Eutenier v. Kluge

Filed 10/11/06 Eutenier v. Kluge CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

California’s doctrine of riparian rights “confers upon the owner of land contiguous to a watercourse the right to the reasonable and beneficial use of water on his land.” (People v. Shirokow (1980) 26 Cal.3d 301, 307.) “The theory of riparian rights is that the right to use of water belongs to all the abutting or riparian owners in a sort of common ownership.” (12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 931, pp. 1125-1126.)

A long-running dispute between plaintiff Eutenier and defendant Kluge concerns the issue of whether a grant of property from Kluge’s mother in 1960 was subject to a reservation of the riparian rights. The trial court concluded that Kluge had not established that riparian rights had been reserved when his mother conveyed the parcel. We agree with that conclusion and affirm.

BACKGROUND

From 1974 to 1978, the parties were in business together in a partnership called K & E Vineyards. The breakdown of that partnership and its aftermath has generated litigation that began in 1978 and continues to this day. Not all of that history is germane to resolving this appeal. What is relevant may be summarized as follows:

The first litigation was filed in 1978, being action no. 15345. It was filed by Kluge and his mother and sought to dissolve the partnership, which appears to have been a business operated by Kluge and Eutenier on property owned by Mrs. Kluge. More specifically, the Kluges provided the land and water, while Eutenier provided the vines. The partnership was ordered dissolved, following which Eutenier bought all the partnership’s assets at a partition sale in 1986. He believed the property had a water supply from a well on Kluge land, but he discovered the well was in fact only an outlet for water pumped across Kluge land from the nearby Adobe Creek Reservoir.

Meanwhile, the order dissolving the partnership led to the next stage of the proceedings, where the parties began disputing water rights. And to the decision in 1982, when the trial court in a second interlocutory judgment decreed that the partnership property subsequently acquired by Eutenier had an easement across the Kluges’ property for transportation of water from a well located on the Kluges’ property.

In 1988 Eutenier filed the within action no. 23757, in which he sought declaratory relief as to his and the Kluges’ respective water rights, and an injunction to enforce any declaratory relief he secured. Kluge responded with a cross-complaint seeking the same forms of equitable relief in his favor, as well as damages to compensate for the water Eutenier had allegedly misappropriated. In addition, Kluge asked that, in accordance with Water Code sections 2000 and 2001, “the issue of the use of the waters . . . and other related issues” be “referred to the State Water Resources Board.” The court decided to try the declaratory relief issues first.

In 1989, the trial court filed a detailed intended decision. In it, the court ruled that Eutenier and Kluge were both entitled to share, in an “equitable manner,” equal rights to the water from the well on the Kluge property. The court also corrected a matter from the second interlocutory judgment, and explained why further proceedings would be required:

“The evidence received in the trial demonstrates that there was a misperception of the nature of well ‘A’ at the trial of the original action in which the Second Interlocutory Judgment was entered. In the earlier action, well ‘A’ was regarded to be a conventional water well by which ground water, seeping into the well, was drawn out of the ground by a pump. The fact is that, at the time of the original action, and at all times since, well ‘A’ was not a conventional well but was rather a sump, into which water from Adobe Lake was drawn, and from which the waters of Adobe Lake were pumped into irrigation lines serving the servient and dominant tenements. Thus, well ‘A’ has always been nothing more than a conduit for the extraction of the waters of Adobe Lake. As the level and location of the waters of Adobe Lake change from time to time, it has been--and will be--necessary to change, lengthen and otherwise improve the intake facility for well ‘A’ from time to time in order to continue the appropriation of water through well ‘A.’

“What the Second Interlocutory Judgment should have done was to declare the parties . . . to be co-appropriators of the waters of Adobe Lake, at the point of appropriation designated therein as ‘Well “A” ‘, for the beneficial use to both the servient and dominant tenement[s] . . . . The rights of the parties to this action, with respect to their common appropriation of the waters of ‘Well “A” ‘ are of equal dignity and duration and the place of use, purpose of use and point of appropriation of those waters have been common to the parties throughout the period of that appropriation [i.e., the partnership].”

