PINSKY v. SLOAT (1954)

This suit involves the rights in and the title to a parcel of realty in the county of Los Angeles which was formerly a public highway.

On July 2, 1948, defendant Sloat by grant deed acquired title to three parcels of property. Parcel one consisted of lot 1 and a part of lot 2; parcel two consisted of lots 24, 25, and part of lot 26; parcel three consisted of a part of Scherzinger Lane. Parcel three is the property in controversy. Scherzinger Lane was formerly a dead-end street. Later Sloat executed a deed of trust which described parcels one and two by reference to a map in the office of the county recorder, but did not describe parcel three. The map in the recorder's office showed parcel three surrounded on three sides by parcels one and two. Plaintiffs were named as beneficiaries in the deed of trust. On March 7, 1952, plaintiffs acquired title to parcels one and two on foreclosure of the deed of trust.

On February 2, 1937, prior to the execution of the deed of trust, the board of supervisors of the County of Los Angeles abandoned that part of Scherzinger Lane surrounded by parcels one and two. The part abandoned had never been ‘improved as a street for public use.’ A strip about 14 or 15 feet wide had been black-topped and paved by Sloat for convenience in getting to the house on parcels one and two. Since parcel three was abandoned it has been assessed and taxed separately, and the taxes have been paid by Sloat since she acquired title.

The court found that Sloat did not by the deed of trust convey parcel three, nor did she intend to do so; that a strip 11 feet wide in parcel three has been used as a roadway by plaintiffs for access to their home since they acquired title to parcels one and two; and that defendants have interfered with and threaten to prevent plaintiffs' use of the 11-foot roadway. The judgment decreed that plaintiffs have an easement over the 11-foot roadway which is appurtenant to parcels one and two; and enjoined defendants from plaintiffs' use of the easement. Plaintiffs appeal.

Plaintiffs' contention is that the conveyance of parcels one and two to the trustee extended to the center line of Scherzinger Lane, parcel three, on which each parcel fronted, and that the abandonment of Scherzinger Lane did not affect that title. The contention cannot be upheld. Scherzinger Lane was abandoned on February 2, 1937. On the making of the order of abandonment by the board of supervisors all rights of the county ceased, and the title to the land previously subject to such rights reverted to the owner thereof. Sts. & Hy.Code, § 960. The evidence was undisputed that the predecessor in interest of defendant Sloat was the owner of Scherzinger Lane at the time it was abandoned as a public highway. When plaintiffs acquired title to parcels one and two a public highway did not exist; and the rule, urged by plaintiffs, that an owner of land bounded by a highway is presumed to own to the center of the way, Civ.Code, § 831, does not apply. The presumption created by section 831 is rebuttable and the contrary may be shown. The deed of trust did not expressly include parcel three, and the mere fact that it described parcels one and two as per a map recorded in the office of the county recorder, which map showed parcel three as a public highway, did not operate to convey to the center of parcel three when it was not in fact a public highway.

Affirmed.

VALLÉE, Justice.

SHINN, P. J., and PARKER WOOD, J., concur.