Opinion
Page __
__ Cal.App.2d __302 P.2d 894Dennis S. NEFF and Geraldine L. Neff, Plaintiffs and Respondents,v.Clement L. ERNST, Administrator with the Will Annexed, of the Estate of Daniel L. Ernst, deceased, substituted in place of Daniel L. Ernst, Defendant and Appellant.Civ. 21523.California Court of Appeals, Second District, Second DivisionOct. 29, 1956Hearing Granted Dec. 24, 1956.
[302 P.2d 896] Caryl Warner, Los Angeles, for appellant.
William G. Bolton and John A. Michael, Inglewood, for respondents.
ASHBURN, Justice.
Defendant appeals from a judgment declaring plaintiffs to be the owners of half of certain vacated streets adjoining subdivision lots sold to Mr. Neff and conveyed by lot and map reference, the deed having been made subsequent to the street vacation.
During the progress of this action defendant-appellant Daniel L. Ernst died; Clement L. Ernst, his administrator with the will annexed, has been substituted as defendant-appellant. However, for convenience, Daniel L. Ernst will be indicated by the use of the word defendant or appellant herein.
The original purchaser and grantee is Dennis S. Neff; he later placed the property in joint tenancy with his wife; the word plaintiff will refer to Mr. Neff unless otherwise indicated by the text.
In the year 1902 one Benjamin Hiss caused to be recorded a subdivision map of 'Second Addition to Hermosa Beach.' He was then the owner of the entire property. One block, designated as 72, contained 12 lots (Nos. 1-12, inclusive) lying on the north side of Pier Avenue. On the west side they were bounded by Bard Street and on the north by Oak Street. Through the center of the block ran an east-west alley which separated the north tier of lots (1-6) from the south tier (7-12). The lots immediately adjoining Bard Street were numbers 1 and 12, each being 80 feet on Bard Street; the alley, 20 feet wide, lay between them. Lots 1 to 6 were bounded on the north by Oak Street.
In 1916 Hiss procured the vacation of Bard Street from a point located 100 feet north of Pier Avenue to its junction with Oak Street; also the vacation of Oak Street and the said alley. This left the block bounded on the west and north by the vacated portions of streets. Hiss owned the lots surrounding the vacated streets on the west and north. Indeed he still owned the entire tract and of course the title to the vacated portions of streets and the alley reverted to him upon vacation.
In 1927 he erected a permanent building upon lots 1, 2, 3, 10, 11 and 12, and a portion of the vacated alley. His interest in all the property passed to California Bank in 1932 and it, while still the owner of the entire tract, sold and conveyed to plaintiff Neff a portion thereof which was described in the deed 'as Lots 1 to 12, inclusive, in Block 72, of the Second Addition to Hermosa Beach, as per map recorded in Book 3, Pages 11 and 12 of Maps, in the Office of the County Recorder of said County; also the vacated alley lying between the southerly lines of said Lots 1 to 6, inclusive, and the northerly lines of said lots 7 to 12, inclusive. * * * also subject * * * to other matters of record.' The bank later conveyed to Ernst's predecessor in interest the lots surrounding the vacated streets, describing them by lot numbers and reference to the map; the deed also included a Parcel 2: 'Also Oak Street, vacated, lying West of the West line of West Railroad Drive and that part of Bard Street, vacated, lying North of a line distant 100 feet North of the North line of Pier Avenue, formerly Santa Fe Avenue.' Defendant Ernst acquired the same property under the same description in 1946.
In 1953 he began constructing and thereafter pursued to completion a substantial brick building extending over the vacated portion of Bard Street, its easterly line being not more than two or three feet from the westerly wall of plaintiff's building. The Ernst building and brick wall extended north to Oak Street (vacated), and defendant [302 P.2d 897] also built along the south line of Oak Street (vacated) a brick wall six feet high, thus blocking plaintiff's entrance to his property throughout the entire length of the vacated portions of Bard and Oak Streets. The new building overlaps plaintiff's for a distance of 21' 9'' and renders unusable three garages on the west side thereof, making it impossible to open the doors.
By revised findings and judgment the court decreed that plaintiffs are the owners of one-half the width of each of the vacated streets, and that plaintiffs and defendant are each 'vested with a private right-of-way for purposes of ingress, egress and ordinary incidents of travel, over that area of Bard Street owned by the other, in and to which the public easement has been vacated.' Also that plaintiffs are vested with an easement over the vacated portion of Bard Street 'for the passage of the natural flow of surface water from the plaintiffs' premises.' It is further adjudged that defendant's building had been constructed and maintained 'wrongfully, unlawfully, and wilfully upon the property of plaintiff', and that 'defendant is ordered forthwith to commence and diligently accomplish the removal and abatement of the said walls and structures and to complete the said removal within sixty days from notice of entry of judgment.' Plaintiffs also were awarded other appropriate injunctive relief.
