Sanger v. Southworth

[17]

MARKS, J.

This is an appeal from a judgment decreeing that the northerly 15 feet of property owned by defendants in San Ysidro in San Diego County, is subject to an easement in the plaintiff for egress and ingress as a part of an easement for public street purposes and enjoining defendants from blocking or in any way interfering with the passage of plaintiff or his agents or assigns over the easement.

We have had considerable difficulty in understanding the evidence and in determining the factual situation involved in this case because of the manner in which it was tried.

Evidently in the trial court a map (plaintiff’s Exhibit 2) was used by the witnesses to illustrate their testimony. The plaintiff and other witnesses, evidently pointing to this map, testified that certain things like pavement, street grading, sand and gravel on the way, sidewalks, etc., were here or there or ran from here to here or here to there. There is nothing on the map or in the record to indicate where “here” or “there” might be. While this evidence was understandable to the trial judge who saw the witnesses pointing out “here” or “there” on the map, it means little to us here.

A careful study of the record and the exhibits leaves us uncertain about much of the evidence in this case. However, counsel for plaintiff, in his brief, has set forth facts that to some extent are enlightening. As those statements are not contradicted by defendants in their brief we will assume their correctness. Our statement of facts will be based on those parts of the record we can understand, supplemented by the statements of counsel in his brief. If errors occur in our statement it should be remembered that we are trying to do the best we can with an unsatisfactory record on appeal.

Plaintiff acquired Lot A-99 in San Ysidro in 1929, and has occupied a considerable portion of it ever since. In 1930, he sold a portion of this land to his nephew who subsequently sold the same portion to defendants. The deed from plaintiff and his wife to his nephew contained the following: “Reserving to the grantors the right to dedicate the East 15 feet thereof, and the North 15 feet thereof to the public for road purposes.” Probably some time in 1944, or shortly thereafter, defendants constructed a fence across the north 15 feet so reserved. Plaintiff removed this fence and brought this action on September 28, 1945.