Bernstein v. Dodik

JAMISON, J.,

pro tem

.

This action was brought by plaintiffs to quiet title to an easement and to enjoin defendants from interfering with and obstructing plaintiffs’ use of same, and for damages. Judgment was rendered for plaintiffs, quieting their title to said easement, permanently enjoining defendants from interfering with or obstructing same, and for $50 damages. From this judgment defendants appealed.

Plaintiffs own lot 49 in Barclay Brown’s 38th Place in Los Angeles, and defendants are the owners of the adjoining lot 48. Robert B. McGaffey and his wife acquired title to lot 48 in 1914 and purchased lot 49 on contract in 1916. Robert B. McGaffey and wdfe purchased lot 49 on a contract from Los Angeles Trust & Savings Bank. In 1917 Robert B. McGaffey died and in 1920, following administration upon his estate, distribution of lots 48 and 49 was made to Carrie Merrick, the widow of said Robert B. McGaffey, who after his death married Willard F. Merrick. She completed payments on the contract for lot 49 and in 1920 the Los Angeles Trust & Savings Bank executed a deed to her and her husband as joint tenants for said lot 49. Carrie Merrick died in 1923. Thereupon title to lot 49 vested in Willard F. Merrick by operation of law. In 1928 Merrick and a subsequent wife deeded lot 49 to one Alford, who executed a deed of trust on the property, which was foreclosed and the Pacific States Savings & Loan Company became the purchaser at the foreclosure sale; in September, 1929, that company deeded said lot 49 to respondents.

Lot 48 was, upon the administration of the estate of Carrie Merrick, in accordance with her will, distributed to Percival B. McGaffey and Robert D. McGaffey on February 25, 1930. They conveyed same to appellants as joint tenants on May 27, 1930. Between lots 48 and 49 there is a driveway 7.7 feet wide which runs back to some garages near the rear of the lots. A strip 4.6 feet of this driveway is on lot 49 and a strip 3.1 feet is on lot 48. The driveway is the alleged easement involved on this appeal.

[457]

Respondents produced evidence to the effect that in 1922 four or five garages or compartments for automobiles were erected at the rear of this driveway, most of them being on lot 49, but that they projected over^ and into lot 48; that in this same year the Herricks built a duplex bungalow on lot 49; that for convenience in passing over said driveway they had concrete strips laid along the driveway to said garages, one of said strips being placed on lot 49 and the other on lot 48; that there is no other way of getting to the rear of lot 49 except by means of this driveway; that where the driveway met Thirty-eighth Street at the front, the curb was lowered and a concrete apron was placed there, presumably to enable vehicles to go and come over the said driveway; that from 1922 to 1930 the said driveway was used for ingress and egress to and from the rear of both of said lots and by the tenants of lot 49, some of said tenants owning automobiles and using the garages at the rear end of the driveway.