Walter G. Brix, Inc. v. Brown

[178]

McMURRAY, J. pro tem.

*

This is an appeal from a decision denying plaintiff injunctive relief or damages.

Plaintiff claimed to have acquired by grant exclusive rights of way for lumbering purposes over a route through two separately owned, but contiguous, parcels of real property. Plaintiff learned that the existing roadway traversing these separate pieces of property was being used by defendants’ logging trucks and equipment as a means of access to a logging operation defendants were conducting. Defendants had constructed a branch road from their operation to the road over which plaintiff claimed it had the exclusive right of way. Defendants, as an affirmative defense, alleged that the road which plaintiff claimed exclusively had been in general use for over forty years as a public highway. The trial court found in accordance with this affirmative defense and denied plaintiff any relief.

On this appeal appellant urges that the evidence is insufficient as a matter of law to sustain the finding that the roadway was dedicated to a public use; that the judgment is contrary to law in that the trial court did not limit the nature and use of the road to those acquired by public use.

A long acquiescence by a landowner in public use will operate as a dedication of a road to such use.

(Taft

v.

Tarpey,

125 Cal. 376, 381 [58 P. 24];

Schwerdtle

v.

County of Placer,

108 Cal. 589 [41 P. 448].) Furthermore, there is a general presumption that a use by other than the owner is adverse and not permissive, and that, while this presumption is not as strong when the land is open and uncultivated and remote as it is when it is enclosed, cultivated and developed, the presumption exists in either case.

(People

v.

Sayig,