Scheel v.
Filed 2/7/12
Scheel v. Henderson CA3
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
NORMAN J. SCHEEL et al.,
Plaintiffs, Cross-defendants,
Appellants and Respondents,
v.
JOHN P. HENDERSON et al.,
Defendants, Cross-complainants,
Appellants and Respondents.
C062704
(Super.
Ct. No. 04AS03875)
This appeal
involves a dispute between adjacent landowners over a 40-foot strip of land
running along the eastern boundary of the plaintiffs’ property. The defendants claim a right to use the strip
as a road for vehicular traffic on the
grounds either that the plaintiffs never owned it or that they had obtained an
easement by prescription. The trial
court concluded that the plaintiffs owned a fee simple interest in the strip
but that the defendants only had a prescriptive interest in the strip as a path
for foot traffic.
The defendants,
Richard and Mildred Henderson, acquired the property located at 8801 Sunset
Avenue in Fair Oaks in 1963. Since 2003, that property has been owned by
the Henderson 2003 Family Trust. The
trustee of that trust is defendant and cross-complainant John P. Henderson.
Jonelle H. Scheel acquired the northern portion of their property in 1985 and
the southern portion in 1998. Their
address is 4825 Arbardee Drive
in Fair Oaks.
From 1963 until
the early 1970s, the Hendersons’
sole means of accessing their property was on a dirt roadway that ran along the
eastern edge of what is now the Scheels’ property. While the Henderson
property’s address is 8801 Sunset Avenue, the property does not actually abut
Sunset Avenue.
In late 1971, Arbardee
Road, which abuts the northwest corner of the Hendersons’
property “opened up,†and they began using Arbardee
Road to access their property by car. They continued to use the old roadway for
pedestrian and recreational use.
Once the Scheels
acquired the whole of their property, it abutted Arbardee
Drive to the north and Martsmith
Way to the south.
In late 1999, the Scheels extended their driveway south to Martsmith
Way, and the Hendersons
began using that portion of the driveway to access Martsmith
Way and proceed south to Sunset Avenue. This continued for a number of years until
the Scheels installed barriers to prevent the general public from using their
driveway as a thoroughfare from Arbardee Drive
to Martsmith Way. At that point, the Hendersons
asserted the “existence of a roadway easement running from Arbardee to Sunset
for the benefit of the Henderson
property.â€
The Scheels
responded by initiating the instant action, seeking, in pertinent part, a
declaration that the Hendersons do not have any interest in their property, a
judgment quieting title in their favor to the disputed 40-foot strip of land,
and an injunction directing the Hendersons to remove their mailbox from the
Scheels' property. The Hendersons
cross-complained, seeking, in pertinent part, a judgment quieting title to a
40-foot wide roadway easement from “the south end of Arbardee Drive . . .
through Martsmith Court to Sunset Avenue†in their favor and a declaration with
respect to their easement rights.
Prior to trial,
the Hendersons challenged the Scheels’ ownership of the disputed land, claiming
the parties’ common predecessors in interest, Byron and Marie Jacobs, retained
a fee simple interest in the 40-foot strip of land and that the Scheels never
owned it. During the course of ruling on
the parties’ respective motions in limine, the trial court concluded that the
Scheels own a fee simple interest in the disputed 40-foot strip of land as a
matter of law, and that the Jacobs merely retained an easement in the
same. Following a bench trial, the court
further found that the Hendersons
could not qualify as successors in interest to the Jacobs because the Jacobs no
longer owned the property that would become the Hendersons’
land when they created the easement.
Thus, the court quieted title in the disputed land in the Scheels’
favor. The court also found that the
Hendersons do not have an implied easement in any of the Scheels’ property, but
that they do have a prescriptive easement right to a 10-foot wide pathway
running along the eastern boundary of the Scheels’ property from Arbardee Drive
to Martsmith Way for foot, bicycle and general recreational access, but not for
any vehicular use.
title="">[3] In addition, the court ordered the Hendersons
to remove their mailbox from the Scheels’ property and declined to award the
Scheels’ attorney fees as damages incurred in quieting title to the disputed
land.
