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Norman J. Scheel et al v. John P. Henderson et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


February 7, 2012

NORMAN J. SCHEEL ET AL., PLAINTIFFS, CROSS-DEFENDANTS, APPELLANTS AND RESPONDENTS,
v.
JOHN P. HENDERSON ET AL., DEFENDANTS, CROSS-COMPLAINANTS, APPELLANTS AND RESPONDENTS.

(Super. Ct. No. 04AS03875)

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

Scheel v. Henderson

CA3

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 appeal involves a dispute between adjacent landowners over a 40-foot strip of land running along the eastern boundary of the plaintiffs' property. The defendants claim a right to use the strip as a road for vehicular traffic on the grounds either that the plaintiffs never owned it or that they had obtained an easement by prescription. The trial court concluded that the plaintiffs owned a fee simple interest in the strip but that the defendants only had a prescriptive interest in the strip as a path for foot traffic.

The defendants, Richard and Mildred Henderson, acquired the property located at 8801 Sunset Avenue in Fair Oaks in 1963. Since 2003, that property has been owned by the Henderson 2003 Family Trust. The trustee of that trust is defendant and cross-complainant John P. Henderson.*fn1 Plaintiffs and cross-defendants Norman and Jonelle H. Scheel acquired the northern portion of their property in 1985 and the southern portion in 1998. Their address is 4825 Arbardee Drive in Fair Oaks.*fn2

From 1963 until the early 1970s, the Hendersons' sole means of accessing their property was on a dirt roadway that ran along the eastern edge of what is now the Scheels' property. While the Henderson property's address is 8801 Sunset Avenue, the property does not actually abut Sunset Avenue.

In late 1971, Arbardee Road, which abuts the northwest corner of the Hendersons' property "opened up," and they began using Arbardee Road to access their property by car. They continued to use the old roadway for pedestrian and recreational use.

Once the Scheels acquired the whole of their property, it abutted Arbardee Drive to the north and Martsmith Way to the south. In late 1999, the Scheels extended their driveway south to Martsmith Way, and the Hendersons began using that portion of the driveway to access Martsmith Way and proceed south to Sunset Avenue. This continued for a number of years until the Scheels installed barriers to prevent the general public from using their driveway as a thoroughfare from Arbardee Drive to Martsmith Way. At that point, the Hendersons asserted the "existence of a roadway easement running from Arbardee to Sunset for the benefit of the Henderson property."

The Scheels responded by initiating the instant action, seeking, in pertinent part, a declaration that the Hendersons do not have any interest in their property, a judgment quieting title in their favor to the disputed 40-foot strip of land, and an injunction directing the Hendersons to remove their mailbox from the Scheels' property. The Hendersons cross-complained, seeking, in pertinent part, a judgment quieting title to a 40-foot wide roadway easement from "the south end of Arbardee Drive . . . through Martsmith Court to Sunset Avenue" in their favor and a declaration with respect to their easement rights.

Prior to trial, the Hendersons challenged the Scheels' ownership of the disputed land, claiming the parties' common predecessors in interest, Byron and Marie Jacobs, retained a fee simple interest in the 40-foot strip of land and that the Scheels never owned it. During the course of ruling on the parties' respective motions in limine, the trial court concluded that the Scheels own a fee simple interest in the disputed 40-foot strip of land as a matter of law, and that the Jacobs merely retained an easement in the same. Following a bench trial, the court further found that the Hendersons could not qualify as successors in interest to the Jacobs because the Jacobs no longer owned the property that would become the Hendersons' land when they created the easement. Thus, the court quieted title in the disputed land in the Scheels' favor. The court also found that the Hendersons do not have an implied easement in any of the Scheels' property, but that they do have a prescriptive easement right to a 10-foot wide pathway running along the eastern boundary of the Scheels' property from Arbardee Drive to Martsmith Way for foot, bicycle and general recreational access, but not for any vehicular use.*fn3 In addition, the court ordered the Hendersons to remove their mailbox from the Scheels' property and declined to award the Scheels' attorney fees as damages incurred in quieting title to the disputed land.

The Hendersons appeal, contending the trial court erred in ruling that (1) the Scheels own the 40-foot strip, (2) the Hendersons do not have an implied easement in any of the Scheels' property, and (3) the Hendersons do not have the right to use the 10-foot wide pathway along the eastern border of the Scheels' property for vehicular ingress and egress. They further assert that the trial court erred in failing to find the Scheels' fourth cause of action for "Removal of Encroaching Structure," a mailbox, was barred by the three year statute of limitations set forth in Code of Civil Procedure 338, subdivision (b).

The Scheels likewise appeal, contending the trial court erred in finding the Hendersons acquired a prescriptive easement in a 10-foot pathway along the eastern boundary of their property and in failing to award the Scheels their attorney fees.

