Orr v. Kirk

• Decision Date: 29 November 1950
• Citation: 224 P.2d 71,100 Cal.App.2d 678
• Court: California Court of Appeals Court of Appeals
• Parties: ORR v. KIRK et ux. Civ. 4156.

Page 71

224 P.2d 71

100 Cal.App.2d 678

ORR v. KIRK et ux.

Civ. 4156.

District Court of Appeal, Fourth District, California.

Nov. 29, 1950.

C. E. Crowley, Ontario, for appellant.

Robert G. Beloud, Ontario, for respondents.

GRIFFIN, Justice.

Action for declaratory relief and injunction. In 1919, plaintiff's predecessor in interest, Mr. Mann, owned and lived in a house located on a four-acre tract of land in Ontario. The title to the property, as a whole, passed from Mann to Mr. and Mrs. Gist in 1933, who sold the East half of their land to defendants' predecessors in interest and retained that property now owned by the plaintiff. At that time and prior thereto there was a 'U' shaped driveway commencing at 'A' Street and running northerly along the west side of plaintiff's house. It then led around to the rear of her house and returned thence southerly to 'A' Street, traversing over a portion of what is now defendants' driveway, located on their property.

There is no claim of reservation of easement over defendants' land in the deed severing the property. Plaintiff took title to the West one-half of the tract in April, 1937. At that time there was a garage situated about 250 feet north of the 'A' Street opening of defendants' driveway which encroached about 22 inches onto plaintiff's property. The East one-half was then owned by one Maud Logue. It was sold by her in 1940, to one Henier, who occupied it for about one year and then sold it to one Harrington, who occupied it until May 15, 1946, at which time defendants took title and moved onto it. During Harrington's occupancy the garage was removed. Defendants extended their driveway through to the north end of their tract to reach a trailer court they established there. A row of large trees were growing on each side of this particular driveway, and until the spring of 1948, the parties to this action apparently did not know the exact location of their common boundary line.

In addition to the use of the driveway located on plaintiff's own property, she and her predecessors, as a matter of convenience, also used the portion of the 'U' shaped driveway found to be located on defendants' property. After a survey, defendants, in March, 1948, erected a fence along the property line dividing plaintiff's and defendants' property, which line followed generally the westerly row of trees.

It is defendants' argument that the evidence shows that any use of the property owned by the defendants or their predecessors, by the plaintiff or her predecessors, after the severance of the parcels by the last common owners (the Gists) was with the permission of the respective owners and occupants of the defendants' parcel of land and was allowed as an act of neighborly accommodation, and that the only use that plaintiff made of defendants' property since the erection of the fence was by force. It is claimed by the defendants that plaintiff is not entitled to an easement over the defendants' land on the theory of (a) necessity; (b) prescription; or (c) implication.

Plaintiff argues that under the evidence and cases cited, a transfer of real property passes all easements attached thereto, and creates in favor of the transferor thereof an easement to use that property in the same manner and to the same extent as such property was obviously and permanently used at the time when the transfer was agreed upon or completed, and that an easement by implication arose under the law and the facts established, citing Cave v. Crafts, 53 Cal. 135, 139; Civ.Code, §§ 662 and 1084; 17 Am.Jur. 933, sec. 12; Fristoe v. Drapeau, Cal.App., 204 P.2d 336, hearing granted, see, 35 Cal.2d 5, 215 P.2d 729.

The elements necessary to create a 'quasi easement' or grant by implication, upon severance of unity of ownership in an estate, are: (1) a separation of title (which implies unity of ownership at some former time as the foundation of the right); (2) necessity that before separation takes place the use which gives rise to the easement shall be so long continued and obvious as to show it was meant to be permanent; and (3) the easement must be reasonably necessary to the beneficial enjoyment of the land granted. Fristoe v. Drapeau, supra. The law does not favor the implication of easements. Such implication can only be made in connection with a conveyance, and in view of the rule that a conveyance is to be construed against the grantor, the court will imply an easement in favor of the grantee more easily than it will imply an easement in favor of a grantor. Whether an easement arises by implication on a conveyance of real estate depends on the intent of the parties, which must clearly appear in order to sustain an easement by implication. In order to determine the intent, the court will take into consideration the circumstances attending the transaction, the particular situation of the parties, and the state of the thing granted. 28 C.J.S., Easements, § 30, p. 686. The purpose of the doctrine of implied easements is to give effect to the actual intent of the parties as shown by all the facts and circumstances. The effect of section 806 of the Civil Code is to establish intent as the criterion, and this is in accord with the rationale of the rules governing easements by implication. The extent of an easement created by implication is to be inferred from the circumstances which exist at the time of the conveyance and give rise to the implication. Among these circumstances is the use which is being made of the dominant tenement at that time. Fristoe v. Drapeau, supra. In that case, relied upon by plaintiff, the grantee, rather than the grantor was relying upon the implied easement and there was a factual finding of the trial court that all elements of such a grant of easement had been established. Here there is a factual finding against such a grant. To abide plaintiff's contention this court would be compelled to hold that notwithstanding such a finding, the facts show, as a matter of law, that plaintiff was entitled to such an easement.

Here, the court found as true that there exists a private driveway on the west side of the defendants' land varying in width from 13 to 20 feet, extending north from 'A' Street, which leads to a trailer park situated on the defendants' property; that a garage, for some years prior to its removal in 1945, formed the northern limit of the driveway on the defendants' property at a point approximately 250 feet north of 'A' Street; that while the garage was so situated there was a roadway entirely on the plaintiff's property extending 'north from such garage to a point 200 feet south of the northerly line' of plaintiff's land; that the Gists, owners of the property at the time the severance was effected, retained that portion of the property now owned by the plaintiff, and after the severance discontinued using the portion of the driveway located on the defendants' land. It then found as true that after the plaintiff and her husband acquired title to and took possession of the property now owned by plaintiff that she and her husband occasionally used that portion of the driveway on the defendants' property which had previously formed the easterly part of the 'U' shaped driveway above described, but found that their use of the driveway on the defendants' property was always with the consent and permission, as an act of neighborly kindness, of the owners and occupants of the land owned by the defendants until the month of March, 1948, when the defendants built a fence on their property about six inches east of the...