Johnstone v. Bettencourt

California Court of Appeal Sep 13, 1961 No. Civ. 9966Published

Before: Peek

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Holding. The court held that a trial court may disregard a stipulation entered into under a mistake of fact and that parties may impliedly relocate an easement through mutual use and acquiescence. Additionally, the court held that plaintiffs waived their right to enforce restrictive covenants by acquiescing to similar violations by other property owners.

Issues

Whether the trial court abused its discretion by disregarding a stipulation entered into under a mistake of fact regarding the location of an easement.
Whether the parties' mutual use and acquiescence established the traveled road as the relocated easement.
Whether the plaintiffs waived their right to enforce restrictive covenants regarding the breakwater.

Disposition. affirmed

Quotations verified verbatim against the opinion

“it is within the discretion of the trial court to disregard a stipulation that has been entered into through inadvertence or mistake of fact.”

“If by mutual consent, either express or implied, the parties do substitute a new route or course, the existing rights are not affected by the change, but attach to the new location.”

“the court properly found that plaintiffs waived any right that they may have had to enforce said restriction when they acquiesced to similar constructions by other owners of land in the subdivision.”

PEEK, J.

Plaintiffs Lois M. and James A. Johnstone appeal from an adverse judgment in an action brought by them to quiet title in an easement, to enjoin obstructions of said easement and to abate a nuisance.

By their complaint, plaintiffs alleged that they were the owners of Lot 94 in a subdivision bordering Clear Lake, known as Lake Shore Park; that defendants George A. and Ethel Bettencourt were the owners of adjoining Lots 95, 96, and 97 in the same subdivision; that they (the plaintiffs) were also owners of a right-of-way of easement across defendants’ property, known as Yerba Santa Road and recorded on the official plat of the subdivision. Plaintiffs further alleged that the defendants, claiming an interest adverse to theirs in this easement, obstructed and interfered with plaintiffs’ use thereof and did so willfully and maliciously.

Plaintiffs’ second cause of action alleged that the various deeds to the lots in Lake Shore Park subdivision contain certain restrictive covenants, one of which prevents the construction of any dock, wharf, quay, pier or other permanent structure . . . extending into the waters of Clear Lake or any bay or inlet thereof”; that defendants had violated this restriction by constructing and maintaining a rock and cement

[540]

breakwater, which extends into the waters of Clear Lake near the common boundary line of plaintiffs’ and defendants’ property. Plaintiffs asked for damages and a mandatory court order to compel defendants to remove the obstructions on said easement and also to remove the breakwater.

Defendants’ answer admitted that plaintiffs were the owners of Lot 94 and the easement as alleged in the complaint, but denied generally the remaining allegations of plaintiffs’ first and second causes of action. As separate defenses, defendants alleged, among other things: that the construction of the breakwater was necessary to protect their property from erosion, and that the acquiescence of plaintiffs to similar violations by other property owners of the subdivision constituted a waiver to defendants’ violation.

At the outset of the trial, plaintiffs and defendants entered into a stipulation that each of the parties were the owners of certain lots; that said lots were subject to certain restrictions; and that each obtained an easement over the Yerba Santa Road as shown on the official map of said subdivision. Plaintiffs’ counsel then stated that when they filed their complaint they assumed that the existing road across defendants’ property was the easement shown of record, but that it now appeared that such was not the ease.

Johnstone v. Bettencourt

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PEEK, J.

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