Conner

Plaintiffs sued to quiet title to three par cels of land situated in Napa County. The defendant appeared and claimed an open right of way over parcels one and three of plaintiffs’ land. Judgment went for plaintiffs quieting their title subject to the right of way claimed by defendant. The plaintiffs have appealed on a typewritten transcript.

Plaintiffs concede that defendant, through his predecessors in interest, obtained, partly by grant and partly by prescription, an open right of way over the land in question and that this was used as a road and means of ingress to defendant’s land from the county road from the year 1868. In the year 1918 James Mallock, the immediate predecessor in interest of the plaintiffs, conveyed to defendant “an open right of way—in common with the grantor over the road now being constructed by the parties from James Mallock’s barn to the county road.’’ This deed was made subject to the condition that the parties should each pay one-half the expenses of fencing, building, and maintaining the road, an obligation which should run with the land and be a condition to the enjoyment of the right granted. It is conceded that the road covered by this deed is the…