Adams v. Estate of Smith

SHINN, P. J.

Wilbur Adams and Herman H. Garner, plaintiffs and appellants, are the owners of land in the city of Pomona, improved with a citrus grove, which they acquired in 1925. Defendants and respondents, Smith and First National Bank of Pomona as trustee, are the owners of a citrus grove which was acquired by Fred J. Smith, deceased, in 1885, and which lies immediately west of the grove of plaintiffs. A space some 10 feet or more in width extends along the boundary line of the two properties between the west row of plaintiffs’ trees and the east row of the trees of defendants. Some time prior to 1900, defendants’ predecessor installed a pipe line on this strip which, admittedly, encroaches upon plaintiffs’ property for as much as 2 feet in some places and 5 feet in others. The pipe line is underground, with standpipes coming to the surface. In the irrigation of their grove and other operations thereon, defendants made use of the standpipes and the strip of land in question, as hereinafter set forth. The present litigation arose when it was discovered by plaintiffs that the pipe line was located upon their property. They brought the present action to quiet title. Defendants appeared by answer and also by cross-complaint in which they set up their right to an easement for roadway purposes and for the carrying of water by pipe line over, on and across the westerly 5 feet of plaintiffs’ land, asserting that they and their predecessors in

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interest, for more than 40 years last past, had used said premises for said purposes openly and uninterruptedly and with the knowledge of the plaintiffs and cross-defendants. Plaintiffs and cross-defendants answered the cross-complaint, denying that the land had been so used under a claim of right and alleging that the use was permissive only. The court found that cross-complainants and their predecessors had for more than 40 years last past “openly, continuously, uninterruptedly and adversely” used said parcel of land for roadway purposes and for the' purpose of conveying water to and across their said land for irrigation purposes. The judgment declared defendants and cross-complainants to be the owners of said easements. Plaintiffs and cross-defendants appeal.

The sole ground of the appeal is insufficiency of the evidence to justify the finding as to the adverse character of the uses which defendants have made of the parcel in question. It is said that there was no evidence that defendants’ use of the land was adverse, and that the court should have found the use to have been permissive, although there was no evidence that permission to make use of the parcel had ever been asked or given. Respondents concede that there was no direct assertion upon their part or that of their predecessors of the right to make use of the land and that the finding of the adverse nature of the use rests upon a presumption of adversity which, they say, was properly drawn from the circumstances in evidence. We think the respondents are clearly correct in their position. The rule which governs was stated in