McDougall v. Palo Alto Unified School District

We determine here conflicting claims to one-fourth of an award made in condemnation proceedings.

The parcel of land involved is presently located in the City of Palo Alto and formerly, before consolidation of the two municipalities, in the town of Mayfield. On August 31, 1867, William Paul as party of the first part conveyed the land to Joseph N. Spencer, George W. La Peire and Alexander Young, trustees of the Mayfield School District as parties of the second part. Appellants are successors in interest of the grantor. Respondent, a political subdivision of the State of California, is the successor in interest of the above trustees.

The pertinent provisions of the deed from Paul to the trustees are as follows: “'[T]he said party of the first part for and in consideration of his desire for the advancement of educational interests in Mayfield aforesaid and for that purpose furnishing a site for a sehoolhouse there. Has granted bargained and sold and by these presents does grant bargain and sell convey and confirm unto the said parties of the second part and to their successors in office as Trustees aforesaid all that certain piece parcel or lot of land situated in the town of Mayfield aforesaid and known and designated as Lot number 86 . . . [map reference follows]. Together with all and singular the tenements hereditaments and appurtenances hereunto belonging to be used as a public school for said District forever. To have and to hold unto the said parties of the second part their successors in office for the sole use and benefit of the said Mayfield School District. And whenever the said parties of the second part their successors in office or those legally representing the said Mayfield School District shall abandon the premises hereby conveyed

The school district erected a school on the land and continued to operate and maintain it there until 1940 when the building was demolished.

At this point we observe that eventually there were two groups of heirs of William Paul: Those claiming an undivided three-fourths interest in the land through Katherine MeDougall; and those claiming the remaining individual one-fourth through Albert K. McDougall. The latter are the eight appellants herein.

In 1948 Katherine McDougall commenced in the court below action No. 70253 against the respondent herein seeking a decree quieting title to the parcel of land in question. She was largely successful, the court rendering judgment in her favor and against this respondent determining that she was the owner of an undivided three-fourths interest. No appeal was taken and the judgment is final. Indeed respondent conceded during the course of the instant proceedings in the trial court that the persons claiming through Katherine McDougall owned a three-fourths interest in the land.

In 1959 the County of Santa Clara commenced the proceedings in eminent domain from which the instant controversy derives. The three-fourths ownership of the Katherine McDougall claimants having been conceded, the court below conducted a preliminary trial of the single issue as to whether appellants or respondent school district had title to the remaining one-fourth interest. After such determination, the remaining issues of the cause were tried and resulted in an award of $126,958 in favor of those persons determined to be the owners.

The court, in separate findings on the preliminary issue, found and concluded in substance that the deed from William Paul contained only a covenant which was fully performed; that “in the event the language of said deed is construed to create a fee upon a condition subsequent” the defendants McDougall (appellants herein) waived their right of reentry by failing to assert it at any time; that the deed did not create a determinable fee (referred to by the court as a conditional fee defeasible) in the school district and “there was no automatic defeasance of Defendant District’s title by

“No satisfactory rationalization has been advanced for the requirement of mutuality. Just why a party who was not bound by a previous action should be precluded from asserting it as res judicata against a party who was bound by it is difficult to comprehend.” (Bernhard v. Bank of America, supra, 19 Cal.2d 807 at p. 812.) Accordingly, it was held in that case that the defendant bank was not precluded by lack of privity or of mutuality of estoppel from asserting against the plaintiff that the issue involved had been adjudicated by an earlier final judgment involving parties with whom the plaintiff stood in privity.

It would seem at first blush that the instant case falls within the Bernhard rule for, assuming an identity of issues in both the present and the earlier Katherine McDougall action, the school district against which the plea of res judicata is now asserted, was a party to the former action. However, contrary to appellants’ claim, the rule announced in Bernhard has not had such broad and indiscriminate application. Despite the comprehensiveness of the pertinent language, it has been held that the doctrine of res judicata as declared in Bernhard does not apply to multiple negligence claims of several plaintiffs against a single defendant or group of defendants arising out of a single accident so that the determination of the negligence of such defendant or defendants in one action successfully brought by one plaintiff will perforce be res judicata in all subsequent actions brought by the remaining plaintiffs, upon the mere basis that the defendant or group of defendants were parties to the first action. (Nevarov v. Caldwell (1958) 161 Cal.App.2d 762 [ 327 P.2d 111 ]; Price v. Atchison, T. & S. F. Ry. Co. (1958) 164 Cal.App.2d 400 [ 330 P.2d 933 ].) The court in the Nevaron ease not only felt that the language of the Bernhard case should be considered in the light of its particular facts and the issue there before the court, but also stated that “ [a] n

