ADOLPH D. LAUX et al., Respondents, v. WILLIAM J. FREED et al., Appellants.
Sac. No. 6892
In Bank
Jan. 29, 1960
Denied February 24, 1960
53 Cal.2d 512
*Assigned by Chairman of Judicial Council.
I would discharge the order to show cause heretofore issued and deny the writ sought.
Spence, J., and McComb, J., concurred.
The petition of the real parties in interest for a rehearing was denied February 24, 1960. Peek, J. pro tem.,* participated therein in place of White, J., who deemed himself disqualified. Schauer, J., Spence, J., and McComb, J., were of the opinion that the petition should be granted.
Donald W. Littlejohn and Florence J. Westfall for Respondents.
SCHAUER, J.—This is an appeal by defendants from only that portion of a judgment which purports to alter the terms of, and place limits on the use of a right of way granted by, a deed to them from plaintiffs, and which enjoins use of the right of way other than as limited by the judgment. We have concluded that the trial court‘s judgment results in varying the terms of the written grant, rather than merely interpreting it, and is without support in the record, and that the portion of the judgment appealed from should therefore be reversed. For convenience, plaintiff husband and defendant husband will hereinafter sometimes be referred to as plaintiff and defendant, respectively.
In August, 1947, plaintiff and defendant acquired as partners certain range land in Colusa County, California. Plaintiff testified that during the deer hunting seasons of 1947 through 1951, the parties and their invitees and guests hunted deer upon the range land. For the season of 1949 or 1950 they leased out the deer hunting rights, such leasing being referred to as “commercial hunting“; plaintiff and defendant, however, reserved the right to also hunt on the property with their own guests. Plaintiff did not know “how many permits or licenses” to hunt were sold by the lessee in that year.
Until 1952 the parties owned and “farmed or operated this property as partners.” In that year by agreement the partnership was dissolved and the land divided into two parcels. As above shown, for five or six years preceding dissolution of the partnership both parcels had been used seasonally for deer hunting and the road which is the subject of the right of way here disputed had been used by the partners and their guests or licensees. (Likewise, as hereinafter shown, both parcels—
For many years there had been a private road (the road hereinabove mentioned) crossing the northerly portion which road was used as a means of access to the southerly portion and which at the time of the division of the land was the only road into the back part of the latter portion, although there were “other ways to get into the place.” Prior to the division, and as a part of the dissolution agreement pertaining to equalization of value and accessibility of each parcel, the partners agreed that “whoever got” this back half, or “southerly parcel,” of the range, should also receive and have a right of way across the northerly parcel over the private access road. As a part of the theretofore orally agreed upon division defendant, to whom the back (southerly) part went, received from plaintiff a grant deed to “all the real property . . . described as follows:
“A right of way over a road as presently constructed along the East Branch of Sand Creek, in the [legal description].”
Plaintiff, himself, prepared the deed following oral discussions with his partner. No limitation as to either purpose or use by defendant, of the right of way so conveyed is stated in the deed.
Following the partition in 1952, plaintiff and defendant and their invitees and guests hunted upon each other‘s land as well as upon their own during the deer season of that year. In 1953, however, a boundary fence was erected and thereafter each party hunted only upon his own lands. During the 1953 through 1955 seasons defendant and his invitees and guests, apparently as had been contemplated by the parties at the time of partition, used the right of way over the road across plaintiff‘s land to reach the land of defendant. In 1956 both defendant and plaintiff leased “exclusive” deer hunting rights “commercially” on their respective lands to individual
Although as hereinabove mentioned the defendants appeal from only that portion of the judgment which purports to limit the extent of the granted right of way, it makes for a clearer understanding of the case to briefly mention other issues that were tried and resolved. The first cause of action alleged: “That on or about the 29th day of August, 1952, the plaintiffs executed and delivered to the defendants a right-of-way as follows, to wit: For Value Received, Adolph D. Laux and Joyce H. Laux, his wife, grant to William J. Freed and Bertell F. Freed, his wife, as Joint Tenants, all the real property situate in the County of Colusa, State of California, described as follows: A right of way over a road as presently constructed along the East Branch of Sand Creek, in the East half of Section 18 . . . That pursuant to the provisions of said right-of-way defendants were entitled to use said road only as constructed and existing as of August 29, 1952.” Plaintiffs further alleged that after the partition of the property and the delivery of the respective deeds from defendants to plaintiffs and from plaintiffs to defendants the defendants “changed the course of said road from its original location of 1952 as it was constructed when the said right-of-way was granted,” and that defendants “constructed a bridge over an excavation made by the defendants” and changed the course of the stream. Plaintiffs also alleged that in 1956 the defendants commenced the construction of another bridge to replace the previous one which had been washed out and in process of reconstruction of the bridge took materials from plaintiffs’ land.
