Niaz v. Avedissian

Filed 3/13/07 Niaz v. Avedissian CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from ajudgment of the Superior Court of Los Angeles County. Richard A. Adler, Judge. Reversed.

Bleau Fox and Martin Fox for Defendant and Appellant.

Zakariaie & Zakariaie, Jack M. Zakariaie and Niloufar A. Zakariaie for Plaintiff and Respondent.

* * * * * *

Property owner, Mike Avedissian (Avedissian), appeals the judgment entered after a bench trial granting adjacent property owner, respondent Saeed Hakmat Niaz (Niaz), an equitable easement in his property. We find the trial court abused its discretion in exercising its equitable powers to create the easement and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Avedissian purchased his residential property in 1988. Niaz purchased the property next door in 1998. At the time of both purchases, a 50-foot long cement block wall ran the length of the two lots, appearing to be the boundary. But, in fact, the wall did not follow the legal property line and created a 200 square foot triangular strip on the Niaz side of the block wall that actually belonged to Avedissian. Avedissian had a survey of his lot at the time of his purchase, but Niaz did not have a survey at the time of his purchase and believed the block wall was on the legal boundary of the property.

Niazs property was approximately four feet below street level so that the block wall together with another retaining wall enclosed a private garden area with a fountain and statue in front of his house. Niazs family room and kitchen looked out on the garden. Landscaping ran along the block wall on Niazs side. The sprinkler system and water main for the Niaz property ran through the disputed strip. Niaz paid $565,000 for the property and would have paid $25,000 to $50,000 less had he known that the front garden lay on a disputed parcel that was not legitimately a part of his purchase.

Niaz ordered a survey in 2002 before remodeling his home and discovered the true location of the boundary. On September 26, 2002, he wrote to Avedissian asking that he cooperate in adjusting the property line to conform to the block wall. One year later, Avedissians attorney wrote to Niaz stating that Avedissian intended to destroy the block wall and rebuild it in conformity with the legal boundary. In July 2004, Niaz began remodeling his house. In September 2004, after Avedissians contractors attempted to enter Niazs property to destroy the wall, Niaz wrote to Avedissian asserting a claim to the wall and objecting to its destruction. The next day Avedissian destroyed the block wall from his property and erected a chain link fence along the legal boundary. Niaz unsuccessfully attempted to intervene by seeking a temporary restraining order. After removing the block wall, Avedissian did not use the disputed strip and had no specific intended use for it. After the wall was destroyed and the chain link fence installed, Niaz relocated his water line within his legal boundary in conjunction with updating the plumbing in his house. Niaz also removed the fountain during construction and installed a new one within his legal boundary.

Niazs first amended complaint alleged causes of action for the establishment of a boundary and quiet title, adverse possession, a prescriptive easement and an easement under the agreed boundaries doctrine. Additionally, the first amended complaint prayed for such other and further relief as the court may deem proper.

At the conclusion of a two-day bench trial, Niaz argued for an equitable easement. The court issued a tentative ruling stating that Niaz had failed to prove any of his causes of action but suggesting that equity allowed the imposition of an easement. After additional briefing and argument, the court took the matter under submission and issued a ruling on February 17, 2006 that largely followed the tentative order. Specifically, after weighing and balancing the hardships, interests and injuries of the parties, the court imposed an equitable easement on the triangular strip in favor of Niaz with the following conditions: The easement will terminate when Niaz transfers his property or when he ceases to landscape and maintain the strip. Niaz owed $5,000 for use of the strip. Avedissian owed $7,000 for the destruction of the wall leaving Niaz a net of $2,000 when credited with a $5,000 offset. Niaz was permitted to rebuild the block wall and was ordered to maintain liability insurance for the strip.

Avedissian filed a notice of appeal from the February 17 ruling on March 1, 2006. Judgment was entered on March 28, 2006.

DISCUSSION

I. Contentions on Appeal and Standard of Review

Avedissian contends that the trial court lacked substantial evidence to support the imposition of an equitable easement in favor of Niaz. While we generally agree with the assertion that the trial courts findings of fact must be reviewed under a substantial evidence standard of review, Avedissians principal assignments of error in this appeal do not involve factual disputes. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) Rather, he disagrees with the courts balancing of the parties hardships, arguing in particular that the equitable easement was improperly imposed even though Niaz had not established irreparable injury and the easement effectively precluded his use of his property. We review the trial courts exercise of its equity powers in imposing an equitable easement under the abuse of discretion standard. (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 755 (Hirshfield).) Under that standard, we resolve all evidentiary conflicts in favor of the judgment and determine whether the courts decision falls within the permissible range of options set by the legal criteria. [Citations.] (Id. at p. 771.)

