Conner v. Lowery

Plaintiffs sued to quiet title to three par cels of land situated in Napa County. The defendant appeared and claimed an open right of way over parcels one and three of plaintiffs’ land. Judgment went for plaintiffs quieting their title subject to the right of way claimed by defendant. The plaintiffs have appealed on a typewritten transcript.

Plaintiffs concede that defendant, through his predecessors in interest, obtained, partly by grant and partly by prescription, an open right of way over the land in question and that this was used as a road and means of ingress to defendant’s land from the county road from the year 1868.

The controversy between the parties arose after the plaintiffs had purchased from Mallock and after they had performed some labor upon the road which they assumed was in excess of that performed by the defendant. A demand was made upon defendant that he perform additional labor upon the road and that he pay plaintiffs one-half the amount they had expended. When the defendant endeavored to perform work upon the road, the plaintiffs prevented him from doing so and failed to notify him at any

The trial court found that no additional right was conveyed to defendant by the deed of June 6, 1918; that the language of this deed did not constitute a condition subsequent, but an agreement, for which there was no consideration. It was also found that the defendant had expended a large sum of money in building and maintaining the road since June 6, 1918; that, prior to the commencement of the action he was prevented by plaintiffs from performing additional work thereon; that plaintiffs had also expended large sums upon the road but had failed to notify defendant of any sum so expended or to demand payment of any portion thereof.

These findings are all amply supported by substantial evidence and the only question which requires consideration is whether the stipulation in the deed of June 6, 1918, is a condition subsequent or an agreement. We are convinced that it is merely an agreement, and an unenforceable one at that, because it is too indefinite and uncertain and because it is wholly without consideration. It is indefinite and uncertain because it does not provide how the expenses of fencing off, building, and maintaining the road are to be incurred, who is to determine what is necessary for those purposes, or when or in what manner the expense thereof is to be paid. Conditions subsequent “are not favored in law because they tend to destroy estates, and no provision in a deed relied on to create a condition subsequent will be so interpreted if the language of the provision will bear any other reasonable construction.” (Hawley v. Kafitz, 148 Cal. 393 , 394 [ 113 Am. St. Rep. 282 , 3 L. R. A. (N. S.) 741 , 83 Pac. 248 , 24-9].) As respondent obtained nothing by reason of the deed, it would be an unreasonable construction of this provision to hold that it was intended as a condition subsequent working a forfeiture of a pre-existing right with no consideration to him.

That respondent gained nothing is clear. He then held, by deed, an undisputed right to a right of way over all the lands owned by appellants. By the quitclaim deed of May 31, 1918, he joined with appellants’ predecessor in releasing his claim to that portion of the right of way running over the land of Mrs. Adams, but they expressly ex

It is argued that, by the release of a portion of the road to Mrs. Adams, the old right was abandoned and thus a new right was created by the deed of June 6th. But the abandonment was merely a part of a plan for a relocation of a small portion of the road over lands which neither party to the deed owned. Though the new road was not in actual use at the time of the deed, the relocation had been made by mutual consent of the parties and respondent’s rights were not affected by the change. (Vargas v. Maderos, 191 Cal. 1 , 3 [ 214 Pac. 849 ]; Ricioli v. Lynch, 65 Cal. App. 53 , 58 [ 223 Pac. 88 ].)

Judgment affirmed.

Sturtevant, J., and Buck, P. J., pro tern., concurred.