We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Both parties' properties were once owned by the Jacobs. In 1944, the Jacobs acquired a large parcel of land (Lots 5 and 7, and the eastern portion of Lot 8) located in Block 15 of the Fair Oaks Tract.*fn4 In August 1945, they conveyed a portion of Lot 7 to Bert and Joyce Fisher.*fn5 That same day, the Fishers conveyed the western portion of their parcel, including what would later become the Hendersons' property, to David and Grace Howell. In 1963, the Howells conveyed the northern portion of their parcel to Richard and Mildred Henderson.*fn6

Meanwhile, in May 1946, the Jacobs conveyed the southeastern portion of Lot 8, including what would later become the Scheels' property, to Paul and Muriel Stanley.*fn7 The grant deed purported to convey, in pertinent part, "all that real property situated in the County of Sacramento, State of California, described as follows: [¶] PARCEL NO. 1: All that portion of Lot 8 . . ., described as follows: [¶] . . . [¶] . . . "RESERVING, however, the Easterly 40 feet of the above described property for the purpose of a roadway."

From 1963 until the early 1970s, the only way to access the Hendersons' property was along a dirt roadway that ran from Sunset Avenue along the eastern border of the Scheels' property. During that time, the Hendersons walked, biked, played, and drove along the roadway on a daily basis. They performed maintenance work on the roadway at least two or three times each winter "to make sure that the road was passable." They never requested permission to use the roadway because they believed it was part of their driveway, and no one ever attempted to stop them from using it. Nor did they ever try and hide the fact that they were using the roadway.

In August 1971, Arbardee Drive, which abuts the northwest corner of the Hendersons' property, opened up. Thereafter, the Hendersons used Arbardee Drive to get to and from their property by car but continued to use the roadway to retrieve their mail and for recreational use.

In June 1985, the Scheels purchased the northern portion of their property. The title insurance policy for the property made no mention of the reservation contained in the May 1946 deed from the Jacobs to the Stanleys.*fn8 In 1998, the Scheels purchased the southern portion of their property.*fn9 The title insurance policy for the property made no mention of any easement running along the eastern edge of the Scheels' property or of the reservation language contained in the 1946 deed from the Jacobs to the Stanleys.*fn10

Mr. Scheel had no knowledge of the old roadway when he purchased his property in 1985. There were weeds, brush, almond trees, and piles of rubbish in the area where the old roadway was said to have existed. After he purchased the property, he saw several people walking along the eastern border of his property, including Mildred Henderson. It was not until 1999, after he extended his driveway, that he saw anyone drive across the southern portion of his property.

When the Scheels purchased their property in 1985, there was a gravel driveway from Arbardee Drive onto the northeast corner of their property. In late 1999, they expanded their driveway down to Martsmith Way, such that they could enter their property from Arbardee Drive, proceed southwest to a circular drive in front of their residence, and then proceed southeast to an access point on Martsmith Way. Thereafter, the Hendersons began using the driveway as a shortcut from their driveway to Martsmith Way. After the driveway was expanded, Richard Henderson stated to Mr. Scheel, "I assume it's okay if we drive through here," and Mr. Scheel responded, "Yeah, it's okay with me."

In early 2000, the Hendersons placed a mailbox on the Scheels' property.

In Fall 2003, the Scheels installed concrete blocks across a portion of their driveway to prevent the public from using it as a thoroughfare between Arbardee Drive and Martsmith Way. In May 2004, Mr. Scheel received a letter from defendant John P. Henderson asserting the existence of an easement running from the south end of Arbardee Drive to Sunset Avenue for the benefit of the Henderson property.

In September 2004, the Scheels filed a complaint to quiet title and for declaratory relief, trespass and removal of encroaching structure. John P. Henderson, in his capacity as trustee for the Henderson Family 2003 Trust, filed a cross-complaint to quiet title and for slander of title, trespass, and declaratory relief.

During the course of the litigation, the Hendersons disputed the Scheels' ownership of the 40-foot strip of land. The Hendersons claimed that the Jacobs retained a fee simple interest, not simply an easement, in the land when they conveyed the southeastern portion of Lot 8 to the Stanleys. The Hendersons based their claim on language contained in the May 1946 deed from the Jacobs to the Stanleys, and an October 1946 deed transferring portions of Lots 6 and 8 to Ernest and Nellie White.

The Scheels moved in limine for an order excluding all evidence of the reservation contained in the May 1946 deed from the Jacobs to the Stanleys on the grounds such evidence was irrelevant and any probative value was substantially outweighed by its potential to confuse and mislead the jury. According to the Scheels, the Hendersons' argument that the Scheels never owned the 40-foot strip of land described in the deed was "refuted by . . . the historical deeds relevant to the Scheels['] and the Hendersons' respective parcels," and "therefore, is strictly a matter within [the trial] court's unique purview and should be disposed of by this motion in limine."

The Hendersons likewise moved in limine for an order prohibiting the Scheels from presenting any evidence that they own the 40-foot strip. They argued that "[t]he evidence is uncontroverted that [the] Jacobs retained ownership of the forty foot roadway that is in dispute in fee and that it was never owned by [the] Stanley[s] . . . or the Scheels." In support of their motion, the Hendersons relied exclusively on the October 1946 deed from the Jacobs to the Whites and the Scheels' expert's interpretation of the same.

