Smith v. Ricker

FRIEDMAN, J. Plaintiffs sought to enjoin defendants’ use of a roadway or former roadway traversing plaintiffs’ land. The lower court granted the injunction and defendants appeal.

Plaintiffs Smith and defendants Ricker own adjoining properties in Shasta County some miles east of Redding. Both properties are crossed by Cedar Creek, which flows in a southwesterly direction. During the 1890’s and for some years thereafter Shasta County maintained a traveled roadway across both properties, parallel to and east of Cedar Creek. About 1918 the road became part of the state highway between Redding and Alturas. (This highway is generally known as U.S. 299. Section 328 of the Streets and Highways Code designates it as State Route 28.) The lower court found that the state ceased to maintain the road in 1932, when it was superseded by a new state highway along the opposite or west bank of Cedar Creek; that substantial portions of the old road were destroyed by a flood in 1937; that thereafter it was not open to through travel; that the State of California abandoned it; that neither the State Highway Commission nor Shasta [98]County adopted any resolution of abandonment; “that a right-of-way to pass over the former location of such roadway does not remain in the public, nor in defendants.”

Plaintiffs and defendants bought their respective properties during the 1950’s. Defendants’ insistence on using the old roadway caused plaintiffs to lock previously built gates which had been placed across it and ultimately to seek an injunction.

The record does not show that the county or the state ever acquired any formal interest in the land occupied by the old roadway. There was no evidence of any deed or dedication to the public. As to controverted demise of the road, both parties stipulated, and the lower court found, that neither the State Highway Commission nor Shasta County ever adopted a resolution abandoning it. Defendants contend that, in the absence of formal abandonment, the road has a continued public character and defendants, as members of the public, are entitled to unobstructed passage; secondly, even if there was an implied abandonment, defendants as abutting landowners retain a residual easement.

Defendants’ second contention is directly contrary to established law. An abutting owner has two kinds of right in a public highway: first, a public right which he enjoys in common with other citizens; second, a special right of access to that portion of the highway on which his own land abuts. (People v. Ricciardi, 23 Cal.2d 390, 397-398 [144 P.2d 799].) Upon abandonment of a public highway (other than a city street), the abutter’s right as a member of the public ceases, and he may not insist on continued use of the highway across the property of other landowners. (Metzger v. Bose, 183 Cal.App.2d 13, 17 [6 Cal.Rptr. 337]; Ferriera v. Ware, 90 Cal.App.2d 759, 762 [203 P.2d 797].) We turn to the abandonment issue.