Diffenderfer v. Kroll

Filed 1/29/07 Diffenderfer v. Kroll CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Calaveras)

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Gary Alan Kroll, as trustee of the Kroll Family Revocable Trust (Kroll), appeals from a judgment in favor of plaintiffs Diane E. Diffenderfer and Karen D. Busch denying his claim for a prescriptive easement across their land and quieting title in plaintiffs favor.

Kroll disputes on appeal the trial courts express finding that there was insufficient evidence to establish a prescriptive easement. We affirm the judgment.

Facts and Proceedings

Diane Diffenderfer and her sister Karen Busch own several contiguous parcels (hereafter the Diffenderfer property) in Calaveras County.

As relevant here, the Diffenderfer property borders what is now Krolls land on two sides, to the south and east. To the west of the Diffenderfer property is a lot owned by Eloise Fischer, which lies between the Diffenderfer property and Hawver Road.

A deeded easement permits the owners of the Diffenderfer property to use an existing road easement that originates on their land to cross the Fischer lot to access Hawver Road. At issue here is whether Kroll has a right to use that portion of the existing road easement onto the Diffenderfers land that runs roughly east/west, parallel to Krolls southern boundary, to reach Fischers lot and, from there, Hawver Road.

Former Owners

Diffenderfers parents acquired the property in 1965, but sold it in 1991 to Jerry Ray. Jerry Rays interest in the property was subject to a deed of trust.

Shortly after he purchased the property, Jerry Ray purchased and recorded an easement in favor of what is now the Diffenderfer property across the Fischer lot for access to Hawver Road. Diffenderfer paid half the cost of the easement. At that time, Jerry Rays father, Maurice, owned what is now Krolls property. Jerry Ray deeded an easement to Maurice in 1999, so Maurice could travel over the Diffenderfer property and use Jerry Rays easement over the Fischer lot to reach Hawver Road. The holder of Jerry Rays deed of trust did not consent to the grant of an easement to Maurice.

In 2000, Jerry Ray lost the property to foreclosure and Diffenderfer reacquired it.

The Current Dispute

Kroll purchased his property from Maurice Ray in 2003. The real estate agent who facilitated the sale told Kroll his only legal access to the property was over a deeded easement to the south, on Lorinda Lane.

Shortly after Kroll purchased the property, Diane Diffenderfer gave Kroll temporary permission to use the easement road over her property to clean up the garbage that was left on his land. But when Kroll sought a general easement from Diane Diffenderfer over her property to Hawver Road, she refused. Kroll installed a gate on a portion of the Diffenderfer property he believed Diane Diffenderfer had agreed to sell him; he brought a small claims action against Diane Diffenderfer after someone knocked down the gate.

Diffenderfer responded by bringing this action to, among other things, quiet title to the easement road on her property, and to enjoin Kroll from trespassing or locking the gate across it. Krolls small claims action was dismissed without prejudice.

At trial, Kroll relied on two theories to support his claim of a right to use the easement road across the Diffenderfer property.

First, he testified his property enjoys an express easement by virtue of the easement deeded by Jerry Ray (Diffenderfers predecessor) to Maurice Ray (Krolls predecessor). The trial court rejected Krolls claim to an express easement, ruling that the easement granted by Jerry Ray to Maurice Ray was extinguished when Jerry Rays deed of trust was foreclosed upon. Kroll does not challenge this ruling on appeal.

Second, Kroll asserted he possesses a prescriptive easement over the Diffenderfer property to Hawver Road because [i]t was in use continuously for probably over 40 years. He relies on the testimony of two witnesses to support his prescriptive easement claim.

Eloise Fischer testified she has owned a half interest in the Fischer lot since the 1970s. Although Fisher testified she never gave Kroll or his predecessors any right to use the road easement to cross her land, she was aware that, between 1970 and 1992, unnamed people would sometimes trespass on her property without permission, and travel across her property on the road to cut Christmas trees and so forth on the property or to go onto our property and drive around on it and run motorcycles off of it and all of that kind of thing, just regular kind of nuisance-type thing. After she granted the easement to Jerry Ray, trespassing over the road diminished because he put in a gate, although it still somewhat did present a problem.

Jerry Ray testified that, while he owned the Diffenderfer property, trespassers sometimes used the road easement. In fact, he had a lot of trouble keeping people out of the road easement and guys . . . on motorcycles would pretty much continually use both the road easement and Lorinda Lane to gain access to the property. Ray also testified trespassers would try to sneak in on a bottom road (described at trial as jeep trail) to hunt[] wild boar and it was almost a full-time job trying to keep people out.