II. Appealability

We consider our jurisdiction in this matter sua sponte. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) The notice of appeal in this case suffers from two deficiencies: it purports to be from a nonappealable order, and it was prematurely filed before the final judgment was entered. Nevertheless, as explained below, we construe the notice so as to save the appeal.

We cannot entertain an appeal taken from a nonappealable judgment or order. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) 2:5, p. 2-2.) This means that appeals generally lie only from final judgments and those orders specifically made appealable by statute. (Id. at 2:20.) Avedissian purports to appeal from the Order made and entered . . . on February 17, 2006. But that order was expressly intended by the court to be a tentative as opposed to final judgment. And while the parties stipulated at the conclusion of trial that the February 17 order would substitute for a statement of decision, an appeal generally will not lie from a statement of decision. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 59(a), pp. 114115.) Nevertheless, it is and has been the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced. (Luz v. Lopes (1960) 55 Cal.2d 54, 59; Cal. Rules of Court, rule 8.100(a)(2).) Although we are provided with neither a copy of the final judgment nor a copy of the register of action to indicate entry of that judgment, the record nevertheless demonstrates that judgment was ultimately entered on March 28, 2006.^[1] We therefore construe the notice of appeal to be from that judgment.

Because the notice of appeal was filed on March 1 before the judgment was entered, it is premature. We rely on California Rules of Court, rule 8.104(e) to deem the premature notice of appeal as filed immediately after entry of judgment.

III.             The Equitable Easement

A. Relative Hardship Doctrine

The trial court applied the so-called relative hardship doctrine to determine whether Niaz had an equitable right to encroach on Avedissians land. That doctrine requires a court to balance the hardships between the parties.^[2] (Hirshfield, supra, 91 Cal.App.4th at pp. 757758.) We agree with the courts choice of doctrine but disagree with its balancing of the hardships.

The relative hardship doctrine was thoroughly explored in Christensen v. Tucker (1952) 114 Cal.App.2d 554 (Christensen). There, a landowner constructed a cement abutment supporting a wire fence with steel posts and portions of a driveway, garage and badminton court on an adjoining landowners property. (Id. at pp. 555556.) The trial court allowed the encroaching landowner to pay damages and secure title to the disputed area. (Id. at p. 555.) The court of appeal reversed, stating that granting title was error and that the most that could have been awarded, if supported by the evidence, was an equitable right of encroachment. (Id. at p. 563) The matter was remanded for further findings after the appellate court explored the relative hardship doctrine. (Id. at p. 565.)

The Christensen court first questioned whether in the case of a trespass or nuisance a trial court has the discretion to allow the encroachment to continue. The court noted that [t]here is substantial authority to the effect that the trial court has no discretion in such cases . . . and must grant the injunction compelling the removal of the encroachment regardless of the fact that the relative hardship and expense to defendants far outweighs the inconvenience to plaintiff caused by the continuance of the encroachments, except where the trespass is so minor as to fall within the rule of de minimus. [Citations.]^[3] (Christensen, supra, 114 Cal.App.2d at p. 559.) Those cases refused any balancing of the hardships, in part, based on the inviolability of property rights. (See, e.g., Bemmerly v. County of Lake (1942) 55 Cal.App.2d 829, 833 [allowing encroachment actually amounts to a right of private eminent domain which our courts have frowned upon]; Morris v. George (1943) 57 Cal.App.2d 665, 680 [[b]oundary lines are still boundary lines].)

