Smith v. Worn

Paterson, J. On September 14, 1871, David Porter conveyed to Sidney V. Smith, the father of plaintiff, a tract of land described in the first paragraph of the complaint. The'deed contained this clause: —

“ Also the right of way to the said party of the second part, his heirs and assigns, at all times hereafter, over, upon, and through a road sixty-six feet wide, which shall be laid out by said party of the first part over the lands owned by him, and shall run westward from the Ross Landing road, and immediately south of, but adjacent to, the tract of land so sold and conveyed to said James Ross and the land first hereinabove described, such road to be opened and laid out from said Ross Landing road until it strikes the foot of the low spur mentioned in the first course of the description of the tract of land first hereinabove described.”

Porter, in 1872, conveyed the remainder of his ranch to one Walker by deed, which contained a stipulation to the effect that the land therein described was conveyed subject to the right of way over it created by the deed from Porter to Smith; and in 1874, Walker conveyed the same land to Annie S. E. Worn by deed, which contained a similar clause. In 1881, said Annie laid out the property into blocks and lots for the purposes of an auction sale, and filed a map thereof in the recorder’s office, showing an avenue, called Linda Vista Avenue, sixty-six feet wide, on the line of the right of way named in the deed from Porter to Smith, and thereafter she conveyed the tract to appellant by a deed which included the strip in question. Smith, Sen., conveyed to plaintiff on January, 13, 1880, referring, in the deed, to the road sixty-six feet wide described in the deed from Porter. All of the deeds referred to were recorded, respectively, soon after they were executed. At the time Smith received his deed from Porter, there was a fence inclosing Porter’s [211]land along the Ross Landing road. The road referred to in the deed had not been laid out. There was a fence on the north side of the strip along the Tunstead tract. The fence which constituted the western boundary of the Ross Landing road ran across the end of the strip of land referred to. There was nothing on the land indicating in any way the existence of any road over it. The strip of land was a part of a large field, and it remained in this condition until the year 1874, when the track of the North Pacific Coast railroad was laid across it at the eastern end, extending westward about forty feet in breadth. The old fence on the western side of the Ross Landing road formed the eastern boundary of the railroad track, and a new fence was erected across the piece of land on the inside, which formed the western boundary of the railroad track. There were, therefore, two fences and a railroad across the strip of land over which the right of way is claimed. Nothing was done by either of the Smiths to indicate an intention to lay out the road until a short time before this action was commenced, June, 1888. The lands have been used by the defendant and her tenants in the same manner as the rest of the land within the inclosure. Before the commencement of this action, the railroad company, at the request of plaintiff, removed the fences inclosing their track, where they crossed the sixty-six-foot strip. The defendant rebuilt the inside fence, and announced her intention of keeping it up. Plaintiff removed the obstruction, and commenced this suit to enjoin the defendant from any further interruption of his right, and to restrain her from “ putting up, constructing, or maintaining any gate, fence, or obstruction of any kind, on any part of said way.”