Hitchcock v. Lovelace

This is an appeal by the sole appearing defendant Kathleen McN. Lovelace, on the judgment roll, from a judgment decreeing that plaintiffs are the owners of certain easements, rights of way, and rights in, to and over lands of appellant lying adjacent to property of plaintiffs in San Bernardino County and enjoining defendants, their agents, servants or employees from interfering with plaintiffs’ use and enjoyment thereof.

Five separate easements were contended for and decreed by the court, although in their use and enjoyment they were somewhat connected. To clearly understand them a somewhat detailed statement of facts is essential. This statement is taken from the findings of fact inasmuch as all of the allegations of the complaint were found to be true.

Plaintiffs for more than ten years prior to the commencement of the action had been the owners and in possession of a quarter section of land used by them as a camp for men and livestock incident to the business of raising cattle. This parcel has been and will be referred to herein as parcel 1. Appellant is and since 1932 has been the owner of and for three years before the action was instituted has been in possession of two large parcels contiguous to parcel 1 and lying westerly thereof but extending both to the northwest and southwest of the borders of parcel 1. The southeast corner of one of said parcels, herein referred to as parcel 2, is common with the northwest corner of parcel 1. Appellant’s other parcel, herein referred to as parcel 3 is a quarter section lying westerly of parcel 1, together with other lands lying southwesterly of parcel 1 and having a northeast corner common with the southwest corner of parcel 1.

A natural watercourse known as Grapevine Creek has from time immemorial flowed northerly down Grapevine Canyon across parcel 1. For over 35 years the general public, including the plaintiffs and their predecessors in interest, have used and traveled a public highway known as Old Road or Dead Man’s Point Road, which extends from the mouth of Grapevine Canyon on parcel 1 in a northwesterly direction across parcel 1 intersecting the west line thereof at a point 130 feet south of the common northwesterly corner of parcel 1 and the southeasterly corner of parcel 2 and continuing across parcels 2 and 3 and lands northwesterly of parcel 2 to a main highway which extends easterly and westerly between Victorville and Lucerne Valley to the north of the lands of the parties to this action.

Another canyon known as Vader Canyon lies westerly of Grapevine Canyon and extends southerly to the summit of the San Bernardino mountains and northerly to its mouth

In the month of March, 1935, plaintiffs, for the purpose of providing an additional means of travel from the main highway to parcel 1, constructed a road herein referred to as “New Road,” extending from said main highway at a point due north of the west line of parcel 1 south in a straight line to the old road at the point where the old road intersects the west line of parcel 1.

For more than 35 years the general public, including plaintiffs and their predecessors in interest, have used and traveled a trail referred to herein as the cattle trail, which ascends out of Grapevine Canyon on parcel 1 near the mouth of the canyon and extends in a general southwesterly direction into parcel 3 and over the foothill which comprises the east wall of Vader Canyon and then proceeds along the east wall of Vader Canyon to the bottom of the Canyon where it joins with the Vader Canyon Road continuing up said Vader Canyon along the road to the head of Vader Canyon and then continues from the southerly terminus of Vader Canyon Road along the walls of Vader Canyon to the summit of the mountains. From time to time plaintiffs and their predecessors in interest and also members of the public using the cattle trail have cut away portions of the mountainside on parcel 3 along the walls of Vader Canyon to facilitate the passage of livestock and cattle.

The general public, including plaintiffs and their predecessors in interest, have for more than 35 years used the waters of Vader Canyon Spring for domestic purposes and for the watering of livestock, during all of which time free and uninterrupted access has been had thereto by means of

