(Super. Ct. No. 04AS03875)
The opinion of the court was delivered by: Blease , J.
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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 ...