Hopper v. Barnes

Citations

• 113 Cal. 636
• 45 P. 874
• 1896 Cal. LEXIS 835

Syllabus

<p>Private Right of Way—Easement in Gross—Presumption—Appurtenance to Land—Construction of Grant.—Though an easement, like a right of way, may be created by a grant in gross attached to the person of the grantee, this is never presumed when it can be fairly construed to be appurtenant to the adjoining land of the grantee; and when the grant of a right of way is expressed as being to the heirs and assigns of the grantee, without qualification, and the circumstances under which the grant is made, and the acts of the parties under and in relation thereto, are consistent with the construction of the grant as being an appurtenance to the land of the grantee, it will be so construed.</p> <p>Id.—Injunction Suit — Misjoinder, of Plaintiffs — Conveyance to Daughter for Support of Her Children—Bare Possibility of Reverter—Finding against Evidence—Correction on Appeal__ In an action to enjoin an obstruction of a private right of way, the original grantee who has conveyed the land to which the way is appurtenant, to his daughter in trust for her children, with a bare possibility of reverter to himself upon the death of all of them, is not a proper party coplaintiff with them; but when the grant does not appear upon the face of the complaint, it is not demurrable for misjoinder of parties, and the objection of misjoinder is waived by failure to present it in the answer; yet a finding that all of the plaintiffs, without naming them, are owners of the right of way, and entitled to maintain the action, not being justified by the evidence as to him, will be corrected on appeal by ordering the court below to strike his name from the complaint, there being no damages found or awarded, and no new trial necessary.</p>