Prom time to time since 1936, the defendants have taken steps to interfere with plaintiffs’ use of the various roads and have also obstructed the cattle trail and prevented the effective use of the waters from the Vader Canyon Spring. Within a year prior to the filing of this action an iron rail was imbedded in the old road near the west line of parcel 2 by defendants and they have constructed barriers on said road on parcel 3 and near the east line thereof. They have also erected signs in the road stating that it was closed and that persons using it would be guilty of trespass. They also constructed fences on Vader Canyon Road both north and south of the Vader Canyon Spring in the years 1936 and 1937. In 1937 they constructed a fence across the cattle trail at a point where the trail proceeds along the east wall of Vader Canyon and within a year prior to the filing of the action placed obstructions on the new road near its intersection with the north line of parcel 2 and near its intersection with the south line of parcel 2. Their conduct with regard to the Vader Canyon Spring and the destruction of the water troughs maintained by plaintiffs has heretofore been alluded to. Defendants have also threatened plaintiffs with bodily harm in the event they should enter upon parcels 2 and 3 or any portion thereof either for the purpose of using any of the roads or the spring or for the purpose of attempting to remove any of the barriers or obstructions, and they have threatened to kill any livestock of the plaintiffs which might enter upon appellant's property and have forbidden the plaintiffs any right to use the roads, trail or spring.

The trial court found that defendants had been in possession of parcels 2 and 3 for three years before the filing of

From these findings it was concluded and the court decreed :

“(c) That the plaintiffs are, and for more than ten years last past have been, the owners of the following easements, rights of way and rights in, to and over said Parcels Two and Three, to-wit:

“ (1) An easement and right of way for all highway purposes, including the transportation by vehicles and on foot of persons, livestock and property, over and across those portions of said Parcels Two and Three now and heretofore embraced within the exterior boundaries of that certain highway, sometimes known as Headman’s Point Road, which intersects the east line of said Parcel Three at a point distant south 130 feet from the northeast corner of said Parcel Three, and extends therefrom in a general northwesterly course across said Parcels Three and Two to its junction with that certain east and west public highway which extends from Victorville in said County to Lucerne Valley in said County, and which junction is located near that certain promontory known as Headman’s Point;

“ (2) An easement and right of way for all highway purposes, including the transportation by vehicles and on foot of persons, livestock and property, over and across those portions of said Parcels Two and Three lying within the exterior boundaries of that certain road sometimes known as Vader Canyon Road which extends in a general northerly and southerly direction in and along the bottom of Vader Canyon from a point distant approximately one-fourth of a mile south of the south line of said Parcel Three to the intersection of said Vader Canyon Road with said Headman’s Point Road in said Parcel Two;

“ (3) An easement and right of way for all highway purposes, including the transportation by vehicles and on foot of persons, livestock and property, over and across those portions of said Parcels Two and Three lying within the exterior boundaries of that certain road which extends northerly from

the northwest corner of said Parcel One to said east and west public highway;

“ (4) An easement and right of way for the passage, travel and movement of persons and livestock on foot over and across those portions of said parcels Two and Three lying within the exterior boundaries of that certain cattle trail which extends out of Grapevine Canyon in said Parcel One near the mouth of said canyon, and extends in a general southwestern direction to the top of the foothill comprising the east wall of said Vader Canyon, and thence along the east wall of said Vader Canyon to the bottom of said Vader Canyon and its junction with said Vader Canyon Road;

“(5) An easement in, and the right to take and use the waters from, that certain spring known as Vader Canyon Spring located upon said Parcel Three in said Vader Canyon west of said Vader Canyon Road, together with the right to collect the waters of said Vader Canyon Spring by means of pipes and troughs for domestic uses and the watering of livestock, and together with an easement and right of way for the passage of persons and livestock between said Vader Canyon Spring and said Vader Canyon Spring Road, and together with an easement and right of way for the passage, travel and movement of persons and livestock over and across said Deadman’s Point Road, said Vader Canyon Road and said cattle trail to said Vader Canyon Spring for the purpose of obtaining access to the waters of said Vader Canyon Spring and the waters thereof collected by means of the pipes and trough aforesaid. . . .

“(e) That that certain cattle trail hereinbefore referred to is, and for more than thirty-five years last past has been, a public easement and used by the public for the passage, travel and movement of persons and livestock on foot;

“(f) That that certain spring hereinbefore referred to as Vader Canyon Spring is, and for more than fifty years last past has been, a water hole and body of water needed and used by the public for watering purposes, and that all land within one-fourth of a mile of said Vader Canyon Spring for more than ten years last past has been and are now reserved for public use in accordance with the provisions of Section 10 of the Act of Congress dated December 29th. 1916 (39 U. S. Stats. 862), and that said Vader Canyon Spring and all lands within one-fourth of a mile thereof for more than

ten years last past has been and is now reserved for public use, including the passage, travel and movement of persons, livestock and property, by vehicles and on foot, to and from said spring, and the use of the waters of said spring for domestic purposes and the watering of livestock;