The Hendersons
appeal, contending the trial court erred in ruling that (1) the Scheels own the
40-foot strip, (2) the Hendersons do not have an implied easement in any of the
Scheels’ property, and (3) the Hendersons do not have the right to use the
10-foot wide pathway along the eastern border of the Scheels’ property for
vehicular ingress and egress. They
further assert that the trial court erred in failing to find the Scheels’
fourth cause of action for “Removal of Encroaching Structure,†a mailbox, was
barred by the three year statute of limitations set forth in Code of Civil
Procedure 338, subdivision (b).
The Scheels
likewise appeal, contending the trial court erred in finding the Hendersons
acquired a prescriptive easement in a 10-foot pathway along the eastern
boundary of their property and in failing to award the Scheels their attorney
fees.
We shall affirm
the judgment.
FACTUAL AND
PROCEDURAL BACKGROUND
Both parties’
properties were once owned by the Jacobs.
In 1944, the Jacobs acquired a large parcel of land (Lots 5 and 7, and
the eastern portion of Lot 8) located in Block 15 of the Fair Oaks Tract.
Lot 7 to Bert and Joyce Fisher.
name="_ftnref5" title="">[5] That same day, the Fishers conveyed the
western portion of their parcel, including what would later become the
Hendersons’ property, to David and Grace Howell. In 1963, the Howells conveyed the northern
portion of their parcel to Richard and Mildred Henderson.
Meanwhile, in May
1946, the Jacobs conveyed the southeastern portion of Lot 8, including what
would later become the Scheels’ property, to Paul and Muriel Stanley.
pertinent part, “all that real property situated in the County of Sacramento,
State of California, described as follows:
[¶] PARCEL NO. 1: All
that portion of Lot 8 . . ., described as follows: [¶] . . . [¶] . . . “RESERVING, however, the
Easterly 40 feet of the above described property for the purpose of a
roadway.â€
From 1963 until
the early 1970s, the only way to access the Hendersons’ property was along a
dirt roadway that ran from Sunset Avenue along the eastern border of the
Scheels’ property. During that time, the
Hendersons walked, biked, played, and drove along the roadway on a daily
basis. They performed maintenance work
on the roadway at least two or three times each winter “to make sure that the
road was passable.†They never requested
permission to use the roadway because they believed it was part of their driveway,
and no one ever attempted to stop them from using it. Nor did they ever try and hide the fact that
they were using the roadway.
In August 1971,
Arbardee Drive, which abuts the northwest corner of the Hendersons’ property,
opened up. Thereafter, the Hendersons
used Arbardee Drive to get to and from their property by car but continued to
use the roadway to retrieve their mail and for recreational use.
In June 1985, the
Scheels purchased the northern portion of their property. The title insurance policy for the property
made no mention of the reservation contained in the May 1946 deed from the
Jacobs to the Stanleys.
name="_ftnref8" title="">[8] In 1998, the Scheels purchased the southern
portion of their property.
name="_ftnref9" title="">[9] The title insurance policy for the property
made no mention of any easement running along the eastern edge of the Scheels’
property or of the reservation language contained in the 1946 deed from the
Jacobs to the Stanleys.
name="_ftnref10" title="">[10]
Mr. Scheel had no
knowledge of the old roadway when he purchased his property in 1985. There were weeds, brush, almond trees, and
piles of rubbish in the area where the old roadway was said to have
existed. After he purchased the
property, he saw several people walking along the eastern border of his
property, including Mildred Henderson.
It was not until 1999, after he extended his driveway, that he saw
anyone drive across the southern portion of his property.
