Stevens v. Mostachetti

McCOMB, J.

Defendants appeal from a judgment in favor of plaintiffs after trial before the court without a jury in an action to establish a right of- way across defendants’ land.

Defendants are owners of a ranch in Santa Barbara County known as the “Romo Ranch," which is situated westerly from and below a mountain ranch belonging to the plaintiffs and known as the “Sawyers Ranch." For more than thirty-five years plaintiffs have used a roadway across the Romo Ranch. The trial court gave judgment in favor of plaintiffs for an easement and right of way across defendants’ ranch.

Defendants urge reversal of the judgment on the following proposition:

There is not any substantial evidence to sustain the trial court’s findings:

(1) “. . . that it is not true that the use made of said roadway by plaintiffs was permissive, but as a matter of fact said use made by the plaintiffs was hostile, adverse and under a claim of right”;

(2) “That it is true that the plaintiffs have no plain, speech) or adequate remedy in law i/n that said easement and right of way is the only means of access to and from their said property”; and

(3) “That it is true that said easement and right of way which plaintiffs own is particularly located and described as follows: A certain twenty (20) foot strip of land extending from the southerly boundary line of the said real property of the plaintiffs over and upon the said real property of the defendants to the most northerly termination of Fair view Avenue. . . .”

This proposition is untenable.

(1) The record contains evidence that plaintiffs for more than thirty-five years have used the roadway across defendants’ ranch. Such evidence gives rise to a presumption that the use was under a claim of right and adverse

(Rose

v.

Peters,

59 Cal.App.2d 833, 835 [139 P.2d 983] ;

Wallace

V.

Whitmore,

47 Cal.App.2d 369, 373 [117 P.2d 926]), and such presumption is sufficient to sustain such a finding. Therefore the first finding questioned is sustained by the evidence.