Bailey v. Superior Court

This is a proceeding in certiorari to review an order made in a contempt proceeding arising out of violations of an injunctive decree theretofore made in a civil action. The civil action was brought in respondent court by Joseph S. and Avesta Ball, husband and wife, as plaintiffs, against Robert J. and Alberta Bailey, husband and wife, as

No appeal was taken from the aforementioned judgment, it became final, and thereafter a proceeding in contempt was initiated by real parties through filing in the action in which the judgment had been rendered an affidavit in support of a request for citation for contempt. The affidavit made apt references to the judgment in the civil action and particularly to that portion thereof which enjoined petitioners from committing any acts in derogation of the rights declared by the judgment and then asserted that, in derogation of those rights, petitioners had destroyed the existing ditch across their land; had constructed a new ditch along their boundaries to a point where the old ditch had entered upon the land of real parties; that the new ditch was inadequate; that the result had been real parties were not receiving and could not receive the accustomed flow of water delivered by the old ditch. The affidavit contained a prayer that petitioners be punished for disobeying the injunction. A contempt citation was issued and petitioners filed a verified answer. Therein they admitted that they had destroyed the old ditch, because, as they said, they had sold the land over which the ditch extended, and the land so sold was being used for residential

Hearings were held in the respondent court, and an order was entered adjudging the petitioners guilty of contempt, in that they had “wrongfully and unlawfully, in derogation of the judgment and decree heretofore rendered, violated the terms thereof in that the plaintiffs [real parties] did not receive, at the point where the existing ditch shown on Exhibit ‘A’ of the judgment and decree made and entered herein on July 14, 1953, crosses the north line of Parcel C, the accustomed flow of water at said point sufficient for the irrigation of Parcels B and C, as provided in said decree.” Having adjudged petitioners guilty of contempt, the court did not stop, but went on to other matters. The court declared : That real parties were entitled to the accustomed flow in the ditch at the point of its entry to their lands in sufficient quantities so that they and their successors in interest might irrigate their property “east of the swale located on their property” in accordance with irrigation practices “in 7 hours”; that petitioners had sold and conveyed a portion of their property across which the original ditch had existed and were contemplating selling the rest, and that if this were done, real parties would have no adequate method of enforcing the judgment and decree; that the accustomed flow of water called for in the original decree was a quantity sufficient to irrigate real parties’ land east of the swale under normal former methods of irrigation in seven hours; that by reason of the acts of petitioners 27 additional hours were required to irrigate said property at a cost to real parties of $1.50 per hour or the total sum of $40.50; that a flow of 3% cubic feet per second was the quantity of water sufficient to irrigate real parties’ land east of the swale in seven hours. It was ordered that petitioners may purge themselves of

It is at once perceived that a proceeding which started out as a contempt proceeding based upon an alleged violation of an injunctive decree in the original action finally resulted in many other things additional to a finding of contempt. Contending that the respondent court had acted in excess of jurisdiction in doing more than acting upon the issue of contempt, the Baileys petitioned this court for a writ of certiorari to review the respondent court’s contempt proceedings. Responsive to their petition, this court ordered out its writ.

It is settled that certiorari lies to review and annul a contempt order rendered without or in excess of jurisdiction; that a contempt proceeding is not a civil action but is of a criminal nature even though its purpose is to impose punishment for violation of an order made in a civil action; that no presumptions of validity may be indulged in support of judgments in contempt as would be the case with respect to ordinary judgments; that an examination will be made of the whole record before the trial court to determine whether there was any substantial evidence before it to sustain its exercise of jurisdiction; that in a proceeding for constructive contempt the affidavit on which the proceeding is based constitutes the complaint, the affidavit of defendant constitutes the answer or plea, and the issues of fact are thus framed by the respective affidavits serving as pleadings. (Freeman v. Superior Court, 44 Cal.2d 533 , 536-537 [ 282 P.2d 857 ].) As said in Hotaling v. Superior Court, 191 Cal. 501 , 504 [ 217 P. 73 , 29 A.L.R. 127 ], contempt of court is a specific criminal offense. A contempt proceeding is not a civil action, either at law or in equity, but is a separate proceeding of a criminal nature and summary character in which the court exercises but a limited jurisdiction, and in which the People of the State prosecute the action. In H. J. Heinz Co. v. Superior Court, 42 Cal.2d 164 [ 266 P.2d 5 ], where, in a contempt proceeding arising out of a judgment theretofore rendered in a civil action, the respondent court had not only found that contempt had been committed but had proceeded also to award compensatory damages to the person in whose favor the violated decree had run, and to direct the contemnor to do certain affirmative acts preventive of further violations, the Supreme Court said, at pages 173-175:

