Opinion
Page __
__ Cal.App.2d __249 P.2d 869HERZOG et al.v.GROSSO et al. Civ. 19055.California Court of Appeals, Second District, Third DivisionNov. 7, 1952.Hearing Granted Jan. 5, 1953.
Rehearing Denied Nov. 24, 1952.
[249 P.2d 870] W. F. Smith and Henry F. Walker, Los Angeles, for appellants.
[249 P.2d 871] Nathan E. Gillin and Button & Herzog, Hollywood, for respondents.
VALLEE, Justice.
This is a controversy between plaintiffs, the owners of a private road and an easement for road purposes, and defendants, fee owners of the land on which the easement exists. Plaintiffs had judgment quieting their title to the easement, awarding them damages, and granting injunctive relief. Defendants appeal.
Plaintiffs are the owners of a strip of land 25 feet wide purchased and used for road purposes, called parcel 2. They are also the owners, by grant, of a perpetual easement and right of way 30 feet wide for road and public utility purposes, called parcel 3. Parcel 3 is appurtenant to parcel 2 and to plaintiffs' residence property. Parcels 2 and 3 extend from a public highway to plaintiffs' residence property. The road is the only means of ingress to and egress from the public highway.
In the record plaintiffs' residence property is referred to as parcel 1, the 25-foot strip as parcel 2, and the easement as parcel 3. We follow the same designation.
At the time they were acquired by plaintiffs, parcels 2 and 3 extended on a gradual upgrade to the public highway. Defendants, since about February, 1949, own and reside on land abutting these parcels. About October, 1949, defendant Paul Grosso 'unlawfully, wilfully, maliciously and with entire disregard of plaintiffs' rights' dumped large quantities of dirt, rocks, asphalt, gravel and similar materials on parcels 2 and 3 so as to practically cover all of parcel 3 and to cover parcel 2 for about 40 feet from the point it adjoins parcel 3, to a depth of over 15 feet in places, and so as to completely obstruct and block all travel and passage over the road either on foot or in vehicles. The road remained completely obstructed and blocked notwithstanding repeated demands by plaintiffs on defendants to reopen it, until about September, 1950, when defendants partially opened it. In the latter part of September, 1950, defendants bulldozed an opening about 12 feet wide through the material at an average grade of about 14.6% for about 110 feet in such manner that only about 7 feet of the opening were within the boundaries of the parcels, and the remainder extended over the property of others. Users of the road were compelled to drive over a loose dirt fill to within 3 feet of the crest of a steep embankment over 25 feet deep. Before the materials were dumped on the parcels, the road sloped downgrade from the public highway at a grade of 4.5% for some distance, and then about 8.3% for about 110 feet.
After Grosso deposited the material, and before he made the opening, he caused a part of parcel 3 to be regraded in such manner that the surface was raised about 6 feet above what it was before the material was deposited, and thereafter caused a paved road to be constructed over the same, extending from the public highway to the residence of defendants. The paved road as constructed 'was to the great detriment of plaintiffs and their property and to their disadvantage and inconvenience in the use and enjoyment of said road in going to and from their home and Blair Drive [the public highway] and constituted a wholly unnecessary, unreasonable and malicious interference with the rights of plaintiffs.' Raising the level of the road over 6 feet created a theoretical grade of 31% at one point down to its level as it formerly existed. While the bulldozer was working, defendant Paul Grosso 'wilfully and maliciously and in disregard of plaintiffs' rights and with intent to injure plaintiffs refused to allow the operator of a bulldozer then engaged by plaintiffs in widening and leveling the roadway on said Parcels 2 and 3 from proceeding further with said work and did himself thereafter order the work done in the manner that he, the said defendant, desired it to be done and did such work in such manner as to increase the slope of the embankment along the southeasterly side of the road on said Parcels 2 and 3 to the extent that it was almost perpendicular and too steep to retain the fill theretofore [249 P.2d 872] deposited by Defendants on their property bordering said roadway to the southeast, and further did the work in such manner as to leave the roadway on Parcels 2 and 3, other than the portion thereof used by defendants for their own road purposes, on an average downgrade of 14.6% from [a specified point] * * * to a point approximately 110 feet southwesterly therefrom, as compared to an average downgrade theretofore existing thereon of 8.3% before said defendant interfered therewith.'
