City of Pasadena v. California-Michigan Land & Water Co. , 17 Cal. 2d 576 ( 1941 )

GIBSON, C. J.

This is an action for injunction and damages based on the defendant’s alleged past and threatened future invasion of certain easements owned by the plaintiff. The case was tried by the court sitting without a jury, and from a judgment entered for the defendant the plaintiff prosecutes this appeal.

The parties are competing vendors of water service in an unincorporated area situated between the cities of Arcadia and Pasadena. The defendant, under claim of right and with the admitted permission of the servient owners, installed water mains and service connections in certain five-foot easements theretofore granted to the plaintiff and partly occupied by its water mains and connections. This action was commenced by the plaintiff on the theory that the owners of the servient tenements had no power to grant easements similar to plaintiff’s in the same five-foot strip of land to the defendant company, a competing distributor of water service. Plaintiff’s contention was that it had a right to occupy the five-foot strip completely if the necessity arose, and that the defendant’s installation substantially interfered both with plaintiff’s present partial occupation of the land and with its possible future use of the land for its pipes and connections. The trial court found against the plaintiff and for the defendant upon conflicting evidence. In this appeal plaintiff contends primarily that the easement grante^ to the defendant was an unreasonable interference with Fits prior easement as a matter of law. It is asserted that there was no need to resort to evidence of the surrounding facts and circumstances, and that the court should have found for the plaintiff upon the ground that the defendant’s mains interfere in law with the easement previously granted to the city, entirely apart from the question of physical interference upon which the trial court found against plaintiff. There is also a contention that the findings of the trial court are not supported by the evidence. We find ample evidence, however, to sustain the findings. We shall confine our opinion, therefore, to a consideration of the appellant’s primary contention, that the easements granted to the defendant interfered with its prior easements as a matter of law.

The easements involved in the present case are described as follows in the instrument creating them: “Easements for the purpose of installing and maintaining water mains and connections thereto ... all of said easements being five feet in width, to-wit: a. In lots 1 to 12, both inclusive, along the south line thereof . . . ”, This language eliminates at once the suggestion that appellant’s easement was a so-called “exclusive easement”. Under section 806 of the Civil Code “the extent of a servitude is determined by the terms of the grant ... ”, and there is no language in this grant which indicates any intention to make the easement held by the City of Pasadena an exclusive one. Indeed, appellant does not make a serious claim that there was an intention to make this an exclusive easement; and any such intention would seem clearly contrary to the admitted facts, since prior easements in the same land were in effect at the time when appellant’s easements were granted. Furthermore, an “exclusive easement” is an unusual interest in land; it has been said to amount almost to a conveyance of the fee. (2 Thompson, Real Property [1939], sec. 578; Jones, Easements, sec. 378, p. 302.) No intention to convey such a compíete interest can be imputed to the owner of the servient tenement in the absence of a clear indication of such an intention. (See Reiver v. Voshell, 18 Del. Ch. 260, 264 [158 Atl. 366]; Jones, supra, sec. 379, p. 303.)

The determination of this appeal turns upon the rights which the owner of the servient tenement retains in the land over which he has granted an easement for the laying of water pipes. It is established that the right to lay underground pipes over the land of another is an easement and is governed generally by the rules of law which govern ordinary easements of way. (Winslow v. City of Vallejo, 148 Cal. 723 [84 Pac. 191, 113 Am. St. Rep. 349, 7 Ann. Cas. 851, 5 L. R. A. (N. S.) 851]; Patterson v. Chambers’ Power Co., 81 Or. 328, 348 [159 Pac. 568]; Weil, Water Rights in the Western States (3d ed.), sec. 458 et seq.; 17 Am. Jur. 983, 1002.) 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 Pac. 569]; Durfee v. Garvey, 78 Cal. 546 [21 Pac. 302]; Dierssen v. McCormack, 28 Cal. App. (2d) 164 [82 Pac. (2d) 212]; Perley v. Cambridge, 220 Mass. 507, 513 [108 N. E. 494, L. R. A. 1915E, 432]; 3 Tiffany, Real Property (3d ed. 1939), sec. 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, sec. 391 et seq., p. 313.) Furthermore, since he retains the right to use the land reasonably himself, he retains also the power to transfer these rights to third persons. (Galletly v. Bockius, 1 Cal. App. 724, 727 [82 Pac. 1109]; Hoyt v. Hart, supra, p. 728; 3 Tiffany, supra, sec. 811; 17 Am. Jur. 994, 995.) Thus, in the instant case, the right of the defendant to use the particular land in controversy is derived from the owner of the servient tenements, and whether it is a permissible use is to be determined by whether the owner of the servient tenements could have used the land in that manner.

