McCann v. City of Los Angeles

• Decision Date: 27 March 1978
• Citation: 79 Cal.App.3d 112,144 Cal.Rptr. 696
• Court: California Court of Appeals Court of Appeals
• Parties: Gerald P. McCANN, Plaintiff and Respondent, v. The CITY OF LOS ANGELES, a Municipal Corporation, and the City of Glendale, a Municipal Corporation, Defendants and Appellants. Civ. 50776.

Page 696

144 Cal.Rptr. 696

79 Cal.App.3d 112

Gerald P. McCANN, Plaintiff and Respondent, v. The CITY OF LOS ANGELES, a Municipal Corporation, and the City of Glendale, a Municipal Corporation, Defendants and Appellants.

Civ. 50776.

Court of Appeal, Second District, Division 5, California.

March 27, 1978.

Burt Pines, City Atty., Los Angeles, Norman L. Roberts, Asst. City Atty., and Anthony P. Parrille, Deputy City Atty., for defendant and appellant City of Los Angeles

Frank Manzano, City Atty., for defendant and appellant City of Glendale.

Wadsworth, Fraser & Dahl, and Robert H. Dahl, Los Angeles, for plaintiff and respondent.

ASHBY, Associate Justice.

Defendants City of Los Angeles and City of Glendale appeal from a judgment based on breach of an easement agreement for damages in the amount of approximately $32,000.

Plaintiff purchased a piece of real property at 4570 Colorado Boulevard in the City of Los Angeles. He desired to construct a manufacturing facility, warehouse, and offices on it. The property was previously used only to stable horses and for pleasure horse riding.

When he purchased the property, plaintiff was aware that it was subject to a sewer easement purchased by the City of Glendale in 1925. A sewer running diagonally across the property was constructed in 1925 to 1927. It was a 42-inch unreinforced concrete semielliptical sewer buried 15 to 20 feet underground. It was a main trunk line of the sewer system, serving the communities of Glendale, Burbank, San Fernando, and Los Angeles. If this sewer were damaged and it failed, a significant health hazard would have resulted.

Without special designs to prevent the weight of plaintiff's building from bearing down on the sewer, construction of the building would have damaged the sewer. The City of Los Angeles operated and maintained the sewer pursuant to agreements with the City of Glendale. The property was located in the City of Los Angeles, and when plaintiff applied for a building permit, the permit was issued on the condition, among others, that the building span the sewer easement. Plaintiff's contractor designed a construction of "concrete caissons that are drilled on each side of the sewer, with beam constructed over the top in order to support the weight of the building structure without any of it being superimposed on the (sewer) . . . . (P) (I)t is a bridge-type structure to straddle the sewer."

Plaintiff went ahead with construction, using the straddling design. This type of construction cost plaintiff $32,000 more than the building would have cost if no special design to protect the sewer had been necessary.

It is the theory of plaintiff's case, adopted by the trial court in a nonjury trial, that the 1925 agreement granting the sewer easement to the City of Glendale entitles plaintiff to reimbursement by the cities of Glendale and Los Angeles ¹ for the cost of straddling the sewer. We hold that this is an erroneous interpretation of the 1925 easement and therefore we reverse. ²

DISCUSSION

The 1925 agreement between the City of Glendale and plaintiff's predecessors in interest granted to the City of Glendale for $1 and other valuable consideration "a perpetual easement and right of way for the construction, reconstruction, inspection(,) maintenance, operation and repair of a sanitary sewer in, under and along" a described 15-foot line across the property, "(t) ogether with the right to enter upon and to pass and repass over and along said strip of land, and to deposit tools, implements and other material thereon . . . whenever and wherever necessary for the purpose of constructing, reconstructing, inspecting, maintaining, operating and repairing said sanitary sewer."

