THE COURT. After further consideration of this case we find ourselves in accord with the opinion of the District Court of Appeal, Third Appellate District, rendered when the case was before that court. We therefore adopt said opinion, prepared by Justice pro tem. Steel, as the opinion of this court. It reads as follows:
“Defendants Franklin Wolf and Yosemite Theatre Company appeal from a declaratory judgment in favor of plaintiffs, decreeing that plaintiffs, as servient owners, may terminate a stairway easement by voluntarily removing or destroying the servient tenement.
“The appellant, Franklin Wolf, and the respondents, Rothschild, ar.e owners of adjoining premises fronting on Main Street in the city of Stockton, the appellant Wolf owning lot 7 and the respondents the easterly 32.29 feet of lot 5 in block 14, east of Center street in said city.
“In 1905, Andrew Wolf, now deceased, father of appellant Franklin Wolf, owned the premises here involved, together with other adjoining lots in said block and during that year erected a two-story brick structure known as the Wolf building upon said premises. In that portion of the structure now owned by respondents a stairway was built extending from the Main street sidewalk to the hallway ofiVthe second floor thereof, the hallway running parallel with Main street for the entire length of the structure. Various rooms and offices were maintained for occupancy by tenants on this second floor and the only entrance thereto from Main street was by the aforesaid stairway.
“In 1911 Andrew Wolf died, leaving a will wherein he devised lot 5 to his daughter Delia Wolf Meiggs and lot 7 to certain of his grandchildren: The remainder of his estate was left to various legatees and devisees. In his will deceased expressed the wish that his devisees preserve the stairways [19]and that they be kept and used for the benefit of said buildings on Main street. The other stairway referred to extends from the California street side of the property and connects with the hallway above referred to.
“During the probate proceedings dissatisfaction with the provisions of the will arose among the heirs and beneficiaries which resulted in their entering into a written agreement which provided, among other matters not material here, that lot 5, being the property now owned by respondents, should be distributed to said Delia Wolf Meiggs, predecessor in title to respondents, and lot 7 to Franklin Wolf, the appellant herein.
“By the terms of the agreement it was stipulated and agreed:
‘ ‘ ‘ That the stairway on Main Street now used for the purpose of ingress and egress to and from the properties mentioned in this Agreement, and fronting on Main Street of Stockton, California, shall be kept and maintained as a stairway for the use of all the property hereinbefore mentioned, fronting on Main Street of said City of Stockton, so long as the lot on which said stairway is now built, is occupied by the building now on said lot, of which said stairway forms a part. ’
“In due course the estate was closed and distributed in accordance with the terms of this agreement, the decree adopting the language of the agreement in so far as its provisions relate to the stairway here in issue. The sole issue, therefore, is a determination of the rights of the parties hereto under this agreement as incorporated in the decree of distribution. Trial was had before the court sitting without a jury.
‘ ‘ Considerable evidence was introduced as to whether or not the structure built upon the two lots in question comprised one building or two separate buildings. This evidence was directed principally to the nature of the construction of the building, the partition wall, fire wall, and the general physical conditions and facts relating thereto, it being one of the contentions of appellants that the structure is but one building originally built and owned by one person and that an easement by implication arose when the property was devised into two or more ownerships upon the death of Andrew Wolf. The trial court found that the improvements did not constitute a single building, but that the portion thereof on lot 7 and the por[20]tion thereof on lot 5 constituted separate and distinct buildings. This finding appears to be supported by the record. We do not, however, consider this question of vital importance for the heirs and beneficiaries subsequently partitioned the property among themselves upon a basis entirely different from the provisions of the will, and expressly agreed as to the right and use of the stairway and the duration of such right. The decree of distribution makes no attempt to construe the will in this regard, but does adopt the terms and provisions of the agreement and therefore the easement implications, if iany, arising by virtue of the will, cannot now be resorted to^for the reason that the decree is final and excludes any implied covenants upon this subject. (Civ. Code, sec. 1656.) The trial court found in substance and effect that a stairway easement existed, and in this we concur. However, the court further found upon evidence introduced over the objection of appellants, and submitted upon the question of depreciation because of obsolescence, that such depreciation and obsolescence had not so far progressed as to be the equivalent of the destruction of the building, but had so far progressed as to make it economically advantageous to plaintiffs, as owners of the premises, to destroy the present improvements thereon and, in lieu thereof, to erect a new building.
“The fact that it may be economically advantageous for the owner of a building, burdened with a stairway easement in favor of an adjoining property, to voluntarily destroy it and thus terminate such easement, is, in our opinion, immaterial and not in accord with the weight o£ authority applicable to such servitudes.