In order that the road be usable at all, plaintiffs were compelled in October, 1950, to widen it to 12 or 15 feet and to adjust the grade of parcel 2 to the grade established by Grosso on parcel 3. Plaintiffs were also compelled to have the parcels surveyed, and survey stakes showing the boundaries to be reset to replace stakes Paul Grosso had covered. In October, 1950, plaintiffs, in order to protect themselves and persons lawfully using the road, constructed a fence 30 feet in length on the embankment side of parcel 3. Within a few hours after the fence was erected, defendant Paul Grosso 'did wilfully and maliciously and in disregard of the safety of persons lawfully using said road pull up said fence and threw it down the embankment.'
In November, 1950, plaintiffs, to avoid trespassing on the property of others, and to avoid the danger of the embankment, caused an opening of 12 feet to be made at one point, and the balance of the unpaved part of parcel 3 and all of parcel 2 to be fine graded preparatory to surfacing. Defendant Paul Grosso 'wilfully and maliciously and with the intent and for the purpose of preventing plaintiffs from improving and paving the unpaved portion of' parcel 3 dumped large quantities of dirt, rocks and other material on the graded portion of the road so as to completely block and obstruct travel, and ordered plaintiffs' paving contractor to keep off. He also plowed a part of parcel 3 which had been fine graded, and displaced stakes which the surveyor had set.
In October, 1949, and at various times since, defendants placed great quantities of dirt and materials on their property abutting parts of parcels 2 and 3, and raised the elevation of parts at least 6 feet. Dirt and rocks were thereby caused to fall, and continually fell, on parcels 2 and 3 up to the time of trial, and will continue to so fall; and, as found by the court, will unreasonably interfere with plaintiffs' use of their property, and constitutes a continuing nuisance.
About March, 1950, defendants erected a fence on the easement at its junction with the public highway, extending across all but about 16 feet of the 30-foot width of the easement onto the property abutting on either side, and equipped it with gates designed to be used for opening and closing the 16 feet of open space. Defendant Paul Grosso promised plaintiffs and other property owners abutting on the easement, that he would remove the fence and gates at any time. The court found that the fence and gates obstruct the free use and enjoyment of the easement to the full width thereof by plaintiffs for road purposes, and constitute a nuisance.
The court found that as a proximate result of the acts of defendant Paul Grosso in increasing the downgrade of the roadway, plaintiffs' real property has permanently depreciated $7,000 in value, and the judgment awards plaintiffs damages against him in that sum, as permanent injury to the property.
1. Defendants first say that the volume of dirt to be removed to restore the road to its grade prior to the placing of materials on it is less than 700 cubic yards; that restoring the road to its former condition would be considerably less than $7,000; that where the cost of restoration to the former condition is less than the depreciation in value, the rule is that the cost of restoration is the most plaintiffs have been injured, Green v. General Petroleum Corp., 205 Cal. 328, 336, 270 P. 952, 60 A.L.R. 475; that, therefore, the award of $7,000 cannot be sustained. We cannot say that the court did not act within the scope of the rule. There was no evidence as to what it would cost to remove the materials deposited and the pavement laid by Grosso, and restore the road to its former condition. [249 P.2d 873] Defendants' statement as to the amount of dirt to be removed, and the cost of removing it and the pavement and restoring the road to its former condition, is purely speculative. In Perkins v. Blauth, 163 Cal. 782, 792, 127 P. 50, 54, it was said: '[I]t was not error to instruct the jury that the difference in the market value of the land before and after the damage was the measure of defendants' liability. If, as appellants contend, there was no permanent injury to the land, or if the land could have been cleared of its sand and cured of its other injuries, and if respondent could have been reimbursed for all his losses for an amount much less than the damages awarded, it would have been permissible for appellants, in mitigation of the damages claimed by plaintiff, so to have established by evidence. They did not undertake to do so, or at least did not do so to the satisfaction of the jury, and appellants are therefore in no position here to complain.' The court was justified in concluding that the condition which the defendant created and which he intended to be permanent was in fact permanent. At the trial, defendant did not offer to remove the materials and the pavement and to restore the road to its former grade and condition. His position was not only that he had a right to raise the grade of the road but that he also had the right to elevate it to the level of his land east of, and the entire length of, the easement, and he threatend to do so. He cannot wait until after an award of damages to make an offer to restore.
