Serrano v. Grissom

• Decision Date: 20 February 1963
• Citation: 213 Cal.App.2d 300,28 Cal.Rptr. 579
• Parties: Florencia SERRANO and Anita Serrano, Plaintiffs and Appellants, v. C. V. GRISSOM, also known as Carl V. Grissom, and Ollie R. Grissom, et al., Defendants and Respondents. Civ. 164.
• Court: California Court of Appeals Court of Appeals

Page 579

28 Cal.Rptr. 579

213 Cal.App.2d 300

Florencia SERRANO and Anita Serrano, Plaintiffs and Appellants, v. C. V. GRISSOM, also known as Carl V. Grissom, and Ollie R. Grissom, et al., Defendants and Respondents.

Civ. 164.

District Court of Appeal, Fifth District, California.

Feb. 20, 1963.

Rehearing Denied March 21, 1963.

Hearing Denied April 17, 1963.

C. Ray Robinson and John E. Whiting, Merced, for appellants.

Preston, Braucht & George and Howard C. George, Merced, for respondents.

STONE, Justice.

Appellants filed this quiet title action for the purpose of preventing respondents' use of a roadway. Respondents cross-complained, alleging a right of way by prescription, and prevailed in the trial court.

Appellants are husband and wife, as are respondents. For convenience the parties will hereinafter be referred to in the singular.

Appellant and respondent own adjoining parcels of farm land with a common line forming appellant's south boundary and respondent's north boundary. Before either party owned his respective parcel, a rough roadway consisting of wheel tracks ran across the southeast corner of appellant's land, then southerly along the boundary between the two parcels, to a county road at the west boundary. The purpose of the roadway was to provide access from Poole Road on the east side of appellant's property, to a county road on the west side.

When appellant purchased his property the southern portion was 'wild land,' that is, unleveled and uncultivated. Travelers wishing to get from Poole Road on the east to the county road on the west did not bother to follow the east and south boundary lines, but simply cut across the uncultivated land, leaving a triangle of untilled, unleveled land in the southeast corner below the roadway.

Reliable evidence reflects that respondent and others used the roadway prior to 1955, the year when respondent purchased his property. For that matter, there is evidence that appellant, too, used the roadway before purchasing his property in 1953. During December 1955 appellant leveled the southern portion of his property, and in doing so obliterated the angling roadway across the corner. He had a surveyor lay out a new roadway parallel to the east and south boundaries and some 350 feet southeast of the original location, making allowance for a small creek meandering through the corner of the property. This new road was graded, and later surfaced. No objection to the relocation and improvement was made by respondent.

Respondent had a pumping plant located on his property, near the common boundary of the two parcels and about equidistant from the east and west boundaries. The roadway along the common boundary swerved slightly to respondent's pump and then back to the property line. During 1955 respondent suggested grading and graveling the roadway from a point opposite his pump west to the west boundary of appellant's property. Appellant was agreeable, and it was further agreed that the roadway should be straightened out to run along the property line, to eliminate the slight curve to respondent' pump. The cost of these improvements was shared equally by appellant and respondent.

The court found that respondent had established a right by prescription to use the entire roadway.

Appellant attacks the judgment on two grounds: First, that respondent's use of the roadway was permissive; second, that the changed location of the roadway terminated any prescriptive rights respondent had acquired prior to relocation. As we have noted, one segment of the road, that from the pump west, was realigned and improved by mutual agreement of the parties. The other segment leading from the pump east and around the southeast corner of appellant's property, was realigned and improved by appellant, acting unilaterally. We shall therefore consider appellant's contentions on appeal separately as to each segment of the roadway.

Taking up, first, the roadway from respondent's pump west to the boundary of appellant's property, respondent's use of that portion as early as 1953 is unquestioned. Furthermore, the use was open, notorious and continuous, so that the five-year period necessary to establish a prescriptive right to use the roadway (Civ.Code § 1007; Code Civ.Proc. § 318) would appear to have run by the time the complaint was filed on March 18, 1960. Appellant contends, however, that respondent's use became permissive in December of 1955 when appellant and respondent straightened, graded and leveled the road from the pump west.

The record does not disclose that respondent ever asked permission to use the roadway from the west boundary to his pump. Nor can it be inferred from the conversation had between the parties relative to the road that respondent sought permission or that appellant gave permission for its use. In suggesting improvements to the roadway and asking appellant to pay half the cost thereof, respondent was asserting a right.

Appellant stresses respondent's payment of one-half the cost of the improvements as evidence of permissive use. Standing alone, improving or paying for the improvement of a right of way is insufficient to prove a permissive use. Certainly it will not serve to set aside the trial court's finding of adverse use. An argument similar to that made by appellant was reviewed in O'Banion v. Borba, 32 Cal.2d 145, 195 P.2d 10. In commenting upon payment of the cost of improving an easement during the prescriptive period the Supreme Court said, at pages 151-152, 195 P.2d at page 14 of O'Banion:

'On the claim that the use of the easements was permissive, defendants refer to conversations with plaintiff O'Banion when the defendants erected the fences in 1945 to the effect that he went to defendants to see if the roads could be opened, and discussed the payment of $85 to defendants to obtain an opening, and to alleged admissions by plaintiff O'Banion in his deposition to the effect that he obtained the permission of Miller and Lux, defendants' predecessors, to use the easements.

'Nothing more than a conflict in the evidence is involved. As to both instances to which reference has been made it must be remembered that there is testimony that no permission for the user was sought of anyone at any time. The user was open, notorious and adverse.'

Thus, whether use of an easement has been adverse and under claim of right or has been permissive and with the owner's consent, is a question of fact which is resolved by a reviewing court in the same manner and in accordance with the same principles that govern the determination of issues of fact in any other civil case. It was held in Van...