“In this respect, however, we do not wish to be understood as intimating that depreciation or obsolescence of a building may not in the course of time so far progress as to impair property rights in the further maintenance thereof even though not to the extent of being the equivalent of destruction of such building. In the instant case no claim is made that the property is being operated at a loss, but to the contrary the evidence discloses a fair net return to respondents on their investment.
“While there are very few cases relating to destruction of servient tenements involving stairway easements, the doctrine appears to be generally established that a grant of [21]the right to use a hall or stairway of a building gives no interest in the soil which will survive, the destruction of the building. (Cohen v. Adolph Kutner Co., 177 Cal. 592 [171 Pac. 424, L. R. A. 1918 D, 410]; Muzio v. Erickson, 41 Cal. App. 413 [182 Pac. 974].)
“In the case last cited, the principal question before the court was whether stairway rights survived the destruction of the building by fire and therein it was held that the right to use the stairway terminated with the destruction of the building without the fault of the owner thereof. In this connection the court states:
“ ‘It is the established doctrine that where a mere right to use a part of a building is granted, no proprietary interest in the land is conveyed. Upon this principle it has been held that a grant of the right to use the stairway of a building gives no interest in the soil which will survive the destruction of the building, and the right ceases whenever the building is destroyed without the fault of the owner of the servient tenement, and the owner of the right to use the stairway will not acquire any right in any new building which may be erected in the place of the one destroyed. An easement, in the true sense of the word, is an interest in real estate, and survives the destruction of a part of the servient tenement when there is anything remaining upon which the easement may operate. But a right in the nature of “an easement in a building,” as it is sometimes called, is extinguished by the destruction of the building, or the part thereof upon which the easement is imposed, so that there is nothing upon which it can operate. (Cohen v. Kutner Co., 177 Cal. 592, L. R. A. 1918D, 410, 171 Pac. 424; Brechet v. Johnson Hardware Co., 139 Minn. 436, L. R. A. 1918D, 691, 166 N. W. 1070; Shirley v. Crabb, 138 Ind. 200, 46 Am. St. Rep. 376, 37 N. E. 130; 14 Cyc. 1194.)’ (Italics added.)
“Respondents contend that the rule laid down in the two California cases above cited is dictum in so far as it applies to the instant case, in that the destruction of the buildings was involuntary in both cases. Irrespective of the construction placed upon such language with reference to destruction of the buildings without fault of the owner, the court was, in both cases, engaged in a consideration of the law applicable to the destruction of stairway easements, and in our opinion fully stated the rule in that regard. The authorities in other [22]jurisdictions appear to be in harmony with this principle; thus in Brechet v. Johnson Hardware Co., 139 Minn. 436, L. R. A. 1918D, at page 693, cited in Muzio v. Erickson, supra, it is stated:
“ ‘Where an easement has been granted for a particular purpose in connection with a particular building, it is extinguished by a destruction of that building. So a grant of the right to use the hall or stairway of a certain building gives no interest in the soil which will survive a destruction of the building, and the right ceases whenever the building is destroyed without the fault of the owner of the servient estate, and the owner of the easement will not acquire any right in any new building which may be erected in the place of the one destroyed.’ (Italics added.)
“Respondents cite the case of Union National Bank v. Nesmith, [238 Mass. 247] 130 N. E. 251, wherein the majority of the court held that such an easement is also lost when the building is destroyed by the intentional act of the owner of the servient estate. Such apparently is the rule in Massachusetts, although we find no other authority supporting such contrary doctrine in any of the other jurisdictions.
“It is further argued by respondents that the servitude in the^instant case is in the nature of a license to use the stairway as distinguished from an easement which is an interest in land, and therefore revocable at the will of the servient owner. The covenant in the agreement creating the servitude is reasonably definite and certain. The authorities uniformly hold that such a grant of the use of a stairway constitutes an easement and does not necessarily attach to the underlying soil. In both the Cohen case, supra, and the Muzio case, supra, the court held that such use does not survive destruction of the building, although the covenant creating the right provided in one case that the right shall be ‘forever’ and in the other case ‘perpetual’.”
Since the rendition of said opinion by the District Court of Appeal, Franklin Wolf, one of the original appellants, has died, and by an order of this court, the American Trust Company as the executor of his last will and testament has been substituted in his place and stead as one of the appellants herein.
We therefore conclude that the decree herein should be and it is modified to provide that respondents may not destroy the easement for the use of the stairway without the [23]consent of the appellants and that without such consent the easement shall continue until the building on lot five is destroyed or the easement becomes inoperative without the fault of the respondents.
As so modified the judgment is affirmed, appellants to recover their costs.