Popovich v. O'Neal

STONE, J.

Plaintiffs-appellants own real property in the upper foothill area of Madera County. Respondents, who are

[555]

both defendants and cross-complainants, own land north and south of appellants’ property, although on the south there is an intervening parcel of land lying between that of appellants and respondents, which is owned by a person named as a defendant in the original action but who has not appealed.

Before 1900 and at a time when all of the property involved herein was located within Fresno County, a right of way for road purposes was deeded to the county by the predecessors in interest of the present owners. Upon the creation of Madera County, this area was included within its boundaries so that the right of way became a public road of Madera County. State Highway No. 41 was constructed about 1943, and upon its dedication the Board of Supervisors of Madera County abandoned the county road. The easement which appellants claim is upon the former right of way of the abandoned county road. At the time of the abandonment appellants’ predecessor in interest had access to Highway 41 on the north and to County Road 200 on the south. However, respondents’ predecessor in interest obstructed the entrance from the abandoned road to Highway 41 by installing a locked gate in the fence which bordered Highway 41. This locked gate forced appellants’ predecessor in interest to travel south to County Road 200 for access to a public road.

Appellants brought this action claiming an easement to use the entire abandoned right of way and, in particular, for access to State Highway 41 on the north. The court found that appellants had an easement southerly from their property along the abandoned right of way to County Road 200. The court also found that respondents ’ predecessor in interest had closed access to Highway 41 on the north for more than five years prior to the commencement of the action and that appellants had lost any easement northerly across respondents’ property to State Highway 41 on the north by prescription. Judgment was entered accordingly.

Counsel for appellants and respondents devote much of their briefs to an interpretation of the doctrine of abutter’s rights and, in particular, to whether appellants as abutters acquired an easement to both Highway 41 on the north and County Road 200 on the south. We deem it unnecessary to discuss these questions for two reasons. First, respondents have not appealed from the judgment that appellants have a right of way for access to County Road 200 on the south. Indeed, they stipulated during the course of the trial that appellants could have, and did have, an easement to use the abandoned