Carbine v. Meyer

• Decision Date: 02 July 1954
• Citation: 272 P.2d 849,126 Cal.App.2d 386
• Court: California Court of Appeals Court of Appeals
• Parties: CARBINE v. MEYER. Civ. 8410.

Page 849

272 P.2d 849

126 Cal.App.2d 386

CARBINE v. MEYER.

Civ. 8410.

District Court of Appeal, Third District, California.

July 2, 1954.

Busick & Busick, Sacramento, for appellant.

Emmett J. Foley, Placerville, for respondent.

SCHOTTKY, Justice.

Plaintiff commenced an action against defendant to restrain defendant from using a road on the land owned by plaintiff and her husband as joint tenants, and for damages for alleged trespass by defendant. Defendant filed an answer claiming that she owned an easement over plaintiff's land and also filed a cross-complaint seeking to quiet title to the claimed easement. At the conclusion of the trial before the court defendant was granted leave to file an amendment to her answer adding the defense of the statute of limitations. Subd. 2 of section 338, and section 343 of the Code of Civil Procedure. The court ordered judgment in favor of plaintiff but did not award any damages. Findings of fact and conclusions of law were filed, and in accordance therewith judgment was entered 'That the plaintiff and cross defendant, Elsie C. L. Carbine, is entitled to and is hereby granted a judgment quieting her title to the land in question as against defendant and cross complainant Dora Loraine Meyer's claim for this particular easement, and restraining the defendant and cross-complainant from use of the same, and that said judgment decree that the purported agreement signed by the plaintiff and cross defendant's husband, John Edward Carbine, is not binding upon the plaintiff and cross defendant Elsie C. L. Carbine.'

Defendant has appealed from the judgment and makes a number of contentions for the reversal thereof. Before discussing these we shall summarize the rather unusual factual situation as shown by the record.

Respondent and her husband, John Edward Carbine, and appellant are the respective owners of adjoining parcels of land situated in El Dorado County. The land of respondent and her husband (hereinafter called the 'Carbine land') lies between appellant's parcel (hereinafter called the 'Meyerland') and a county road.

In April of 1946, plaintiff's husband and a Mr. Reynolds, the then owner of the land now owned by defendant, entered into an agreement whereby plaintiff's husband gave Mr. Reynolds the right to use the road running from the county road to the defendant's land, over plaintiff's land.

At the time the easement was granted, Mr. Reynolds was appellant's former husband and it is not clear whether he was the sole owner of the Meyer land, or whether appellant had an interest in it. Appellant testified that Mr. Reynolds and she had acquired the property in 1942, during their marriage, and that in 1945, after their divorce, she invested some money in the property and the two of them then owned it in joint tenancy. In any event, Mr. Reynolds conveyed his interest in the Meyer land to appellant in 1950, and thereafter she was the sole owner.

In April, 1946, when the easement was granted, respondent and her husband had not yet obtained complete title to the Carbine land, but were purchasing it, under contract, and it was not until 1949, after the conclusion of certain other litigation (in which appellant was not involved), that respondent and her husband received a deed to the land from the executrix of the estate of Mary J. Wentz, deceased. Respondent and her husband were named as joint tenants, both in the contract of purchase from the Brays and in the deed from the executrix. It does not appear from the record that respondent ever joined in or consented to the grant or use of the easement. She testified that she never had done so, and appellant's answer admits that respondent never consented to the use of the easement by appellant.

The record does not show what use Mr. Reynolds made of the road, and the testimony is conflicting as to the use made by appellant. The latter testified that she used the road for six months, right after it was put in, and was then told by Mr. Carbine that the road had been closed. Barbed wire had been strung on posts across the road; appellant took this wire down, but four days later it was restrung. At one point in her testimony she stated that these barricades were erected in December, 1946, and at another time she said that the first barricade was erected in March, 1946--she later corrected this to July, 1946--and that the second barricade was put up about two weeks later. In any event her testimony shows that after the road was closed for the second time she did not use it again until November or December, 1947, when she had the obstruction removed and put cattle guards in. After this second opening of the road, appellant used it for three days when it was again closed, this time by trees being felled across it, and the road remained closed until the summer of 1951, when appellant had the county road department remove the obstructions and regrade the road. This regrading was done on July 25, 1951, but it appears that the road was again closed later that summer, by chains and a felled tree. In October or November of that year respondent also had a ditch cut through the road for drainage purposes, and thereafter the road was impassable. Appellant was not living on the property at this time, but she had a tenant there. She testified that she (appellant) did use the road after the regarding, but that the tenant used it only once or twice, using another road instead. This other road also crossed the Carbine land, but it is not in issue in this appeal. Respondent denied that appellant used the road here involved for six months after it was put in, and testified, instead, that it had not been used 'a month altogether' since it was built.

In December, 1947, apparently after appellant had opened the road for a second time and it had again been closed, appellant brought an action in the Superior Court in and for El Dorado County to quiet title to the easement and for injunctive relief. This action was brought against Mr. Carbine and others who were alleged to be the owners of the Carbine land, but no mention was made of respondent's interest in the land and she was not made a party to the action. The file in the action shows that on June 4, 1948, appellant obtained a decree quieting her title to the easement, enjoining interference with her use thereof, and requiring removal of the obstructions. About two months later, upon the application of appellant, the defendants in that action were ordered to show cause why they should not be punished for contempt for failure to remove the obstructions. Respondent's joint tenancy interest in the Carbine land and her objections to the easement were brought out at the hearing, apparently for the first time, and the court discharged the order to show cause, on the ground that the forced removal of the obstructions would be prejudicial to respondent's apparent rights.

Appellant testified to substantial expenses incurred by her in improving the road and clearing away the obstructions. Among the improvements were the installation and reinstallation of cattle guards and culverts, as well as the regarding of the road in July, 1951. However, it does not appear that any of these expenditures were made prior to the second reopening of the road in November or December, 1947, at which time the road had already been closed twice and posted with 'no trespassing' signs.

Appellant first contends that the instant action, which was filed on August 3, 1951, was barred by the provisions of subdivision 2 of section 338 of the Code of Civil Procedure and section 343 of the same code. It is clear that the action is one for trespass upon real property and that subdivision 2 of section 338 providing that such actions shall be commenced within three years is the applicable statute.

As hereinbefore noted, there is evidence that appellant started to use the road in 1946, although the extent of her use that year is in dispute. It appears, however, that after the initial barricade was put up, appellant used the road for only four days in 1946, for three days in 1947, and made no further use of it until July, 1951, when the acts of trespass, of which respondent complains, occurred. The original complaint herein was filed in August, 1951. Where a trespass consists of a physical entry upon the lands of another and taking possession thereof under such circumstances as to indicate an intention that the trespass shall be permanent, the law may regard the wrong done in such case as complete at the time of the original entry, and the statute of limitations runs from that time. Kafka v. Bozio, 191 Cal. 746, 750, 218 P. 753, 29 A.L.R. 833. Where, however, from the character of the trespass it is not to be presumed that the wrongful conduct will be continued, successive trespasses give rise to successive causes of action, and an action may be brought at any time to recover the damages which have accrued within the statutory period, although the original trespass occurred before that period, provided that the plaintiff had not permitted such time to elapse as will vest in the defendant a right by prescription. Williams v....