Cummins v. Levy

California Court of Appeal Mar 11, 1953 No. Civ. 19133Published

Before: McCOMB

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Holding. The court held that the trial court's findings were supported by sufficient evidence, affirming that the defendants' removal of soil was authorized by the contract and that the plaintiff breached the agreement by failing to provide utilities.

Issues

Whether the trial court's findings were supported by the evidence.
Whether the plaintiff was entitled to reformation of the contract.
Whether the defendants' removal of soil from the plaintiff's property was authorized by the contract.
Whether the width of the easement was properly determined by the trial court.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The trial judge denied plaintiff any relief for alleged damages to her property, and awarded defendants damages for breach of provisions of the contract by plaintiff.”

“The law is well settled that where an easement of way is located by a grant which does not define its width, the width is to be that which is suitable and convenient for the ordinary uses of free passage.”

“It is elementary that appellants cannot assert that a written agreement does not represent the true intent of the parties and in the same breath object to respondents’ explanation of that intent.”

McCOMB, J.

From a judgment in favor of defendants after trial before the court without a jury in an action to obtain (1) an injunction to restrain certain use of real property; (2) damages for trespass; and (3) reformation of a written instrument, plaintiff appeals.

Facts: Plaintiff was the owner of a large unimproved parcel of hilly property on Tower Grove Drive in the city of Los Angeles, a portion of which she wanted to sell. Defendants, interested in buying a lot upon which to build a home, inspected the property and discussed its desirability with plaintiff. Mrs. Levy expressed the wish to have a level lot without expensive retaining walls. Plaintiff assured her this could and would be accomplished, and that the dirt on the plot proposed to be sold to defendants could be rolled and the entire lot leveled.

Thereafter the parties entered into a contract whereby a portion of the property was sold to defendants. By the terms of this agreement defendants were granted an easement over and across the portion retained by plaintiff. The agreement further provided that plaintiff would “cause to have the following named utilities, to wit: Gas, water, electricity, telephone line and sanitary sewer brought to the property line of said Parcel 1 and to pay the cost of same and to immediately

[612]

upon the signing of this agreement make application to the proper authorities for that purpose and to use her best efforts to cause the completion thereof. ... To permit said Levys to remove from Parcel 2 as above-mentioned or other portions of said Lot 1 as much dirt, soil or other natural material as the architect employed by said Levys may direct. It being-understood that no charge will be made for said dirt, soil or other natural material, but said Levys will pay the cost of removing same. ... To pay one-half of the cost of creating and paving a road over said Parcel 2 to permit ingress and egress from Tower Grove Drive to said Parcel 1 and to that portion of said Lot 1 upon which said Adeline M. Cummins shall erect a building for residential purposes.”

This written agreement was signed by both plaintiff and defendants. Thereupon defendants employed Mr. Schutt as their architect and he directed that certain dirt and soil be removed from portions of the property including portions of the parcel still owned by plaintiff. After the commencement of the removal of the dirt as directed by Mr. Schutt plaintiff told defendants to stop the work and obtained a temporary injunction from the court preventing them from proceeding.

Cummins v. Levy

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THE COURT.

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