Furtado v. Taylor

In Furtado v. Taylor (1948) 86 Cal. App. 2d 346, the owners of servient tenements across which an easement for an irrigation ditch lay filled in the ditch and planted it over with crops for some 10 years without objection or interference. Despite this uncontroverted evidence, the trial court held that this use had not been hostile to the rights of the owner of the dominant tenement, nor had it been open, notorious or under claim of right. On appeal, the Furtado court held 'This conclusion of the trial court cannot be said to be without ample support in the evidence. There is no evidence on the part of defendants that they ever asserted to anyone any right to use the portion of the ditch for cultivation, or that they ever asserted to anyone any claim that they were the owners of the land free from the easement. They rely solely upon statements that they had farmed the areas where they had destroyed the ditch and that their operations were visible.' 'As the trial court found that defendants' possession had not been hostile to plaintiff or his predecessors, had not been open or notorious, or under a claim of right, and that none of the defendants had ever asserted any claim to the ditch adverse to plaintiff or his predecessors, and the evidence lends ample support to its conclusions, they are binding upon this court whatever evidence there may be which would tend to support a contrary conclusion.'" (Furtado, at pp. 351, 353.)