Corea v. Higuera

SLOSS, J.

The complaint in this action alleges that on November 2, 1894, the defendant Bernardo Higuera was the owner of lot 7 ,of the Higuera Rancho. On that day the defendants conveyed a portion of said lot to John Freitas, one of the boundaries of the tract conveyed being described as the center of the Higuera Ranch road, a road connecting with the county road. Thereafter Freitas died, and in 1897 the executors of his will, pursuant to a probate sale duly authorized and confirmed by the superior court, conveyed the land so acquired by their testator to the plaintiff, who has ever since been the owner and in possession thereof. At all the times mentioned there had been a road, leading from the land conveyed to Freitas, across the remaining portion of lot 7, to the Higuera Ranch road. The road which thus traversed lot 7 was used by defendants prior to their conveyance to Freitas, and at the time of the latter’s purchase, was open, laid out, and used, as a means of ingress and egress to and from the land conveyed, “and was the only road so laid out and open by which said place could be reached by team; and . . . the said road was and had been appurtenant to said lands.” The defendants claim to be the exclusive owners of said road and have obstructed it. It is alleged that plaintiff is the owner of and entitled to said right of way.

A demurrer to the complaint having been overruled, the defendants answered, denying the allegations of the complaint regarding The existence of the road in question; denying that said alleged road was open, laid out, or used, at the time of Freitas’ purchase, or that of plaintiff, or that it was the only

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road by which said place could be reached by team. The answer denies, further, that the road was or is appurtenant to the land of plaintiff, or that plaintiff is the owner of any right of way over defendants’ lands. By way of affirmative defense it is alleged that the land conveyed to Freitas and subsequently to plaintiff was at all times bounded on one side by the main Higuera Ranch roaql, by which the plaintiff and his predecessors had access to and from his lands to the county roads. There is a further averment that any use which plaintiff or Freitas may have made of the road over defendants’ lands was solely by the permission of the defendants.

The court finds that at the times of the conveyances to Freitas and to plaintiff, there had been and was, leading from the land so conveyed, across the remaining portion of lot 7, a road used by the defendants prior to their conveyance, with the lands conveyed to Freitas. This road is found to have been open, laid out, and used, as a means of ingress or egress to said lands, and was the only road so laid out and open by which said lands could be reached by team. Said road was, at the time of Freitas’s purchase, appurtenant to said lands and passed with the same. It was appurtenant to said lands at the time plaintiff purchased, and passed to him as appurtenant thereto. There is a finding that plaintiff “is the owner of and entitled to said right of way over the lands of defendants to the county road, to pass and repass on foot and with team. ’ ’ The court further finds that the lands of plaintiff are bounded on one side by the Higuera Ranch road, which was and is an open traveled road leading to the county road. Said Higuera Ranch road was not, prior to the commencement of this action, used by plaintiff, and plaintiff “has not easy access to said Higuera Ranch road, for any purpose to and from his own lands or at all.” It is found “that plaintiff is entitled to the said right of way, as appurtenant, over the lands of defendants,” and there is a finding against the allegation of the answer that the use of said way by plaintiff and his predecessors was by the permission of defendants.