Nevertheless, the Christensen court also found substantial support for a rule recognizing a courts discretion to allow such an encroachment if certain conditions are met, namely, (1) that the encroachment was innocent, (2) that it did not irreparably injure the property owner and (3) that the cost of removal would be great compared to the inconvenience caused to the property owner by continuing the encroachment. (Christensen, supra, 114 Cal.App.2d at pp. 559560; Baglione v. Leu (1958) 160 Cal.App.2d 731, 734735.) That is the rule that the court adopted and that has since been widely accepted in California. (Hirshfield, supra, 91 Cal.App.4th at pp. 758759.) But the Christensen court noted that judicial discretion in such cases must be exercised cautiously because the practical effect of such a rule is to give the defendant, a private person . . . what is, in effect, the right of eminent domain by permitting him to occupy property owned by another. (Christensen, supra, at p. 560.) Such a private right can be justified in those cases where expensive structures have been constructed that overhang adjoining property or trespass to a minor degree and where, if the injunction to remove them were granted as of right, the plaintiff would be encouraged to engage in what amounts to legal extortion. (Ibid.) Judicial discretion thus should not be applied where a substantial right of the plaintiff is involved and unless the disproportionate hardship between the plaintiff and defendant is very great . . . . (Id. at p. 562, emphasis added.) Finally, any analysis under the doctrine must begin with the premise that defendant is a wrongdoer, and that plaintiffs property has been occupied. . . . Thus, doubtful cases should be decided in favor of the plaintiff. (Ibid.)

Our point of departure in balancing the hardships between Avedissian and Niaz is the premise that Niaz is a wrongdoer and that unless the balance tips significantly in his favor, the encroachment cannot be continued.

B. Innocent Encroachment

We first ask whether Niazs encroachment was intentional because if it was then Niaz is not entitled to an equitable easement and we need go no further in our analysis. (Morgan v. Veach (1943) 59 Cal.App.2d 682, 690 (Morgan).) The evidence supported the conclusion that Niazs encroachment was not intentional. The block wall was in place when he purchased his property in 1998 and had been there for at least ten years. Niaz testified that he believed the wall correctly marked the boundary, and the parcel he purchased was landscaped and improved as if the triangular strip was legitimately a part of it. Despite having a survey of his property since 1988, Avedissian did not inform Niaz or anyone else that the wall was misplaced, nor did he object to Niazs use of the triangular strip until one year after Niaz discovered the discrepancy himself and informed Avedissian of it.

But our conclusion that Niazs encroachment was not intentional does not end the inquiry into his innocence because Christensen also states that if a defendant is negligent, and such negligence is the sole proximate cause of the encroachment, such defendant should be barred from invoking the doctrine. But where plaintiffs conduct also contributes to the situation, then the trier of the fact is entitled to weigh the hardships each may suffer, and the negligence of one against the other. (Christensen, supra, 114 Cal.App.2d at p. 564.) The facts of this case thus pose the question whether Niazs failure to obtain a survey when he purchased his property constituted the sole proximate cause of the encroachment. Neither the law nor the evidence supports that conclusion.

In Kershishian v. Johnson (1911) 210 Mass. 135, 137138, 96 N.E. 56, relied upon in Christensen, supra, 114 Cal.App.2d at page 564, the court found a builder negligent for failing to obtain a survey before building a cottage that encroached on his neighbors property. But the builder there had some cause to know that the property line was not properly delineated by a fence such that his construction of the encroachment was not in good faith. The same does not pertain here. To the contrary, Niaz had no cause to doubt that the block wall followed the actual property line.

Moreover, the evidence tends to show that Avedissian may have participated, albeit innocently, in the mistaken belief that the block wall was properly placed. The trial court made no conclusive finding on this point, stating only that Defendant may have known the Block Wall did not properly mark the boundary. . . . [emphasis added]. That the court was not more definitive in its finding is supported by the evidence which established only that Avedissian had a survey of the property in 1988 when he purchased his parcel but did not establish that he understood the survey was at variance with the existing brick wall. That point was pursued unsuccessfully during the cross-examination of Avedissian: Q: Did the survey indicate to you, that 1988 survey, disclose to you that the separating block was not on the legal boundary? A: No. I dont know about it. I dont know. I dont understand.

On this record, we cannot say that Niazs failure to verify the parameters of his parcel upon purchasing it was the sole proximate cause of his encroachment on Avedissians property. Thus, Niaz was not precluded from application of the relative hardship doctrine. As it was never established that either party actually knew the location of the block wall was not on the property line, we conclude that the relative negligence of the parties is inconclusive.

