Johnston v. City of Los Angeles

On December 13, 1877, Dr. John S. Griffin, plaintiff’s predecessor, executed a deed reciting the nominal consideration of one dollar, whereby he granted to the city of Los Angeles the land which is the subject of this suit. The deed contained a provision (which we shall presently quote) to the effect that if the city should cease to use the premises for the purposes outlined in the grant, the property should revert to the grantor, his heirs, executors, administrators, or assigns. In November, 1910, this action to quiet title, based upon the theory of the city’s abandonment of the premises for the purposes contemplated by the grantor, was commenced. The city of Los Angeles denied that it had ceased to use the land for the maintenance of a dam, reservoir, etc., and after trial of the issues joined the court rendered judgment granting plaintiff’s prayer as to a part of the property and denying it as to the remaining portion. Each party to the action appeals from that portion of the judgment which is adverse, and the plaintiff also appeals from the order denying his motion for a new trial.

For a better understanding of the issues it will be necessary to quote from Dr. Griffin’s deed to the city. It contains the following description of the land and the purposes of the grant as well as the conditions which would work a reversion.

‘ ‘ The above described parcel of land includes all of the land lying within or below a horizontal plane extending northerly from the top of the dam as proposed, the top of said dam to be five (5) feet higher than the bottom of the ditch as now constructed, and containing twenty-four (24) acres of land, more or less.

“And the said party of the first part also grants, as aforesaid to the party of the second part, so much of his land situated below and to the south of said dam as is now necessary or may hereafter become necessary to be used for the proper erection, protection and maintenance of said dam and reservoir, including the land on which the present or future slope of the embankment of said dam may necessarily rest. And also the right of way over and upon the lands of the party of the first part for the purposes of constructing and maintaining and repairing said ditch and dam. And also the right to excavate, transport and use all earth, stone, rock and gravel from, over and upon all lands belonging to the party of the first part, which are now or may hereafter become necessary for the purposes of constructing, or maintaining, or repairing the said ditch, dam or reservoir. It is hereby understood by a nr) between the parties to these presents that the reservoir, dam and ditch herein referred to are the reservoir, dam and ditch delineated on a map entitled ■‘Map of the city of Los

“It being also expressly understood and agreed by and between the parties hereto, that in case the party of the second part shall cease to use the said premises for the said purposes of the erection and maintaining of said dam, reservoir and ditch that then and in that ease the said premises herein-before conveyed" shall revert to and become the property of the said party of the first part, his heirs, executors, administrators or assigns.”

It seems very clear, from the terms of the deed and particularly the words of the paragraph last quoted, that Dr. Griffin’s gift to the city was made in contemplation of the continued maintenance of a reservoir and ditch as parts of a system of irrigation, and that it was his intention, clearly expressed in the deed accepted by his grantee, that failure on its part to maintain such instrumentalities and for the very purposes designated in the indenture would work a forfeiture. For example, anyone reading the deed would be" forced to the conclusion that after the reservoir had been established and the ditch constructed and used, the disuse of the ditch and the dedication of the reservoir solely to the purposes of a public swimming-pool would amount to a perversion of the grant and give to the grantor the right to recall his gift. Or if the city should continue to use the reservoir but should devote the water not to irrigation but to the creation of electric power, a similar result would follow. The court, however, put a different construction upon the deed, as will readily appear from a consideration of the findings.

The court found among other things that the city accepted the deed; that it constructed the dam and ditch referred to in said instrument and in the report there specified of the board of engineers on the subject of water supply for irrigation dated July 27, 1877; that thereafter the ditch and dam were used continuously for general irrigation purposes by the city until the year 1904, at which time its use for said purposes

The court also found as follows: “Since the year 1904 water has not been conveyed into or from said reservoir through pipes or ditches constituting part of said general irrigation system as liad been done prior thereto, and the ditches leading into and out of said reservoir have been destroyed, at and near the points where they formerly entered and left said reservoir . . . and the rights of way upon which said ditches were constructed beyond said land conveyed by said Griffin deed have been released by said city, and quitclaim deeds therefor executed and delivered to the owners of the lands over which they passed; and the spillway originally constructed to prevent overflow of said dam has been filled up by the construction of an electric railway; but the rain-water and storm-water from a large area has ever since said year 1904 drained into said reservoir and said reservoir has since that time held such water, when not dry, and such water has been used in the manner herein specified.”

