Anderson v. Citizens Sav. & Tr. Co.

Two actions to quiet title were tried together in the court below. As the actions were originally brought, there were a number of parties, and the parties plaintiff and defendant were not the same in each, but there occurred such disclaimers, transfers of interest, and shifting of posi

There is no dispute as to the material facts. It appears that one J. G. Griffiths was originally the owner of a considerable tract, including the land in controversy. He subdivided the tract into blocks and lots, with streets, and recorded a map of the tract as so subdivided. This map showed lot 1 in block 7 as the lot forming the easterly end of the block and extending the whole width of the block, so that on its easterly side it was bounded by a street called Vandal Street, and on its northerly and southerly ends by streets called Grand and Los Feliz Avenues, respectively. Each of these streets was shown as sixty feet wide, and Grand and Vandal, with which alone we are particularly concerned, were shown as and were in fact parts of the subdivided tract.

On June 29, 1889, Griffiths conveyed the lot mentioned to one Martin, describing it by lot and block number, as shown on the subdivision map. 'Since Griffiths was the owner of the fee in the streets, it is conceded that his conveyance of the lot operated to convey as a part of it the fee to the center line of the streets on which it abutted. In 1898, while Martin was still the owner of the lot and of the fee to one-half of the streets upon which it abutted, the two streets on the north and east of the lot, Grand and Vandal, were with her consent abandoned as public streets by order of the board of supervisors of the county. Whether the offer of dedication of them as public streets made by the recording of the map by Griffiths had ever been accepted by the public authorities or by actual user does not appear. There was, however, either an abandonment of them as public streets or else an authorized withdrawal of the offer of dedication made by the recording of the map. The parties have treated it as an abandonment, and we may do so

In 1911, that is, after the abandonment of the streets, Martin conveyed the lot to one Lempertz by deed likewise describing the property merely by its lot and block number according to the subdivision map, and the most important question in dispute is as to whether this deed operated to convey the thirty foot strips which were part of the adjoining streets as shown by the map. The claim of the plaintiff, who has succeeded to any interest which remained in Martin, is that her deed to Lempertz did not so operate, while the claim of the defendant, who has succeeded to the interest of Lempertz is that it did.

In addition to claiming title on the ground just stated, the plaintiff also claims title to the thirty foot strip which was part of Vandal Street, the street to the east, on two other grounds. The first of these is that this strip was sold to satisfy the lien of a street assessment imposed upon it for the improvement of Los Feliz Street, upon which it abuts at its southerly end, and pursuant to such sale was deeded by the proper public authority to one Colkins, to whose interest likewise the plaintiff has succeeded. The second ground is based upon the following facts: For the purpose of widening Los Feliz Street the city of Los Angeles brought a condemnation suit to condemn a sixty foot strip along the northerly side of that street, which strip included sixty feet off the southerly end of the thirty foot strip which was formerly a part of Vandal Street. Both the defendant and Martin were made parties to the suit, and it resulted in a judgment that the latter was the owner of the portion of the thirty foot strip sought to be condemned and entitled to the compensation for its taking. The plaintiff claims that this judgment was an adjudication of the rights of the defendant and Martin not only in the land condemned but in the whole thirty foot strip, and that this adjudication inures to his benefit as Martin’s successor. As these two grounds so claimed by the plaintiff may be easily disposed of, we will discuss them first.

[1] The street assessment proceedings were under the act of March 24, 1903 (Stats. 1903, p. 376, Deering’s Gen.

[2] As to the judgment of condemnation, it was an adjudication that the property condemned belonged to Martin, but it was not an adjudication that any other property belonged to her. It is one of the functions of a condemnation suit to determine as between the defendants who is the owner of the property and therefore entitled to the compensation for its taking, and where it appears on the face of the pleadings that the property sought to be condemned is part of a larger tract, which is claimed adversely to each other by two or more defendants, it may well be that a judgment that one of the defendants is the owner of the property condemned will be an adjudication as to the title to the whole tract of which it is but a part. But nothing of this sort appears here. Martin did not appear in the action at all, and there were no pleadings raising any question of title as between her and the defendant, so that no such question was adjudicated as between them. It is true there are allegations in t"he complaint as amended which possibly might be taken as presenting an issue as to the ownership of the whole thirty foot strip, so that it may be that as between the plaintiff and the defendants that issue might be taken as adjudicated by the condemnation decree or judgment; but there was no such issue as between Martin and the defendant here, and since there was not, the condemnation judgment was an adjudication as between them of ownership only as to the land actually condemned.

