Cheney v. O'Brien

California Supreme Court Mar 30, 1886 No. No. 8655Published

Before: Belcher

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Holding. The court held that the evidence supported the finding of a way of necessity and prescriptive right, that parol evidence was admissible to prove land ownership for the purpose of establishing a way of necessity, and that the trial court did not abuse its discretion in allowing a complaint amendment.

Issues

Whether the evidence supported the findings of a way of necessity and prescriptive right.
Whether parol evidence is admissible to prove ownership of land to establish a way of necessity.
Whether the trial court abused its discretion in allowing the plaintiffs to amend their complaint.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The way over the defendant’s land, which he was alleged to have obstructed, was a “way of necessity,” and besides, had been used by the plaintiffs long enough to give them a right to it by prescription.”

“Applications to amend pleadings are addressed to the sound discretion of the court, and unless it clearly appears that the rights of the party objecting have been prejudiced by the amendment, he will not be heard to complain of it.”

Synopsis

Right of Way — Prescription — Occasional Divergence. •—The acquisition of a right of way by prescription is not affected by the fact that occasionally, when the ground was soft, the adverse users turned out of the way at a certain point, and made several distinct tracks there.

Id. — Way of Necessity— Terminus of Way may be a By-road. — A right of way of necessity may be acquired over the land of another, although the road to which the way leads is not a county road, but a mere by-road open to the public.

Id.—Obstruction of Way—Action to Abate—Dedication of Public Highway—Evidence. —In an action to abate an obstruction to a right of way of necessity, the plaintiff is not required to show that the road to which the way leads had ever been formally laid out or dedicated so as to make it a public highway.

Id.—Title to Intervening Land—Panol Evidence ok—The plaintiff in such an action, for the purpose of showing the necessity of the right of way, may prove by parol that the land lying between their land and the county road belongs to a third person.

Pleading — Amendment — Discretion. — An application to amend a pleading is addressed to the sound discretion of the court, and unless it clearly appears that the rights of the adverse party have been prejudiced by the amendment, he will not be heard to complain of it.

Belcher, C. C. After carefully going over all the evidence presented in the transcript, we are unable to see that it does not justify the findings of the court. Upon some points there is a slight conflict, but that was a matter for the court below to consider and determine.

The way over the defendant’s land, which he was alleged to have obstructed, was a “way of necessity,” and besides, had been used by the plaintiffs long enough to give them a right to it by prescription. The fact that when the ground was soft the plaintiffs had sometimes turned out at one point, and made as many as seven different tracks there, did not affect their rights to the way. Nor was it material whether the road to which the way led was a county road, as testified to by one of the plaintiffs, or a mere by-road, as testified by defendant. It appeared without contradiction to be a road which the [201]plaintiffs and others had used for a good many years, and that was all that was necessary for the purposes of the case.

In the progress of the trial, four objections and exceptions to the admission of evidence were taken by the defendant, and the rulings are assigned as errors.

The first two relate to the road above referred to. A witness for plaintiffs, in giving his testimony, at onetime called the road a highway, and at another time a county road. The defendant objected that the testimony was secondary and incompetent, and moved to strike out the answers.

We do not think the plaintiffs were called upon to show that the road had been formally laid out or dedicated so as to make it a public highway. It was beyond the defendant’s land, and no question was raised as to the right of the plaintiffs to pass over it. Whether it was correctly designated by the witness or not was therefore altogether immaterial.

The next two objections were to questions in reference to the ownership of the land lying east of the plaintiffs’ land, and between that and the county road.

A witness for the plaintiffs testified that prior to 1861 a Mr. Wardlow owned the land referred to, and a Mr. Carriger was in possession of it as his agent, and again that Mr. Wardlow claimed to be the owner of it. Counsel for defendant objected to the evidence, upon the ground that it was secondary and incompetent, and then moved the court that it be stricken out.

Cheney v. O'Brien

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