Clark v. Clark

VAN DYKE, P. J.

This case involves a claim of plaintiffs and respondents to a right of way for road purposes over a strip of land 40 feet wide and one mile long, constituting the north 40 feet of the south half of the north half of Section 18, Township 15 North, Range 1 East, M.D.B.

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M. in Sutter County. Plaintiffs joined as defendants the owners of the entire 40-foot strip which we shall hereafter call the roadway. The record disclosed that long ago one Jim Jones owned the whole section and that he and his neighboring landowners had used the 40-foot strip across the section as a roadway. Prior to 1900 the strip in use lay along the south line of the north . half of the north half of the section. About 1900 the roadway was shifted 40 feet south to its present location. Use was made of the relocated roadway by successors in interest of Jim Jones from that relocation to the present time. The use was not chronologically continuous. There were interruptions due to various causes. For instance, in 1940 a flood so encumbered the eastern end of the roadway as to make it impassable to any but heavy-powered machinery, such as farm tractors. How many people used the roadway is not made certain by the testimony, but the record sufficiently shows that a fairly continuous use was made and that after the relocation and, indeed, even before that, there was a definite location of a 40-foot strip across the section. At times the surface was scraped and graded. Prior to 1936, however, the north half of the section containing the roadway came into the ownership of Sutter Buttes Land Company and respondents’ title comes down to them from a grant made by Sutter Buttes

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Land Company to their predecessors in interest in 1936. So far as respondents’ claims are concerned, they cannot go back of this grant to their predecessors in interest because, the easements being private, the grantor, by owning the fee, had merged in itself the entire title irrespective of what prior use others may have made of the roadway. Nevertheless the testimony above referred to concerning the use of the roadway by Jim Jones and his neighbors is material as being some proof that the claimed adverse user by respondents and their predecessors in interest was over the same strip of land that had been so long used, for road purposes. In 1936 Sutter Buttes Land Company conveyed to respondents’ predecessors in interest approximately 24 acres of land, the north boundary of which ran approximately along the center line of the roadway for a distance of 1,220 feet east from the west line of Section 18. In 1948 Sutter Buttes Land Company conveyed to appellants the strip of approximately 20 feet in width lying between respondents’ north line and the north line of the roadway. Thus respondents and appellants have a common boundary along a line approximating the center of the roadway for a distance of 1,220.6 feet. Respondents claim road easement rights over the north 20 feet of the roadway strip along the common boundary. The deed to appellants from Sutter Buttes Land Company also conveyed to them the fee of the roadway strip easterly from the end of said common boundary to the north and south center line of the section. The balance of the fee to the roadway still remains in Sutter Buttes Land Company against whom a default judgment was rendered in favor of respondents.