Pettis v. General Telephone Co.

BURKE, J. Plaintiff landowner appeals from a summary judgment in favor of defendants General Telephone Company and Southern California Gas Company on his fifth amended complaint to quiet title, for an injunction to compel removal of underground utility lines, and for damages for trespass. As will appear, we have concluded that upon the record presented the summary judgment was erroneously granted and should be reversed.

Plaintiff brought this action against his grantors, called the Bloom group, as well as against the two utility companies. In his complaint he alleges that the Bloom group sold and conveyed the property to him in 1959 for $28,500; that at some previous time the utility companies had constructed underground lines across the property and were now claiming subsurface land rights as well as the right of access from the surface of the property in order to maintain their buried lines; that the public records had not disclosed the claims of the utility companies, and that plaintiff had acquired the property without notice or knowledge of their claims. The utility companies successfully moved for summary judgment under section 437c of the Code of Civil Procedure, on the ground that the action was without merit as to them, and this appeal by plaintiff followed.

The matter to be determined by the trial court on such a motion is whether facts have been presented which give rise to a triable factual issue. The court may not pass upon the issue itself. Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show facts sufficient to present a triable issue of fact. The affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts. (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785], and cases there cited.)

So construing the affidavits with all intendments in favor of the party opposing the motion—here, plaintiff—it appears that during construction of the Santa Ana Freeway in 1953 the State of California requested the two defendant companies to reroute their existing facilities in the construction [506]area, and defendants did so pursuant to “Utility Encroachment Permits ’ ’ which authorized them to bury their transmission lines under real property owned by the state. (Sts. & Hy. Code, § 670 et seq.) In 1957 the state sold as excess and conveyed by grant deed to plaintiff’s grantors, the Bloom group, a portion of the property containing the buried utility lines, and in 1959 the Bloom group in turn sold and conveyed the property to plaintiff.