Amador ledger., 1904-01-15
DECISION OF THE COURT.
David Mattley vs. Geo. L. Thomas-A de-
cision of much interest to property
holders.

of action to quiet plaintiffs title to an ease.
ment or right of way over the lands of defend.
ant which plaintin claims to have acquired title
to by prescription and to enioin defendant from
interfering with plaintiffs use and endowment
thereof; aud the second cause of action to
have the said road declared to be public high
way, and remove certain distractions therefrom
consisting of fences placed across the same bv
defendant and interfering with the use thereof
by the general public and particularly by the
plaintin
Defendant contends that plaintiff cannot
maintain his second cause of action because he
mas falled TO show any special damage to him
self, and that his injury is different in kind from
the public generally. And further that this
second count of the complaint does not state
| facts Sulnclent to constitute a cause of action
| Defendant did not demur either generally or
| specially to this court of the complaint ms
amended, but answered, and went to trial SO
the pleadings must be taken as sufficient But
| the view take makes this immaterial for am
satisfied from the evidence that the road i'm
controversy is not and never was public high
way, but was only used with the exception of
the two witnesses, G. M. Meek aud Jas r
Meek, who occasionally travelled over il when
hunting, by people going to and from the lands
ranch
The view renders it unnecessary for me to re.
fer to the elaborate briefs filed by counsel upon
this point, although have carefully read them
rms brings me to consideration of plaintiffs
title by prescription.
Sec 1907 of our civil code defines title bv pre.
DeriO6
prescribed by the code of civil procedure as
sufficient to bar an action for the recovery of
the property, confers title thereto denomi-
against all, :"
Continuous, uninterrupted and exclusive use
OF private way over the land of another for
hVe years, under claim of right and with the
knowledge and acquiescense of the owner is
SUFFICIENT to create right of way by prescrip-
t1on over such land Kripp VS. Curtis n Cal 62
Ihomas VS. England, II Cal 456; Humphreys VS.
nj
13l Cal 205.
Continuous, uninterrupted user for five wears
unexplained, will be presumed to be under a
claim of right. Krlpp VS. Curtis, II Cal 66;
montgomery VS. Lock- ~ Cal 76; Franz VS. Men
donca 131 Cal 205.
In defining prescriptive right our supreme
court In krpp VS. Curtis at page 66 uses the fol
lowing language: "a prescription supposes a
grant before the time of legal memory 1t is
founded on the immemorial use of the way by
the claimant ana his ancestors or grantors.
lmmemorlal use at common law was time out
OF mind; This out OF mind in contemplation of
law in this state is five years.
An uninterrupted use of d right of private wav
over the land of another in this state for five
years becomes an adverse enjoyment sufficient
70 raise the presumption of grant. To have
that effect, however the user must have been
under claim of right, must have been con.
tInuous, uninterrupted, and exclusive, and with
the knowledge of acquiesence of the owner
CThompson VS. Highways. 1881
The time of enjoyment is deemed to be unin-
terrupted when it continues from ancestor to
heir from seller to buyer. I'D. 3 Kent's Com
442, Corning VS. Gould, Is Wend 534)
The use OF the easement for five years un-
explained will be presumed to be under claim
or assertion of right, and adverse, and not by
leave of or favor of the owner H,ansin1 vS
Wiswell Denio 313)
Wherever there is question as to the user
Tor SUFFICIENT length of time, and whether the
circumstances are of such character as to con-
Stltute right of prescription the facts are to
be determined by a jury or by the court sitting
as such See also Franz VS. Mendonca, 13l Cal
S15; 2M II Thomas vs. England n Cal 45s; Anaheim
w: Co. VS. Semi Tropic w. Co i, 81 Cal 1885,
II the user must be adverse, then it must be
accompanied by the elements required to make
out an adverse possession Anaheim w. Co. VS.
Seml-Troplc w Co. Supra.
The leading case on what constitutes these
elements is Unger VS. Mooney, SO Cal sos.
They are stated as follows:
l. The possession must be by actual occupa-
t1on, open and notorious. not clandestine
=. 1t must be hostile to the plaintiffs title.
3. 1t must be held under claim of title, ex-
elusive OF any other right as ones own.
