LeDeit v. Ehlert

• Decision Date: 27 June 1962
• Citation: 205 Cal.App.2d 154,22 Cal.Rptr. 747
• Court: California Court of Appeals Court of Appeals
• Parties: George M. LeDEIT and Ruth K. LeDelt, husband and wife, Arthur E. LeDeit and Lydia LeDeit, husband and wife, Plaintiffs and Respondents, v. William F. EHLERT, Alleene M. Ehiert and Fred W. Ehlert and Emille Ehlert, Defendants and Appellants. Civ. 19862.

Page 747

22 Cal.Rptr. 747

205 Cal.App.2d 154

George M. LeDEIT and Ruth K. LeDelt, husband and wife, Arthur E. LeDeit and Lydia LeDeit, husband and wife, Plaintiffs and Respondents, v. William F. EHLERT, Alleene M. Ehiert and Fred W. Ehlert and Emille Ehlert, Defendants and Appellants.

Civ. 19862.

District Court of Appeal, First District, Division 1, California.

June 27, 1962.

As Modified on Denial of Rehearing July 23, 1962.

Hearing Denied Aug. 22, 1962.

Arvin O. Robb, San Jose, for appellants.

John Corry Fell, San Jose, for respondents.

TOBRINER, Justice.

The San Antone Canyon, which lies east of San Jose, California, in the rugged terrain of the Mt. Hamilton Range, has not only served as a hunting and recreation area but as the locus of this dispute as to respondents' prescriptive right to cross appellants' lands for the pursuit of such activities. The dispute is reflected in a controversy over whether the court committed prejudicial error in instructing the jury that an open and continuous peaceable use of the claimed roadway generated a presumption that the use was adverse to the owner. We have concluded that while the better practice would indicate that the instruction not be given, the error, if any, worked no prejudice. As we shall explain, we believe the verdict conformed to law, the judgment conformed to the verdict, and the judgment, therefore, should be affirmed.

The two brothers, respondents George LeDeit and Arthur LeDeit, and their respective wives, who own certain real property along San Antone Creek, brought this action to enjoin appellants from interfering with their use of the asserted easement. Respondents' argument begins with respondents' father's acquisition in the 1920's of land which became known as the 'Old LeDeit Ranch.' The property was located at the junction of Bayo and San Antone Creeks. Mr. LeDeit used the parcel for ranching and for recreation, including hunting. The lands involved in the litigation, east of the Old LeDeit Ranch, also border San Antone Creek. During this early period the lands in the area were open and apparently unfenced.

When respondents lived on the ranch they often went hunting in the area, and, in the manner of their father, used the San Antone Canyon as a roadway. In 1936 Mr. LeDeit sold the ranch to a Dr. Beaver, who allowed respondents to continue to travel through the ranch to reach the hunting lands. But in 1941 or soon thereafter, Dr. Beaver terminated their right to do so; in any event, during the war hunting was forbidden in the area.

Thereafter, in 1944, respondents acquired 40 acres on San Antone Creek, east of the old ranch. This property is the site of the present LeDeit Cabin. On later dates respondents purchased title to other nearby parcels of property as well as options upon, or leases of, United States government lands.

Then appellants in 1954 acquired their first property in the area. This piece lies midway between the Old LeDeit Ranch and the site of the present LeDeit Cabin; San Antone Creek runs through the property. Later, in 1958 and 1959, appellants purchased adjoining parcels of land located immediately between their first purchase and the present LeDeit Cabin. It is on these lands that the instant difficulties arose.

The evidence shows that respondents had freely used the lands in the area without restriction to pass to and from the government lands, where they commonly went hunting, and that they often took guests with them. To go from the LeDeit lands at the eastern end of the creek to the government lands used for hunting, respondents and their guests would necessarily cross appellants' lands, including the 'Greene Estate,' lands owned by Pat Greene and sold in 1958 to appellants. The road consisted of a track which closely followed the bed of the creek and passed through an area adjacent to both appellants' and respondents' cabins.

In 1956, respondents told appellant William Ehlert that they proposed to use the road to take members of a hunting club, which they had established, to the hunting lands. Ehlert refused to agree to this procedure. Appellants built a fence or gate across the road; according to appellants, no one, during 1956, attempted to pass through this obstruction.

