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District Court of Appeal, Fourth District, California.

Theresa M. DOLSKE, Plaintiff, Cross-Defendant and Appellant, v. Mary E. GORMLEY, Defendant, Cross-Complainant and Respondent.*

Civ. 6672.

Decided: April 25, 1962

Fred H. Almy and J. H. Petry, San Bernardino, for appellant. Swing & Swing, San Bernardino, for respondent.

Plaintiff, cross-defendant and appellant, Mrs. Dolske (hereinafter referred to as plaintiff), brought this action for injunction and damages on account of alleged interference with an easement. Mrs. Gormley, the defendant, cross-complainant and respondent (hereinafter referred to as defendant), cross-complained, seeking damages and an injunction to terminate an alleged encroachment of a building and improvements owned by plaintiff.

The parties own adjoining lots in the 500 block of Victoria Avenue is San Bernardino. Plaintiff bought her property in 1949 and defendant bought hers in 1951. Plaintiff's lot is 25 feet wide and 128 feet deep and has a dwelling on it which she rents to others. Plaintiff also has an easement of record 10 feet wide along the common boundary line between her lot and defendant's property. The court found that the easement was for use as a driveway. It appears that there is a garage on plaintiff's property behind the house. The doors of the garage face the back of the house. The space between the two buildings is approximately 40 feet wide. The court also found that portions of two gas meters, together with connecting pipelines, porch pillars, and the overhanging eaves, all of which are attached to plaintiff's house, extend onto defendant's property to some extent. About May 1, 1959, defendant constructed a chain link fence along the common boundary of the two lots and this fence is about four or four and one-half feet high and is two or three inches from the dwelling house on plaintiff's lot and about 18 inches from the side of the garage located in the rear of plaintiff's lot. There is a gap about 40 feet wide in this fence between the rear of plaintiff's house and the front of her garage.

By its findings and judgment, the court decreed that plaintiff should remove from defendant's property the two gas meters, the connecting pipelines, the portion of the porch which extends over the boundary line as eatablished by a survey in 1959, and the portion of the eaves which extends over the boundary line, and that plaintiff be restrained from constructing, erecting or maintaining any structure on defendant's property or using the same for any purpose whatsoever except for egress and ingress for vehicular travel. It was stipulated that the easement mentioned arose out of a grant and not by right of user.

The principal question involved in this action is whether the fence erected by defendant along the common boundary line unreasonably interfered with the exercise of the privilege or use given the dominent tenement authorized by the easement, and whether certain physical objects, other than the fence, which were in existence upon the driveway strip at the commencement of this action, constituted an unauthorized encroachment, as found by the court, and whether the court properly exercised its discretion in enjoining such encroachments. The complaint is that the present location of the fence would preclude plaintiff from painting the side of the house, from performing other repairs to it, and from maintaining the encroachments that were already constructed. This claim is made upon the theory that the written easement not only provides for its use as a driveway, but also ‘TOGETHER WITH the tenements, hereditaments and appurtenances whatsoever belonging or in anywise appertaining thereto,’ and since the judgment is, in effect, a mandatory injunction, it should not be granted where the encroachment causes little or no damage. (Citing Pomin v. Superior Court, 44 Cal.App.2d 206, 112 P.2d 17; Nebel v. Guyer, 99 Cal.App.2d 30, 33, 221 P.2d 337.)

It is defendant's contention that the easement is limited to the language contained in the deed creating it in determining its use, and that under this construction the use is limited to a driveway. Citing Civil Code, section 806, and City of Pasadena v. California-Michigan etc. Co., 17 Cal.2d 576, 110 P.2d 983, 133 A.L.R. 1186, where it is held that where an easement is founded on a grant, only those interests expressed in the grant and those necessarily incident thereto pass from the owner of the fee. It cannot be fairly said, as a matter of law, that those claimed encroachments on defendant's property were necessarily incident to the right to use the easement for a driveway.