Appellant, relying upon the concluding phrase of Civil Code, § 1112, claims error in the holding that plaintiffs' title extends to the middle of the vacated streets. The section reads: 'A transfer of land, bounded by a highway, passes the title of the person whose estate is transferred to the soil of the highway in front to the center thereof, unless a different intent appears from the grant.' It is established law in this state that this rule applies although the street has been vacated prior to the sale in question. Anderson v. Citizens' Sav. & Trust Co., 185 Cal. 386, 393, 197 P. 113; Pinsky v. Sloat, 130 Cal.App.2d 579, 585, 279 P.2d 584. In the Anderson case it is said: 'By such a description a street is created as between the grantor and the grantee, regardless of whether or not there is an existing dedication as between the grantor and the public. This is the settled law of this state. * * * It may well be--in fact it is certain that it would be--that in such a case the grantor would reserve an easement over the fee in the street for its use for street purposes appurtenant to other nearby property which he might retain, and to which the use of the street as such would be of value.' 185 Cal. at page 393, 197 P. at page 117. Also: 'We hold, then, that in the absence of any circumstances showing clearly that the parties intended otherwise, the deed by Martin to Lempertz, describing the lot by reference to the map of the tract operated to convey as a part of the lot the fee in Martin to the center line of the streets, which the map showed as bounding the lots, although such streets had been previously abandoned as public streets.' 185 Cal. at page 396, 197 P. at page 118. It is also pointed out that the ultimate question is the 'intent of the parties as expressed in the deed * * * and the rule which we have been discussing and which we have adopted is after all but a rule of construction, to be followed if, as is usually the case, there is nothing which points plainly and certainly to a contrary intention, but not to be followed if there is.' 185 Cal. at page 397, 197 P. at page 118. Again it is said that the grantor's 'intention in this respect is to be ascertained by what she said in the deed as construed in the light of the circumstances under which it was made and her conduct with reference to it * * *.' 185 Cal. at page 397, 197 P. at page 118. A strong presumption exists to the effect that the parties to such a description intend the grantee's title to extend to the center of the street, Brown v. Bachelder, 214 Cal. 753, 755, 7 P.2d 1027; Allan v. City & County of San Francisco, 7 Cal.2d 642, 649, 61 P.2d 1175; Machado v. Title Guarantee and T. Co., 15 Cal.2d 180, 183, 99 P.2d 245, and a clear showing is necessary to the establishment [302 P.2d 898] of a contrary intention. Anderson v. Citizens Sav. & Trust Co., supra, 185 Cal. 386, at pages 393, 396, 397, 197 P. 113, at pages 116, 118; Pinsky v. Sloat, supra, 130 Cal.App.2d 579, at pages 583, 585, 279 P.2d 584, at pages 586, 588; McIntire v. Wasson, 125 Cal.App.2d 371, 377, 270 P.2d 32; 11 C.J.S., Boundaries, § 35, p. 583.
Appellant argues that such showing exists at bar because the grant to Neff expressly conveys the vacated alley and is silent with respect to vacated portions of adjoining streets. This circumstance raises an ambiguity in the deed, certainly not a clear showing of intention. (As to what constitutes an ambiguity in a written instrument, see Beneficial Fire & Cas. Ins. Co. v. Kurt Hitke Co., 46 Cal.2d 517, 297 P.2d 428. This is clearly a case in which extrinsic evidence is properly considered in arriving at the intent of the parties to the deed, for it is well-settled that such proof may be received in aid of the interpretation of an ambiguous deed. Anderson v. Citizens Sav. etc. Co., supra, 185 Cal. 386, 397, 197 P. 113; People v. Ocean Shore Railroad, 32 Cal.2d 406, 414, 196 P.2d 570, 6 A.L.R.2d 1179; Hay v. Allen, 112 Cal.App.2d 676, 682, 247 P.2d 94; 15 Cal.Jur.2d § 122, p. 522, § 126, p. 527, § 157, p. 560; 8 Am.Jur. § 37, p. 775; 11 C.J.S., Boundaries, § 105, p. 699. The Pinsky case, supra, is not to the contrary; the language there used concerning parol evidence was related to a deed which was found to be 'complete, clear, definite, certain, and unambiguous.' 185 Cal. at page 589, 279 P.2d at page 591. The record before us discloses circumstances persuasive of the correctness of the trial judge's finding.