The area, as mentioned above, had theretofore been nearly free of fences. Respondents had built a 'drift fence' (Beaver Drift Fence) across the San Antone Canyon to keep cattle from straying from their land. Respondents had also erected another gate about eight years prior to the trial, but the record does not fix its location with certainty. The other ranch owners in the area had permission to use the gate. At the time the LeDeits began to use the creek bed as a road, prior owners had already used it for that purpose.

After appellants erected the obstruction, respondents claim they still used the roadway; they did not seek appellants' permission to do so. If the gate were closed by a lock, they 'cut it off.' Respondents continued to pass through appellants' property although they knew that appellants objected. Finally appellants hired a man to dig a hole in the middle of the road and thus block all travel across the property. Unable to use the creek bed as a means of reaching the hunting area, respondents brought this action, claiming that appellants interfered with a prescriptive easement appurtenant to the various lands owned by respondents.

The jury found for respondents and returned the following special verdicts:

'1. Extent of easement: For personal ingress and egress for purposes of entering LEDEIT family lands and public lands on option.

'2. If personal, the extent of personal use: Recreation and hunting for family and non-paying guests.

'3. If appurtenant, the lands to which the easement is appurtenant: None.

'4. Route of easement: A reasonable route confined to the path of the San Antone Creek commencing at the easterly most boundry of the EHLERT property to a point just west of the junction of Burnt Canyon and the San Antone Creek then one convenient route to each of the optioned properties.

'5. Time of year may be used: No restriction.

'6. Amount of damages: Zero.'

The trial court thereupon entered a 'Judgment Upon Verdict and Permanent Injunction.' The judgment states that respondents 'are the owners of easements and rights of way over and across' appellants' land and that 'the nature and extent of such easements and rights of way are as follows, to wit:

'FIRST: The right of way for ingress and egress by all means of conveyance for the above-named plaintiffs, their families and non-paying guests for the purposes of recreation and hunting, over a strip of land of a width sufficient for the ordinary uses of free passage, alone the following route, to wit: [there follows a detailed description of the easement].

'SECOND: Together with a further easement of the same general nature over so much of the following route as lies within the lands of the defendants as described above, to wit: [there follows a description of an easement allowing respondents access to the government lands along the ridge top and to other LeDeit properties].

'THIRD: [The description of an easement furnishing access to government lands.]

'FOURTH: [The description of an easement furnishing access to a smaller segment of government lands.]'

The court issued a permanent injunction restraining appellants from interfering with respondents' use of the easements set forth above and ordered appellants to remove certain obstructions to such easements. We treat under separate headings infra each of the three basic points urged by appellants in their attack upon the judgment. We consider finally the propriety of the court's denial of appellants' motion to strike respondents' memorandum of costs and disbursements.

1. The trial court did not commit prejudicial error in instructing the jury that open, continuous, notorious and peaceable use for the prescriptive period gave rise to the presumption that the use was adverse to the owner.

We shall point out that the Supreme Court has indicated that the issue of whether or not open use of unenclosed land demonstrates use adverse to the owner should be treated as a question of fact rather than presumption. The trial court here, however, did give, and, upon request, reiterate, the following instruction: 'On a showing of an open, continuous, notorious and peaceable use for the prescriptive period a presumption arises that such use was under a claim of right adverse to the owner.' While the preferable procedure would have eliminated the instruction, cases subsequent to the Supreme Court's admonition have upheld the presumption in varying situations. We cannot, in the light of the record and the accompanying instructions, hold that the rendition of the instruction, even if error, worked prejudice.

The presumption has had a troubled history. As Justice Carter explained in O'Banion v. Borba (1948), 32 Cal.2d 145, 195 P.2d 10, some cases had held before that decision that 'the showing of an open, continuous, notorious and peaceable use for the prescriptive period' gave rise to a presumption that 'the use is under a claim of right adverse to the owner'; other cases had held that in the absence of 'specific direct evidence of an adverse claim of right' the opposite 'presumption of permissive use is indulged.' (p. 149, 195 P.2d p. 13.) To resolve this 'considerable confusion in the cases' (p. 148, 195 P.2d 10.) the court in O'Banion declared that the issue of adverseness should not be treated as one involving a presumption but as a question of fact.

The Supreme Court there stated: 'The preferable view is to treat the case the same as any other, that is, the issue is ordinarily one of fact, giving consideration to all the circumstances and the inferences that may be drawn therefrom. The use may be such that the trier of fact is justified in inferring an adverse claim and user and imputing constructive knowledge...