2. Defendants next urge that the court erroneously awarded plaintiffs damages for worry, nervousness and mental distress for the safety of others. The court found that: '[A]s a direct, natural and proximate result and consequence of the acts and conduct of the defendant, Paul J. Grosso, resulting in increasing the downgrade of the roadway as aforesaid, * * * each of said plaintiffs were caused further to suffer nervousness, worry, and mental distress for the safety of themselves and their daughter and others obliged to use said road on account of the dangerous conditions under which said defendant, Paul J. Grosso, forced them and their family to use said Parcels 2 and 3 in going to and from their said home to their damage as follows: To the plaintiff, Leonard F. Herzog, Fifteen Hundred Dollars ($1500.00), and to the plaintiff, Alma J. Herzog, Fifteen Hundred Dollars ($1500.00).' No authority applicable to the facts here is cited in support of this contention.
Grosso wilfully forced plaintiffs, their daughter, and others obliged to use the road to plaintiffs' residence, to drive over newly filled ground next to the edge of a steep embankment, creating a continuing dangerous condition. Grosso knew that he thereby caused plaintiffs to fear for the safety of themselves, their daughter, and others. Plaintiffs could not sleep nights when their daughter was out. Mrs. Herzog spent nights up on the road waiting for her daughter to come home.
'As an element of damages for a tort, a person may be entitled to recover for a feeling of anxiety, not only for himself but for others, if this is the expectable result of the defendant's tortious act or if the defendant intended such result.' (IV Rest. Torts, 545, § 905.) In Anderson v. Souza, 38 Cal.2d 825, 243 P.2d 497, the court upheld an award of damages for the annoyance and discomfort, including discomfort for the safety of others, caused by the defendant's operation of an airport and the flying of planes. There was no error in this award of damages.
3. The court found that the fence and gates erected by defendants constitute a nuisance. It decreed that plaintiffs are entitled to occupy and use the easement to its full width; that defendants have no right to maintain the fence and gates, and ordered that they remove them forthwith. Defendants assign error. The fence and gates were erected near the point where the easement intersects the public highway. Defendants say the owner of the servient estate may always erect a gate across an easement where it meets a public highway, so long as it does not unreasonably interfere with the enjoyment of the easement.
[249 P.2d 874] The deed by which plaintiffs acquired the easement grants 'a perpetual easement and right of way for road and public utility purposes * * * in, on and under a strip of land 30 feet wide.' In Smith v. Worn, 93 Cal. 206, 28 P. 944, the easement granted was 'over, upon, and through a road 66 feet wide'. The judgment restrained the defendant from 'putting up, constructing, or maintaining any gate, fence, or obstruction of any kind on any part of said way.' In affirming the judgment, the court stated 93 Cal. at pages 214-215, 28 P. at page 945: 'Appellant asks us to hold, as matter of law, that it appears upon the face of the grant that the grantee is not entitled to a way without gates or bars. If the question were one of law based exclusively upon the language of the grant, we should be inclined to construe the grant to be one of an open road, 66 feet wide, unobstructed by gates or bars. The right of way granted is through a road 66 feet wide, and this road is 'to be laid out by the party of the first part over the lands owned by him.' The word 'road,' as used in our laws, is uniformly applied to open and unobstructed roads, unless qualified by some other word like the adjective 'private;' and such is the common as well as legal acceptation of the word. Respublica v. Arnold, 3 Yeates [Pa. 417], 421, 422; Kister v. Reeser, 98 Pa. 4 [42 Am.Rep. 608]. It is a term of greater significance than the term 'way.' [Chollar-Potosi] Mining Co. v. Kennedy, 3 Nev. ; Sherman v. Buick, 32 Cal. 241 [91 Am.Dec. 577]. But the question has been uniformly regarded by the courts as one of fact, for the jury. The extent of the right and duty of the respective owners towards each other is to be determined by the language of the grant, and all the circumstances existing at the time the grant was made. 'Nothing passes as incident to such a grant but that which is necessary for its reasonable and proper enjoyment.' 3 Kent, Comm. 419, 420. 'What is necessary for such reasonable and proper enjoyment of the way granted, and the limitations thereby imposed on the use of the land by the proprietor, depends upon the terms of the grant, and the purposes for which it was made, the nature and situation of the property subject to the easement, and the manner in which it has been used and occupied.' Baker v. Frick, 45 Md. 340 [24 Am.Rep. 506]; Bean v. Coleman, 44 N.H. 541; Maxwell v. McAtee, 9 B. Mon. [Ky.] 20 [48 Am.Dec. 409]; Bakeman v. Talbot, 31 N.Y. 368 [88 Am.Dec. 275]; Garland v. Furber, 47 N.H. 302; Houpes v. Alderson, 22 Iowa 162. The court heard the evidence of the parties, and considered all the circumstances under which the grant was made, the nature and situation of the property, and the terms of the grant, and found in favor of the plaintiff. The finding is supported by evidence, and cannot be disturbed.' Likewise in the present case, the finding is supported by the evidence and cannot be disturbed. (See also Allen v. San Jose Land & W. Co., 92 Cal. 138, 141, 28 P. 215, 15 L.R.A. 93; Youngstown Steel etc. Co. v. City of Los Angeles, 38 Cal.2d 407, 411, 240 P.2d 977.