Plaintiffs in their second cause of action alleged the granting of the right of way and the terms hereinabove quoted and further averred: “That the said right-of-way hereinabove described granted by the plaintiffs to the defendants was granted for the sole purpose of the use of the defendants to
The trial court found that prior to the year 1952 plaintiffs and defendants jointly owned all of the real property concerned in this litigation; “that in the year 1952 Plaintiffs Laux and Defendants Freed [by mutual agreement] partitioned said property, Plaintiffs Laux [by the toss of a coin] becoming the owners of the land” referred to by the parties as the northerly parcel and defendants Freed becoming the owners of the southerly part, or “brush patch.” To effect such
As to the issues specifically presented by the pleadings the findings were as follows: “That the words ‘as presently constructed’ appearing in the above mentioned grant of right of way is hereby construed to refer to the direction and location of the right of way, and said words do not negative a secondary easement to maintain or repair“; that the defendants did not change the course or location of the road upon “said right of way from its original location in 1952 as said road was located when the said right of way was granted“; that the defendants did construct a bridge in the fall of 1953 which was washed out in 1955, and in 1956 defendants commenced construction of a new bridge which new bridge is improperly constructed so that the bridge itself and its approaches are hazardous. Purporting to support the specific provision of the judgment from which the appeal is taken the court found that the right of way in the language hereinabove quoted “was granted for the sole purpose of the use by Defendants Freed for moving livestock, farm machinery, hay, feed, other stock raising and farm goods and chattels to and from their property lying south of Plaintiffs’ property. (6) That in the year 1956, the Defendants Freed leased their aforementioned described real property for deer hunting purposes during the deer hunting season of 1956; that the Lessee of the hunting privileges of said premises issued memberships to numerous individuals for the purpose of hunting on Defendants’ hereinabove described property; that since the commencement of deer season in 1956, and pursuant to the specific instructions of Defendants Freed and their Lessee, said deer hunters, who had purchased hunting rights on Defendants’ land, entered Plaintiffs’ land over the aforementioned right of way granted to the defendants; that Plaintiffs requested Defendants to cease instructing said deer hunters to use such access to Defendants’ property; that Defendants failed and refused to permit said deer hunters to use any other access to Defendants’ property and hunting area. (7) A map in evidence shows that Defendants have access to their property and hunting area by a county road and should they desire to rent hunting privileges to third persons, access to said hunting area can be gained by the above mentioned road. (8) That the use of Defendants’
Based on the foregoing findings the judgment enjoins the defendants from maintaining or constructing the bridge referred to in the first cause of action unless the same “be built under the supervision . . . of an experienced bridge builder . . . or . . . under the supervision of the [county] Road Commissioner,” and specifies that “by way of an injunction . . . Defendants are . . . enjoined . . . from use or permitting to be used the right of way granted for the purpose of ingress and egress to and from their property for commercial hunting privileges and that the use of the road is hereby limited to the purposes of permitting Defendants to move livestock, farm machinery, hay, feed and other stock raising and farming goods and chattels to and from their own property.” It is to be observed that this injunction absolutely prohibits the defendants (either in person or by their invitees) from using the granted right of way for any purpose not listed in the judgment. Thus defendants are deprived of a use which had been an incident of the right of way road for approximately 10 years: from 1947 to 1952, before the partition; and from 1952 to 1956, after partition.
The controlling issue before us is whether the last-quoted portion of the injunction so limiting the defendants in the use and enjoyment of their easement, can be sustained.
