Roberts v. Ross

Filed 6/25/08 Roberts v. Ross CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Kevin A. Enright, Judge. Affirmed.

Defendants Brandon and Allison Ross built a fence to surround their residential property, but placed it partially on an access easement that plaintiff Norman Roberts owns, and partially on a contiguous public right-of-way. The Rosses have no legal or equitable interest in Roberts's easement, yet they refused his request that they remove the encroachment. They now contend the trial court erred by granting him summary judgment on his action against them for quiet title, trespass, ejectment, nuisance and declaratory and injunctive relief. The Rosses challenge the court's ruling on all counts but the quiet title count, and challenge evidentiary rulings and an item in the cost award. We affirm the judgment.

BACKGROUND

In 1973 Roberts purchased a home in La Jolla, California. Roberts's property is landlocked, and his grant deed provides him an "easement and right of way for ingress and egress for road purposes over a 20 foot [wide] strip of land" (capitalization omitted), which is accessed from Hidden Valley Road. The easement runs generally east to west, and is over the northern edge of five neighboring parcels. When the easement was originally granted in 1943, the members of one family owned all the property.

In 2003 the Rosses purchased a home on Hidden Valley Place, at the corner of Hidden Valley Road. Their backyard faces the south and abuts the northern edge of Roberts's easement. In the spring of 2005 the Rosses constructed a six-foot high white vinyl fence, and it is undisputed that part of the fence encroaches on Roberts's easement, and concomitantly on the servient estate of the underlying property owner, The Paul Trust, and part of the fence encroaches on the public right-of-way for Hidden Valley Road, which was dedicated to the City of San Diego in 1945.

The easement has a one-lane paved road and the Rosses placed their fence on the edge of the pavement, which encroaches on the easement approximately eight feet and narrows it to approximately 12 feet. The fence also encroaches approximately eight feet on the public right-of-way for Hidden Valley Road.

Roberts asked the Rosses to remove the encroachment but they refused.

In August 2005 Roberts sued the Rosses to quiet title, and for declaratory and injunctive relief, ejectment, nuisance and trespass. In September 2006 Roberts moved for summary judgment, or alternatively, summary adjudication. The Rosses' defense was that Roberts used only a portion of the 20-foot wide easement for a one-lane road, and he had abandoned the portion of the easement on which the fence was built through nonuse. The court granted Roberts's summary judgment motion, finding he adduced evidence to support each of the complaint's counts and the Rosses did not carry their burden of raising any triable issue of material fact.

The court entered judgment for Roberts in February 2007, which directed the Rosses to remove the fence to the extent it encroaches on the easement and the public right-of-way, and permanently enjoined them from constructing any such encroachment. The court awarded Roberts costs, including $1,585 for the preparation of a plat map.

DISCUSSION

I

Standard of Review

A "party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he [or she] is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant satisfies this burden by showing " 'one or more elements of the 'cause of action' . . . 'cannot be established,' or that 'there is a complete defense' " to that cause of action. (Ibid.) If the defendant meets his or her burden of persuasion, the plaintiff "is then subjected to a burden of production . . . to make a prima facie showing of the existence of a triable issue of material fact." (Ibid.)

We review the trial court's summary judgment ruling de novo. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)

II

Complaint Counts

In their opening brief, the Rosses state they do not appeal the trial court's ruling on the complaint's quiet title count. A quiet title action "is available to establish any kind of title or interest, legal or equitable, in real or personal property." (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading,  613, p. 77; Code Civ. Proc.,  760.010 et seq.) A quiet title action is appropriate when the plaintiff's right to an easement is clear, and declaratory and injunctive relief is available in such an action. (Baugh v. Garl (2006) 137 Cal.App.4th 737, 741; Code Civ. Proc.,  1060.) The judgment provides that the "Rosses have no legal or equitable right, title, estate, lien, or interest in or to the [e]asement," and the "title to the [e]asement is hereby quieted in Roberts and his successors in interest, free and clear of any legal or equitable claims of the Rosses, including . . . any claim to maintain a fence therein."

