Little v. Schwartz
Little v. Schwartz
Opinion of the Court
On December 5, 1949, a judgment in favor of plaintiff Little and against defendants Schwartz and Kellogg was entered in a quiet title action decreeing plaintiff to be the owner of a certain right of way passing over lands owned by defendants, and enjoining the latter from maintaining a lock on the gates thereto or interfering with plaintiff’s freo use of the same. Ten years later on May 20, 1959, defendant Schwartz moved the lower court to modify the injunctive portion of the judgment to permit him to lock the gates to the driveway on the basis of a change of circumstances which has resulted in considerable damage to his property over which the right of way passes; he does not seek to in any way interfere with plaintiff’s use of the road and is willing to install any kind of lock or dial satisfactory to plaintiff and provide him and those lawfully coming onto plaintiff’s property with keys thereto. The minute order is silent concerning the lower court's reason for denying the motion, but the record clearly shows the ground of denial to be a lack of power to modify the injunctive order. It was conceded by the trial judge that the evidence supported a sufficient change of circumstances to justify a modification of the order if the modification could lawfully be effected.
Plaintiff neither appeared at the hearing nor offered evidence in opposition to the motion, although his counsel was present. Defendant Schwartz’ rather lengthy evidence disclosed that since 1949 considerable damage had been done to his premises due to the open gates and resulting easy access to the driveway leading over his property to that of plaintiff. The record shows the original complaint was filed in 1948; it asked the court to quiet title in plaintiff to the right of way and enjoin defendants from interfering with his use of the
The trial court in the main proceeding found that plaintiff’s immediate predecessor in interest and plaintiff had been the owners by adverse possession of the strip of land constituting the right of way since October, 1938; and that in early 1944 defendant Schwartz had placed a lock on the entrance gate thereto preventing plaintiff’s use of the same as a driveway. Pursuant thereto, the judgment in question was entered December 5, 1949, decreeing plaintiff to be the owner of certain lands, together with the right of way in question; and enjoining and restraining defendants “from maintaining a lock or locks on said entrance gate or entrance way, or from preventing the plaintiff from using or enjoying said right of way or from in any manner interfering therewith or the free use thereof by the plaintiff, and the title to said right of way is hereby quieted in the plaintiff as the owner of said land and as appurtenant thereto. ’ ’
Although showing no physical change in the right of way itself or to plaintiff’s land, the evidence on the motion to modify discloses a change in the last 10 years relative to the nature of the locality surrounding defendant’s ranch, the number and kind of people now living in and around and traversing the immediate area and the effect of their activities on defendant’s property, and the use to which his ranch is now devoted. In 1949 “just a very few people” who owned ranches lived in the district, approximately a mile or two apart, and they, ranch owners themselves, did not trespass, hunt or dump garbage or junk on other ranch property; in addition, defendant used the ranch for week-end visits. During the war defendant raised turkeys on the premises and, during the last 10 years, sheep. Today, over 300 people are residents in subdivisions developed in the immediate vicinity
Defendant repeatedly testified that his only desire is to maintain a lock on the entrance and exit gates (which have always been in existence) to protect his property from further damage by the public; he in no manner wishes to prevent or interfere with plaintiff’s use of the driveway, and is willing, if allowed to lock the gates, to provide plaintiff with any type of lock or dial he wishes, and keys or any other means of opening the gates.
Our main concern is whether the lower court has the power to modify or change the kind of permanent preventive injunctive order incorporated in the instant quiet title judgment. Respondent has neither appeared in this appeal nor filed a brief; appellant’s position is predicated on the theory that any kind of permanent preventive injunction may be modified upon an adequate showing of a change of circumstances.
