Kraemer v. Kraemer

This is an action to quiet title to 47.61 acres of land commonly referred to by the parties as the “Beservoir Site.” The primary issues presented on this appeal concern the effect of an allegedly ambiguous deed and the sufficiency of the evidence to sustain a finding of adverse possession by a cotenant.

In 1881 Daniel Kraemer “granted and conveyed” to the Anaheim Water Company “the right and privilege” of using the 47.61 acres of land in question for reservoir purposes, including the right to do whatever was necessary to construct dams and store water thereon, together with rights of way for ditches and canals. The “Beservoir Site” was described by metes and bounds.

The following year Daniel died testate and two of his children, Samuel and Jonathan, as the principal beneficiaries under his will, were devised in excess of 3,000 acres of land, receiving title as cotenants through a decree of distribution describing the property by the description used in the deed conveying title to their father, “excepting such portions thereof as were conveyed by Daniel Kraemer in his life time to various parties” including “a tract containing 47.61 acres conveyed by said Daniel to the Anaheim Water Company for a Beservoir Site, recorded in Book 82 of Deeds, page 335 . . . reference being made for more particular description of said excepted portions to said deeds respectively.”

In 1886 Samuel and Jonathan, by deeds, partitioned the property distributed to them as cotenants. For descriptive purposes, these deeds referred to a simultaneously recorded map of the Kraemer Tract, which divided the property into blocks and showed the “Beservoir Site” located on the southerly portion of Blocks E and F of that tract. A description of the northerly portion of said Blocks E and F, consisting of 452.50 acres, was included in the deed from Samuel to Jonathan, and a description of the southerly portion, con

In 1893, Jonathan, having suffered financial reverses resulting in the loss of all his property, left the area and eventually settled in Mexico, where he was visited by Samuel and his son in 1910.

In the meantime, the Anaheim Water Company, and its successor, Anaheim Union Water Company, had abandoned their efforts to maintain a reservoir on the 47.61 acre site, and in 1906 Samuel purchased the water company’s interest in that site for $1,000, receiving a deed, which was recorded, conveying such interest to him individually.

After acquiring the water company’s interest in the “Beservoir Site,” Samuel made various uses of the 212 acres in Block “F,” including this site, and otherwise exercised acts of ownership over the property; the whole property was leased on two occasions, the leases being recorded; the fences around the “Beservoir Site” were removed, leaving the property enclosed by a fence around the 212-acre plot, which later was removed in part; the land was cleared, planted to walnut trees and thereafter interset with orange trees; part of the property was used as a gravel pit and other parts were used for farming purposes, such as the raising of bees, the

In 1917 Jonathan returned from Mexico, and visited with his relatives in California. On one occasion during this visit, Jonathan, accompanied by Samuel, his brother Ben and Samuel’s son, made a trip to an oil drilling project on land formerly owned by Jonathan, which took them through Block “F,” past the “Reservoir Site,” and Jonathan expressed surprise at the change effected by the clearing of the wilderness and the planting of walnut trees. While at the site of this oil well, when Samuel expressed a belief that the entire property to the south, which included the “Reservoir Site” along with other property in Block “F,” would be oil property, Jonathan expressed the hope that oil would be discovered both on Samuel’s property and on Ben’s. There was a great deal of “oil activity” in this area at this time, including efforts by different oil companies to obtain oil leases, together with attendant newspaper notoriety. The evidence does not disclose that Jonathan, at any time, made any claim to any interest in the “Reservoir Site.” After concluding a four-month visit in California, Jonathan left and, eventually, took up residence in Texas, where he died in 1921 and his estate was probated. The individual defendants are his heirs at law, or their successors in interest. Most of these defendants have lived in the immediate vicinity of the property for a great number of years.

In 1919 Samuel leased the 212-acre parcel in Block “F,” including the 47.61 acres in the “Reservoir Site,” to the Standard Oil Company, for 25 years. This lease purported to affect all interests in the property; was executed by Samuel individually as sole lessor; did not separately describe the “Reservoir Site”; was recorded, and received considerable newspaper notoriety. The lessee went into possession; erected and installed derricks, buildings, tanks, camps, extraction plants and pipe lines; drilled a great number of oil producing wells, including five or six on the “Reservoir Site,” and paid rents and royalties to Samuel and his successors.