Finally, appellants urge that denial of res judicata herein cannot be based on its use “offensively” since their position is as fully defensive as that of the school district. We disagree. Appellants’ theory of ease is that the original deed created a determinable fee and that certain events have brought about the expiration of the estate with which respondent school district is now vested of record. It is appellants therefore, just as in the earlier action it was Katherine McDougall, who are in reality assuming the offensive position.

We have not been referred to, nor have we found, any case upholding the plea of res judicata in the precise instant situation. For the reasons we have given above, we are persuaded that such plea cannot be availed of “offensively” in the case before us and that the effect of the original grant should be determined anew and independently of the earlier action.

We therefore turn to the original deed of William Paul. Since no extrinsic evidence was introduced in the court below, the construction of the deed presents a question of law. We are not bound by the trial court’s interpretation of it, and we therefore proceed, as it is our duty, to determine the effect of its foregoing provisions according to applicable legal principles. (Estate of Platt (1942) 21 Cal.2d 343 , 352 [ 131 P.2d 825 ] ; Jarrett v. Allstate Ins. Co. (1962) 209 Cal.App.2d 804 , 809-810 [ 26 Cal.Rptr. 231 ] ; Ziganto v. Taylor (1961) 198 Cal.App.2d 603 , 606 [ 18 Cal.Rptr. 229 ] ; Mofatt v. Tight (1941) 44 Cal.App.2d 643 , 648 [ 112 P.2d 910 ].)

Appellants contend that the deed in question created a fee simple determinable in the school district with a possibility of reverter in the original grantor, his heirs and assigns. We have concluded that such contention has merit.

“ An estate in fee simple determinable is created by any limitation which, in an otherwise effective conveyance of land, (a) creates an estate in fee simple; and (b) provides that the estate shall automatically expire upon the occurrence of a stated event.” (Rest., Property, §44.) In such case, the reversionary interest left in the grantor is called a possibility of reverter. (Rest., Property, § 154; 1

Since there is no dispute in the instant ease that the deed in question creates an estate in fee simple, our particular inquiry is directed to whether it provides that such estate shall automatically expire upon the occurrence of a stated event. Whether particular language in a deed provides for the creation of an estate in fee simple determinable and of a possibility of reverter concomitant therewith is a matter of construction. No particular words are required. It is only necessary that the particular language show that the grantor intended that the estate in fee simple shall automatically expire on the occurrence of a stated event. While a limitation using such words as “so long as," “during" and “until" have usually manifested such intent, they constitute no exclusive ritual and any appropriate words showing the intent will suffice. (2 Powell, Real Property, § 187, pp. 34-39; 1 American Law of Property, § 2.6, pp. 94-100; § 4.13, p. 429; Simes and Smith, The Law of Future Interests (2d ed.) § 286, pp. 341-345.)

Mr. Justice Duniway, now Judge Duniway, writing for this court in the Alamo School District case, supra, said: “A possibility of reverter is created when the duration of an estate is limited by a measure of its life additional to that inherent in the estate itself. A fee simple is perpetual. Thus a possibility of reverter is created by the conveyance of a fee simple which is to last ‘until’ a named event, or ‘during’ a period limited by such an event or ‘as long as,’ a certain state of facts continues. Any expression conveying the same idea is sufficient. A classic example is ‘to A in fee simple until St. Paul’s falls’ or ‘as long as St. Paul’s stands.’ [Citation,] The rule is technical, and is based on the idea

In its distilled essence the operative language of the deed before us is that “whenever . . . [the school district] shall abandon the premises ... or shall fail neglect or refuse to use said premises for common school uses and purposes then . . . the said premises shall revert. . . .” We think that the above language shows an intention of the grantor that the estate shall automatically cease when the property is abandoned or not used for school purposes. In our view, there is little difference between such language and, for example, a habendum clause employing one of the more standard expressions of limitation and reading: “to have and to hold unto the parties of the second part for the sole use of the said Mayfield School District so long as said premises are used for common school uses and purposes and not abandoned.” In each instance, the grantor intends the automatic expiration of the estate on the happening of the same stated event.

