Page __

Hearing Granted June 7, 1951.

[229 P.2d 815] Chandler, Wright, Tyler & Ward, Los Angeles, for appellant.

Ray L. Chesebro, City Atty., Gilmore Tillman, Chief Asst. City Atty. for Water and Power, Alfred H. Driscoll, Deputy City Atty., Los Angeles, for respondents.

BARTLETT, Justice pro tem.

This is an action for declaratory relief and an injunction seeking an interpretation of an easement granting a right-of-way for electric wires over the property of appellant. The lower court awarded the respondents a judgment against the appellant for the sum of $988.78 and, in effect, decreed that there is no obligation on the part of respondents to raise the power lines beyond the height that existed at the date of the filing of the complaint. The question before us, therefore, is who is going to pay for raising the power lines under the facts existing in this case.

The case was tried upon an agreed statement of facts. So far as pertinent here and to the questions raised in the briefs of the parties, the admissions in the pleadings and the stipulation regarding the facts disclosed: That on November 5, 1929, the Republic Supply Company of California, a predecessor in interest of appellant, granted an easement to the respondents which, omitting the description of the property, read as follows: 'For and in consideration of the sum of One ($1.00) Dollar, receipt whereof is hereby acknowledged, a right-of-way is hereby granted The City of Los Angeles, its successors and assigns, with the right to erect and maintain poles with all necessary wires and fixtures thereon, and to keep same free from foliage, across that certain property belonging to the undersigned, situate in the County of Los Angeles, State of California, described as follows: For Aerial Only. * * *

'It is understood that the employees of said City shall, when necessary, have access [229 P.2d 816] to said right of way and the poles and wires thereon, for purposes of repairs, etc. provided said City shall be responsible for any damage which may be unnecessarily done to the property above described.'

This grant was on a printed form prepared by respondents except the words 'For Aerial Only' which were inserted with a pen. The Republic Supply Company received no consideration for its grant of this easement. A power line was then constructed across the northern part of this property, consisting of some 7.767 acres, at an altitude above the ground of approximately 51 1/2 feet, which carried 35,000 volts of electricity and was not insulated. At the time these wires were installed in November, 1929, the Republic Supply Company made no objection to the height at which these wires were installed and these wires have been maintained by respondents at that height and no objection was ever made by the Republic Supply Company or by the appellant who succeeded to all the rights of the Republic Supply Company and acquired the property on January 1, 1941, until October, 1946. At the time of the installation of these wires in November, 1929, the land referred to in the easement, as well as adjoining land to the west thereof, was used as a sales yard for pipe and equipment. This land has been used for that purpose ever since. The lines in question did not supply electrical energy to the appellant but to another customer of the respondents. Since its acquisition of the property, the appellant has continued to use the land covered by the easement and adjoining property for the same purpose. Buildings are located on the lands described in the easement and on adjoining land to the west but there are large vacant areas in these lands which are needed for the storage of pipe and equipment. These lands are located in an industrial area near Wilmington where it is customary to use such areas for such purposes. It is necessary and essential in the carrying on of appellant's business on the land covered by the easement to use one or more cranes to move pipe from various racks and places into trucks and cars. On April 30, 1946, appellant changed the type of crane that it had been using prior to that time and in order to more completely and efficiently use its land, acquired a new type of crane which enabled the appellant to store its pipe to a greater height. This crane, in doing work which is necessary in some operations, reaches a height of 61 feet. In storing some of the pipe the crane was required to go into the parts of the land below the power lines. In October of 1946, while the crane was being used it came into contact with respondents' lines and approximately 35,000 volts were charged into the boom and crane. The wheels of the crane were rubber-mounted and the operator did not suffer serious injury. Following this event the appellant removed a 5 foot section of the boom mounted on the crane but by reason thereof the boom and crane could no longer be used to 100 per cent efficiency. After that and subsequent to the filing of this complaint a similar accident occurred in which the operator of the crane narrowly escaped electrocution. During the pendency of the action the parties further stipulated that in order to prevent the possibility of injury to workmen, the respondents set new poles carrying wires across the property of appellant which raised the transmission line to an altitude sufficient to obviate interference with the use made of portions beneath it and, further, that the cost of the change in elevation amounted to the sum for which the judgment was rendered.

