Reese v. Borghi

Decision Date20 May 1963
Citation30 Cal.Rptr. 868,216 Cal.App.2d 324
CourtCalifornia Court of Appeals Court of Appeals
PartiesClyde L. REESE and Marie W. Reese, Plaintiffs and Respondents, v. Franzo BORGHI and Mary Borghi, Defendants and Appellants. Civ. 20518.

LeRoy A. Broun, Robert L. Lancefield, Fremont, for appellants.

Clyde L. Reese and Marie Reese, Sunol, in pro. per.

SULLIVAN, Justice.

Defendants Franzo and Mary Borghi, husband and wife, appeal from a declaratory judgment granting plaintiffs Clyde L. and Marie W. Reese, husband and wife, a right-of-way of necessity over a parcel of land previously conveyed to defendants by plaintiffs. Defendants also appeal from an order denying their motion to strike plaintiffs' cost bill. Although represented by counsel below, plaintiffs appear here in propriis personis.

The principal facts are not in dispute. In 1953 plaintiffs acquired five contiguous parcels of land referred to in the record as Whiteside, B-1, B-2, C and A, together with a nonexclusive perpetual easement and right-of-way appurtenant thereto over and along a private road called Witherly Lane, which ran in a general easterly and westerly direction and connected on the west with a main highway. All of the above parcels are situated on the north side of the above road. Proceeding from west to east, the parcels lie generally as follows: Whiteside, the most westerly, abuts the road on the north; next, parcel B-2 abuts the road on the north with parcel B-1 in the rear and to the north of B-2; 1 next, parcel A abuts the road on the north with parcel C in the rear and to the north of parcel A. Thus, generally speaking and with the exception mentioned in the footnote, parcel B-1 lies behind parcel B-2 and, immediately to the east of such strip of land, parcel C lises behind parcel A.

In 1955 plaintiffs sold and deeded Whiteside to the grantee bearing that name and also sold and deeded parcel A to one Symes. On April 2, 1956, plaintiffs sold and conveyed to the defendants both parcel B-1 and parcel B-2. As a result of such conveyance parcel C, which was retained by plaintiffs, became landlocked without any means of ingress or egress to or from Witherly Lane.

The record discloses considerable evidence bearing upon the circumstances surrounding the sale made by plaintiffs to defendants. It appears, and the court so found, that for some years prior to the sale plaintiffs used a pathway along and upon the easterly boundary of the strip of land composed of parcels B-2 and B-1 in order to obtain access to parcel C from Witherly Lane. It also appears that when plaintiffs contemplated the sale of this strip of land, they also had in mind that they might buy parcel A from Symes, thus acquiring access to the road. Symes had listed parcel A with a real estate broker for sale and plaintiffs had discussed with Symes the purchase of this parcel after the expiration of the exclusive listing 'in order to save the * * * real estate commission * * *.' Plaintiffs claimed that they had an understanding with the defendants that if they were unable to buy parcel A from Symes they would continue to have an easement along the pathway customarily used by them which was on the two parcels sold to the defendants.

It developed that plaintiffs were unable to buy Symes' parcel because it was purchased by the secretary of defendants' counsel, who subsequently conveyed the property to the defendants. In view of the conclusion which we reach, it is not necessary to recite the details of this remarkable transaction. Suffice it to say that it effectively thwarted plaintiffs' plans for an access route to the road over the Symes' property.

As already pointed out, plaintiffs claimed an informal agreement with the defendants assuring the former an easement over the property being sold. On this point plaintiffs also introduced evidence to the effect that they proposed that such a provision be included in the written agreement of sale but that defendants' counsel informed plaintiffs it would be unnecessary since they could depend on the defendants to adhere to any understanding between the parties. The record discloses conflicting evidence on this phase of the case.

One significant and crucial occurrence remains to be noted. After the defendants acquired parcels B-1 and B-2 from plaintiffs, they constructed their family residence on the property in such a way as to block and render unusable the pathway which plaintiffs had previously used in order to reach parcel C.

On April 13, 1959, plaintiffs commenced the instant action in declaratory relief. Their complaint set forth four separately stated causes of action: the first sought 'a way of necessity from that portion of lot deeded to defendants'; the second sought similar relief on the basis of an estoppel; the third sought the declaration of an easement by implication; and the fourth sought an easement by implication on the basis that the defendants, knowing that plaintiffs desired to buy the Symes' property, proceeded to purchase it themselves, thus causing the plaintiffs to be landlocked.

