Wooster v. Dept. of Fish and Game

Cal. Court of Appeal, 3rd Appellate Dist., No. C068816, November 26, 2012: Validates conservation easement hunting ban despite failure to post land.

This decision is marked “Not to Be Published”, meaning it is not generally citable as precedent. See comment below.

Plaintiff/appellant Wooster’s 4,535 acre property is subject to a conservation easement deed and agreement held by the Department of Fish and Game, granted by prior owners. The easement granted the Department “full hunting rights” on the land. Among many “conditions” listed in the easement, the Department was required to “post the property at all points of entry to inform the public that said property is a State wildlife area and that no trespassing or hunting is allowed.” The Department did not keep the property posted. Wooster sought to remove the easement by making three arguments.

Condition Subsequent:  Wooster claimed that the posting requirement was a “condition subsequent” – meaning that because the Department failed to comply with the condition after the easement was granted, the Department must forfeit the easement. The Court cited prior California cases as holding that in general the law will try to interpret an instrument so as not to destroy or extinguish “estates”, including but not limited to easements. Thus, “no provision in a deed relied on to create a condition subsequent will be so interpreted if the language of the provision will bear any other reasonable construction. While no precise form of words is necessary to create a condition subsequent, still it must be created by express terms or by clear implication.” (Citing Hawley v. Kafitz (1905) 148 Cal. 393, 394).

The Court noted that other provisions listed in this easement as “conditions” “cannot be reasonably interpreted as conditions subsequent”, and concluded that merely listing this requirement as a condition did not make it a condition subsequent.  The Court found no other indications in the document to support Wooster’s contention. Wooster also tried to argue that  ”[t]he law provides that a condition subsequent is created in situations, such as here, where damages from breach are difficult or impossible to establish.” The Court responded that in this case, the direct damages resulting from the Department’s failure (the cost of posting signs) would not be difficult to determine, and that Wooster identified “no authority supporting his contention that the difficulty in proving consequential damages supports construing language in a deed as a condition subsequent” [emphasis added].

Rescission for Breach of a Covenant:  Wooster’s second argument was that even if this condition didn’t rise to the level of a condition subsequent, the easement should be rescinded because the Department breached a covenant that was “consideration” for the easement. The Court rebuffed this by citing California precedent that a deed without fraud in its inception conveys title and is not void for any failure of consideration, either in whole or in part, regardless of whether the consideration was an oral promise or a written promise contained in a recorded deed. The reason for this, the Court explained, is that otherwise there would be constant uncertainty about the validity of titles, because a title search could never reveal whether a particular promise that served as consideration for the conveyance, whether written or oral, had or had not been fulfilled.

Authority to Accept Grant of Hunting Rights: Wooster’s third claim was that the easement was void “from the outset” and should be rescinded because the Department was “not authorized to accept a grant of `full hunting rights’” as such a grant was inconsistent with public policy about hunting and the purposes of a conservation easement.

The Court rejected Wooster’s attempt to “cobble together a public policy in favor of hunting” and concluded  that California’s “Fish and Game Code section 1801 supports, rather than forbids, the creation of areas where wildlife can be safe from depredation by hunters.”  The Court then rejected Wooster’s argument that accepting a grant of hunting rights is contrary to the purposes for which the Department can acquire property under the California Wildlife Conservation Law of 1947 (Fish & G. Code, § 1300 et seq.) (the 1947 law). The Court wrote, “What Wooster’s argument ignores is the self-evident fact that creating pockets of land in which wildlife can be safe from hunting actually does serve to increase the recreational use of wildlife, including as objects of the sport of hunting.”

Wooster next argument was that because the California Civil Code makes him the owner of wildlife while it is on his property, the Department should not be able to acquire the right to hunt wildlife on his property. The Court responded that the “agreed-upon ban” in the easement doesn’t take away ownership but merely says that no one can lawfully hunt the animals.

Lastly Wooster claimed that the easement must be appurtenant to and benefit other property to be enforceable against him. In essence, the Court said, he argued that “the extinguishment of hunting rights has no place in a conservation easement”. Citing the California conservation easement statute’s (Civ. Code, § 815.1) purpose ” to retain land predominantly in its natural, scenic, historical, agricultural, forested, or open-space condition” the Court held that “using a conservation easement to ban hunting most certainly does help retain land in this sort of unspoiled condition. As such, a hunting ban is unquestionably a legitimate aspect and aim of a conservation easement.”

Decision available at http://www.courts.ca.gov/opinions/nonpub/C068816.PDF.

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