According to the findings, the reservoir was entirely dry during the latter half of the year 1910, and in August of that year plaintiff caused a part of the bed of said reservoir to be plowed. At times people living near the reservoir com

In 1903, as the court also found, the land described in the deed from Dr. Griffin was conveyed by the city to its board of water commissioners. Thereafter, in 1905, after condemnation proceedings duly taken, Mission road was opened across the property in such manner as to Separate about one acre of the westerly portion of the land from the rest of the tract. Within the lines of the roadway were included one and one-half acres of the land. The board of water commissioners paid an assessment of $4,383.15 upon the property east of the new road, but no award was made for the land taken and no payment was made of a purported assessment on the acre to the west of Mission road, but “said land on said westerly side was permitted to be sold by said city to a private party.” Plaintiff’s counsel stipulated that title to all streets included in the property was in the city. There were further findings that in 1910 the board of water commissioners adopted a resolution declaring this westerly portion of the property no longer useful as part of the site for a reservoir and advising its abandonment and sale for a price not less than five hundred dollars. On August 15, 1911, this resolution was rescinded. It was found that the plaintiff is the residuary devisee under the will of John S. Griffin, who died in August, 1898, distribution having been made to him by decree made and entered August 2, 1909, and containing the following language: “And that all the residue of said estate, whether described herein or not, be distributed to said John Griffin Johnston.” While the decree described certain property specifically, the land here in controversy was not included in the description.

The conclusions of law were that as to the land east of Mission road and north of the dam embracing ten acres, as to the dam itself, and as to that ground south of the dam on which the present slope of the embankment rests, the city and its agencies have not at any time ceased to use said portion

It will be noted that Dr. Griffin died years before the city ceased to use the entire tract as a part of its irrigating system, and the first point made by the city is that plaintiff, as residuary devisee, took no estate in the premises by devise, because the right of re-entry, if any, arose after the death of the grantor and could not, therefore, be the subject of testamentary devise. It is argued that Dr. Griffin parted with every vestige of interest or estate in the land, retaining nothing which he could convey or transmit by descent; that any future relation between him and the property would be created by breach of the condition on the part of the grantee or its successors or assigns; and that such mere possibility of reverter was not a right to re-enter which could be assigned or devised. Counsel for the city of Los Angeles take the position, also, that the right to re-entry existed only in the grantor or bis heirs. It is quite true that at common law the benefit of a condition subsequent in a grant of real estate could be reserved only to the grantor and his heirs, and this rule still prevails in states in which the common law has not been swept aside by statute. Such cases as Upington v. Corrigan, 151 N. Y. 143 , [ 37 L. R. A. 794 , 45 N. E. 359 ], and others cited by counsel for the city discuss this rule and trace its origin to a wish to discourage maintenance. But in California, by code provision, “a right of re-entry, or of repossession for breach of condition subsequent, can be transferred.” (Civ. Code, sec. 1046.) This, as the code commissioners said of it at the time of its adoption, reverses the rule in force in New York. But, say counsel for the city, there is no right, no estate—nothing upon which an assignment may operate until after breach of condition. With this view we cannot agree. The deed of Dr. Griffin does, it is true, employ the words of conveyance usual in the transmitting of complete title in fee, but instruments of this kind are to be read, like other contracts, with the purpose of carry

There is no force in the contention that under the terms of the deed the city was bound merely to erect and maintain the dam, ditch, and reservoir, but that the contemplated use of the water was not required; and Reclamation Dist. No. 551 v. Van Loben Sels, 145 Cal. 181 , [ 78 Pac. 638 ], cited to support this contention, does not do so. In that case the grant provided that the property should be used for reclamation purposes, reverting to the grantor when abandoned and used no more for such purposes. The court found that the land was used and had been continuously used for such purposes, and this court sustained the finding as supported by the evidence. In the case at bar the evidence and the

It is contended by the city and admitted by plaintiff that restraints of this character are to be construed strictly against the grantor; but giving such interpretation to the deed before us, we are compelled to hold that plaintiff is in a position to maintain his action and to have his title, quieted as to all of the land included in the original grant to the city by his predecessor in interest, except that part of it to which, by his stipulation, he admits the city has title. This conclusion is supported by such authorities as Papst v. Hamilton, 133 Cal. 631 , [ 66 Pac. 10 ]; Firth v. Marovich, 160 Cal. 257 , [Ann.

That part of the judgment from which the city of Los Angeles appeals is affirmed. Those parts of the judgment and the order from which plaintiff appeals are reversed.

Henshaw, J., and Shaw, J., concurred.