“(g) That the plaintiffs are entitled to a writ of injunction restraining and enjoining the defendants, and each of them, from interfering with the use and enjoyment by the plaintiffs, their servants, agents and employees, of each and all of the easements, rights of way and rights set forth in Paragraphs ‘e’ and ‘d’ hereof, including the rights as members of the public to the use of said roads, said cattle trail, said Yader Canyon Spring and the land within one-fourth of a mile thereof, as aforesaid.”

The language of the conclusions of law and the judgment have been quoted verbatim inasmuch as the contentions made by appellant are so directly concerned therewith.

The court found that the old road or Deadman’s Point Road and the Yader Canyon Road, were public highways, and no point is made of such finding other than that the descriptions of neither of said roads or highways are set forth with such particularity as to enable appellant to know what portion of her property is so claimed. She refers, as supporting her position that the judgment so far as it pertains to the easements in these highways is void, to the case of Leverone v. Weakley, 155 Cal. 395 [ 101 Pac. 304 ], in which the Supreme Court said (p. 398) :

“It goes without saying that where it is sought to have it decreed that real property of a person is subject to a use or easement in favor of another, the property affected must be described in the pleadings with such certainty as to enable the party against whom the claim is made to definitely know exactly what portion of his property is so claimed, and the judgment establishing the validity of the claim must be definite and certain as to the property affected.”

This is undoubtedly the established rule and the authorities are uniform in support thereof. (Pacific Gas & Electric Co. v. Crockett Land and Cattle Co., 70 Cal. App. 283 [ 233 Pac. 370 ] ; Matthiessen v. Grand, 92 Cal. App. 504 [ 268 Pac. 675 ].)

However, the above rule is modified to some extent by that which is to the effect that where land has a descriptive

We next pass to a consideration of the easement across parcels 2 and 3 lying within the exterior boundaries of the so-called new road. The roadway was laid out in 1935 by respondents who, it was found, dedicated the same to public use. Whether or not any portion of the road is actually on appellant’s property does not appear. The court found that such easement applied to appellant’s land “to the extent that said new road, if at all, is embraced within the exterior boundaries of parcels 2 and 3.” It is apparent that respondents could dedicate no portion of appellant’s lands to public use and it is equally true that an attempt on their part so to do could vest in them no private rights therein. The new road was laid out in 1935 and the complaint in this action

Appellant attacks the findings and judgment with relation to the cattle trail from the point of uncertainty and indefiniteness of description and also contends that the judgment decreed to respondents rights in excess of those established by the findings of fact and conclusions of law. Referring to the first of these contentions, it is obvious by a reference to the easement granted that the description is vague and uncertain in the extreme. There is nothing to indicate where the trail enters upon appellant’s property nor where it leaves. It does not appear nor can it be ascertained that a well-defined roadway or pathway exists known by a descriptive name of such a character as to apprise appellant or anyone else just where the exterior boundaries lie over any portion of its course on appellant’s land, with the exception of that portion where the cattle trail and the Yader Canyon Road follow the same course, although whether the junction of the cattle trail and Yader Canyon Road is within or without appellant’s property is not disclosed. The judgment granting the easement over the cattle trail must be reversed because of the uncertainty of description. It may be said further that- considerable difficulty is encountered in an examination of the court’s findings as to whether the easement in the cattle trail is predicated upon a dedication by the owner as a public highway, or by prescription. The conclusion drawn by the court that the trail is a public

The judgment, insofar as it decrees that plaintiffs are the owners of easements in the old road or Headman’s Point Road, in the Vader Canyon Road, and in the waters of Vader Canyon Spring, is affirmed. The judgment, as it decrees that plaintiffs are the owners of easements within the exterior boundaries of the new road, insofar as it is embraced within the exterior boundaries of parcels 2 and 3, and as it decrees the easement in the cattle trail, is reversed. Neither party to recover costs of this appeal.

Barnard, P. J., and Marks, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied January 15, 1942.