Beyl v. Yasukochi

SHELL, J. pro tem.

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This is an action to quiet title to an easement over a strip of land belonging to defendant. The easement is claimed by the plaintiffs to have been established prescriptively by adverse user by themselves and their predecessors in interest across defendant’s land as a means of ingress to and egress from plaintiffs’ land. Judgment was rendered by the trial court in favor of plaintiffs. Defendant has appealed from the judgment.

Only two questions need be considered upon this appeal. They are:

1. Should the findings and judgment be modified to correctly describe the dominant tenement?

2. Should the judgment be modified to limit the easement to one for ingress to and egress from the plaintiffs’ property?

Question number one must be answered in the affirmative. Respondents’ property is in fact in Section 31, Township 11 South, Range 2 West, San Bernardino Base and Meridian, and not in Section 36, Township 11 South, Range 3 West, San Bernardino Base and Meridian, as indicated in both the findings of fact and the judgment. The erroneous description used in the findings and judgment would place respondents’ land several miles away from appellant’s land, and not contiguous thereto, as is the fact and as was conceded by the parties, and as- shown by the map of the survey made of the properties introduced in evidence as plaintiffs’ Exhibit 1.

By reason of the provisions of section

4%,

Article VI, of the California Constitution, and section 956a of the Code of Civil Procedure, a reviewing court may make findings contrary to or in' addition to those inadvertently made by the trial court.

(Sessions

v.

Trott,

220 Cal. 714, 717 [32 P.2d 374] ;

Rissman

v.

National Thrift Corp.,

139 Cal.App. 447, 451 [34 P.2d 230] ;

Church

v.

Goldston,

133 Cal.App.2d 512, 514-515 [284 P.2d 508].) The findings of fact made by the trial court and the judgment are therefore modified by substituting for such erroneous description of respondents’