Whitson v. Goudeseune

FOX, J. By their amended complaint plaintiffs seek, inter alia, a declaration that defendants as the owners of Lot 3, Tract No. 13567, in the city of Long Beach, do not have a right of way easement along the rear of Lots 12 and 13 which are owned by plaintiffs. They also seek, in the event the easement is established, a determination of the proper proportion of the expense of maintaining it in good repair that should be borne by each of the parties.

. The trial court found that a valid easement existed but declined to apportion the expenses of its upkeep. Plaintiffs appeal. We have concluded the decision of the trial court is correct on both aspects of the case.

[447]Prior to 1949 there was an “easement for driveway purposes” running easterly from Loma Avenue along and over the rear portions of Lots 15, 14, 13 and 12. It also crossed Lot 3, where it ended. This easement had been used for years by Mrs. McQueston who owned the latter lot. The easement, however, was only 10 feet wide. An easement five feet wider was desired. This extra width was proposed to be taken from Lots 1 and 2 lying to the north of the other lots. As a means of accomplishing this result, the owners of the old easement executed a deed to eliminate it. This instrument was signed by Mrs. McQueston, who owned Lot 3, and the other owners. As a part of the same transaction the owners of Lots 1 and 2 and Lot's 12 to 15, inclusive, executed an Basement Deed “for the purpose of creating and establishing an easement for driveway purposes with right of ingress and egress over and across the strip of land hereinafter described for the common benefit of all of the lots or portions above referred to and lot 3 of Tract 13567 ...” and “hereby grant ... to each and every other party hereto and to the present owners of said lot 3 and their and each of their successors in the ownership of said lots or portions of lots an easement for the purposes aforesaid over said strip of land to the end that said easement shall be used and enjoyed in common by said owners and their successors.”

It is clear, of course, that the language of the deed is adequate to convey an easement and discloses an intention to make the easement appurtenant to Lot 3, thus entitling the owner of this lot to the use and enjoyment thereof. (Moots v. Kasten, 90 Cal.App.2d 734, 736 [203 P.2d 537].)

Since the easement is appurtenant to Lot 3 it follows the ownership of this lot “into whomsoever’s hands the same may come.” (Currier v. Howes, 103 Cal. 431, 436 [37 P. 521].)