Cheney v. O'Brien

Citations

• 69 Cal. 199
• 10 P. 479
• 1886 Cal. LEXIS 653

Syllabus

<p>Right of Way — Prescription — Occasional Divergence. •—The acquisition of a right of way by prescription is not affected by the fact that occasionally, when the ground was soft, the adverse users turned out of the way at a certain point, and made several distinct tracks there.</p> <p>Id. — Way of Necessity— Terminus of Way may be a By-road. — A right of way of necessity may be acquired over the land of another, although the road to which the way leads is not a county road, but a mere by-road open to the public.</p> <p>Id.—Obstruction of Way—Action to Abate—Dedication of Public Highway—Evidence. —In an action to abate an obstruction to a right of way of necessity, the plaintiff is not required to show that the road to which the way leads had ever been formally laid out or dedicated so as to make it a public highway.</p> <p>Id.—Title to Intervening Land—Panol Evidence ok—The plaintiff in such an action, for the purpose of showing the necessity of the right of way, may prove by parol that the land lying between their land and the county road belongs to a third person.</p> <p>Pleading — Amendment — Discretion. — An application to amend a pleading is addressed to the sound discretion of the court, and unless it clearly appears that the rights of the adverse party have been prejudiced by the amendment, he will not be heard to complain of it.</p>