Roberts Const. Co. v. Vondriska, 4461

• Decision Date: 17 March 1976
• Docket Number: No. 4461,4461
• Citation: 547 P.2d 1171
• Parties: ROBERTS CONSTRUCTION COMPANY, a corporation, Appellant (Defendant below), Lloyd Cole and Blanche L. Cole, (Defendants below), v. Gilbert G. VONDRISKA and Rhea K. Vondriska, Appellees (Plaintiffs below).
• Court: Wyoming Supreme Court

Page 1171

547 P.2d 1171

ROBERTS CONSTRUCTION COMPANY, a corporation, Appellant (Defendant below), Lloyd Cole and Blanche L. Cole, (Defendants below), v. Gilbert G. VONDRISKA and Rhea K. Vondriska, Appellees (Plaintiffs below).

No. 4461.

Supreme Court of Wyoming.

March 17, 1976.

Rehearing Denied May 13, 1976.

Carl L. Lathrop, of Lathrop, Uchner & Mullikin, P.C., Cheyenne, for appellant.

Wade Brorby, Gillette, for appellees.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS, and ROSE, JJ.

UPON REARGUMENT

McCLINTOCK, Justice.

Roberts Construction Company ¹ appeals from the judgment of the District Court of Crook County, Wyoming entered June 12, 1974 which in principal part required Roberts by July 1, 1974 to remove all stockpiles, debris, and equipment from lands belonging to the plaintiffs. The judgment also gave plaintiffs permission to examine books and accounts of Roberts pertaining to limestone production under a quarry agreement, ² required Roberts to restore a gate which had been removed by Roberts and awarded $500 as punitive damages for interference with the gate, and also awarded plaintiffs $25 as nominal damages for Roberts' violation of the Wyoming Air Quality Act. Costs in the amount of $1,150, representing one-half the cost of aerial photographs and surveys obtained by plaintiffs for use in the course of the trial of the action, were awarded to plaintiffs. Insofar as this judgment determines that plaintiffs are entitled to discontinuance of use of their lands for stockpiling and storage purposes we are in agreement therewith, but modify the judgment in certain other respects.

In the spring of 1960 Lloyd Cole and his wife, being the owners in fee of a tract of land which we shall hereinafter refer to as the 'quarry tract' and having a lease ³ on lands which will be referred to as the 'stockpile tract,' gave Roberts oral permission to open a limestone quarry on the quarry tract and at that time suggested that the stockpile tract be used for the purpose of stockpiling limestone removed from the quarry. ⁴ At this time the Coles were in the process of selling their ranch to Delvin C. Cooper and his wife, and after consummation of the sale ⁵ and under date of July 25, 1960 the Coopers entered into a written agreement with Roberts as to the mining of limestone on the quarry tract, being the SW/4NE/4 and SE/4NW/4 of Section 11, T. 51 N., R. 63 W., 6th P.M., Crook County, Wyoming, together with other lands not here pertinent. This agreement specifically granted Roberts the right to 'maintain on said premises stock piles at all times' but did not describe or in any way refer to the stockpile tract. The evidence establishes without contradiction that Mr. Cooper was aware of the use that was being made of the stockpile tract and never objected thereto. The record does not disclose whether the then owners of this tract were aware of the use or that they consented thereto.

In 1967 or 1968 the Oppenheimers indicated to Cole their willingness to sell their 160 acres and an arrangement was worked out whereby they conveyed directly to the Coopers, retaining a one-half mineral interest, and the Coopers then transferred to Cole the remaining one-half interest as to limestone only. ⁶ The written transfers of these interests were not effected until some time in 1971 when the Coopers sold their interest in all lands to Clayton H. Talley under a contract for deed dated March 15, 1971. The testimony also shows that Talley knew of the quarry and stockpiling operation and made no objection thereto.

Under date of July 11, 1972 Talley's executor and principal devisee entered into a written contract of sale of the ranch to plaintiffs in which the buyers 'acknowledge that they are familiar with the Roberts contract' and that while seller does not reserve any mineral rights, buyers 'must purchase subject to the prior reservation of minerals and the contracts in regard to said minerals which are now in effect.' It is specifically provided that exception to title cannot be based on the 'Roberts lease, dated July 25 1960 and recorded in * * * Records of County Clerk of Crook County, Wyoming.'

