Escove v. Mertz

Filed 3/27/07 Escove v. Mertz 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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In this boundary dispute between neighbors, the trial court granted Dale and Gloria Mertz a prescriptive easement over and across a 100 foot-wide swath of adjacent property owned by Joseph and Frank Escove for the use of the water pump, gardening, maintenance of animals, maintenance of a boundary fence and leisure and recreational activities relating to the residential use of the Mertzes land.

The Escoves appeal, arguing that by allowing the Mertzes to maintain a boundary fence, the trial court effectively granted the Mertzes an unlawful exclusive prescriptive easement. We agree and shall order the judgment amended to eliminate any reference to a boundary fence.

BACKGROUND

Brothers Joseph and Frank Escove (the Escoves) have owned the subject parcel in Shasta County since 1977.

To the west of the Escoves property lies a parcel owned by Dale Mertz and his wife Gloria (the Mertzes). The Mertzes bought their land in 1985. A house and an outhouse stand toward the center of the property; on the eastern half of the property -- closest to the border with the Escoves -- lies a water system (including a holding tank, pressure tank, and pump), an irrigation channel called the Williamson ditch, and a rose garden. Dale Mertzs elderly father lived on the property until 1990 or 1991; his daughter lived there about ten years, and thereafter the Mertzes rented the house to tenants.

In 1996, the Escoves ordered a survey of their property, in anticipation of preparing a timber harvest plan. They discovered that the boundary between their property and the Mertzes actually lies more than 100 feet to the west: the true boundary places the house on Mertzes property mere inches from the true property line and places the entire eastern half of the lot -- which includes the Mertzes water system, the Williamson ditch, and the garden -- completely on the Escoves side of the boundary.

Soon thereafter, the Escoves recorded a consent to use form concerning the property but, according to Frank Escove, they took no other action because the Mertzes werent utilizing that land at that time. Joseph Escove also testified at trial that the disputed portion of the land was not being used in 1997.

Around 2002, after Frank Escove saw the Mertzes tenant crossing the survey line onto the Escoves property, he contacted Dale Mertz and asked him to tell the tenant to keep to the Mertzes land. Shortly thereafter, Frank Escove took a crew onto the property and cleared out brush and dead trees. A few days later, he saw a new fence had been erected on what he believed was his property, so he took it down.

The Escoves filed an action against the Mertzes seeking damages, an order that the Mertzes remove all personal property from the Escoves land, and an injunction prohibiting them from trespassing there.

The Mertzes cross-complained for declaratory relief, asserting that they have obtained title to the disputed land by adverse possession. At trial, the Mertzes were also permitted to assert that they had gained an exclusive right to use the disputed property through perfection of a prescriptive easement.

Frank Escove introduced photographs of the property that showed overgrowth and corral or fencing or dog fencing on the disputed property that was not maintained, and basically just falling down. He described what had been a dog kennel as falling apart.

Gloria Mertz testified her family and tenants used the disputed property for a front yard, it was the front yard of the house. Everybody who lived there during that time used it as a front yard, just like anybody would use a front yard, [and] had their pets or chickens.

In their closing trial brief, the Mertzes asserted that the disputed property had historically been enclosed by a fence and the fact of the existence of a fence enclosure for 35 years demonstrates that the Mertzes and their predecessors in interest have used the property exclusively for more than 35 years.

The trial court ruled that the Escoves had established the correct location of the boundary line between the two parcels.

It also found that the Mertzes had not established an interest in the property by adverse possession, but found they did prove the existence of a prescriptive easement. The court granted the Mertzes and their successors an easement over and across the Escoves property for the use of the water pump, gardening, maintenance of animals, maintenance of a boundary fence and leisure and recreational activities relating to the residential use of the Mertzes property.

DISCUSSION

The Escoves complain on appeal that by allowing the Mertzes to maintain a boundary fence, the court effectively dispossessed the Escoves of a portion of their property and granted the Mertzes an illegal exclusive prescriptive easement. The Mertzes retort that California law does not prohibit all exclusive prescriptive easements and, in any event, the judgment does not run afoul of any rule against exclusive prescriptive easements because it grants them neither an express right to enclose the easement with a fence nor a right to exclude the Escoves.

