Carey v. Rae

Citations

• 58 Cal. 159

Syllabus

<p>Bight of Way—Judgment in Pabtition.—M. and B. with others, were tenants in common of a ranch, and in an action of partition, a tract of land, designated as “ Survey No. 55,” was allotted to the former, and “Survey No. 62” to the latter. This action was brought by M. to establish a right of way over B.’s land—the former claiming that he had no other avenue of transit from his land to the county road, and that he was entitled to a way of necessity. It appeared, however, that by the judgment another road was established from M.’s laud to the county road, passing along the front of B.’s land, but this road was rendered impassable by a ditch and slough at a point opposite B.’s land, which would require an expenditure of about one thousand dollars to fill it up: Held: The plaintiff was not entitled to a right of way.</p> <p>Id.—A right of way does not originate in mere convenience. It must spring from an express grant, or from an implied reservation, or from a user for a length of time sufficient to create a prescription or a bar under the Statute of Limitations—either of which is presumptive evidence of a grant.</p> <p>Id.—Impassibility of Highway—Publiq. Easement.—The impassibility of the road gives to the plaintiff no right to an easement. It may confer a personal temporary right which he has in common with the traveling public to pass over the land of another where an established road is impassable; but that is not a right which is incident or appurtenant to his estate.</p> <p>Id.-—Roads—Judgment in Partition.—If the plaintiff ever had a right of way it ceased to exist when he acquired by the judgment in partition a new way. The judgment, by which this way was established for the benefit of the owners of the ranch, is binding and conclusive on all parties to it, and their legal representatives and all persons claiming from them, and is not the subject of collateral impeachment.</p>