Southern Pacific Land Co. v. Kiggins

California Court of Appeal Nov 24, 1930 No. Docket No. 83.Published

Before: Marks

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Holding. The court held that a vendor under an executory contract of sale may recover damages from a third party who, with the vendee's permission, removes soil or fixtures from the property, as such removal constitutes waste against the vendor's interest in the freehold.

Issues

Whether a property owner out of possession can maintain an action for damages against a third party who removed materials from the land under authority from a vendee in possession.
Whether the removal of soil by a vendee or their licensee constitutes waste against the vendor's interest in the property.

Disposition. reversed

Quotations verified verbatim against the opinion

“If such a vendee cannot remove fixtures, certainly those entering upon the property under him and by his authority cannot remove large quantities of the soil itself.”

“It has been held that a vendee in possession of real property under an executory contract of sale cannot remove fixtures from the land thereby committing waste”

MARKS, Acting P. J.

Appellant was and is the owner of approximately 480 acres of land in San Bernardino County. On September 29, 1925, it entered into an executory contract for the sale of this land to Harold Kiggins, the son of E. E. Kiggins, one of the respondents. Two hundred and seventy dollars was paid in cash on account of the purchase price of the property, the balance of which was to be paid in deferred payments, the first falling due on September 29, 1926. The vendee was evidently let into possession of the property. The contract contained the following provision:

“Fourth. That until after all payments have been made as hereinbefore provided, Vendee will not, nor will he permit others to remove or destroy, in whole or in part, any improvements placed upon the said land, nor cut any wood or trees thereon, nor do any mining thereon, nor commit any strip or waste on the said premises; and that all trees and minerals upon said land shall, until after all payments have been made, be and remain the property of Vendor.”

On October 10, 1925, respondents executed the following instrument:

“Office, Main 3073 Residence Cor. 366.

“Henry G. Fenton Grading and General Contractor “Office and Yards, Dewey and Main Streets “San Diego, California,

“October 10, 1925.

“Mr. E. E. Kiggins, Oro Grande, California

“Dear Sir: Confirming verbal conversation with you this morning concerning the matter of obtaining material from

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land owned by you for the manufacture of road surfacing material for use on my contract with the State Highway Commission for the construction of road from Victorville to Hicks, California.

“It is my understanding that you grant to me the right to obtain such material as may be required for the work and for this right I am to pay you or your assigns the sum of one thousand dollars in instalments as follows: One third the amount with this letter, one third on or before December 10, 1925, and the remaining one third on or before January 10, 1926.

“The engineers for the State Highway Commission estimate that this contract will require 41,000 tons of road surfacing material, if, however,, more than this amount of road surfacing material is required for this contract or for other work which we may secure, it is my understanding that I may obtain such additional material upon payment to you of two and one-half cents per ton for all tonnage over and above 41,000' tons.

Southern Pacific Land Co. v. Kiggins

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