
    [L. A. No. 1877.
    In Bank.
    February 10, 1908.]
    ADELAIDE M. BANNING et al., Respondents, v. W. H. KREITER et. al., Appellants.
    Action to Becover Strip op Land Used as Alley-Way—License-Findings— Plea op Easement and Estoppel — Failure to Find — Beversible Error.— In an action to recover a strip of land which plaintiffs claimed has been used as an alley-way by mere revocable license, but in which the defendants claimed an easement, and supported the claim by a plea of estoppel resting upon the authorized representations of plaintiffs’ agents in selling the property abutting thereon to the defendants, where the court found for the plaintiffs, its failure to find upon the defendants’ plea of estoppel where there is substantial evidence to support it, is reversible error, justifying a new trial.
    Id.—Beservation of Alley-Way for Benefit of " Daughters—Authorized Bepresentation to Abutting Purchasers—Support op Estoppel. —Where a plaintiff as owner had reserved an alley-way for her daughters, and had authorized her husband to employ real estate agents to sell lots for her, who, with the husband’s consent, •sold lots abutting thereon, stating the reservation so made, and that the purchasers would have the benefit of that alley-way, and in consideration thereof paid an increased price therefor, the facts show an intended abandonment of the seller’s existing right in the alley-way, which will support an estoppel in favor of the purchasers of the abutting property relying thereon.
    
      Id.—Exception to General Bule as to Bepresentations Baisins an Estoppel. —When the statement relates to an intended abandonment of an existing right, and is made to influence others, and they have been influenced by it, the case is a recognized exception to the general rule that a representation to constitute an estoppel must relate to an existing fact and not to a matter of opinion, or promise of future performance; and so, when purchases are made upon representations by the seller that abutting property owned by him will be maintained as a public or private way for the benefit of the purchasers, there is an expression of an intended abandonment of a seller’s existing right which will support an estoppel, if the purchasers have relied upon it.
    APPEAL from an order of the Superior Court of Los Angeles County denying a new trial. Waldo M. York, Judge.
    The facts are stated in the opinion of the court.
    Works, Lee & Works, for Appellants.
    McNutt & Hannon, and George H. Smith, for Respondents.
   HENSHAW, J.

This is an action to recover possession of a tract of land in the city of Los Angeles. The controversy arises over a strip twelve and a half feet in width, extending north from Requena Street a distance of ninety-four feet. This strip had been used under a claim of right by defendants as an alley-way to their property, which abutted upon it. Defendants contended for an easement over the strip and for a right, so to use it as an alley-way. This right defendant Hanniman supports by a plea in estoppel, and this estoppel in turn arises from the declarations of the authorized agents of plaintiffs in selling the property. The court found for plaintiffs, but failed to find upon defendants’ plea in estoppel, and this error is here urged upon appeal from the order denying the motion for a new trial. The omission of the-court is prejudicial error, if there be any substantial evidence-to support the plea, and for a determination of this a consideration of the facts becomes necessary.

In 1881, Mrs. Banning, through her husband, William Banning, employed a firm of real estate agents to sell certain city lots for her. Mrs. Banning took no personal part in the matter, gave no instructions to the real estate agents, but intrusted the whole matter to her husband. She testifies that whatever he did, he did with authority. Mr. Banning is dead. Mrs. Banning testifies that, because of the fact that her daughters owned a lot lying to the rear of this twelve- and-a-half-foot strip, it was decided between herself and her husband to reserve this twelve-and-a-half-foot strip as a means of ingress and egress to the daughters’ land, but that the reservation was made wholly for her own purposes. One of the purchasers, Hanniman, testifies that he went to the real estate firm of Rowan & Dobinson, who were the agents for the sale of these lots, to purchase lots 76 and 77, each with a 25-foot frontage; that he was told by the real estate agents that the estate (Mrs. Banning) had reserved one half of lot 77 as an alley-way, and that by purchasing lot 76 and half of lot 77 he would have a frontage on this alley-way, better light for his building, etc., and that he would have the right to go in and out the alley. He then purchased the lot and the half lot, paying one hundred and fifty dollars extra, over and above the regular asking price, on account of the alleyway. Mrs. Banning has no recollection of receiving this extra price, and Mr. Dobinson of the real estate firm has no recollection of having exacted it, but nothing disputes the positive statement of Mr. Hanniman that it was exacted, and that he did so pay it.

