Noble v. Merchs. Nat'l Realty Corp.

DRAPER, P. J. Plaintiff’s second amended complaint seeks to establish her right to an easement for ingress and egress over a strip of land 10 feet wide. Her first cause of action prays that title be quieted in her as owner of the dominant tenement. The second count alleges that she is a taxpayer of defendant City of St. Helena, and seeks a declaration that the city holds the easement in trust for the use of the public. Demurrers of all defendants to each cause of action were sustained without leave to amend. Plaintiff appeals.

It is undisputed that an alley at least 10 feet in width was dedicated in 1883, and that an alley 10 feet in width remains in use. The several pleadings in this and related actions, however, leave uncertainty as to whether plaintiff claims the original dedication was of a 20-foot strip, or asserts dedication of a 10-foot strip and rights in an additional 10 feet by adverse use.

In any event, she alleges that the 10 feet here in issue are claimed by defendant bank and defendant corporation, who have constructed improvements obstructing it. It appears that these defendants claim under deed from defendant city.

We have concluded that the first cause of action is barred by the statute of limitations (Code Civ. Proc., § 318), and that the demurrers upon this ground were properly sustained.

The original complaint in this action was filed April 11, 1960. It named as defendants only the city and several Does, whose “true names or capacities’’ were alleged to be unknown to plaintiff. It was verified, and alleges that defendants ’ encroachment upon the claimed easement occurred April 11, 1955. Although this allegation is omitted from the first and second amended complaints, the mere omission, since it was verified, does not remove it from consideration in connection with the second amended complaint now before us (Wennerholm v. Stanford University Sch. of Medicine, 20 Cal.2d 713 [128 P.2d 522,141 A.L.R. 1358]; Bustamante v. Haet, 222 Cal.App.2d 413 [35 Cal.Rptr. 176]). Even though defendants [51]Bank and Merchants are joined by name for the first time in the second amended complaint, filed December 31, 1963, their joinder as Does would avoid the running of the statute of limitations as to them after April 11, 1960 if their true names were not in fact known to plaintiff at that time (see Irving v. Carpentier, 70 Cal. 23, 26 [11 P. 391]), and the action would thus be in time. But plaintiff had filed an earlier action (No. 16187) March 28, 1958, now consolidated with the instant ease, in which she alleged, under oath, that on April 11, 1955 these defendants, naming them, erected improvements in this same alley which barred its use by plaintiff. That verified complaint was before the trial court and is in the record here.