Daywalt v. Walker

Decision Date27 June 1963
Citation31 Cal.Rptr. 899,217 Cal.App.2d 669
PartiesWilliam E. DAYWALT, Plaintiff and Appellant, v. Ardis M. WALKER et al., Defendants and Respondents. Civ. 235.
CourtCalifornia Court of Appeals Court of Appeals

Little, Curry & Hagen, Stanley Rogers, Los Angeles, for appellant.

Woodruff & Williams, Roland S. Woodruff, Bakersfield, for respondents.

CONLEY, Presiding Justice.

The plaintiff, William E. Daywalt, who is owner of a parcel of land on the Kern River near Kernville, sued the defendants to establish a right of way across their neighboring parcels, to enjoin interference with his alleged easement, and for damages; he appeals from a judgment for the defendants. In his complaint he advanced three different theories: he alleged that he had an easement by implication, an easement by grant and an easement by necessity, but because his attorneys recognize that there was substantial, though conflicting, evidence to support the trial court's findings against the first two theories of easement, they are not urged on the appeal; appellant thus limits his hope for a reversal on the sole ground that he established a right of way by necessity.

In 1949, Orian Campbell, one of the defendants, purchased an extensive parcel of land on both the east and west sides of the Kern River from the Bank of America, acting in a fiduciary capacity for Mrs. A. L. Dalley, the owner. All of this property was in the Kernville area in Kern County and lay immediately north of a subsequently constructed long bridge over the Kern River. We are concerned here only with that part of the purchased land on the westerly side of the river, which is bounded on the east by the Kern River itself, on the south by the river after its change of direction toward the west at a line which corresponded with the center line of the public road easement along which the bridge over the Kern River was constructed, on the west by a midsection line of Section 15, Township 25 south, Range 33 east, M.D.B. & M., and upon the north by property then still owned by Mrs. Dalley, but title to which has since passed to one J. M. Mountain and his associates.

Mr. Campbell sold the northerly part of his land west of the river to appellant and conveyed the property to him by deed dated April 9, 1956. The major part of the remaining parcel owned by Campbell west of the river was sold by him to the defendant Ardis Walker and deeded to him by instrument dated October 23, 1956. Mr. Walker was at that time the owner of a motel on land designated as Lots 22 and 23, which fronted on the public road crossing the long bridge; because of this ownership, Mr. Walker, and through him his grantees, have at all times had access to the highway. But, of course, plaintiff is in a different position. Mr. Campbell kept a small area at the southeast corner of this parcel on the river where a well was located, and as the deeds to the plaintiff and to the defendant Ardis Walker used metes and bounds descriptions, it appears that Campbell also kept a small segment of the land along the river bank itself. Mr. Walker in turn deeded portions of the land to the other defendants, furnishing each of them a right of way in the several conveyances.

Appellant's theory is that when the land was sold to him by Mr. Campbell there was no legally available method open to him to reach his property from any highway or county road, except over the land retained by Campbell to the south, which, with his own land, had previously constituted one integrated parcel. Respondent's opposition to such contention is twofold in nature: first, it is claimed that it was the understanding of the parties that no easement was to be conveyed by virtue of the sale to Mr. Daywalt, and second, it is urged that there was in fact no existing way over the Campbell property by which anyone could reach a public highway and that therefore there could not possibly arise a way by necessity.

The general principles applicable to ways of necessity are thus stated in 17 California Jurisprudence 2d, Easements, section 16, at pages 112-114, as follows:

'A way of necessity arises by operation of law when a grantor conveys land shut off from access to a road to the outer world by the grantor's remaining land, or partly by his land and partly by that of a stranger. It can arise only when the relation of grantor and grantee exists between the parties, when the dominant and servient estates are under the same ownership at the time of the conveyance, and when a necessity therefor exists * * *.

* * *

* * *

'A way of necessity cannot exist except in case of strict necessity; that is, when the claimed way furnishes the only means by which access may be had to the claimant's property. It does not exist where a man can get to his property through his own land, even though that way is steep or narrow, or presents other and like difficulties. The mere fact that the land owned by the claimant is bounded on one side by a road which connects with county roads is alone fatal to the existence of a way of necessity over another road on his grantor's land. And it is immaterial that a roadway on the grantor's land would be a more convenient way for the grantee to reach his property. Even the fact that an available road is impassable confers no more than a temporary right to pass over adjoining land.'

In 17A American Jurisprudence, Easements, section 58, pages 668-669, it is said:

'A way of necessity is an easement arising from an implied grant or implied reservation; it is of common-law origin and is supported by the rule of sound public policy that lands should not be rendered unfit for occupancy or successful cultivation. Such a way is the result of the application of the presumption that whenever a party conveys property, he conveys whatever is necessary for the beneficial use of that property and retains whatever is necessary for the beneficial use of land he still possesses. Thus, the legal basis of a way of necessity is the presumption of a grant arising from the circumstances of the case. This presumption of a grant, however, is one of fact, and whether a grant should be implied depends upon the terms of the deed and the facts in each particular case.' (Emphasis added.)

County of Los Angeles v. Bartlett, 203 Cal.App.2d 523, 529, 21 Cal.Rptr. 776, 779 et seq., holds as follows:

'It is well settled that the law never imposes an implied easement or an easement by necessity contrary to the express intent of the parties. It appears from the record that the subject property was bounded on three sides by property owned by the grantor named in the deed which conveyed the subject property to appellants' predecessor in title. As we have shown, said deed conveyed no 'right of way, privilege, easement or right whatsoever' over any of the lots contiguous to the subject lot. Thus, the intent of the parties was clearly stated.

'The general rule is stated in 28 C.J.S. Easements § 35, p. 696, as follows: '* * * The implication of an easement by necessity is based upon the inferred intent of the parties, which is to be determined from the terms of the instrument and circumstances surrounding the transaction; the implication will not be made where it is shown that the parties did not intend it. * * * Necessity alone without reference to any relations between the respective owners of the land is not sufficient to create this right.'

'All of the cases cited by appellants express the general rule regarding the creation of easements by necessity where the requisite conditions exist and where no contrary intent is expressed by the parties. In San Joaquin Valley Bank v. Dodge, 125 Cal. 77, 80, 57 P. 687, 688, the court recognized that ways by necessity arise by implication, stating: 'In such cases the grantor impliedly grants a right of way over his land as incident to the purchaser's occupation and the enjoyment of the premises granted.'

"An implication of the grant of a way of necessity may arise from the transaction, but the necessity does not of itself create a right of way, though it may be evidence of the grantor's intention to convey one and raise an implication of a grant. The presumption, however, is one of fact, and whether or not the grant is to be implied depends upon the terms of the deed and the facts of the case. [Citations.] The implication will not be made where it is shown the parties did not intend it.' (Emphasis added.) [Citations.]'

2 Thompson on Real Property (Permanent Edition), § 539, page 134, states:

'The foundation of the rule whereby a right of way of necessity is held to have been impliedly granted or reserved in deeds is, that it was the intention of the parties to the deed that the grantor should convey, and that the grantee should acquire, the means of...

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