Jones v. Wilterding

California Court of Appeal Oct 27, 1950 No. Civ. 3838Published

Before: Barnard

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Holding. The court held that the 1887 agreement granted an optional right to erect an outside stairway only until a building was constructed on the adjoining property, and that the right to maintain such a stairway did not include the right to erect one after a building had already been built.

Issues

Whether the 1887 agreement granted a perpetual right to erect an outside stairway on the defendants' property.
Whether the trial court's interpretation of the contract was reasonable and supported by the evidence.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The right to erect an outside stairway was thus expressly limited, by the words creating that right, to the time before any building at all was built.”

BARNARD, P. J.

This is an action for an injunction, and for a declaration as to the rights of the parties under a certain contract.

In 1887, one Miller deeded the southerly 25 feet of two vacant lots in Elsinore to one Crawford, retaining the northerly portion of the property. At the same time the parties executed and recorded an agreement, which was also made binding on their successors and assigns. After providing that Crawford should erect a two-story brick building within a year, and that its northerly wall should constitute a party wall, this agreement provided as follows:

[211]

“Until such time as a building shall be erected upon the land adjoining said party wall, it is agreed that the said George Crawford shall have the right to erect and maintain a stairway to the second story of said building against the outer edge of said party wall and over the land of the said J. P. Miller.

“And if a one story building should be erected against said party wall, the said George Crawford shall yet have the right to maintain his said stairway using due diligence therein that no unnecessary injury is thereby inflicted upon said building.

“Upon the erection of a building two or more stories in height against the Northly side of said party wall a hallway shall be constructed therein against said wall for the maintenance of a stairway, ... to the front and rear . . . said stairways shall be constructed and maintained mutually (for the benefit of both buildings). ’’

A two-story brick building was constructed by Crawford in 1887 and, after various conveyances, that property is now owned by the plaintiff. At some time prior to 1895 a one-story frame building was built on the Miller property, which is now owned by the defendants. The outside stairway mentioned in the agreement was never built. In December, 1947, the frame building on defendants’ property was condemned and torn down, and the defendants commenced the building of a new one-story building. The plaintiff, claiming an easement under the 1887 agreement, then brought this action to enjoin the defendants from erecting that building, or any building not providing for such a stairway. In the alternative, the court was asked to declare the rights of the parties and to adjudge that the plaintiff has the right to construct such a stairway.

Jones v. Wilterding

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BARNARD, P. J.

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