Pacific Gas & Elec. Co. v. Minnette

• Decision Date: 30 January 1953
• Citation: 115 Cal.App.2d 698,252 P.2d 642
• Court: California Court of Appeals Court of Appeals
• Parties: PACIFIC GAS & ELECTRIC CO. v. MINNETTE et al. Civ. 8071. Sac. 6203.

Page 642

252 P.2d 642

115 Cal.App.2d 698

PACIFIC GAS & ELECTRIC CO. v. MINNETTE et al.

Civ. 8071.

Sac. 6203.

District Court of Appeal, Third District, California.

Jan. 30, 1953.

Rehearing Denied Feb. 27, 1953.

Hearing Denied March 29, 1953.

Leo C. Dunnell, Wm. H. Herbert, and Adey Moy Dunnell, Fairfield, Bradley & Millon, Vallejo, for appellants.

Robert H. Gerdes, W. R. Dunn, and Frederick W. Mielke, Jr., San Francisco, Burt D. Goodman, Fairfield, for respondent.

VAN DYKE, Presiding Justice.

This is an appeal from a judgment quieting title in plaintiff to granted easements, and granting a mandatory injunction requiring appellants to remove a concrete block building which they constructed beneath the electric transmission wires of the respondent which cross over appellants' property. The trial court found this building encroached upon plaintiff's rights of way.

The action was brought by respondent and the allegations of the complaint may be summarized as follows: On April 4, 1917, M. Dos Reis and A. Dos Reis were the owners of a large tract of land in Solano County. On that date they granted to plaintiff an easement 40 feet in width across their lands for a term of 50 years. This grant gave the plaintiff the right of erecting and maintaining electric power lines on the parcel described in the grant and contained a covenant that the grantors would not erect or maintain any building or other structure on the right of way. On February 2, 1920 a like grant of easement was executed, giving the plaintiff for a term of 50 years the same easement rights in a strip of land 25 feet in width contiguous to the land described in the first grant. Plaintiff entered into the exercise of its easement rights and erected and maintained poles and wires for the transmission of electric energy. On July 2, 1945 the successors in interest of M. and A. Dos Reis conveyed to defendants and appellants a parcel of land 50 feet wide and 100 feet deep which lay beneath the plaintiff's wires. The complaint further alleged that with full knowledge of plaintiff's easements, and in violation of the original grants containing the building restrictions, the defendants in 1947 built upon their lot and beneath the wires a basalt block building 42 by 50 feet in horizontal dimensions and 21 feet in height, intended for use as a garage and repair shop. The complaint prayed for a decree quieting plaintiff's title to the easements and for a mandatory injunction requiring the removal of the building from plaintiff's rights of way. The court found that all of the foregoing allegations of the complaint were true and in addition found that the roof of the garage was erected to within 4 feet of wires carrying more than 750 volts. The evidence shows without dispute that, in addition to the particular wires referred to in the findings, plaintiff had for many years, before defendants purchased their lot, maintained three lines of poles on which were suspended wires carrying 12,000 volts beneath which, as well as beneath the lower voltage wires, the defendants constructed their building.