It is to be noted that the words of the grant in writing 'For Aerial Only' are repugnant to the words in printing. Therefore, in arriving at the intention of the parties insofar as these words are repugnant, the printed words must be disregarded. Civ.Code, sec. 1651. It was stipulated by the parties that no poles were then or at any time ever had been erected upon the property in question. The manifest intention of the parties by the use of the words 'For Aerial Only' was to limit the grantee to the maintenance of wires across the lands of the grantor. No height was fixed at which the wires should be carried and in view of the rights of the servient tenement in the grant of an easement which we will hereafter discuss, the parties intended that these wires should cross the [229 P.2d 817] land of the servient tenement at a height which would not interfere with the owners' right to the reasonable use of its land.

That the owners were making a reasonable use of their lands is shown by the findings of the court and the stipulations of the respondents.

In the case of the grant of an easement the law is alert to protect the right of the owner of the servient tenement to make any use of his land which does not constitute an unreasonable interference with the easement. Every incident of ownership not in conflict with the easement is reserved to the servient tenement. No burden may be imposed upon the servient tenement which the original grant did not contemplate. Anderson v. Southern Cal. Edison Co., 77 Cal.App. 328, 246 P. 559, was an action to recover damages for injuries caused by contact with high voltage wire maintained by the defendant. As one of its defenses the defendant claimed an easement over the lands in question and that therefore the plaintiff, who was a painter's apprentice, engaged in work which took him to the roof of a building located underneath the wire, was a trespasser. In 1910 the defendant constructed power lines across the territory which was then and at the time of the decision of the court, still was agricultural in character. The poles were 40 feet high and the wires at the lower point were about 30 feet from the ground, were uninsulated and carried 11,000 volts of electricity. At the time of the accident there was a sag in the wires but this was a normal sag and brought the wires to the height stated. In 1921 the owner of the land underneath the wire rented the property to persons who in 1922 constructed a corrugated iron building directly under the wire, the peak of the roof having a clearance of about 3 feet. In discussing the question of the rights of the defendant company by reason of an easement to carry wires across this property the court said, 77 Cal.App. at page 335, 246 P. at page 562: 'Whatever interest defendant company may have in the land in question by reason of the asserted easement, the right of the owner thereof to its use of the land for any purpose was not abridged, provided only that such use did not conflict or defeat the rights of the company in the use of its lines. In other words, the interest of the company was not an exclusive one.' Later, 77 Cal.App. on page 336, 246 P. on page 562, the court said this: 'In the enjoyment of its asserted interest, it was the duty of the defendant to keep within its limited interest and to so erect its aerial right of way as not to interfere with the reasonable use of the surface of the soil to which the owner had made avail. In failing to do so, it became itself a trespasser on the rights of the owner and those claiming under him. Citizens' Telephone Co. v. Cincinnati N. O. & T. P. Ry. Co., 192 Ky. 399, 233 S.W. 901, 18 A.L.R. 615.'

Respondents call attention to the fact that the case was not one between the owner of the land and the company in question and that, as the court stated in its opinion, it was not concerned with their respective rights in the easement. However, the court, for the purpose of its opinion, assumed the existence of the easement and, having made such an assumption, on account of the nature of the defense interposed by the defendant, necessarily had to pass on the questions referred to in the quoted portion of the opinion. We cite this case on account of the similarity of the facts involved. Furthermore the statements of law set forth in this opinion are in exact accord with all California decisions making pronouncements on the rights of the servient tenement. For instance, in City of Pasadena v. California--Michigan Land & Water Co., 17 Cal.2d 576, 579, 110 P.2d 983, 985, 133 A.L.R. 1186, the court clearly expresses the law applicable: 'Where the easement is founded upon a grant, as here, only those interests expressed in the grant and those necessarily incident thereto pass from the owner of the fee. The general rule is clearly established that, despite the granting of an easement, the owner of the servient tenement may make any use of the land that does not interfere unreasonably with the easement. Hoyt v. Hart, 149 Cal. 722, 87 P. 569; Durfee v. Garvey, 78 Cal. 546, 21 P. 302; Dierssen v. McCormack, 28 Cal.App.2d 164, 82 P.2d 212; Perley v. [229 P.2d 818] City of Cambridge, 220 Mass. 507, 513, 108 N.E. 494, L.R.A.1915E, 432; 3 Tiffany, Real Property, 3d Ed., 1939, § 811. It is not necessary for him to make any reservation to protect his interests in the land, for what he does not convey, he still retains. Jones, Easements, § 391 et seq., p. 313.' Also in Dierssen v. McCormack, 28 Cal.App.2d 164, 82 P.2d 212, the same conclusions are expressed as are set forth in the preceding quotation and the court also says, 28 Cal.App.2d at page 170, 82 P.2d at page 216: 'The law is jealous of the claim of an easement (19 Cor.Jur. 958) and likewise of the extent of the rights claimed under an instrument granting an easement.'

