Clark v. Redlich

• Decision Date: 10 January 1957
• Citation: 305 P.2d 239,147 Cal.App.2d 500
• Court: California Court of Appeals Court of Appeals
• Parties: Clarence CLARK and Margaret L. Clark, husband and wife, Plaintiffs, Cross-Defendants, Appellants and Respondents, v. Carl F. REDLICH and Lura Metta Redlich, husband and wife, Defendants, Cross-Complainants and Appellants, R. L. Seal and Dorsie V. Seal, husband and wife, Defendants, Cross-Defendants and Respondents. Civ. 5299.

Page 239

305 P.2d 239

147 Cal.App.2d 500

Clarence CLARK and Margaret L. Clark, husband and wife, Plaintiffs, Cross-Defendants, Appellants and Respondents, v. Carl F. REDLICH and Lura Metta Redlich, husband and wife, Defendants, Cross-Complainants and Appellants R. L. Seal and Dorsie V. Seal, husband and wife, Defendants, Cross-Defendants and Respondents.

Civ. 5299.

District Court of Appeal, Fourth District, California.

Jan. 10, 1957.

Preston Turner, Anaheim, for plaintiffs-appellants Clark.

Wm. P. Webb and Webb & Lae, Anaheim, for defendants-appellants Redlich.

Head, Jacobs, Corfman & Jacobs, Santa Ana, for respondents Seal.

COUGHLIN, Justice pro tem.

In 1945, the plaintiffs Clark purchased a parcel of land, near the intersection of Lincoln Avenue and Hanson Street in Orange County, together with an easement of ingress and egress over adjoining land owned by the defendants Redlich. This easement had been created in 1929 by a written agreement between the prior owners of these properties, but never has been used. Instead, the Clarks have used a lane or road, originally described as a 'two -wheel wagon track', along the southerly boundary of the land now owned by the defendants Seal.

The Clarks built two houses upon their property; the first in 1946 and the second in 1953. They lived in the first house; the second house was occupied by tenants. All of the people living in these houses used the road over the Seal property as their means of ingress and egress.

In 1948 or 1949, preliminary to straightening out this road, Clark endeavored to purchase a right of way for this purpose from the prior owner. In discussing this matter with a Mr. McDowell, the agent for this owner, Clark said that he had a right of way to Lincoln Avenue but wanted one to Hanson Street. Although unsuccessful in his attempt to buy a right of way Clark was given permission to use the road temporarily, until the property was sold, but was advised that the owner anticipated selling the property and would not give him a perpetual right of way.

In 1952, Clark endeavored to get a Mr. Mackay, who then owned the property, to sell him a right of way for the road, or permit the county to put through a street. Clark told Mackay that 'he didn't claim any way over the road, that he wasn't making any claim on it as being his.' Mackay was unwilling to sell a right of way; permit the roadway to be paved; or deed a 'full width street off of one side of the property' to the county. However, he told Clark that he would not work a hardship on him, but advised him 'if he had any other way he could get out of there, to try to make some arrangement because he did figure on selling.' Thereafter, Clark continued to use the road, grading it about twice a year, until the property was purchased by the Seals who built a house thereon, and constructed a fence enclosing it which prevented further use of the roadway.

In the meantime, little had been done to put through a road along the easement over the Redlich property. From 1946 to 1948, Redlich had row-cropped his land, including the easement; in 1948 sowed it to permanent pasture; and thereafter fencing of the entire property was completed. In 1947, and again in 1949, Mr. Clark asked Mr. Redlich to 'open up' but could get no answer.

After the construction of the Seal fence the Clarks filed an action for declaratory relief; alleged that they had an easement by grant over the Redlich property and an easement by prescription over the Seal property; and obtained a temporary injunction restraining Mr. and Mrs. Seal from preventing the Clarks' use of the roadway in question. The Redlichs answered and cross-complained seeking to quiet title to their property. The Seals answered and prayed that they be awarded damages incurred as a result of the temporary injunction and the use of their land thereunder by the plaintiffs.

The trial court found that the Clarks had an easement over the Redlich property; did not have an easement over the Seal property; and that Mr. and Mrs. Seal sustained damages in the sum of $200 resulting from the issuance of the preliminary injunction. Judgment was entered accordingly, from which both the plaintiffs Clark and the defendants Redlich have appealed.

The Clarks contend that the judgment in favor of the defendants Seal was in error, as the facts establish that they acquired an easement by prescription over the Seal property, arising out of the use of the roadway in question; that, if they did not acquire such an easement, at least, they obtained an irrevocable license; and that the award of damages was improper.