Defendants cite a number of cases from other jurisdictions. The cases are not in harmony on the subject, but the great weight of authority declares the law as stated in SMITH V. WORN, SUPRA, 93 CAL. 206, 28 P. 944.
Ball v. Allen, 216 Mass. 469, 103 N.E. 928, 929, Ann.Cas.1917A, 1248; Ellis v. American Academy of Music, 120 Pa. 608, 15 A. 494, 496, 6 Am.St.Rep. 739 [question is one of fact]; Johnson v. Borson, 77 Wis. 593, 46 N.W. 815, 816, 20 Am.St.Rep. 146 [the reasonableness or unreasonableness of a gate is question of fact]; Fendall v. Miller, 99 Or. 610, 196 P. 381, 383-385; Baker v. Frick, 45 Md. 337, 24 Am.Rep. 506, 511, [whether gate interfered with reasonable enjoyment of easement is a question of fact]; Luster v. Garner, 128 Tenn. 160, 159 S.W. 604, 48 L.R.A.,N.S., 87, 87 Ann.Cas.1914D, 769; Flaherty v. Fleming, 58 W.Va. 669, 52 S.E. 857, 859, 3 L.R.A.,N.S., 461; Stuart v. Larrabee, Tex.Civ.App., 14 S.W.2d 316, 320; Kinkade v. Lyons, 235 Ky. 226, 30 S.W.2d 963, 964, 73 A.L.R. 775; Evich v. Kovacevich, 33 Wash.2d 151, 204 P.2d 839; Whiteside v. Croker, 165 Ga. 765, 142 S.E. 139; Annotation, 73 A.L.R. 778.
4. The judgment decrees that plaintiffs shall have the right to construct [249 P.2d 875] and maintain a wooden guardrail along the boundary of the easement where it is close to the crest of the steep embankment, the guardrail to be one of the general types usually used along public highways. Defendants assign error. The assignment is frivolous. Defendants are not burdened or prejudiced in the slightest by this provision. An easement carries with it such additional rights as are reasonably necessary for its proper enjoyment. An owner of an easement may do such things as are necessary for the full exercise of the right. Civ.Code, § 845; City of Gilroy v. Kell, 67 Cal.App. 734, 743-744, 228 P. 400; Pacific Gas & E. Co. v. Crockett L. & C. Co., 70 Cal.App. 283, 294, 233 P. 370. Grosso dumped material on the easement, making a loose fill at the crest of the embankment. Obviously, it cannot be said that the erection of a guardrail is not reasonably necessary to the enjoyment of the easement. See Chandler v. Goodridge, 23 Me. 78, 83; Murray v. Dickson, 57 Tex.Civ.App. 620, 123 S.W. 179, 182-183.
5. It is next asserted the judgment is inconsistent in that it improperly limits and restricts the rights of defendants as owners of the servient estate. The judgment decrees defendants are the owners of the fee 'in, upon, under and over' the easement; that defendants 'have a right to use said land for any purpose which does not interfere unreasonably with the easement rights held by plaintiffs therein, or is not inconsistent therewith.' The inconsistency, say defendants, is that the judgment further decrees defendants have no interest in the easement; that defendants may use the easement only in a manner which does not unreasonably interfere with its use by plaintiffs; and enjoins defendants from asserting any claim in the easement. There is no inconsistency. The owner of the servient tenement may make any use of the land that does not interfere unreasonably with the easement. City of Pasadena v. California-Michigan etc. Co., 17 Cal.2d 576, 579, 110 P.2d 983, 133 A.L.R. 1186. The judgment protects defendants in all of their rights. It does not restrict or limit them in any right they have as the owners of the servient estate so long as they do not unreasonably interfere with the rights of plaintiffs.