[3] In this connection, however, there is a question incidentally involved and which we may as well determine at this point for the guidance of the parties on a new trial. Martin received under the decree of condemnation some three hundred odd dollars as compensation for the portion of the thirty foot strip which was taken. The defendant, by cross-complaint against her in this action, seeks to recover this amount from her on the ground that it, and not she, was the real owner of the property and entitled to the compensation for its taking. But if the defendant was the real owner, it should have asserted its claim as such in the con-

The plaintiff, then, is not entitled to prevail over the' defendant, either because of the condemnation judgment or because of the assessment deed, and we are brought to the question as to the effect of the deed by Martin to Lempertz as the final and controlling question in the case: Did or did not that deed, describing the property conveyed as lot so and so in block so and so as shown by a certain map, operate to convey the land in front of the lot to the center of the streets shown on the map, although such streets had been abandoned as public streets ? There can be no question but that the deed would so operate except for the circumstances that the streets had been abandoned, so that the question is, Does such abandonment change what would otherwise be the rule? In determining this question, it is well to ascertain at the outset the reason or theory upon which the rule is based that the fee in the streets would pass by a deed of the streets, if the streets were really there. Section 831 of the Civil Code reads: “An owner of land bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown. ’ ’ Section 1112 of the Civil Code reads: “A transfer of land, bounded by a highway, passes the title of the person whose estate is transferred to the soil of the highway in front to the center thereof, unless a different intent appears from the grant.” Section 2077, subdivision 4, of the Code of Civil Procedure reads: “The following are the rules for construing the descriptive part of a conveyance of real property, when the construction is doubtful and there are no other sufficient circumstances to determine it: . . .

. “4. When a road, or stream of water not navigable, is the boundary, the rights of the grantor to the middle of the road or the thread of the stream are included in the conveyance, except where the road or thread of the stream is held under another title.”

[4] In other words, where land is conveyed by a description which bounds it by a street, and the grantor is the owner of the fee in the street, as he is presumed to be, the real boundary line of the property is not the side line of the street but its center line. This is stated in so many

[6] Such being the reason or theory of the rule it would seem that it should make no difference that there is in fact no public street there, provided the conveyance be one which describes the lot as bounded by a street. By such a description a street is created as between the grantor and the grantee, regardless of whether or not there is an existing dedication as between the grantor and the public. This is the settled law of this state. (Danielson v. Sykes, 157 Cal. 686 , [ 28 L. R A. (N. S.) 1024 , 109 Pac. 87 ]; Eltinge v. Santos, 171 Cal. 278 , [Ann. Cas. 1917A, 1143, 152 Pac. 915 ].) Under these decisions, there can be no question but that Lempertz, under her deed from Martin, which, in effect, described the property as fronting on the two streets in question, took the property as between herself and Martin as so fronting, whether there were public streets there or not. Such being the ease, there would seem to be no reason for not applying as between them the rule that a conveyance of a lot bounded by a street carries the fee to the center of the street as a part of the lot. It may well be—in fact, it is certain that it would be—that in such a case the grantor would reserve an easement over the fee in the street for its use for street purposes appurtenant to other near-by property which he might retain and to which the use of the street

It may likewise well be that the rule would not apply to the conveyance of a lot bounded by a street where the street is described as abandoned. The final question after all is one as to the intention of the parties, and it would seem not unreasonable to consider such a description as one of a lot bounded by what is now private property, although once a street, so that the real boundary was the line of that property. But it is to be noted that the description in this case is a description of the lot as shown by the map, and the map shows the street as existing and not as abandoned, so that by the description the boundary line of what is conveyed would normally be the center line of the street as shown.

A somewhat analogous situation is presented where the way by which the property is bounded according to the description is a private way only. The decisions differ as to what is the rule in such a ease, but the weight of authority is that the fee to the center line of the way passes. (2 Devlin on Deeds, 3d ed., see. 1025a.) Another somewhat analogous situation is where the conveyance is of a lot or tract described by reference to a map, and the map shows the lot or tract as abutting on a road or street, but such road or street has not in fact been dedicated. Here, likewise, it is held that the fee to the center line of what is shown as a street passes. (Bissell v. New York Cent. R. R., supra; Easton Borough’s Appeal, 81 Pa. St. 85 ; Jarstadt v. Morgan, 48 Wis. 245 , [ 4 N. W. 27 ]; Freelon v. Adrian, 161 Cal. 13 , [ 118 Pac. 220 ].)

The authorities in which the exact situation found here is presented are not very numerous and are in confli and it would be of little purpose to review them. They are collated in the note to White v. Jefferson, 110 Minn. 276 , [ 124 N. W. 373 , 125 N. W. 262 ], as reported in 32 L. R. A. (N. S.) 778 . The question is considered at length and with great care by the United States circuit court of appeals for the sixth circuit in Paine v. Consumers’ etc. Co., 71 Fed. 626 , [ 19 C. C.

