Warren v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 30 July 1971
• Court: California Court of Appeals Court of Appeals
• Parties: The STEARNS RANCHOS COMPANY, etc., et al., Plaintiffs and Appellants, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY et al., Defendants and Respondents. * Civ. 10050.

Page 317

96 Cal.Rptr. 317

19 Cal.App.3d 24

The STEARNS RANCHOS COMPANY, etc., et al., Plaintiffs and Appellants, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY et al., Defendants and Respondents. ^*

Civ. 10050.

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

July 30, 1971.

Hearing Denied Oct. 21, 1971.

[19 Cal.App.3d 27] Pollock, Tappoan, Palmer & Metzler, John P. Pollock and Samuel A. Keesal, Jr., and Gates, Morris, Merrell & Stephens and George E. Stephens, Jr., and J. Randolph Houston, Los Angeles, for plaintiffs and appellants.

John J. Balluff, Robert B. Curtiss, John J. Schimmenti, Los Angeles, Niles P. Koines, Pasadena, Charles D. Swanner and John Neil Stanley, Santa Ana, for defendant and respondent The Atchison, Topeka and Santa Fe Railway Co.

Gray, Cary, Ames & Frye, Richard A. Burt and James K. Smith, San Diego, for defendant and respondent The Pacific Telephone and Telegraph Co.

Rutan & Tucker, Milford W. Dahl, Homer L. McCormick, Jr., Santa Ana, Rollin E. Woodbury, and Harry W. Sturges, Jr., Los Angeles, for defendant and respondent Southern Cal. Edison Co.

Lawler, Felix & Hall, and Alexis A. Fafenrodt, Los Angeles, for defendants and respondents Standard Oil Co. of Cal. and Standard Gas Co.

Randolph Karr, Los Angeles, for defendant and respondent Southern Pacific Pipe Lines, Inc.

John J. Balluff, Robert B. Curtiss and John J. Schimmenti, Los Angeles, for defendants and respondents The Western Union Telegraph Co. and San Diego Pipe Line Co.

Richard Colby, Los Angeles, for defendant and respondent Metromedia, Inc.

Kalmbach, DeMarco, Knapp & Chillingworth, Frank DeMarco, Jr., and William A. Kerr, Los Angeles, for defendant and respondent Southern Counties Gas Co. of Cal.

OPINION

KAUFMAN, Associate Justice.

Plaintiffs appeal from a number of orders and judgments rendered by the trial court in respect to their third amended and supplemental complaint filed November 25, 1968 by leave of the court. The orders and judgments appealed from are as follows:

(1) Judgment of dismissal in favor of defendants The Atchison, Topeka and Santa Fe Railway Company (hereinafter Santa Fe), Southern California Edison Company (hereinafter Edison), and the Pacific Telephone and Telegraph Company (hereinafter Pacific Telephone) following an order sustaining without leave to amend demurrers of these defendants on the ground that the third amended complaint does not state facts sufficient to constitute a cause of action;

(2) Minute orders quashing service of summons on and granting dismissals of defendants The Western Union Telegraph Company, Metromedia, Inc., Standard Gas Company, Southern Pacific Pipe Lines, Inc., San Diego Pipe Lines Company, Southern Counties Gas Company of California, and Standard Oil of California (hereinafter sometimes referred to as miscellaneous defendants); order of dismissal in favor of defendants Southern Pacific Pipe Lines, Inc. and Metromedia, Inc. based upon the order quashing service of summons; and order denying plaintiffs' motions for reconsideration of the order quashing service of summons on and granting dismissal of defendants San Diego Pipe Lines Company and The Western Union Telegraph Company; and

(3) Order granting defendant Santa Fe's motion to strike substantial portions of the third amended and supplemental complaint.

The Facts

The original complaint in the action was filed on May 17, 1965. Named as plaintiff was Stearns Ranchos Company, a dissolved California corporation. Named as defendants were Santa Fe and Does 1 through 30. The relief sought was quiet title to real property and incidental injunctive relief.

After numerous law and motion proceedings, on September 10, 1968, plaintiffs, now designated as certain named individuals, 'the acting trustees in liquidation of THE STEARNS RANCHOS COMPANY, a dissolved California corporation,' filed a notice of motion for leave to file a third amended and supplemental complaint and requesting the addition of parties to the action. Defendant Santa Fe opposed the motion on the ground that plaintiffs were barred by the provisions of section 581a of the Code of Civil Procedure from bringing in additional defendants because the summons could not be issued and served within three years from the filing of the original complaint. On December 2, 1968, the court granted plaintiffs' motion. On December 6, 1968, the pleading was filed and, thereafter, service was effected upon the various defendants.

