Hueneme, Malibu & Port Los Angeles Railway v. Fletcher

WORKS, J.

On November 24, 1906, one Joseph H. Call and his wife conveyed to plaintiff a strip of land sixty feet wide across their rancho as a right of way for a railroad. No construction work was ever done upon this right of way. Ten years later Call and his wife deeded to the county of Los Angeles a strip across the rancho, also sixty feet wide, as a right of way for a highway. Nearly fifteen years after the deed to plaintiff the Calls conveyed to the state of California a strip across the rancho eighty feet wide as a right of way for a state highway. The parcels conveyed by these three deeds, except for the greater width of the parcel last conveyed, are practically coterminous and coincident with each other, although each departs from each of the others occasionally along the side lines. The deed to the state recites that it is “subject to any right of way heretofore conveyed by the grantors to” plaintiff. After the conveyance to the state the strip described in its deed was entered upon by defendants, under authority of the state, for the purpose of constructing a state highway along it. Entry was at the same time made upon the parcels formerly conveyed by the Calls to plaintiff and to the county, this being so necessarily because of the practical identity of the three pieces. Defendants then commenced and thereafter for some time prosecuted the work of constructing a state high

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way along and over the ground covered by the three rights of way, in so far as they are identical. The entry upon the property was made and the construction work was prosecuted without the commencement of any proceeding in eminent domain for the purpose of condemning any interest which plaintiff may yet retain under the deed of 1906. This action was commenced for the purpose of enjoining defendants from taking plaintiff’s property in the right of way described in the deed last mentioned without authority of law and, particularly, without the commencement of a suit in eminent domain for the purpose of condemning it. Upon the filing of the complaint the trial court issued its restraining order against defendants, accompanied by an order to show cause why a preliminary injunction should not issue. Upon the hearing pursuant to this order to show cause the court made its order refusing a preliminary injunction. From this order plaintiff appeals.

The supreme court, in the recent case of