Hilton

The petition for an order transferring this cause to the supreme court for rehearing is denied. We do not, however, approve that part of the opinion of the district court of appeal concerning the right of the defendant to take driftwood from the land of the plaintiff. The judgment of the lower court merely establishes the right of the defendant to a way through plaintiff’s land, for the purpose of hauling thereover driftwood from the Yuba, river, not from plaintiff’s land. It declares nothing in regard to the right or title the defendant may have, or may obtain, to such driftwood in the *235 river. That right or title was not in issue, and it does not appear to be any concern of plaintiff, unless defendant takes driftwood to which plaintiff has a better right or title, in which case the judgment will not be an estoppel against plaintiff or in favor of defendant.

The action was brought to quiet title to a certain tract of land known as lot 2. The court found that plaintiff was the owner of the land but adjudged it to be subject to an easement in favor of defendant for a right of way, in width that of an ordinary farm wagon, for the purpose of hauling thereover driftwood from the north bank of the Yuba river. It was provided that said roadway was “to be used and enjoyed by means of and with a good and sufficient gate to be maintained on the line separating said lots one (1) and two (2), said gate to be kept closed except while passing through the same.”

The main contention of appellant is that the evidence is insufficient to support the finding of adverse use of the roadway by defendant. Respondent has pointed out the principal part of the testimony as follows: The defendant Hilton testified that he owned lot one (1) for about fifteen years; that when he began living there lot 2 was owned by P. George; that there is a roadway leading from lot 1 down through lot 2 to the Yuba river; that he used the roadway for going down to the river for driftwood; that it is the only way he has of getting down to the river; that he has used the roadway…

The action was brought to quiet title to a certain tract of land known as lot 2. The court found that plaintiff was the owner of the land but adjudged it to be subject to an easement in favor of defendant for a right of way, in width that of an ordinary farm wagon, for the purpose of hauling thereover driftwood from the north bank of the Yuba river. It was provided that said roadway was "to be used and enjoyed by means of and with a good and sufficient gate to be maintained on the line separating said lots one (1) and two (2), said gate to be kept closed except while passing through the same." The main contention of appellant is that the evidence is insufficient to support the finding of adverse use of the roadway by defendant. Respondent has pointed out the principal part of the testimony as follows: The defendant Hilton testified that he owned lot one (1) for about fifteen years; that when he began living there lot 2 was owned by P. George; that there is a roadway leading from lot 1 down through lot 2 to the Yuba river; that he used the roadway for going down to the river for driftwood; that it is the only way he has of getting down to the river; that he has used the roadway for…