When the Scheels
purchased their property in 1985, there was a gravel driveway from Arbardee
Drive onto the northeast corner of their property. In late 1999, they expanded their driveway
down to Martsmith Way, such that they could enter their property from Arbardee
Drive, proceed southwest to a circular drive in front of their residence, and
then proceed southeast to an access point on Martsmith Way. Thereafter, the Hendersons began using the
driveway as a shortcut from their driveway to Martsmith Way. After the driveway was expanded, Richard
Henderson stated to Mr. Scheel, “I assume it’s okay if we drive through here,â€
and Mr. Scheel responded, “Yeah, it’s okay with me.â€
In early 2000, the
Hendersons placed a mailbox on the Scheels’ property.
In Fall 2003, the
Scheels installed concrete blocks across a portion of their driveway to prevent
the public from using it as a thoroughfare between Arbardee Drive and Martsmith
Way. In May 2004, Mr. Scheel received a
letter from defendant John P. Henderson asserting the existence of an easement
running from the south end of Arbardee Drive to Sunset Avenue for the benefit
of the Henderson property.
In September 2004,
the Scheels filed a complaint to quiet title and for
encroaching structure. John P.
Henderson, in his capacity as trustee for the Henderson Family 2003 Trust,
filed a cross-complaint to quiet title and for slander of title, trespass, and
declaratory relief.
During the course
of the litigation, the Hendersons disputed the Scheels’ ownership of the
40-foot strip of land. The Hendersons
claimed that the Jacobs retained a fee simple interest, not simply an easement,
in the land when they conveyed the southeastern portion of Lot 8 to the
Stanleys. The Hendersons based their
claim on language contained in the May 1946 deed from the Jacobs to the
Stanleys, and an October 1946 deed transferring portions of Lots 6 and 8 to
Ernest and Nellie White.
The Scheels moved
in limine for an order excluding all evidence of the reservation contained in
the May 1946 deed from the Jacobs to the Stanleys on the grounds such evidence
was irrelevant and any probative value was substantially outweighed by its
potential to confuse and mislead the jury.
According to the Scheels, the Hendersons’ argument that the Scheels
never owned the 40-foot strip of land described in the deed was “refuted by . .
. the historical deeds relevant to the Scheels[’] and the Hendersons’
respective parcels,†and “therefore, is strictly a matter within [the trial]
court’s unique purview and should be disposed of by this motion in limine.â€
The Hendersons
likewise moved in limine for an order prohibiting the Scheels from presenting
any evidence that they own the 40-foot strip.
They argued that “[t]he evidence is uncontroverted that [the] Jacobs
retained ownership of the forty foot roadway that is in dispute in fee and that
it was never owned by [the] Stanley[s] . . . or the Scheels.†In support of their motion, the Hendersons
relied exclusively on the October 1946 deed from the Jacobs to the Whites and
the Scheels’ expert’s interpretation of the same.
The trial court
denied both motions; however, after considering the title documents and the
arguments of counsel and conducting its own research on the issue, it found, as
a matter of law, that the Scheels own the 40-foot strip and that the Jacobs
reserved an easement in the same. The
court further found that the easement was appurtenant to all of the land
retained by the Jacobs, not just that which otherwise would have been
landlocked.
Following a bench
trial, the court confirmed its ruling that the Scheels own the disputed land
and that the Jacobs merely reserved an easement in the same. The court further found that the Hendersons
could not qualify as successors in interest to the Jacobs because the Jacobs no
longer owned what would become the Hendersons’ land when the Jacobs reserved an
easement in the 40-foot strip.
name="_ftnref11" title="">[11] Accordingly, the court quieted title in the
Scheels’ favor, “subject to easement rights articulated below.â€
The court also
ruled that the Hendersons failed to establish “that they have any easement by
implication rights in any of the Scheel property,†but that they do have “a
prescriptive easement right to a 10 foot wide pathway for foot and bicycle
access at their convenience, and for general recreational access at their
convenience by themselves and their guests.â€
More particularly, the court found that “[t]he Hendersons did, between
their purchase in 1963 and the opening up of the access to Arbardee Drive in
the early 1970s, by the required legal standard, openly, notoriously,
continuously and adversely use the old roadway . . . for vehicular access and
general convenience purposes.†The court
further found that after Arbardee Drive opened up, the Hendersons ceased “doing
the regular maintenance work necessary to keep such a dirt road as the old
roadway open for vehicular traffic†and “the old roadway to the south of the
Henderson driveway had become nothing more than a path . . . .†Accordingly, the court concluded that the
Hendersons’ right to use the easement for vehicular ingress and egress had been
extinguished by nonuse.