The trial court denied both motions; however, after considering the title documents and the arguments of counsel and conducting its own research on the issue, it found, as a matter of law, that the Scheels own the 40-foot strip and that the Jacobs reserved an easement in the same. The court further found that the easement was appurtenant to all of the land retained by the Jacobs, not just that which otherwise would have been landlocked.

Following a bench trial, the court confirmed its ruling that the Scheels own the disputed land and that the Jacobs merely reserved an easement in the same. The court further found that the Hendersons could not qualify as successors in interest to the Jacobs because the Jacobs no longer owned what would become the Hendersons' land when the Jacobs reserved an easement in the 40-foot strip.*fn11 Accordingly, the court quieted title in the Scheels' favor, "subject to easement rights articulated below."

The court also ruled that the Hendersons failed to establish "that they have any easement by implication rights in any of the Scheel property," but that they do have "a prescriptive easement right to a 10 foot wide pathway for foot and bicycle access at their convenience, and for general recreational access at their convenience by themselves and their guests." More particularly, the court found that "[t]he Hendersons did, between their purchase in 1963 and the opening up of the access to Arbardee Drive in the early 1970s, by the required legal standard, openly, notoriously, continuously and adversely use the old roadway . . . for vehicular access and general convenience purposes." The court further found that after Arbardee Drive opened up, the Hendersons ceased "doing the regular maintenance work necessary to keep such a dirt road as the old roadway open for vehicular traffic" and "the old roadway to the south of the Henderson driveway had become nothing more than a path . . . ." Accordingly, the court concluded that the Hendersons' right to use the easement for vehicular ingress and egress had been extinguished by nonuse.

The court declined to find that the Scheels' fourth cause of action for removal of encroaching structure was time barred and ordered the Hendersons to remove their mailbox from the Scheels' property.*fn12

Finally, the court refused to award the Scheels attorney fees as damages incurred in quieting title to the disputed land, stating: "With title being quieted in the Scheels, the Hendersons being ordered to move their mailbox, and various easements being granted to the Hendersons, the appropriate resolution is that both sides be ordered to bear their own fees and costs, to include bearing their own attorney's fees . . . ."

Both parties filed timely appeals.

DISCUSSION

I

The Trial Court Properly Determined That The Scheels Own The Disputed Land

The Hendersons contend the trial court prejudicially erred "by ruling before the trial began that the [Scheels] owned the disputed land and the [Hendersons] were barred from presenting any evidence to the contrary." We disagree.

Determining whether the Jacobs retained a fee simple interest or an easement in the 40-foot strip "requires, in the first instance, careful examination of the language in the original conveyance. If the intent of the parties is clear, that will control. If not, extrinsic evidence may be considered to the extent it informs that intent." (City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 235.) "'Extrinsic evidence is "admissible to interpret the instrument, but not to give it a meaning to which it is not susceptible" [citations], and it is the instrument itself that must be given effect. [Citations.] It is therefore solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence. Accordingly, "[a]n appellate court is not bound by a construction of the contract based solely upon the terms of the written instrument without the aid of evidence [citations], where there is no conflict in the evidence [citations], or a determination has been made upon incompetent evidence [citation]." [Citations.]' [Citation.]" (Id. at p. 238.)

As a preliminary matter, we reject the Hendersons' assertion that the trial court prejudicially erred in determining the fee versus easement issue "prior to trial." The Hendersons themselves urged the court to decide the fee versus easement issue in their motion in limine. More importantly, they cannot establish they were prejudiced by the timing of the trial court's determination. While they assert that the court's ruling effectively prevented them from presenting extrinsic evidence showing the Jacobs intended to retain a fee interest, the only extrinsic evidence they point to is the October 1946 deed from the Jacobs to the Whites, which was before the court. Indeed, the Hendersons specifically relied on that document in support of their motion in limine. (The contents of that deed are set forth below in the discussion of the Hendersons' claims based on the deed.) Accordingly, even assuming for argument's sake that the trial court acted precipitously in deciding the issue, any error was harmless.

Turning to the merits, "[a] fee simple title is presumed to be intended to pass by a grant of real property, unless it appears from the grant that a lesser estate was intended." (Civ. Code, § 1105.) As we shall explain, no such intent appears here.

Here, the granting clause of the deed declared an intent to "[g]rant . . . all that real property situated in the County of Sacramento, State of California, described as follows: [¶] PARCEL No. 1: All that portion of Lot 8 . . ., described as follows: [¶] . . . [¶] . . . RESERVING, however, the Easterly 40 feet of the above described property for the purpose of a road way." (Italics added.)*fn13 "A declaration of intention to 'grant all that real property . . . described as follows: Being all of the land,' etc., cannot be understood otherwise than as an expression of intent to grant the fee, or the entire estate, in whatever is described." (W.E. Van Slyke v. Arrowhead Reservoir and Power Company (1909) 155 Cal. 675, 679.)

