O'Shea v. Claude C. Wood Co.

• Decision Date: 22 October 1979
• Citation: 97 Cal.App.3d 903,159 Cal.Rptr. 125
• Court: California Court of Appeals Court of Appeals
• Parties: Timothy O'SHEA, Plaintiff and Appellant, v. CLAUDE C. WOOD COMPANY, a California Corporation, Defendant and Respondent. Civ. 17356.

Page 125

159 Cal.Rptr. 125

97 Cal.App.3d 903

Timothy O'SHEA, Plaintiff and Appellant, v. CLAUDE C. WOOD COMPANY, a California Corporation, Defendant and Respondent.

Civ. 17356.

Court of Appeal, Third District, California.

Oct. 22, 1979.

Rehearing Denied Nov. 20, 1979.

Donald D. Boscoe and Marvin Marks, Stockton, for plaintiff and appellant.

Albert E. Cronin, Jr., Stockton, for defendant and respondent.

REYNOSO, Associate Justice.

We are called upon to interpret provisions of Civil Code section 846, which generally protects landowners from liability for injuries to recreational users of their land. ¹ Specifically, the principal issue we face is this. Does an "estate in real property" within the meaning of that code section, include the temporary use of a stock pile area and the dirt piled upon it? The facts we outline below, convince us the owner of the dirt was a licensee who did not own an estate in real property. That conclusion, and the related procedural matters we discuss, causes us to reverse and remand.

Timothy O'Shea (plaintiff) appeals from an order granting a summary judgment in favor of Claude C. Wood Co. (defendant).

Plaintiff's complaint ² for personal injuries alleges that defendant owned a pile of dirt which it had placed upon land belonging to Grupe Development Company (Grupe), with the permission of Westmont Development Company (Westmont), Grupe's predecessor in interest. While plaintiff was riding his motorcycle across the land he drove off a "blind sheer end" of the pile of dirt and sustained severe bodily injuries. Defendant, according to the complaint, negligently and carelessly maintained the pile of dirt so that a dangerous condition was created to those who used the land.

In support of the motion for summary judgment defendant submitted two declarations by H. E. Baker, a vice-president of the Claude C. Wood Company. Baker declared that defendant and Westmont had entered into an agreement whereby defendant agreed to remove dirt from property which Westmont was developing. As part of the agreement defendant was to have exclusive possession of sufficient property in the tract in which to stockpile the dirt in the event that it could not dispose of the dirt prior to removal. Baker's supplemental declaration referred to defendant as "tenant in possession" of the property involved. It added that defendant did not invite plaintiff to enter the property, plaintiff had paid no fee for use of the property, defendant did not know that plaintiff was using the property, and defendant did not maliciously or willfully fail to warn plaintiff of danger in using the property.

In fact, by the written agreement defendant agreed to remove dirt from the "Beckman" property, where ponding basins were being excavated, and to pay a royalty per cubic yard of material removed. Westmont agreed to provide a temporary stockpile area on the property adjacent to the ponding area for excess dirt if defendant was not able to dispose of all of the dirt. Westmont agreed to provide routes for the necessary hauling. Defendant, in turn, agreed to hold Westmont harmless from any actions arising out of the transaction.

At the hearing on the motion for summary judgment counsel stipulated that the complaint be amended to state that defendant willfully and maliciously failed to guard or warn against a dangerous condition on the property. The court, in granting the motion for summary judgment, found that defendant was an owner of an estate in real property within the meaning of Civil Code section 846. In addition, the court found that the declarations of Baker established that there was no factual basis to support a finding of willful or malicious failure to guard or warn against a danger on the property.

1. An Estate In Real Property Civil Code Section 846

Civil Code section 846 is an exception to the general rule that an owner is responsible for injury occasioned to another by want of ordinary care or skill in the management of his property. (See Civ.Code, § 1714.) It provides that an owner of an estate in real property owes no duty to persons entering or using the property for certain specified activities, including the type of vehicular riding we consider.