“On the question of the propriety of awarding compensatory damages, that is, damages suffered by plaintiff by reason of defendant’s violation of the injunction, petitioner contends that the court had no authority in a contempt action to award such damages. This contention must be sustained. In this state ‘the power of the Courts to punish for contempt has been regulated by statute . . .’ since 1851. . . . Section 1218 of the Code of Civil Procedure provides that ‘. . . a fine may be imposed on him [one guilty of contempt] not exceeding five hundred dollars, or he may be imprisoned not exceeding five days, or both. . . .’ Section 1219 authorizes imprisonment as a coercive measure where the contempt consists of a refusal to perform an ordered act. These provisions have been the law since their enactment in 1851 and have been recognized by the courts as establishing the limits within which a court may punish for contempt. . . .

“The injured person’s property rights may be adequately protected through recourse to the remedies provided by other statutory law. ... In 39 California Law Beview, at page 560, the author states that ‘California has no provision for compensatory contempt proceedings. Civil damages may be collected in an ordinary civil action for an act otherwise a contempt.’ The enforcement of an order of contempt in this state is not for the vindication of a private right but is for the maintenance of the dignity and authority of the court, and to preserve the peace and dignity of the people of the State of California. . . . Insofar as the contempt is against the authority of the court, section 1218 of the Code of Civil Procedure is adequate to compel the enforcement of its order since each day’s violation is a separate offense.

“To allow compensatory damages in the contempt proceeding would have the effect of turning it into an action for damages. In an action for damages, the parties are ordinarily entitled to a trial by jury and an appeal, neither of which has been accorded the petitioner in this proceeding.”

Prom what has been said it appears that in the contempt proceeding, the respondent court had limited issues upon which it had power to act. The initial sworn pleading or affidavit in support of the citation for contempt charged merely that certain rights had been accorded to them under the decree in the civil action; that the defendants in that action had been enjoined to do nothing in derogation of those rights; and that they had, in violation of the decree, destroyed

Respondent court took, and this court may here take, judicial notice of the record in the civil action. (Ex parte Ah Men, 77 Cal. 198 , 200 [ 19 P. 380 , 11 Am.St.Rep. 263 ].) In the cited case, in a contempt proceeding wherein the affidavit in support of the contempt citation had not set forth the terms of the injunction alleged to have been violated, the court said:

. . In this state, although contempt of court is a specific criminal offense, and a judgment of conviction thereof the same as a judgment in a criminal case . . ., the practice has

always been to prosecute a matter of contempt in the cause or proceeding out of which it arose, and not as a separate proceeding, with a title of its own. It is, therefore, unnecessary in the affidavit to set forth the pendency of the cause or proceeding, or the provisions of the order which has been violated. The court takes judicial notice of those matters.” (See also Mottos v. Superior Court, 30 Cal.App.2d 641 , 647 [ 86 P.2d 1056 ].)

Turning now to the judgment roll in the civil action within the embrace and under the title of which this contempt proceeding was prosecuted, we are advised of the following: Therein the plaintiffs counted for their causes of action upon the provisions of section 1104 of the Civil Code, reading as follows:

“A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.”

McKinney’s Digest, volume 9, under the heading “Basements,” section 16, cites many cases holding that where an owner of land divides it into two parcels and sells, there is an implied grant of all obviously used easements. Such easements carry secondary easements such as the right to repair, etc., but there is no implied duty of the owner of the servient tenement to maintain and repair the right of way. (See also 9 McKinney’s Digest, “Easements,” §§ 36, 37.) It is obvious from those portions of the complaint, the findings and the judgment in the civil action which we have set out, that the object of the plaintiffs was to have a declaration of implied easement. The judgment rendered in the civil action declared that, by virtue of their ownership of the lands conveyed and agreed to be conveyed to them by petitioners, real parties and their successors in interest were entitled to the right in perpetuity to receive at the point where the existing ditch crossed their north line the accustomed flow of water in said ditch sufficient for the irrigation of their land. Along with this went, of course, the usual secondary easement for maintenance and repairs of that ditch. But this was a fixed and certain servitude upon petitioners’ land in favor of real parties’ land and its implied creation cast no personal duty on petitioners save a negative duty to

If construction be needed as to the meaning and effect of this decree permissible reference to the pleadings and to the findings suffices to make the judgment clear, insofar as the nature of the easement be concerned. In construing a judgment resort may be had to the pleadings and findings of fact.