The court concluded its intended decision by specifying the next issue to be resolved, and combining it with a suggestion to the parties: “In the next phase of this litigation, the court will be asked to further define the ‘equitable manner’ in which the parties will share the common use of the easement facilities and how there should be allocated between them the costs of operating, servicing and replacing those facilities. They have had great difficulty dealing with these questions themselves and if they conclude that it would be impossible for them to agree upon a manner in which they can equitably share the benefits and burdens of common use, they may want to give consideration to a plan for creating separate facilities to meet their respective needs.”

In late 1992, the court started the part of the trial devoted to determining the “equitable” distribution as between the parties. At the end of March, 1993, the trial court made an order deferring further proceedings “until after a determination by the [State] Water Resources Control Board of the parties’ pending applications for permits to appropriate water from Adobe Creek.”[1]

The complete proceedings before the State Water Resources Board are not themselves in the record, but it was not until November 1997, that the State Board reached a final decision.[2] Five more years passed before matters began moving towards a final judicial resolution. In November 2002, Kluge amended his cross-complaint for declaratory relief, alleging for the first time that he enjoyed riparian rights to a 14.88-acre parcel of property conveyed by his mother--who was no longer alive--to the Lake County Flood Control and Water Conservation District (District) in 1960. The western border of the parcel adjoined what was Adobe Creek and would become Adobe Creek Reservoir; to the east is the land-locked parcel Kluge currently owns.[3]

The evidentiary phase of the latest part of the trial took place over two days in May and June 2003. After hearing testimony from a number of witnesses, and considering a number of exhibits, the trial court filed a detailed statement of decision. The court addressed a number of issues, but only the discussion of Mr. Kluge’s riparian rights claim is contested on this appeal. The pertinent portions of the trial court’s conclusions in this regard are as follows:

“Riparian land must be contiguous to a watercourse and only the smallest contiguous tract held under a single title retains riparian rights [citations]. To have a present riparian status some portion of the tract must be contiguous to the watercourse, or the tract must have been part of an entire tract that originally so bordered the stream and in which riparian rights have been retained [citation]. There is an exception to the requirement of contiguity where a riparian tract has been divided and the divided portion of the original riparian tract that is no longer contiguous to the stream has retained riparian rights by agreement, conveyance or decree [citation]. In determining the consequence of a conveyance of a part of a riparian parcel so that the retained portion is no longer contiguous to the stream, the overriding principle is the intention of the parties to the conveyance, as determined by its language and parol evidence (Murphy Slough Assn. v. Avila (1972) 27 Cal.App.3d 649, 657-658 [(Murphy Slough)]; [citation]). By this process, it is permissible to conclude that a conventional grant deed of a fee interest was actually intended by the parties to be a grant of a right of way rather than a fee interest and, as such, operated neither to convey a riparian interest to the grantee nor sever the riparian rights from the grantor’s remaining land rendered non-contiguous to the stream by the operation of the deed [citations].

“The language of the conveyance by which Anna Kluge conveyed to the Lake County Flood Control and Water Conservation District an interest in 14.88 acres is that of a traditional grant deed in the form prescribed by Civil Code section 1092 and is presumed to pass a fee simple title to the 14.88 acres (Civ. [Code] § 1105). This is a presumption which, according to the Murphy case, cited supra, can be overcome by parol evidence, but, where the owner of land conveys it by a deed purporting to convey it fully and without reservations, rights should be held to be reserved in the grantor by implication only where the circumstances very clearly indicate that the grantee knew or should have known that such was the real intention of the grantor (Holmes v. Nay (1921) 186 Cal. 231, 237-238).

“In considering whether the presumption has been overcome, the following considerations have been taken in to account:

“At the same time that Anna Kluge executed the grant deed to the district, she executed a grant of easement [citation] conveying to the district certain rights to a 10.76 acre parcel which she retained. Since the parties were familiar with the form and effect of a grant of easement, it is reasonable to infer that they would have employed that form had they intended that the conveyance of the 14.88 acre parcel should serve only as a grant of easement.

