151 P. 547 | Cal. Ct. App. | 1915
The plaintiff in this action sought to quiet its title to certain easements consisting of: 1. The right to maintain and use a reclamation levee erected and situated on the land of the defendant; 2. The right to have surface and seepage water flow through drainage canals situated on the land of the defendant; and, 3. The right to maintain and use a pumping plant, also situated on the land of the defendant.
Plaintiff's cause of action proceeds entirely upon the theory that its right to the claimed easements had its source in their *129 obvious and permanent user by the owner of the original tract upon which they were constructed and erected, and that upon the severance of the unity of title of the original tract such right by implication and operation of law vested in plaintiff's predecessor in interest, and ultimately rested with the plaintiff.
The answer of the defendant, while denying the material allegations of plaintiff's complaint, pleads the special defense of a release of the claimed easements solely as the result of a quitclaim deed made and executed after the severance of the unity of title by the owner of the dominant tenement, plaintiff's predecessor in interest, to the owner of the servient tenement, defendant's predecessor in interest.
In its findings of fact the trial court declared that "said levee, canals, ditches and pump were constructed and installed as one general uniform system for the reclaiming and cultivating of said land, and were constructed and installed at great expense; that said, or some other levee, canals, ditches, and pump constructed as one general system for reclaiming said land and cultivating the same, and the whole thereof are absolutely indispensable for the use and cultivation thereof." The findings of the trial court, however, upon the issue of title to the claimed easements were made in favor of the defendant. Judgment was accordingly entered in favor of the defendant from which, and from an order denying a new trial the plaintiff has appealed. Heretofore one phase of the case was presented to, and passed upon by the supreme court upon an appeal by the defendant from an order of the court below granting the plaintiff's prayer for a preliminary injunction restraining the defendant from interfering with the repair and maintenance by the plaintiff of the levee, drainage canals, and pumping plant in controversy. (Jersey Farm Co. v. AtalantaRealty Co.
In addition to the facts just stated it further appeared upon the first appeal as it does upon the present appeal that *131
after the right of Bendel to redeem the land had been determined in his favor, the parties being desirous of ending the litigation in which they were involved, entered into negotiations for settlement of the controversy. Bendel and his attorneys were not satisfied with the trustee's deed hereinabove mentioned for various reasons, and all of the parties seemed to agree that a quitclaim deed from Myra E. Wright, the beneficiary under the trust-deed, was necessary to effectually cancel her rights in the suit and to vest title in Bendel. Accordingly a quitclaim deed was thereupon executed by Myra E. Wright and the determination of this controversy depends primarily upon the legal effect of that instrument. The quitclaim deed recited that the grantor of the deed "remise," "release," and "quitclaim" to the grantee the lands in question. It was asserted by the defendant upon the appeal in the injunction proceeding, and it is reiterated here, that the quitclaim deed was to be construed by its terms, and by its terms alone, and that the effect of the recital of the words "remise," "release" and "quitclaim" was to carry the title to the lands in the deed, and with it all inferior interest, and that these words operated as a release or extinction of the right of plaintiff's predecessor in interest to the easements in controversy. Opposing this contention the plaintiff upon the first appeal insisted, as it now contends, that in construing the deed of quitclaim, evidence of the facts and circumstances under which the deed of quitclaim and release was executed were admissible to prove the intention of the parties to the deed. In the injunction proceeding the trial court permitted evidence of the surrounding facts and circumstances to explain the intention of the parties to the quitclaim deed, and the supreme court in commenting upon this ruling said, "The court . . . received evidence of the circumstances under which the deed of quitclaim and release was executed, and from this evidence concluded, as it had the right to do (Code Civ. Proc., secs.
Richards, J., and Kerrigan., J. concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal was denied by the supreme court on September 20, 1915.
Sloss, J., dissented from the order denying a hearing in the supreme court.