Opinion
Civ. No. 3867.
July 28, 1922.
APPEAL from a judgment of the Superior Court of San Bernardino County. Pat R. Parker, Judge, Presiding. Affirmed.
The facts are stated in the opinion of the court.
A. S. Maloney for Appellant.
McNabb Hodge for Respondents.
This action was commenced for the purpose of enjoining defendant from passing across the land of plaintiffs. Defendant claims the right to cross the land upon two theories: First, that there is a public road traversing the property, the road having been created by prescription or implied dedication; second, that defendant has himself acquired a prescriptive right to pass over the land if the road which is evident on the premises be not a public road. The trial court found against defendant upon each of these theories and rendered judgment for plaintiffs. Defendant appeals.
[1] Appellant contends that the evidence does not support the findings of the trial court to the effect that there is no public road across the land of respondents and that appellant never acquired a prescriptive right to pass over it. The complaint was filed in October, 1920. The land of respondents was originally settled upon by one Doyle in 1905, it then having been a part of the public domain. Doyle never perfected his title to the property, having died soon after he settled upon it, apparently in the same year. The place appears to have had other occupants afterward during a part of the time and it was homesteaded in 1913 by one Balsom, who sold it several years later to respondents. The property was fenced by Doyle at the time he went upon it and he maintained a gate at the place where appellant claims a public road started across it and toward certain land on which appellant resided at the time this action was commenced. One McNabb, who was on the land during Doyle's residence there, testified than a chain and padlock were then on the gate, although the gate was not actually locked at the time of his visit. He said further that at that time the only evidence of a road on the place was from the gate to a barn which Doyle had erected and that the land beyond the barn "was under virgin brush." One Meyer, a forest ranger, testified that in 1910 there was no road across the property, but that there "seemed to be some wagon tracks." Balsom testified that in 1913, when he took up the land, there was on it a "part of a road up through an old vineyard that was on the place at the time," that it ended at the farther side of the vineyard, and that the country beyond was rough and brushy, with no evidence of a road through it except "a wagon track that a pipe had been taken up to bring water down." He also said that the gate at which the alleged road entered the property was usually kept closed by him. Appellant's predecessor in interest in the land upon which appellant resides beyond the land of respondents was one Brown, who settled upon it in 1914 or 1915, according to the testimony of Balsom and of other witnesses. Balsom further testified: "Q. And was there anything said by Mr. Brown when he came on the property at that time about his passing over it to you? A. The first time I saw Mr. Brown when he came on there, he asked me if I would give him permission to go up in the canyon beyond. Q. And you gave him permission, did you? A. I gave him permission. Q. And did he ever at any time after that during the time that you lived on the ranch, or that he lived on his ranch, did he ever make any claim of right of way across there as a matter of right? A. No, sir. Q. Did he at any time say anything about that matter after that first time? A. No; beyond any time I met him going on there he would either make some apology or say that he had my permission to go on there. Q. He did mention it at various times? A. I don't think I ever met him that he didn't mention that he was crossing my land. Q. He didn't mention that he had any rights on there? A. No." As already remarked, appellant acquired the property of Brown directly from that individual. Appellant first crossed the land of respondents, then still held by Balsom, in July, 1915, and took up his residence on the land acquired from Brown in January, 1916. We take up again the testimony of Balsom: "Q. And after Mr. Gaudreau acquired Mr. Brown's interest, did you have any conversation with Mr. Gaudreau about the rights over this road? A. Yes, sir; I think it was about a month after Mr. Gaudreau came there I asked him if he knew he was using my road, and he told me yes he did. Q. And did he say anything else at that time; did he tell you how he knew? A. He told me Mr. Brown had told him it was my road. Q. And did you have any other conversation with him regarding the matter at any time? A. Not at that time, not until a month or five weeks before I sold the place [to respondents]. Q. And what took place then? A. I told him again he was using my road, and asked him if he would be willing to make some regulation so he would not get the right of way over the road, and he told me yes he would be willing to make any reservation or do anything that was right. . . . Q. Did you know of the notice being posted at the entrance, near the entrance, where this road turns from the public highway to go through the property with reference to it being a private road or no trespassing? A. Yes, sir. Q. Who put that up? A. I did. Q. When? A. 1917. . . . Q. And this conversation you had with Mr. Gaudreau was with regard to making some arrangement and paying you for the right to go over? A. Yes. Q. What year was that, Mr. Balsom? A. 1920, or the end of 1919; . . . Q. Now, do you know of the public using this road as a public road at any time during the time that you lived there? A. No, sir. Q. And the only use that was made of it that you know of was the use that was made by Mr. Brown as you have indicated, and that by Mr. Gaudreau, as you have indicated? A. Yes, sir. . . . Q. Did he [appellant] ever at any time during the time that you lived on the ranch, and after you filed on the ranch and up to the time you transferred it to plaintiffs, did he ever at any time claim to you that he had a right to use that road? A. No, never." This evidence is amply sufficient to support the findings to which objection is made.
Judgment affirmed.
Finlayson, P. J., and Craig, J., concurred.