Meyer v. Porath

VAN DYKE, J.

This appeal is taken from an order made by the trial court amending

nunc pro tunc

its antecedent findings of fact, conclusions of law and judgment. On January 31, 1949, plaintiff and respondent brought action against defendants and appellants to have it decreed that plaintiff was the owner of a right of way for road purposes over the lands of appellants. The right of way was described as being “a roadway which is now marked out across” appellants’ land, approximately 12 feet in width, and commencing on the westerly line of the servient tenement at a point “approximately” 850 feet north of an intersection of the southerly boundary of the servient tenement with the Merced Falls-Coulterville highway and continuing in a general southeasterly direction across the servient tenement to a point on the easterly boundary thereof, located “approximately” 450 feet north of a given point. Concerning this way it was alleged that for more than 40 years plaintiff and her predecessor in interest had made actual, open, notorious and adverse use of the way. The answer of appellants generally denied the allegations as to the existence of the right of way. It is apparent that from the beginning the issue was primarily whether or not the right existed and not as to the location on the ground of the way claimed. The cause was tried on May 6, 1949, and on August 19th following the court entered findings of fact, conclusions of law and judgment. By the findings the court found the existence of the right of way and its ownership by respondent. But the court did not use the description appearing in the complaint which, as noted, contained approximations. In

[810]

that respect the court found that the right of way should be described as commencing at a point 2,776 feet distant from the quarter corner on the north line of a given section on a course with a given bearing and running thence from that point of commencement along a line with certain courses and distances to a point on the east line of the northeast quarter of the southwest quarter of the section. The same description of the right of way was carried into the judgment. No appeal was taken from the judgment. On May 22, 1951, approximately one year and nine months after the entry of judgment, the respondent, in whose favor the judgment had been entered, moved the court to amend its findings of fact, conclusions of law and judgment