Miller v. Santa Margarita Land & Cattle Co.

FORD, J.

We treat this appeal as one from an order granting a preliminary injunction. We have determined that that order must be reversed.

The plaintiff brought an action to quiet his title to an easement in a roadway over the land of the defendant Santa Margarita Land and Cattle Company and to restrain that defendant and others from interfering with the plaintiff’s use thereof. A temporary restraining order was issued. Thereafter, pursuant to the stipulation of the parties that order was dissolved. Subsequently, at the instance of the plaintiff the superior court ordered the defendants to show cause why they should not be enjoined during the pendency of the action from interfering with the use of the road by the plaintiff and his ‘“contracting parties.” At the time that matter was heard, the defendant Santa Margarita Land and Cattle Company resisted the plaintiff’s application on the ground that, even if the plaintiff had acquired an easement by prescription, the proposed use of the road for the hauling of decomposed granite from plaintiff’s property would impose a substantial increase or change of burden on the servient tenement not permitted under the applicable law. (See

Bartholomew

v.

Staheli,

86 Cal.App.2d 844, 850-851 [195 P.2d 824].) Counsel for the defendant asked that, if the relief sought by the plaintiff should be granted, a bond in the sum of $25,000 be required.

On October 13, 1961, the superior court made a minute order which was in part as follows: “The Court however feels that in the face of the evidence presented there is ample reason to continue the Restraining Ordér in effect until the matter is tried on its merits, and so orders.”

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There was.

[766]

no formal written order. But even if it be assumed that the minute order was otherwise su~cient in content to constitute an order for a preliminary injunction (see People v. Gordon, 105 Cal.App.2d 711, 715-717 [234 P.2d 287]),

2