The court rejected Krolls claim of prescriptive easement, ruling that [t]o establish a prescriptive easement defendant has the burden of proving use of the road for five years, which use has been open and notorious, continuous and uninterrupted, hostile to the true owner, and under a claim of right. Defendant has owned his property since 2003 and has not used the road for the statutory period of five years. Defendant seeks to tack evidence of prior use to sustain his claim of a prescriptive easement. [] There is insufficient evidence of continuous and uninterrupted use. Occasional passage does not constitute notice of an adverse claim. Evidence is also lacking to show that use of the road was under any claim of right or a claim of right to use the road to access the property now owned by defendant.

Judgment was entered quieting title in favor of plaintiffs.

Discussion

Krolls sole challenge is to the trial courts rejection of his claim to a prescriptive easement, contending the court erred in finding there was insufficient evidence of continuous and uninterrupted use of the easement road because the un-controverted evidence was clearly that there was ongoing, adverse, continuous use of the disputed easement road, for more than 30 years.

Where, as here, the trial courts findings of fact are challenged on a civil appeal, we are bound by the elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, to support the findings below. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053; see Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. (Bowers, supra, at p. 874, italics omitted.)

Indeed, [w]here the trial court or jury has drawn reasonable inferences from the evidence, we have no power to draw different inferences, even though different inferences may also be reasonable. . . . [Citation.] (Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449.)

A prescriptive easement exists when a claimant can establish use of the property for the statutory period of five years. During that period, the claimants use must be (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under a claim of right. (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570; Beyer v. Tahoe Sands Resort (2005) 129 Cal.App.4th 1458, 1470, fn. l4.) These elements are designed to insure that the owner of the real property which is being encroached upon has actual or constructive notice of the adverse use and to provide sufficient time to take necessary action to prevent that adverse use from ripening into a prescriptive easement. (Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 431, limited on other grounds in Douglas v. Ostermeier (1991) 1 Cal.App.4th 729, 745, fn. 1.) Whether the elements of prescriptive use have been established is ordinarily a question of fact, reviewed under the substantial evidence standard. (Aaron v. Dunham (2006) 137 Cal.App.4th 1244, 1249-1250; Felgenhauer v. Soni, supra, 121 Cal.App.4th at p. 450.)

Here, the trial court did not err in concluding that Kroll failed to establish a prescriptive easement.

Kroll purchased the property in 2003; he cannot establish adverse use of the road easement for the statutory five-year period. Nor could he establish the prior owner of his property made any adverse use of the property: Maurice Rays use of the easement was permissive, and therefore could not ripen into a prescriptive easement.

To overcome his inability to establish directly a sufficient period of adverse use, Kroll asserts that various trespassers use of the easement road in the years before he owned the property establishes a prescriptive easement in his favor.

It does not. Public use of an easement may lead to a public easement by prescription, or implied public dedication, such as may occur when a city constructs a public street on private land. (See 6 Miller & Starr, Cal. Real Estate (3d ed. 2000) 15:31, p. 15-117; see also, Henshaw v. Long Valley Road Assn. (2004) 116 Cal.App.4th 471, 477-483.) But where the individual adjacent landowner cannot meet the statutory criteria for a prescriptive easement, general use by the public does not establish prescriptive use in his favor of the individual; rather, his claim of right . . . must be based on his individual use rather than use as a member of the public. (Applegate v. Ota (1983) 146 Cal.App.3d 702, 710 [general use of the vacant lot by the public over more than 20 years does not establish individuals claim], citing O'Banion v. Borba (1948) 32 Cal.2d 145, 151.)

Moreover, Kroll is not entitled to claim a prescriptive easement because some members of the public have trespassed on the easement over the years for recreational purposes. To encourage private landowners of open land to allow entry for recreational purposes--such as those established by the testimony here--the Legislature has limited the circumstances in which such recreational public use may create a public prescriptive easement. Expressly finding that [o]wners of private real property are confronted with the threat of loss of rights in their property if they allow or continue to allow members of the public to use, enjoy or pass over their property for recreational purposes (Civ. Code, 1009, subd. (a)(2)), the Legislature enacted in Civil Code section 1009, which provides in part that no use of such property by the public after the effective date of this section shall ever ripen to confer upon the public . . . a vested right to continue to make such use permanently, in the absence of an express written irrevocable offer of dedication of such property to such use, made by the owner . . . . (Id., subd. (b); see Stats. 1971, ch. 941, 2, p. 1846; see also Henshaw v. Long Valley Road Assn., supra, 116 Cal.App.4th at pp. 484-485.)

There was no error.

Disposition

The judgment is affirmed. Plaintiffs shall recover their costs on appeal. (Cal. Rules of Court, rule 8.276(a)(1).)

HULL, J.

We concur:

SIMS , Acting P.J.

ROBIE , J.

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