Grimmesey v. Kirtlan

This is an action to establish a right of way over certain property described in the complaint belonging to defendants. The cause is pleaded in three counts. The first sets up a right of way acquired by grant, pursuant to section 1104 of the Civil Code; the second, a right of way by prescription arising from adverse use for more than five years, and the third is a quiet title count to the easement claimed.

It is the claim of plaintiffs that at the time decedent acquired parcel No. 1 from defendants there existed, and for

Since the commencement of the action, and prior to the trial thereof, L. J. Grimmesey, the original plaintiff, died, and by appropriate amendment Agnes R. Grimmesey and A. L. Bagnall, the duly appointed, qualified, and acting executors of the estate of L. J. Grimmesey, deceased, were substituted as plaintiffs in place of L. J. Grimmesey, deceased.

The errors urged by appellants have to do with certain findings of fact and conclusions of law and the judgment entered thereon as follows: (1) That said findings of fact and conclusions of law, and the judgment thereon, are not supported by the evidence, but are contrary to the evidence, (2) that said judgment is contrary to law; (3) that the court erred in the admission of certain evidence.

The findings which appellants urge as not being supported by the evidence may be summarized as follows: That it is not true that at the time plaintiff purchased parcel No. 1, nor at any other time, the plaintiff purchased of defendants, or either of them, a private right of way or easement along or over a roadway approximately twelve feet in width then or at any other time in use over parcel No. 2. That a gravel roadway for ingress and egress to and from the defendants’ residence from Glendora Avenue westerly along the southerly side of defendants’ residence extends westerly from said residence a distance of 150 feet; thence westerly there is a pathway extending westerly to the westerly line of the defendants’ property, and thence westerly to a tenement house located near the westerly side of plaintiff’s property, parcel No. 1; that said pathway has heretofore at times

Appellants concede that if there is any substantial conflict in the evidence the findings of the trial court will not be disturbed on appeal, but maintain that there is no substantial evidence upon which the findings and judgment can be supported.

Appellants have cited a number of authorities holding that a transfer of property passes all easements attached thereto at the time of the transfer; that where the owner of

The facts disclosed by the record are that the entire tract of land was originally owned by respondents. On April 10, 1918', respondent deeded the western fifteen acres to L. J. Grimmesey, now deceased, wdio was an uncle of respondent Edward Elmore Kirtlan; that before the transfer respondent Kirtlan cultivated, irrigated, and cared for the entire tract; that after the sale he continued to cultivate, irrigate, and care for the fifteen acres deeded to plaintiffs’ decedent until May, 1922, when Mr. Campbell, the husband of respondent Kirtlan’s sister, assumed charge for plaintiffs’ decedent. According to the testimony of respondent, Edward Elmore Kirtlan, at the time of the sale of parcel No. 1 there was a road from Glendora Avenue to his barn on parcel No. 2, and from the end of the roadway at his barn there was only a path leading to parcel No. 1. Some of the people who lived in the house on parcel No. 1 had automobiles, but “they didn’t get in with their automobiles. They left their automobiles as a rule in the barn. Once in a while they might take them down there, drive

It is apparent that none of the witnesses produced by appellants, ten in number, excepting Agnes R Grimmesey, had any knowledge of the condition of the road, or whether the road was in existence at the time of the sale of the property. None of the witnesses, Fisher, Hepner, Ames, Welch, Doughty, Bull, or Webb, had seen the property until long after the transfer to appellants’ decedent. One of the remaining three, Kellenberger, was on the property from October, 1915, to July, 1916, only, .and therefore his testimony does not throw any light on the conditions existing on April 10, 1918, nearly two years later. Berman, one of the two remaining witnesses for appellants, testified that he resided on the ranch adjoining the 41-acre tract from 1915 to 1925, and that when he first came there was a road clear to the boundary line. Agnes R Grimmesey, the widow of L. J. Grimmesey, deceased, testified that when she first saw the property early in 1918, about the time they were considering buying it, she walked over the road with Mrs. Kirtlan and Mrs. Grimmesey'from the Kirtlan residence on parcel No. 2 as far westerly as the little house on the western edge of parcel No. 1, and that there was a well-defined road across parcel No. 1. 'This testimony on the question whether or not there was a roadway leading from parcel No. 1 across parcel No. 2 to Glendora Avenue at the time of the sale presents a conflict, the determination of which was for the trial court, and its finding thereon will not be disturbed. In order to bring the easement claimed within the provisions of section 1104 of the Civil Code it must be shown that a roadway was in existence and use for the benefit of the parcel of land sold, and that the easement in the remaining parcel is necessary for the reasonable enjoyment of the part sold in the form which it assumed at the time of the transfer (Cave v. Crafts, 53 Cal. 135 ; Beem v. Reichman, 36 Cal. App. 258 [ 171 Pac. 972 ]). The intention, in view of all of the circumstances, is the cardinal subject for inquiry (Cheda v. Bodkin, 173 Cal. 7 , 16 [ 158 Pac. 1025 ]). Where there is a better and more convenient means of ingress and egress to and from the land conveyed, and the easement is not

As to the claim that a right of way was acquired by prescription—that the roadway was used openly, notoriously and adversely for more than five years prior to the commencement of the action on August 21, 1924— it may be said that the testimony of respondent Edward Elmore Kirtlan is that whatever use had been made of his land had been by permission up to within three or four months of the commencement of the action. Prior to that time plaintiff’s decedent had not claimed any right to cross respondents’ land as a matter of right. The decedent, L. J. Grimmesey, was the uncle of respondent Edward Elmore Kirtlan, and Mr. Campbell who was in charge of the property for the deceased following respondent Kirtlan, when the latter ceased to manage and care for it in May, 1922, was the husband of respondent Kirtlan’s sister. The use of the private roadway into the yard and around respondent’s house was permitted because the parties were so related. Respondent Kirtlan testified: “Mr. Grimmesey was my uncle, and I was very fond of him, as much so as I was of my father. There was no reason why he shouldn’t come out on my place at any time.”

In order to make the use adverse under the circumstances there must have been a communicated claim of right to the easement. “User alone is not sufficient to establish a prescriptive right of way over the lands of another. Such user must be accompanied by a claim of right communicated to the owner of the land; or it must be shown that the user was so continuous and so openly and notoriously adverse to the owner as to create a presumptive knowledge in the owner that the person using the land was so doing under a claim of right.” (Tarpey v. Veith, 22 Cal. App. 289 , 292 [ 134 Pac. 367 , 369].) The following language used by the court in Clarke v. Clarke, 133 Cal. 667 , 670 [ 66 Pac. 10 ], is apropos here: “The question as to whether or not the use was under a claim of right, or a mere matter of neighborly accommodation, was a question of fact to be determined by the court in the light of the relations of the parties, their conduct, the situation of the property and all the surrounding circumstances. The court below saw

Appellants have not directed our attention to any ruling of the court, under their third assignment that the court erred in certain particulars in the admission of evidence, and we therefore assume that they have abandoned this objection.

The judgment is affirmed.

.Tyler, P. J., and Knight, J., concurred.