The court declined
to find that the Scheels’ fourth cause of action for removal of encroaching
structure was time barred and ordered the Hendersons to remove their mailbox
from the Scheels’ property.
name="_ftnref12" title="">[12]
Finally, the court
refused to award the Scheels attorney fees as damages incurred in quieting
title to the disputed land, stating:
“With title being quieted in the Scheels, the Hendersons being ordered
to move their mailbox, and various easements being granted to the Hendersons,
the appropriate resolution is that both sides be ordered to bear their own fees
and costs, to include bearing their own attorney’s fees . . . .â€
Both parties filed
timely appeals.
DISCUSSION
I
The
Trial Court Properly Determined That The
Scheels
Own The Disputed Land
The Hendersons
contend the trial court prejudicially erred “by ruling before the trial began
that the [Scheels] owned the disputed land and the [Hendersons] were barred
from presenting any evidence to the contrary.â€
We disagree.
Determining
whether the Jacobs retained a fee simple interest or an easement in the 40-foot
strip “requires, in the first instance, careful examination of the language in
the original conveyance. If the intent
of the parties is clear, that will control.
If not, extrinsic evidence may be considered to the extent it informs
that intent.†(City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232,
235.) “‘Extrinsic evidence is
“admissible to interpret the instrument, but not to give it a meaning to which
it is not susceptible†[citations], and it is the instrument itself that must
be given effect. [Citations.] It is therefore solely a judicial function to
interpret a written instrument unless the interpretation turns upon the
credibility of extrinsic evidence.
Accordingly, “[a]n appellate court is not bound by a construction of the
contract based solely upon the terms of the written instrument without the aid
of evidence [citations], where there is no conflict in the evidence
[citations], or a determination has been made upon incompetent evidence
[citation].†[Citations.]’
[Citation.]†(
As a preliminary
matter, we reject the Hendersons’ assertion that the trial court prejudicially
erred in determining the fee versus easement issue “prior to trial.†The Hendersons themselves urged the court to
decide the fee versus easement issue in their motion in limine. More importantly, they cannot establish they
were prejudiced by the timing of the trial court’s determination. While they assert that the court’s ruling
effectively prevented them from presenting extrinsic evidence showing the
Jacobs intended to retain a fee interest, the only
October 1946 deed from the Jacobs to the Whites, which was before the
court. Indeed, the Hendersons
specifically relied on that document in support of their motion in limine. (The contents of that deed are set forth
below in the discussion of the Hendersons’ claims based on the deed.) Accordingly, even assuming for argument’s
sake that the trial court acted precipitously in deciding the issue, any error
was harmless.
Turning to the
merits, “[a] fee simple title is presumed to be intended to pass by a grant of
real property, unless it appears from the grant that a lesser estate was
intended.†(Civ. Code, § 1105.) As we shall explain, no such intent appears
here.
Here, the granting
clause of the deed declared an intent to “[g]rant . . . all that real property situated in the County of Sacramento, State
of California, described as follows:
[¶] PARCEL No. 1: All
that portion of Lot 8 . . ., described as follows: [¶] . . . [¶] . . . RESERVING, however, the
Easterly 40 feet of the above described property for the purpose of a road
way.†(Italics added.)
that real property . . . described as follows:
Being all of the land,’ etc., cannot be understood otherwise than as an
expression of intent to grant the fee, or the entire estate, in whatever is
described.†(W.E. Van Slyke v. Arrowhead Reservoir and Power Company (1909) 155
Cal. 675, 679.)