The answer of the defendants denied that the plaintiff's rights of way cross their lot although not denying that their building was beneath plaintiff's wires. These allegations rested upon a theory that the descriptions contained in the right of way grants, when platted by reference to the public records thereof and by reference to recorded title documents affecting lands referred to in the rights of way descriptions, were located some 100 feet easterly of defendants' lot and touched no part thereof. Defendants denied that plaintiff had ever entered into possession of the granted easements or into exercise of the rights given them, but on the contrary had erected their poles, wires and electric conduits on lands other than those described in the grants. Defendants alleged their title was not subject to the easements claimed by plaintiff. They pleaded that they had between January of 1947 and the 1st day of September of that year built their building at a cost of approximately $9,000; that a portion of the building was constructed beneath 'the wires of power lines suspended across said lands by plaintiff'; but defendants denied that their building was constructed on plaintiff's rights of way. They pleaded they had no notice of the recorded easement grants nor of the contents thereof and particularly of those provisions thereof concerning the construction of buildings on the rights of way. They alleged that when they took their title, although plaintiff's wires crossed over their lot, yet buildings had been built by others, not only upon the lot they bought but on property on either side thereof and beneath the plaintiff's wires, with the result that they in good faith believed they likewise had a right to build beneath the wires. Further, defendants alleged that before purchasing the property they caused the public records to be searched by a title company as to any liens, easements or other encumbrances that might be upon the lot they were buying and were told by the title company that the same was free from encumbrances; that they took title and thereafter constructed their building and that during the time of construction plaintiff had knowledge thereof and made no objection thereto until the building was nearly completed. They pleaded that in the intervening years between the granting of the easements for the construction of the electric transmission lines and the purchase of defendants' lot by them the neighborhood had greatly changed and had become closely built up, with the result that the plaintiff's wires extended over many buildings and structures in the same manner and to the same extent that they extended over defendants' building; that their building did not cover the whole of the rights of way claimed by plaintiff and did not interfere with plaintiff's ingress and egress thereto; that their building could not be moved because of the type of construction; that its presence did not damage the plaintiff nor constitute any but very slight inconvenience to it. They claimed estoppel so far as mandatory injunction to remove be concerned.

To the defendants' answer plaintiff interposed a general demurrer which was sustained without leave to amend and from the judgment thereafter entered the defendants appealed. The judgment was reversed by this Court upon the ground that the pleadings presented triable issues of fact, our opinion appearing in Pacific Gas & Electric Co. v. Minnette, 92 Cal.App.2d 401, 206 P.2d 1138. Thereafter the case was tried and the present judgment from which this appeal has been taken was entered against the defendants.

We have already said that the court found the allegations of the complaint were true. As to the answer the court found as above stated concerning the proximity of the roof to some of the wires; further found that at the time of the construction of the garage there were and for a long time prior thereto had been present upon the site of the garage a fuel shed and, on property adjoining that site, there was on one side a building 6 by 8 feet in horizontal dimensions used for a dwelling, and on the other side a one-story frame building used for a dwelling and as an office for an auto trailer court; that, aside from such buildings and mobile auto trailers from time to time present, the spaces beneath the wires were clear of any buildings visible from the site of the garage; that defendants had expended about $9,000 in the construction of the garage and that the building could not be moved without the destruction of it; that the defendants 'had no actual knowledge of the instruments attached to the complaint as Exhibits A and B [the two easement grants] prior to or at the time of erection of said garage building and that plaintiff did not express to defendants any objection to such construction at the time thereof'; that when the garage was built the neighborhood had been built up with dwellings and business structures, over some of which electric wires, of a light and power company subsidiary to plaintiff, extended. The court found all other allegations of the answer to be untrue.

Appellants contend that the finding the rights of way crossed the defendants' lot is not supported by the evidence. This contention cannot be sustained. The witness Pestoni testified for plaintiff as follows: He was a registered civil engineer and licensed land surveyor; in 1916 he located the right of way granted in 1917, and in 1920 went back and located the second right of way; in each instance he set stakes in the ground at the exact location where the poles suspending the wires were to be placed; in each case the poles later were actually placed in the ground where these stakes had been placed; all the poles and lines have remained in the same position ever since; having set the stakes, he then drew up descriptions from his survey. These descriptions so drawn were used in the easement grants. Both grants contained statements that the center line of each right of way, where the same crossed the Dos Reis lands, had been located and marked upon the ground by stakes driven therein by the engineer of the grantee and approved by the grantors. Appellants' arguments based upon a claim that the surveyor made a mistake with reference to the proper location of his starting point for his survey, so that a platting of the descriptions would put the rights of way in non-conformity with the actual location of the poles and wires, is unavailing here for it is clear from the testimony of the surveyor and from the language of the grants that the parties had agreed upon the actual lines, staked them upon the ground and intended that the descriptions should conform thereto. Any doubt, therefore, as to the conformity of the description as it might be platted with the actual location of the rights of way made by the parties is immaterial. This is a case...