St. Louis v. DeBon

DRAPER, P. J.

Plaintiffs brought this action to enjoin use by defendants of a right of way over the southerly 30 feet of plaintiffs’ lands. Judgment was for defendants, and plaintiffs appeal.

In 1926, the Falk family owned land near Areata, including a substantial parcel which extended from a county road on the west to U. S. Highway 101 on the east. The Northwestern Pacific Railroad right of way ran through the land in a north-south direction, between road and highway. In 1926, the Falks granted to one St. Louis an irregularly shaped piece of land boundéd on the southwest by the county road and on the east by'the railroad tracks. This parcel was so situated that it left in Falks’ ownership a parcel lying between the St. Louis grant on the west and U. S. 101 on the east.' Although this piece had access on the east to U. S. Highway 101, it had no access to the county road on 'the west. The deed from Falk to St. Louis contained a metes and bounds description of the land conveyed, and provided “Except therefrom a right of ingress and egress over and across a strip of land 30 feet wide off the South end of the above described tract, being between the County road and the railroad, the North line thereof being 30 feet distant from and parallel to the South line of above described tract.” This strip of land leads from the county road to a point on the railroad abutting upon the parcel retained by Falk lying between the land conveyed to St. Louis and U. S. Highway 101. In 1929, Falk conve3ed to defendants’ predecessor the latter parcel, but the deed made no reference to the right of ingress and egress reserved in the St. Louis deed. Plaintiffs acquired title to the St. Louis parcel by decree of distribution which recites the exception above quoted. Defendants acquired the adjoining parcel by mesne conveyances, none of which refer to the exception.

The issue is whether the easement reserved in the St.

[466]

Louis deed is one in gross, i.e., a personal right in Falk, or is appurtenant to the parcel retained by Falk in 1926 and conveyed to defendants’ predecessor in 1929. If the right was but personal, it might not be assignable and in any event would not pass to another save by specific assignment. If, however, it is an easement appurtenant to the land conveyed to defendants’ predecessor, it would pass with the land without specific mention.