Noronha v. Stewart

• Decision Date: 10 March 1988
• Docket Number: No. B020539,B020539
• Citation: 199 Cal.App.3d 485,245 Cal.Rptr. 94
• Court: California Court of Appeals Court of Appeals
• Parties: Reginald and June NORONHA, Plaintiffs and Respondents, v. Richard and Mattie Mae STEWART, Defendants and Appellants.

Page 94

245 Cal.Rptr. 94

199 Cal.App.3d 485

Reginald and June NORONHA, Plaintiffs and Respondents, v. Richard and Mattie Mae STEWART, Defendants and Appellants.

No. B020539.

Court of Appeal, Second District, Division 4, California.

March 10, 1988.

Review Denied May 26, 1988.

Frye & Spencer, and Richard C. Spencer, Los Angeles, for defendants and appellants.

Brown, Baron & Gailen, and Scott Gailen, Los Angeles, for plaintiffs and respondents.

ROTHMAN, Associate Justice, assigned. ^*

Defendants appeal a judgment pertaining to an encroaching wall that defendants built on plaintiffs' property. We reverse in part.

In 1978, defendants Richard and Mattie Stewart purchased a house in a newly constructed residential subdivision in San Pedro, the Terragona Homes. Defendants' lot, Lot No. 11, was adjacent to and down a slight slope from Lot No. 12 which would eventually be purchased by the plaintiffs. Shortly after moving in, defendants contacted the apparent owner of the adjacent Lot No. 12--at that time, Lawrence Jett--about building a wall between their properties. Jett, along with two partners, had previously owned all the land in the undeveloped subdivision, but sold it to the developer who constructed the houses. As part of the sale, Jett was to get title to Lot 12 after a house was built on the property. At the time defendants approached him about constructing a wall, however, Jett was not the legal owner of Lot 12, but was merely entitled to it under contract.

As plaintiffs admit in their brief, this fact was unknown to defendants who erroneously believed that Jett was the legal owner of the property. Jett, who was guaranteed Lot 12, was permitted to exercise complete control over the property and willingly agreed to allow defendants to build a wall.

The point of contention in this case is the slope between Lots 11 and 12. Lot 11, belonging to the defendants, is slightly lower than Lot 12, with a tapering slope between the two which reaches three to four feet in height at the rear of the lots. This slope lies entirely within Lot 12 as the boundary between the properties runs along the bottom of the slope.

Neither Jett nor the defendants wished to build a wall following the properties' actual boundaries along the bottom of the slope, however, as this would provide no privacy to either lot. Anyone standing on Lot 12 could look down into Lot 11 and anything more than two or three feet high on Lot 12 would be visible over the wall. Jett, therefore, agreed to allow defendants to construct the wall along the top of the slope, thus leaving the slope on defendants' side of the wall and encroaching on Lot 12 from about four inches in the front to eight feet in the back.

Jett testified that he intended to grant defendants a written easement on the encroachment property and invited them to come around to his office to obtain the proper form. No written easement was given, and, in fact, Jett was not the legal owner of the property at the time he gave his permission to build the wall on Lot 12. Defendants thereafter constructed a specially reinforced wall along the top of the slope, paying the entire $8,000 cost themselves.

After the wall was constructed, Jett obtained legal title to the property, but held the lot only five days before selling it to plaintiffs. Eight months after moving in, plaintiffs demanded that defendants tear down the wall at their own expense and restore the slope to them. Defendants refused and this case ensued.

Upon hearing the evidence, the trial court ruled that defendants had no easement or license to construct the wall as Jett was not the legal owner of the property at the time he gave his permission. Balancing the relative hardships, the court permitted the wall to remain standing until defendants sell the property, at which time it appears defendants must pay for the wall's removal. The defendants were also ordered to pay $5,680 to plaintiffs as damages for the use of the property and to remove a gazebo constructed on the encroached property.

I

In rendering its decision, the trial court relied on the time honored doctrine that no grantee can have better title than the grantor. Since Jett had no present interest in the property at the time he gave his permission to construct the wall, the court reasoned then that no interest in the property could have passed to the defendants.

