Cave v. Crafts

Citations

• 53 Cal. 135
• 1878 Cal. LEXIS 96

Syllabus

<p>Plea of Former Judgment.—A party, in order to avail liimself of a former judgment as a defense to a new action, must plead the former judg- - ment.</p> <p>Adverse Use must be Peaceable.—An adverse use must he open and as of right, and also peaceable; for if there is any act done by the other owners that operates as an interruption, however slight, it prevents the acquisition of the right by such use.</p> <p>Water Rights Confirmed by Congress.—The Act of Congress of July 26th, 1866, “ granting the right of way to ditch and canal owners over the public lands,” conferred rights to waters appropriated for agricultural purposes, and operates to confirm such rights, initiated and maintained prior to the passage of the Act.</p> <p>Grant of Basements.—When the owner of lands divides his property into two parts, granting away one of them, he is taken by implication to include in his grant all such easements in the remaining part as are necessary for the reasonable enjoyment of the part which he grants, in the form which it assumes at the time he transfers it. The purchaser is entitled to the benefit of the easement without any express grant or reservation.</p> <p>General Rule of Grant.—The general rule of law is that when a party grants a thing, he by implication grants whatever is incident to it and necessary to its beneficial enjoyment.</p> <p>Definition of Easement.—An easement to real estate granted is a privilege off and beyond the local boundaries of the lands or tenement conveyed. Trespass to an Easement.—The averment of an easement will support an action for trespass. »</p> <p>Practice on Appeal.—Where a case has been tried upon the assumption that all the material allegations of the complaint were denied by the answer, the parties cannot question the sufficiency of a denial upon appeal.</p>