Between 1920 and 1934 Samuel and his wife deeded to each of their eight children, who are the plaintiffs in this action, one of the lots in Block F of Tract Number 56, reserving the oil and gas rights therein, but conveying to each child an undivided one-tenth interest in all oil and gas rights appurtenant to all eight lots, i.e., the 212-aere parcel. Five conveyances were made in 1920, one in 1927, and two in 1934. Bach of these deeds was recorded; was executed by the grantors as sole owners and not as cotenants; and purported to convey the entire fee to the property therein described, less the oil rights reserved by the grantors; no exception of property within the “Reservoir Site" was made; and no acknowledgment of an outstanding interest in Jonathan, or his successors, was expressed. Bach of the eight deeds contained a conveyance of the aforesaid one-tenth oil and gas interest; the remaining two-tenths interest was retained by Samuel and his wife until they died in 1937 and 1941, respectively, whereupon it was distributed to their children in equal shares.

After the execution of the foregoing conveyances, these children went into possession of their respective lots; continued in possession for a period covering between 19 and 33 years; executed agreements, which were recorded, extending and modifying the 1919 lease to “Standard Oil"; received the royalties paid under that lease and its extension; conveyed several rights of way to that and other companies, which were recorded; constructed improvements, farmed, leased, excavated, encumbered, occupied and exercised other acts of ownership on and concerning their respective property, making no distinction between that portion within and that portion without the “Reservoir Site"; and annually paid all the taxes levied upon the property described in their deeds, which included that site.

“The intention of the parties to a grant is to be gathered if possible from the language itself and is determined by a proper construction of the language used rather than by

The 1886 partition deed from Jonathan to Samuel described the property to be excepted from its operation as “the forty-seven 61/100 (47 61/100) acre tract conveyed by Daniel Kraemer to the Anaheim Water Company for reservoir purposes” (italics ours). The defendants urge that the term “tract” means “tract of land.” The boundaries of that tract are shown on the map to which reference is made in the deed. Thus, this deed, in substance, refers to two other instruments, i.e., a conveyance and a map. When a deed refers to other instruments the latter become a part of the former, and all of them must be considered as a whole to determine the intention of the parties. (Anderson v. Trotter, 213 Cal. 414 , 420 [ 2 P.2d 373 ]; Biescar v. Czechoslovak-Patronat, 145 Cal. App.2d 133 , 142 [ 302 P.2d 104 ] ; Holbrook v. Fazio, 84 Cal. App.2d 700 [ 191 P.2d 123 ] ; Hamilton v. Ferguson, 26 Cal. App.2d 390 , 394-395 [ 79 P.2d 427 ] ; Edwards v. Lewis, 25 Cal.App.2d 168 , 172 [ 76 P.2d 720 ] ; Drake v. Russian River Land Co., 10 Cal.App. 654 [ 103 P. 167 ].)

Daniel Kraemer did not convey to the Anaheim Water Company the tract of land which the defendants contend is excepted from the operation of the partition deed. As noted by the trial judge in his memorandum opinion, the obvious purpose of the exception was to exclude from the operation of this deed property which already had been conveyed and over which the grantor had no legal control, i.e., the easement to Anaheim Water Company. (Lewis v. Standard Oil Co. of California, 88 F.2d 512 , 515; Goss v. Congdon, 114 Vt. 155 [ 40 A.2d 429 ].)