The Rosses challenge the court's rulings on the remaining counts for trespass, ejectment, nuisance, and declaratory and injunctive relief. Roberts contends the Rosses cannot show any prejudice as they concede the quiet title ruling was proper. As Roberts points out, there "is nothing in the relief granted in the final judgment that is unique to, or wholly dependent upon, these alternative theories of liability." For instance, the "modern quiet title and ejectment actions overlap." (5 Witkin, Cal. Procedure, supra, Pleading,  614, p. 78.)

We agree that the quiet title ruling and relief thereunder are inseparable from the rulings on the other counts. That does not mean, however, that the appeal is subject to dismissal. "The well recognized rule is that there may be an appeal from a part of a judgment only if that part is severable. [Citations.] Where portions of a judgment are truly severable, the appellate court is without jurisdiction to consider the parts from which no appeal has been taken. [Citations.] And the appellate court will consider the portion before it independently of the other parts. [Citation.] Modification or reversal of the portion of the judgment from which the appeal has been taken has no effect upon the other portions." (American Enterprise, Inc. v. Van Winkle (1952) 39 Cal.2d 210, 216.)

"In some states, when an appeal is taken from a portion of a judgment which cannot be separated from the remainder of it, the court will decline to hear the appeal and will dismiss it. [Citations.] However, in California, such an appeal brings before the reviewing court all of the nonseverable portions." (American Enterprise, Inc. v. Van Winkle, supra, 39 Cal.2d at p. 217; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007)  2:318, p. 2-146.13.) Accordingly, the Rosses' silence on the merits of the quiet title ruling does not preclude their appeal.

A

Trespass and Ejectment

1

The Rosses assert that Roberts cannot maintain claims for trespass or ejectment as he has no possessory interest in the underlying servient tenement or possession of the land. The Rosses fault the court for using the word "encroaches" and "incorrectly equat[ing] the existence of an easement with possession of real property."

"Trespass to property is the unlawful interference with its possession. [Citations.] [] The tort may be committed by an act that is intentional, reckless [or] negligent . . . . [Citation.] The only intent required is an intent to enter, regardless of the actor's motivation." (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts,  693, p. 1018.) "There may be trespass by . . . placing something on the land[.]" (Id. at p. 1019.) "When an encroachment actually rests on adjoining land, it constitutes a permanent trespass." (6 Miller & Starr, Cal. Real Estate (3d ed. 2000)  14.9, p. 25 (hereafter Miller & Starr).) "An encroachment is the extension of a building or other structure beyond the boundaries of the land on which it was rightfully constructed onto adjoining land . . . without the permission or consent of the adjoining landowner." (Ibid.)

The Rosses submit that since an easement is deemed a "nonpossessory" right to use another's land (Kazi v. State Farm Fire & Casualty Co. (2001) 24 Cal.4th 871, 881^[1]), an easement holder cannot bring an action for trespass. In this context, however, the term "nonpossessory" pertains to a lack of legal ownership of the property. "The subject of encroachments generally is discussed within the framework of the rights and duties of adjoining homeowners who hold the fee title. However, anyone who has a protectable possessory interest in real property has the right to seek judicial relief against an encroachment." (6 Miller & Starr, supra,  14.10, p. 27.) "The usual action is by an owner, but neither ownership nor actual possession is essential." (5 Witkin, Cal. Procedure, supra,  591, p. 63; Rogers v. Duhart (1893) 97 Cal. 500, [trespass action by lessee who had not yet entered into possession]; Wolfsen v. Hathaway (1948) 32 Cal.2d 632, 644 ["The propriety of an action for damages to property by one who is not in possession or entitled to possession at the time of its injury has been recognized in this state under varying factual circumstances"], overruled on another ground in Flores v. Arroyo (1961) 56 Cal.2d 492, 497.)