“Although Kluge argues that, since the 14.88 acre parcel was conveyed to the district for flood control purposes, the district had no interest in riparian rights and never intended to administer or furnish water to anyone or use water for irrigation; its only purpose was flood control. This contention does not take account of the district’s purpose expressed in the grant of easement: the temporary detention and permanent storage of water to be impounded by a dam. Other evidence . . . demonstrates that the dam and reservoir maintained by the district serve purposes of flood control, downstream irrigation appropriation, recreation and fish and wildlife resource protection. All of these purposes are inferred to have been contemplated by the district at the time of the two conveyances. With these purposes in mind, it cannot be concluded that the district had no interest in the conservation and use of the impounded water at the time that it received the conveyance from Anna Kluge that would facilitate the impoundment.

“The presumption arising from the form of the grant of the 14.88 acres is not overcome.

“The suggestion that circumstances surrounding the situation of Anna Kluge at the time of execution of the grant deed give rise to the implication of a reservation of riparian rights has been considered in the light of those circumstances.

“Although Kluge’s memorandum on Proof of Riparian Rights, etc. . . . states that Charles Kluge would testify that parcel 7-022-20 [the parcel Kluge retained and currently owns] was being irrigated from Adobe Creek at the time of the conveyance of parcel 7-022-17 [the 14.88 acre parcel] to the district, the perception of the testimony actually given by Kluge at the trial does not coincide with that projection.

“Kluge also contends that Anna Kluge was induced to execute the grant deed by representations made to her by a member of the district’s governing board and its executive that she would retain her riparian rights after the grant. The evidence on that contention seems to be that the two officials ‘said we could sell the property to the county and keep the water rights.’ Reliance upon that evidence is withheld because of its self-serving nature and the apparent impossibility of disproving it. Furthermore, in view of the comprehensive conveyancing that was used in granting title to the 14.88 acre parcel and easement rights in the 10.76 acre parcel and the importance to the grantor of a retained riparian right for [the 14.88 acre parcel], it is inferred that such a right would have been expressed in the conveyancing had both parties intended that it be recognized.

“The contention that a reserved riparian right for that parcel arose either through implication either through implication or parol agreement is not supported by a preponderance of the evidence.”

Judgment was entered a year later, in November 2004. Kluge then perfected this appeal.

DISCUSSION

Kluge contends that “The question presented is: What effect did the 1960 Deed of 14.88 acres to the District have on Parcel 20 [the parcel Kluge now owns] insofar as riparian rights are concerned?” Although at first glance Kluge frames the issue as being one of substantial evidence, a careful reading of his brief reveals that he is urging this court to adopt a new approach to construing grant deeds.

Kluge concedes there is nothing in his mother’s grant deed to the District “expressing any intention to convey riparian rights.” He further acknowledges that our Supreme Court “seems” to have adopted the rule that “where land not abutting upon the watercourse is transferred to another, no riparian right is conveyed with that property ‘unless it was so provided in the conveyance, or unless the circumstances were such as to show that [the] parties so intended, or were such as to raise an estoppel.’ “ (Quoting Hudson v. Dailey (1909) 156 Cal. 617, 624, which cites Anaheim Union Water Co. v. Fuller (1907) 150 Cal. 327, 331, in which the court held: “If the owner of a tract abutting on a stream conveys to another a part of the land not contiguous to the stream, he thereby cuts off the part so conveyed from all participation in the use of the stream and from riparian rights therein, unless the conveyance declares the contrary.”) Nevertheless, Kluge urges that “the better rule, and the law which should be applied to this case is that absent circumstances showing an intent to abandon or release riparian rights, the excluded land retains the riparian rights it had prior to the conveyance.” He then concludes by establishing why he initially stated the appeal presented merely an issue of substantial evidence: “There is no significant evidence in this case to show an intent to abandon those riparian rights, and accordingly there is not substantial evidence to support the Judgment.”