Plaintiffs were first on the ranch in 1969, and in 1971 had some negotiations with the Coopers for the purchase thereof and looked at the area, including the quarry and stockpile, but did not proceed further. Their purchase in 1972 can properly be found to be with actual knowledge of the existence of the quarry and the stockpiling although there is nothing to show that they were then aware of the specific legal subdivisions that were involved in these operations. ⁷ The record shows no objection on their part to the maintenance of either the quarry or stockpile until the filing of this action, although in February of 1973 they attempted to renegotiate the terms of the quarry agreement, without mention of or complaint about the maintenance of the stockpile. Nothing resulted from these and further negotiations held in April, 1973, and on July 3, 1973, without further demand or notice from plaintiffs to Roberts, this action was commenced, alleging in pertinent part that defendant had for more than three years wrongfully and unlawfully used plaintiffs' lands outside the quarry tract for stockpiling of limestone, removing the topsoil therefrom and killing vegetation, and had used more than one means of ingress and egress and permitted large trucks to drive over lands outside the quarry tract. On this phase of the action injunction against further use of the lands outside the quarry tract is requested, as well as compensatory and punitive damages for improper use of the lands. The trial court found in plaintiffs' favor as to the wrongful use of 16.13 acres of land outside the quarry tract but that plaintiffs had proved no damages resulting from the wrongful use. Judgment was then entered as we have indicated in the opening paragraph of this opinion. Compliance with the judgment has been stayed by filing supersedeas bond.

In its brief Roberts claims that it is entitled to continued possession of the stockpile tract, free from interference by the plaintiffs, on the basis that, first, the plaintiffs 'purchased the ranch subject to the rights of Roberts in said 16.02 acres and with knowledge of the use thereon' and, secondly, that these '16.02 acres for stockpiling purposes are appurtenant to the lease agreement of 1960 and confers upon Roberts an easement in said premises for the term of the lease.'

There can be little dispute that the plaintiffs took with actual knowledge of Roberts possession and use of a part of the purchased premises as a quarry and another part thereof as a location for the stockpile, but that fact alone does not establish that Roberts had any continuing or enforceable rights in the stockpile tract. We must therefore direct our inquiry to determine the rights of Roberts under the facts above set forth.

While the language of the second proposition is somewhat obscure we interpret it to propose that the lease agreement confers an easement in the stockpile tract.

Roberts relies principally upon the case of Owsley v. Hamner, 36 Cal.2d 710, 227 P.2d 263, 24 A.L.R.2d 112 (1951). The plaintiffs in that case had acquired a building a portion of which had been leased to the defendant by plaintiffs' predecessor. A patio and passageway useful but not absolutely essential to the use of the leased premises were not mentioned in the lease but had been shown in plans in existence at the time the lease was made. The California court recognized as a general proposition that everything which belongs to the demised premises or is used with and appurtenant to them and which is reasonably essential to their enjoyment passes as an incident to them, unless specially reserved, ⁸ and further stated the test to be whether such easements are "reasonably necessary for the beneficial enjoyment of the property leased." ⁹

In the case before us the use of the stockpile tract was not reasonably necessary for the beneficial enjoyment of the quarry because the quarry agreement specifically gives Roberts the right to stockpile on lands covered by the agreement. Moreover, the ownership of the quarry tract was separate and apart from the ownership of the stockpile tract, the latter not being owner by Cole at the time of his oral agreement with Roberts, nor by Cooper at the time of his written agreement. It has been said that 'a mere tenant cannot grant a license to a stranger,' 1A Thompson on Real Property (1964 Repl.), § 217, p. 197; Webb v. Arterburn, 246 Iowa 363, 67 N.W.2d 504 (1954). While we might qualify this statement to indicate that a tenant legally in possession might grant to another a right to use a portion of the leasehold for some purpose not inconsistent with the lease, he could not create any rights running beyond the term of the lease. Cole specifically advised Roberts that he had only a lease and 'a first right to buy' the Oppenheimer land so that at some time Roberts might have to move the stockpiles. Roberts accepted this an started stockpiling with full knowledge that its continuing right to use the land was uncertain.

We therefore cannot agree with Roberts' argument that the right to stockpile was an appurtenance or implied covenant of the mining lease. The fact that Cooper, who executed the written mining agreement, subsequently acquired title and made no objection to the continuance of the stockpile might be of some significance in applying principles of estoppel but not as incorporating the stockpiling consent into the written lease.

There is little doubt in our minds that the enforcement of oral licenses against attempted revocation is based on principles of equitable estoppel. Summarizing briefly from 28 Am.Jur.2d Estoppel and Waiver § 35, p. 640 et seq. the elements of such estoppel, we find that the person estopped must be guilty of conduct which amounts to false representation, intention that such conduct be...