Siemon v. Russell

• Decision Date: 09 August 1961
• Citation: 15 Cal.Rptr. 218,194 Cal.App.2d 592
• Parties: Wm. SIEMON, Margaret T. Siemon, et al., Plaintiffs and Appellants, v. G. M. RUSSELL, Defendant and Respondent. Civ. 25150.
• Court: California Court of Appeals Court of Appeals

Page 218

15 Cal.Rptr. 218

194 Cal.App.2d 592

Wm. SIEMON, Margaret T. Siemon, et al., Plaintiffs and Appellants, v. G. M. RUSSELL, Defendant and Respondent.

Civ. 25150.

District Court of Appeal, Second District, Division 2, California.

Aug. 9, 1961.

Rehearing Denied Sept. 6, 1961.

Hearing Denied Oct. 4, 1961.

M. Lewis Lehman, Los Angeles, for appellants.

Roy B. Woolsey, Los Angeles, for respondent.

FOX, Presiding Justice.

This is an action for declaratory relief. The trial court granted defendant's motion for summary judgment. Plaintiffs have appealed.

The property here in question is located at Vermont Avenue and 125th Street, in the city of Los Angeles, consists of a parcel of four acres of vacant land, and is situated within the oil producing area known as the Athens Field. In 1947 the then owners of the property executed an oil and gas lease with defendant Russell. As a result, he has drilled one well which is still producting at the rate of nine or ten barrels of oil per day. The lease provides: 'The possession by the Lessee of said land shall be sole and exclusive, excepting only that the Lessor reserves the right to occupy said land or to lease the same for agricultural, horticultural, or grazing uses, which uses shall be carried on subject to, and with no interference with, the rights or operations of the Lessee hereunder.' The lease further provides that the lessee may construct, maintain, etc., pipelines, tanks, machinery, buildings and other structures which the lessee may desire in carrying on its business and operations on said land or on adjoining or neighboring premises operated by lessee, with the further right to the lessee to erect and operate a plant, with all necessary appurtenances, for the extraction of gasoline from gas produced from said land or other premises in the vicinity of said land, together with rights-of-way for ingress and egress and passage over said land, for any or all of the above mentioned purposes.

The property has been sold to the plaintiffs, who want to subdivide it into 30 residential lots. They propose to construct dwellings on all of these lots except such as are necessary for the continued operation of defendant's well (not to exceed 10%). The owners are receiving approximately $109 a month royalty from the operation of the well. By reason of the development of the area surrounding this four-acre tract, the subject land has become much more valuable for residnetial uses and would produce a greatly enhanced return to the owners if it could be subdivided. Defendant, without filing any answer, filed a motion for summary judgment supported by his affidavit, to which he attached a photostatic copy of the lease.

An affidavit in opposition was filed by plaintiff William Siemon. He states that the property faces on four streets; that on three sides dwellings have been erected in the price range from $12,000 to $15,000 and that on the fourth side the County is in the process of acquiring land for a public park. He further states that since the oil and gas lease was entered into in 1947 by Russell and plaintiffs' predecessors, a major portion of the oil wells in the Athens Field have been abandoned and that currently very little production is being obtained therefrom; that the well on the subject property is known as a 'stripper' well, producing 9 to 10 barrels per day; that many new homes have been built within a radius of 100 to 300 feet from the well here in question, and that the character, neighborhood and value of the property have all substantially changed since this lease was executed in 1947. Siemon asserts that it is economically unfeasible to drill any more wells on plaintiffs' property and that changes in the character of the neighborhood have led the City to impose rather stringent requirements in connection with the drilling of wells on this and adjacent property, and that it would be practically impossible for Russell or anyone else to drill another well on this property. He attaches as an exhibit a letter from the zoning administrator, indicating that undoubtedly more severe restrictions would be effected in the event a permit were issued to drill additional wells on this property.

It is not disputed that the summary judgment procedure is appropriate in declaratory relief actions. 'The propriety of the application of declaratory relief lies in the trial court's function to render such a judgment when only legal issues are presented for its determination. (Citations.) The judgments in the instant cases comport with the requirement of Essick v. City of Los Angeles, 1950, 34 Cal.2d 614, 624, 625, 213 P.2d 492, that, in a declaratory relief action, the court should decree that 'plaintiffs are not entitled to the declarations in their favor' rather than enter a judgment of dismissal.' Spencer v. Hibernia Bank, 186 Cal.App.2d 702, 9 Cal.Rptr. 867, 873. ^*

There is another preliminary, procedural issue as to whether a motion for summary judgment may be made prior to the filing of an answer. Before 1957, section 437c, Code of Civil Procedure, provided that a motion for summary judgment might be made by either party after an answer was filed. In that year the section was amended. All reference to the filing of an answer was eliminated, and it was provided that the motion shall be considered a pleading. In a footnote, in Lincoln v. Didak, 162 Cal.App.2d 625, at page 630, 328 P.2d 498, the court correctly observed that the amendment permits the making of a motion for summary judgment without the necessity of filing an answer to the complaint.

The basic question is whether any triable questions of fact were presented which, if decided in plaintiffs' favor, would entitle them to use the property for subdivision purposes. Tibbs v. Smart & Final Iris Co., 152 Cal.App.2d 618, 313 P.2d 636; Poochigian v. Layne, 120 Cal.App.2d 757, 261 P.2d 738. Plaintiffs claim there are the following...