Worcester v. Worcester

SHINN, P. J. The appeal was taken by Norma E. Worcester from a decree in an action for partition instituted by Benjamin F. Worcester. The parties were divorced in 1962 by a decree which awarded each of them a divorce from the other. Shortly thereafter Benjamin filed this action.

The parties owned four parcels of land in the northwest quarter of section 2, township 1 south, range 17 west, San Bernardino meridian, a mountainous area in Los Angeles County, commonly known as Topanga Canyon. One parcel was two acres located east of Old Topanga Canyon Road, one was four acres west of the road, in the southeast quarter, the third was the northwest quarter also known as lot 4, and the fourth was the southwest quarter, all in the northwest quarter of the section. The four parcels were owned in joint tenancy and were the subject of the partition action. According to the briefs Norma owned a small piece lying westerly of lot 4 but separated from lot 4 by about one acre which belonged to one Whitsen.

May 8, 1963, the parties were in court. Norma was represented by Attorney Green. A stipulation was entered into for allotment of several parcels to the respective parties. Although this stipulation was not carried out, it stated the manner in which the several parcels were subsequently allocated ; Benjamin was to get the two acres in the southeast quarter and lot 4, and Norma was to get the four acres and the southwest quarter.

The stipulation read in part: “The parties shall take such steps as may be necessary to provide a forty foot easement of access to the North forty—that is, Lot 4 being set over to the Plaintiff, and also an easement, which will be the same easement, which shall be for the benefit of the property owned by Mrs. Worcester or the children of the parties, which is next to the Whitsen property, just to the west of the north forty acres. This easement to be set apart shall be appurtenant to the north forty acres.” And the stipulation contained the following provision: “In the event this settlement and stipula[58]tion is not fully consummated, it shall all be null and void and without prejudice to the parties ’ rights in this action. ’ ’

The parties failed to agree upon a route for the easement and were again in court July 15, 1963. They entered into a stipulation, dictated by Mr. Green which provided for allocation of the parcels as previously agreed upon but made no mention of Norma’s desire, as expressed May 8th, that the easement be extended over lot 4 so as to provide access to her separately owned parcel. The stipulation read in part: “Furthermore, the parties recognizing that the north 40 acres set aside and awarded to plaintiff would be landlocked without the allocation of a right of way thereto, the parties stipulate and agree that the Court may appoint one referee to fix and determine the proper, most accessible and practical route or right of way over the property awarded and set over to defendant for the benefit of plaintiff, and the owners, grantors, successors and assigns of the north 40 acres, and in connection therewith—The Court : That easement will run from Old Topanga Road? Mr. Green: Yes.”