Cleary v. Trimble

• Decision Date: 31 July 1964
• Parties: Margie W. CLEARY, Plaintiff, Cross-Defendant and Appellant, v. Elmer TRIMBLE et al., Defendants, Cross-Complainants and Respondents. Civ. 10790.
• Court: California Court of Appeals Court of Appeals

Page 776

39 Cal.Rptr. 776

229 Cal.App.2d 1

Margie W. CLEARY, Plaintiff, Cross-Defendant and Appellant, v. Elmer TRIMBLE et al., Defendants, Cross-Complainants and Respondents.

Civ. 10790.

District Court of Appeal, Third District, California.

July 31, 1964.

C. Ray Robinson, Merced, for appellant.

William H. Dick and Nat Brown, Jr., Stockton, for respondents.

PIERCE, Presiding Justice.

The controversy concerns an easement claimed by respondents Trimble to a 10-foot-wide dirt road 1,600 feet in length which meanders snakelike along the section line common to Sections 2 and 3, Township 1 South, Range 9 East, M. D. B. & M., extending southerly from an east-west county road (Carter Road) and into respondents' property in Sections 2 and 3 (S 1/2 of NW 1/4 of 2; S 1/2 of NE 1/4 of 3). The trial court upheld the Trimbles' claim finding that they had an easement (1) by prescription and (2) by map dedication.

Appellant Margie W. Cleary is the owner of the servient tenement. She owns 95 acres in Section 2 and 72 acres in Section 3. The Trimble lands, also in Sections 2 and 3, adjoin on the south. The road intersects the Cleary property. Substantial evidence, contrary to Mrs. Cleary's contention on appeal, supports the finding of a prescriptive easement. No determination of the issue of easement by dedication is necessary.

The road has existed at least since 1887. George Matesech, a witness called by the Trimbles, testified that at that time and for 10 years thereafter he and his brother and sister had used the road as a means of reaching the Wheatland School located across the road's intersection with Carter Road from their home across the railroad tracks to the south. Use of the road by these school children could have been permissive and is not significant. But he also testified that at that time Pete Dorland owned and lands (the dominant estate) now owned by the Trimbles (sometimes referred to by the witnesses as the 'Dorland place,' sometimes as the 'southern ranch'--we will use these terms interchangeably). Dorland had his residence thereon and used the road as the sole means of ingress and egress between the house and the county road. (This house remained on the property until the late 1940's when it burned. It was then 80 years old. All that remains now is a windmill.) Before Dorland, Manchester had owned the ranch. An earlier owner was Smith but he had used as an access road one extending to a county road on the south. During the period Matesech was acquainted with the road (1887--the 1920's), it was a 'good gravel road.'

In the middle and late 1920's, the Dorland place was occupied by one Rampoli who operated a flourishing bootlegging establishment. It was kept 'pretty busy.' He and his patrons used the road.

Matesech testified his 'brother had the place rented, I think, for seven years.' He also stated the brother had lived in the house, 'farmed the ranch and he used that road back and forth, hauled his grain in and out, running back and forth three or four times a day. I used to go over to see him, I used to use the road pretty near every day off and on.' Although the dates of the Matesech tenure were not given, it seems probable this was in or before the 1920's.

Matesech testified that other people used the road. Regarding the continuity of its use this witness testified: 'Q. Now, to your knowledge was that road used for years from the time you're mentioning as a means of getting into the southern ranch? A. Absolutely, the road's been used for years and years. Q. Since the time you are telling us about? A. Yes. Q. Since 1887? A. Yes, it's been used, we used to go to school there for ten years.'

No evidence was produced to show that use of the road was ever denied anyone (until the events precipitating this lawsuit). Matesech was asked: 'Q. Anybody ever try to deny anybody the use of that road? A. No, no, it was free for anybody to use. Q. And has it ever been any different than that within all the period of time we're talking about? A. No, no difference at all.'

Another witness for the Trimbles was Wilbur Morrill. He had been familiar with the use of the road since 1918 when at age 16 he had gone to work in the area. (He had farmed there ever since.) He had once farmed the place now owned by appellant, Mrs. Cleary. (It then belonged to Mrs. Stephens.)

