Carroll v. Agliano

MARKS, J.

This is an action to quiet .title to an easement 20 feet wide and 675 feet long for use as a private roadway over defendants’ property. Defendants’ answer denied the material allegations of the complaint. They filed a cross-complaint seeking to quiet their title to the roadway. Judgment went for defendants and cross-complainants and this appeal followed.

[47]

Plaintiffs base their claim of title to the roadway- on prescriptive use for many years. Such use by plaintiffs and their predecessors is fully established by the evidence, but whether that use was adverse and under claim of right or was permissive is the important question for decision here. If the use of a roadway by a neighbor is with the express or implied permission of the owner of the property over which it passes its continued use is not adverse and cannot ripen into a right.

(Pacific Gas & Electric Co.

v.

Crockett etc. Co.,

70 Cal.App. 283 [233 P. 370];

Nay

v.

Bernard,

40 Cal.App. 364 [180 P. 827];

Irvin

v.

Petitfils,

44 Cal.App.2d 496 [112 P.2d 688];

Los Angeles etc. Co.

v.

Los Angeles,

60 Cal.App.2d 478 [141 P.2d 46].)

Plaintiffs rely on the rule that where the use of the way was so continuous and so openly and notoriously adverse as to justify the inference that the owner of the land should have had knowledge that the use was under claim of right, a prescriptive right may be sustained. (See

McMorris