In Boring v. Filby, 151 Cal.App.2d 602 , 605 [ 311 P.2d 869 ], a conveyance from the defendants to the plaintiffs contained this clause: 1 ‘ Saving, Excepting and Reserving from Parcels 1, 2 and 3 above all oil gas and minerals, etc., as contained in Deed from Bank of America ... to Edgar O. Filby and

In the ease at bar, although Daniel Kraemer did not convey to the Anaheim Water Company a tract of land, he did convey an easement, i.e., a ‘‘tract conveyed . . . for Reservoir purposes.” (Italics ours.) In a number of instances the language of a deed granting a tract or a specifically described parcel of property for a particular purpose has been held to convey only an easement for that purpose. (Parks v. Gates, 186 Cal. 151 , 152-154 [ 199 P. 40 ] ; Pellissier v. Corker, 103 Cal. 516 [ 37 P. 465 ] ; City of Glendora v. Faus, 148 Cal.App.2d 920 , 922 [ 307 P.2d 976 ] ; Hamilton v. Ferguson, supra, 26 Cal. App.2d 390 , 392, 396; Marlin v. Robinson, 123 Cal.App. 373 , 376 [ 11 P.2d 70 ].) In these cases the courts determined that the recital of the purpose was a part of the granting clause. No valid distinction exists between the meaning of particular language used to describe the extent of the interest in property conveyed and similar language used to describe the extent of the interest in property excepted from a conveyance. In Coon v. Sonoma Magnesite, 182 Cal. 597 [ 189 P. 271 ], the court held that an easement only was excepted from the operation of a deed by the following phraseology: ‘ ‘ Saving and excepting therefrom a strip of land forty feet wide . . . for a road to be built at some future time.” In Moakley v. Los Angeles Pacific Ry. Co., 139 Cal.App. 421 , 425, supra, a finding of the trial court that an exception from a described parcel of ‘‘so much as has been taken for the

In support of their contentions, the defendants cite Seligman v. Carr, 8 Cal.App. 572 [ 97 P. 324 ] and Hartwig v. Central-Gaither Union School Dist., 200 Cal. 425 [ 253 P. 733 ], as involving a basic question identical with that presented in the case at bar. However, these eases are clearly distinguishable from the one before us. In each of them, an original deed conveyed property to a school district upon condition that it should be used for school purposes and provided for a reversion in the event the property was not so used; a subsequent deed excepted from its operation the property theretofore conveyed to the school district and, consequently, retained the reversionary interest in the grantors. There was no question in the cited cases as to whether the

It is our conclusion that the deed in question, including the conveyance and map referred to therein, clearly indicate an intention to except from its operation that interest in the subject property previously conveyed by Daniel to the Water Company, which was an easement, and did not indicate an intention to except therefrom the fee to the tract of land subject to that easement which had not been conveyed.

Where the language of a deed is uncertain, i.e., “fairly susceptible of either one of two constructions contended for without doing violence to its usual and ordinary import” (Beneficial etc. Ins. Co. v. Kurt Hithe & Co., 46 Cal. 2d 517 , 525 [ 297 P.2d 428 ]), circumstances surrounding its execution and the subsequent conduct of the parties with respect thereto may be considered in order to determine their intention in consonance with the language used; to determine “what they meant by what they said.” (Barnhart Aircraft, Inc. v. Preston, 212 Cal. 19 , 23 [ 297 P. 20 ] ; Civil Code, section 1647; Universal Sales Corp. v. California etc. Mfg. Co., 20 Cal.2d 751 , 761 [ 128 P.2d 665 ] ; Van Slyke v. Arrowhead etc. Power Co., supra, 155 Cal. 675 , 681; Poles v. Glass, 136 Cal.App.2d 508 , 510 [ 288 P.2d 986 ]; Paddock v. Vasques, 122 Cal.App.2d 396 [ 265 P.2d 121 ].)

If it be assumed that the deed in question did not clearly express an intention to except from its operation only the water company’s easement, neither did it clearly express an intention to except the entire fee of the tract subject to that easement, and the action of the trial court in permitting the introduction of extrinsic evidence, together with its finding that the parties actually intended to except only the easement, which is adequately supported by the record, were proper and its conclusion was sound. In this regard, it is noteworthy that the phraseology used in the partition deed to describe the excepted interest in the “Reservoir Site,” and that used in the decree of distribution in the estate of Daniel Kraemer, for the same purpose is substantially identical; the former excepted “the forty-seven and 61/100 (47 61/100) acre tract conveyed by Daniel Kraemer to the Anaheim Water Company for Reservoir purposes,” while the latter excepted “. . . such portions ... as were conveyed by said Daniel Kraemer in his lifetime to various parties, to wit: ... & tract containing 47.61/100 acres conveyed by said Daniel to the Anaheim Water Company for a reservoir site ...” In

The defendants’ claim of error in the admission of extrinsic evidence to assist in the interpretation of the 1886 deed is of no avail in any event; if the deed clearly excepted only an easement, the admission of such evidence was not prejudicial. (Hamilton v. Ferguson, supra, 26 Cal.App. 2d 390 , 393; Marlin v. Robinson, supra, 123 Cal.App. 373 , 378.) If the deed was not clear such admission was proper.