Here, the description of the property to be conveyed included the 40-foot strip. The deed from the Jacobs to the Stanleys described the northern boundary of the parcel as "657.58 feet more or less." The deed from the Jacobs to the Whites, which conveyed a parcel directly to the north of the Stanleys' (now the Scheels') parcel, described the southern boundary of that parcel as "657.90 feet." It is undisputed the Whites acquired a fee simple interest in their entire parcel. Thus, the fact that the parcels are virtually the same width shows that the property conveyed by the Jacobs to the Stanleys, the Scheels' predecessors in interest, included the 40-foot strip. Had the Jacobs intended to retain the 40-foot strip in fee, they would have deducted that footage and described the northern boundary of the parcel as 617.52 feet. (See Moakley v. Los Angeles Pacific Railway Co. (1934) 139 Cal.App. 421, 426.)

The use of the term "reserving" in relation to the 40-foot strip further supports a finding that the Jacobs conveyed the entire estate. "When a grantor conveys a parcel of property and 'excepts' a part from the conveyance, no interest in the excepted portion passes to the grantee; the entire interest is retained by the grantor and title to the excepted portion remains as it was before the conveyance. [¶] However, when an interest is 'reserved,' the entire fee title is transferred to the grantee and the grantee grants back a new interest to the grantor." (6 Miller & Starr, Cal. Real Estate, supra, § 15:18, pp. 77-78, fns. omitted; see also City of Manhattan Beach v. Superior Court, supra, 13 Cal.4th at p. 244; W.E. Van Slyke v. Arrowhead Reservoir & Power Co., supra, 155 Cal. at p. 679.) As both parties acknowledge, the use of the term "reserving" is not dispositive. Because the terms "reserve" and "except" are used interchangeably in common parlance, "'the technical meaning will give way to the manifest intent, even though the technical term to the contrary be used.'" (W.E. Van Slyke v. Arrowhead Reservoir & Power Co., supra, 155 Cal. at p. 680.) Here, the reservation of the 40-foot strip "for purposes of a roadway" evidences an intent to convey a fee simple interest and for the Jacobs to retain an easement in the disputed land. (See Elliott v. McCombs (1941) 17 Cal.2d 23, 28.)

In Elliott v. McCombs, supra, a land company deeded to Rice a parcel of land, "'except the south 30 feet thereof reserved for road purposes . . . .'" (17 Cal.2d at p. 26.) In concluding that the grantor reserved an easement rather than excepted title in the land, the court observed, quoting in part from Parks v. Gates (1921) 186 Cal. 151, 155, that "'there is a vast difference between a grant for purposes of "right of way" for a road and a grant of land "to be used for a road." The latter grant may be entirely consistent with the conveyance of a fee-simple title, as a road may be maintained as readily on land held in fee as under an easement, but the grant of land as a right of way recognizes nothing but an easement.' This rule was applied in Cooper v. Selig, 48 Cal.App. 228 [191 P. 983], where the court construed a deed conveying land to the city of Los Angeles for the purposes of a public road as passing the fee simple title. Under the same principle of construction, the language in the deed of the land company to Rice conveyed a fee-simple title to him with the reservation of an easement on the part of the grantor. [Citations.]" (Id. at p. 28.) Applying this same principle here, the grant by the Jacobs to the Stanleys of the southeastern portion of Lot 8, "RESERVING, however, the Easterly 40 feet of the above described property for the purpose of a road way" conveyed a fee simple interest in the entire parcel, including the 40-foot strip to the Stanleys, with the reservation of an easement on the part of the Jacobs. (Italics added.)

In sum, it is clear from the language in the original conveyance that the intention was to convey the entire estate in the land described, including the 40-foot strip of land. That intent controls. (City of Manhattan Beach v. Superior Court, supra, 13 Cal.4th at p. 235.)

The extrinsic evidence cited by the Hendersons, namely the October 1946 deed from the Jacobs to the Whites, does not support a contrary finding. In October 1946, the Jacobs acquired the eastern portion of Lot 6 and conveyed it, along with the northeast portion of Lot 8, to the Whites, "TOGETHER with an easement for a roadway over and across a 40 foot strip of land, the East line of which is described as follows: [¶] . . . "a 40 foot County Road along the East line of said Lot 7; thence parallel to Winding Way North 482.34 feet."*fn14 This is the same strip of land described in the grant deed from Jacobs to the Stanleys. At the time of the transfer to the Whites, the Jacobs still owned Lot 5 and the northern portion of Lot 7.

The Hendersons assert that "[i]f [the] Jacobs did not own an easement to Lot 6 and [they] did not own the 40 foot strip in fee, [the] Jacobs' transfer of Lot 6 with a 40 foot easement to White was not a lawful transfer. Jacobs could not transfer a greater interest in the 40 foot strip than he owned." There are at least two problems with this argument.