“. . . ‘If the entry of a judgment is so obscure as not to express the final determination with sufficient accuracy, reference may be had to the pleadings and to the entire record. If, with the light thrown upon it by them, its obscurity is dispelled, and its intended significance made apparent, it will be upheld and carried into effect. In eases of doubt regarding the signification of a judgment, or any part thereof, the whole record may be examined for the purpose of removing the doubt. One part of the judgment may be modified or explained by another part; and uncertainties in the judgment may become certain under the light case upon them by the pleadings or other parts of the records. ’ ’ ’ (Brown v. Superior Court, 110 Cal.App. 464 , 466-467 [ 294 P. 428 ]. See also Verdier v. Verdier, 121 Cal.App.2d 190 , 192 [ 263 P.2d 57 ].)

In Ex parte Ambrose, 72 Cal. 398 [ 14 P. 33 ], the Supreme Court said:

“. . . [T]he same rules of interpretation apply in ascertaining the meaning of a court order or judgment as in ascertaining the meaning of any other writing, ...” (See also Rinaldo v. Board of Medical Examiners, 123 Cal.App. 712 , 715 [ 12 P.2d 32 ].)

Said the District Court of Appeal in the case of In re Carr, 65 Cal.App.2d 681 , 684 [ 151 P.2d 164 ] :

“. . . When the question of the meaning and effect of a judgment or order is raised, the entire document is to be construed as a whole to determine the purpose and intent, just as in a case of a contract or other document.”

In Kirkpatrick v. Harvey, 51 Cal.App.2d 170 , 172-173 [ 124 P.2d 367 ], it is said:

“While a judgment is but the original debt or liability in a new form . . ., it has, under our system, a certain finality and although it may be set aside through some form of direct attack permitted under our law it may not be indirectly attacked. . . .

“. . . Parol evidence is not admissible to change the legal effect of a judgment or the record of it in any material respect.”

In what we have said we have herein applied the foregoing rules.

It appears that the judgment was indefinite as to the amount of water that had customarily been served to the land of real parties through the ditch across the servient property and was uncertain also as to the times during which such water was delivered. Concerning these ambiguities, it would have been proper in a proper proceeding for the respondent court to have taken evidence concerning such accustomed flow and use, but neither in this proceeding in contempt nor in a civil or equitable action, save one perhaps for reformation on appropriate grounds, could the trial court have changed in any manner the nature, location or extent of the servitude of the ditch, its size, capacity or the duty of its maintenance. These things had been finally adjudicated between these parties. We have discussed these matters because real parties, responsive to the contention of petitioners that the respondent court had exceeded its jurisdiction in that it departed from the contempt proceeding and went into other fields, here contend that respondent court was urged to do so by petitioners who may therefore not now complain. Certainly, it appears that petitioners acquiesced, participated in and to a certain extent urged the trial court to thus depart from the issues posed in the contempt proceeding. But from what we have said it must be held that the parties themselves were not capable of conferring jurisdiction upon the court in this proceeding over such matters. It cannot be that in a contempt proceeding, even by consent of the parties, a court may render judgments of a civil nature affecting the rights of the parties and this for the reasons expressed in the Heinz case, supra. The contempt proceeding cannot be broadened to include adjudications concerning such matters. Nothing done here was done to prevent future contempts. If petitioners here have so acted as to destroy the ditch existing when they conveyed, if it cannot be restored because innocent third parties’ rights have intervened, if real parties have suffered civil damages, a civil action is the proper remedy. Contempt will not serve.

For the reasons advanced herein, all adjudications and orders of the court in the contempt proceeding under reviéw, other than the finding that by their acts petitioners