Dolske v. Gormley

• Decision Date: 09 October 1962
• Citation: 375 P.2d 174,58 Cal.2d 513,25 Cal.Rptr. 270
• Court: California Supreme Court
• Parties: , 375 P.2d 174 Theresa M. DOLSKE, Plaintiff and Appellant. v. Mary E. GORMLEY, Defendant and Respondent. L. A. 26198.

Page 270

25 Cal.Rptr. 270

58 Cal.2d 513, 375 P.2d 174

Theresa M. DOLSKE, Plaintiff and Appellant. v. Mary E. GORMLEY, Defendant and Respondent.

L. A. 26198.

Supreme Court of California, In Bank.

Oct. 9, 1962.

Fred H. Almy and J. H. Petry, San Bernardino, for plaintiff and appellant.

Swing & Swing and Everett H. Swing, San Bernardino, for defendant and respondent.

WHITE, Justice.

This is an appeal by plaintiff and cross-defendant Theresa M. Dolske, from a judgment denying injunctive relief sought to restrain defendant and cross-complainant Mary E. Gormley's alleged interference with a driveway easement, and decreeing that plaintiff and cross-defendant must remove from defendant and cross-complainant's property certain encroachments thereon. Mrs. Dolske is the owner of the dominant tenement, and Mrs. Gormley the owner of the adjoining servient tenement.

With regard to the factual background surrounding this litigation the record reflects that in 1913 Mary H. Eadie was the owner of a parcel of land located in San Bernardino, which had a 75 foot frontage on the south side of Victoria Avenue, an east-west avenue, and a depth of 128 feet. In that year Mrs. Eadie granted to one of plaintiff's predecessors in title the westerly portion of her larger parcel, which granted parcel measured 25 by 128 feet. Also included in the above grant was 'the right to use as a driveway in common with grantor' a strip of land 10 by 128 feet along the westerly side of Mrs. Eadie's remaining property. The grantee's lot thus had a 25 foot frontage on Victoria Avenue, and 'the right to use as a driveway' a strip adjoining the eastern edge of the new lot.

Prior to 1949 a house was constructed on the new lot, the easterly wall of which was approximately three inches from the property line, and certain other structural features of which encroached upon the westerly edge of the grantor's property. Specifically, it appears that a pillar supporting a large front porch extended at its base approximately nine inches over the property line, the roof eaves along the length of the house extended over the line approximately 19 inches, and two gas meters and pipes next to the house extended approximately eight inches over the adjoining property. It also appears that a wooden curb was constructed along the common driveway approximately one and one-half feet from the eastern wall of the house, and about one foot from the grantor's westerly property line. The garage for the property subsequently acquired by Mrs. Dolske was constructed 40 feet behind the house, the eastern wall of which is 17 inches from the Gormley property line.

Plaintiff Dolske acquired the above described house, lot, and driveway easement in 1949. Her deed conveyed the 25 foot wide lot, 'Also right to use as a driveway' the 10 by 128 foot strip adjoining her easterly property line, 'TOGETHER with the tenements, hereditaments, and appurtenances whatsoever to the same belonging or in anywise appertaining.' Defendant Gormley acquired the adjoining property in 1951 from heirs of Mary H. Eadie. In 1954 or 1955, Mrs. Dolske had constructed, in addition to the prior existing structures along the property line, a concrete curb in the easement way to replace the above-described wooden curbing. It further appears that certain flowers and shrubs have been planted between the house and the curb, on Mas. Gormley's property and in the common driveway area.

The instant litigation appears to have been precipitated when Mrs. Gormley had constructed, in May 1959, a chain link fence along her westerly property line. The fence, approximately four and one-half feet high, was commenced at the sidewalk and extended to the rear of the Dolske house, with breaks therein to accommodate the porch pillar and the gas meters. A 40 foot wide opening was left for access to Mrs. Dolske's garage, and the fence was then continued alongside the Dolske garage to the rear or southerly property line. The fence extended somewhat above the lower portions of the windows on the east side of Mrs. Dolske's house. Since the fence is on the property line, there is only three inches clearance between the fence and the Dolske house, and 17 inches between the fence and Mrs. Dolske's garage, making it difficult to clean and paint between the fense and the buildings.

In her complaint Mrs. Dolske alleged her ownership of the property and her use of the driveway as the sole means of access from Victoria Avenue to her garage in the rear of her property. She alleged that defendants wrongfully 'obstructed said driveway by constructing a chain link fence upon and across said premises, whereby the plaintiff was and still is, prevented from enjoying the use of said easement and driveway.' Plaintiff prayed that Mrs. Gormley 'be perpetually enjoined and restrained from continuing to obstruct said driveway throughout its entire width by said fence and from otherwise obstructing the same.' Mrs. Dolske also sought damages.

In addition to answering, defendant Gormley cross-complained, alleging the wrongful construction and maintenance upon her property of the above detailed pillar, eaves, and other structures, and prayed that a mandatory injunction issue ordering the removal from cross-complainant's property of all alleged encroachments. Mrs. Gormley also sought damages of $1,000. In the pretrial conference order it was recited by Judge Findlay that: 'It is admitted or stipulated by both parties hereto that the easement rights of the plaintiff as set forth in the complaint arise out of an easement of grant rather than a right by user.'

Following a trial before the court wherein the evidence was in the main confined to that bearing upon the question of the extent of the granted right 'to use as a driveway' the 10 foot wide strip of Mrs. Gormley's property, and following a view of the premises by the court, judgment was rendered for defendant and cross-complainant. In addition to finding that the fence did not unreasonably interfere with Mrs. Dolske's enjoyment of the driveway easement, it was decreed that Mrs. Dolske must remove from Mrs. Gormley's property all encroachments, including the roof eaves and the porch pillar. It was further decreed that the driveway easement may be used by Mrs. Dolske or persons claiming under her only 'for ingress and egress for vehicular traffic between Victoria Avenue and the said dominant tenement through the opening in the fence as the same presently exists along the common boundary line of said dominant and servient tenements.' No damages were awarded to defendant and cross-complainant.

Various contentions are advanced by plaintiff and cross-defendant concerning prescriptive rights that allegedly ripened in plaintiff or her predecessors in title, giving her the right to use the easement to obtain access to her property for maintenance and other general purposes, in addition to the right of ingress and egress for vehicular traffic. Plaintiff also appears to contend that prescriptive rights ripened such as to enable her to maintain the encroachments now existing upon defendant's lot.

However, while the record contains occasional references to matter bearing upon possible prescriptive rights, the issue of prescriptive rights appears not to have been litigated herein. The case at bar would appear to involve only the question of whether the chain link fence as constructed by Mrs. Gormley along her westerly property line unreasonably interfered with the use 'as a driveway' of the granted 10 by 128 foot wide easement way, and the question whether the Dolske encroachments must be removed.

In advancing contentions concerning any prescriptive rights that might have been acquired in addition to those conveyed by the 1913 grant (see Mendelson v. McCabe, 144 Cal. 230, 232, 77 P. 915; Redemeyer v. Carroll, 21 Cal.App.2d 217, 219-220, 68 P.2d 739; Anno. 110 A.L.R. 915), plaintiff is met by the rule that a change in the theory of one's case can be made on appeal only where questions of law alone are presented. (Estate of Hunter, 194...