The building on the Neff land was constructed by Hiss in 1927, when he owned the entire tract. Although Bard Street had been vacated opposite the portion which he devoted to the three garages, he placed the building right on the line. Bard Street, though vacated, was an oiled road and was used just as if it were a public street. Hiss, his successor Neff, and their tenants, used that vacated street over the years for ingress and egress to the garages and to the northerly portion of the Neff property (lots 1 to 6). The garage doors would not open without crossing the last line of Bard Street and the garages could not be used without the aid of that road for ingress and egress. The northerly lots could not be used conveniently without the same access to a roadway. The California Bank, as successor to Hiss, was charged with knowledge of these physical conditions. It is difficult to conceive of its intending that the purchaser of lots 1 and 12 would not have, in the future as in the past, the full use of the adjoining roadway which, to all appearances, was a public street. It would seem that plaintiffs, if advised that any such problem ever would arise, would have declined to consummate the deal. The evidence amply sustains the court's finding: 'That it was the intention of the grantor, California Bank, and of the grantee, plaintiff, as determined from the terms of the said grant to which Paragraph 1 refers, that the title of the plaintiff Dennis S. Neff should include the fee title in and to the adjacent portions of Bard Street and of Oak Street (including the area in and to which the public easement was vacated) * * *.'
The map to which the Neff deed referred did not show any vacation of Bard and Oak Streets; it was the one which dedicated them to public use. Arguments built upon the assumption that the deed reference carried constructive notice to the grantee that the disputed portions of these streets had been vacated, are misplaced and need no further comment.
So far as concerns the adjudication that plaintiffs and defendant each have an easement to use for street purposes the half of the vacated road belonging to the other, the law seems also clear. It is stated in Danielson v. Sykes, 157 Cal. 686, 689-690, 109 P. 87, 88, 28 L.R.A.,N.S., 1024, as follows: 'It is a thoroughly established proposition in this state that, when one lays out a tract of land into lots and streets and sells the lots by reference to a map which [302 P.2d 899] exhibits the lots and streets as they lie with relation to each other, the purchasers of such lots have a private easement in the streets opposite their respective lots, for ingress and egress and for any use proper to a private way, and that this private easement is entirely independent of the fact of dedication to public use, and is a private appurtenance to the lots, of which the owners cannot be divested except by due process of law. * * * A subsequent deed for one of the lots, referring to the map for the description, carries such appurtenance as incident to the lot.' Moreover, this easement extends to all streets in the tract. 157 Cal. at page 691, 109 P. 87. To the same effect are Fristoe v. Drapeau, 35 Cal.2d 5, 9, 215 P.2d 729; Hocking v. Title Ins. & Trust Co., 37 Cal.2d 644, 650, 234 P.2d 625, 40 A.L.R.2d 1238; Day v. Robison, 131 Cal.App.2d 622, 625, 281 P.2d 13. The trial court's ruling in this respect was correct.
The application to the present situation of the Danielson rule, which is confined to conveyances of lots bounded by public highways, renders unnecessary to a correct decision of this appeal a discussion of arguments about necessity or convenience requisite to an easement under § 1104, Civil Code, which is a rule of general application, not confined to streetbounded lots of a subdivision.
Civ.Code, § 1104: 'A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.'
It is argued that the court was without jurisdiction to make revised findings and judgment. The original judgment was entered on April 20, 1955; defendant made a motion for new trial which was argued and submitted on May 31, 1955. The original judgment declared title to all of vacated portions of Bard Street and Oak Street to be in the defendant subject to an easement in plaintiffs to use the entire vacated portion of Bard Street for ingress and egress as an appurtenance to their land. Upon the argument of the motion defendant's counsel urged, among other things, that there was error in the findings and judgment because the deed to Neff carried title to the middle of the vacated street and therefore the finding of title in defendant subject to an easement in plaintiffs was contrary to law. This question was discussed by counsel for both parties and the court submitted the matter in order to consider the effect of the Anderson and Pinsky cases, supra. This was on May 31, 1955. Before a ruling on the motion was made defendant appealed from the judgment on June 6, 1955. On June 9th the trial judge denied the motion for new trial, ordered the complaint amended to conform to the proof, and made revised findings and judgment to the effect that Neff's title extends to the middle of the vacated street and carries with it an easement to use the entire street for ordinary travel purposes. Appellant says that his appeal of June 6th transferred the entire cause to the Supreme Court and that the action of June 9th was wholly without jurisdiction and void. His counsel relies upon Wagner v. Shapona, 123 Cal.App.2d 451, 464, 267 P.2d 378, which supports his contention. No petition for hearing was filed in that case and we are unable to accept its ruling for reasons presently stated.