First, the easement conveyed by the Jacobs to the Whites did not extend into Lot 6. Rather, it was the same easement reserved by the Jacobs in the deed conveying the southeastern portion of Lot 8 to the Stanleys. Second, at the time the easement was created, the Jacobs owned the northeastern portion of Lot 8. Thus, that portion of Lot 8 was part of the dominant tenement and appurtenant to the 40-foot strip.*fn15 Therefore, the Jacobs did not transfer a greater interest than they owned. Moreover, having acquired the northeastern portion of Lot 8 along with the eastern portion of Lot 6, the Whites could access the easement by crossing from Lot 6 over the northeastern portion of Lot 8, which they had acquired.*fn16

We likewise reject the Hendersons' assertion that the Jacobs' remaining land was rendered inaccessible by the trial court's finding that they retained only an easement and not a fee interest in the 40-foot strip. Even assuming, as the Hendersons contend, that the Jacobs no longer had a right to use the easement after the conveyance to the Whites, the Jacobs' remaining land, Lot 5 and the northern portion of Lot 7, both abutted Winding Way. Thus, the Hendersons' assertion that "[t]he history of the Jacobs' transactions showed that they would have cut themselves off from any public road if they had not retained a fee interest in the eastern forty feet of Lot 8" is erroneous.

In sum, nothing in the Jacobs' conveyance to the Whites suggests that the Jacobs intended to retain a fee interest in the 40-foot strip when they conveyed the southeastern portion of Lot 8 to the Stanleys.

II

The Trial Court Properly Determined That The Hendersons Do Not Have An Implied Easement In The Disputed Land

The Hendersons next argue that "[t]he trial court prejudicially erred when it ruled that [they] had no implied easement after the court barred the[m] from proving that [the] Jacobs roadway existed . . . ." Again, we disagree.

"An easement will be implied when, at the time of conveyance of property, the following conditions exist: 1) the owner of property conveys or transfers a portion of that property to another; 2) the owner's prior existing use of the property was of a nature that the parties must have intended or believed that the use would continue; meaning that the existing use must either have been known to the grantor and the grantee, or have been so obviously and apparently permanent that the parties should have known of the use; and 3) the easement is reasonably necessary to the use and benefit of the quasi-dominant tenement. [Citation.] 'The purpose of the doctrine of implied easements is to give effect to the actual intent of the parties as shown by all the facts and circumstances.' [Citation.] An easement by implication will not be found absent clear evidence that it was intended by the parties." (Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 141-142, fns. omitted; see also Civ. Code, § 1104.) "The question of whether an easement by implication arose is a question of fact for the determination of the trier of fact in the trial court." (Leonard v. Haydon (1980) 110 Cal.App.3d 263, 274.)

Here, the trial court found that the Hendersons failed to establish the second condition, i.e., that the owner's prior existing use of the property was of a nature that the parties must have intended or believed that the use would continue. (See Tusher v. Gabrielsen, supra, 68 Cal.App.4th at p. 141.) More specifically, the court determined that "[t]here is no competent evidence in the record as to what the parties must have intended or believed in regard to the August 1945 transaction between [the] Jacobs and the Fishers."*fn17 We review the trial court's determination for substantial evidence. (Id. at p. 143.) In doing so, we review the entire record in the light most favorable to the trial court's factual findings and resolve all evidentiary conflicts and inferences in support of the judgment. (Jessup Farms. V. Baldwin (1983) 33 Cal.3d 639, 660.)

As a preliminary matter, we reject the Hendersons' claim that the trial court improperly barred evidence of a pre-existing roadway. As the Hendersons acknowledge, evidence of a pre-existing roadway is contained in the 1944 deed from Byron and Alva Love to the Jacobs. In that deed, the Loves reserved for themselves a 20-foot right of way along the eastern edge of Lot 8 for purposes of ingress and egress. Moreover, contrary to the Hendersons' suggestion, the trial court's finding that the Scheels own the disputed land in no way precluded them from introducing evidence of a pre-existing roadway or the Jacobs' use of the same.

Turning to the merits, the mere fact that a road way pre-existed the Jacobs' conveyance to the Fishers does not establish an implied easement in favor of the Fishers. Rather, there must be evidence the Jacobs used the roadway and that the parties believed or intended the use would continue. (Tusher v. Gabrielsen, supra, 68 Cal.App.4th at pp. 141-142.) Here, there is no evidence the Jacobs used the roadway after acquiring the property from the Loves. Unlike the Loves who would have been landlocked but for the right of way, the Jacobs' property abutted Sunset Avenue. The Fishers' property also abutted Sunset Avenue. Thus, neither party was dependent upon the roadway for purposes of ingress or egress. On this record, we have no trouble concluding that substantial evidence supports the trial court's determination that the Hendersons failed to establish an implied easement.*fn18

III

The Trial Court Properly Determined That The Hendersons Have A Prescriptive Easement Right To A 10-Foot Pathway Along The Eastern Border of The Scheels' Property For Foot, Bicycle, And General Recreational Access, But Not For Vehicular Use

The Hendersons contend that the trial court erred in finding "that a portion of [the] easement [along the eastern boundary of the Scheels' property] had been . . . extinguished." The Scheels dispute that the Hendersons established a prescriptive easement in the first instance. Both claims lack merit.

