Fristoe v. Drapeau

[7]

GIBSON, C. J.

This action was brought to enjoin interference with the use of a roadway constructed by the common grantor of the parties. Defendants have appealed from a judgment which decrees that the parties have an equal right to use the roadway as a means of ingress and egress to and from their respective parcels. Defendants also noticed an appeal from an order denying their motion for a new trial. The order is nonappealable, and the attempted appeal therefrom is dismissed. (See

Casner

v.

Daily News Co., Ltd.,

16 Cal.2d 410, 415 [106 P.2d 201];

cf., Fickett

v.

Rauch,

31 Cal.2d 110, 111 [187 P.2d 402].)

The Whittier Extension Company, the common grantor of the parties, constructed a permanent gravel roadway with concrete retaining walls running through a tract of land which it owned. The roadway connected with a public highway, Oak Canyon Drive, and terminated within the tract. Thereafter the Whittier Company planted lemon and avocado groves on the tract and subdivided it, the division being made so that the boundary lines followed the roadway in such a manner that it could be used to serve each parcel. The roadway after it leaves the highway runs along the boundary between defendants’ parcel and land belonging to third persons, not parties to this action, until it reaches the boundary of plaintiff’s land, and thereafter it runs partly on plaintiff’s and partly on defendants’ land, ending at a turnabout. Before any of the parcels were sold the road was used by the Whittier Company for ingress to and egress from all parcels for the pruning of trees, fertilization, irrigation, harvesting of crops, spraying, inspection and other work incidental to growing lemons and avocados.

The parcel owned by plaintiff was purchased by her predecessor from the Whittier Company in 1930. The deed from the company did not contain any express grant of a right to use the roadway, but it did reserve to the company the right to use the portion of the roadway lying within plaintiff’s parcel and also the right to dedicate that portion to public use. There was evidence that because of the hilly nature and steepness of the slope of plaintiff’s property it was practically impossible to service the lemon and avocado groves thereon except by using the private roadway. Defendants purchased their parcel from the Whittier Company in 1946 and thereafter threatened to interfere with plaintiff’s use of the road.