Thus, an easement owner "can obtain judicial protection against an interference or encroachment on the owner's easement." (6 Miller & Starr, supra,  14.10, pp. 27-28, citing City of Dunsmuir v. Silva (1957) 154 Cal.App.2d 825, 827-828; Pacific Gas & Elec. Co. v. Minnette (1953) 115 Cal.App.2d 698, 704-710.) "It is well settled that the person in actual possession is a proper party plaintiff in an action for trespass to real property." (Williams v. Goodwin (1974) 41 Cal.App.3d 496, 508.) The plaintiff in a trespass action must allege and prove his or her "lawful possession or right to possession, as owner or otherwise, of described property." (5 Witkin, Cal. Procedure, supra, Pleading,  590, p. 62, italics added.) "All plaintiff needed to do was to show a possessory right superior to the right of the trespassers." (Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1246.)

Likewise, the essential elements of an ejectment claim are the plaintiff's ownership of "some interest in real property," and the defendant's possession and withholding of the property. (5 Witkin, Cal. Procedure, supra, Pleading,  594, p. 65.) A plaintiff who does not own the land may nonetheless maintain an ejectment action if he or she has a superior right to possession. (Id.,  595, p. 66.) A "court of equity, upon a sufficient statement of facts showing an equitable title and right of possession" may grant relief under an ejection claim. (Murphy v. Crowley (1903) 140 Cal. 141, 149.)

Roberts has the right of actual occupation of the easement. On the other hand, the Rosses have no legal or equitable interest in the land. Of course, then, Roberts's easement gives him a superior right to possession of the property, and accordingly, the court properly granted summary judgment on the trespass and ejectment causes of action. The Rosses persist in claiming their encroachment is not wrongful, but that is simply untrue.

2

The Rosses' reliance on Wood v. Truckee Turnpike Co. (1864) 24 Cal. 474 (Wood), for the proposition that the grantee of an easement may not bring an ejectment action is misplaced. In Wood, the plaintiff was the purchaser under a sheriff's sale of " 'all the right, title, interest, claim, and property of the Truckee Turnpike Company in and to the Truckee Turnpike Road, a highway,' etc." (Id. at p. 486.) The court concluded the turnpike company merely had a franchise that did not pass to the plaintiff by the sale, and "all that was offered for sale and all that the plaintiffs bought was the 'road.' " (Id. at p. 487.)

Under those facts, the Supreme Court held the "plaintiffs acquired nothing by the purchase of the 'road' to which the action of ejectment has any remedial relations. 'Road' is a legal term, strictly synonymous with the term 'way,' and in the complaint, and throughout all the title papers of the plaintiffs, their identity is fully recognized. A way is an easement, and consists in the right of passing over another man's ground. . . . It is an incorporated hereditament, a servitude imposed upon corporeal property, and not a part of it. It gives no right to possess the land upon which it is imposed, but a right merely to the party in whom the way is vested to enjoy the way." (Wood, supra, 24 Cal. at p. 487.) The court further explained "that an action of ejectment will not lie in favor of a party to try his right to enjoy an easement." (Id. at p. 488, italics added.) Here, in contrast to Wood, Roberts's easement rights were clear.

In any event, in Southern Pacific Co. v. Burr (1890) 86 Cal. 279 (Burr), the court noted the law had changed since Wood was issued, and courts had allowed ejectment actions arising from the obstruction of easements. (Burr,at pp. 284-286.) The Burr court held the grantee of a right-of-way easement over a 400-foot wide strip of land, to aid in the construction of a railroad and telegraph line, could sue for ejectment, as the easement "necessarily involves a right of possession in the grantee, and is inconsistent with any adverse possession of any part of the land embraced within the grant." (Id. at p. 284, italics added.) The court explained: " ' "For a mere easement, perhaps, the action would not lie; but wherever a right of entry exists, and the interest is tangible, so that possession can be delivered, an action of ejectment will lie." ' " (Id. at p. 286.) Here, Roberts's easement also "carries with it, necessarily, a right to the possession of all the land within the limits named." (Id. at p. 285; see also City and County of San Francisco v. Grote (1898) 120 Cal. 59, 61 [Wood rule applies only to "a naked right of way, an easement in its simplest form, a mere right to pass over the land of another, . . . a thing so intangible and unsubstantial as to be insufficient to support an action of ejectment"; Wood does not apply when the grantee has a right to possess and maintain land].)