We begin with the Scheels' claim challenging the finding of a prescriptive easement. "The elements necessary to establish a prescriptive easement are well settled. The party claiming such an easement must show use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years." (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570; see also Civ. Code, § 1007; Code Civ. Proc., § 321.) While "[t]he trial court's findings regarding the existence of a prescriptive easement must be based on clear and convincing evidence," those findings will not be disturbed on appeal where there is substantial evidence to support them. (Brewer v. Murphy (2008) 161 Cal.App.4th 928, 938.)

The Scheels argue that "the evidence was compelling that the Hendersons did not traverse the Southeast boundary line of the Scheels' property by vehicle after the early 1970s" and only occasionally used it to retrieve their mail and for recreational use. The Scheels' argument ignores the trial court's finding that "[t]he Hendersons did, between their purchase in 1963 and the opening up of the access to Arbardee Drive in the early 1970s, by the required legal standard, openly, notoriously, continuously and adversely use the old roadway . . . for vehicular access and general convenience purposes." (Italics added.) As we shall explain, there is ample evidence to support the court's finding.

There was evidence adduced at trial that the Hendersons walked, biked, and drove on the old roadway on a daily basis from 1963 until the early 1970s when Arbardee Drive opened up. Indeed, before Arbardee Drive opened up, the old roadway was the sole means of accessing the Hendersons' property. Thus, substantial evidence supports the trial court's finding that the Hendersons openly, notoriously, and continuously used the old roadway for over five years.

We next consider the Scheels' assertion that the Hendersons use was merely a matter of neighborly accommodation, and therefore not adverse. Whether the use of the real property of another is hostile or merely a matter of neighborly accommodation presents "a question of fact to be determined in light of the surrounding circumstances and the relationship between the parties." (Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d at p. 572.) As the parties' briefs suggest, the law regarding adverse versus permissive use has a convoluted history. In 1901, our Supreme Court stated that a claim of right "must in some way be asserted in such a manner that the owner may know of the claim. The fact that the owner knew of the travel and occasional use of the property does not even raise a presumption that such use was hostile or under claim of right. If any party who is allowed by silent permission to pass over the lands of another, nothing being said as to any right being claimed, after five years, without showing that he ever communicated such claim in any way to the owner, can thus gain title by prescription, it would be a blot upon the law." (Clarke v. Clarke (1901) 133 Cal. 667, 670.) Five years later, however, the court held that undisputed use of an easement for the prescriptive period raises a presumption of adverse use, shifting the burden to the party resisting the easement to show otherwise. (Fleming v. Howard (1906) 150 Cal. 28, 30.) In 1948, the court again changed course, finding "no apparent reason for discussing the matter from the standpoint of presumptions. For the trial court the question is whether the circumstances proven do or do not justify an inference showing the required elements." (O'Banion v. Borba (1948) 32 Cal.2d 145, 149.) More recently, the court returned to the use of presumptions, holding that "continuous use of an easement over a long period of time without the landowner's interference is presumptive evidence of its existence and in the absence of evidence of mere permissive use it will be sufficient to sustain a judgment." (Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d at pp. 571-572.)

As previously discussed, the evidence showed that the Hendersons openly, notoriously, and continuously used the old roadway for from 1963 to the early 1970s. During that time, none of the Scheels' predecessors in interest attempted to interfere with their use, and the Hendersons neither asked for nor received permission to use the old roadway. The Hendersons did not ask for permission to use the old roadway because they believed it belonged to them, and consistent with that belief, they maintained and repaired the road during the prescriptive period. The Hendersons' open and daily use of the roadway, without permission or interference, for over seven years, coupled with their treatment of the roadway as their own, constitutes substantial evidence that their use was under a claim of right and not merely a neighborly accommodation. (See Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d at pp. 571-572; Le Deit v. Ehlert (1962) 205 Cal.App.2d 154, 163.)

Finally, the Scheels' claim that the Hendersons "failed to establish the location of any purported prescriptive easement rights" along the eastern border of the Scheels' property lacks merit. A prescriptive easement cannot be established if there is a substantial variation from the course or path used during the prescriptive period. (O'Banion v. Borba, supra, 32 Cal.2d at p. 148.) Here, the Scheels do not dispute that substantial evidence supports a finding that the Hendersons used a "defined course of travel" during the prescriptive period -- 1963 until the early 1970s. Evidence that the Hendersons' course of travel may have varied after that time is not relevant to whether a prescriptive easement was established in the first instance.

Having determined that substantial evidence supports the finding of a prescriptive easement, we next consider the Hendersons' contention that the trial court erred in finding the easement was partially extinguished by nonuse.

