Opinion
Rehearing Denied Oct. 30, 1929
Hearing Granted by Supreme Court Nov. 25, 1929
Appeal from Superior Court, Los Angeles County; Hartley Shaw, Judge.
Action by H.J. Friesen and wife against the City of Glendale and others, including W.H. Andrews and Maude E. Andrews. Judgment for plaintiffs, and defendants, except defendants Andrews, appeal. Affirmed.
COUNSEL
Arthur M. Ellis, of Los Angeles, for appellant Heuser.
W. Turney Fox, City Atty., Ray L. Morrow, and Frank M. Moody, all of Glendale, for appellant city of Glendale.
R.C. McAllaster, City Atty., and Harold P. Huls, Deputy City Atty., both of Pasadena, on the brief, and Everett W. Mattoon, Co. Counsel, and Claude H. McFadden, Deputy Co. Counsel, both of Los Angeles, amici curiae, for appellants.
Harold L. Watt, of Los Angeles, for respondents.
OPINION
CONREY, P.J.
Upon an agreed statement in writing signed by all of the parties to the action the court rendered judgment in favor of plaintiffs, and granted a permanent injunction, from which judgment all of the defendants except W.H. Andrews and Maude E. Andrews, have appealed.
The questions involved, as stated by appellants, are: (1) Does the construction of a public street on land dedicated for public street purposes violate a prior deed restriction providing that said land is to be used "for residential purposes only"? (2) If such a restriction is violated by the construction of a public street on the restricted land, should a court of equity act to enjoin such a violation?
In the original argument it was assumed that the restriction itself was valid. Being doubtful about that point, we reopened the case for further argument. In Werner v. Graham, 181 Cal. 179, 183 P. 945, 949, the Supreme Court referred to decisions which hold that, when it appears that the owner of a subdivided tract has sold various lots in the tract, and in each conveyance has exacted restrictive covenants, which, it is evident, when all the deeds are considered together, were exacted in accordance with a common plan, it is enough, and that mutual equitable servitudes have been created, although in any deed taken by itself there is nothing to indicate any intent to create such reciprocal rights. The court then cited other decisions to the contrary, and stated its own conclusion as follows:
"An analysis of such a case, however, leaves, we believe, no reasonable doubt as to which line of authorities is correct. The intent of the common grantor— the original owner— is clear enough. He had a general plan of restrictions in mind. But it is not his intent that governs. It is the joint intent of himself and his grantees, and as between him and each of his grantees the instrument or instruments between them— in this case, the deed— constitute the final and exclusive memorial of such intent. It is also apparent that each deed must be construed as of the time it is given. It cannot be construed as of a later date, and, in particular, its construction and effect cannot be varied because of deeds which the grantor may subsequently give to other parties. Yet that is exactly what is done in the decisions holding that mutual servitudes exist in cases where all the deeds taken together, evidence a common plan of restrictions, although no single deed by itself evidences anything more than an intent to put particular restrictions on a particular lot."
In the case at bar the deeds are not sufficient to create reciprocal restrictions, or mutual servitudes. But we see no reason why the grantor may not impose upon the lot granted by any deed to a lot purchaser a restriction therein declared to be made in favor of all other owners of lots in the tract. See cases cited in McBride v. Freeman, 191 Cal. 152, at pages 155, 156, 215 P. 678. In the deed here presented for construction, the conveyance was made upon the condition "that said premises shall be used for residence purposes only." It was then provided that as to the grantors a breach of the condition should cause the premises to revert, etc., "and as to the owners, their heirs, devisees, executors, administrators, or assigns of any owner of any other lot in said tract above mentioned conditions shall operate as covenants running with the land for the benefit of all of said lots and owners of such lots in said tract, their heirs, devisees, executors and administrators or assigns and the breach of any of the covenants or the continuance of any such breach may be enjoined, abated or remedied by appropriate proceedings by any or either of such owners, their heirs, devisees, executors, administrators or assigns." This language was in the first as well as all other of the deeds conveying the lots sold in said tract.
