Question 1 . What kind of interest did Ponderosa Pines acquire by the deed recorded in August 1936? Who holds the fee interest to lot 25 today?

Question 2. Did Smithson grant an easement to Ponderosa Pines for use of the deeded property as rough for the 6th hole?

Question 3. What effect does paragraph 9 have on the effectiveness of the effectiveness of the fee interest?

Case Study Below:

Estates, Deeds and Restrictions

FIN 365 SUMMER 2020

In 1936, Ponderosa Pines owned a golf course, portions of which abutted lot 31, block 2, tract 4587, in the County of Orange. Angela Smithson owned lot 35, a wooded plateau of over 7 acres jutting south from Canyon Drive almost 800 feet into Ponderosa Pines' golf course.

Smithson had constructed a large mansion on lot 35 but was dissatisfied with the entrance to her property from Canyon Drive. Her entryway was steep, curving, and hazardous, and she wished to acquire a portion of the golf course to provide safer, more convenient access from Wavering Road.

In 1936 Ponderosa Pines was also dissatisfied in that Smithson's frontage on Wavering Road separated the fifth green of its golf course from its sixth tee, thereby making surface movement between these two points difficult.

Accordingly, Smithson and Ponderosa Pines entered into an arrangement for their mutual satisfaction. Ponderosa Pines conveyed to Smithson the strip of land between Wavering Road on the northeast and Ponderosa Pines' sixth fairway on the southwest. It is approximately fourfifths of an acre made up of portions of lots 23, 24, and 25.

Acquisition of the property would give Smithson the entranceway she desired. However, the property served as rough for Ponderosa Pines' sixth fairway, and misdirected golf balls fell on it every day. Ponderosa Pines inserted building restrictions in its deed of conveyance to Smithson to prevent interference with this use of the property for golfing purposes.

In her turn, Smithson agreed to convey to Ponderosa Pines a permanent easement and right of way for the construction, operation, and maintenance of a pedestrian tunnel under her portion of lot 25 adjoining Wavering Road, a tunnel which would link the fifth green of Ponderosa Pines' golf course with its sixth tee.

No money changed hands. Reciprocal conveyances were recorded on 28 August 1936, under which:

1) Smithson granted the tunnel easement to Ponderosa Pines,

2) Ponderosa Pines deeded the property to Smithson with the following building restrictions in Paragraph 9:

Restrictions 1 and 3 provide:

"Restrictions. 1. That said premises shall be used only in connection with the use of Lot 25 in Block 2 of said Tract No. 4587, for the purpose of erecting a gate lodge or other buildings or structures which shall make the use of said Lot 25 more convenient for residence purposes. That no such gate lodge, outbuildings or other structures shall be moved from any other place onto said premises, nor erected on said premises before a residence shall have been completed on said Lot 25, provided, however, that any structure herein permitted by these restrictions may be erected simultaneously with a residence to be erected on said Lot 25. Any structure constructed on said premises shall be located not nearer than twenty (20) feet from any boundary line of said premises, provided, however, that this restriction as to location of structures may be waived or modified by the architectural supervising committee hereinafter provided for.

Restrictions. 3. That no structure, except as hereinabove provided, shall ever be erected or allowed on said premises."

The deed provides in paragraph 9 that its restrictions constitute express conditions subsequent, breach of which gives rise to a right of reverter in the grantor, and in paragraph 11 that the restrictions continue in effect until 30 November 1998.

In November 1949, Hyatt purchased the entire Smithson property and mansion, including the deeded property, and in March 1959, Hyatt transferred a remainder interest in the property to Newsom Properties.