Metzger v. Bose

SCHOTTKY, J. This is an appeal from a judgment rendered after the court sustained a general and special demurrer to plaintiff’s amended complaint and plaintiff failed to further amend his complaint.

The amended complaint alleges in substance:

That plaintiff has owned a certain described parcel of real property for several years; that in 1950 plaintiff conveyed to defendants a parcel of real property contiguous and to the west of the property first described, the description of the said property conveyed to defendants referring to a map depicting a county road running across the easterly portion of the property conveyed by plaintiff to defendants. The complaint then alleges:

"That by virtue of an appurtenance to the parcel of real property set forth in paragraph II of this complaint, hereinafter referred to as plaintiff’s property, plaintiff is the owner of an easement and right of way for road purposes over the lands adjacent and contiguous to his said parcel of real property to the west of same, the exact location of said easement and right of way for road purposes being the former County Road which was abandoned by the County of Shasta in the year 1955, the same being that set forth in paragraph III of this complaint.”

The complaint alleges further that prior to the abandonment of the road by the county, plaintiff had erected a resort, motel and fishing facilities on his property, and that he and his patrons had traveled over said road; and that on March 15, 1956, defendants barricaded the said road in such a manner as to prevent plaintiff and his patrons from traveling over said road. Plaintiff prayed for an injunction and for nominal damages.

Defendants’ demurrer was both general and special but the only ground of demurrer which appears to have been relied upon by defendants and considered by the trial court was the ground that the complaint did not state a cause of action. [133]Furthermore, the grounds of special demurrer are without merit and we shall therefore confine ourselves to the question of whether or not the amended complaint states a cause of action.

We have concluded that the amended complaint does state a cause of action and that the court erred in sustaining defendants’ demurrer thereto. Paragraph II, hereinbefore quoted, alleges that “plaintiff is the owner of an easement and right of way for road purposes over the lands adjacent and contiguous to his said parcel of real property to the west of same,” etc. This allegation of ultimate fact, together with the further allegation that defendants interfered with plaintiff’s uses of said easement, is in our opinion sufficient to state a cause of action.