I concur in the judgment for the reason that under the pleadings and evidence on the second trial it may rightly be said (1) that it was competent for the trial court to grant the relief prayed for in the cross-complaint of Clara R. Shatto, and (2) that there was evidence to support the finding that the conditions in and surrounding said tract had not so changed as to render it inequitable to enforce said restrictions. It may also be said that if said finding had been the other way likewise it would have had sufficient evidentiary support. Under these circumstances this court may not properly disturb the finding now made on that subject (Downs v. Kroeger, 200 Cal. 743
[254 P. 1101]; Miles v. Clark, 44 Cal.App. 539 [187 P. 167]). The finding on this issue was favorable to the plaintiff on the first trial. The judgment on that trial was reversed for the reason, as I understand the decision in Strong v. Shatto,45 Cal.App. 29 [187 P. 159], that an action brought by a lot owner in the tract to quiet his title against such restrictions could not prevail when it appeared that there had been no breach of the restrictions nor any attempt by an interested property owner to enjoin a breach or to enforce a forfeiture. It was held on the former appeal, following a recognized and controlling line of authorities, that a land owner in the tract had no standing in court in his endeavor to quiet his title against and to have declared void the restrictions on his lot, and that it was only when it was sought to enjoin a breach of such restrictions or to declare a forfeiture that equity would refuse, because of changed conditions, to lend its aid in the enforcement thereof. It was further held on the former appeal that it was "premature, at least, to determine the equities of the parties as they might exist at some future time in the event of such breach." This action was commenced prior to 1921. In that year sections 1060, 1061, and
1062, relating to declaratory relief, were added to the Code of Civil Procedure. The supplemental complaint was filed after those additions to the code. This change in the law was, in my opinion, sufficient to enable the substituted plaintiff to proceed thereunder and to have his status declared under the conditions as were then shown to exist, and this, notwithstanding the old rule which required him to be hazardously active in the breach of such restrictions and passive in litigation. The history of this case would indicate that on the second trial undue importance was given to the decision on the former appeal. As stated, the finding as to changed conditions was favorable to the plaintiff on the first trial. On the second trial the court found that the changes in the use of property adjacent to and in the vicinity of Shatto Place "herein found to have taken place are the same sort and character of changes of use which the court found to have taken place in and by its written findings of fact filed herein upon the first trial of this cause, and that the difference in the said change of use and in the conditions affecting the property in the vicinity of said Shatto Place is one of degree and not of kind." Nevertheless the court proceeded to and did deny the substituted plaintiff any relief when not only the same business conditions surrounding the tract were proved as were shown to exist at the former trial but also further development of business adjacent to the tract was shown to have taken place. It cannot be disputed that, notwithstanding the findings on the first trial, the trial court on the second trial had the right to weigh the evidence and to find either way on the conflicting evidence then presented, but it seems to me that the result of this litigation has become abortive if the decision on the former appeal was considered, as it must have been, as in any way establishing the law of the case. In view of the fact that the conditions surrounding the tract are or may be continually changing no question of the law of the case could properly arise as affecting the substituted plaintiff's standing in court unless it be true, which I think it is not, that the declaratory relief sections of the code have no application to this sort of an action.
The trial court also found that although the changes in the use of the property surrounding the tract had taken place as alleged in the supplemental complaint yet "it is
not true that the change in uses to which the land surrounding and adjacent to Shatto Place has been put has been complete." The main opinion quotes this finding as apparently having some bearing on the case. If from such finding it may be concluded that the tract in question must be entirely surrounded with skyscrapers or other business establishments in order that the rule of changed conditions be made applicable I am not prepared to subscribe to that doctrine. If the finding points to any other conclusion I am not able to discover it. However, disregarding said finding, whatever it may mean, the judgment appealed from seems to be immune from successful attack in the light of the record on which it is based.
Preston, J., concurred.