It long has been the law of this state that a motion for new trial is independent of and collateral to an appeal from the judgment, and that the power of the trial judge to entertain and pass upon the motion is not affected by such an appeal. If the motion is granted pending the appeal the judgment is vacated, the appeal becomes moot and should be dismissed. 1 Hayne on New Trial and Appeal, § 2, pp. 14-16; San Jose Safe-Deposit Bank of Savings v. Bk. of Madera, 121 Cal. 543, 545, 54 P. 85; Hatfield v. Levy Brothers, [302 P.2d 900] 18 Cal.2d 798, 807-808, 117 P.2d 841. In Re Estate of Waters, 181 Cal. 584, 588, 185 P. 951, 953, the Supreme Court, in denying a rehearing, said: '[W]e are entirely satisfied that in no case does the fact that an appeal has been taken from a judgment operate to divest the trial court of power to entertain and determine a motion for a new trial in the matter in which the judgment was given. The amendments of 1915 have in no respect changed our established law in this regard.' The addition of power to vacate or modify which was conferred by § 662, Code of Civil Procedure, has not changed the rule. This court so held in Rutledge v. Rutledge, 119 Cal.App.2d 114, 117, 259 P.2d 79, 81, saying, through Mr. Justice McComb:
Code Civ.Proc. § 662: 'In ruling on such motion, in a cause tried without a jury, the court may, on such terms as may be just, change or add to the findings, modify the judgment, in whole or in part, vacate the judgment, in whole or in part, and grant a new trial on all or part of the issues, or, in lieu of granting a new trial, may vacate and set aside the findings and judgment and reopen the case for further proceedings and the introduction of additional evidence with the same effect as if the case had been reopened after the submission thereof and before findings had been filed or judgment rendered. Any judgment thereafter entered shall be subject to the provisions of section 657 and 659 of this code.'
'Since the adoption of section 662 of the Code of Civil Procedure in 1929, the trial court has been authorized upon the denying of a motion for a new trial to amend its findings of fact, conclusions of law and enter a new and different judgment. (California Machinery [& Supply] Co. v. University City Syndicate, Inc., 3 Cal.App.2d 425, 426 [1], 428 [3], 39 P.2d 853; Spier v. Lang, 4 Cal.2d 711, 714, 53 P.2d 138.)
'The taking of an appeal from the original judgment does not deprive the trial court of the power thus conferred. Since the original judgment is nonappealable, the amended judgment is the one from which an appeal may be taken.'
See also, Rutledge v. Rutledge, 119 Cal.App.2d 112, 259 P.2d 78. The same ruling was made in Free v. Furr, 140 Cal.App.2d 378, 295 P.2d 134, and hearing was denied by the Supreme Court. The contrary ruling of the Wagner case, supra, rests upon certain decisions which do not involve the effect of an appeal upon a motion for a new trial. Therefore it is not persuasive. We reiterate the holding in the Rutledge case, supra, which means that the court did not act without jurisdiction in the present instance.
It is also contended that the order of June 9th directing amendments to the complaint to conform to the proof is erroneous because (1) the amendments do not in fact conform to the proof, (2) they substitute a new cause of action, and (3) inject new issues and new findings upon which defendant has never had a trial, thus depriving him of due process of law.
It appears that the original complaint asserted no claim that plaintiffs owned the fee to one-half of the vacated streets, but alleged an appurtenant easement to use the same; the original findings uphold the easement and state that Ernst owns the vacated portions of the streets; the judgment reflects the same view, enjoins interference with the exercise of plaintiffs' rights as dominant tenant and orders removal of defendant's building and other obstructions. The amendments to the complaint which were ordered by the court aver that title of plaintiffs extends to the center of the vacated streets. The revised findings and judgment find and decree that to be a fact; an easement to use the whole of the vacated streets is also adjudicated and protected by appropriate injunction.
