Amerco, Inc. v. Tullar

DRAPER, J.

Decree in this quiet title action determines that plaintiff owns a right of way over defendants’ property, enjoins interference with plaintiff’s use of this easement, and awards damages to plaintiff. Defendants appeal.

One Chamberlain owned land on the east side of the Los Gatos-Santa Cruz highway. His holdings included the parcels now owned by the parties to this action. In 1950, Chamberlain built a service station on the parcel now owned by plaintiff. The blacktop surfacing for the service station extended over a triangular piece at the front of the property adjoining the station on the north, so as to afford an approach for ears of patrons. In 1952, he contracted to sell to plaintiff the service station property, together with the easement over the land on the north. Grant deed of land and easement was deposited in escrow. In August, 1956, the parcel to the north of the service station was sold by Chamberlain to defendants. The right of way previously granted to plaintiff was neither reserved nor mentioned in the deed to defendants. This deed was recorded promptly upon delivery. The deed to plaintiff was recorded in 1958. On February 7, 1959, defendants erected a fence along the line dividing their property from plaintiff’s, thus barring use of the approach right of way by plaintiff. This action was commenced a week later.

The evidence establishes that the surfacing over the service station property and the portion of defendants’ land which constituted an easement or approach to it has been maintained as a single unit since construction of the station in 1950. From that time until construction of defendants’ fence, the approach was used daily by a substantial number of automobiles driven to and from the station. For six months before they bought their land in 1956, defendants lived upon immediately adjoin

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ing land from which the service station is visible. Defendant husband admitted that during this period immediately before his purchase he saw the approach being used regularly by service station patrons.

The trial court found that plaintiff is the owner of the “right of way and easement,’' and that for seven years plaintiff has used the right of way “continuously in an open and notorious manner, without interruption or interference by defendants or their predecessors.”