“The evils resulting from the retention in remote dedicators of the fee in gores and strips, which for many years are valueless because of the public easement in them, and which then become valuable by reason of an abandonment of the public use, have led courts to strained constructions to include the fee of such gores and strips in deeds of the abutting lots. And modern decisions are even more radical in this regard than the older cases. For a very good statement of the present condition of the law on the subject, reference may be had to the new and valuable work of Mr. Dembitz on Land Titles, section 11. Most of the decisions are rested on some peculiarity of phrase in the description, and it is very difficult to lay down any general rules for determining when the grantor has used language sufficiently explicit to exclude from the operation of the deed the fee to the center of the abutting road. The supreme judicial court of Massachusetts has decided that it is impossible, if any respect is to paid to the principles of the common law of real estate, to hold that a fee in land not described can pass as appurtenant to that which is described. (Tyler v. Hammond, 11 Pick. (Mass.) 19 -3.) But in the later cases especially that court has used every device of logic to include in the description of a lot by the side of a road the fee to the center of the road. It has treated the highway or private way in the description of a lot as a monument, and in obedience to the rule that a reference to monuments controls descriptions by courses and distances it has carried the lot to the center line of the monument, however clear a departure this may be from the linear or superficial measurements. It would seem from the language of Mr. Justice McLean, speaking for the supreme court of the United States in Barclay v. Howell, 6 Pet. 512 , [ 8 L. Ed. 498 ], that the difficulty of passing the fee in the adjoining street as appurtenant to the conveyance of the abutting lot did not weigh so heavily on that court, for he said:

“ ‘Where the proprietor of a town disposes of all his interest in it, he would seem to stand in a different relation to the right of soil, in regard to the streets and alleys of the town, from the individual over whose soil a public road is established, and who continues to hold the land on both sides

of it. Whether the purchasers are not, in this respect, the owners of the soil over which the streets and alleys are laid, as appurtenant to adjoining lots, is a point not essentially involved in this ease. ’

“The whole question is most exhaustively discussed by the learned American editors of Smith’s Leading Cases (8th ed., vol. 2, p. 178) in the notes of Dovaston v. Payne, and the conclusion reached that the treatment of the highway as a monument furnishes the means to include the fee to the street center in every ease where there is not express language excluding it. (See, also, 3 Kent’s Com. 349.) The wisdom of such a construction is manifest, and the great weight of authority sustains it.”

Sanchez v. Grace M. E. Church, 114 Cal. 295 , [ 46 Pac. 2 ], has been referred to in other jurisdictions and is now cited to us as supporting a contrary rule. There is language in the opinion which taken by itself would justify this view of the case, but which hardly does so when taken in connection with the facts with reference to which it was used. The map in that case did not show the lane on which the lots abutted as a part of the subdivided tract, nor did the grantor own the fee of the lane until after it was vacated as a public way. Moreover, the claim of the grantee was that by a conveyance of the lots, described by reference to the map, there passed not only the fee to one-half of the vacated lane on which they abutted, but the entire width of the lane in front of them, plus land on the farther side of the lane which had never been in a street and which lay between the lane and a new way which had been opened, title to all of which the grantor had obtained by conveyance from its owners after the vacation of the lane. The decision upon these facts cannot, we think, be taken as establishing as the law of this state governing such a case as the present a rule contrary to that which now so strongly commends itself to us. [7] We hold, then, that in the absence of any circumstances showing clearly that the parties intended otherwise, the deed by Martin to Lempertz describing the ’ lot by reference to the map of the tract operated to convey as a part of the lot the fee in Martin to the center line of the' streets which the map showed as bounding the lots, although such streets had been previously abandoned as public streets.

The two judgments appealed from are reversed.

:Shaw, J., Lennon, J., Lawlor, J., Angellotti, C. J., and Wilbur, J., concurred.

I dissent from the majority opinion that land! which was formerly, but is no longer, a street or highway passes as of course from the grantor to the grantee by a deed to land bordering on said vacated street or highway.

The common-law rule governing the presumption in relation to conveyance of land bordering on a highway or stream has been formulated in our codes, as follows:

Civil Code, section 1112: “4. transfer of land, bounded by a highway, passes the title of the person whose estate is transferred to the soil of the highway in front to the center thereof, unless a different intent appears from the grant.”

Section 2077, subdivision 4, Code of Civil Procedure: “When a road, or stream of water not navigable, is the boundary, the rights of the grantor to the middle of the road or thread of the stream are included in the conveyance, except where the road or thread of the stream is held under another title.”