The trial court found that the plaintiffs formerly owned all the parcels; that they had an easement appurtenant thereto over Witherly Lane; that they sold parcels B-1 and B-2 to the defendants; that plaintiffs' retained parcel C thereupon was landlocked; that plaintiffs had previously used a pathway over parcels B-1 and B-2 which was blocked and rendered unusable by defendants' residence; that at the time plaintiffs conveyed parcels B-1 and B-2 to defendants 'the parties * * * intended that plaintiffs have a temporary right of way ten feet in width for purposes of ingress and egress from parcel C to Witherly Lane along and across the property conveyed to defendants * * * until parcel C was no longer landlocked * * *'; and that the location of such ten foot right-of-way along the eastern boundary of parcel A (i. e., the property purchased by defendants from Symes) was a location best suited for the interests of all parties concerned. 2 The court concluded that plaintiffs were entitled to 'a right of way of necessity, ten feet in width,' over and along the easterly boundary of parcel A to continue until parcel C is no longer landlocked. Judgment was entered accordingly. For the reasons indicated in the last footnote, no objection is made on this appeal to the validity of the right-of-way granted plaintiffs because of its location on the property conveyed to defendants by Symes rather than on that conveyed by plaintiffs. The location of the right-of-way is therefore not in issue.

Defendants contend before us (1) that the awarding of such right-of-way constitutes a taking of their property without just compensation in violation of their constitutionally guaranteed rights; (2) that in the light of the evidence the court was powerless to declare an easement by implied reservation; and (3) that the court erred in relieving plaintiffs of their failure to file a cost bill within the prescribed statutory period.

Defendants' first contention rests upon the proposition that under section 1001 of the Civil Code '[a]ny person may * * * acquire private property for any use' specified in section 1238 of the Code of Civil Procedure by proceedings in eminent domain as provided in said Code, 3 that one of the uses so specified is for '[b]yroads leading from highways to * * * farms' (Code Civ.Proc., § 1238, subd. 6), that an easement is a substantial property right and that under established principles of constitutional law no such property can be taken without just compensation. The short answer to this ponderous plea is that the right-of-way in question was sought and acquired as a common law right and not by the exercise of the power of eminent domain. Plaintiffs' common law right to seek a right-of-way of necessity is not affected by the fact that he could have a right-of-way by condemnation (Blum v. Weston (1894) 102 Cal. 362, 369, 36 P. 778; Taylor v. Warnaky (1880) 55 Cal. 350). In the language of the latter case, the plaintiffs here were not 'driven to a proceeding to condemn the land on payment of its value * * *.' (55 Cal. 351.)

We turn to defendants' second contention. They claim that '[t]here can be no easement by implied reservation where the evidence clearly shows that the parties were thoroughly acquainted with the absence of access and did not, at the time of the conveyance, intend to create such a servitude.' In support of this position they argue that an implied easement must be based upon 'obvious, continuous, and pre-existing use' (the gist of the argument being that none existed here) and that the unqualified conveyance made by the plaintiffs precludes, in the absence of any finding of fraud or mistake, any intention of the parties to create an easement at the time of the conveyance.

The defect in the above argument derives from defendants' confusion concerning the basis on which the trial court granted relief. As determined by the court, plaintiffs' rights in the instant case rest on a claim to a right-of-way necessity not to an easement by implication based, to use defendants' language, on an 'obvious, continuous, and pre-existing use.' Any possible doubt about the basis of the relief granted dissolves upon an examination of the judgment. It states 'that plaintiffs * * * are granted a temporary right of way of necessity' and that '[t]his right of way shall terminate * * * when said aforedescribed parcel C is no longer landlocked * * *.' 4 In the law on the subject there is a well recognized and long standing distinction between a right-of-way of necessity arising by operation of law and an easement by implication based upon a preexisting use. (3 Powell on Real Property, §§ 410, 411; 2 Thompson on Real Property (1961 Replacement), §§ 355, 358, 362; 17A Am.Jur., Easements, §§ 41-45, 58; 17 Cal.Jur.2d Easements, §§ 13-15, 16; 2 Witkin, Summary of Cal. Law, Real Property, §§ 183,...

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