No. 19384 | Cal. | Aug 13, 1894
This action is brought for a perpetual injunction to restrain the defendant from obstructing an alleged alleyway situated between the respective lots of land of the parties. The relief prayed for was granted, and this appeal is prosecuted from such judgment and an order denying a motion for a new trial. Defendant claims title in fee to the land covered by the alleged alley or way, and bases her right to obstruct the same as grantee of one Rhinehart under a certain deed made to him by one Winbigler, the original owner of the entire tract. At the date of this deed he held the title in fee to the strip in dispute, unless it had been previously dedicated.
Appellant insists that the deed from Winbigler passed the title in fee to Rhinehart, and - she now relies upon the Rhinehart title; and the determination as to the character of title that passed under that deed is determinative of the case. It recites: “I, David Winbigler, for value received, do hereby grant to W. V. Rhinehart, his heirs and assigns, for the sole purpose of an alleyway, to be used in common with the owners of other property adjoining said alleyway, all that tract of land,” etc. We think this deed is an express grant of an easement—a right to the use and nothing more. Section
Section 1105 of the Civil Code declares that a fee-simple title is presumed to be intended to pass upon a grant of real property, unless it appears from the grant that a lesser estate was intended; and in this case it clearly appears from the grant that a lesser estate was intended. Appellant invokes a principle laid down in section 1070, that, if several parts of a grant are irreconcilable, the former part prevails, and she now declares that this grant was to Rhinehart and his heirs and assigns; that these words conveyed an estate in fee, and that the subsequent language of the deed attempted to create limitations and reservations inconsistent and irreconcilable with the title already created. We think the principle here invoked has no application to the present case. There are no irreconcilable parts to this grant. Indeed, there is but one part to it, and that is essentially the grant for a use.
Many of the cases cited by appellant hold that a prohibition of the use of property granted, inconsistent with the title conveyed, is void. A notable case to this effect is Eldridge v. See Yup Co., 17 Cal. 44. It is there held that if land be conveyed in fee-simple, and the habendum clause of the deed attempts to limit the use, such attempted limitation is of no effect, as being inconsistent with the fee title. But the present case is not
For the foregoing reasons, the judgment and' order are affirmed.
Van Fleet, J., and Harrison, J., concurred.