This court has held that an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using the land [citation], will not be granted in a case . . . involving a garden-variety residential boundary encroachment. (Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1093; see also Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182, 1187 [[t]o escape the tax requirement for adverse possession, some claimants who have exercised what amounts to possessory rights over parts of neighboring parcels, have claimed a prescriptive easement. Courts uniformly have rejected the claim].)

In Raab v. Casper (1975) 51 Cal.App.3d 866 -- this court reversed the trial courts judgment and held that defendants whose yard and landscaping had been built on the plaintiffs land could not acquire a prescriptive easement to maintain a fence and part of their yard on the plaintiffs property. (Id. at pp. 876-878; see Harrison v. Welch, supra, 116 Cal.App.4th at pp. 1090-1091.) Explaining the difference between a prescriptive use of land culminating in an easement (i.e., an incorporeal interest) and adverse possession which creates a change in title or ownership (i.e., a corporeal interest); the former deals with the use of land, the other with possession (Raab v. Casper, supra, 51 Cal.App.3d at p. 876), we wrote: An exclusive interest labeled easement may be so comprehensive as to supply the equivalent of an estate, i.e., ownership. In determining whether a conveyance creates an easement or estate, it is important to observe the extent to which the conveyance limits the uses available to the grantor; an estate entitles the owner to the exclusive occupation of a portion of the earths surface. . . . [] In this case defendants had installed on plaintiffs side of the common boundary not only utility lines and part of the driveway to their home, but also part of their yard and landscaping. The judgment declares that defendants are entitled to an easement for roadway and utility lines together with an easement for the maintenance of lawn, fences, shrubs, fruit trees, and landscaping around the CASPER house . . . . Although adroitly phrased to avoid the language of a grant of title, the last-quoted clause was undoubtedly designed to give defendants unlimited use of the yard around their home. . . . [Defendants] doubtless did not intend to own a house on one side of the boundary with an unmarketable yard on the other. The findings and judgment were designed to exclude plaintiffs from defendants domestic establishment, employing the nomenclature of easement but designed to create the practical equivalent of an estate. [] Achievement of that objective required proof and findings of the elements of adverse possession, not prescriptive use (id. at pp. 876-877).

Of course, as the Mertzes correctly note, an exclusive prescriptive easement was permitted in Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041. In that case, the trial court granted the plaintiff (Otay) an exclusive prescriptive easement to maintain a reservoir that had been maintained on part of the defendants property for more than 20 years. (Id. at pp. 1044-1045.) On appeal, Beckwith argued that a prescriptive easement cannot, by definition be exclusive (id. at p. 1047), the appellate court disagreed, noting that while an exclusive easement is an unusual interest in land [citation], where, as here, the use during the statutory period was exclusive, a court may properly determine the future use of the prescriptive easement may continue to be exclusive. (Ibid.) The court explained that an exclusive easement was particularly justified on this record where Otay submitted uncontested evidence showing Beckwiths proposed recreational use would unreasonably interfere with Otays right to continue operating a reservoir. Otay established its exclusive use is necessary to prevent potential contamination of the water supply and for other health and safety purposes. (Id. at pp. 1047-1048.)

But the reasoning which permitted an exclusive prescriptive easement to be granted in Otay Water Dist. has been rejected in disputes between residential neighbors. In Silacci v. Abramson (1996) 45 Cal.App.4th 558, the appellate court reversed a judgment of the trial court granting the Abramsons an exclusive prescriptive easement over 1,600 square feet of the Silaccis property, which the Abramsons had fenced in and used as a backyard. (Id. at p. 560.) Finding guidance in our opinion in Raab, the appellate court distinguished the Otay Water Dist. case, explaining that it must be limited to its difficult and peculiar facts. A public water companys right to keep drinking water safe from contamination must be given precedence. An exclusive prescriptive easement is, nonetheless, a very unusual interest in land. The notion of an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using his land, has no application to a simple backyard dispute like this one. An easement, after all, is merely the right to use the land of another for a specific purpose--most often, the right to cross the land of another. An easement acquired by prescription is one acquired by adverse use for a certain period. An easement, however, is not an ownership interest, and certainly does not amount to a fee simple estate. To permit Abramson to acquire possession of Silaccis land, and to call the acquisition an exclusive prescriptive easement, perverts the classical distinction in real property law between ownership and use. The trial courts order here amounted to giving Silaccis land completely, without reservation, to Abramson. This the court did, using the term exclusive prescriptive easement, an unusual doctrine which does not apply. (Silacci, at p. 564.)