In the first place it is to be noted that
Here, although plaintiff, in support of the findings and the judgment, relies upon his own testimony that prior to partition of the land the parties, then being partners, orally discussed and agreed that the right of way would be for the limited purposes alleged by plaintiff and found by the trial court, plaintiff‘s testimony, undisputed in this respect, shows affirmatively that from the time the parties as partners first acquired the land until they divided it by the flip of a coin some five years later and erected a boundary fence the following year, both plaintiff and defendant and their invitees and guests had hunted the entire range land and during a portion of that time had jointly leased out the deer hunting rights on a commercial basis.2 Until plaintiff partner won the toss of the coin and knew which of the two parcels into which the land had been divided would be his, his interest was, of course, that the party who received the back half or “brush patch” should likewise receive an unlimited right of way at least to the extent and for the purposes for which it had been used during
Manifestly, as partners in the ownership and operation of the entire property before it was divided, plaintiff and defendant bore a confidential and fiduciary relationship to each other. (Nelson v. Abraham (1947), 29 Cal.2d 745, 750 [6]; 37 Cal.Jur.2d 613-614, § 46, and cases there cited; 68 C.J.S. 516-517, § 76; 40 Am.Jur. 217, § 128.) As partners, neither had the right to take an unfair advantage or secure an undue benefit, and the burden is on the one seeking an advantage to show complete good faith and fairness toward the other. The duty of good faith and the burden of showing it extend to the dissolution and liquidation of partnership affairs, as well as to the sale by one partner to another of his interest in the partnership. (Arnold v. Arnold (1902), 137 Cal. 291, 296; see also 37 Cal.Jur.2d 619-621, § 51; 40 Am.Jur. 218, § 129.) It follows that if plaintiff, who drafted the right of way deed in the present case, intended that use of such right of way be limited or restricted, particularly more limited or restricted than during the period of partnership ownership of the entire property, it was his duty to so disclose by incorporating any such limitations in the grant itself, rather than some four years after the dissolution, and after continuing use of the right of way as granted, seeking court assistance to prevent defendant from making full use in the customary manner of the way granted.
Insofar as construction of the grant of the right of way is concerned
One of such rules is that if the language of a deed is plain, certain and unambiguous, neither parol evidence nor surrounding facts and circumstances will be considered to add to, detract from, or vary its terms or to determine the estate conveyed. (See Joerger v. Pacific Gas & Electric Co. (1929), 207 Cal. 8, 32 [26]; Fitzgerald v. County of Modoc (1913), 164 Cal. 493, 497; Pinsky v. Sloat (1955), 130 Cal.App.2d 579, 588-589 [3-11];
There appears to be nothing unclear, uncertain or ambiguous, at least as relevant to the issues of this case, in the words “For Value Received, Adolph D. Laux and Joyce H. Laux . . . grant to William J. Freed and Bertell F. Freed . . . as Joint Tenants, all the real property situate in the County of Colusa . . . described as follows: A right of way over a road as presently constructed along the East Branch of Sand Creek, in the East half of Section 18” etc. Perhaps one might argue ambiguity or uncertainty as to the meaning of “as Joint Tenants” but that criticism does not apply to “A right of way over a road as presently constructed along the East Branch of Sand Creek” etc. But even if we assume that in some situations the facts surrounding the execution of the deed may be shown in evidence to explain the language used in a deed, that is not the purpose or objective of the plaintiffs here.
There is not even a suggestion of overreaching of plaintiffs by defendants. Nor is there any contention that defendants misled plaintiffs or misrepresented the terms of the dissolution of the partnership. Plaintiff Adolph Laux himself prepared the deed. He prepared it, according to his testimony, after discussion with defendant William Freed of various requests for further and differing rights of way.
