Toenniges v. Griffeth

• Decision Date: 20 April 1959
• Citation: 169 Cal.App.2d 717,338 P.2d 230
• Court: California Court of Appeals Court of Appeals
• Parties: Paul S. TOENNIGES and Ruth A. Toenniges, Husband and Wife, Plaintiffs and Respondents, v. Forrest GRIFFITH and Mrs. Forrest Griffith, Husband and Wife; Crawford Bryant and Mrs. Crawford Bryant, Husband and Wife, et al., Defendants, Forrest Griffeth and Eva E. Griffeth, Appellants. Civ. 23396.

Page 230

338 P.2d 230

169 Cal.App.2d 717

Paul S. TOENNIGES and Ruth A. Toenniges, Husband and Wife, Plaintiffs and Respondents, v. Forrest GRIFFITH and Mrs. Forrest Griffith, Husband and Wife; Crawford Bryant and Mrs. Crawford Bryant, Husband and Wife, et al., Defendants, Forrest Griffeth and Eva E. Griffeth, Appellants.

Civ. 23396.

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

April 20, 1959.

Rehearing Denied May 18, 1959.

See 338 P.2d 914.

Hearing Denied June 18, 1959.

Henry C. Rohr, Los Angeles, for appellants.

Paul Major, Van Nuys, for respondents.

FOURT, Justice.

This is an appeal from a judgment and from an order denying defendants' motion for a new trial, in which judgment defendants Forrest Griffeth and Eva E. Griffeth were ordered to remove one of the masonry pilasters and a section of the chain fence which was built upon and obstructs a portion of a certain non-exclusive easement for road purposes; and in which said defendants, and each of them, were perpetually restrained and enjoined from obstructing, closing, or interfering with the use by plaintiffs of said non-exclusive easement by the maintenance thereon of any gate, pilaster or fence.

The plaintiffs brought an action for an injunction and damages for an interference with an easement and way of necessity. The complaint set forth, in effect, that the plaintiffs were, and had been since January 29, 1948, the owners and occupants of certain described real property, and of 'an easement for road purposes, to be used in common with others over that certain strip of land 20 feet wide in' a certain tract, and then particularly described the property to be so used as an easement. It was alleged that the plaintiffs and their predecessors in interest have been and are the owners of the easement so described, and that the defendants Griffeths own and occupy the real property adjacent to the plaintiffs' property and easement, and that the defendants Griffeths acquired their title and interest from a co-defendant (Bryant), who formerly owned all of the property affected by the action. Also, it was alleged that the persons from whom the plaintiffs purchased their property had purchased the same from the co-defendant Bryant, who had sold the defendants Griffeths their property. Further, that in the summer of 1953, the defendants Griffeths erected an iron gate, supported at each end by stone and masonry construction, which gate is now locked and no one excepting the Griffeths have the key thereto. It is set forth also that such gate was wrongfully constructed by the defendants Griffeths on fourteen feet of the easement belonging to the plaintiffs, and that it was erected without the permission or consent of the plaintiffs, and at the time it was erected the plaintiffs had no knowledge that their easement was being encroached upon; that the defendants Griffeths also erected a chain fence on part of the easement. After the gate and fence were erected the plaintiffs caused a survey to be made and then discovered that the gate and a part of the chain fence were on their easement and property. Thereafter the plaintiffs served upon the defendants Griffeths a notice that the gate and fence encroached upon their property and requested a removal of the same. Further, that the plaintiffs are now forced to use a lower road to reach their property, and that such lower road in part belongs to an abutting owner who has notified the plaintiffs to cease and desist going over their property by reason of the hazardous condition of such lower road. The plaintiffs also alleged that they had suffered damages because of such interference and requested an order requiring the defendants to remove the gate and the portion of the fence erected by the defendants Griffeths on plaintiffs' land and easement; that each defendant be restrained and enjoined from obstructing, closing or interfering with the use of plaintiffs' easement and way of necessity, and for costs.

The defendants Griffeths answered the complaint, in effect, denying that the plaintiffs were the owners of the property described in the complaint as belonging to them; denied that the plaintiffs had purchased their property as they had so alleged, and denied the construction or erection of the gate and fence as alleged in the plaintiffs' complaint, and further denied that the construction was without the knowledge of plaintiffs; and denied the service of any notice that the gate and fence encroached upon the plaintiffs' property; and denied that plaintiffs were forced to use a lower road to reach their property; and further denied that the plaintiffs had suffered any damages. In the answer as originally filed, three affirmative defenses were set forth, the first stating that the allegations of the complaint did not state facts sufficient to constitute a cause of action against the Griffeths; the second setting forth in effect that two of the co-defendants (Bryants) had formerly owned all of the property in question, and that such former owners caused the property to be subdivided by metes and bounds, and created a road easement to be used in common with other owners over a strip of land twenty feet wide; that the easement has been in continuous use for road purposes for the common benefit of all adjoining owners, and that no property owner has the right of ownership to the exclusion of other property owners. The third affirmative defense is to the effect that the Griffeths bought their property from the co-defendants Bryants, heretofore mentioned, and that when they bought it there was in actual existence a roadway for the adjoining property; that the said roadway was in the same location then and now, and that by reason of the use during such time, all of the adjoining property owners have the common right of use by the deeds and the prescriptive rights accruing in favor of the property owners and the defendants Griffeths.

A trial was started and at substantially the conclusion thereof the defendants Griffeths were given ten days within which to amend their affirmative answer to conform to proof. Within the time prescribed the answering defendants filed a 'Supplemental Answer' wherein they repleaded all of their original answer, and in addition thereto pleaded a first and second affirmative defense. The first affirmative defense in the supplement set forth that an easement was created by deed in the first instance; that a roadway was bulldozed following the recorded easement by approximation to the survey stakes and to the natural topography of the land; that the bulldozed roadway did not coincide exactly with the confines of the recorded easement, and that a portion of the recorded easement has not been used by the original grantor nor any successor in interest. Further, that the bulldozed roadway was intended to be the permanent location of the roadway, regardless of the location of the recorded easement; that in addition to the nonuser of a part of the recorded easement, it was the intention of the plaintiffs' predecessors to abandon such portion thereof which was not used. Further, that the defendants placed the gate and fence on the abandoned portion of the recorded easement, and did so with the knowledge and permission of...