Blum v. Weston

Citations

• 102 Cal. 362
• 36 P. 778
• 1894 Cal. LEXIS 651

Syllabus

<p>Way of Necessity—Tenancy in Common—Allotment in Partition— Effect of Decree.—Where land allotted by order of the court in a proceeding for partition is so situated that one of the parties would be entitled to.a way of necessity, if an allotment were made by deed from all the other tenants in common, the effect of the allotment by order of the court is to create the way of necessity.</p> <p>Id.—Express Reservation of Way Unnecessary—Operation of Law.— It is unnecessary that there should be a reservation in terms of a way of necessity, which would confer no further right than would be conferred by operation of law without those words.</p> <p>Id.—Easement—Transfer of Parcel—Way as Appurtenance.—The easement of a way of necessity, resulting by operation of law from the fact that a parcel of land is cut off from the county road by other subdivisions of the original tract, attaches to that parcel as an appurtenance, aud passes with each successive transfer of title, whether such transfer is by deed or by sale under execution.</p> <p>Id.—Extinguishment of Way—Special Agreement—Presumption. — A way of necessity cannot be extinguished so long as the necessity exists, and must be presumed to continue, unless some fact found by the court shows that the right no longer exists; and a finding that a road was used across plaintiff’s land by special agreement, without stating what the agreement was, is not inconsistent with the continuance of the way of necessity.</p> <p>Id.—Cessation of Necessity.—The necessity ceases when another way has been acquired, or when, by the acquisition of other lands, the owner can reach the public road without traversing the land of others.</p> <p>Id.—Right of Condemnation.—The fact that a way might be acquired by Condemnation under the statute does not effect the right to a way of necessity.</p> <p>Id.—Designation of Way—Right of Owners of Dominant Estate.— It is immaterial whether the owners of the land over which the way of necessity exists have