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Michael S. Tate et al v. Richard Fieseler et al

January 24, 2012

MICHAEL S. TATE ET AL., PLAINTIFFS AND APPELLANTS,
v.
RICHARD FIESELER ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. No. PC20080086)

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

Tate v. Fieseler

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Every lawsuit tells a story. This is the story of a 40-year friendship ending in years of acrimony, six days of trial, and this appeal. To an outside observer, very little is at stake here: a neighbor's easement for the continued use of 1,509 square feet of the adjoining neighbor's 12-acre parcel for the trees that have been growing there for 10 years or more; reformation of a grant deed to remedy small mistakes the neighbors made constructing a common driveway and installing a fence in 2003 while relationships remained amiable; a permanent injunction preventing one neighbor from closing and/or locking the shared gate when the other neighbor is home; and $763.90 in damages. Finding no abuse of discretion and ample evidence to support the trial court's imminently reasonable findings to preserve the status quo, we affirm the judgment.

FACTS

Michael Tate and Richard Fieseler became friends in the 1960's. Eventually, Michael married Linda and Richard married Kristine, and over time the two couples cultivated a close relationship. In 2001 they purchased rural property in El Dorado County; the Fieselers purchased approximately 5 acres to the south of the 12 acres the Tates purchased. Both couples planned to build a house and barn on their respective properties.

In September or October 2001 they discussed the feasibility of installing a common driveway to provide access from Highway 49. The Tates agreed to give the Fieselers an easement across their property for access purposes. The parties agreed that they would share the common driveway and gate, and thereafter construct their own gates and separate driveways to their respective homes. Standing on the site of the proposed road, Richard pointed where the road would go and Mike and Linda said, "Fine, we don't care." No one took any measurements at the time. They agreed on a contractor, Del Beam Construction (Del Beam).

Del Beam began construction sometime that fall and cut enough dirt off the highway so the Fieselers would have access to their property. The contractor put a road up to the Tates' pad for their building and a road over to the Fieselers' pad for their barn before taking a few months off during the rainy season. But the driveway and the road over to the Fieselers were complete in their dirt form before construction temporarily ceased. Rather than a straight road as envisioned by the parties when they discussed the location of the easement, the road curved around a small marshy area located in the pathway. The Tates neither consented nor objected to the change in direction. By March or April, Del Beam had the dirt driveways into both properties and had completed the drainage ditch.

On March 2, 2002, the parties executed a road maintenance agreement. Richard Fieseler's understanding was that the parties had agreed to share the cost of maintaining the common area, including "[t]he blacktop in the front going to the highway" and the gravel on the "50-foot entrance section."

Sometime before June 3, 2002, the Tates used a 100-foot tape to measure where they remembered the Fieseler easement would be located. Linda Tate then downloaded a grant deed form from the Internet and filled in a legal description based on measurements she took herself. The parties executed the grant deed on June 2, 2002, without the advice of counsel, a survey, or any other measurements. The Fieselers stored their copy in a box of documents related to their property and did not look at it again until 2009. They did not know the legal description in the grant deed was inaccurate until after the Tates filed their lawsuit many years later.

During construction of their homes, the Tates spent one to three weekends a month as guests of the Fieselers. The record is murky about when the Fieselers constructed a fence between the properties and when Kristine planted six trees at $100 each on what everyone believed was Fieseler property. At least by late 2003 or early 2004, the Tates arrived at their property on a weekend and observed two workers constructing a boundary fence. The Fieselers testified the Tates gave them permission to construct the fence as marked. The Tates testified that they were told the fence would be temporary. Because they own horses and need to keep them confined, Richard denied he had stated the fence was temporary. Eventually, construction on both houses was complete and the couples moved into their homes. Neither conducted a survey to verify boundaries before building their homes. Both relied on the monuments the realtors showed them when they purchased the property. The location of the boundary fence was based in part on the monuments.

It is unclear how or why the acrimony between the parties began. It is clear, however, that Richard has faced a series of medical challenges including degenerative back disease, cancer, an injured knee, a head injury, and a serious arm infection. By the time of trial, he had numerous doctors and was on a daily regimen of various pharmaceuticals, including pain killers. Although the content of her letter dated January 25, 2008, indicates an awareness that Richard was undergoing tests because he was blacking out, Linda nevertheless wrote an expose of her hurt feelings to the Fieselers and concluded they had never been true friends. One of her grievances included the following: "You invited Mike and I [sic] over for cake on your birthday last year. You had told us that your sister was coming up to help celebrate and we had looked forward to meeting her and her family; however, when you called after she left it made US feel like we were second class citizens, not good enough to meet your family." She catalogued a list of other slights and grievances before expressing her regret that she had to add to all Richard had on his "plate." She felt "it had to be done." The letter was signed "Linda & Mike."

Within six weeks the Tates had filed a complaint against the Fieselers to quiet title, and hostilities escalated. By the summer of 2008 both couples had filed requests for temporary restraining orders against the other for harassment. The Tates alleged that Richard sat in his golf cart in the common driveway, slammed the gate, and called them names. The Fieselers alleged that Linda videotaped and photographed them constantly and watched them through binoculars. In fact, Mr. Tate testified he and his wife had taken about 50 to 60 hours of tape of the Fieselers. Linda would close the gates and wrap chains around them after the Fieselers opened them for visitors. The gates would appear locked. The parties were headed to court in August when negotiations began to bear fruit.

On September 17, they mutually agreed to withdraw their requests for temporary restraining orders. The Fieselers agreed not to use the common driveway, believing the agreement would only remain in effect pending resolution of the lawsuit. The Tates believed the Fieselers were relinquishing their right to the easement permanently. The Fieselers built an alternate driveway on their own property and did not use their easement while litigation ensued. The Tates locked the interior gate without the Fieselers' consent.

In December 2008 the Fieselers' expert, Richard Marino, surveyed the property and discovered that the northwest boundary monument was six feet north of its original location, thereby increasing the acreage of the Fieseler parcel and decreasing the acreage of the Tate parcel by less than .05 acres. He found no physical evidence that the monument had been "tampered with or disturbed" but had "suspicions that many years ago someone could have moved the corner from its original location," accidentally or intentionally. He notified the Fieselers' lawyer of the need to record a survey documenting the error. The Tates did not discover the error until February 2009 when they hired their own surveyors.

Shortly thereafter, Richard arrived home from a doctor's appointment to discover the Tates and six to eight others tearing down his fence with a backhoe. One of the men removing the fence was a surveyor. Richard pushed the surveyor's equipment onto the Tates' property and told the group he would sue them all. Kristine's employees reinstalled the fence that afternoon.

Both parties filed small claims actions against the other, and those claims were consolidated with the Tates' complaint and the Fieselers' cross-complaint for trial. The Fieselers cross-complaint is not at issue in this appeal. The Tates alleged damages to their surveyors' equipment of $763.90, and $450.00 to replace and restake the monument.

Following a six-day trial, the court found:

1. The Boundary Fence Area. There is no credible evidence that Richard moved the monument. The parties did discuss the location of the fence by "'working off the existing top (SW/NW) monument pin'" and agreeing that the fence would run straight from the top pin to the lower monument pin. The purpose of the fence was ...


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