Two men almost met their death as a result of the condition existing on the property in question. The respondents contend that this was due to the use by appellant of a longer boom than the one previously used. The answer to that is that the only reasonable conclusion that can be drawn from the stipulated facts is that the use made by appellant of its land was not only reasonable but was necessary to an efficient use thereof. Such being the case the near tragedies referred to were caused by the manner in which, under the changing conditions then existing, the respondents maintained their wires. The respondents were under an absolute duty not only to install such a dangerous instrumentality properly, but at all times to maintain it in a safe manner in view of changing circumstances. As said in Lozano v. Pacific Gas & Elec. Co., 70 Cal.App.2d 415, 422, 161 P.2d 74, 78: 'Even if at the outset of the installation of the equipment the company may have been entirely free from fault, yet, if, under changing circumstances, a hazardous condition arose, nonaction or the failure to remedy such condition would constitute culpable negligence. Polk v. City of Los Angeles, supra [26 Cal.2d 519, 159 P.2d 931]; McCormick v. Great Western [etc.] Co., 214 Cal. 658, 8 P.2d 145, 81 A.L.R. 678.'

Respondents contend that there was a consideration for the grant of this easement. The complaint alleged that there was no consideration for the grant. The answer denied this and then proceeded to allege that the consideration was as follows: '* * * but, to the contrary, allege that at the time of the granting of said easement it was understood and agreed that in consideration of said grant the properties of plaintiff's said predecessor would be supplied with electric energy from the power line to be erected thereon and that pursuant to said agreement said property has ever since been and is now being supplied with electric energy from said power line on said easement.' Respondents thereafter stipulated that the facts alleged were not true. Such being the state of the record, respondents are in no position now to make any such contention. It is to be noted that this is not one of those cases where the services furnished were for the benefit of the servient tenement.

Respondents state that they are aware of the high degree of care required of an electric utility in maintaining its facilities but that this is a rule of negligence and has no bearing upon the law of easements. Also that there is no basis for contending that lack of consideration should be construed more strictly against the grantee and state: 'Furthermore, the trial court has held that the respondents have acquired the right to maintain wires across the easement 'not only by virtue of the grant thereof by the Republic Company to the defendants, but also by prescription.'' We have adverted to neither of these matters for the purposes suggested, but solely in a consideration as to what light these matters might throw on the intent of the parties in creating an easement 'For Aerial Only'. No height was fixed for the wires to be carried over the servient tenement. We conclude that it is obvious that the intent of the parties was that these lines should be maintained at a height that would not interfere with whatever reasonable use plaintiff might desire to make of its land. We cannot conclude that an easement was given without consideration with the intent to permit the respondents to maintain lines carrying 35,000 volts by uninsulated wires and then [229 P.2d 819] when, on account of changing conditions, it became hazardous to do so and a legal duty devolved upon the respondents to change that height, to increase the burden on the servient tenement by making the expense of this change chargeable against it.

Respondents' only answer to appellant's contention that the court erred in holding that respondents had acquired by prescription a right of way to maintain these wires at a height of 51 1/2 feet is that: 'There is ample support in the findings of fact to support the trial court's holding * * *.' They do not call attention to any such finding nor to any evidence which would support such a finding. In order to establish a prescriptive right it is necessary to prove that there has been an adverse user for 5 years asserted in such a manner that the owner is apprised thereof. Peck v. Howard, 73 Cal.App.2d 308, 167 P.2d 753. An examination of the stipulation regarding the facts show that there was nothing adverse in the maintenance of these wires at a height of 51 1/2 feet until April 30, 1946, when appellant began making what respondents stipulate was a more efficient use of this property and later its crane came in contact with these uninsulated wires. Until that time there had been no conflict in the use of appellant's premises and respondents' maintenance of its lines at that height. Nothing before that would indicate that respondents claimed any such right regardless of any uses which the owner might make of his land. After the use became adverse and after appellant was apprised of respondents' claim, this action was filed in less than one year.