Certain fundamentals should be here recognized. A cause of action is the right to enforce an existing obligation; the remedy is not of the essence; when the obligation is established an appropriate remedy flows as an incident thereto. Frost v. Witter, 132 Cal. 421, 426, 64 P. 705; Klopstock v. Superior Court, 17 Cal.2d [302 P.2d 901] 13, 20, 108 P.2d 906, 135 A.L.R. 318; Smith v. Los Angeles Bookbinders Union, 133 Cal.App.2d 486, 495, 284 P.2d 194, 199. In the last cited case it is said: 'When the basic facts are the same a shifting from one theory of liability to another is not the substitution of a new cause of action. Oberkotter v. Woolman, 187 Cal. 500, 504, 202 P. 669; Wennerholm v. Stanford Univ. Sch. of Med., 20 Cal.2d 713, 718, 128 P.2d 522, 141 A.L.R. 1358; Barr v. Carroll, 128 Cal.App.2d 23, 33-34, 274 P.2d 717.' Plaintiffs' cause of action at bar was the enforcement of rights growing out of their deed, whether those rights spell an easement or a fee title, or both. Their original averment of an easement and later alleging a fee was merely a shifting of theories which, as shown by the quotation from the Smith case, supra, is not improper. Section 580, Code of Civil Procedure, provides that the relief in a default case cannot exceed the demand of the complaint; 'but in any other case, the Court may grant him any relief consistent with the case made by the complaint and embraced within the issue.' A court of equity which has taken jurisdiction of a cause has a duty to hold it for the purpose of administering complete relief, and an obligation to make such an award. Walsh v. Majors, 4 Cal.2d 384, 398, 49 P.2d 598; Newport v. Hatton, 195 Cal. 132, 153, 231 P. 987. When the chancellor sees that plaintiff has proved himself the owner of a fee it is his duty to render such a judgment, even though plaintiff's attorney has mistakenly alleged it to be an easement. The amendments at bar did not introduce a new cause of action and the relief granted did not go beyond the province of the equity court.
Moreover, the claim that the judgment is based upon issues not tried, and that it does not actually conform to the proof, is not well grounded. The deeds which begot this controversy were received in evidence without objection and most of the surrounding circumstances were proved in the same manner. The facts were fully canvassed, and it makes little real difference whether plaintiffs own the fee to one-half of the street subject to a right of user for street purposes by defendant, or whether Ernst, the defendant, has the fed title to the whole street but is subject to a right of plaintiffs to use the entire strip for street purposes. The amendments do conform to the proof because they aver the correct legal effect of the deeds when read in the light of competent extrinsic evidence.
The proof discloses that the normal flow of surface waters over the Neff land is to the northwest; that that corner is the low spot in which the waters tend to congregate; that defendant's wall prevents their normal flow onto his land. The judgment declares that plaintiffs have an easement to maintain such normal flow (which is sound, see LeBrun v. Richards, 210 Cal. 308, 313, 291 P. 825, 72 A.L.R. 336), and enjoins further obstruction thereof, which is but an exercise of the power of a court of equity to do complete justice based upon the record before it.
Appellant also relies upon § 812, Civil Code, which is set forth in the margin. This enactment appears not to have been construed by the courts. Its terms preclude application at bar, for it expressly excepts 'a private easement necessary [302 P.2d 902] for the purpose of ingress and egress to any such lot from or to a public street or highway'. Moreover, plaintiffs' right to a fee title vested in 1938 and § 812 was enacted in 1949. It is not to be construed as an attempt to divest existing rights unless an intention so to do plainly appears, and we cannot say that such is the case here. 23 Cal.Jur. § 26, p. 629; Aetna Cas. & Surety Co. v. Industrial Acc. Comm., 30 Cal.2d 388, 393, 182 P.2d 159.
Civ.Code, § 812: 'The vacation or abandonment, pursuant to law, of streets and highways shall extinguish all private easements therein claimed by reason of the purchase of any lot by reference to a map or plat upon which such streets or highways are shown, other than a private easement necessary for the purpose of ingress and egress to any such lot from or to a public street or highway, except as to any person claiming such easement who, within two years from the effective date of such vacation or abandonment or within two years from the date of the enactment of this section, whichever is later, shall have recorded in the office of the recorder of the county in which such vacated or abandoned streets or highways are located a verified notice of his claim to such easement over all or any part of any such street or highway which is particularly described in such notice. Nothing in this section shall be construed to create any such private easement, nor to extend any such private easement now recognized by law, nor to make the rights of the public in or to any street or highway subordinate to any such private easement.'
The foregoing discussion adequately disposes of other points made by counsel.
The appeal from the judgment entered on April 20, 1955 is dismissed. The revised judgment entered on June 10, 1955 is affirmed.
MOORE, P. J., and FOX, J., concur.