13 P.2d 1008 | Cal. Ct. App. | 1932
In 1915 Walter Rueger purchased certain lots of Muir Woods Park Subdivision Six in Marin County. These were part of what is known as the "Lapachet" property. In 1921 Joseph Mischke acquired other lots thereof, and later Alfred Schudel, Ernest Schudel and Gustav E. Kirchner became the owners of yet others of these lots. All of said Lapachet lots are adjacent to lot 53, designated as the "O'Hair" property, on the northeast. This last-mentioned lot fronts in a southeasterly direction on Marin View Avenue. Rueger acquired a strip ninety feet wide off the northeasterly portion of lot 53 and adjoining all said Lapachet lots. This strip was purchased in three separate parcels, the first thereof in August, 1919; the second in November, 1921, and the third in January, 1922. In 1922 Mischke acquired from Rueger the portion of the ninety-foot strip which adjoins his Lapachet lots, and in May, 1927, the Schudels and Kirchner jointly purchased the part adjacent to their Lapachet lots. In June, 1927, Lilly Alice Hertz, through purchase, acquired the Lapachet lots theretofore owned by Rueger as well as his remaining part of the ninety-foot strip. In March, 1928, Mrs. Hertz purchased from P.E. O'Hair Realty Company the remainder of lot 53. Later Mrs. Hertz fenced her property. Action was brought by Mischke, the Schudels and *566 Kirchner against Mrs. Hertz to quiet title to an easement for right of way across lot 53 to Marin View Avenue, a public highway. Judgment was for defendant, and from this plaintiffs appealed.
In appellants' opening brief easement is claimed on two grounds, to wit: under the provisions of section
The evidence shows that all of the Lapachet property in question is very rough; that lot 53 was owned by P.E. O'Hair until it was transferred in June, 1922, to P.E. O'Hair Realty Company; that it consists largely of a grassy knoll, and that until fenced by respondent shortly before the commencement of this action, was uninclosed and uncultivated land of approximately three acres; that appellants and Rueger, their predecessor in interest, sometimes drove and walked upon and across lot 53 to reach their property, and at other times they arrived there by other ways. Appellants' testimony is that though access thereto was originally had by foot along the trails, it was later reached by the use of automobiles. Walter Rueger testified that before and at the time he completed the purchase of the parcels of lot 53 which comprise the ninety-foot strip, he drove across said lot to reach his own property over a well-defined road; that he continued to use this road until he disposed of his interest in the property; that he had claimed a right of way across said lot because Emile Lapachet had told him before he purchased the ninety feet that he (Rueger) was entitled to such right of way. Appellants testified that they used the above-mentioned road until a fence was erected by respondent. Doctor Gustav Kirchner, one of the appellants, testified regarding the roadway in question as follows: "Q. *567 Now at the time that you purchased Lots 159, 160 and 161, was there a road leading from that property to Marin View Avenue? A. There was a place where driving was done. It was practically around this hill, but it was not used every day; people up there usually are there only week ends. . . . Q. Well, you have described the character of the road across there when you first began to own it; later on was that road more definitely marked? A. When I first began to know it, it showed traces of having been worked some time before, but in this section in one winter the weeds grow so fast that the soil is quickly overgrown, but when I began to clear out the road there I had to make no measurement or not to make any guess at it. I simply followed what was evidently a road before, because it began to lead out in the level here and I followed that same way." Joseph Mischke, one of the appellants, testified as to the existence of the road in 1922. He was asked, "And that road was well marked on the ground, was it?" His answer was, "It was marked enough that a person could not really miss it."
