Day v. Robison

NOURSE, P. J.

Plaintiff sued for an injunction and damages for trespass; defendants cross-complained asserting an easement and seeking damages for failure of consideration. Judgment was entered awarding defendants an easement for ingress and egress and denying all further complaints.

Plaintiff as owner of a large tract of land in the city of Kentfield placed in the hands of a real estate broker the lot purchased by the defendants and delivered to him a map showing a road on the northerly and easterly sides of the lot and a 20-foot lane on the westerly side. The broker turned the lot over to another broker who showed the lot to the defendants along with plaintiff’s map showing the lane and, after assuring them that they would have the use of the lane, made the sale which was accepted by plaintiff. The lane was in existence for more than 29 years and was being used, at the time of the sale herein mentioned, by two other adjoining property owners.

These facts were all found to be true, and the findings are supported by competent evidence.

The controlling question of law is found in

Prescott

v.

Edwards,

117 Cal. 298 [49 P. 178, 59 Am.St.Rep. 186], where (p. 304) the Supreme Court said: “The sale by the map, or with reference to the streets upon it, was a sale not

[624]

merely for the price named in the land but for the further consideration that the streets and public grounds designated on the map should forever be open to the purchaser and to any subsequent purchasers in the town. This was an essential part of the consideration. The purchaser took not merely the interest of the grantor in the land described in his deed, but as appurtenant to it an easement in the streets and in the public grounds named, with an ample covenant that subsequent purchasers should be entitled to the same rights. ’ ’

The Prescott case is cited in

Smith

v.