The Demurrers

Defendants Santa Fe, Edison and Pacific Telephone filed separate demurrers to the third amended and supplemental complaint and each purported cause of action on numerous grounds, including failure of the entire pleading to state facts sufficient to constitute any cause of action. ¹ On March 20, 1969, the demurrers of these three defendants were sustained 'without leave to amend on the ground that the Complaint does not state facts sufficient to constitute a cause of action.' The judgment of dismissal, having been based upon demurrers attacking the complaint as a whole, can be affirmed only if no count of the complaint states facts sufficient to entitle plaintiffs to relief on any theory. (California Trust Co. v. Cohn, 214 Cal. 619, 628, 7 P.2d 297; Shook v. Pearson, 99 Cal.App.2d 348, 351, 221 P.2d 757; see 3 Witkin, Cal. Procedure, 2d ed., p. 2416.)

The First Cause of Action

The substance of the first cause of action is that plaintiffs are the duly appointed and acting trustees in liquidation of the Stearns Ranchos Company (hereinafter Company), incorporated in California in 1887 and voluntarily dissolved in 1927 by decree of the San Francisco Superior Court which distributed its assets to the trustees in liquidation. On July 5, 1888, Company, the then owner of fee title, granted to California Central Railway Company a right-of-way for railway purposes upon certain real property situated partially in the County of Orange and partially in the County of Los Angeles by virtue of a deed, a copy of which was attached and incorporated as Exhibit 'A' (hereinafter the right-of-way deed). Defendant Santa Fe has succeeded to the rights under said deed of California Central Railway Company. Plaintiffs are the owners of the underlying fee interest of all of the real property described in said deed except a specified portion in the Northwest Quarter of Section 23, subject only to the right-of-way described in the deed. In addition, as to portions of the right-of-way, Santa Fe has abandoned by making and permitting others to make uses 'other than and in addition to those for which the right-of-way was granted.' As to these portions, plaintiffs are the owners in fee of the property free and clear of the right-of-way or any other claim of Santa Fe because Santa Fe 'has ceased to occupy and use such portion of said real property for the purpose of maintaining and operating a railway.' Santa Fe 'claims some right, title and interest in and to said real property greater than the right-of-way for the specific purposes specified in said deed.' Some 115 allegedly unauthorized uses permitted by Santa Fe and made by defendants Edison, Pacific Telephone, the miscellaneous defendants and other named public and private entities are specified. ²

By its language, the right-of-way deed purports to grant 'a right-of-way for railway purposes and for no other purposes, 100 feet in width, for * * * main tracks, side tracks, switches, and all uses necessary and incident to railroad construction, maintainance (sic; underscore in the original) and operation, over and upon the following premises * * *.' The deed also provides:

'The said Railway Company its successors and assigns shall permit said right of way to be intersected and crossed by roads, streets, highways, public and private ditches and flumes, at the places and in the manner which may be designated by the grantor, its successors or assigns, but in such manner as shall not interfere with the regular and proper operation of said railroad further than is necessary.

'To Have and to Hold the same unto said California Central Railway Company, its successors and assigns, until said right of way shall cease to be occupied for the purpose of maintaining and operating a railway. And if said right of way shall cease to be so occupied and used, it shall thereupon revert to said grantor, its successors or assigns.

'The said Railway Company, in part consideration of the foregoing, agrees to establish a station at which all regular trains shall stop, at a point as above designated within the limits of said Section 26 T 3 S. R 11 W. after the completion over it of the said railroad and within three months after written demand therefor upon the grantee, its successors or assigns, by this grantor successors or assigns.

'This deed is on the further condition that said Railway Company, its successors or assigns shall, within two years from the date hereof, construct operate and thereafter maintain a railroad upon and along the herein described right of way.'

The Second Cause of Action

The allegations of the second cause of action ³ are very similar to those of the first except that in the second it is alleged that in 1888 the Company granted to California Central Railway a certain parcel of real property presently situated in the county of Orange to use for depot purposes and such other uses as are incident to railway operations by virtue of a deed, a copy of which was attached and incorporated as Exhibit 'B' (hereinafter the depot deed). This deed by its language grants 'a strip of land to use for depot purposes including side tracks, warehouses, and such other uses as are incident to railway operation * * *.' Said deed additionally provides:

'This conveyance is made upon the express conditions following to wit:

'* * *onv

'The said Railway Company its Successors and Assigns shall within three months of the completion of the railway aforesaid, establish a Station on the line of the right of way...