Walsh v. MacAire

SHINN, P. J.

Plaintiffs brought this action for specific performance of an agreement to purchase from defendants a parcel of land 400 feet by 525 feet in the city of Los Angeles in a community known as Tujunga. Although plaintiffs have spent $12,800 building a house and otherwise improving the property to which they have no title, and are in much need of performance by defendants, they have appealed from a judgment in their favor decreeing specific performance, contending that they were granted inadequate relief. Most of their contentions are untenable. The serious question is whether the court failed to make findings on all material issues and should have considered and determined the question of plaintiffs’ damage with respect to a certain feature of the agreement as to which specific performance could not be decreed.

The land in question is on a brush-covered hogback bordering on Haines Canyon and is not served by any public utility. There is what is known as a fire road extending from a public road in Haines Canyon to and beyond the property in question. From Haines Canyon Avenue the road leads across some privately owned land, government land in the Angeles National Forest and other land of the defendants. It is used by federal, state and county agencies in fire prevention and other protective work. So far as shown the right of these agencies to use the road is no more than a reserved easement.

The agreement was in the form of escrow instructions executed by the parties. They contained the following: “Buyer and seller agree to furnish the metes and bounds description of the road which is to be used as a means of agress [sic] and

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ingress for the Buyer, and you are to draw at the close of your escrow a separate agreement using this description which is to be signed by both buyer and seller, and remain in effect as long as buyers, their heirs or assigns, shall use above described property.

“You are further instructed and authorized, without any liability or responsibility on your part whatsoever, to draw, at the close of your escrow, an agreement as between the buyer and seller as to the use of and right in an adequate supply of water which is to be furnished by seller from sellers property, until water is available from public utilities. ’ ’