Diamond Match Co. v. Savercool

This is an action to quiet title to a road, approximately fifteen miles in length, running through plaintiff's timber lands in the Sierra Nevada Mountains in

Plaintiff contends that the road is a private road and that defendants’ use thereof has been permissive only and not such as to give rise to any right. Defendants urge that it is a public road, dedicated as such by many years’ user, and that the plaintiff is estopped to deny its public character.

At the conclusion of the trial the court found that the defendants and other persons, and the public generally, have repeatedly used the road; that such user has been open, notorious and adverse to the plaintiff and under claim of right; that such user has been uninterrupted since 1870; that plaintiff, by means of a gate and lock, has attempted to interfere with but has never wholly prevented the use of the road by the public; that it is a public road dedicated as such by the plaintiff, and its predecessors in interest; that the defendants, their predecessors in interest, the public generally, and the board of supervisors of Tehama County, have accepted such dedication; that the lands of the contesting defendants can be reached by vehicle only by said road; that the defendants acquired and improved their lands in the belief that the road was a public road; that during the improvement of said lands the plaintiff at no time asserted that the road was a private road; that had they been so informed defendants would not have improved their lands; that without the use of said road the lands of the defendants would be practically valueless; and that the plaintiff is estopped to assert that the road is a private road.

Plaintiff contends that these findings are unsupported by the evidence. While there is considerable conflict in the evidence, defendants’ showing is ample to warrant the findings and conclusions of the trial court. Under elementary rules of appellate procedure, we are bound by the findings of the lower court.

The witness McKenzie, called by the defendants, testified that he had lived in Tehama County over sixty years; that he first went over the road in question in 1870; that he then lived in the vicinity and hauled produce over the road many times. James Savercool, called by the defendants, testified that he lived in Mill Creek Canyon and that over a period

The foregoing, and other evidence to which reference need not be made, amply supports the findings and conclusions of the court below. To constitute a valid and complete dedication there must be an intention by the owner, clearly indicated by his words or acts, to dedicate the lands to public use (City of Venice v. Short Line Beach L. Co.,

In People v. Myring, supra, it is declared: “The dedication of a road' as a public highway is the setting it apart by the owner of the land for the use of the public, and the subsequent use thereof by the public operates as an acceptance of the same and makes it a public highway. Such dedication may be express, as by a grant to the public, or it may be implied from the circumstances under which the road is set apart and used. The adverse user of the road by the public with the knowledge of the owner for a period of time corresponding to that fixed for conferring a title by prescription establishes as against the owner a presumption of dedication. ‘It affords the conclusive and indisputable presumption of knowledge and acquiescence, while at the same time it negatives the idea of mere license.’ ”

Of course, where the dedication of a highway is sought to be established by user, it must be shown that the user was adverse, continuous and with the knowledge of the owner, for the required period of time. (City of San Diego v. Hall, 180 Cal. 165 , 168 [ 179 Pac. 889 ].) So far as the element of time is concerned, periods varying from five to forty years have been held sufficient. (Plummer v. Sheldon, 94 Cal. 533 [ 29 Pac. 947 ]; Barnes v. Daveck, 7 Cal. App. 487 [ 94 Pac. 779 ].) The adverse character of the use and the knowledge and acquiescence of the owner may be inferred from circumstances, and long-continued adverse user establishes against the owner the conclusive presumption of

Though conflicting, there is substantial evidence in the record now before us to establish, in accordance with the trial court’s findings, that the defendants and the public generally over a long period of years, have openly, adversely and under claim of right, used for highway purposes a definitely defined strip of land running through plaintiff’s property, and that not until 1924, approximately fifty years subsequent to its original use for that purpose, did the plaintiff or its predecessors object to or attempt to interfere with such user by the public. Under the authorities this is sufficient to show an implied intention to dedicate and an acceptance thereof by the public. In addition thereto the board of supervisors appears to have exercised jurisdiction over the road as early as 1879. Plaintiff’s tardy attempt to interfere with the public use of the road has proved unavailing and has not resulted in a loss of such right by nonuser for there is evidence in the record tending to indicate that those members of the public having occasion to use the road continued to do so after plaintiff’s attempted obstruction of the same, in some instances the lock having been shot from the gate erected by plaintiff.

In conclusion, it should be added that so far as the contesting defendants are concerned, the evidence tends to show that they, to plaintiff’s knowledge, acquired and improved their lands in reliance on an apparent dedication of the road. At no time did the plaintiff or its agents inform defendants that the road was claimed as private property. Under the circumstances the court below properly found that the plaintiff is estopped to deny the public character of the road.

For the foregoing reasons the judgment is affirmed.

Shenk,. J., Thompson, J., Langdon, J., and Seawell, J., concurred.