BANION v. BORBA (1947)

This is an appeal from a judgment quieting plaintiffs' title to a right of way forty feet wide for road purposes, and to another forty-five feet for ditch and road purposes.

Plaintiffs owned three parcels of land containing approximately 413.10 acres, in Fresno and Merced Counties. The first parcel was acquired in 1933, the second in 1938, and the third at a later date.

Defendants owned two parcels of land in the same general neighborhood, one containing 162.10 acres which we will refer to as parcel ‘A,’ and the other, 610.93 acres, which we will refer to as parcel ‘B.’ The two parcels are separated by a sizeable tract owned by a Mr. Colson.

All the land in the district was owned at one time by Miller & Lux, Incorporated. It is quite alkali and has been used for pasturage and duck clubs.

There is a gentle slope of the country to the north. Immediately north of plaintiffs' properties and Parcel A is what we will call the San Joaquin Main Canal. Immediately south of Parcel B is the Outside Canal from which plaintiffs obtained their water through the ditch in question. The only public road in the entire district is Russell Avenue which runs north and south along the east side of Parcel A. It is distant about two miles from the parcels acquired by plaintiffs in 1933 and 1938.

When plaintiffs first acquired their property in 1933 there was an unimproved dirt road leading westerly from Russell Avenue to their tract of land. It was their only means of ingress and egress. It was just south of the San Joaquin Main Canal and crossed the northerly portion of Parcel A.

The evidence shows that this road was in use as early as 1924 and has been used continuously ever since in practically the same location where it is now found. The plaintiffs first did work on this road in 1938. They graded it with a tractor, bulldozer and grader. They did not build a crown or dig gutters, but made what they call a smooth grade by levelling it and filling in mud holes and ruts. They repeated this work every year up to 1945, and sometimes several times a year. There is no evidence that any permission was given to use the road and if affirmatively appears that no one objected to its use until after defendants had purchased their properties in 1945 and had built fences across it.

Before defendants purchased their properties, Mr. Borba went over them. He saw the road we have been discussing which ran from Russell Avenue westerly across the northerly portion of Parcel A, and the ditch with a road alongside it running from the Outside Canal northerly across the westerly portion of Parcel B to plaintiffs' properties.

In the two deeds conveying Parcels A and B to defendants the grantor, Miller & Lux, Incorporated, expressly reserved and excepted from the conveyances ‘all now existing rights of way for roads, * * * ditches, canals * * * and irrigation works * * *’ so if plaintiffs' use of the ditch and roads in question had ripened into a right when defendants purchased their two properties they did not acquire any rights in the easements under those conveyances. Sutter Butte Canal Co. v. Richvale Land Co., 40 Cal.App. 451, 181 P. 98.

Under the evidence before us we cannot see how it may be questioned that plaintiffs had acquired the right to use the road leading from Russell Avenue across the northerly portion of Parcel A and on to their property long before defendants purchased the property in 1945. It was the only means of ingress to and egress from their property and they used it continuously since 1933. They improved the road and did work up it every year commencing in 1938. It is true that others, principally cattle and sleep men, also used the road but this use by others could not prevent the use by plaintiffs from ripening into a right. Therefore plaintiffs had acquired a prescriptive right to use the road. Nay v. Bernard, 40 Cal.App. 364, 180 P. 827; Leverone v. Weakley, 155 Cal. 395, 101 P. 304; Ricioli v. Lynch, 65 Cal.App. 53, 223 P. 88; Pacific Gas & Electric Co. v. Crockett Land & Cattle Co., 70 Cal.App. 283, 233 P. 370; Lemos v. Farmin, 128 Cal.App. 195, 17 P.2d 148; Wallace v. Whitmore, 47 Cal.App.2d 369, 117 P.2d 926; McMorris v. Pagano, 63 Cal.App.2d 446, 146 P.2d 944.

Defendants argue that the so-called road across Parcel A was only one of several trails or tracks appearing at numerous places in that locality. The weight of the evidence is against this contention and effectively disposes of it.

The conclusion that plaintiffs have gained a prescriptive right in and to the ditch and road along side of it leading from the Outside Canal northerly across Parcel B to plaintiffs' properties must be drawn from the evidence. This ditch and road were constructed by plaintiffs in 1938 and were continuously sued by them without objection or interruption until defendants built their fences in 1945. The ditch was about fifteen feet wide and from three to six feet deep. The road paralleled the ditch and was used to keep the ditch clean and in repair. Water was conveyed through the ditch to plaintiffs' lands. These lands became the dominant tenements to which the easements attached. Wells v. Dias, 57 Cal.App. 670, 207 P. 913. Thus the use had ripened into a right prior to the time defendants purchased Parcel B.

Defendants point to certain portions of the record where it appears that plaintiff O'Banion admitted that permission had been given by Miller & Lux, Incorporated, for the construction of this ditch. An examination of the record shows that these statements were contained in a deposition of O'Banion and were used to impeach his testimony during the trial at which time he testified that no permission for the construction of the ditch and road had been given by any one. The testimony of plaintiff Henderson is to the same effect.

The only effect of O'Banion's testimony in the deposition was to impeach his testimony and to create a conflict in the evidence which was resolved against defendants by the trial court. This is conclusive here as the weight to be given evidence, and conflicts in the evidence, are settled in the trial court and not in an appellate court.

The judgment is affirmed.

MARKS, Justice.

BARNARD, J. P., and GRIFFIN, J. concur.