Since it was enacted in 1963, the courts have had occasion to consider Civil Code section 846. In English v. Marin Mun. Water Dist. (1977) 66 Cal.App.3d 725, 136 Cal.Rptr. 224, the court concluded that the amendments in 1970, 1971, 1972 and 1976, which added additional recreational uses to the landowner's immunity, are indicative of a legislative policy to reduce the growing tendency of landowners to withdraw land from recreational access by removing the risk of gratuitous tort liability that a landowner might run unless he could bar entry to his property for enumerated recreational uses. (Id. at p. 731, 136 Cal.Rptr. 224.) In Lostritto v. Southern Pac. Transportation Co. (1977) 73 Cal.App.3d 737, 140 Cal.Rptr. 905, the court upheld Civil Code section 846 against the plaintiff's allegation that the section violates equal protection of the laws. (Id. at pp. 747-749, 140 Cal.Rptr. 905.) The court observed "The Legislature probably decided not only that freedom of recreation should be encouraged, but also that it is unfair to permit claims for negligence in favor of persons who choose to enter the lands of others for the described activities." (Id. at p. 749, 140 Cal.Rptr. at p. 911.)

The parties agree, as do we, that Civil Code section 846 provides immunity to the owner of an estate in real property for ordinary negligence to motorcycle riders. However, plaintiff maintains that defendant was not the owner of an Estate in real property. Rather, plaintiff argues defendant's agreement with Westmont makes defendant a licensee only. Defendant, on the other hand, urges the view that the agreement created a tenancy, thus giving it an estate in the land.

The test in determining whether an agreement for the use of land is a lease or a license is this. If the contract gives exclusive possession of the premises against all the world, including the owner, it is a lease. If it merely confers a privilege to occupy under the owner it is a license. We deal with a question of law arising from the construction of the instrument. (Von Goerlitz v. Turner (1944) 65 Cal.App.2d 425, 429, 150 P.2d 278.) " 'A tenancy involves an interest in the land passed to the tenant and a possession exclusive even of the landlord except as the lease permits his entry, and saving always the landlord's right to enter to demand rent or to make repairs. A mere permission to use land, dominion over it remaining in the owner and no interest in or exclusive possession of it being given, is but a license. . . . Such a person has not the possession of the land, this remaining in the licensor, and he has not, it seems, any interest in the land which he can assert as against a third person, that is, he has no rights in rem.' " (Nahas v. Local 905, Retail Clerks Assn. (1956) 144 Cal.App.2d 808, 820-821, 301 P.2d 932, quoting 1 Tiffany on Real Property (3d ed.) § 79, p. 117.)

The written agreement we consider was insufficient to establish a tenancy rather than a license. No particular legal terminology is required in the making of a lease, but it is essential that the instrument show an intention to establish the relationship of landlord and tenant. (Beckett v. City of Paris Dry Goods Co. (1939) 14 Cal.2d 633, 636, 96 P.2d 122.) A lease must include a definite description of the property leased and an agreement for rental to be paid at particular times during a specified term. Where one goes into possession of the premises under a contract containing an ambiguous or uncertain description of property to be occupied and pays the stipulated rent, it will be enforced as a lease if the parties acted upon it as relating to particular premises. (id. at p. 637, 96 P.2d 122.)

The agreement provides only for temporary stockpiling of the dirt defendant was to remove from Westmont's property. While a tenancy at will may be created without the reservation of rent, the absence of a provision for rent in the agreement tends to support plaintiff's contention that the use of the property by defendant was under a license and not under a tenancy. We must also consider that the specific area in which the dirt was to be stored is not specified in the agreement. Nor does the agreement purport to give defendant exclusive possession of the property. Further, the agreement does not indicate the intention to establish the relationship of landlord and tenant between defendant and Westmont. Quite to the contrary, the agreement provides that Westmont will furnish a temporary stockpile area only in the event defendant was unable to dispose of the dirt on removal from Westmont's adjacent property. The agreement expressly declares that "It is the intent of Claude C. Wood Co. to excavate and remove the dirt from the property at the earliest possible date." The agreement indicates only an accommodation by Westmont in return for having defendant remove the dirt from the adjacent property which Westmont was in the process of developing. A license, not a leasehold interest, was thereby created.

2. Right Of Possession As Against Plaintiff and Third Parties

The applicability of Civil Code section 846, however, is more complicated than the lease/license issue. That section provides an exemption from the general terms of Civil Code section 1714 for the owner of Any estate in real property. The question of whether defendant had an interest in the land upon which it stored the dirt is not answered by the determination that it stored the dirt under a license. "Considering what may be done under a license, it is, like an easement, an Interest in land, despite its revocable nature." (Emphasis in original.) (3 Witkin, Summary of Cal.Law, supra, § 381, pp. 2074-2075.) The issue then becomes whether, under the terms of the agreement, defendant...