Karl v. JeBien

DRAPER, P. J.

In this action for declaratory relief, plaintiff had judgment declaring her right to delivery, from an escrow holder, of deed granting her an easement over lands of defendants. The latter appeal.

Plaintiff owns land which does not abut upon a public roadway. Defendants’ parcel intervenes between her land and the road. Plaintiff claimed a right of way over this parcel by virtue of a 1946 deed from defendants’ predecessor. In early 1959, defendants questioned this claim and negotiations began. Por defendants, they were conducted by their attorney

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and Mr. JeBien, and for the plaintiff by her authorized attorney. In August 1959, the negotiators orally agreed that the JeBiens would deliver a grant of easement upon plaintiff’s payment of $500, the transaction being conditioned upon plaintiff’s acquiring an easement over the Yegen parcel, which lay between the lands of plaintiff and defendants. In December, Mr. and Mrs. JeBien executed deed granting the easement to plaintiff, and delivered it to their attorney. The latter promptly took the deed to plaintiff’s counsel, but the transaction was not completed, in part because plaintiff was reluctant to proceed before acquiring a deed from Yegen and in part because the check which plaintiff’s attorney held for delivery to defendants was dated a number of months earlier, and was not acceptable to defendants’ counsel.

A short time later, Mr. JeBien raised a question as to the width of the easement to be granted, and instructed his attorney not to deliver the deed. Simultaneously, plaintiff’s attorney commenced draft of a complaint for slander of title, based upon a document which JeBien had recorded. During this period, three owners of land near plaintiff’s, Bing, Jamieson, and Johnston, became concerned about their own rights of way, and thereafter plaintiff’s counsel also represented them. Je-Bien also had become concerned as to whether grant of the easement would bar his subdividing his 3-acre parcel into three residential sites, in view of the San Mateo County zoning restrictions requiring 1-aere building sites.

May 25, 1960, a written agreement was executed by Mr. JeBien “for himself and as the duly authorized agent of his wife,” and plaintiff’s counsel, as agent for Bing, Jamieson, Johnston and plaintiff. It provided that “in consideration of the settlement of all disputes between the parties hereto and in consideration of the granting by the JeBiens of certain easements to the other parties hereto, ’ ’ JeBien would pay the “application fee to the San Mateo Planning Commission” and half the cost of moving the fence along the easement, with “the remaining parties” to pay the balance of that cost. The next day, Mr. JeBien deposited in escrow the deed to plaintiff which he and his wife had executed December 8, together with a like deed of easement to Bing, et al., and signed instructions directing their delivery to the grantees upon submission of proof that “the San Mateo County Planning Commission has granted a variance to JeBien on the subject property which permits three building sites.” The following day, Mr. and Mrs. JeBien signed an instruction cancelling those of May 26,