The simple answer to Kluge’s argument is that a decision of our Supreme Court will be applied by this court, without regard to whether there is a “better rule.” (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The principle Kluge seeks to overturn--namely, that riparian rights pass with a transfer of land unless reserved--is widely accepted by courts and commentators. (E.g., Holmes v. Nay, supra, 186 Cal. 231, 237; City of San Diego v. Sloane (1969) 272 Cal.App.2d 663, 664; Hutchins, The Cal. Law of Water Rights (1956) pp. 189-190, 195-196; 6 Miller & Starr Cal. Real Estate (3d ed. 2000) § 17:25, p. 66; Slater, Cal. Water Law & Policy (1995) § 3.17, p. 3-64.2; 12 Witkin, Summary of Cal. Law, supra, Real Property, § 954, pp. 1149-1150; 62 Cal.Jur.3d (2005) Water, § 546, pp. 678-679.) This principle must be deemed completely settled for purposes of this appeal.

Moreover, as the trial court recognized, the principle enjoys considerable statutory recognition. Civil Code section 1105 provides that “A fee simple title is presumed to be intended to pass by a grant of real property, unless it appears from the grant that a lesser estate was intended.” Unless expressly reserved, water rights are within this presumption. (E.g., Taylor v. Avila (1917) 175 Cal. 203, 206-207; Painter v. Pasadena L. & W. Co. (1891) 91 Cal. 74, 80-84.) Civil Code section 3522 directs that “One who grants a thing is presumed to grant also whatever is essential to its use,” which directive has been applied to include riparian rights when real property is sold. (San Francisco v. County of Alameda (1936) 5 Cal.2d 243, 246-247; Smith v. Corbit (1897) 116 Cal. 587, 591) There is also the statutory command that “A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement . . . .” (Civ. Code, § 1104; see id., § 1084 [“The transfer of a thing transfers all of its incidents, unless expressly excepted . . . .”].) This means that when property with a water right is sold, the water right goes with the property. (Stanislaus Water Co. v. Bachman (1908) 152 Cal. 716, 724; Hufford v. Dye (1912) 162 Cal. 147, 152-153; Williams v. Harter (1898) 121 Cal. 47, 51.) Finally, Civil Code section 1069 provides that “A grant is to be interpreted in favor of the grantee, except that a reservation . . . is to be interpreted in favor of the grantor.”

All of these statutes were enacted in 1872. For more than 130 years, they--and the judicial decisions construing and applying them--have been the accepted law of this state. At issue here is the security and stability of real property ownership, “a situation where the need for stability is at a premium.” (Kreisher v. Mobil Oil Corp. (1988) 198 Cal.App.3d 389, 404 [citing Wellenkamp v. Bank of America (1978) 21 Cal.3d 943, 954]; see Gerhard v. Stephens (1968) 68 Cal.2d 864, 889; Pioche v. Paul (1863) 22 Cal. 105, 109-110 [“Stability is required in such cases above all others.”].) Kluge presents no persuasive argument to uproot this extensive and firmly established body of law by accepting a presumption that is the precise opposite of Civil Code section 1105.

In any event, the trial court essentially followed much of the approach Kluge now advocates. The trial court did not treat the issue as one of law, but as one of fact where “the overriding principle is the intention of the parties to the conveyance, as determined by [the deed’s] language and parol evidence.” The court heard the extrinsic evidence proffered by Kluge, and then decided the matter, as an issue of fact, upon consideration of all the testimonial and documentary evidence presented by the parties. The only question before us is whether the court’s decision of that factual issue is supported by substantial evidence.

In contending that his mother’s grant deed to the District was in fact a conveyance of something less than a fee simple, Kluge was required to present clear and convincing evidence to overcome the presumption of Civil Code section 1105. (Beeler v. American Trust Co. (1944) 24 Cal.2d 1, 7; Develop-Amatic Engineering v. Republic Mortgage Co. (1970) 12 Cal.App.3d 143, 148.) “Whether the evidence carries that much weight is for the trial judge and not the court of review.” (Develop-Amatic Engineering v. Republic Mortgage Co., supra, at p. 148.)