As a preliminary matter, we reject the Hendersons' claim that the Scheels failed to adequately plead extinguishment as a defense in their answer to the cross-complaint, and as a result, the Hendersons were not sufficiently informed of the defense to be able to fairly oppose it at trial. "If a plaintiff was fully informed of a defense and the case was fairly tried on the merits, any defect in the pleading of the defense is usually harmless." (Harper v. Kaiser Cement Corp. (1983) 144 Cal.App.3d 616, 620-621.) Here, the Scheels' answer to the cross-complaint pleaded facts upon which a claim of extinguishment by nonuse could be based. They (1) denied that the roadway was shared by the Hendersons' family and the Scheels' predecessors in interest for vehicular traffic from at least 1975 to the present; (2) denied that the Hendersons utilized the Sunset Avenue access at their convenience; and (3) alleged that the roadway referenced in the cross-complaint had been impassable by vehicles for years. Moreover, the merits of the extinguishment issue were argued by the parties at the summary judgment stage and in their trial briefs. Furthermore, the Hendersons introduced evidence regarding their use of the old roadway from 1963 to the present at trial. Under these circumstances, any defect in the pleading of the defense was harmless. (Id. at p. 621.)

Turning to the merits, once acquired, a prescriptive easement may be lost by nonuse for five years. (People v. Ocean Shore Railroad, Inc. (1948) 32 Cal.2d 406, 419; see also Civ. Code, § 811, subd. 4.) It is well established that extinguishment by adverse possession may be of the entire easement or a portion thereof. (Glatts v. Henson (1948) 31 Cal.2d 368, 370.) We see no reason why this rule should not extend to extinguishment by nonuse, and the Hendersons offer none. This is particularly true where, as here, the Hendersons not only ceased using the roadway for vehicular ingress and egress, but the easement became unusable for that purpose for well over five years.

Contrary to the Hendersons' assertion, Marangi v. Domenici (1958) 161 Cal.App.2d 552 supports the trial court's ruling. That case involved a six-foot wide driveway. While the driveway was located primarily on the defendants' property, the plaintiff and the defendants' predecessor in interest shared the driveway for many years and split the cost of paving it. (Id. at pp. 553-554.) When the defendants purchased the property, the driveway was being used openly and continuously by the plaintiff and her tenants, and the plaintiff and her tenants continued to use the full-width of the driveway for vehicles and pedestrians for several years despite defendants' objections, with one exception. (Id. at p. 555.) The plaintiff built a porch on the side of her rear residence, rendering vehicle traffic to the rear portion of her property impossible and "use of the driveway back of the porch was discontinued except for pedestrian travel." (Ibid.) The trial court ruled that the plaintiff had prescriptive easement rights "to the 83 feet of driveway lying north of the rear house on plaintiff's premises," which did not include the rear portion of the driveway that had been rendered inaccessible by vehicle. (Id. at pp. 556, 559.) On appeal, the defendants suggested that the nonuse of the rear portion of the driveway for vehicular traffic "somehow impair[ed] the existing easement or prove[d] its nonexistence." (Id. at p. 559.) In finding the defendants' suggestion "untenable," the court stated: "Changes in the extent or nature of [the use] which do not increase the burden on the servient tenement do not destroy the easement though acquired by prescription." (Ibid.) Stated another way, the fact that a portion of the driveway was no longer accessible by vehicle did not mean that the existing easement was destroyed.

The trial court's ruling in this case is entirely consistent with the court's finding in Marangi v. Domenici. The trial court did not find that the Hendersons' failure to use the old roadway for vehicular access extinguished the entire easement. To the contrary, the court found the Hendersons retained their prescriptive easement right for purposes of pedestrian, bicycle, and recreational access, but that any right to use the old roadway for vehicle access had been extinguished. Substantial evidence supports the trial court's finding.

At trial, members of the Henderson family acknowledged that after Arbardee Drive opened up in the early 1970s, they ceased using the old roadway for vehicular access to their property. Evidence also was submitted that the old roadway became impassible by automobile for at least five years and was essentially reduced to a path. While the Hendersons used the Scheels' driveway for access to and from Martsmith Way after the Scheels extended it, evidence was presented that such use was with the Scheels' permission. Thus, the Hendersons did not acquire any additional rights by virtue of their later use of the driveway. (See Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d at p. 572.)

Finally, we reject the Hendersons' claim that "[t]he trial court improperly shifted the burden of proof to require [them] to prove that their easement had not been abandoned." The Scheels presented evidence that the Hendersons stopped using the old roadway for vehicular access once Arbardee Drive opened up in the early 1970s, and that the roadway was impassible by car between 1985 and 1999. Only then did the court suggest that the Hendersons must show their right to use the old roadway for vehicular access had not been extinguished by nonuse. Contrary to the Hendersons' assertion, they were not required to prove the easement had not been extinguished in the first instance.

