Buehler v. Reilly
| Decision Date | 03 February 1958 |
| Citation | 321 P.2d 128,157 Cal.App.2d 338 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Lena BUEHLER, Plaintiff and Appellant, v. J. B. REILLY and Vera Reilly, Defendants and Respondents. Civ. 22333. |
Hill, Farrer & Burrill, Leon S. Angvire, Los Angeles, for appellant.
Fleming, Robbins & Tinsman, C. S. Tinsman, Clay Robbins, Los Angeles, for respondents.
Plaintiff and cross-defendant, Lena Buehler, appeals from a judgment that plaintiff is not entitled to an injunction and that she take nothing; that defendants' and cross-complainants' 'right, title and interest in and to said joint and common roadway * * * be quieted for the joint use of cross-complainants and cross-defendant'; that cross-defendant be 'forever enjoined and debarred from asserting the claim that said road is owned by cross-defendant'; and that cross-complainants own 'an easement over, across and along the following described parcels of land in Tract 4600, as per map recorded in Book 49, page 93, of Maps, Records of Los Angeles County, California: (Description of the driveway along the southerly and easterly boundaries of appellant's Lot 7) for road purposes jointly and in common with cross-defendant; that said easement is appurtenant to Lot 8 of said Trace 4600 and to the portion thereof owned by cross-complainants, and cross-complainants have an easement in gross over said (driveway) * * * which they may use for the benefit of their residential property, which includes not only said portion of Lot 8 of Tract 4600 but also Lot 3 of Harvey and Lindleys Addition to Whittier, which is owned by cross-complainants, and that cross-complainants have the right to use said roadway without interference from cross-defendant, and that cross-defendant be forever enjoined and debarred from asserting the claim that said easement and road is owned solely by cross-defendant' and that defendants and cross-complainants recover their costs. (Emphasis added in portion of judgment above quoted.)
Respondents' portion of Lot 8 is directly east of appellant's portion thereof and her Lot 7, upon which she resides. The west line of Lot 7 borders Alta Avenue, which is a dedicated street ending in a cul-de-sac at the northwest corner of appellant's Lot 7 and the southwest corner of respondents' Lot 3. The driveway here in dispute runs from the southwest corner of Lot 7 around the south and east curved boundaries of said Lot 7 to its northeast corner. Respondents' portion of Lot 8 has an area of about 20,000 square feet. In December, 1954, respondents added to their property Lot 3 of Harvey and Lindleys Addition to Whittier, which is over 100,000 square feet in area. The southwest corner of Lot 3 adjoins the north end of Alta Avenue, and the southerly line of Lot 3 coincides with the northerly line of Lots 7 and 8. In 1955, respondents moved their residence from Lot 8, relocated it on Lot 3 about 70 feet north of the north line of Lot 8, and constructed a garage and service building about 25 by 75 feet in area to the east of their new residence location, partially on said Lot 3 and partially on an avocado grove to the east of Lot 8 and Lot. 3. Said grove is owned by a closed family corporation controlled by respondents, and it extends from Lot 8 to Beverly Boulevard. Since moving their residence from Lot 8, respondents have constructed a new driveway joining the old one at the southeast corner of appellant's Lot 7, thence around the south and east of respondents' former residence site on Lot 8, into the southeast corner of Lot 3, to their new garage and service building where it is connected with a dirt road across their corporation's avocado grove to Beverly Boulevard, said new driveway then turns, passes south and west of respondents' new residence, curves into the northwesterly portion of said Lot 3, then west and south and connects with the north end of Alta Avenue. The portion of said driveway on said Lot 3 is about 720 feet of curved and graded roadway connecting the new driveway across their Lot 8 with their corporation's dirt road from the southeast corner of their Lot 3 to Beverly and with the north end of Alta Street at the southwest corner of their said Lot 3.
The record does not show the size of the respondents' avocado grove to the east of their said Lots 8 and 3, or the length of the dirt road across said grove from respondents' garage to Beverly. The findings are, however, that said grove is accessible to the driveway here involved 'but there was and is no evidence to show that any person entered the joint and common roadway established by the parties in October of 1936 from the said dirt roadway * * *.'
It was stipulated at the trial that the roadway from Lot 8 to Alta Avenue will not be used for ingress to or egress from the avocado grove and will be used 'only for the ingress and egress to their residence property and garage and Lot 8 which is a part thereof, in the manner heretofore used by them, and that an injunction may issue enjoining the use of said roadway from Lot 8 to the Street of Alta for purposes other than the servicing of and ingress and egress to and from their said properties in the manner heretofore used by them'; that 'at the present time Lot 8 does not have any structure thereon; has been landscaped and is being used primarily for the purpose of a garden, a footpath and a roadway connecting the driveway from the boundary of Mrs. Buehler's property to Lot 3 of Harvey & Lindley's Addition to Whittier'; that since the moving of respondents' house, the driveway across Lots 7 and 8 to said Lot 3 'has been used by guests, servants, employees, trades people, commercial trucks and vehicles, members of the household, the Reillys and others'.
No issue is raised by the pleadings, at the trial, or on this appeal, as to respondents' ownership of an easement appurtenant to their portion of Lot 8 of Tract 4600. Respondents resided on said portion of Lot 8 from 1928 until 1955, and during that period their only means of ingress and egress was over said easement. The judgment is claimed to be erroneous only with respect to the 'easement in gross * * * for the benefit of (respondents') residential property, which includes * * * Lot 3 of Harvey and Lindleys Addition to Whittier * * *.'
In 1922 appellant bought Lot 7 and the southwesterly portion of Lot 8, and in 1924 respondents bought the remainder of Lot 8, Tract 4600. The conveyances to each of them referred to the subdivision map, upon...
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