The Rosses also submit that trespass and ejectment counts are improper insofar as their fence encroaches on the public right-of-way. They rely on Civil Code section 831, which provides that an "owner of land bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown." (See also Civ. Code,  1112 ["transfer of land, bounded by a highway, passes the title of the person whose estate is transferred to the soil of the highway in front to the center thereof, unless a different intent appears from the grant"].) The Rosses assert that since their lot abuts Hidden Valley Road, they own the road to the center line and "the trial court's rulings on the causes of action for trespass and ejectment cannot . . . be construed to cover any portion of the fence in the public right of way."

Any fee title of the Rosses to the center line of Hidden Valley Road, however, is subject to the dedicated easement permitting the public to travel over it. "The courts everywhere have been vigilant to protect this easement belonging to the public, although agreeing that the landowner may make any use of the fee not inconsistent with the public right." (In re Anderson (1933) 130 Cal.App. 395, 397.) As discussed below, the Rosses' encroachment is inconsistent with the public right. In any event, neither the court's minute order nor its judgment mentions the public right-of-way in conjunction with the trespass and ejection counts.

B

Nuisance

"Anything which is . . . an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of . . . property, or unlawfully obstructs the free passage or use, in the customary manner, of any . . . street, or highway, is a nuisance." (Civ. Code,  3479; see also Pen. Code,  370.)

"A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal." (Civ. Code,  3480.) A private citizen may enjoin a public nuisance if it causes him or her special injury. (Voorheis v. Tidewater Southern Ry Co. (1919) 41 Cal.App. 315, 320; Civ. Code,  3495.) " ' "An abutting owner has two kinds of rights in a highway, a public right which he enjoys in common with all other citizens, and certain private rights which arise from his ownership of property contiguous to the highway, and which are not common to the public generally." ' " (Lane v. San Diego Elec. Ry. Co. (1929) 208 Cal. 29, 33.)

"Nuisance is distinguishable from trespass in that the mere intentional entry on land may violate the right of exclusive possession and create a right of action for trespass, while conduct or activity cannot amount to a nuisance unless it substantially and unreasonably interferes with the use and enjoyment of the land." (13 Witkin, Summary of Cal. Law (10th ed. 2005) Equity,  136, p. 457.) To prevail on a nuisance claim the " 'interference . . . must be 'of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.' [Citation.] The primary test for determining whether the invasion is unreasonable is whether the gravity of the harm outweighs the social utility of the defendant's conduct, taking a number of factors into account." (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938.)

Here, the court determined that to the extent the fence encroaches on Roberts's easement and the public right-of-way, it is a private and public nuisance. The court explained that "[o]bjects and structures near intersections which obstruct and/or interfere with a driver's view can create a dangerous condition constituting a nuisance." (See Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 846; 8 Miller & Starr, supra,  22.6, p. 26 ["Conditions which create hazards to traffic or that create a risk of accident or injury may be a nuisance"].) The Rosses agree with that proposition, but assert they presented factual issues on whether the fence creates a dangerous condition or is unreasonable.

The undisputed evidence supports the court's ruling. Roberts submitted a declaration by Kristan Brittain, who with her brothers owns property adjacent to Roberts's property and leases it to tenants. The declaration states Brittain's property is benefited by the same easement that Roberts has, and "[f]or over 40 years, my family has used the [e]asement for access . . . for vehicular, pedestrian and other uses, including . . . walking and riding bicycles. The pavement does not extend the full 20 foot width of the [e]asement. We have used the area alongside the paved portion of the [e]asement under the eucalyptus trees for decades to access Hidden Valley Road and to walk to and from our mailbox at the corner of Hidden Valley Road and as a turnout to let vehicular and pedestrian traffic pass."

The declaration also states her tenants had complained about access problems, and the "fence . . . interferes with access for my tenants, my brothers, my neighbors and me. The . . . fence interferes with our use of the [e]asement for vehicular use and pedestrian use and to access our mailbox. Because of the substantial encroachment of the fence, my tenants must now either swing out into oncoming traffic to negotiate the turn into the driveway, or they must pull part way in, then back up into traffic in order to pull in. I am deeply concerned that unless this fence is removed, someone will be injured."

