Pratt v. Hodgson

GRIFFIN, J.

Plaintiff brought this action against defendant alleging ownership of a lot near Porterville 365.65 feet in depth with' a south frontage of 75 feet on Grand Avenue. Defendant owned a tract of 2.7 acres immediately west of plaintiff’s lot. Plaintiff claims a right of way for road purposes over the easterly 21 feet of defendant’s tract extending to her northerly lot line. Plaintiff’s lot is occupied by a residence, barn, garage and a chicken house. Defendant’s acreage was previously occupied by a residence, garage and other out-buildings, but all were removed at the time he purchased it in 1944. Plaintiff’s husband, now deceased, acquired this lot in 1922 from one Hearn and lived thereon with plaintiff, his wife, until 1927. In 1937, plaintiff moved back onto the property. During the interim it was occupied by tenants. Plaintiff acquired title under a decree of distribution from her husband’s estate in 1930. Defendant acquired his property in 1944 from one Heindel, who acquired it from one Hearn in 1930.

Plaintiff, her tenant, and predecessors in interest made various uses of the claimed right of way since the lot was acquired in 1922. It was mainly used for the purpose of giving access to her garage, barn and chicken houses, but the way also extended beyond the garage to the northerly line of her lot.

Plaintiff claims that the right of way is appurtenant to her land, has been used openly, notoriously, continuously, and ad

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versely to defendant and his predecessors for more than 30 years, and claims an easement by prescription. The evidence showed that while plaintiff was temporarily away from her property defendant plowed up the right-of-way shortly before this action was filed, but plaintiff continued to use it thereafter. An injunction is sought enjoining defendant from destroying it, to require him to replace it in its former condition, and other general relief is sought.

Defendant denied all material averments of the complaint except he admitted that plaintiff had used the alleged right of way for ingress and egress, but did so only “sporadically.” The trial court granted the injunction, found generally for plaintiff, and required defendant to replace the right of way or in lieu thereof pay plaintiff for doing so. Defendant appeals mainly upon the ground that the evidence is insufficient to show (1) User sufficiently continuous to establish an easement by prescription; and (2) To show that the user was hostile and adverse, as distinguished from merely permissive.