We are familiar with the rule laid down by the authorities cited by appellant—that the trial court has the inherent power to modify a permanent preventive injunction upon a showing that “there has been a change in the controlling facts upon which the injunction rested, or the law has been changed, modified or extended, or where the ends of justice would be served by modification” (Sontag Chain Stores Co. v. Superior Court, 18 Cal.2d 92, 95 [113 P.2d 689]); and
Although recognizing that “it is the long established policy of the law to . . . accord finality to judgments” (p. 94), the Supreme Court in 1941 in Sontag Chain Stores Co. v. Superior Court, supra, held that in the case of a permanent preventive injunction the decree “is in essence of an executory or continuing nature, creating no right but merely assuming to protect a right from unlawful and injurious interference. Such a decree,” the court continued, “it has uniformly been held, is always subject, upon a proper showing, to modification or dissolution by the court which rendered it. The court’s power in this respect is an inherent one. Its action is determined by the facts and circumstances of each particular case, with a view to administering justice between the litigants, and it has the power to modify or vacate its decree when the ends of justice will be thereby served” (pp. 94-95). The court there was concerned with a permanent injunction against peaceful picketing to obtain a closed shop, and the change of circumstances urged consisted of a subsequent Supreme Court decision declaring such picketing lawful. Although the court at that time referred to “a preventive injunction of the type here under review” (p. 94), we do not deem it a limitation to the subject matter there involved, but to the continuing nature of the order; however, the rule of the Sontag case has since been extended to other than labor eases and situations other than those created by a change in the law. The court in Bautista v. Jones, 25 Cal.2d 746 [155 P.2d 343], applied the rule of modification where “the relationship of the parties is altered in such a manner as to justify” the same (p. 754); and Woods v. Corsey, 89 Cal.App.2d 105 [200 P.2d 208], and Union Interchange, Inc. v. Savage, 52 Cal.2d 601 [342 P.2d 249] (the Supreme Court’s latest pronouncement on the subject) both involving nonunion matters, followed the rule of Sontag Chain Stores Co. v. Superior Court, 18 Cal.2d 92 [113 P.2d 689]. There appears to be no limit to the subject matter covered by a permanent preventive injunction of the type contemplated in the Sontag case, which the courts will modify upon a proper showing.
If this was the extent of the considerations involved in the matter before us, the rule of modification could well be applied to best serve the ends of justice and prevent further
Concededly, the right of way has not physically changed, nor has the plaintiff’s premises; gates have always been maintained across the right of way entrance; the restraint preventing defendant from locking them was neither necessary to the judgment quieting title nor essential to the creation of plaintiff’s title to the right of way, and created no right in plaintiff; but it did tend to make plaintiff’s use of the driveway easier and protect his right of use against interference from the defendant. Actually, no mention of a lock on the gates would not, one way or another, have affected the plaintiff’s title to the right of way or his right to use the same, inasmuch as defendants, under the judgment, were also re
The record shows without question a “change in the controlling facts upon which the injunction rested. ’ ’ (Sontag Chain Stores Co. v. Superior Court, 18 Cal.2d 92, 95 [113 P.2d 689]). At the time the original judgment was entered in 1949, there were few persons in the locality—those who lived there were also ranch owners, cognizant of the problem arising out of trespassing—there was no particular difficulty with keeping the public off of the premises; and the ranch was then used for sheep raising, which is an activity differing substantially from the raising of cattle.
The trial court, in denying defendant’s motion, referred to O’Banion v. Borba, 32 Cal.2d 145 [195 P.2d 10]. Although of interest in its discussion of various rules applicable to the right of a servient owner to maintain gates across an easement acquired by prescription, the ease actually involved not a modification of a restraining order, but a construction of the injunctive portion of the judgment declaring plaintiffs to be the owners of easements for roads across defendants’ land, acquired by prescription. The restraint in question debarred defendants from obstructing them. On a direct appeal from the judgment an issue was raised concerning whether the injunction was too broad and whether defendants should be permitted under the same to erect gates across the roads. Inasmuch as the issue was not timely raised, the question was not determined by the court, but it did suggest that any future interpretation allowing defendants to maintain and construct gates across the easements should be made in the light of the use for which the easement was acquired by plaintiffs, and the right of defendants to maintain a reasonable use of their land subject thereto.
For the foregoing reasons the order is reversed.
Wood, P. J., and Fourt, J., concurred.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.