-Davis deed, but which contained no reference at all either to the right-of-way or to the covenant. In 1917 the Hoopers deeded to Parker, the deed being identical with the preceding deed. On August 1, 1929, Parker deed to Hamm. In this deed the metes and bounds description of the property is spelled out and the 10-foot easement is described, but there is no reference to the Aiken-Davis deed and no express mention of the covenant. The deed does purport to convey the land and 10-foot easement 'together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in anywise appertaining.' Hamm deeded to Richards in 1932 by a deed with the same description as the Parker-Hamm deed, but with no reference to 'tenements, hereditaments, and appurtenances.' This chain of title with similar deeds proceeded up to defendants, who were deeded the property June 10, 1948. Thus, starting with the Hamm-Richards deed and proceeding up to and including defendants, the deeds described the parcel conveyed by metes and bounds, and the 10-foot easement was conveyed, but the covenant was not directly or indirectly mentioned.

Now we again go back to the common grantor, Manlove. It is not necessary to trace in detail the plaintiffs' chain of title. Every deed leading from Manlove to plaintiffs specifically mentions and excepts the 10-foot easement, but in none of them is there any reference at all to the covenant. The first deed in this chain of title was prior to May 4, 1911. That date may be important because on that day a tract or subdivision map designated 'Map No. 2 Bon Air Tract, Marin County, Cal.' was recorded. It does not appear who filed this map. It shows defendants' property, with a notation that such property is 'not included,' and all of plaintiffs' property. On plaintiffs' property it shows several roads, one of which is shown as leading to the 10-foot easement along the northern boundary of defendants' property. Except for minor portions of these roads, the roads as shown on the map have never been laid out.

Substantially all of the property here involved, except for a portion of the property owned by the hospital, is unimproved grazing or agricultural land, and the area is fenced. The county has never assessed taxes on any portion of the land shown on the map as streets and roads.

Mrs. Cicurel, one of the defendants, testified that she and her husband purchased their property based on a map which showed Orchard Road, which would give her ingress and egress to her property from the north. She also testified that she intended to subdivide her property or build on it, particularly the northern part of it, but if she does so there would be no means of ingress and egress to the northern lots except through the southern portion of the land that she intended to retain.

The trial court found that it was untrue that defendants' property is or ever was a portion of the Bon Air Tract, and that it was also untrue that defendants' predecessor in interest purchased the property from the then owners of the Bon Air Tract by reference to a map of that tract. The court also found that defendants' property fronts on Tamalpais Road, and that it is untrue that it is necessary that Bay View Road and Orchard Road be maintained open and unobstructed in order to permit defendants to have ingress and egress to their property. It was also found to be untrue that defendants have a perpetual or other easement over and across these roads; that, insofar, as the roads are concerned, on plaintiffs' property no easement for a right-of-way to the property owned by defendants was granted in or by the Manlove-Aiken deed, nor was any such easement created by the wording in that deed, nor was any easement created that was appurtenant to the land owned by defendants.

Based on these findings the trial court entered its judgment quieting the title to plaintiffs' property, decreeing that defendants had a right-of-way therein only as to the 10-foot strip, and that defendants had no right, title or interest or easement in and to or over the remaining portions of plaintiffs' land. Defendants appeal.

The main contention of appellants is that the trial court erred in holding that the provision in the Manlove-Aiken deed in reference to the extension of the roadway was a mere personal covenant. Appellants contend that the deed created a perpetual appurtenant easement enforceable against respondents. Alternatively appellants contend that if not an easement, the provision was a covenant running with the land and binding of respondents.

The provision in the Manlove-Aiken deed conferring on the grantee the right upon request to have one of the roads on the grantor's tract extended to connect with the 10-foot right-of-way was clearly a covenant. It required the grantor to take affirmative action with respect to his retained land, that is, upon request of the grantee to build a road to connect with the right-of-way. Such an obligation is a covenant and not an easement. The question is whether it is a personal covenant or one that runs with the land.

It is clear that the language did not create an easement. In 17 Cal.Jur.2d 89, § 2, an easement is defined as 'a right which subjects land or a tenement to some service for the use of some other land or tenement belonging to another owner, involving primarily the privilege of doing a certain act on, or to the detriment of, the former * * * it is a privilege, without profit, which the owner of one tenement has a right to enjoy in respect of that tenement in or over the tenement of another person, by reason whereof the latter is obliged to suffer or refrain from doing something on his own tenement for the advantage of the former.' An easement always implies an interest in the land in and over which it is to be enjoyed.

The right to cross over the lands of another is, of course, an easement, and if this right is enjoyed with and used for the benefit of certain premises in such a manner as to be an adjunct of the land it is an appurtenant easement. Balestra v. Button, 54 Cal.App.2d 192, 128 P.2d 816. In the instant case the Manlove-Aiken deed first describes the land conveyed, and then describes the 10-foot right-of-way along the northern boundary of the land conveyed. This admittedly created an appurtenant easement in favor of the grantee. Then the deed recites that the grantors 'hereto agreeing to extend one of the roads of the tract to connect with said strip as to give ingress and egress thereto to vehicle, if so requested' by the grantee. If this clause created an easement then we agree with appellants that such easement would be appurtenant and not in gross. This follows from the fact that the roadway, if constructed, was obviously intended by the parties as a means of passing to and from the property conveyed to the grantee. The cases support this conclusion. Nay v. Bernard, 40 Cal.App....