Contrary to plaintiffs' contention, the evidence fully supports the implied finding of the trial court that their use of the roadway was not adverse or under claim of right, but was permissive and with consent of the owner. These are questions of fact and 'if there is any substantial evidence to support the judgment, it must be affirmed.' O'Banion v. Borba, 32 Cal.2d 145, 147, 195 P.2d 10, 12. Plaintiffs' argument is based on a statement of facts which ignores the general rule that, on appeal an appellate court will '(a) view the evidence in the light most favorable to the respondent (b) not weigh the evidence', and '(c) indulge all intendments which favor sustaining the finding of the trier of fact, * * *'. In re Estate of Isenberg, 63 Cal.App.2d 214, 216, 146 P.2d 424, 425.

In 1948 or 1949, and again in 1952, Clark tried to buy a right of way for the road in question. Such an offer was a recognition of the prior owners' title and disproves any contention that the use of the roadway was under a claim of right. Central Pac. R. Co. v. Mead, 63 Cal. 112. Although refusing to sell a right of way, the former owners gave plaintiffs permission to use the road. '[W]here the use of a way by a neighbor is by the express or implied permission of the owner, the continued use is not adverse and cannot ripen into a prescriptive right.' Jones v. Tierney-Sinclair, 71 Cal.App.2d 366, 370, 162 P.2d 669, 671. Whether the use of a roadway is adverse and under a claim of right or a 'mere matter of neighborly accommodation' is a question of fact to be determined in the light of all of the circumstances disclosed by the evidence. O'Banion v. Borba, 32 Cal.2d 145, 150, 195 P.2d 10.

The plaintiffs rely on the cases of Yuba Consolidated Goldfields v. Hilton, 16 Cal.App. 228, 116 P. 712, 715; Crawford v. Lambert, 136 Cal.App. 617, 29 P.2d 428, and Crossett v. Souza, 3 Cal.2d 721, 45 P.2d 970, in which reference is made to a presumption, arising from long continuous use, that such a use was adverse, under claim of right, and with knowledge of such claim by the owners of the property involved. Each of these cases sustain a finding of adverse possession made by the trial court. In O'Banion v. Borba, 32 Cal.2d 145, 150, 195 P.2d 10, 13, the court said: 'While many of the cases mention presumptions, the problem actually discussed therein is the sufficiency of the evidence in the light of all the circumstances disclosed.' In the instant case, there is ample evidence to support the finding of the trial court. The cited cases are not authority for plaintiffs' position.

The Clarks also contend that, even though they may not have acquired a right of way over the Seal property by prescription, they did obtain an irrevocable license to use the roadway. The complaint, which is for declaratory relief, sets forth only a controversy between the plaintiffs Clark and the defendants Seal over an alleged 'easement by prescription'. The prayer of this complaint asks for judgment declaring whether the plaintiffs have such an 'easement by prescription'. No mention is made of an irrevocable license either in the pleadings, or in the findings of the trial court. Such an issue may not be raised for the first time on appeal. Eger v. May Department Stores, 120 Cal.App.2d 554, 561, 261 P.2d 281; Stinson v. Blodget, 123 Cal.App.2d 390, 391, 266 P.2d 947. 'A plaintiff must recover, if at all, upon the cause of action set out in the complaint, and not upon some other which may be developed by the proofs.' Mondran v. Goux, 51 Cal. 151, 153; Reed v. Norton, 99 Cal. 617, 619, 34 P. 333; Schirmer v. Drexler, 134 Cal. 134, 139, 66 P. 180.

The trial court found that the defendants Seal 'have been damaged in the sum of $200 by virtue of the preliminary injunction heretofore ordered at the request of the plaintiffs', and awarded judgment accordingly. This finding was not based upon any pleading. The only mention of such a matter is in the prayer to the answer of the defendants Seal which asks for damages in an undisclosed amount, incurred as a result of the issuance of the preliminary injunction. The issue of such damages was not properly before the trial court; was not a proper subject for consideration by that court; and the judgment awarding such was erroneous. Damages arising out of the issuance of a temporary injunction may be recovered, if at all, only in an independent action brought for that purpose. People v. Hawley, 207 Cal. 395, 407, 279 P. 136.

The defendants Redlich appeal from that part of the judgment declaring the right of plaintiffs to use the easement described in the written agreement executed in 1929. These defendants contend that this easement was lost by adverse possession; was extinguished by their use of the servient tenement, for the statutory period governing adverse possession, in a manner adverse to the exercise of the...