C. Irreparable Injury to Avedissian

We next ask whether Avedissian was irreparably injured by Niazs encroachment, for if he was then Niaz must remove the encroachment without a balancing of the relative hardships. (Brown Derby Hollywood Corp. v. Hatton (1964)61 Cal.2d 855, 858 [When the court finds, however, that there is such [irreparable] injury . . . it should grant an injunction].)^[4] Irreparable injury for the purposes of the doctrine has been found, for example, where an overhanging building prevented the correction of an adjacent building that had bulged and leaned due to an unknown cause. (Pahl v. Ribero (1961) 193 Cal.App.2d 154, 164; see also Kafka v. Bozio (1923) 191 Cal. 746.)

The evidence here did not show that Avedissian was irreparably harmed by the placement of the wall or the deprivation of use of the triangular strip. While it is true that the wall and Niazs use of the strip deprived Avedissian of the use of his property, the evidence showed that once the block wall was removed he still made no specific use of the property and had no plans for its use. As the trial court found, [i]n fact, after Plaintiff notified Defendant of the controversy in September of 2002 and asked for his cooperation, Defendant took over one year to respond. Therefore, Defendants conduct . . . indicates only a marginal interest in the Triangular Strip. That finding was supported by the documentary evidence which demonstrated that Avedissian waited a full year before denying Niazs request to conform the legal boundary. Having lived with the encroaching wall and without use of the triangular strip for 15 years before raising any objection, having waited another year before removing the wall and then having made no use of the property, any contention that Avedissian was irreparably injured by the encroachment is contrary to the evidence.

But, this is not to say that Avedissian was not harmed by the encroachment or that his injury is not entitled to consideration in balancing the parties relative hardships. An owner does not lose rights to his property merely by allowing it to lie idle. (Felsenthal v. Warring (1919) 40 Cal.App. 119, 131.)^[5] That is particularly so in a case such as this where the owner may well have been under the same misimpression as to the correct boundary as was the encroacher. We will not penalize an owner who did not utilize land he did not know that he owned. Nor is it fair to give much, if any, weight to his failure to have formulated a specific use for the property while litigation was pending over his right to control it.

D. Inconvenience Versus Cost of Removal

Having concluded that Avedissians injury is not irreparable, we undertake to balance the parties hardships. In doing so, we bear in mind that the history of the doctrine requires that the encroachers hardship must be very great and, even then, the encroachment will be allowed only if it is minor. (Christensen, supra, 114 Cal.App.2d at p. 562.) Thus, in Ukhtomski v. Tioga Mutual Water Co.(1936) 12 Cal.App.2d 726, 727728 a $7,000 concrete reservoir with necessary outlets and pipe lines that was the sole water supply for 500 residents was allowed to encroach on fifteen-hundredths of an acre of a three acre parcel. Similarly, the court in Blackfield v. Thomas Allec Corp. (1932) 128 Cal.App. 348, 349350 allowed a portion of a 122-foot long, 8-inch thick, 40-foot high wall to continue overhanging an adjoining parcel by three and five-eighths inches.

In the case primarily relied upon by the trial court to establish the equitable easement in this case, the hardship of removing the encroachments was much greater than that demonstrated by Niaz. In Hirshfield, supra, 91 Cal.App.4th 749,a chain link fence incorrectly delineated the boundary between two residential parcels. Both the Hirshfields and the Schwartzes believed that the fence accurately depicted the legal boundary between their properties. The Schwartzes made numerous improvements to their parcel based on that belief. They extended the fence and added waterfalls, a pond, a stone deck, a putting green and a sand trap. They also built a reinforced concrete wall for safety after a car careened through their yard. (Ibid.)

A survey later revealed that two sections of land used by the Schwartzes were in fact the Hirshfields property and one section of land used by the Hirshfields in fact belonged to the Schwartzes. The Schwartzes reinforced concrete wall, extensive underground water and electrical lines and several motors that ran the waterfalls and the swimming pool recirculation, including a large motor installed underground in a concrete and iron enclosure, encroached on the Hirshfields parcels. The trial court found that the cost of dismantling the encroachments would be significant. (Hirshfield, supra, 91 Cal.App.4th at p. 757.) After a trial, the court awarded the Schwartzes an equitable easement in the Hirshfields property and ordered them to pay for its use. (Id. at p. 772.)

