Moots v. Kasten

MOORE, P. J.

Appeal from a judgment in favor of plaintiff awarding her an easement 9 inches in width over appellant’s property alongside respondent’s driveway which extends from the garage in the rear of her house to the street.

Appellant and respondent own and occupy adjacent properties on North Harvard Boulevard in the city of Los Angeles. Both lots face west and respondent’s property lies to the north of that of appellant. The concrete driveway extends along the lot line and is entirely upon respondent’s land. The south wall of her residence is approximately 1 foot from the north edge of her driveway with the exception of a chimney which protrudes from the wall to the driveway. The distance from the chimney to the southernmost edge of the driveway is approximately 78% inches.

In August, 1946, appellant erected a cement wall 3 to 5 feet high from approximately the front of her house rearward to the front of respondent’s garage. The wall was entirely upon and approximately 1 inch inside of appellant’s property. The construction of the wall resulted in a net clearance of 79% inches between respondent’s chimney and appellant’s wall.

After the erection of the wall respondent commenced the instant action alleging that an easement by prescription, appurtenant to her premises, had been acquired by virtue of the fact that portions of the running boards and fender parts of respondent’s automobile and of those of her visitors had extended over the imaginary line between the two properties during the period necessary for the acquisition of an easement. The court after full hearing personally viewed the premises, made findings and entered judgment that respondent “is the owner of an easement appurtenant . . . for a right of way over” 9 inches of appellant’s property abutting respondent’s driveway and extending from the street to the rear of respondent’s house. The court also ordered appellant to remove her wall, enjoined its reereetion and awarded respondent $168 damages.

[736]

Appellant contends that the evidence does not support the finding of adverse user. The pertinent finding is as follows:

“Before the wall was constructed, automobiles using the driveway were driven along the extreme south side thereof to avoid contact with the chimney of plaintiff’s house, and in being so driven a portion of the automobiles, approximately nine inches in width,