In the statement of facts in Werner v. Graham, supra, at page 181 (183 P. 948), it was pointed out that the deed in which the restrictions were contained was "without a word indicating that the land conveyed is part of a larger tract, the balance of which the grantor still retains, *** or that their benefit is to inure to or pass with other lands, and without any description or designation of what is an essential element of any such servitude as is claimed, namely, the land which is to be the dominant tenement." The differences between the deed thus described and the deed before us in this action are strongly marked. Here the tract itself was described, the lands beneficially interested in the restrictive covenant were clearly indicated, and the right to enforce such beneficial interest was plainly declared. Therefore we have concluded that the questions presented by appellants, which questions we have stated at the beginning, must be considered and decided upon their merits.
We are of the opinion that, where land has been conveyed to a grantee under a valid restriction against the use of that land for other than residence purposes, the construction of a public street on the land so conveyed, pursuant to an attempted dedication for that purpose by said grantee, and without the consent of the beneficiary of the restriction, is a violation of said deed restriction.
It must be conceded that by proceedings in eminent domain, all interested parties having been brought before a court of competent jurisdiction, this land could be condemned and taken for street purposes. It follows that, as against the right of plaintiffs under the restrictive covenant, the right of the lot owner, alone, to dedicate the lot for street purposes may be tested by determining whether or not the plaintiffs would be necessary parties in an action to condemn and take the lot for use as a street.
The private property which may be taken for public use includes "all real property belonging to any person." Code Civ.Proc. § 1240. The complaint in an eminent domain proceeding must contain "the names of all owners and claimants of the property, if known, or a statement that they are unknown, who must be styled defendants." Code Civ.Proc. § 1244. "Private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for, the owner." Const. art. 1, § 14. "Some authorities hold that, when property subject to a restrictive condition is taken for or applied to a public use inconsistent with the restriction, the owner of property for whose benefit the restriction is imposed is entitled to compensation. Lewis on Eminent Domain (3d Ed.) § 224; 20 C.J. 654." Hanna v. Rodeo-Vallejo Ferry Co., 89 Cal.App. 462, 468, 265 P. 287, 289. We are of the opinion that these authorities correctly state the law.
In the case at bar the restrictive covenants, expressly made as covenants running with the land, have the essential qualities of an easement. It must be admitted that the restriction under consideration here is not identical with any of those included within the list of "land burdens, or servitudes upon land," which in section 801 of the Civil Code are denominated as easements. But that list is not prohibitory of all other easements. "The ingenuity and foresight of the Legislature would be taxed in vain to name and classify all the burdens which might be imposed upon land. By section 801 it enumerated some of them." Jersey Farm Co. v. Atlanta Realty Co., 164 Cal. 412, 415, 129 P. 593, 594.
It has been held that damages may be recovered for an interference with an easement of right of way whereby property of the plaintiff has been depreciated in value. Lawlor v. So. P. Co., 39 Cal.App. 97, 178 P. 165. It is only another illustration of the same principle when we say that, in an action to condemn and take for street purposes the lot involved in the present proceeding, the persons in whose favor the restriction exists would be necessary defendants. In that action the owner of the fee would not necessarily be entitled to all of the compensation allowed for the taking of the land, but such owner would be required to share with the beneficiaries of the restriction, to the extent of the damage suffered by them.
Appellants further contend that, even if the restriction would be protected by injunction as against violations by private persons, equity will not grant that remedy against a public agency, but that the owner of the restriction will be relegated to his right to recover damages in an action at law. It has been held by this court that, when private property has been taken for road purposes and the road completed, and the road as constructed has passed into actual public use, an injunction will not be granted to interfere with the continued enjoyment of that use, notwithstanding that the road was not constructed in accordance with the plan contemplated by the condemnation proceedings under which possession was acquired by the public. County of Los Angeles v. Rindge Co., 69 Cal.App. 72, at pages 81 and 82, 230 P. 468. We think, however, that this rule should not be extended, so as to prevent the granting of an injunction against the wrongful appropriation of such property for use as a street, when the road has not been constructed and the land has not yet actually passed into public use as a street.
The judgment is affirmed.
We concur: HOUSER, J.; YORK, J.