The question is whether the added phrase in the deed granting the easement granted to plaintiff these additional rights claimed by her, or the right to have the existing conditions established at that time, to continue as a permanent right and without the construction of the fence by defendant.

‘Tenement,’ in its original legal sense, signifies a thing of a permanent nature which may be holden and includes every species of realty, both corporeal and incorporeal. (86 C.J.S. Tenement, p. 596.) A thing is ‘appurtenant’ to something else only when it stands in relation of an incident to a principal and is necessarily connected with the use and enjoyment of the latter. (Catterall v. Pulis, 137 Okl. 86, 278 P. 292, 294; Black's Law Dictionary (4th Ed.) p. 133.)

A ‘hereditament’ includes whatever may be inherited, including an easement which is inheritable. (Nellis v. Munson, 108 N.Y. 453, 15 N.E. 739, 740.) The primary and general acceptation of the meaning of the word ‘driveway’ is:

‘a path leading from a garage or house to the street, used especially by automobiles. * * * (Webster's New World Dictionary p. 444 [1959].)

See also 13 Words and Phrases, Driveway, page 404; Picerne v. Botvin, 76 R.I. 422, 71 A.2d 773, 777.

Because the law is jealous of the claim of an easement and the extent of the rights claimed under the instrument granting it, every incident of ownership not inconsistent with the easement and the enjoyment of it is reserved to the grantor. (Dierssen v. McCormack, 28 Cal.App.2d 164, 82 P.2d 212.) The owner of a servient tenement has the right to construct and erect a fence along the common boundary line as long as the fence does not unreasonably interfere with the right of the owner of the easement to use as a driveway the portion of the servient tenement set aside for such purpose. (28 C.J.S. Easements § 98, p. 780; Brearton v. Fina, 3 Misc.2d 1, 155 N.Y.S.2d 399; Baird v. Knutzen, 49 Wash.2d 308, 301 P.2d 375; 17 Cal.Jur.2d sec. 26, p. 130.) Any obstruction to a private easement which overburdens the servient tenement may be enjoined without proof of damage. (Keeler v. Haky, 160 Cal.App.2d 471, 479, 325 P.2d 648; Danielson v. Sykes, 157 Cal. 686, 109 P. 87, 28 L.R.A., N.A., 1024; Bartholomew v. Staheli, 86 Cal.App.2d 844, 195 P.2d 824.)

As to plaintiff's property, it is improved with a dwelling house on the front part of the lot and a garage on the rear and is rented to tenants. The driveway strip is unnecessary to provide ingress between the street and the front of plaintiff's lot. There is no evidence that the driveway strip was ever used as a means of ingress or egress to and from the portion of the lot extending from the house to the street. The only use ever made of the driveway was as a means of ingress and egress from the street to the garage located on the rear of the Dolske lot. It is conceded that there is an opening in the fence 40 feet wide and equal to the entire distance between the rear of the Dolske house and the garage through which Dolske and her tenants has unimpeded access between the rear of the Dolske lot where the garage is located and the public street. No claim is made that the fence interferes with plaintiff's use of the driveway for egress and ingress by automobiles. The finding of the trial court that the fence did not unreasonably interfere with plaintiff's right to use the strip as a driveway is supported by substantial evidence.

The court found the cement coping and curbs, gas meters and pipelines, portions of the porch and pillars supporting it and shrubs were not necessary incidents to the grant of easement to the driveway and were not a part of the easement authorized by its terms in 1913.

The court heard testimony on the subject and viewed the premises to make a determination of the question of encroachment. We are bound by the familiar rule in this respect. (Berniker v. Berniker, 30 Cal.2d 439, 444, 182 P.2d 557; 19 Cal.Jur.2d sec. 487, p. 254.)

Judgment affirmed.

GRIFFIN, Presiding Justice.

SHEPARD, J., concurs. COUGHLIN, J., deeming himself disqualified, did not participate herein.

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