Sullivan v. Kantel

McCOMB, J.

This action was instituted by plaintiff to establish his right to a right of way and easement over land owned by defendants Fred Kantel and Alice Kantel, and to recover damages for wrongful destruction of and interference with the alleged right of way by defendants.

Facts:

Plaintiff owns a 60-acre piece of land located about a mile from Pine Canyon Road, which is the nearest public highway in the vicinity. A road runs from plaintiff’s land oyer the lands owned by defendants to Pine Canyon Road. Shortly after defendants took possession of their land in the latter part of 1949, defendant Fred Kantel destroyed a portion of the road across defendant Alice Kantel’s land, making it impossible for plaintiff to travel to and from his property over such road.

The major portion of the road runs from Pine Canyon Road over land owned by defendant Fred Kantel up to defendant Alice Kantell’s land. The remainder of said road or right of way, which runs across defendant Alice Kantel’s land, was built in 1924 by Mr. Munz, who at that time owned the entire parcel of 80 acres, of which defendant Alice Kantel now owns 20 acres and plaintiff 60 acres.

After trial before the court without a jury, judgment was entered in favor of defendant Alice Kantel against plaintiff and in favor of plaintiff against her codefendant. Costs were awarded only to defendant Alice Kantel.

These are the only questions necessary for us to determine:

First:

Did the trial court properly find that the following allegations in plaintiff’s complaint were untrue?

[725]

I

“For more than fifteen years immediately last past there has been an open, notorious, continuous and uninterrupted use of said road or right-of-way running from Pine Canyon Road across defendants’ land to plaintiff’s land, which use has been under claim of right, hostile to the true owner or owners and under claim of right adverse to said defendants, and their predecessors in interest, and by reason thereof plaintiff is entitled to an easement or prescriptive right-of-way as herein described in and over the defendants’ land.”