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Ormiston Family Association et al v. William J. Prater

October 7, 2011

ORMISTON FAMILY ASSOCIATION ET AL., PLAINTIFFS, CROSS-DEFENDANTS AND RESPONDENTS,
v.
WILLIAM J. PRATER, DEFENDANT, CROSS-COMPLAINANT AND APPELLANT.



(Super. Ct. No. 143735)

The opinion of the court was delivered by: Duarte , J.

Ormiston Family Assn. v. Prater

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This case involves a dispute over a boundary line and other matters between the owners of two adjacent parcels of forested land in the town of Clipper Mills in Butte County. After many issues were resolved by a successful motion for summary adjudication, a jury found that plaintiff Ormiston Family

Association (OFA) owned the disputed property by deed or adverse possession.

Prater, representing himself on appeal as he did in the trial court, appeals. He contends no substantial evidence supports the judgment for adverse possession. He also contends the trial court made several errors: granting OFA summary adjudication on the claims in Prater's cross-complaint for breach of contract and interference with easement; denying Prater a continuance on the motion for summary judgment/ adjudication and his request to amend the cross-complaint; granting OFA a jury trial after OFA had waived jury; and denying Prater's motion to prohibit reference to the disputed land as "no man's land."

We disagree and shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I

The Disputed Property Line

OFA was formed to hold land for the benefit of the Ormiston family. OFA includes David Ormiston, his sisters Jane Hart and Julie Matlin, their children and various other family members. OFA acquired property in 1999 from the siblings' mother and aunt. Their grandmother had purchased the property from Jim Binet's widow in the 1940's. She first purchased a two and a half-acre parcel. Later she purchased a 40-acre parcel. The two and a half-acre parcel, which houses a cabin that has been on the property since 1873 and that a member of the Ormiston family has owned since 1942, is the subject of this dispute.

The cabin was built in 1873. It was expanded in 1958, and again in 1982. The expansion caused the cabin to overlap the one-sixteenth line*fn1 to the south. Renovation work began in 2007 and the Ormistons restored a fence their grandparents had built in the 1940's.

Prater owns the parcel to the south of OFA's parcel. He held it as a joint tenant with his mother since the 1960's and has owned it outright since 1990. Prater planted a redwood forest on the parcel 20 or 30 years ago and uses part of the land as an equipment yard for his forestry operations. Prater does not live on this property.

In 2007, Thomas Wulfert surveyed the OFA property and the boundary with the Prater property. He determined the boundary line between the two properties was the one-sixteenth line, which cut through OFA's cabin. Earlier surveys had shown the boundary line to the south of the one-sixteenth line, thus to the south of the cabin, even though the available legal descriptions called*fn2 to the one-sixteenth line.

The primary dispute in this case is which boundary line is the correct line between the Prater and OFA properties: the one-sixteenth line passing through the cabin or the line to the south (southern line). The strip of land between these two lines was referred to at trial, over Prater's objection, as "no man's land."

II

OFA Complaint and Prater Cross-Complaint

In 2008, OFA filed suit against Prater for declaratory relief, adverse possession and trespass.*fn3 The complaint alleged that a recent survey of the OFA and Prater properties showed they were not contiguous, but separated by a strip of land. Both OFA and Prater claimed their parcel included this strip of land. The complaint sought quiet title to this strip of land in OFA and a judicial determination as to the ownership of this strip of land. OFA claimed title to this land "based on their actual, open, notorious, exclusive, hostile, and adverse possession of the Property for five years preceding the commencement of this action, together with the payment of all taxes assessed against the Property for the same five years." The complaint also sought damages for trespass; that claim is not at issue on appeal.

Three months later, Prater filed a cross-complaint. The cross-complaint set forth causes of action for trespass, nuisance, breach of contract, interference with easement and intentional infliction of emotional distress. Only the causes of action for breach of contract and interference with easement are at issue in this appeal.

The claim for breach of contract alleged Prater attempted to settle the property line dispute, but David Ormiston demanded a survey. It further alleged Ormiston and Prater entered into a contract by which OFA and Prater would do certain things to accomplish the survey. The "contract" was attached as Exhibit D. Exhibit D was a letter from Ormiston to Prater. The letter stated that OFA owned two parcels of land, a 40-acre parcel and a two and a half-acre parcel containing a cabin. It was the property line of this two and a half-acre parcel that needed to be surveyed. The letter made an offer: if Prater recommended a licensed and registered surveyor that he would agree to have perform the survey, and would agree to the findings of that survey, OFA would pay the entire cost of the survey.

The cross-complaint alleged the contract provided both parties would agree to the findings of the survey and OFA would pay the cost of the survey. Prater alleged Ormiston breached the contract by filing, in another case, a memorandum of costs, which included the costs of the survey, in an attempt to have Prater pay for the survey. Prater further alleged Ormiston and OFA breached the contract by not agreeing to the terms of the survey, but instead filing a "frivolous lawsuit" and conspiring to take Prater's lands unlawfully.

The claim for interference with easement alleged Prater owns an easement over Grizzly Lodge Road which burdens the OFA property. Prater used the easement to move his equipment and for recreational purpose. The cross-complaint alleged OFA erected a rail fence along the road that encroaches upon the easement. Moving caterpillar tractors and road maintenance equipment on the road would cause destruction of the fence. The cross-complaint further alleged this fence was constructed with malice and in violation of an injunction.

III

OFA Motion for Summary Judgment/Adjudication

OFA moved for summary judgment/adjudication of Prater's cross-complaint. OFA contended there was no contract and the condition of Grizzly Lodge Road was in full compliance with the easement, so there was no interference.

OFA provided the declaration of Ormiston, in which he declared that Prater never answered, accepted, or contacted him about the settlement offer for a survey. He further declared a split-rail fence was constructed along Grizzly Lodge Road to replace the fence his grandmother had built in the 1940's. The fence caused the road to measure not less than 10 1/2 feet wide at its narrowest and did not prevent large equipment from passing.

OFA also provided the declaration of its attorney to which was attached the judgment showing Prater had an easement over Grizzly Lodge Road varying in width from nine to 12 feet.

In opposition, Prater objected to the court considering these declarations because they were not made with personal knowledge.

Prater disputed that there was no contract; he asserted the claim he never answered the settlement offer letter was false (and a fraud upon the court). In his response to OFA's separate statement of undisputed facts, Prater cited his declaration. This declaration included a series of letters ...


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