224 P. 762 | Cal. Ct. App. | 1924
The subject matter of this action is a strip of real property situate in block 24 1/2 of the Southern Addition in the city of Bakersfield, approximately twenty-five feet wide, running northerly from Blanche Street about 150 feet, and thence westerly at right angles the same distance, which it is alleged was dedicated to the use of abutting property owners as an alley more than six years prior to the commencement of these proceedings in April, 1920. On or about March 17th of that year the appellants closed the passageway with fences and prepared the ground for crops, preventing respondents from using the same, whereupon the latter instituted this suit and prayed a decree that it be adjudged an alley by dedication, and an injunction against interference with its use as a passageway by owners of abutting lots. Appellants denied the dedication or existence of an easement, and alleged that respondents had had a mere permissive use of the property, conditioned upon the payment by each of a proportionate share of taxes, assessments and upkeep expenses incident to the maintenance of the alley as a driveway; and that it had previously been expressly agreed that such use might be refused upon failure to comply with these requirements; that appellants were legally justified in closing the driveway to respondents, because the latter had not paid any portion of said expenses, and that a predecessor in interest, the respondent Union Lumber Company, on or about the twenty-third day of July, 1918, had terminated the privileges of ingress and egress in the property described.
The trial court gave judgment for plaintiffs, and defendants appeal therefrom on the grounds of insufficient evidence of original ownership of Union Lumber Company, of the existence of an easement or right of way, or that a trust was created by the deed hereinafter mentioned, and errors are assigned as to rulings upon the evidence.
It appears from said complaint, and the court found, that all the parties are owners of interests in property situate in blocks 24 and 24 1/2, and that all except the lumber company are in possession and use thereof, which said properties abut on the strip of land in controversy; that the *556 lumber company was the original owner of the land in suit, from whom all the parties hereto derived title, and that on January 23, 1918, said company executed a deed in trust to Josiah A. Engle and wife, for appellants and respondents, of said property, providing that it should be used as an alley, and should be kept open, but that such use might be refused to any adjoining property owner declining to pay the proportional share of any tax, assessment or expense levied against the property. October 11, 1918, the Engles executed to all owners of property in block 24 1/2 a written "Declaration," purporting to convey to them the right to use said strip of land for driveway purposes, and embodying similar requirements.
Subsequent to the execution of said declaration, and on December 1, 1919, the Engles executed and delivered to Edwin A. Jarrell and wife, appellants herein, an agreement for the sale of a 37 1/2-foot frontage in said block 24 1/2, 125 feet deep, which included a portion of the property involved in this suit. Appellants entered into possession, and now contend, that they are owners of all the property in controversy, and that as successors in interest Josiah A. Engle and wife they have the right to erect the barricades heretofore mentioned, "after the plaintiffs had failed, refused and neglected and had declared their unwillingness to pay the taxes, assessments, charges and expenses in connection with the maintenance of said alley." Respondents allege in their first cause of action that for more than five years prior to the commencement of this action all the parties (except the lumber company) and their predecessors in interest had been using said driveway without let or hindrance, and that the same is necessary to the free use and occupation of their respective premises. It is further alleged, and the court found, that block 24 1/2 was delineated upon a map recorded in the office of the county recorder November 25, 1898, and that one C. D. Brown, the then owner, laid out said property, and the alley, and that abutting lots of these parties were sold with the agreement that said driveway should be maintained as an incident to the appurtenant properties. Appellants deny these allegations, and assert that they have since 1919 laid out large sums of money in improving and fencing this property, relying upon representations of respondents Persel and the lumber company that none of the *557 respondents had any right to its use on account of the aforesaid defaults, and that respondents Crease and the predecessor in interest of respondents Hershey had for valuable considerations released all their right, title, and interest therein.
[1] It is settled that the sufficiency of evidence to establish a given fact, even where the law requires proof of that fact to be clear and convincing, is primarily a question for the trial court, and if there is substantial evidence to support the conclusion reached below, the finding is not open to review on appeal. (Steinberger v. Young,
[2] From the foregoing detail of the evidence it will be noted that this passageway was laid out, lots bordering thereon were sold, and rights therein accrued long prior to the suggestion of any contingency such as appellants here assert. Sherzer states that he never considered he had any greater right to the alley than anyone else; that the property owners were to be served by the alley when it was first laid out, and that he told Engle that he would get *559
into a lawsuit if he insisted on closing it. We are of opinion that an easement was created by Brown in favor of abutting property owners and their successors in interest which could not be divested by subsequently asserted conditions in a writing between a few of the parties interested. (Anderson v. Citizens etc. Co.,
[4] Appellants pronounce the acquisition by the lumber company of the alley property and one lot in block 24 1/2 a merger of dominant and servient estates, and thus seek to establish extinguishment of the servient tenement under the *560
provisions of section
It will be unnecessary to consider other points presented by appellants, since the theory upon which this opinion is written renders their decision immaterial. This is particularly true of the objections to the court's rulings upon the introduction of evidence, since all of the evidence to which objections were made would necessarily be admissible upon the theory of the case outlined in this opinion. We find no material inconsistency in the findings which, being sustained by the evidence, as we have indicated, authorize the judgment rendered.
The judgment is affirmed.
Finlayson, P. J., and Works, J., concurred. *561