The proposition most earnestly advanced by respondents is, to use the language of their brief, the following: 'The Location and Extent of an Easement Granted in General Terms May Become Fixed Through Designation by Either or Both of the Parties or by Acquiescence Therein, and Once Having Become so Fixed, the Location and Extent Thereof Cannot Be Materially Changed by Either Party Without Consent of the Other.' In discussing this question it is contended by them that the easement herein being in general terms and the wires having been maintained by the respondents at the same location at the same height for many years brings them within the principle stated. The rule and the reason for it is succinctly stated in the following quotation from 17 American Jurisprudence, page 988, set forth in respondents' brief: 'The general rule is that the location of an easement once selected cannot be changed by either the landowner or the easement owner without the other's consent. The reason for this rule is that treating the location as variable would incite litigation and depreciate the value and discourage the improvement of the land upon which the easement is charged.' In their entire discussion of the applicability of this principle respondents ignore what to us is vital in this case and that is this, that when respondents presented appellant's predecessor with a form of easement which would have granted a right to use a strip of land across this property to '* * * erect and maintain poles with all necessary wires and fixtures thereon * * *' there was added the words absolutely repugnant thereto, 'For Aerial Only.' If they had not added these words, there would have been in existence the same type of easement described in respondents' brief in their quotation from Pacific Gas & Electric Co. v. Crockett Land & C. Co., 70 Cal.App. 283 found at pages 292 and 293, 233 P. 370, at pages 373 and 374. All of the cases cited by respondents contain the important distinction from the one confronting us in that the easement created in general terms, granted a right to actually use portions of the grantor's land. These cases were all concerned with situations analogous to that where a grant in general terms is made to maintain a ditch or road on and across the land of the owner and the route of that ditch or that road becomes fixed by long continued usage and the consent, expressed or implied, of the owner. Such cases are not concerned with the problems presented to us. As stated by appellant: 'The issue now is who is going to pay for raising the wires?' Any idea that the grantees were maintaining these uninsulated wires carrying 35, [229 P.2d 820] 000 volts of electricity at a height of 51 1/2 feet with a hostile intention of continuing to do so regardless of any change in conditions or any lawful use the servient tenement might make of its estate is dispelled by all reasonable intendments to be taken from the stipulated facts. The fact that the owner made no objection until there was some reason to object, cannot be taken as any evidence that there was any acquiescence on its part in a permanent maintenance of those wires at that height. We conclude that the cost of raising of the wires should be borne by the respondents as, according to the pleadings, it has been, and that respondents therefore are not entitled to judgment for the amount so expended.

In our opinion the court was correct in that portion of the declaratory relief granted in which it stated: 'That under said right-of-way, the defendants are entitled to maintain said wires over, above, and across the property covered by said right-of-way at the height at which they now exist, to wit, a height in excess of sixty-one (61) feet above the ground at their lowest point * * *' and that plaintiff is not entitled to require defendants to change this right without defendants' consent. We so hold by virtue of certain matters shown by the stipulation of the parties to have occurred during the pendency of the action. We note that by the stipulation, on account of the second accident wherein the crane came in contact with the wires and which occurred while the action was pending, the parties agreed: 'That as a result of said accident the parties through their attorneys herein stipulated that the defendant should immediately raise its power lines to such a height that no further accident could possibly occur * * *.' Furthermore the respondents filed a supplementary answer in which they alleged that pursuant to this stipulation they had done the matters agreed to and the appellant stipulated that the allegations of the supplementary answer were true. Such being the case, it would appear that all controversy between the parties except the one as to which party should pay for raising these wires had been finally settled and determined by the parties themselves.

No contention that the court should not have declared that the respondents had the right of access to such right of way for the repair of the lines can be maintained. All easements contain 'secondary easements' consisting of the right to do such things as are necessary for the full enjoyment of the easement and that would include the right to enter the premises to repair the lines. Anderson v. Southern Cal. Edison Co., supra, 77 Cal.App. 328, 335, 246 P. 559. As there are no appurtenances upon the easement other than the wires making an aerial crossing, the words in the judgment referring to other appurtenances should be stricken.

The judgment is therefore ordered modified in the following particulars: By striking therefrom paragraph 1 of said judgment and the words 'and other appurtenances' wherever said words appear in paragraph 3 of said judgment.

As thus modified, the judgment is affirmed. The appellant is allowed its costs on appeal.

SHINN, P. J., and VALLEE, J., concur.