Rowe v. Wurster

HART, J.

This controversy arises over an alleged private right of way. Plaintiff and defendant are the owners of adjoining ranches. Plaintiff’s ranch is known as and referred to in the complaint as the Patterson ranch, J. R. Patterson being his immediate predecessor, and defendant’s ranch is referred to as the Carpenter ranch, he being the successor in interest in said ranch of James Carpenter. Plaintiff claims a right of way extending from his ranch across the lands of other parties not sued herein, and across certain lands of defendant, for a distance of about 486 feet to the main public highway. Plaintiff con

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tends that the said private right of way is appurtenant to the Patterson ranch, and has been used by the plaintiff and his predecessors for a period of more than fifty years prior to the filing of his complaint, and that the use of said way has not been interrupted, except once or twice for short intervals, until the months of September, October, and November, 1918, when defendant obstructed the way by building a gate across it and claiming the right to continue said obstruction, thereby preventing plaintiff from enjoying his said way as he was accustomed to use and enjoy it. Plaintiff seeks by his action to establish his right to said private way and to compel defendant to remove the obstruction therefrom, and also prays for damages in the sum of five hundred dollars. Judgment was for plaintiff, and the damage was assessed at ten dollars, from which judgment defendant appeals.

Two general points are advanced against the validity of the judgment, and they are that the evidence is insufficient to support the vital findings and that the judgment is against law, inasmuch as by said judgment the absolute title of the land to which the easement in question is thus attached is given to the plaintiff, thereby depriving the owner of all right to use said land.

There are nine specifications involving the claim that the evidence is insufficient to support the findings therein specifically referred to, but all of these, with the exception of the charge that the finding as to the small amount of damages assessed against the defendant is without evidential support, assail the findings that “the plaintiff is now and he and his predecessors in interest have been for fifty years and more last past the owners in possession and entitled to the possession of a private right of way twenty feet wide and being ten feet on each side of the following described line,” describing the same as the way is described in the complaint, “and has the right to pass and repass over the same on foot, with team, automobile, and wagons,” and that “defendant, on or about the months of September, October, and November, 1918, and at other times thereafter and before the filing of this action, wrongfully obstructed said way by building a gate across the same, and that said defendant does still continue to maintain said obstruction, thereby preventing plaintiff from enjoying said way.”