On its part, Glendale agreed "(t)hat said sanitary sewer shall be constructed in a first class workmanlike manner. That upon the completion of said sanitary sewer, as much as possible of the earth excavated from the trench therefor shall be thrown back into the trench, and the remainder shall be removed; and that all of said back-filling shall be thoroughly packed, so that the ground will not sink or cave in after said back-filling is completed, and the top foot of said back-fill shall be good, soft earth or soil; That this easement shall in no manner interfere with the use of the surface of the ground by first parties or assigns for buildings or any purpose whatever, except during actual construction of said sewer; That the City of Glendale shall reimburse first parties or any of their tenants for actual damages to crops, trees, buildings or equipment, or loss of use thereof or of their land caused by its entry thereon ; That the parties of the first part reserve the right to dedicate any part of the herein described property for public streets or alleys; That as a further consideration, the City of Glendale does hereby agree that any storm waters from the streets of Glendale shall be prevented from damaging the lands of the first parties, and that should any such damage occur it will reimburse first parties or successors in interest or any tenants for any such damage." (Emphasis added.)

The trial court found that to require plaintiff to pay the cost of straddling the The easement granted to the City of Glendale in 1925 was a permanent interest in the land. The easement became the dominant tenement and the land became the servient tenement. (Civ.Code, § 803.) The owner of the servient tenement had the right to make any use of the land "that does not interfere unreasonably with the easement." (Pasadena v. California-Michigan etc. Co., 17 Cal.2d 576, 579, 110 P.2d 983, 985.)

sewer would be an interference with his use of the surface of the ground and would breach the 1925 agreement. Plaintiff relies particularly upon the language we have italicized above. This interpretation of the agreement is erroneous.

Plaintiff is not permitted to do to the surface of the land anything that unreasonably interferes with the sewer easement. Constructing on the surface a building which so weighs down on the sewer as to damage it unreasonably interferes with the easement. In Bd. Dir. Turlock Irr. Dist. v. City of Ceres, 116 Cal.App.2d 824, 254 P.2d 907, the irrigation district had constructed a pipeline under the ground. The city permitted subdivision and development of the surface with the result that streets and increased traffic passed over the pipeline, requiring reinforcing of the pipeline to bear the added strain. The court held that the city was liable to pay the easement holder, the irrigation district, for the cost of reinforcing the pipeline. (Id., at p. 830, 254 P.2d 907.) To the same effect, see Minard Run Oil Company v. Pennzoil Company, 419 Pa. 334, 214 A.2d 234, 235-236 (private road constructed across pipeline; landowner must pay cost of sinking the pipeline); Tenneco, Inc. v. May, 377 F.Supp. 941, 943-944 (E.D.Ky.1974), affirmed 512 F.2d 1380, 1381 (6th Cir. 1975) (same); Phillips Pipe Line Company v. Razo, 420 S.W.2d 691, 695 (Tex.1967) (landowner permitted unusually heavy construction vehicles to cross pipeline, damaging it; this use of the surface unreasonably interfered with the pipeline easement). See also Annot. (1953) 28 A.L.R.2d 626.

Plaintiff concedes the general rules to be correctly stated by such authorities, but contends that the particular language of the agreement in this case is "unique" and entitles him to reimbursement. We disagree. (Tide-Water Pipe Co. v. Blair Holding Co., Inc., 42 N.J. 591, 202 A.2d 405; Potter v. Northern Natural Gas Company, 201 Kan. 528, 441 P.2d 802.)

Tide-Water is almost squarely in point. There the landowner proposed to construct a building over an oil pipeline easement, which would have required either encasing the pipeline or moving the pipeline. The court held the landowner had no right to construct a building over the pipeline easement, because such construction was an unreasonable interference with the easement. (202 A.2d at pp. 412-413.) The court further held that the builder must pay the cost of moving the pipeline since even encasing the pipeline underneath the building would be an unreasonable interference with the easement in terms of difficulty of access or repairs. (Id., at p. 414.)

The language of the easement in Tide-Water was very similar to this case. It provided "that said pipe or pipes shall be so laid as not to interfere with the usual cultivation of the premises nor with any buildings thereon and that all actual damage done...