Whether a particular use of the land by the servient owner, or by someone acting with his authorization, is an unreasonable interference is a question of fact for the jury. (See Frank v. Benesch, 74 Md. 58, 61 [21 Atl. 550, 28 Am. St. Rep. 237]; Rowell v. Doggett, 143 Mass. 483, 488 [10 N. E. 182]; Bakeman v. Talbot, 31 N. Y. 366, 370 [88 Am. Dec. 275]; Jones, supra, sec. 394, p. 315; 2 Thompson, supra, sec. 584; 17 Am. Jur. 994, 995, 1008; 15 L. R. A. (N. S.) 293.) In the present case, the trial court found that there was no such unreasonable interference, and this finding based upon conflicting evidence would ordinarily be conclusive.

Appellant urges the application of a different rule to the instant case upon the following grounds: That these easements are created by grant, and the language of the grant is so clear and definite that a court as a matter of law can define the relative rights of the parties from the instrument alone, without resorting to an examination of the surrounding facts and circumstances. This is said to be so because this is an easement of defined width and location, ther theory being that where the easement has ir defined width/ the easement holder has the right to occupy it to the full width if it ever desires to do so. Therefore, it is asserted, any use of the strip of land for laying other water pipes should be held to be unreasonable interference as a matter of law.

Appellant relies upon cases which hold that a surface right of way of defined width gives the easement holder the absolute right to occupy the surface to that width whenever he chooses. These eases depend upon the theory that the easement granted is completely and clearly defined because the width and location of the right of way are specified in the grant. (See, for example, Ballard v. Titus, 157 Cal. 673 [110 Pac. 118]; Herman v. Roberts, 119 N. Y. 37 [23 N. E. 442, 16 Am. St. Rep. 800, 7 L. R. A. 226].) They do not necessarily require a similar conclusion where the easement is for the limited purpose of laying underground water pipes to serve the surrounding property with water for domestic purposes. There is a clear distinction in purpose between a right of way over the surface of the land to be used by moving vehicles and an easement for the laying of water mains in a relatively fixed and permanent position. In the ease of an easement for laying underground water pipes 'there are important factors to be considered in addition to the width and location of the easement. These include, for example, the number and size of the pipes, the right to shift the pipes around at will, and the depth at which the pipes are to be laid. To state the point more generally, with such an easement the extent of the burden which the parties intend to impose upon the servient tenement is not definitely fixed merely by a specification of width and location. Indeed, even with surface rights of way, a specification of width and location does not always determine the extent of the burden imposed upon the servient land. (See Johnson v. Kinnicutt, 56 Mass. (2 Cush.) 153, 157; Smith & Sons Carpet Co. v. Ball, 143 App. Div. 83 [127 N. Y. Supp. 974].)

Appellant’s position does not take into consideration the difference between the burden which the easement imposes upon the servient land and the location at which the burden is to be imposed. In Winslow v. Vallejo, supra, a case which is strongly relied upon by appellant, the court holds that where the grant is indefinite the court may consider additional factors in determining the extent of the burden intended to be imposed upon the land. At page 725 the court says: “But the conveyance is general in its terms and affords no basis for determining the number of the pipes, their size, or their exact location.” It is here recognized that there are factors other than mere location to be considered, and that the extent of the burden is not determined merely by fixing the location of such an easement. It is, of course, possible to draft an instrument which would fully define both the location and the burden of the easement, or which would make the easement exclusive. But the very general language used in the instrument under consideration here cannot be given any such effect. Considering the fact that these easements were granted for the limited purpose of securing domestic water service for the individual owners in this real estate subdivision and that no indication appears that the parties intended to protect the city against competition, we are unable to find any intent, either expressed or implied, that the owners were never to grant similar easements to anyone else. Hence, the mere granting of the second easement to the defendant did not interfere with appellant’s prior easement as a matter of law. Whether the particular use under a second easement amounts to an^nreasonable interference is, as we have heretofore pointed out, a question of fact, and the finding, made upon conflicting evidence, that defendant’s use of its easement was not such an unreasonable interference is conclusive upon the question so far as this appeal is concerned.