It has long been recognized, however, that if a grantor purports to convey an interest in land which the grantor does not own, but afterwards acquires, the interest passes to the grantee at the time the grantor obtains it. "The general rule is that if the grantor in a conveyance of real property has no title, a defective title, or an estate less than that which he assumed to grant, but subsequently he acquires the title or estate he purported to convey or perfects his title, the after-acquired or perfected title will inure to the grantee or his successors by way of estoppel, i.e., the grantor is estopped to deny that the after-acquired title passed by his conveyance." (1 Ogden's Revised California Real Property Law (Cont.Ed.Bar 1974) § 4.20, p. 142.) The effect "is the same as if it were written upon the face [or the instrument] that the grantor conveyed all the estate which he then possessed or which he might at any time thereafter acquire. [Citations.]" (Younger v. Moore (1909) 155 Cal. 767, 773, 103 P. 221; accord Warburton v. Kieferle (1955) 135 Cal.App.2d 278, 284, 287 P.2d 1.)

This doctrine of "after-acquired title" is recognized in California and has been partially codified into Civil Code section 1106, which provides: "Where a person purports by proper instrument to grant real property in fee simple, and subsequently acquires any title, or claim of title thereto, the same passes by operation of law to the grantee, or his successors."

This statutory rule is limited to grants of fee simple and is therefore not applicable to the case at hand. ¹ The common-law rule, however, survived the enactment of the statute (1 Ogden's Revised California Real Property Law (Cont.Ed.Bar.1974) § 420, p. 143), and is considerably broader: "[T]he common-law rule of after-acquired title is based upon the doctrine of estoppel, that is, that the grantor has led the grantee to believe that a certain estate or title was being conveyed. When the grantor subsequently acquires the title or estate he purported to transfer, he is estopped to deny its passage to the grantee. Therefore, the common-law rule is not limited to fee simple conveyances but applies to the transfer of any estate when the grantee initially receives a lesser interest than he was induced to believe he had received." (2 Miller & Starr, Current Law of California Real Estate (1977) Deeds, § 14:56, p. 588; emphasis in original; fn. omitted.)

Contrary to the trial court's finding, therefore, the fact that Jett did not own the property at the time he attempted to grant the easement does not prevent the defendants from asserting an interest in the land. Under the doctrine of after-acquired title, once Jett became the owner of the property, he and his successors were estopped from contesting the passage of the easement to the defendants. (6A Powell, The Law of Real Property (1982) p 927, p. 84-113; 1 Ogden's Revised California Real Property Law (Cont.Ed.Bar.1974) § 13.21, pp. 552-553.)

The plaintiffs argue that no easement exists that can pass to the defendants as Jett's permission to build the wall was never reduced to writing. While Jett's oral promise may have lacked the formal requirements necessary to create an easement it undeniably constituted a license. ² And where a party has made substantial expenditures in reliance on a license, the license acts, for all purposes, as an easement, estopping the grantor and his successor from revoking it. As the court observed in Cooke v. Ramponi (1952) 38 Cal.2d 282, 286, 239 P.2d 638: "it is well settled in this state that 'where a licensee has entered under a parol license and has expended money, or its equivalent in labor, in the execution of the license, the license becomes irrevocable, the licensee will have a right of entry upon the lands of the licensor for the purpose of maintaining his structures, or, in general, his rights under his license, and the license will continue for so long a time as the nature of it calls for.' "

While recognizing this, plaintiffs argue that defendants' reliance on the license was not reasonable since they made only one attempt to perfect an easement, and that plaintiffs should not be estopped from revoking the license as they had no notice that the license existed. Neither argument is meritorious. First, there is nothing inherently unreasonable in a party's reliance on a promise or the failure to insist on a writing. Indeed, defendants made a far greater effort to perfect their interest here than is evidenced in other cases granting irrevocable licenses. (See Cooke v. Ramponi, supra, 38 Cal.2d 282, 239 P.2d 638; Stoner v. Zucker (1906) 148 Cal. 516, 83 P. 808.) Secondly, as to plaintiffs' claim that they were unaware that the wall was on their property, Lawrence Jett repeatedly testified that he informed plaintiffs of this fact and showed them the location of the actual boundary. Nor is plaintiffs' knowledge required for the license to become irrevocable. Once defendants have expended substantial effort in execution of the license, "the license will continue for so long a time as the nature of it calls for." ( Cooke v. Ramponi, supra, 38 Cal.2d at p. 286, 239 P.2d 638.) Defendants accomplished this before Jett became the owner of the property. Once Jett acquired the property, the license was binding on him and his successors in interest, the plaintiffs.

Plaintiffs finally argue that no estoppel should apply as defendants had notice that Jett was not the true owner of...