IV

The Trial Court Properly Determined That The Scheels' "Removal Of Encroaching Structure" Cause of Action Was Not Time Barred

The Hendersons contend that the Scheels' fourth cause of action for removal of encroaching structure, a mailbox, is barred by the three year statute of limitations applicable to permanent structures specified in Code of Civil Procedure section 338, and that the trial court erred in deferring to an earlier court ruling which it believed found that the five year limitation period set forth in Code of Civil Procedure sections 318, 319 and 321 applied. As we shall explain, the removal of encroaching structure cause of action is subject to the five year limitation period set forth in Code of Civil Procedure sections 318 and 321. Accordingly, any error in interpreting or deferring to an earlier ruling was harmless.

"[A]n action seeking to enjoin a permanent encroachment is properly characterized as an action for the recovery of real property subject to the five-year limitation period in [Code of Civil Procedure] sections 318 and 321,[*fn19 ] rather than as an action for trespass subject to the three-year limitation period in [Code of Civil Procedure] section 338, subdivision (b).[*fn20 ]" (Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1096.) In Harrison v. Welch, the plaintiffs "specifically sought injunctive relief requiring [the defendant] to remove [a] woodshed and . . . landscaping from their property . . . ." (Id. at p. 1098.) Under those circumstances, we concluded the action was one to recover real property, and therefore was subject to the five year statute of limitation. (Id. at pp. 1096-1098.) The same is true here.

In their removal of encroaching structure cause of action the Scheels alleged that the Hendersons caused a mailbox "to be constructed at the far southeast portion of" their property without their permission and sought an injunction compelling its removal. Accordingly, the Scheels' removal of encroaching structure cause of action is subject to the five year statute of limitation set forth in Code of Civil Procedure sections 318 and 321, not the three-year statute of limitation specified in section 338, subdivision (b). The mailbox was placed on the Scheels' property sometime after January 10, 2000. The complaint was filed less than five years later, on September 27, 2004. Accordingly, the removal of encroaching structure cause of action was not time barred, and any error in interpreting or deferring to the earlier ruling was harmless.

V

The Trial Court Properly Declined To Award The Scheels Their Attorney Fees

Finally, the Scheels assert that the trial court erred in failing to award them attorney fees as damages incurred to quiet title to the 40-foot strip of land. More particularly, they contend that the Hendersons disparaged their title by asserting that the Jacobs, and not the Scheels, owned the 40-foot strip of land, and that "[t]hey had no choice but to incur legal fees to remove this cloud, which caused them damage." The contention lacks merit.

Generally speaking, except as provided by statute or agreement, the parties to litigation must pay their own attorney fees. (Code Civ. Proc., § 1021.) However, "[a] person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney's fees, and other expenditures thereby suffered or incurred." (Prentice v. North American Title Guaranty Corp. (1963) 59 Cal.2d 618, 620; see also Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310.) The "tort of another" doctrine is "an application of the usual measure of tort damages." (Sooy v. Peter, supra, 220 Cal.App.3d at p. 1310; see also Prentice v. North American Title Guaranty Corp., supra, 59 Cal.2d at p. 621.) "The theory of recovery is that the attorney fees are recoverable as damages resulting from a tort in the same way that medical fees would be part of the damages in a personal injury action." (Sooy v. Peter, supra, 220 Cal.App.3d at p. 1310.) Courts have applied this doctrine in holding that the expense of clearing title is a proper element of damages in a slander of title action. (Glass v. Gulf Oil Corp. (1970) 12 Cal.App.3d 412, 438; Contra Costa County Title Co. v. Waloff (1960) 184 Cal.App.2d 59, 67-68.)

The Scheels appear to rely upon the tort of slander of title in support of their assertion that they are entitled to recover the attorney fees they incurred in quieting title to the 40-foot strip of land. Assuming for argument's sake that the Scheels' failure to plead such a cause of action in their complaint is not fatal to the damages they now seek, their claim still fails because they cannot establish each of the elements of a slander of title cause of action.

The elements of such a claim are as follows: "(1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss." (Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1051.) The publication element requires a communication to a third party. (Southcott v. Pioneer Title Co. (1962) 203 Cal.App.2d 673, 676.) Thus, John P. Henderson's letter to Norman Scheel claiming an easement interest in the disputed land does not suffice. (Ibid.) Moreover, the allegations set forth in the Hendersons' pleadings are absolutely privileged. (Civ. Code, § 47, subd. (b); Albertson v. Raboff (1956) 46 Cal.2d 375, 381.) Because the Scheels have failed to establish any tort from which their alleged damages flow, they likewise have failed to establish any entitlement to attorney fees. Moreover, insofar as the purported disparaging communications either were not published to third parties or were privileged, we question whether any doubt was cast upon the Scheels' title and whether the attorney fees sought were necessarily or reasonably incurred in the first instance. (See Rest.2d Torts, § 633.)

The trial court did not err in declining to award the Scheels their attorney fees.

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

We concur: RAYE , P. J. MURRAY , J.


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