Weideman v. Staheli

MUSSELL, J.

This is an appeal from a judgment for defendant and from an order denying new trial in an action for injunction and damages.

Plaintiffs own approximately 470 acres of land situate in a mountain canyon in the county of Riverside, and defendant owns 80 acres adjoining on the east. Defendant acquired his property in 1927, and until July of 1946, used a roadway over a portion of the property now owned by plaintiffs to

[615]

reach his ranch which was farther up the canyon. In June of 1946, plaintiffs acquired their property and the following month defendant employed the owner of a bulldozer to make repairs to the roadway including that portion which crossed plaintiffs’ land. When the repairs were almost completed, plaintiffs stopped the work and commenced this action for damages and an injunction against further trespass by defendant.

Defendant produced evidence substantially as follows: That the only way by which he could get to and from his ranch was over a roadway through a canyon which crosses plaintiffs’ property; that in 1927 the roadway was in good condition for pedestrian and vehicular traffic and for almost three years thereafter defendant, who was in poor health, lived continuously on his ranch, constructed buildings thereon and used the roadway for automobile travel some four or five times a week to go to and from his home; that defendant’s health improved and in the latter part of 1929 he returned to his former home in Manhattan Beach but continued to visit his mountain property, using the roadway some twenty or more times a year until 1940; that defendant used the roadway four or five times in 1940, two or three times in 1941 and 1942, once in 1943, and once in 1945; that in 1941 winter rains made three washouts in the canyon rendering the roadway impassable for automobile travel and it was necessary that defendant travel part of the distance to his ranch on foot; that after the washouts defendant was unable to secure equipment to repair the roadway until July, 1946, when he secured a bulldozer to make the necessary repairs; that defendant used the roadway without any objection from anyone until April 21, 1946, when he found a chain across the road and plaintiff Weideman informed him that he owned the property and questioned defendant’s right to go over it; that there was no damage to plaintiffs’ property from the road work and that defendant at no time intended to abandon his property or the roadway. Defendant employed a licensed surveyor who made a survey and map setting forth the legal description of the center line of the used roadway and testified as to its location on the ground. There was a conflict in the testimony as to the use of the roadway and the damage, if any, done. The conflict was resolved in favor of defendant and the court found that defendant obtained title to the roadway in question; that he used it continuously and uninterruptedly for the full prescriptive period and for years