Kluge’s direct evidence of the grantor’s intent, such as it was, consisted of his own testimony recounting statements allegedly made by a district official to him and Mrs. Kluge prior to execution of the grant deed. The gist of the claimed representations made by the official was that “I [Mr. Kluge] should be happy to sell this property to the county [sic] because we’re going to get all the water in the world from this reservoir, and . . . I could keep my riparian rights . . . .”[4]

The rule is that “parol evidence is inadmissible to show that an unrestricted grant deed was intended to convey less than the grantor’s entire interest in the property . . . .” (Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 380 (dis. opn. of Kennard, J.), citing Winchester v. Winchester (1917) 175 Cal. 391, 394 and Riley v. Bear Creek Planning Committee (1976) 17 Cal.3d 500, 512, fn. 7.) In any event, it is clear from its statement of decision that the trial court accorded Kluge’s testimony little if any weight (“Reliance upon that evidence is withheld . . . .”).[5] That determination, affecting as it does the weight and credibility of Kluge’s testimony, is conclusive for purposes of this appeal. (E.g., Kulko v. Superior Court (1977) 19 Cal.3d 514, 519, fn. 1; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925; E. K. Wood Lumber Co. v. Higgins (1960) 54 Cal.2d 91, 94, fn. *.)

The trial court appears to have recognized that the law accords greater weight to contemporary writings, particularly the language of the deed: “The rule that a grant . . . deed operates to pass the title in fee, unless it contains in itself some limitation, exception, or reservation, and that it estops the grantor thereafter from claiming any right or estate in the land so conveyed, is too well settled to require citation of authority.” (Taylor v. Avila, supra, 175 Cal. 203, 206, italics added.) Here, the trial court gave considerable weight to the deed of easement to the District that Mrs. Kluge executed at the same time as the grant deed to the District. (Cf. Civ. Code, §§ 1641-1642, 3535; Crestview Cemetery Assn. v. Dieden (1960) 54 Cal.2d 744, 754.) The court drew the logical conclusion that because Mrs. Kluge was “familiar with the form and effect of a grant of easement,” the absence of such language in the grant deed demonstrated that no reservation of riparian rights was contemplated.[6] It is an established canon of statutory construction that “When the Legislature ‘has employed a term or phrase in one place and excluded it in another, it should not be implied where excluded.’ [Citations.]” (Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 576.) The principle is equally valid when applied to transactions between private parties. (See City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 245.) Finally, even if there was any doubt about the language of the grant deed, that doubt would be resolved against a reservation of any interest. (Id. at pp. 242-243; Civ. Code, § 1069, quoted ante.) The trial court drew a reasonable deduction which is supported by the evidence, and which must be respected on this appeal. (Mah See v. North American Acc. Ins. Co. (1923) 190 Cal. 421, 426; Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 633; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 370, pp. 420-421.)

Kluge places considerable reliance on Murphy Slough, supra, 27 Cal.App.3d 649. It is unavailing, and certainly does not establish that the trial court committed reversible error. At issue in that case were a number of grant deeds from owners of property adjacent to a river. The deeds were for 100 feet (“60 feet on the river side and 40 feet on the land side”) granted to a reclamation district, which constructed a levee on the granted property. The grantors continued to exercise their riparian rights to water from the river for decades without protest. After admitting extrinsic evidence of the parties’ intent, the trial court decided that the owners’ riparian rights had not been extinguished because the deeds were intended to convey no more than a “perpetual right of way to the district to enable it to perform its reclamation functions.” (Id. at pp. 651-653.) That decision was affirmed on appeal.

Here, however, the Kluge grant deed was expressly found by the trial court to be a grant deed conveying the entire fee to the District. Unlike the situation in Murphy Slough, the trial court’s statement of decision (which cited Murphy Slough repeatedly) shows that it gave virtually no credence to the extrinsic evidence offered by Kluge to rebut the statutory presumption that the entire fee was conveyed. Moreover, the District vigorously protested in 1969-1970 when Kluge built a pipeline across its parcel to draw water from the reservoir. Finally, several of the deeds in Murphy Slough explicitly reserved the grantor’s riparian rights. (Murphy Slough, supra, 27 Cal.App.3d 649, 653.)