The turning point of the matter, however, is to be found in the testimony of the selling agent and the interpretation which is to be given to that testimony. So far as it is pertinent to this matter, it is here quoted. He says that he drew the pencil line on the map marking off and reserving the disputed twelve and a half feet. The statement made' to Mr. Hanniman, with the map before them and the pencil mark showing the reservation, was “to the effect that the estate had decided to reserve the west half of that lot, in order to give an entrance in the rear of the property owned by the minors, and that therefore he would have the benefit of that alley. ... We had no conversation with Mrs. Banning at any time. All our business was done with Mr. Banning, whom we regarded as her agent. ... Of course, we, as agente, should not have dreamed of reserving any portion of the lots offered for sale without the consent of the owner, or whom we regarded as the owner. And the reservation was made, with Mr. Banning’s consent, of this twelve and a half feet for the purposes of an alley. . . . With reference to the reservation of this alley, the same representations were made (to other purchasers) exactly as in the case of Mr. Hanniman. ’ ’

It is settled that while, generally, a representation to raise an estoppel, where the negotiations have ended in a contract, must relate to an existing fact and not be a mere expression of opinion or a promise of future performance, a well recognized exception to the rule is presented where the statement relates to an intended abandonment of an existing right and is made to influence others, and they have been influenced by it (Union Mutual Life Ins. Co. v. Mowry, 96 U. S. 544) ; and "so, where purchases are made upon representations by the seller that abutting property owned by him will be maintained either as a public street or private way for the benefit of the purchaser, here is the expression of an intended abandonment of a seller’s existing right which will support an estoppel, if the purchaser has relied upon it. (Prescott v. Edwards, 117 Cal. 303, [59 Am. St. Rep. 186, 49 Pac. 178].)

Besides the facts above set forth, and besides the additional circumstance that during all these years the appellants have used this passage-way as an alley under what they conceived to be their right, there are further matters in evidence which, while not bearing directly upon the question of estoppel, have a significance as tending to show what was in the minds of the parties at the time of the contract. Thus, after the deed, it is in testimony that Mr. Banning congratulated one of the purchasers upon having made an advantageous bargain, since his lot fronted upon the alley. This, of course, is but a statement or representation made after the fact, but it is of value as showing what Mr. Banning’s conception of the matter was at the time, which conception he undoubtedly conveyed to his agents. Moreover, the city has treated this cul da sac as a public way and has levied no assessments upon it. Mrs. Banning, who testifies to her ignorance of many of these matters, is chargeable with this knowledge, and with the knowledge came the duty, if she regarded it as her private property, to see that it bore its share of the burden of taxation.

Coming to its ultimate analysis, the controversy resolves itself to this: What is the meaning of the language employed by the agent in dealing with the purchaser? By plaintiffs it is contended that the language meant no more than what Mrs. Banning testified was her understanding of the matter; that she designed to reserve this strip for her own purposes and for such a length of time as she saw fit, as a mode of ingress and egress to the property of her daughters in the rear; that the purchasers of her lots could, and did, use this property under license during such time as she chose to allow the alley-way to remain open, but their right to use it was under a mere license, revocable at the owner’s pleasure; that when Mr. Dobinson said, as above quoted, that the estate had decided to reserve the west half of the lot in order to give an entrance to the rear property owned by the minora, and that, therefore, the purchaser would have the benefit of the alley, his language meant no more than as above stated, namely, that Mrs. Banning was reserving for her own purposes a private way, and so long as she chose to reserve it the purchasers would have the benefit of it. Upon the other hand, what is the fair meaning of the language which the real estate agent testifies that he used, and what is the idea which would naturally be conveyed by it, It seems quite plain that it is not the construction for which respondent contends. If such had been its meaning one would expect that somewhere in the agent’s testimony there would have been at least a suggestion that he regarded the twelve and a half feet as a temporary private way of the seller, to be closed at her pleasure. Yet no intimation of this kind is anywhere found in his testimony. The natural interpretation of his language conveys the idea that because Mrs. Banning’s daughters owned property to the rear of this strip, she had decided to reserve the strip as an alley-way; that the reason which prompted her to this reservation was the fact that her daughters owned property in the rear, but that the effect of the reservation would be to give the purchasers of adjoining lots a perpetual easement over this open strip. Thus it is apparent that there is evidence, substantial and strong, to support the plea of estoppel, and it was, therefore, error for the court to fail to find upon it. This court is, of course, without ability to make a finding on the matter, and it follows, therefore, that the order appealed from must be reversed and the cause remanded for a new trial.

Angellotti, J., Shaw, J., Lorigan, J., McFarland, J., and Beatty, C. J., concurred.

Rehearing denied.  