Here, the
description of the property to be conveyed included the 40-foot strip. The deed
from the Jacobs to the Stanleys described the northern boundary of the parcel
as “657.58 feet more or less.†The deed
from the Jacobs to the Whites, which conveyed a parcel directly to the north of
the Stanleys’ (now the Scheels’) parcel, described the southern boundary of
that parcel as “657.90 feet.†It is
undisputed the Whites acquired a fee simple interest in their entire
parcel. Thus, the fact that the parcels
are virtually the same width shows that the property conveyed by the Jacobs to
the Stanleys, the Scheels’ predecessors in interest, included the 40-foot
strip. Had the Jacobs intended to retain
the 40-foot strip in fee, they would have deducted that footage and described
the northern boundary of the parcel as 617.52 feet. (See Moakley
v. Los Angeles Pacific Railway Co. (1934) 139 Cal.App. 421, 426.)
The use of the
term “reserving†in relation to the 40-foot strip further supports a finding
that the Jacobs conveyed the entire estate.
“When a grantor conveys a parcel of property and ‘excepts’ a part from
the conveyance, no interest in the excepted portion passes to the grantee; the
entire interest is retained by the grantor and title to the excepted portion
remains as it was before the conveyance.
[¶] However, when an interest is
‘reserved,’ the entire fee title is transferred to the grantee and the grantee
grants back a new interest to the grantor.â€
(6 Miller & Starr, Cal. Real Estate, supra, § 15:18, pp. 77-78, fns. omitted; see also
supra, 13 Cal.4th at p. 244; W.E.
Van Slyke v. Arrowhead Reservoir &
Power Co., supra, 155 Cal. at p. 679.)
As both parties acknowledge, the use of the term “reserving†is not
dispositive. Because the terms “reserveâ€
and “except†are used interchangeably in common parlance, “‘the technical
meaning will give way to the manifest intent, even though the technical term to
the contrary be used.’†(
Slyke v. Arrowhead Reservoir & Power Co., supra, 155 Cal. at p.
680.) Here, the reservation of the
40-foot strip “for purposes of a roadway†evidences an intent to convey a fee
simple interest and for the Jacobs to retain an easement in the disputed
land. (See Elliott v. McCombs (1941) 17 Cal.2d 23, 28.)
In
company deeded to Rice a parcel of land, “‘except the south 30 feet thereof
reserved for road purposes . . . .’†(17
Cal.2d at p. 26.) In concluding that the
grantor reserved an easement rather than excepted title in the land, the court
observed, quoting in part from Parks v.
Gates (1921) 186 Cal. 151, 155, that “‘there is a vast difference between a
grant for purposes of “right of way†for a road and a grant of land “to be used
for a road.†The latter grant may be
entirely consistent with the conveyance of a fee-simple title, as a road may be
maintained as readily on land held in fee as under an easement, but the grant
of land as a right of way recognizes nothing but an easement.’ This rule was applied in Cooper v. Selig, 48 Cal.App. 228 [191 P. 983], where the court
construed a deed conveying land to the city of Los Angeles for the purposes of
a public road as passing the fee simple title.
Under the same principle of construction, the language in the deed of
the land company to Rice conveyed a fee-simple title to him with the reservation
of an easement on the part of the grantor.
[Citations.]†(
by the Jacobs to the Stanleys of the southeastern portion of Lot 8, “RESERVING,
however, the Easterly 40 feet of the above described property
a fee simple interest in the entire parcel, including the 40-foot strip to the
Stanleys, with the reservation of an easement on the part of the Jacobs. (Italics added.)
In sum, it is
clear from the language in the original conveyance that the intention was to
convey the entire estate in the land described, including the 40-foot strip of
land. That intent controls. (City
of Manhattan Beach v. Superior Court, supra, 13 Cal.4th at p. 235.)
