Taft v. Tarpey
Before: Chipman
Synopsis
Reservation of Wat—Dedication—Presumption—The reservation in a deed of a strip of land “for canal or road purposes, both or either,” so far as the language discloses, is for the benefit of the grantor alone; and in such case, or where the way is for the benefit of both parties to the deed, no presumption arises of any intent to dedicate the way to public use as a highway.
Id—Effect of Public User—It is only by actual user, and to the extent of such user by the public as a highway, that the public can acquire rights in any portion of a strip reserved for road and ditch purposes in a deed; and no such rights result from the terms of the deed.
Id.—Reservation of Adjoining Strips — Road and Ditch Purposes—User—Injunction.—Where similar reservations are made by the same grantor in deeds of adjoining lands to different persons at different times of two adjoining strips, one upon each tract, and each thirty feet in width, for road and ditch purposes, and where the junior grantee occupied the outer half of the strip upon his land for an irrigating ditch, and for trees and vines, for over six years, and only the middle thirty feet of the adjoining strips was in fact used by the first grantee and by the public for road purposes during that period, he may be enjoined thereafter from threatened interference with such ditch, trees and vines, upon the alleged ground that both strips were wholly dedicated to public use as a highway by force of the reservations.
Evidence—Width of Land Occupied by Ditch and Trees—Both parties to the deeds of the adjoining lands having acted upon the assumption that they were keeping within their respective rights, and fifteen feet having been left upon each side of the road, evidence is admissible to show that the width of the land continuously occupied by the ditch, trees and vines was fifteen feet.
Id.—Custom of Grantor as to Reservations—Declarations— Conveyance to Witness.—Declarations of the common grantor as to his rule or custom in making reservations in deeds of lands are not competent; and it is not error to exclude a prior deed to a witness containing a similar reservation to those contained in the deeds to the parties to the injunction suit.
CHIPMAN, C. Injunction. Plaintiff seeks to restrain defendant from 'entering upon her land for the purpose of opening a road over the same. Defendant claims that the strip of land in question was dedicated to the public for a road by plaintiff’s predecessors in estate, and was also reserved for road purposes from the deed by which she claims title. The court found the following facts: That on April 21, 1884, one George H. Eggers was the owner in fee of the west half of the southeast quarter of section 20, township 13 south, range 21 east, situated in Fresno county, and on that day conveyed the same to George W. Taft (plaintiff’s husband) by deed which contained a clause following the description of the land, to wit: “Reserving from this grant the right of way over a strip of land thirty feet wide on the westerly line of said tract of land for canal or road purposes, both or 'either”; said Taft entered into possession and occupied the premises until July 15, 1895, when he conveyed the land to plaintiff, who has ever since occupied and now occupies the same; in 1883 said Eggers conveyed the east half of the southwest quarter of the same section (lying directly west of plaintiff’s land) by deed in which, following the description, is the following clause: “Saving and excepting therefrom a strip of land thirty feet wide off the east side of said tract of land, and a strip of land thirty feet wide off the west side of the northwest quarter of said section 20 ... . said excepted strips of land being reserved for road and ditch purposes”; in January, 1884, said Eggers conveyed to defendant the northeast quarter of said section, “reserving therefrom a road and ditch way on the easterly side thereof”; in 1890 plaintiff’s grantor constructed a ditch for purposes of irrigation along the eastern side of the strip of land so reserved from his deed for a distance of one-quarter of a mile; this ditch and its banks occupied a strip of land fifteen feet wide for its entire length; Taft planted fig trees and grapevines along the western bank of said ditch and in a straight linetothesouth boundary of his lands; the ditch occupiednomore land than was necessary for its purposes, and there is not now and never has been any highway or traveled road upon said [379]thirty foot strip east of said line of fig trees and vines since the same were planted there”; in 1889 defendant entered upon the strip of land reserved as aforesaid, between the lands of plaintiff and the said lands directly west of plaintiff’s lands, and graded and built a wagon road along the center of these two strips about thirty feet wide, occupying fifteen feet of the strip reserved from plaintiff’s land, and plaintiff’s said ditch and trees and vines “do not in any way interfere with or obstruct the free us'e of said road and roadway by defendant or any other person; this road is the most convenient means by which defendant can have egress from his said lands in the direction of the city of Fresno”; the court found and the defendant admits that he intends to enter upon the remaining portion of said strip of land and dig up and destroy plaintiff’s said ditch and trees and vines; the board of supervisors of Fresno county never accepted said strip of land as a highway, nor did they ever declare the same to be a highway.”
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