Gaither v. Gaither

WARNE, J. pro tem.

*

This is an appeal from a judgment declaring appellants and respondent to be joint owners of an easement in a driveway in connection with the use of their respective properties for residential and agricultural purposes, including therein the use of said driveway by mobile trailer units.

It appears from the evidence that in 1945 the appellants and respondent and her former husband acquired the tract of land involved in this case as tenants in common. The land is located in Sutter County and has a frontage on Live Oak Highway. During that year appellants and respondent and her former husband each built a house upon the premises, which was used by them as their respective residences. These houses front on Live Oak Highway and are approximately 40 feet apart. At that time there was a road approximately midway between the two houses, which road ran from the highway a distance of 539.5 feet to a well and pumping plant. This road was used jointly by the parties as a means of ingress and egress to their respective homes and also for the farming of the land to the rear of the premises. It appears that this road was later graveled and thereafter jointly maintained and used by the parties as a driveway.

In December of 1946, the parties partitioned the property so that the boundary line between the properties extended down the middle of the driveway. The driveway was 20 feet wide.

At the time the property was partitioned the parties entered into an agreement in writing covering their rights to the

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trees, pump and well on the property. This agreement did not, however, mention the existing driveway but provided: “In the event the parties decide to subdivide their respective holdings after partition, a street running east and west shall be laid out as nearly as may be practical through the center of said tract, one-half the land for which shall be provided by Clarence and Sarah and one-half by Sherman and Ruth, or in ease their contributions thereto are not exactly equal a money adjustment shall be made to equalize the difference.”

The property has not been subdivided; and the appellants and respondent, who has succeeded to her former husband’s interest therein, have continued to use and maintain the driveway as they had prior to the time they' divided the property, with the exception that in 1949 appellants built a rental house to the rear of their home; respondent built two. houses to rent, one in 1954 and one in 1955; and the tenants of both parties have used the driveway in question. The driveway was also used by a tenant to whom respondent rented house trailer parking space for about a year during the years 1949-1950.