While we have not been referred to any California cases in which a fee simple determinable has been created by language containing the word “whenever,” such language has been held appropriate to create such a fee in other jurisdictions. In Consolidated School Dist. No. 102 v. Walter (1954) 243 Minn. 159 [ 66 N.W. 2d 881 , 53 A.L.R2d 218 ] cited by appellants, a deed to a school district contained the following language: “ ‘To have and to hold . . . the above . . . premises . . . unto the said School District ... In Trust and to and for the use, intent and purpose of a site for a School House . . . and . . . whenever the said School District removes the School House from said tract of land or whenever' s'aid School House ceases to be used as the Public School House;.-/-, then the said Trust shall cease and determine and the said land shall revert to . . . [the grantors and their heirs].’ ” (66 N.W.2d, p. 882; emphasis added.) It was there held that the “deed conveyed a fee simple determinable with the grantors retaining a possibility of reverter.” (66 N.W.2d, p. 884.) In Carr v. Georgia Railroad (1884) 74 Ga. 73 , a conveyance in fee of a city lot was made to the defendant

In the conveyance at hand we encounter no difficulty in concluding that a fee simple determinable rather than a fee simple subject to a condition subsequent has been created. The Restatement defines the latter estate as follows: “An estate in fee simple subject to a condition subsequent is created by any limitation which, in an otherwise effective conveyance of land, (a) creates an estate in fee simple; and (b) provides that upon the occurrence of a stated event the conveyor or his successor in interest shall have the power to terminate the estate so created.” (Rest., Property, § 45.) The corresponding future interest created is termed a right of reentry for condition broken. As the author of the opinion in the Alamo School District ease states “ [a] right of entry for breach of condition is clearly recognized in California. In classical theory, it was distinguished from the possibility of reverter by the fact that it was not a limitation upon the estate granted—not a measure of its duration—but a condition upon the occurrence of which the granted estate could be cut off by reentry of the grantor. An example of such a conveyance would be one of a fee simple ‘upon condition that, if St. Paul’s falls, the estate shall terminate. ’ The effect is not to terminate the estate automatically, as a reversion does, but to give the grantor a right of reentry, the estate terminating only if the right is exercised.” (Alamo School Dist. v. Jones, supra, 182 Cal.App.2d at p. 185.)

Both a fee simple determinable and a fee simple subject to condition subsequent involve divesting upon the occurrence of the stated event. The problem presented in such cases is to determine whether the fee simple is to terminate automatically or only upon the exercise by the grantor, his heirs or assigns of the right of reentry. (Simes and Smith, op. cit., p. 344; Powell, op. cit., p. 40.) Constructional pref

“Generally speaking, the apt and appropriate words evidencing that the grant is on condition subsequent are found in a provision for forfeiture and right of reentry.” (Fitzgerald v. County of Modoc (1913) 164 Cal. 493 , 495 [ 129 P. 794 , 44 L.R.A. N.S. 1229 ].) In the Restatement of Property it is said that, with exceptions not here applicable, “an estate in fee simple subject to a condition subsequent is created by an otherwise effective conveyance which contains 1. some one of the following phrases, namely, ‘upon express condition that,’ or ‘upon condition that,’ or ‘provided that,’ or a phrase of like import; and also 2. a provision that if the stated event occurs, the conveyor ‘may enter and terminate the estate hereby conveyed,’ or a phrase of like import.” (Rest., Property, § 45, com. j.) We find no words of condition in the deed of William Paul.

Respondent’s position here is that the deed in question did not create a possibility of reverter, that it created only a covenant which was fully performed and that even if a fee simple subject to a condition subsequent was created, the right of reentry was waived. Respondent relies on City of Santa Monica v. Jones (1951) 104 Cal.App.2d 463 [ 232 P.2d 55 ] ; Savanna School Dist. v. McLeod (1955) 137 Cal.App. 2d 491 [ 290 P.2d 593 ]; and the Alamo School District ease already referred to.

