162 P. 104 | Cal. | 1916
The plaintiff is the owner of a tract of land containing something over seven acres situate in Los Angeles County. The defendants are the owners of a tract containing fifty acres, adjoining plaintiff's holding. Both parcels were originally a portion of the Rancho La Ballona, which in May, 1868, was partitioned by decree of the district court of the first judicial district of the state of California. By that decree the tract now owned by plaintiff was partitioned to the heirs of Augustine Machado. Title subsequently passed to Andres Briswalter, upon whose death the property passed to Louis Mesmer under decree of distribution filed in May, 1887. The plaintiff, Joseph Mesmer, has succeeded to the interest of Louis Mesmer.
The tract now owned by the defendants was, by the decree of partition, set off to Macedonio Aguilar. Through various mesne conveyances it passed in 1887 to Martin Uharriet and Pedro Uharriet. The defendants other than Martin succeeded to the interest of Pedro upon his death in 1909. The land of defendants lies to the north of plaintiff's land. By the decree of 1868 various other portions of the Rancho La Ballona, adjoining plaintiff's parcel on the east, south, and west, were partitioned to other cotenants.
The present action was brought to establish the right of plaintiff to an easement or way across the defendants' fifty-acre tract from plaintiff's land to a road leading to the city of Los Angeles. The complaint was based upon the theories, first, that plaintiff was entitled to a way of necessity across defendants' land, and, second, that plaintiff had acquired a *112 right of way across such land by prescription. The court made findings from which it concluded that plaintiff was entitled to a way of necessity as claimed. The findings do not support the claim of a way by prescription. The judgment was that plaintiff is entitled to a way of necessity of the width of fifteen feet along a described course, running one thousand five hundred feet or more in length over defendants' land, "so long as it may be necessary to gain access to and egress from the public highway." The defendants appeal from the judgment and from an order denying their motion for a new trial.
A public road, access to which is thus given by the judgment, runs to the west of the land of defendants. There is another road to the south of plaintiff's land and separated from it by parcels partitioned by the decree of 1868 to co-owners who are not parties to the present action. The first-mentioned road is known as First Street, the other is described in the record as roadway "X." Between the land of plaintiff and that of defendants is an irrigation ditch. Between the land of plaintiff and that of the owners on the south is a creek known as. Ballona Creek. The distance from plaintiff's parcel to roadway "X" is about 350 feet.
When a grantor conveys land shut off from access to a road by the grantor's remaining land, or partly by his land and partly by that of a stranger, a way of necessity arises over the adjoining land of the grantor. (Taylor v. Warnaky,
It would seem to follow, therefore, that upon such partition the holder of the inclosed parcel has an equal and like right *113
against each former cotenant whose land prevents his access to a highway. In the case of a way of necessity arising from a conveyance by a single grantor, it is said in Kripp v. Curtis,
It is not, however, necessary in this case to definitely resolve the doubts above suggested. Let it be assumed that the grantee, i. e., the predecessor of plaintiff, had the right, in the absence of any designation by the other parties to the partition, to select the line of egress from his land. It is claimed that such right was exercised in this case by the selection and use of a way along the line defined by the judgment in the court below. We think this position is not supported by either the findings or the evidence. The complaint alleges that at the time of the partition a roadway along this line was opened and laid out for the benefit of the grantees of the tract now owned by plaintiff. This allegation is denied by the answer. The court finds that up to the year 1886 there was a traveled way by which persons coming to *114 the fifty-acre parcel now belonging to defendants crossed that parcel to other ranches (not including the land of plaintiff) beyond, and that from this traveled way there was a turnout across the irrigating ditch on to the property owned by the plaintiff. This road, apparently, was not the one described in the complaint, for the finding goes on to declare that in 1886 a portion of the traveled way was closed, and from that time forward "the traveled way was reverted to the land described" in the complaint. There is no finding, however, of the length of time, prior to 1886, during which any such way was used. A further finding states that for a few years access was had to plaintiff's land from the highway "X," across a tract of land belonging to other parties to the partition decree. There is still another finding that for some years plaintiff obtained access to his property across a third parcel southwesterly of his land. These findings, we think, do not support the conclusion that a right of way across the land of defendants was selected and used in any such definite way as to impress an easement on that land. The findings are entirely vague with regard to the time of beginning and the duration of the period during which such way had been used. In the past, access to the land seems to have been obtained indifferently over any of three routes, one over the land of the defendants, and two over land of other owners. The judgment has the effect of imposing upon the land of the defendants the burden of a roadway one thousand five hundred feet in length, and relieving from the easement other lands having the same relation to that of plaintiff. In view of the fact that all of these parcels had been used for the purpose of reaching plaintiff's land, we think neither the plaintiff nor the court had the right to arbitrarily select the land of defendants and make it alone bear this burden.