Roberts also submitted the declaration of Colin Campbell, one of Brittain's tenants. It stated that "Hidden Valley Road is a heavily driven on street with often fast moving traffic," and "[b]ecause of the location of the Rosses' fence, it is difficult and unsafe for me to pull my Chevrolet 3/4 Ton Long-bed Silverado into the driveway without coming into the fast moving oncoming traffic on Hidden Valley Road. In order to pull my vehicle into the driveway, I am forced to make a two-point turn and have nearly missed becoming involved in a traffic accident in doing so." Roberts also submitted a similar declaration by Brittain's other tenant, Lori Nettleton. It stated that she had used the easement for more than five years, and the Rosses' fence substantially obstructed both the easement and the public right-of-way. It also stated the fence "makes accessing our mailbox dangerous because of the fast moving traffic on Hidden Valley Road and creates a blind area for anyone pulling in and out of the driveway. The . . . fence occupies areas that we used to use for ingress and egress both for pedestrian and road purposes." It also stated the fence "makes it difficult to pull into and out of my driveway because it is hard to see through or around the fence and I am forced to pull my Chevrolet Blazer into traffic to exit my driveway. I have nearly been hit by cars traveling down Hidden Valley Road when trying to pull into and out of my driveway. I believe that the fence is eventually going to cause an accident to myself or other neighbors who use the easement to enter and exit from our driveways."

The Rosses rely on the declaration of Bill Darnell, a licensed civil engineer and traffic engineer. Darnell concluded "the fence does not obstruct sight distance [for vehicles] entering Hidden Valley Road," and "the fence does not restrict vehicle turning movement entering and exiting Hidden Valley Road." As the trial court noted, however, the Darnell declaration does not refute the declarations of Campbell and Nettleton that in actuality the fence has made access to the easement and Hidden Valley Road more dangerous. The Darnell declaration does not raise any triable issues as to whether Campbell and Nettleton were nearly involved in accidents because of the fence. The differing opinions of Roberts's and the Rosses' experts did not raise a triable issue of material fact, given the undisputed evidence of actual near misses. Indeed, it is difficult to understand why the Rosses ignore the safety aspects of the situation given their potential liability.

The gravity of the harm to Roberts's interest in the easement, and his special interest in the contiguous public right-of-way through which he accesses the easement, far outweighs the Rosses' self-interest in capturing extra land to which they are not entitled. Their conduct created a dangerous condition and is unreasonable, with no offsetting social utility. Accordingly, the court's summary judgment ruling was proper on the nuisance count.^[2]

C

Declaratory and Injunctive Relief

The Rosses contend summary judgment on the declaratory and injunctive relief counts was improper because, again, they raised triable issues of fact pertaining to whether their conduct was reasonable. The Rosses assert that "in considering the appropriateness of an injunction, the court must weigh the expense, inconvenience and possible harm which may come to the defendants if the injunction is issued, and balance these factors against the detriment which may be suffered by the plaintiffs if the injunction is not issued." As discussed, however, we have rejected their reasonableness argument.

The Rosses rely on Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697 (Scruby), and Heath v. Kettenhofen (1965) 236 Cal.App.2d 197, but the issue in those cases was whether the owner of the servient estate had unreasonably interfered with an easement. In Scruby, the court held that a nonexclusive easement gave the owner of the servient tenement "the right to place improvements upon the easement as long as they do not unreasonably interfere with the right of the owner of the dominant tenement to ingress and egress." (Scruby, supra, at p. 700.) The court explained that the "owner of the dominant tenement must use his or her easements and rights in such a way as to impose as slight a burden as possible on the servient tenement. [Citation.] Every incident of ownership not inconsistent with the easement and the enjoyment of the same is reserved to the owner of the servient estate." (Id. at p. 702.)

The Rosses have no legal or equitable interest in the servient estate here, yet they argue they have a right to occupy it. They are mistaken. As the trial court determined, they "have no standing to make any argument about reasonable interference." Roberts showed he had the right to declaratory and injunctive relief as a matter of law, regardless of any inconvenience or cost to the Rosses in removing the encroachment.