Likewise, in Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, yet another appellate court relied on Rabb to reverse the trial courts grant of a prescriptive easement for landscaping and recreation purposes, this time over a 10-foot-wide strip of the defendants property that had been fenced as part of the plaintiffs property. (Mehdizadeh, at p. 1296.) The prescriptive easement granted by the trial court . . . would divest the Mincers of nearly all rights that owners customarily have in residential property. A fence will bar the Mincers access to the property, and they cannot build on, cultivate, or otherwise use it. Mehdizadeh cannot build on it either, but otherwise his right to use looks more like occupancy, possession, and ownership. (Id. at pp. 1305-1307 [distinguishing Otay Water Dist. case as involving a public health [and] safety basis for granting an exclusive [prescriptive] easement].)

The evidence at trial established that the Mertzes had a home on their property, but no evidence established the use to which the Escoves put their land. However, we agree with the courts in Silacci v. Abramson and Mehdizadeh v. Mincer that an exclusive prescriptive easement has been allowed only under the peculiar facts of the Otay Water Dist. case, in which [a] public water companys right to keep drinking water safe from contamination was at issue. (Silacci v. Abramson, supra, 45 Cal.App.4th at p. 564; see Mehdizadeh v. Mincer, supra, 46 Cal.App.4th at p. 1307.) This case -- which involves neither a public entity nor public safety considerations -- is more analogous to the residential boundary encroachment cases, in which exclusive prescriptive easements are not allowed. (See Harrison v. Welch, supra, 116 Cal.App.4th at p. 1093.) We therefore reject the Mertzes attempt on appeal to analogize this dispute to the Otay Water Dist. case.^[1]

Having determined that an exclusive prescriptive easement is impermissible in this context, we turn to whether the judgment grants such an easement. In so doing, we begin with perhaps the most fundamental rule of appellate review -- that a judgment is presumed correct, all intendments and presumptions are indulged in its favor, and ambiguities are resolved in favor of affirmance. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631.) The meaning and effect of a judgment are determined according to the rules governing the interpretation of writings generally. If a judgment is ambiguous, we may examine the entire record to determine its scope and effect. (Southern Pacific Pipe Lines, Inc. v. State Bd. of Equalization (1993) 14 Cal.App.4th 42, 49.)

The judgment grants the Mertzes the right to maintain a boundary fence. We agree with the Escoves that according to the evidence at trial, the historic fence line was indicated by a few old rotten posts and some barbed wire on the putative eastern and southern boundary with the Escoves property; that the fence was not maintained, and its dilapidated condition allowed the Escoves access to the property. Allowing the Mertzes to maintain a fence suggests the court intended to permit them to repair and/or replace the deteriorated existing fencing, thereby creating a more substantial barrier across the Escoves land. The use of the word boundary to describe the kind of fence allowed further indicates the court intended to allow the Mertzes to maintain a barrier between that portion of the Escoves land the Mertzes have been using, and the rest of the Escoves property. Thus, the maintenance of a boundary fence by the Mertzes would effectively, and illegally exclude plaintiffs from defendants domestic establishment (cf. Raab v. Casper, supra, 51 Cal.App.3d at p. 877) and impermissibly allow the Mertzes use to look[] more like occupancy, possession, and ownership (cf. Mehdizadeh v. Mincer, supra, 46 Cal.App.4th at p. 1306). This was error.

DISPOSITION

The judgment shall be amended to strike from it the language maintenance of a boundary fence. As amended, the judgment is affirmed. The Escoves shall recover their costs on appeal. (Cal. Rules of Court, rule 8.276(a)(1).)

ROBIE , J.

We concur:

SIMS , Acting P.J.

NICHOLSON , J.

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^[1] The Mertzes also rely on Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749. There the court declared an equitable easement over a fenced-in area by balancing the hardships; the case does not involve the claim of a prescriptive easement. (Id. at pp. 754-755, 764.)