It is argued, in support of the judgment, that the topographical conditions were such that a passage over the land of appellants was the only feasible line of travel from plaintiff's land, and that therefore the way of necessity was over this land. There is some conflict in the authorities as to what constitutes a "necessity" sufficient to raise an implied grant of a right of way. Some of the cases hold that the right arises only in case of strict necessity; that it does not exist where the party has another way out, even though such other way can be used only at great inconvenience or expense. *115
(Washburn on Easements, 4th ed., 259.) Other cases adopt the more liberal rule that the necessity giving rise to the easement must be only a "reasonable necessity," and that the party claiming the right is required to show, merely, that no other way could be made without labor and expense "excessive and disproportionate to the value of the property." (Pettingill v. Porter, 8 Allen (Mass.), 1, [85 Am. Dec. 671];Oliver v. Pitman,
Apart from all the foregoing considerations, we think the appellants are entitled to prevail upon their claim that they were purchasers of their land for value without notice of any claim on the part of plaintiff to an easement over the *116
same. The court's findings were that the Uharriets purchased the fifty-acre tract in 1887 for fifteen thousand dollars, which was the full value of the property at that time; that they examined the land before buying the same and saw that it was fenced on three sides, that on the fourth side it was separated from plaintiff's land by an irrigating ditch which was not bridged, that the only entrance to the land from First Street was by a gate which had been kept locked, and that there was no roadway over the land to plaintiff's parcel sufficiently well marked to give notice of any claim of a right of way between the two parcels. The court goes on to find that said purchasers procured an abstract of title before they bought the land, and that said abstract showed no right of way or easement over the land; that the purchasers had no actual notice that the plaintiff, or any of his predecessors in title, had a claim to any right of way or easement over the defendant's land, but that at the time of said purchase there was on record a map of Rancho La Ballona as partitioned, which showed that the property owned by the plaintiff was landlocked and without access to any public highway, "and that this record gave notice to all the subsequent purchasers of any portion of the Rancho La Ballona . . . that said land was entitled to a way of necessity across the other land set apart to other owners in said partition suit. That the defendants are chargeable with constructive notice of said right." The declaration that defendants are chargeable with constructive notice is perhaps a conclusion of law. Whether regarded as a legal conclusion or an inference of fact, we think it involves an undue extension of the doctrine of constructive notice. A purchaser of land for value takes subject only to interests in the land of which he has actual notice or which appear of record. The rule applies as well to easements as to claims of a greater interest. The finding discloses that the Uharriets had no actual notice of any claim on the part of plaintiff or his predecessors to a right of way across the fifty acres, and that there was nothing on the ground to show the existence of any way or road. The instruments in the chain of title did not contain any grant or reservation of such easement. The finding or conclusion of constructive notice is based solely upon the fact that both parcels had been included in a partition, by which the land now owned by plaintiff was left surrounded by other parcels. Under the *117
views already expressed, the information imparted by this fact was merely that the plaintiff's land might have a right of way over some one of the parcels adjoining it. It is true that notice of circumstances sufficient to put a prudent man upon inquiry is constructive notice of whatever he might have learned by prosecuting such inquiry. (Civ. Code, sec.
The judgment and the order denying a new trial are reversed.
Shaw, J., and Lawlor, J., concurred. *118