III

Exclusion of Evidence

We review the trial court's exclusion of evidence under an abuse of discretion standard. (Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564.) " 'Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered.' " (Denham v.Superior Court (1970) 2 Cal.3d 557, 566.)

The Rosses contend the trial court erred by excluding a document entitled Encroachment Maintenance and Removal Agreement (EMRA) that the City of San Diego executed in November 2006, well after the fence was constructed and this litigation began. The EMRA provided that in exchange for permission to encroach on the public right-of-way, the Rosses were required to maintain it at their sole risk, indemnify the City of San Diego from any liability associated with the fence, and carry liability insurance to protect the City of San Diego from any claims arising from the encroachment. Further, the EMRA required the Rosses to remove the encroachment on 30 days' notification.

We find no abuse of discretion as only relevant evidence is admissible (Evid. Code,  350) and the document is irrelevant. As the trial court found, the EMRA "in no way diminishes the declaration of . . . Roberts, and his neighbors . . . that the fence interferes with their use and access to the public right-of-way." The Rosses' assertion that the City of San Diego's execution of the EMRA signified that it "does not pose any safety hazard" lacks merit.

Additionally, the Rosses claim the court improperly excluded the statements in Brandon Ross's declaration that "[w]e built the fence in such a manner as to not limit or decrease the width of the existing easement road in any fashion. I personally observed this area on many occasions. There was no trace of any footpath, nor could there be any foot traffic in the area of the fence due to the dense overgrowth of bushes, trees, etc. in that area. Portions are too steep for use by pedestrian or vehicular traffic."

The Rosses assert the evidence shows a triable issue of fact as to the trespass and ejectment counts because "there is a pointed dispute as to whether the fence narrows the access road [as opposed to the easement]." (Italics added.) The court, however, correctly excluded the declaration on the ground of irrelevancy because an "easement by grant is not lost by non-use." "It is well settled in this state that an easement created by grant is not lost by mere non-user. [Citation.] For an easement to be thus lost it must be accomplished with an express or implied intention of abandonment." (Watson v. Heger (1941) 48 Cal.App.2d 417, 421.) "Extinguishment of an easement is an extreme and powerful remedy which is utilized only when use of the easement has been rendered essentially impossible." (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 767; Civ. Code, 811.) As a matter of law Roberts's past use of only a portion of the 20-foot wide easement did not give the Rosses any right to encroach on the unused portion, and thus the declaration was irrelevant to show their conduct was reasonable.

Further, the Rosses challenge the court's exclusion of the declaration of Jeffrey Paul Gong, the trustee of The Paul Trust, the owner of the servient estate, which ostensibly shows he gave them permission to maintain the encroachment. The Rosses originally submitted an unsigned declaration by Gong that stated "I have given the Rosses my permission to keep the fence on the Paul Property, to the extent allowed by law, in exchange for the Rosses['] agreement to allow periodic trimming of several trees on their property that would otherwise block my view." The Rosses also submitted an unsigned lease between them and The Paul Trust for the portion of the servient estate on which their fence encroaches.

Presumably, Gong refused to sign those documents. The Rosses submitted a second declaration that he did sign, but it does not state he gave them permission to maintain the encroachment. Rather, it merely states he had lived on the servient estate since 1995 and had observed the condition of Roberts's easement and his nonuse of a portion of the easement, and, "I recently learned that portions of the fence may be located on the Gong Property." Contrary to the Rosses' position, the mere submission of a declaration does not indicate Gong has given them permission to encroach on the servient estate. The court properly excluded the declaration on the ground of irrelevancy.^[3]

IV

Costs

The Rosses contend the court erred by allowing $1,585 in Roberts's cost bill for the preparation of a plat map. The item was based on the declaration of D.K. Nasland, a civil engineer, which stated: "In early May, 2005, I and the survey crew that I supervise went out into the field to plot the location of the new fence relative to the Ross [p]roperty, the Roberts [e]asement and the right of way for Hidden Valley Road for purposes of preparing a plat map. . . . Roberts paid my firm $1,585.00 for the preparation of the encroachment plat."