The Murphy Slough court observed that “it would be absurd to conclude that riparian rights to the 100-foot strip were conveyed to the grantee, a reclamation district which had no power or authority to administer water rights . . . .” (Murphy Slough, supra, 27 Cal.App.3d 649, 656.) The trial court rejected Kluge’s argument that this reasoning was also applicable to the District: “This contention does not take account of the district’s purpose expressed in the grant of easement: the temporary detention and permanent storage of water to be impounded by a dam. Other evidence . . . demonstrates that the dam and reservoir maintained by the district serve purposes of flood control, downstream irrigation appropriation, recreation and fish and wildlife resource protection. All of these purposes are inferred to have been contemplated by the district at the time of the two conveyances. With these purposes in mind, it cannot be concluded that the district had no interest in the conservation and use of the impounded water at the time that it received the conveyance from Anna Kluge that would facilitate the impoundment.”

As Eutenier puts it in his brief: “the court in Murphy Slough rejected any as-a-matter-of-law rule, affirmed the ‘overriding principle’ that intent controls, and found substantial evidence to support the trial court’s determination that a loss of riparian rights was not intended.” What we do here is affirm because there is substantial evidence to

support the trial court’s determination that Kluge failed to prove that a loss of riparian rights was not intended.

The judgment is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Lambden, J.

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Analysis and review provided by Chula Vista Property line attorney.

[1] Appropriation is the other basis in California for obtaining rights to water. “An appropriative right is the right, acquired under the procedure provided by law, to divert from a public water supply a specific quantity of water--provided it is available in excess of requirements of all existing vested rights--and to apply the water to a specific beneficial use in preference to all appropriative rights of later priority.” (62 Cal.Jur.3d (2005) Water, § 229, p. 292.) “Appropriators need not own land contiguous to the watercourse, but appropriation rights are subordinate to riparian rights so that in times of shortage riparians are entitled to fulfill their needs before appropriators are entitled to any use of the water.” (United States v. State Water Resources Control Bd. (1986) 182 Cal.App.3d 82, 101-102.) The State Water Resources Control Board has the exclusive jurisdiction to grant permits to appropriate water. (Wat. Code, §§ 1225, 1250 et seq.)

In September 1994, while the State Board was considering the appropriation issues, the court found Kluge in contempt for violating a 1988 injunction prohibiting him from interfering with Eutenier’s water easement across the Kluge property.

[2] Eutenier’s counsel provided a terse summary of proceedings before the Board: “Mr. Kluge filed an appropriative application with the State Water Resources Control Board in an attempt to cut off Mr. Eutenier’s rights. Eutenier filed a competing application and the Board treated them with equal priority. As the result of Kluge’s application, the Yolo County Flood Control and Water Conservation District and the Lake County Flood Control and Water Conservation District became involved and both Kluge and Eutenier ended up with access to much less water than previously.” In its decision, the State Board determined that there were 50 unappropriated acre feet of water in the reservoir; Kluge was allotted 27.6 acre feet, while Eutenier received 22.4 acre feet. All we have in the record is the State Board’s decision and its order denying Kluge’s petition for reconsideration to increase his percentage.

[3] It was not until 1962, after the District received Ms. Kluge’s grant, that it constructed an earthen dam on Adobe Creek and created the Adobe Creek Reservoir. Adobe Creek flows into Clear Lake. The reservoir is about five miles south of that lake.

[4] Kluge also testified that his mother, the person who actually owned the land and who executed the deed, spoke “[n]ot very good English” and participated “very little” in discussions with the district official. It should be apparent that, as the grantor, it would be the understanding and intention held by Mrs. Kluge--not her son--that would be pertinent.

[5] Eutenier vigorously objected to Kluge’s testimony on hearsay and relevance grounds. The trial court overruled the objections, but it told Kluge it was “skeptical about the value of this testimony.”

[6] Mrs. Kluge’s grant of easement to the District was “For or in connection with the construction, operation, maintenance and inspection of the following described works of improvement to be located on the above described land [not the parcel of the grant deed], for the flowage of any waters in, over, upon or through such works of improvement and for the permanent storage and temporary detention, either or both, of any waters that are impounded, stored, or detained by such works of improvement.” This instrument also provided that the easement would revert to Mrs. Kluge if “construction of the above described works of improvement is not commenced within one year from the date hereof . . . .”