The Santa Monica case was also a condemnation action involving the conflicting claims of the heirs of the grantor and the grantee railway company. Respondent urges first, that it is strikingly similar to the instant case because the heirs made no reentry until they made a claim in the condemnation action; and, secondly, that it disposes of appel

In the Savanna School District ease the grantee brought an action for declaratory relief and to quiet title against the heirs of the grantor. The original deed executed in 1904, reciting that it was “ ‘subject to the terms, conditions and agreements hereinafter contained, ’ ” stated that the conveyance was for public school purposes only “ ‘and it is expressly understood and agreed that as a consideration for this conveyance . . . [the school district] shall build and maintain a public school building on said land, and that the title and ownership of said land shall revert to . . . [the grantor] upon a failure . . . [of the school district] to erect and maintain a building thereon to be used exclusively for public school purposes. ’ ” (137 Cal.App.2d at p. 492.) The district constructed a school immediately and maintained it continuously for 27 years. In 1931 the building was torn down and replaced by a brick school building, similarly used for another 18 years. This building was then abandoned and a new school site acquired.

The court held that the deed created a covenant rather than a condition under the rule that a clause in a deed im

We reach these conclusions: The language of the deed in question shows an intent to create a fee simple determinable. We find therein neither express words of condition nor the substance of language establishing a basis for a fee on condition subsequent. We conclude that the language of the conveyance enumerates with sufficient clarity the grantor’s design for an automatic expiration of the estate upon the occurrence of the event stated above. All of the foregoing preclude a theory of a mere covenant. Since we conclude that the fee is determinable no declaration of forfeiture or other act of the appellants was necessary to terminate the estate conveyed. (Henck v. Lake Hemet Water Co., supra, 9 Cal.2d 136 , 140; Renner v. Huntington etc. Oil & Gas Co., supra, 39 Cal.2d 93 , 98.) By definition such estate contained its own inherent limitation and provided for its own natural termination. Unlike a fee on condition subsequent, it required no artifical termination or any reentry as a divesting event. (Powell, op. cit., § 191, p. 56; Rest., Property, §§ 56, 57.) Such being the case, the trial court’s finding or conclusion that the appellants waived “their right ... to assert a claim of reversion or forfeiture” is not material to the instant case. There was no reentry to waive. Orthodox principles preclude a forfeiture. Title reverts automatically.

. Finally, we examine the court’s finding that the school district never abandoned the property. More particularly, the court found and concluded that the district had maintained a school on the premises until 1940, or for approximately 60 years; that in 1938, the district had plans prepared to use the property for a school for special pupils following the removal of the Sherman School but that such planned school was never constructed; that there was no automatic defeasance of the district’s title by reason of the removal of the Sherman School in 1940; and that the district has never abandoned the property in that it has at all times had available plans for the construction of a special school.

As we have set forth earlier, the stated event which effected termination of the estate was the abandonment of the property or any failure, neglect or refusal to use the property for common school uses and purposes.

The parties rely on minutes of different meetings of the school board which were received in evidence. The minutes

We need not explore the niceties of whether the school board did or did not formalize and record an intent to abandon the property. Admittedly no school structure of any kind has been on the property since 1940 and since that date the school district has failed to use the property for any school uses or purposes. Two separate provisions in the deed therefore operate to bring the estate to an end. First, the deed terminates such estate “whenever . . . [the school district] shall abandon the premises.” In our view, such abandonment was not obviated by an intent to one day use the property, no such actual use having been made of it for almost 20 years. Examined in the context of the entire document, we think that the grantor used “abandon” in the sense of “nonuse.” But apart from such provision, a second clause provides for termination—“or [whenever the school district] shall fail neglect or refuse to use said premises for common school uses and purposes. ...” Thus, even if we should accept the court’s conclusion that the district never abandoned the land, it is beyond dispute that for almost 20 years it failed to use it for school purposes. Moreover, after the Katherine McDougall judgment against the district became final in 1950, any such use of the premises became, as a practical matter, impossible since the heirs of Katherine McDougall then owned an undivided three-fourths of the property.

We are therefore of the opinion that the trial court’s conclusion against the automatic defeasance of the district’s title was supported neither by the evidence nor by the nar

Since the construction of the deed of William Paul presents only a question of law, and since it appears without conflict in the evidence that the event prescribed in said deed for the expiration of the estate conveyed did occur, any further trial of this matter is unnecessary.

The judgment is reversed and the cause is remanded with directions to the trial court to amend its conclusions of law and to enter judgment in favor of the appellants in accordance with the views herein expressed.

Bray, P. J., and Molinari, J., concurred.