The prevailing party in a lawsuit is entitled as a matter of right to recover allowable costs. (Code Civ. Proc.,  1032, subd. (b).)^[4] Section 1033.5, subdivision (a) delineates items allowable as costs, and subdivision (b) delineates items not allowable as costs. The court relied on section 1033.5, subdivision (a)(12), which allows costs for "[m]odels and blowups of exhibits and photocopies of exhibits . . . if they were reasonably helpful to aid the trier of fact." Alternatively, the court relied on section 1033.5, subdivision (c)(4), which provides that "[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion."

In their motion to tax costs, the Rosses relied on section 1033.5, subdivision (b)(1), which disallows "[f]ees of experts not ordered by the court," and subdivision (b)(2), which disallows "[i]nvestigative expenses in preparing the case for trial." The court explained the plat map was not an expert fee because when it was prepared "Nasland had not been designated as an expert witness," and it was not an investigative expense because when it was prepared "Roberts already knew the Rosses' fence encroached. It was prepared to illustrate the encroachment."

The plat map is dated May 12, 2005. Roberts filed his complaint in August 2005, and he attached a copy of the plat map to it. Roberts did not designate Nasland as an expert witness until approximately 14 months later, in October 2006. Thus, we agree with the trial court that the cost of the plat map was an not expert witness fee disallowed under section 1033.5, subdivision (b)(1). Further, the court's finding that the plat map was not an investigate expense within the meaning of section 1033.5, subdivision (b)(2) was reasonable, as there is no dispute that when it was prepared Roberts already knew the Rosses' fence encroached on his easement.

A definition of the term "model" is "miniature representation of something." (Merriam-Webster's Collegiate Dict. (11th ed. 2006) p. 798.) It appears the plat map fits that definition, but we need not decide the matter because even if is not a model within the meaning of subdivision (a)(12) of section 1033.5, the court had discretion to allow its cost under section 1033.5, subdivision (c)(4) since subdivision (b) of the statute does not disallow the cost. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1558.) Under California Rules of Court, rule 3.1151 [formerly rule 361], a "petition for an injunction to . . . restrain real property encroachments, or protect easements must depict by drawings, plot plans, photographs, or other appropriate means, or must describe in detail the premises involved." The plat map depicted the area in question and aided the trier of fact. We find no abuse of discretion. (Seever v. Copley Press, Inc., supra, 141 Cal.App.4th at pp. 1556-1557.)

DISPOSITION

The judgment is affirmed. Roberts is entitled to costs on appeal.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

AARON, J.

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^[1] "[A]n appurtenant easement is a burden on land that creates a right-of-way or the right to use the land only. [Citation.] It represents a limited privilege to use the land of another for the benefit of the easement holder's land, but does not create an interest in the land itself." (Kazi v. State Farm Fire & Casualty Co., supra, 24 Cal.4th at pp. 880-881.) "An easement is therefore an incorporeal or intangible property right that does not relate to physical objects but is instead imposed on the servient land to benefit the dominant tenement land. [Citations.] . . . The owner of the dominant tenement may maintain an action for the enforcement of this intangible right and may recover damages from a party for obstructing the easement." (Ibid.)

^[2] Given our holding on unreasonableness, we are not required to consider Roberts's contention the encroachment on the public right-of-way was a nuisance per se. (See People v. Henderson (1948) 85 Cal.App.2d 653, 656.)

^[3] In their reply brief, the Rosses assert the court erred by excluding a statement in Brandon Ross's declaration that "The Paul Trust has agreed to allow us to keep the fence where it is in exchange for our agreement to allow the trimming of certain trees that impact the view from The Paul Property." The court found the statement lacked foundation and authenticity and was irrelevant. The Rosses waived appellate review of the issue by not raising it in their opening brief. Because there was no evidence of permission, we are not required to address the Rosses' argument regarding a supposed tenancy at will.

^[4] All statutory references in this section are to the Code of Civil Procedure.