Even though it be assumed that the deed executed by Jonathan in 1886 did not effectively convey to Samuel all of Jonathan’s interest in the “Reservoir Site,” the evidence adequately supports the conclusion that whatever interest Jonathan or his successors may have had in this property was terminated by the adverse possession of the plaintiffs. The trial court found that the plaintiffs on the dates of their respective deeds from Samuel and his wife, as the grantees therein named, entered into exclusive possession of the property therein described, including the oil rights conveyed thereby, and, upon the dates of the aforementioned decrees of distribution entered into the exclusive possession of the remaining two-tenths interest in those oil rights; that “from and after the respective dates of said deeds and decrees of distribution to the time of the commencement of this action said respective grantees remained in the continuous, open, notorious, exclusive, adverse, actual, uninterrupted, hostile and peaceable occupancy and possession of the property described in said deeds and decrees of distribution ...” and during that time ‘1 exercised overt, open, notorious, adverse and hostile acts of ownership of said property of such unequivocal character as to clearly manifest and impart notice and knowledge to D. Jonathan Kraemer, and to the defendants, of the hostile intern of the plaintiffs ... to hold said property adversely and in their own exclusive right for themselves

To establish title by adverse possession there must be an actual, open, notorious occupancy of the subject property, which is hostile and adverse to the owner’s title, under such circumstances as to give reasonable notice thereof, either actual or constructive, to the true owner, by an occupant claiming the property exclusively as his own, under a claim of right or color of title, which is continuous and uninterrupted for five years, and is accompanied by the occupant’s payment of all taxes levied or assessed against the property during that period of time. (West v. Evans, 29 Cal.2d 414 , 417 [ 175 P.2d 219 ] ; Meier v. Meier, 71 Cal.App.2d 502 , 505-506 [ 162 P.2d 950 ].) “The requirement of‘hostility’ . . . means, not that the parties must have a dispute as to the title during the period of possession, but that the claimant’s possession must be adverse to the record owner, ‘unaccompanied by any recognition, express or inferable from the circumstances of the right in the latter. ’ ’ ’ (Sorensen v. Costa, 32 Cal.2d 453 , 459 [ 196 P.2d 900 ].)

The defendants contend that plaintiffs’ occupancy was not under such circumstances as constituted reasonable notice of the hostile character of their claim; that there was no ouster of the tenants out of possession. This contention is based on the well settled principle that the exclusive occupancy of a cotenant is deemed permissive and does not become adverse until the tenant out of possession has had notice, either actual or constructive, that the possession of the co-tenant is hostile to him. (West v. Evans, supra, 29 Cal.2d 414 , 418; Johns v. Scobic, 12 Cal.2d 618 , 623 [ 86 P.2d 820 , 121 A.L.R. 1404 ].) When the entry into occupancy is avowedly as a tenant in common with others, the possession thus gained is the possession of the others and continues as such until the tenancy in common is disclaimed. (Akley v. Bassett, 189 Cal. 625 , 641-642 [ 209 P. 576 ].) Under such circumstances, in order to constitute evidence of a disclaimer, the conduct of the tenant in possession must be such as amounts to an ouster of the other eotenants and consist

Moreover, the recordation of the plaintiffs’ deeds, under

The defendants further contend that the possessory acts relied upon to establish a title by adverse possession could not constitute notice to them, as the true owners, that the plaintiffs claimed adversely to their interest in the property, because they had no knowledge of such interest. This contention is without merit. A person claiming title by adverse possession is not required to “establish that the record owner knew of his own rights in the land in question. All that the claimant must show, however, is that his occupation was such as to constitute reasonable notice to the true owner that he claimed the land as his own. The fact that the record owner was unaware of his own rights in the land is immaterial.” (Sorensen v. Costa, supra, 32 Cal.2d 453 , 461.)