The most significant testimony in the record is the statement by this witness that at least as early as 1918 the road was fenced off on both sides, separating it from the Cleary (then Stephens) place. He testified that Dorland was then using the road to get in and out of his place: 'Q. And who all used that road? A. Well, that would be awfully hard to say who did, as far as I'm concerned, because when I was there for two or three days at a stretch, why you'd see different people all the time up and down that road.' This witness also testified: 'Q. And was access during any of that period of time denied to anybody who wanted to go down by anyone? A. Not that I know of. I never heard of it. I farmed the property myself in 1940. I rented it from Mrs. Stephens on a share crop, and at that time I farmed both sides of the road.' He testified further that the road was fenced then. The fence was destroyed by fire in 1947--a general conflagration in the area. It was never rebuilt.

Respondent Elmer Trimble testified: He had commenced in 1940 to make land purchases in the area, including in addition to the Dorland place the Trimble home ranch. Before that, however, he had, commencing in 1936, leased the Dorland place as well as other land in the vicinity. He also testified he had been familiar with the land since 1928 and knew two of his predecessors in ownership of the Dorland place, J. E. Madison and G. A. Ulrich, who had used the road. When Trimble acquired the southern ranch, the road was the only means of ingress and egress. After the old house burned down (1947) no one resided thereon but access by the road for equipment was necessary so that the property could be farmed. He further testified he had continued to use this road as the only available access until three years before the trial (which was held in June 1962), when another road was constructed by him connecting the Dorland place to Henry Road on the south. This latter road was described as being unsatisfactory for cattle trucks because of had curves and low places which caused it to be unsafe after rains. He stated that during the entire period of use by him and his predecessors nobody had challenged the right of use until the incident to be related next.

Arthur Silva was a witness for Mrs. Cleary. He had bought the servient tenement from one Nelson and had sold it to Mrs. Cleary in 1959. He knew that the Trimbles were using the road. He had seen them using it many times. They used it for trucks to haul barley. He admitted he had never tried to deny them access. He had at one time however, put a padlock on the gate to prevent his harvested barley from being stolen. The lock was on overnight. The next day it, or the chain, had been cut or broken. Later Elmer Trimble told him he had cut the chain. Silva put on another lock and gave a key to a man to whom he had leased the stubble for cattle grazing. He did not know whether this lock had been removed. Trimble testified that except for the one incident described above use of the road by himself and his son had been uninterrupted and unchallenged.

Mrs. Cleary, when she bought the place in 1959, plowed up the road. At that time the road, although visible, was described as being two tracks with grass in the middle. When this was done Richard Trimble had had the road regraded and reestablished. An altercation occurred and Trimble stated to Mrs. Cleary that the road was 'the right-of-way to that ranch and I don't think you own that road.' This litigation apparently followed shortly thereafter.

The trial court found under the foregoing facts that the Trimbles had acquired an easement by prescription. Although 'prescription' in its broadest definition means the effect of lapse of time in the creation or extinguishment of property interest, whether corporeal or incorporeal, the word in common law and in California has been usually applied to the creation of incorporeal interests by lapse of time while the term 'adverse possession' refers to the acquisition and extinguishment of corporeal interests. The one deals with an adverse right of use, the other with a title to the land itself by adverse possession. (Rest., Property, intro. note, Topic A, p. 2922; 2 Witkin, Summary of Cal.Law, Real Property, sec. 10, p. 870; Thomas v. England, 71 Cal. 456, 12 P. 491; 6 Powell on Real Property, p. 758.) Since the objectives and elements of both adverse possession and prescription are the same, the foregoing analysis of the distinction between the two would be both tautological and precious except for another factor--a very important one in this case--namely, the quantum and type of evidence which logically and legally proves the states elements in a given case. Evidence which establishes adverse user may, as we shall see, differ quite materially from that required to prove adverse possession. In other words, the elements are the same but the proof of the elements can be materially different.

Whether adverse title to the land itself or to an easement thereover is involved, the objectives of the law are 'protection of long established positions and relatively prompt termination of controversies.' (Rest., Property, sec. 457, p. 2923.) The elements necessary to be proved to establish either adverse possession or adverse user are: open and notorious user or possession, which is continuous and uninterrupted, hostile to the true owner, and under a claim of right (2 Witkin, Summary of Cal.Law, Real Property, sec. 12, p. 871, Idem., sec. 190, p. 1028, and cases there cited), or as these elements are perhaps more nicely stated with respect to easements in the...