In contrast, the hardship to Niaz of returning the triangular strip to Avedissian was not significant. The trial court described that hardship as follows: Plaintiff derives a certain aesthetic value from the view of his garden and the loss of the Triangular Strip effects the nature and size of the garden area as well as the fair market value of Plaintiffs residence. Additionally, the loss of the Block Wall deprives Plaintiff of privacy and, instead, plaintiff is presented with a view of a less attractive chain link fence.

We begin our consideration of Niazs hardships with the well-established principle that California landowners generally do not have a right to a particular view. (Wolford v. Thomas (1987) 190 Cal.App.3d 347, 358; Noronha v. Stewart (1988) 199 Cal.App.3d 485.) Moreover, we note that while the chain link fence may have been unattractive, Niaz could certainly have enhanced its appearance with landscaping on his side of the fence. Additionally, while the placement of the fence along the legal boundary diminished the size of Niazs garden, it did not eliminate it entirely. Indeed, Niazs testimony that he relocated the fountain to comport with his legal boundary indicates that he was able to keep at least some of the elements that gave his original garden its european [sic] warm charm. In light of the prevailing case law and this record, the trial court lent too much weight to the value of aesthetic components in its balancing of the hardships.

Nor do we agree with the trial courts apparent conclusion that Niazs loss of privacy by virtue of the destruction of the fence was entitled to significant weight. The privacy about which Niaz was complaining was between his property and Avedissians. But the evidence indicated that Avedissian had a row of trees on his property that at least partially obscured the view between the two parcels and offered some privacy. And Niaz, of course, had the option of planting more foliage on his property to provide additional privacy.

The only other factor that the trial court considered was the impact of the triangular strip on the fair market value of Niazs property. We recognize Niazs testimony that he would have paid $25,000 to $50,000 less than the actual purchase price had he known the wall improperly delineated his property line. But the fair market value of an encroachers property will almost invariably increase with the increase in square footage represented by the encroachment and will invariably diminish by the discontinuation of the encroachment. Likewise, the fair market value of the owners property will generally increase and decrease according to the award or denial of an equitable easement. Therefore, the fair market value of the encroaching strip itself is of little utility in balancing the hardships between the parties. Something more must be demonstrated such as a significant cost to the trespasser to remove the encroachment. Niaz made no such demonstration. He testified that his moving of his water main was based partially on his need to update his plumbing in addition to his desire to move it within the legal boundary. Likewise, his loss of vegetation was due as much to his discontinued watering to accommodate his construction project as to Avedissians destruction of the wall. Finally, the fact that he lost the use of some of his sprinklers is not analogous to the hardships required by the controlling cases, as already discussed.

Despite the fact that his trespass was innocent and loss of the triangular strip impacted the attractiveness of his property, Niaz did not demonstrate the type of significant hardship required for the award of an equitable easement.

DISPOSITION

The judgment is reversed. Appellant is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, Acting P. J.

DOI TODD

We concur:

_____________________, J.

ASHMANN-GERST

_____________________, J.

CHAVEZ

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1] Counsel are admonished that the rules require a copy of the judgment and register of action to be included in the appellate record. (Cal. Rules of Court, rules 8.120(b)(1)(B) & (F) and 8.124(b)(1)(A).)

^[2] Various terms are used to describe the same analytic framework, e.g., balancing of equities, balancing conveniences, comparative injury. (Hirshfield, supra, 91 Cal.App.4th at p. 754, fn.1.)

^[3] The Christensen case, as is typical in these matters, was postured as a request for a mandatory injunction to force removal of the encroachments. (Christensen, supra, 114 Cal.App.2d at p. 555.) The fact that Niaz rather than Avedissian initiated this suit does not change the analysis. As such, in our discussion of the pertinent cases, the plaintiffs interests are generally aligned with Avedissians and the defendant is generally aligned with Niaz.

^[4] We disagree with Avedissians argument that Niaz was required to show that as the encroacher he would have been irreparably injured by discontinuation of the encroachment. Contrary to Avedissians contention, Hirshfield does not require that showing. (Hirshfield, supra, 91 Cal.App.4th at pp. 759761.)

^[5] The obvious distinction between injury and damagea distinction not always observed when dealing with the question before usis emphasized by Mr. Wood, who, speaking of a mans right of dominion over his property and the jealous care with which the courts have ever guarded this sacred right, says: Whatever invades this right is a legal injury, whether damages ensue or not. [Citations.] (Felsenthal v. Warring, supra, 40 Cal.App. at p. 130.)