A. 1t must be continuous and uninterrupted
ment of the action
5. Since the passage of the provso to section
80 OF the code OF civil procedure in 1878, pay
ment of taxes.
These decisions seem to state fully all the
rules of law necessary in the application of the
evidence to the case at bar.
The evidence shows that there has never been
an assessment of this easement, and in conse-
quence the requirement of the payment of taxes
10 constitute adverse possession does not ap-
ply to this case.
The requirement of payment of taxes as an
element OF adverse possession does not apply
where no taxes have been assessed. And the
burden of showing that taxes have been assess
ed Is upon the party combating the claim of
possession. Oneto VS. Restano, rs Cal 374;
He1lbron VS. Last Chance w. d. Co., IS Cal 1I7
The evidence shows that plaintifT first knew
the lands over which the road described in the
complaint lies as early as 1857, and that the
road was then in use by the settlers upon the
lands now owned by plaintiff, and called the
sheep Ranch. That plaintiff purchased the
rights OF these settlers in 1859, and commenced
TO fence and otherwise improve the land and
used the road in controversy in going to and
from this land, and had no other roadway.
That he conducted a dairying business and
made two trips each day to jackson, delivering
milk with his milk wagon, passing over this
roadway in going and coming four times day.
When Thos, S. Clark. defendants grantor,
moved upon the land plaintiff and all persons
having business at the Sheep ranch travelled
this same road. ThoS. s. Clark commenced 10
fence this land in 1850, and asked plantif If he
mad any objections, and he told him no. provid-
ing ne LETT him good gates, and Clark there
upon erected three gates, one where the road
connects with the French Bar road one near
MS house, and one at the line fence dividing his
lands and those of plaintftf, and the gates were
always maintained after that, and plaintiff and
all others going to and from the Sheen ranch
used the road. Plaintiff and his sons hauled
wood and hay over the road; the hay balers
hauled their presses and outfit over it. No OBJ
lection was made by Clark to such eXcept that
soon after he moved there he objected to plain
tlH taxing cut OIL to avoid some soft ground
and told him he had one road and to keen IT,
and once in 1861 Clark put log across the road
at the gate where it enters the French Bar road.
Mattley Threw 1t out when going to jackson
with his milk wagon, and upon his return drove
to Clark house and requested to know Why he
had placed the log across the road. Clark
answered ne thought plaintiff had no business
| to go there Plaintiff then said he would 20 to
| the supervisors and have public road opened.
ana then Clark would have to put lane fence
nT1nn do h
conversation about it, when plaintiff told Clark
the supervisors had sent three men out to put
the road into public road. Clark then ans
wered. Don't cut me in two; 1 recognize the
road is yours" 1t is true as counsel for de
fendant contend, that on preliminary hearing
| upon a motion to show cause why an Injunction
should not issue pendente lite plaintiff in re-
lating this same conversation testified that
Clark said when told the supervisors would
make road through his land, LET US have no
trouble; you can go on the road,r instead of
using the words, II recognize your right" But
| after searching and exhaustive cross-exami-
| nation the witness insisted upon this version
OF the conversation. And later in 1882 in con-
versation with David Mattley jr at the cut off.
when Mattley asked Clark why he put the brush
there, Clark told him ito make you fellows go
on the same track" and further remarked that
ne would stop them from going there too if he
could. This is strong corroboration of the
testimony given by plaintiff on this subject he.
fore the court at the trial. And while as sug-
geSted by counsel for defendant the testimony
by plalnt1n OF conversation with Clark (Who
| has been dead 20 years. is dangerous testimony
and should be closely scanned by the court
with the corroboration above and the surround
ing circums tances, it carries conviction of Its
| truth with the court.
Applying the rule laid down in Unger VS.
Mooney to the evidence, we find that those hav-
| ing business with him at the Sheep ranch using
| this same road at the time Clark moved upoD
| the premises over which the road ran and nee
essarlly having knowledge of plaintiffs use OF
it,. We find Clark acquiesing in such use, and
acknowledging his right to such use. We find
| this use by plaintif to be open and notorious
and not clandestine. 1t was certainly hostile
| to defendant, because p1aintin maintained il
| in spite of ClarkS attempts to shut him out,
which Clark stated he would do if he could 1t