Further, an instrument in writing is construed most strongly against the party who drafted it or caused it to be drafted. (
Plaintiff‘s own testimony here shows that the intention of the parties was to make (and the law prescribing the duties of fiduciaries would require) a substantially equal division of the property and equipment which they owned as partners, that following the toss of the coin defendant had requested two further rights of way in addition to the existing one and that the parties had negotiated and argued out the matter including use for deer hunting, and that plaintiff caused the deed to the right of way to be prepared in the form hereinabove quoted and deposited with the title company.3 If plaintiff had intended (and the partners had agreed) that defendant himself, and hunters invited or licensed by defendant, were to be barred from use of the existing right of way—the sole right of way granted by plaintiff to defendant—it was incumbent on the plaintiff to have caused the deed he prepared and delivered to so state. In any event, under the circumstances shown here, the prior negotiations which preceded the written document were merged into and superseded by the writing, and cannot now be resorted to by plaintiff to so limit the terms of the grant as to deprive his former partner of the right to continue using the road as it had been used consistently before the dissolution of the partnership.
This conclusion is further supported by the provision of
For the above stated reasons, we conclude that the record fails to provide a legally sufficient basis for judicially writing into plaintiffs’ deed of an unlimited right of way, the restrictions embodied in the injunction.
The portions of the judgment appealed from are reversed.
Gibson, C. J., Spence, J., McComb, J., Peters, J., and White, J., concurred.
TRAYNOR, J.—I concur in the judgment but wish to add that I adhere to the views with respect to the so-called rule against admitting extrinsic evidence to interpret apparently unambiguous written instruments set forth in my concurring opinion in Universal Sales Corp. v. California etc. Mfg. Co., 20 Cal.2d 751, 776, and dissenting opinion in Estate of Rule, 25 Cal.2d 1, 20-22. (See also Union Oil Co. v. Union Sugar Co., 31 Cal.2d 300, 306, footnote [188 P.2d 470].) Its fatuity is demonstrated by holdings that the conflicting contentions of the parties as to the meaning of a written instrument alone supply the ambiguity necessary to take the rule out of play. (Beneficial etc. Ins. Co. v. Kurt Hitke & Co., 46 Cal.2d 517, 524; Chastain v. Belmont, 43 Cal.2d 45, 51; Television Arts Productions, Inc. v. Jerry Fairbanks, Inc., 164 Cal.App.2d 842, 848; California Emp. etc. Com. v. Walters, 64 Cal.App.2d 554, 559.) Litigation as to the meaning of language arises
The rule is of no assistance whatever in determining the meaning of the deed in this case. Its meaning can only be made plain by extrinsic evidence. Certainly it is logic run riot to rely on extrinsic evidence to establish that the meaning is plain and then to hold that such evidence cannot be considered because the meaning is plain. The suitability of defendants’ land for deer hunting was established by the extrinsic evidence of its use for that purpose both before and after the execution of the deed in question. In the absence of evidence establishing that the meaning the parties attached to the language of the grant excluded use of the easement to gain access for hunting, the grant in general terms must be interpreted as permitting that use. (Drexler v. Hufnagel, 76 Cal.App.2d 606, 609; see Pasadena v. California-Michigan etc. Co., 17 Cal.2d 576, 582; 3 Tiffany, Real Property (3d ed.), § 803, pp. 322-323.)
There is no evidence in the record to support a restrictive interpretation of the deed. It is true that plaintiff testified that before the property was partitioned, the parties orally agreed that “whoever got the back half of the range should have a right of way up through the property for the purpose of caring for his cattle in winter time, or hauling hay up to them, or haul material, whatever he needed to care for his property, in maintaining fences, and so forth.” As an agreement, this oral understanding was superseded by the subsequently executed deed. (
To attempt to support this conclusion by holding that the very evidence on which it is based may not be considered is logically indefensible. Moreover, the giving of lip service to the rule that an apparently plain and unambiguous meaning must govern, invites the error that the trial court committed in this case, namely, rewriting a written instrument. Implicit in the statement that when the language of a written instrument is “plain, certain and unambiguous” extrinsic evidence will not be considered “to add to, detract from, or vary its terms” is the idea that if the language is not “plain, certain and unambiguous,” extrinsic evidence may be considered for those purposes. Whether or not the language of a written instrument appears, “plain, certain and unambiguous,” extrinsic evidence is not admissible to “add to, detract from, or vary its terms.” It is admissible to determine what those terms are. (Barham v. Barham, 33 Cal.2d 416, 422-423.) The court must determine the true meaning of the instrument in the light of the evidence available. It can neither exclude extrinsic evidence relevant to that determination nor invoke such evidence to write a new or different instrument.