We do not wish to be understood, however, as limiting the rights granted to the City of Pasadena under its easements which were properly found to be prior and paramount to those of the defendant. The rule is established that the grant of an unrestricted easement, not specifically defined as to the burden imposed upon the servient land, entitles the easement holder to a use limited only by the requirement that it be reasonably necessary and consistent with the purposes for which the easement was granted. (Murphy Chair Co. v. American Radiator Co., 172 Mich. 14, 28 [137 N. W. 791]; Chapman v. Newmarket Mfg. Co., 74 N. H. 424, 425 [68 Atl. 868]; Dalton v. Levy, 258 N. Y. 161, 167 [179 N. E. 371]; Fendall v. Miller, 99 Or. 610, 615 [196 Pac. 381]; see 15 L. R. A. (N. S.) 292; 2 Thompson, supra, sec. 572, p. 175; 3 Tiffany, supra, sec. 803, p. 323; 17 Am. Jur. 994, 996.) The language of the easements here involved does not sufficiently define the burden intended to be imposed so that defendant’s easement can be termed an unreasonable interference as a matter of law, but neither does it restrict the right granted to the City of Pasadena to make the fullest necessary use of the five foot strip.

It is possible that the city may, at some future time, be faced with the necessity of expanding or changing its present system, and on its behalf it is asserted that the presence of defendant’s pipes may seriously hamper the reasonable use of the city’s prior easementrunder such circumstances. But if, in the reasonable use of its prior easement, the city requires the space occupied by the pipes of the defendant, its paramount right must prevail. In Colegrove Water Co. v. Hollywood, 151 Cal. 425 [90 Pac. 1053, 13 L. R. A. (N. S.) 904], plaintiff sought to make use of the servient tenement for laying water pipes despite the fact that an easement for highway purposes had already been granted to the defendant municipality. The court permitted this after a finding that the water pipes would not interfere with the use then being made of the highway easement by the city and added (p. 429) : “ ... but the municipality may, and frequently does, occupy the soil beneath the surface for the accommodation of sewers, gas and water pipes, electric wires, and conduits for railroads. Where the city undertakes to occupy the space above or below the surface of the street for any purpose within the scope of the public uses to which highways may be put, the use" by the owner of the fee must yield to the public use.” Until a point of unreconcilable conflict is reached, however, such a concurrent use of the land for similar purposes as is illustrated here should be governed by principles permitting an equitable adjustment of the conflicting interests. The respective rights of the two parties are not absolute, but must be construed to permit a due and reasonable enjoyment of both interests so long as that is possible. (Murphy Chair Co. v. Radiator Co., supra; Bakeman v. Talbot, 31 N. Y. 366, 369 [88 Am. Dec. 275]; Pomeroy v. Salt Co., 37 Ohio St. 520, 524; Minto v. Salem Water etc. Co., 120 Or. 202, 212 [250 Pac. 722]; 3 Tiffany, supra, sec. 811, p. 355; 17 Am. Jur., 993.)

In Murphy Chair Co. v. Radiator Co., supra, successive rights of way in the same land were involved and the court held that both easements could be used simultaneously under the existing facts, but indicated that the subsequent grant must be considered subordinate if it should ever interfere with the reasonable use of the prior easement. In Pomeroy v. Salt Co., supra, p. 524, the court held that the holder of an underground easement for the purpose of mining coal could not object to the placing of a second tunnel which would intersect his and would cross it at the same level. The court was clearly of the opinion that the prior easement was paramount but said that the second tunnel would not interfere substantially with the first easement under the existing facts. The proper rule is indicated by the language of the court in Bakeman v. Talbot, supra, p. 369, in which a conflict arose between the use by the holder of the easement and the use by the landowner. The court said, “The defendant [landowner], certainly, has no right to preclude the plaintiff [easement holder] from availing himself of the right of passage, or to render the exercise of that right unusually or unreasonably difficult or burdensome. I think, he is not shown to have done so. . . . There is nothing inconsistent in holding, that the present arrangements are suitable and sufficient, under existing circumstances; and after these circumstances have changed, and the question shall arise, as to what shall then be proper, to determine that a passage perpetually open or a system of gates better adapted to such increased use . . . shall be required of the defendant. It would not be right, at this time ... to furnish facilities for a state of affairs which may never arise, or which may not arise until some remote period.”

Under the present facts no basis is shown for the relief sought. ^Whether a different conclusion may be required by changed circumstances in the future cannot now be determined with certainty, and need not therefore be decided.

The judgment is affirmed.

Traynor, J., Curtis, J., and Edmonds, J., concurred.