Banner v. Remon

Filed 5/30/06  Banner v. Remon CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

            APPEAL from a judgment of the Superior Court of Los Angeles County, Lois Anderson Smaltz, Judge.  Affirmed.

            Cohan & Flame and Edward  M. Cohan for Plaintiff and Appellant.

            Malcolm  G. Ellis for Defendants and Respondents.

* * * * * *

            The trial court, sitting without a jury, found that appellant Elvira Banner's driveway encroached one and one-half feet onto respondent Maria Remon's residential lot, and entered judgment enjoining the encroachment.  We affirm.

FACTS

            Appellant and respondent are neighbors.  Appellant, whose address is 3641 West 135th Street in Hawthorne, moved into her house in 1992.  Her driveway, which is the subject of this lawsuit, was in the same place then as it is now, i.e., on the east side of her property.  The driveway is aligned with the curb cut-out, and starts at the end of her house, which is about 30 feet back from the street.

            Respondent moved into her house in 1985.  Respondent's lot, which is rectangular, is 39 feet wide.  There are two houses on her property, one behind the other.  Her street addresses are 3637 and 3637 1/2 West 135th Street.  Respondent lives in the second house, viewed from the street; she rents the other house to a tenant.  Respondent testified that she gets to the street from her house by walking on the west side of her property.  She cannot pass that way without walking on appellant's driveway.  According to respondent, appellant's driveway was in the same place in 1985 as it is now.

            Appellant acknowledges that her driveway extends one and one-half to two feet onto respondent's lot.

            Appellant resurfaced her driveway in 1998.^[1]  When the work was almost done, respondent's son^[2] told appellant that he wished he had known in advance that she was resurfacing the driveway, since the driveway was on respondent's property.

            In 2003, respondent started to erect a cement wall on the west side of her property and for that purpose put a post one and one-half feet into appellant's driveway; the post is on respondent's property.  Construction of the  was halted when appellant parked a car in the driveway to block further work on the .^[3]  Appellant claims that she is unable to use her driveway, since she needs to pull too far over to avoid the post, and cannot open her car door because of another wall.  The trial court found that it was the wall on appellant's property, erected by appellant, that prevents appellant from opening her car door.

            It appears that the driveways in this neighborhood were all placed incorrectly and encroached on the land of the neighbor placed to the east.  Thus, respondent's driveway encroached on the land of her neighbor to the east.  Respondent resolved this problem by relocating her driveway.

            Appellant filed her action on July 29, 2004.  In her action, appellant claimed that she had a prescriptive easement over respondent's land.  She contended that the cement wall and post installed by respondent in 2003 in the front of her driveway obstructed her use of the driveway.  She sought an order directing respondent to remove the post in the driveway, and a declaration by the court that she had a prescriptive easement over respondent's land, to the extent that her driveway was on respondent's property.

            Respondent answered and filed a cross-complaint in which she sought an order enjoining appellant from trespassing on her land, and an order directing appellant to remove her driveway from respondent's land.

            Appellant and respondent, as well as respondent's son, testified at trial.

            The trial court made a number of findings that are pertinent to this appeal.

            The trial court found that an easement of over one and one-half feet of respondent's property was a significant interference with respondent's use of her property, since her lot is only 39 feet wide.  Appellant's driveway limited respondent's use of her own property to walking over it.  The driveway interfered with the completion of the  that respondent wished, and had the right, to build.  On the other hand, appellant's use of her driveway was limited by a wall on appellant's own property.  In pulling over to avoid the post installed by respondent, appellant could not open her car door because of her own wall, which she could take down or modify.  The trial court also found that there was no evidence that, if appellant lost one and one-half of the breadth of her driveway, the driveway would be unusable or would not conform to code.

            The trial court entered a judgment permanently enjoining appellant from encroaching on respondent's property, and ordered appellant to remove that portion of her driveway, i.e., one and one-half feet thereof, that is on respondent's property.  The court entered judgment for respondent on appellant's action.

DISCUSSION

1.  Respondent's Cross-complaint Is Not Barred by the Statute of Limitations

            Appellant contends that the three-year statute of limitations began to run when the driveway was built because the encroachment was permanent.  Appellant relies on the rule that when the encroachment, or trespass, is permanent, the statute of limitations begins to run on the creation of the trespass.  (Chevron U.S.A. Inc. v. Superior Court (1994) 44 Cal.App.4th 1009, 1014.)

            The dispositive test for determining whether an encroachment is permanent or continuous is whether the encroachment, or trespass, can be abated at any time.  (Chevron U.S.A. Inc. v. Superior Court, supra, 44 Cal.App.4th at p.  1014.)  It is possible to remove one and one-half feet of driveway; thus, the trespass in this case is not permanent.  Moreover, in case of doubt, the plaintiff may elect whether to treat a particular trespass as permanent or continuing.  (Ibid.; see generally 43 Cal.Jur.3d (2003) Limitation of Actions, §  92.)

            In the instance of a continuing encroachment or trespass, the plaintiff may bring successive actions until the trespass is abated.  (Chevron U.S.A. Inc. v. Superior Court, supra, 44 Cal.App.4th at p.  1014.)  Accordingly, the statute of limitations has not run in this case.

            Appellant contends that treating the trespass as continuous allows the neighbors in the affected area to sue each other over one and one-half feet of â€