Kaler v. Brown

SHINN, P. J.

This action was brought by Alfred H. Kaler, Jr., and wife against Harold Brown and wife for an injunction to restrain defendants from interfering with the use by plaintiffs of a driveway located on the property of defendants over which plaintiffs claim to have a right-of-way for ingress and egress to and from a garage located on their lot. Plaintiffs also sought damages. Judgment was for defendants and plaintiffs appeal.

[717]

In 1913 Alfred M. Kaler, Sr., owned Lot 62 in the Segno Tract in Los Angeles and constructed a dwelling thereon. Lot 63 adjoining was owned by a Mr. and Mrs. Stevens and in 1915 or 1916 they constructed a residence on their lot and occupied it as a home. The two residences faced toward the west, the Stevens’ home being the northerly of the two. Along the southerly side of the Stevens’ house a narrow cement walk extended from the front to the rear of the building, a distance of about 40 feet. There was room for a driveway on the Stevens’ property but only 3 or 4 feet on the Kaler property between their house and the north line of their lot. At the southeast corner of the Stevens’ property there was a small garage and the Kalers built a small garage on the northeast corner of their lot. In 1917 Kaler, Sr., had a conversation with Mrs. Stevens which he related on the stand as follows: “I asked Mrs. Stevens if she would object to my placing the two strips in there on her property such as was required. She said, ‘Go ahead and put it in’ and that’s all there was to it.” Kaler, Sr., then constructed a driveway consisting of two cement strips about 1% feet wide using therein the cement walk which extended along the south side of the Stevens’ house. The work took parts of two Sundays. Some friends assisted in the work gratuitously and there was a small expenditure for materials, the amount of which was not given in evidence. Neither the Stevens nor the Kalers had an automobile at that time. Kaler, Sr., bought a car in 1919 and made use of the driveway up to a point in the rear of the buildings where he veered off from the Stevens’ lot onto his own. No objection was made to his using the driveway in this manner. In 1934 Kaler moved to San Francisco, where he remained until 1944, returning to Los Angeles on from two to four occasions a year, during which brief visits he would sometimes put his car in the Kaler garage, and sometimes leave it on the street. In 1944 the Kaler property was conveyed to the plaintiff Kaler, Jr., and his wife, and they occupied the premises from that time on. In the meantime the Stevens’ property had been sold to Mr. and Mrs. Gracey, who moved into the premises with their daughter, Jessie Howard, and her husband. They lived there from 1930 to 1938. In 1932 the property was conveyed to the Howards. Sometime thereafter, and after Kaler, Sr., had moved to San Francisco, Mrs. Howard and Mrs. Kaler had a disagreement. Mrs. Kaler had allowed some young men who lived across the