The trial court’s finding with respect to the payment of taxes is supported by the evidence. From the time of acquisition, each plaintiff paid the taxes assessed against the lot conveyed to him or her, resulting in the payment by plaintiffs annually of all taxes on all of said lots since 1934. The mineral rights appurtenant to this property were assessed separately. Under the “Standard Oil” lease the lessors and the lessee agreed to share payment of these taxes on these rights in accord with an agreed formula. Pursuant to this lease “Standard” as lessee paid all of these taxes and the plaintiffs, as lessors, reimbursed it for their agreed share. In reality, the payment made by “Standard” was made on behalf of the plaintiffs and constituted payment by them. (Williams v. Stillwell, 217 Cal. 487 , 492 [ 19 P.2d 773 ]; Gray

The defendants contend that “Standard” was in possession for all the cotenants, and that any payment of taxes made by it was made on behalf of all. This contention is based on a false premise. As heretofore noted, the ocupaney of the plaintiffs and their lessee, under the circumstances of this case, was not presumed to be the occupancy of a cotenant.

The defendants further contend that the taxes were paid “with what the property yielded” and, for this reason, were not paid by the plaintiffs. Section 325 of the Code of Civil Procedure which prescribes payment by the occupant of all taxes levied and assessed upon the subject property during the possessory period, as an element of adverse possession, does not require that such taxes be paid with money obtained from sources other than the property claimed.

The determination by the trial court that the plaintiffs have a good record title under the 1886 deed and good title by adverse possession under the entry and occupancy by the plaintiffs was correct and should be affirmed. Our conclusions in this regard render unnecessary a consideration of the effect of the 1888 correction deed or the sufficiency of the evidence to establish adverse possession by Samuel. For like reasons, the contentions of plaintiffs respecting the finding of the trial court in their favor, under the doctrines of estoppel and laches, need not be considered. These conclusions also dispose of the issues on appeal which involve the cross-defendant Standard Oil Company of California.

After filing a notice of appeal from the judgment herein, and during the course of proceedings to prepare a transcript on appeal, the defendants-cross-complainants and the cross-defendant, Standard Oil Company of California, filed written requests for a correction of proposed transcripts on appeal. Alleged errors in these transcripts concerned a minute order and other entries in the clerk’s transcript, and inaccuracies in the reporter’s transcript with respect to a hearing on August 30, 1956, which dealt with issues between the cross-complainant and the cross-defendant, Standard Oil Company.

There is a presumption that the clerk’s minutes correctly related the order to which objection was made, which supports the finding of the trial court to this effect. (Wutchumna Water Co. v. Superior Court, 215 Cal. 734 , 737 [ 12 P.2d 1033 ] ; People v. Palmer, 49 Cal.App.2d 567 [ 122 P.2d 109 ].) Moreover, this order referred to matters concerning the accounting phase of this case, and its effect has been rendered inconsequential by the decision on the issue of title. No prejudicial error in settling the clerk’s transcript appears.

Any inaccuracies in the reporter’s transcript did not relate to matters involving the title dispute between plaintiffs and defendants; they related to proceedings under the cross-complaint and concerned solely the issues therein raised respecting the relationship between cross-complainants and the cross-defendant, Standard Oil Company, based upon the premise that the cross-complainants are owners of a cotenancy interest in the “Reservoir Site.” The judgment that plaintiffs are the sole owners of that property renders these issues moot. Under these circumstances no prejudice to appellants resulted from the order settling the reporter’s transcript as corrected, and it is unnecessary to determine whether the trial court abused its discretion under the circumstances. The order should be affirmed.

We have considered other objections made by the defendants with respect to rulings upon the evidence and the sufficiency of the pleadings, but find them without merit.

The judgment and orders appealed from are affirmed.

Mussell, Acting P. J., and Shepard, J., concurred.

Petitions for a rehearing were denied February 18, 1959, and appellants’ petitions for a hearing by the Supreme Court were denied March 18, 1959.