6. Defendants claim the judgment erroneously imposes upon them the expense of altering and constructing a part of the road on the easement. This contention is well taken. The judgment (paragraph 19) decrees that the defendant Paul Grosso, within a specified time, 'at his own expense, make alterations in the road over and upon the northerly 120 feet' of the easement 'so that the same will conform to and be in accordance with the plan shown on the aforesaid Private Street Map * * * and that wherein, said map does not specify the details of construction of said road said defendants shall construct said road in accordance with the requirements of Standard Specifications No. 151 for Public Improvements as promulgated by the Department of Public Works of the City of Los Angeles, California, and approved by the Council of said City under date of May 15, 1951, and now in effect.' Plaintiffs say they did not in their complaint, or otherwise, seek this relief; that it was given on the court's own motion.
The judgment (paragraph 8) also decrees that neither party has a right to unreasonably change the grade of parcel 3 or otherwise materially alter the condition of the road without the consent of the other except as provided in the Private Street Map.
The court found and decreed that the condition created by defendant Paul Grosso on parcels 2 and 3 caused permanent injury to plaintiffs' property, and awarded them damages of $7,000 for the injury. To compel defendant to make alterations on the northerly 120 feet of the easement so as to conform to the plan shown on the 'Private Street Map' is to compel him to correct a condition he created--to undo that which he had done--for which plaintiffs have been awarded damages. It constitutes double recovery insofar as part of the damages awarded are for the injury caused by the condition of the northerly 120 feet of the easement. The permanent injury to plaintiffs' property results from the condition created on parcels 2 and 3 as a whole, and the damages were awarded for [249 P.2d 876] that injury. Having awarded damages for the permanent injury to the property as a whole, the court may not segregate a part of the easement and compel defendant to restore it to its former condition. In Spaulding v. Cameron, 38 Cal.2d 265, 239 P.2d 625, on similar facts, the trial court awarded damages for physical injury to the plaintiff's property, awarded damages for depreciation of the market value of the property because of the continuing threat of future inundations of mud, and also ordered defendant to remove the fill or place protective measures around it. In holding that the award for the depreciation in market value and the mandatory injunction constituted a double recovery, the Supreme Court said in 38 Cal.2d at page 269, 239 P.2d at page 628: 'The court found that plaintiff's property had been permanently damaged because of the continuing threat of future injury. It also found, however that this threat would continue unless corrective measures were taken, and by ordering that such measures be taken impliedly found that they were feasible. It is clear that plaintiff cannot have both remedies. If defendant obeys the injunction and takes such measures that 'the property of the plaintiff will not be endangered or threatened by the existence of such deposits of loose dirt,' there will no longer be a threat to depreciate the value of the property. Plaintiff would obtain a double recovery if she could recover for the depreciation in value and also have the cause of that depreciation removed.'
The error in the present case, however, does not call for reversal of the judgment with respect to the double recovery as was done in the Spaulding case. In the Spaulding case, the trial court had not found whether or not the nuisance was in fact permanent, and the Supreme Court said in 38 Cal.2d at page 270, 239 P.2d at page 629: 'On retrial the trial court should determine whether or not the nuisance is in fact permanent. If it finds that it is, it should enter judgment for the decrease in market value. If it finds that it is not, it should grant injunctive relief and such additional damages as may be proved for the temporary decrease in the value of the use of the property while the nuisance continued.' In the case at bar, the court on sufficient evidence found that the nuisance is in fact permanent. In view of this finding the mandatory injunction as to the north 120 feet of the easement should be deleted from the judgment. The provision of paragraph 8 of the judgment that neither party may alter the condition of the road except as provided i nthe Private Street Map should also be deleted.
The judgment is modified by deleting paragraph 19 and that part of paragraph 8 reading: 'except as provided in the Private Street Map attached hereto, made a part hereof, and being a duplicate of plaintiffs' Exhibit No. 60 in evidence.' As thus modified, it is affirmed.
SHINN, P. J., and PARKER WOOD, J., concur.