77 P. 915

ISAAC MENDELSON, Respondent, v. EDWARD McCABE, Appellant.

S.F. No. 3218.Supreme Court of California, In Bank.
July 25, 1904.

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APPEAL from a judgment of the Superior Court of Santa Cruz County. Lucas F. Smith, Judge.

The facts are stated in the opinion of the court.

H.C. Wyckoff, and J.E. Gardner, for Appellant.

Lindsay Netherton, for Respondent.

SHAW, J.

The defendant appeals from the judgment upon the judgment-roll alone. The material facts as found by the court and admitted by the pleadings are as follows: —

The plaintiff was the owner of a right of way across the rear of the lot of the defendant, subject to the right of the defendant to maintain gates thereon at the points of ingress and egress to his lot, and the maintenance of such gates was necessary to inclose the lot of the defendant and permit of his reasonable enjoyment of the same. The defendant for several years prior to the action had maintained a light and easily opened gate at each end of the right of way, which did not unreasonably obstruct the use by the plaintiff of the right of way. For a short period before the action was begun the plaintiff and his family had habitually left both gates open after using the way, and, when requested by the defendant to close them, the plaintiff refused to do so, and declared his intention to continue to leave them open whenever he used the way. The defendant in a cross-complaint set up these facts, and prayed that the plaintiff be enjoined from using the right

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of way, unless he should properly and securely close and fasten the gates immediately after passing through them. The cross-complaint did not allege that any actual damage had been caused by the acts of the plaintiff and his family in leaving the gates open. The court, as conclusions of law, decided that neither the plaintiff nor defendant was entitled to affirmative relief, but that the defendant was entitled to recover his costs, and judgment was entered accordingly. The plaintiff has not appealed from the judgment.

The defendant contends that upon the facts admitted and found he should have been granted the affirmative relief prayed for in his cross-complaint, and in this contention we think he is correct. His right to maintain the gates for the protection of his premises would be worthless if the gates were continually left open when the way was not in use. The grant of the right of way, being subject to the right of the defendant to keep and maintain the gates, it follows that it is the duty of the plaintiff to close and fasten the gates after passing through them. If the defendant has the right to maintain the gates, the plaintiff has the right to open them only for the purpose of passing through and over the way, and then it is his duty to close them. (Goddard on Law of Easements (Bennett’s ed.), p. 331; Jones on Easements, sec. 412; Phillips v. Dressler, 122 Ind. 414;[1] Amondson v. Severson, 37 Iowa, 602.) The right to an injunction is not always defeated by the mere absence of substantial damage from the acts sought to be enjoined. The acts of the plaintiff in leaving the gates open, if persisted in as he threatens, will constitute a continual invasion of the right of the defendant to maintain the gates which, if continued for a sufficient length of time, will ripen into a right by prescription which will destroy the defendant’s right to maintain the gates, so that thereafter the plaintiff would have an unobstructed right of way, and the defendant’s property would be deprived of the protection arising from the maintenance of the gates. Moreover, the only remedy, other than that of an injunction, for the injury arising from such continued trespass, would be an action against the plaintiff for damages upon each occasion when he left the gates open. The damage in each case would be very small,

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probably insufficient to defray the expenses of maintaining the action not recoverable as costs. Such remedy is inadequate and would require numerous petty suits, which it is not the policy of the law to encourage. The right to an injunction, therefore, is clearly established upon two grounds: first, because it is an invasion of his right and an injunction is necessary to prevent a total destruction thereof, and, secondly, because it is necessary to prevent a multiplicity of actions. As was said i Moore . Clear Lake Water Works, 68 Cal. 150, “The interposition of a court of equity was required to prevent defendant’s wrongful acts from ripening into a right, and on that ground alone the interference of a court of equity was properly asked and granted.” This proposition is thoroughly settled in this state (Learned v. Castle, 78 Cal. 461; Walker v. Emerson, 89 Cal. 458 Mott v. Ewing, 90 Cal. 237; Lux v. Haggin, 69 Cal. 278; Conklin
v. Pacific Improvement Co., 87 Cal. 305.) So, also, on the second point it has been said: “A trespass of a continuing nature, whose constant recurrence renders the remedy at law inadequate, unless by a multiplicity of suits, affords sufficient ground for relief by injunction.” (High on Injunctions, secs. 697-700; Kellogg v King, 114 Cal. 388;[1a] Smithers v. Fitch, 82 Cal. 158.) The case o Smithers v. Fitch is substantially identical with the present case.

It was necessary to show an intention on the part of the plaintiff to continue the injurious acts, and a reasonable ground to apprehend that he would do so, in order to establish the right to an injunction. The cross-complaint avers that the plaintiff refused to desist from, and threatened to continue, these acts. This is a sufficient showing on this point, especially in view of the admission that the averments are true, and the absence of a special demurrer for uncertainty in the allegation of intent (Ball v. Kehl, 87 Cal. 506; Gardner v. Stroever, 81 Cal. 150 Coker v. Simpson, 7 Cal. 341; High on Injunctions, sec. 18.)

The court below should have granted the injunction as prayed for in the cross-complaint.

The cause is remanded, with instructions to the court below to amend the judgment by inserting therein a clause to the effect that the plaintiff be enjoined from using the right of

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way across the defendant’s lot, as described in the findings, unless the said plaintiff shall properly and securely close and fasten the gates at each end of said right of way immediately after passing through them, or either of them, and upon each occasion of such use.

Angellotti, J., Van Dyke, J., Henshaw, J., and Beatty, C.J., concurred.

[1] 17 Am. St. Rep. 377.
[1a] 55 Am. St. Rep. 74.