Roth v. Cottrell

• Decision Date: 08 August 1952
• Citation: 112 Cal.App.2d 621,246 P.2d 958
• Court: California Court of Appeals Court of Appeals
• Parties: ROTH et ux. v. COTTRELL et al. Civ. 8141.

Page 958

246 P.2d 958

112 Cal.App.2d 621

ROTH et ux. v. COTTRELL et al.

Civ. 8141.

District Court of Appeal, Third District, California.

Aug. 8, 1952.

Collis P. Mahan, Fortuna, for appellant.

Huber & Goodwin, and Michael McHugh, of Eureka, for respondent.

VAN DYKE, Justice.

Plaintiffs appeal from a judgment entered after demurrers had been sustained to their fourth amended complaint. Apparently convinced that a cause of action had been stated and that the special demurrers interposed were not well taken, their counsel, during the argument when the demurrers were heard, suggested to the trial court that if the demurrers were sustained again no leave to amend further should be granted. This suggestion was followed.

The complaint alleges that at all times material to the action appellants were the owners, and in possession, of certain described real property; that appurtenant to this real property was a right of way for road purposes; that this easement was over lands owned by respondents Cottrell who, along with the other defendants-respondents, used the roadway for logging purposes for a period of about one year before July 1, 1947. It was not alleged that this use was in and of itself any violation of appellants' easement rights except as it resulted in interference with the use by appellants of their right of way. The complaint further sets out that this use of the right of way by respondents ceased on July 1, 1947; that during the year respondents had altered the road along the right of way by constructing a dirt and gravel fill over a creek; that they maintained the fill in passable condition until June 1, 1947; that during that month the respondents so carelessly and negligently operated their trucks and logging equipment over the fill that it became soft, full of deep ruts and impassable for appellants' use; that as a consequence thereof appellants had been deprived of ingress to and egress from their real property to which the alleged easement was appurtenant, to their damage from loss of use of their real property, which use was alleged to have been of the reasonable value of $1,200 per year.

Respondents argue that appellants' allegations that the easement they claimed was appurtenant to their land was a conclusion and so to be ignored in testing the sufficiency of the complaint to state a cause of action. In this the respondents are in error, for allegations that a plaintiff 'is the owner of a described right of way or other easement over defendant's land, and that such easement is appurtenant to plaintiff's land' should be regarded as a sufficient statement of the ultimate facts to be established. Corea v. Higuera, 153 Cal. 451, 455, 95 P. 882, 17 L.R.A.,N.S., 1018. Next, it is argued that there are no allegations that there are no other means of ingress to or egress from appellants' real property. But appellants are not relying upon wrongful exclusion from a way of necessity, but upon obstruction, and hindrance in the use, of an easement which gives access to their property. They alleged that this obstruction prevented their use of their real property, an allegation of fact which, if proved, would support a claim of damages. Hence an allegation that there were no other means of ingress or egress was not necessary.

It is next argued that the complaint contains no allegations that the appellants had any right to drive cars or trucks upon the described right of way. No such allegations were necessary. It was sufficiently alleged that the easement was a right of way for use by automobile and truck and that the wrong complained of was the rendering of the way impassable. It is equally immaterial that there are no allegations as to the precise use which plaintiffs made of their real property for those are probative matters and go only to the extent and measure of damages. There are other assignments of insufficiency, uncertainty and ambiguity in the demurrers not especially stressed in the briefs, all of which we have examined, and all of which we hold constituted no ground of objection to the pleading.

So far as the form and substance of the complaint, therefore, be concerned, we hold that although it is inartificial and is far from a model pleading, nevertheless it is sufficient to fulfill the function of a complaint, which is to present and define the issues, to form the foundation of, and to limit, the proof to be submitted; and to advise the court and the adverse party as to what is relied on as a cause of action. 71 C.J.S., Pleading, § 1, pp. 17-18.

Respondents further demurred upon the ground that the action was 'barred by the provisions of the Statute of Limitations of the State of California.' This, on demurrer, was a sufficient...