Crossett v. Souza

THOMPSON, J.

This action was commenced for the purpose of quieting plaintiff’s title to four and three-quarters acres of land near Occidental, Sonoma County— and in particular against the claims of defendants to a right of way across the same. The defendants interposed a cross-complaint setting forth their claims to the right of way, but not otherwise contesting the ownership of plaintiff. Judgment was rendered in favor of defendants, decreeing them to be the owners of an easement of a right of way fifteen feet wide across the lands of plaintiff. This appeal from the judgment is prosecuted by the plaintiff.

Responsive to the issues framed by the pleadings the trial judge made findings to the effect that for more than five years prior to the commencement of the action the defendants and their predecessors in interest had traveled over the right of way (which is specifically described) “with horses, vehicles and on foot . . . continuously, openly, notoriously, peaceably, uninterruptedly, under claim of right and adversely to the plaintiff and his grantors ...” as a means of ingress and egress to their own property adjoining

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that of plaintiff, and were by reason thereof the owners of an easement therefor. It is immediately obvious that the real question on this appeal is whether the evidence supports the findings. It will be sufficient, therefore, if we set down the evidence adduced by the defendants to sustain their claims. It appears that prior to 1910 the road was in use and has been used regularly, except for the interruptions hereafter noted, since that time by neighbors, deliverymen and others. In fact, the southerly portion of the road, it was testified, had been in use for forty years prior to the trial, but the location of the northerly portion had been changed—apparently prior to 1910. Those using the way graded the road occasionally with the county grader (from 1924 to 1928 every year), and graveled it to some extent. In 1911 A. D. Bush and his family lived on the Souza property and traveled the road, and later another Bush family. Then in 1920 and 1921 a family named Taduccis did the same, and following them the second Bush family again. The testimony also discloses that while there were two other roads leading to the Souza property they were difficult of passage, and in fact impassable to automobiles during the rainy season, as a result of which all the neighbors used the Crossett road exclusively in the wintertime. The respondents purchased their property April 12, 1924, and occupied it almost immediately. They used the road in question continuously except for the interruptions, if they can be called such, we will now mention. In October or November, 1928, plaintiff erected iron gates at each end of the road, but did not lock them. About September of that year appellant called on Mrs. Souza, her husband not being at home, by reason of his employment with the Northwestern Pacific Railroad, and induced her to sign the name of her husband to a paper requesting the privilege of passing across appellant’s property, and agreeing to pay one dollar for the right for the period of one year from date. The testimony discloses that she never said anything concerning the incident to her husband and that he did not know anything about it or authorize her to enter into any such arrangement. The gates however were not locked until some time in October or November, 1929. After Mrs. Souza and some other ladies protes