The extrinsic
evidence cited by the Hendersons, namely the October 1946 deed from the Jacobs
to the Whites, does not support a contrary finding. In October 1946, the Jacobs acquired the
eastern portion of Lot 6 and conveyed it, along with the northeast portion of
Lot 8, to the Whites, “TOGETHER with an easement for a roadway over and across
a 40 foot strip of land, the East line of which is described as follows: [¶] .
. . “a 40 foot County Road along the East line of said Lot 7; thence parallel
to Winding Way North 482.34 feet.â€
the grant deed from Jacobs to the Stanleys.
At the time of the transfer to the Whites, the Jacobs still owned Lot 5
and the northern portion of Lot 7.
The Hendersons
assert that “[i]f [the] Jacobs did not own an easement to Lot 6 and [they] did
not own the 40 foot strip in fee, [the] Jacobs’ transfer of Lot 6 with a 40
foot easement to White was not a lawful transfer. Jacobs could not transfer a greater interest
in the 40 foot strip than he owned.†There are at least two problems with this
argument.
First, the easement conveyed by the
Jacobs to the Whites did not extend into Lot 6.
Rather, it was the same easement reserved by the Jacobs in the deed
conveying the southeastern portion of Lot 8 to the Stanleys. Second, at the time the easement was created,
the Jacobs owned the northeastern portion of Lot 8. Thus, that portion of Lot 8 was part of the
dominant tenement and appurtenant to
the 40-foot strip.
name="_ftnref15" title="">[15] Therefore, the Jacobs did not transfer a
greater interest than they owned.
Moreover, having acquired the northeastern portion of Lot 8 along with
the eastern portion of Lot 6, the Whites could access the easement by crossing
from Lot 6 over the northeastern portion of Lot 8, which they had acquired.
We likewise reject
the Hendersons’ assertion that the Jacobs’ remaining land was rendered
inaccessible by the trial court’s finding that they retained only an easement
and not a fee interest in the 40-foot strip.
Even assuming, as the Hendersons contend, that the Jacobs no longer had
a right to use the easement after the conveyance to the Whites, the Jacobs’
remaining land, Lot 5 and the northern portion of Lot 7, both abutted Winding
Way. Thus, the Hendersons’ assertion
that “[t]he history of the Jacobs’ transactions showed that they would have cut
themselves off from any public road if they had not retained a fee interest in
the eastern forty feet of Lot 8†is erroneous.
In sum, nothing in
the Jacobs’ conveyance to the Whites suggests that the Jacobs intended to
retain a fee interest in the 40-foot strip when they conveyed the southeastern
portion of Lot 8 to the Stanleys.
II
The
Trial Court Properly Determined That The Hendersons Do Not Have An Implied
Easement In The Disputed Land
The Hendersons
next argue that “[t]he trial court prejudicially erred when it ruled that
[they] had no implied easement after the court barred the[m] from proving that
[the] Jacobs roadway existed . . . .â€
Again, we disagree.
“An easement will
be implied when, at the time of conveyance of property, the following
conditions exist: 1) the owner of property conveys or transfers a portion of
that property to another; 2) the owner’s prior existing use of the property was
of a nature that the parties must have intended or believed that the use would
continue; meaning that the existing use must either have been known to the
grantor and the grantee, or have been so obviously and apparently permanent
that the parties should have known of the use; and 3) the easement is
reasonably necessary to the use and benefit of the quasi-dominant
tenement. [Citation.] ‘The purpose of the doctrine of implied
easements is to give effect to the actual intent of the parties as shown by all
the facts and circumstances.’
[Citation.] An easement by
implication will not be found absent clear evidence that it was intended by the
parties.†(Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 141-142, fns.
omitted; see also Civ. Code, § 1104.)
“The question of whether an easement by implication arose is a question
of fact for the determination of the trier of fact in the trial court.†(Leonard
v. Haydon (1980) 110 Cal.App.3d 263, 274.)
