Zeller v. Browne

DORAN, J.

The defendants, husband and wife, are appealing from a judgment which “Ordered, Adjudged and Decreed that the plaintiff is the owner of an easement for a

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walk and stairway and for a retaining wall securing the same together with the right of ingress and egress over and along that certain real property,” thereafter described, belonging to the defendants. The judgment permanently enjoined defendants “from maintaining any encroachments” in reference thereto and from “interfering in any manner with the easement adjudged to belong to the plaintiff or in the use and enjoyment thereof by plaintiff.”

The record discloses that the property involved in this controversy, namely, Lots 39 and 40, adjoining hillside lots in Alhambra, California, had been owned by Roy L. Robinson and wife for more than 20 years. On November 14, 1946, Lot 39 was conveyed by the Robinsons to Frederick Zeller, plaintiff and respondent herein, and Mrs. Zeller

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on September 22, 1948, Lot 40 was conveyed by the Robinsons to defendant-appellant Dorothy A. Browne who, in turn, deeded Lot 40 to George T. Browne, husband and appellant.

During the period of the Robinsons’ ownership (from 1917), the residence building on Lot 39 was occupied by Mr. and Mrs. Robinson; the house on the contiguous Lot 40 was rented to tenants by the Robinsons during the same period. The two residence buildings are located on the side of a hill, each has a separate entrance by steps from the street; the buildings are parallel to each other and are cut in the hill at the rear which has about a 40 per cent grade.

There is substantial evidence in support of the trial court’s finding, “That for many years prior to November 14, 1946, Robinsons had continuously occupied the house located on said Lot 39 and had used and maintained a concrete block walk on the northerly side of said house and concrete steps and stairway leading to a higher elevation at the rear of said house together with a concrete retaining wall along the northerly side of said walk and stairway; that a small portion of said walk, stairway and retaining wall is located on said Lot 39 and the greater portion is located on said Lot 40.”