Douglas v. Lewin

SPENCE, Acting P. J.

This is an appeal by defendant from a judgment decreeing that plaintiffs are entitled to a right of way over a trail on the land of defendant and enjoining defendant from interfering with plaintiffs’ use and enjoyment thereof.

In 1902 defendant acquired a tract of land in Marin County, said tract fronting on Miller Avenue in or near Mill Valley. This tract consisted of about five acres and extended up over steep and precipitous ground from Miller Avenue to La Verne Avenue. In 1903 defendant constructed a cabin in about the center of this tract and built a trail leading up the hill from Miller Avenue. This was a well-defined trail which was built upon bedrock in some places and excavated through bedrock in others and which wound back and forth according to the contour of the land. The tract remained in single ownership until 1924, at which time defendant planned to dispose of portions thereof. No map showing a subdivision of defendant’s land was recorded, but a map showing certain lots and lot numbers was made by defendant. The cabin lot was designated as lot 1. Immediately above lot 1 and adjoining it was a lot designated as lot 5. Neither lot 1 nor lot 5 abutted on any public road, but on defendant’s map a ten-foot roadway was shown running down to said lots from La Verne Avenue. This roadway was “just land like the rest of the field”, according to defendant, and was not even designated on the map “until the Cowderys estimated what they wanted”. This roadway was never graded at any time and, according to plaintiffs, it was “a continuation of the trail”. On the opposite side of said roadway was a larger lot designated as lot 4 which did extend up to and have a frontage on La Verne Avenue. It appears that Miller Avenue is the main thoroughfare leading to the railroad station and that the postoffice boxes of the various parties mentioned herein were located at the lower end of defendant’s tract on said Miller Avenue.

[161]

In 1924 defendant sold lot 4 to a Mrs. Cowdery. At about the same time plaintiffs rented from defendant the cabin on lot 1 and remained there as tenants until October, 1925. During the tenancy plaintiffs freely used the trail to Miller Avenue. In the early part of 1925, plaintiffs commenced negotiations with defendant for the purchase of lot 5. There was no building on lot 5 at the time and the negotiations ultimately resulted in an oral agreement whereby defendant was to build a dwelling-house upon said lot and sell the lot and dwelling-house to plaintiffs for a sum slightly in excess of $3,000. During the negotiations plaintiffs asked defendant whether they would have the use of the trail in the event that they purchased the property and he answered “most certainly, of course”. Pursuant to the oral agreement between the parties the house was built and plaintiffs received their deed in December, 1925. The deed made no mention of any right of way, but defendant did not deny his agreement to permit plaintiffs to use the trail. On the trial he stated, “I do not deny or affirm it, Judge.” After plaintiffs purchased lot 5, plaintiffs, together with Mrs. Cowdery and the friends of these parties, used said trail without interference until November, 1929, when defendant blocked off the trail and prevented plaintiffs from having access thereto. Thereafter plaintiffs commenced this action.