In opposition to the foregoing, Emile Lapachet, who acted as agent of the grantor in the sale of the ninety-foot strip to Rueger, testified that the property in question, including the Lapachet lots, was located in what was known as a "Hiker's Paradise"; that this property was sold for hillside cabin sites; that the subdivision in question was laid out for such purpose; that access was to be had over trails, and that the purchasers acquired their property with a view of reaching it by such means; that some years after the subdivision was so laid out the public generally began to use lot 53 for parking automobiles and for picnic purposes; that there were numerous automobile tracks in various portions of the lot, but there was at no time a road across the lot; that there was no definite line of travel leading from the property of appellants or their predecessor to Marin View Avenue. He denied that he had told Rueger that the latter was entitled to a right of way across lot 53, but testified that some months after Rueger had completed the purchase of the ninety-foot strip Rueger told him he would like to have a right of way across lot 53, and asked him (Lapachet) to interview O'Hair for the purpose of obtaining it. Wesley M. Nelson testified that he had a conversation with Rueger in the year 1927, while Rueger still owned part of *568 the property, and that Rueger then told him that he had no right of way across lot 53, and that he claimed none. Respondent testified that she was first upon the property in the early part of 1927, and that there was no roadway across lot 53 at that time; that appellant Kirchner told her he had no right of way over lot 53, and that he wrote her a letter in January, 1928, to the effect that he had been informed she had purchased the remaining part of lot 53, and that he was convinced that she would grant appellants the privilege of driving over her property (lot 53). Alfred Hertz, husband of respondent, also testified he was on the property in question about the year 1927, and that there was no roadway across it. The evidence also shows that the grantor, P.E. O'Hair, and his successor, P.E. O'Hair Realty Company, did not use lot 53 in any way for travel and had not laid out or constructed any roadway across or upon any portion of said lot.
Portions of the court's findings relative to the description and use of the property in question are as follows: "The Court finds, that Lot 53, during all of the time that the whole of, or any portion of it, was owned by P.E. O'Hair or the P.E. O'Hair Realty Company, and until on or about the 25th day of October, 1928, was open, uninclosed land; that at any place thereon for a distance of 200 feet along said Marin View Avenue one could drive with an automobile or truck on to Lot 53; that during all of said time it was a pasture ground for cows; many people used it as a picnic ground; drove out there and parked their machines, it was a natural place to park, a portion of it was level and over the steeper parts there was a cow trail which people followed, trucks delivered lumber and material, and delivery wagons drove across it; people used it as a common parking place; there were tracks across it in all directions. . . . And the Court further finds that there never was at any time or at all, or now is a right of way either marked out or constructed across any part of the premises of defendant. . . . That no roadway whatever across said Lot 53, or any part thereof, was ever laid out by said Walter Rueger, or any other person."
[1] It is essential that one whose claim of a right of way is based on section
[3] As to prescription: Appellants allege "that immediately upon acquiring title to the . . ." first-purchased parcel of the ninety-foot strip, "Walter Rueger laid out a road from the said property so purchased on said 30th day of August, 1919, across said Lot 53 to the said Marin View Avenue", said road being described by metes and bounds. Then follow allegations of user of this road for the necessary period. The court found specifically that no road was so laid out. Appellants attack this finding. There was no evidence to support the allegation in so far as the term "laid out" is generally used. Whether such roadway was so laid out is not essential. It is necessary to appellants' claim of easement by prescription, however, to show that there was a definite way across lot 53 (19 Cor. Jur., p. 899; Vestal *570
v. Young,
[5] Appellants complain of the court's finding regarding the claim for right of way for a pipe-line across lot 53. They allege that such line was laid by Walter Rueger. The court's finding is to the contrary. It found that the pipe-line was constructed by the Marin Municipal Water District, and this is supported by the testimony of the witness Rueger. The evidence shows that it was constructed and maintained by the water district.
[6] As heretofore stated, appellants in their opening brief clearly rely on a right of way by prescription and under the provisions of section
The court's findings are supported by the evidence and its conclusions of law logically follow from the findings. The judgment is affirmed.
Knight, Acting P.J., and Cashin, J., concurred. *573
A petition for a rehearing of this cause was denied by the District Court of Appeal on September 26, 1932, and an application by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on October 24, 1932.