The obvious limitation to this rule is that in order for it to become operative there must be an existing highway or stream at the time of the transfer. How can it be logically contended that such a conveyance carries beyond the described limits where the highway no longer exists, more than in a case where it never existed?

There was some reason for plaintiff’s contention in that case, since the plat by a dotted line carried the apparent

But let us consider a more extreme and not at all impossible illustration. Suppose we have a fifty foot lot abutting on the west upon a one hundred foot street. The owner conveys the west half of the lot. If the boundary of the lot is the middle of the street the grantee gets nothing but street.

It would be a queer construction that would define the two halves of a lot separately conveyed as including only the land within the prescribed boundaries of the map, but would embrace thirty or forty additional feet of street within its dimensions in the conveyance of the entire lot. It would present a condition in which the whole is greater than its parts. We must accept this incongruity as the legal effect of such a conveyance, or hold that the transfer by reference to lot numbers which carries title to the center of the adjacent street, does so by way of intendment as something appurtenant to but outside the land described, and not on the theory that the law enlarges the lot by extending its boundaries to the middle of the street.

Under the plain terms of the law, this can only result when the abutting land is at the time of the conveyance impressed with the public easement of a street or highway. It is said that the intention of the parties must prevail, and that in these conveyances the law presumes the intention of the grantor to transfer his title in the fee of the street, but that is true only when there is a street. Such is the doctrine laid down in the only decision of this court heretofore considering this question. In Sanchez v. Grace M. E. Church, 114 Cal. 295 , [ 46 Pac. 2 ], it was said as to land formerly part of a highway claimed under conveyance after the public way had been vacated: “A more serious question is whether the land in Messers lane to the middle of it did not become, when the lane was vacated, by a sort of accretion, parcel of the abutting.lots so as to pass with them by deed to Leonis without further designation. ... We think no such rule can obtain in this case; the conveyance of land bounded by a highway is presumed to carry title to the median line of the way, but there is no reason in a like

The above doctrine is clearly adopted; by the supreme court of Minnesota. White v. Jefferson, 110 Minn. 276 , [ 32 L. R. A. (N. S.) 778 , 784, 124 N. W. 374 , 125 N. W. 262 ], presents a case directly in point. One Allie Hewitt owned “lots 23 and 24, Hewitt’s Outlots, First Division, according to the recorded plat thereof.” This ownership carried title to the center of an adjacent street. This street was vacated by the city council. Thereafter the defendants acquired title under a deed containing the foregoing description. Answering defendants’ claim that the vacated strip, which was still owned by the grantor at the time of the conveyance, passed with the deed to the lots, the court says: “On principle the answer is clear. In the first case, at the time of the transfer, the lots would front on a street; in the second case, they would not front on a street. A conveyance according to a plat is a conveyance by recorded metes and bounds, except where the lots front on a street.” The opinion in this case contains an exhaustive examination of the principle involved and the authorities on the subject, and quotes with approval the rule stated in Sanchez v. Grace M. E. Church, supra.

Other decisions favoring the same rule are Brown v. Tabor, 103 Iowa, 1 , [ 72 N. W. 416 ]; Overland Machine Co. v. Alpenfels, 30 Colo. 171 , [ 69 Pac. 574 ]; Harris v. Elliott, 10 Pet. 25 , [ 9 L. Ed. 333 , see, also, Rose’s U. S. Notes]; Chicago Lumber Co. v. Driving Park, 97 Iowa, 25 , [ 65 N. W. 1017 ].

The presumption that a conveyance of land abutting on a public street or highway carries to the middle of the street is founded evidently on a rule of public policy which discourages the separation of the title to the soil of highways from the adjacent tracts on account of the intimate use and association of such streets to the abutting owner. For many uses the abutting soil of the streets is of value to the adjacent owner, where it would be valueless to a separate proprietor of the fee while subject to the easement of

While there is an opposing line of authorities outside of California supporting the views of the majority opinion, I think the doctrine here contended for is more in harmony with reason and the fundamental rules governing title to real property.

No question is raised in the case before us as to continued rights of easement in these streets in behalf of adjacent owners, as are involved and the subject of discussion in Danielson v. Sykes, 157 Cal. 686 , [ 28 L. R. A. (N. S.) 1024 , 109 Pac. 87 ], and Eltinge v. Santos, 171 Cal. 278 , [Ann. Cas. 1917A, 1143, 152 Pac. 915 ], cited in Justice Olney’s opinion. Nor is there any element of estoppel, as there might be in case of a grant by reference to a map showing the lands abutting upon streets, where the 'grantee accepts conveyance in reliance upon such map and without knowledge that the street had been vacated. In this case the streets had been closed for upward of twelve years, the proceedings vacating them were matters of record, and there is no pretense that the grantees were not aware of the fact at the time of their purchase.