Here, the trial
court found that the Hendersons failed to establish the second condition, i.e.,
that the owner’s prior existing use of the property was of a nature that the
parties must have intended or believed that the use would continue. (See Tusher
v. Gabrielsen, supra, 68
Cal.App.4th at p. 141.) More
specifically, the court determined that “[t]here is no competent evidence in
the record as to what the parties must have intended or believed in regard to
the August 1945 transaction between [the] Jacobs and the Fishers.â€
substantial evidence. (Id.
at p. 143.) In doing so, we review the
entire record in the light most favorable to the trial court’s factual findings
and resolve all evidentiary conflicts and inferences in support of the
judgment. (Jessup Farms. V. Baldwin (1983) 33 Cal.3d 639, 660.)
As a preliminary
matter, we reject the Hendersons’ claim that the trial court improperly barred
evidence of a preexisting roadway. As
the Hendersons acknowledge, evidence of a preexisting roadway is contained in
the 1944 deed from Byron and Alva Love to the Jacobs. In that deed, the Loves reserved for
themselves a 20-foot right of way along the eastern edge of Lot 8 for purposes
of ingress and egress. Moreover,
contrary to the Hendersons’ suggestion, the trial court’s finding that the
Scheels own the disputed land in no way precluded them from introducing
evidence of a preexisting roadway or the Jacobs’ use of the same.
Turning to the
merits, the mere fact that a road way preexisted the Jacobs’ conveyance to the
Fishers does not establish an implied easement in favor of the Fishers. Rather, there must be evidence the Jacobs
used the roadway and that the parties believed or intended the use would
continue. (Tusher v. Gabrielsen, supra, 68 Cal.App.4th at pp. 141-142.) Here, there is no evidence the Jacobs used
the roadway after acquiring the property from the Loves. Unlike the Loves who would have been
landlocked but for the right of way, the Jacobs’ property abutted Sunset
Avenue. The Fishers’ property also
abutted Sunset Avenue. Thus, neither
party was dependent upon the roadway for purposes of ingress or egress. On this record, we have no trouble concluding
that substantial evidence supports the trial court’s determination that the
Hendersons failed to establish an implied easement.
III
The
Trial Court Properly Determined That The Hendersons Have A Prescriptive
Easement Right To A 10-Foot Pathway Along The Eastern Border of The Scheels’
Property For Foot, Bicycle, And General Recreational Access, But Not For
Vehicular Use
The Hendersons
contend that the trial court erred in finding “that a portion of [the] easement
[along the eastern boundary of the Scheels’ property] had been . . .
extinguished.†The Scheels dispute that the Hendersons established a
prescriptive easement in the first instance.
Both claims lack merit.
We begin with the
Scheels’ claim challenging the finding of a prescriptive easement. “The elements necessary to establish a
prescriptive easement are well settled.
The party claiming such an easement must show use of the property which
has been open, notorious, continuous and adverse for an uninterrupted period of
five years.†(Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564,
570; see also Civ. Code, § 1007; Code Civ. Proc., § 321.) While “[t]he trial court’s findings regarding
the existence of a prescriptive easement must be based on clear and convincing
evidence,†those findings will not be disturbed on appeal where there is
substantial evidence to support them. (
928, 938.)
The Scheels argue
that “the evidence was compelling that the Hendersons did not traverse the
Southeast boundary line of the Scheels’ property by vehicle after the early
1970s†and only occasionally used it to retrieve their mail and for recreational
use. The Scheels’ argument ignores the
trial court’s finding that “[t]he Hendersons did, between their purchase in 1963 and the opening up of the access to
Arbardee Drive in the early 1970s, by the required legal standard, openly,
notoriously, continuously and adversely use the old roadway . . . for vehicular
access and general convenience purposes.â€
(Italics added.) As we shall
explain, there is ample evidence to support the court’s finding.
There was evidence
adduced at trial that the Hendersons walked, biked, and drove on the old
roadway on a daily basis from 1963 until the early 1970s when Arbardee Drive
opened up. Indeed, before Arbardee Drive
opened up, the old roadway was the sole means of accessing the Hendersons’
property. Thus, substantial evidence
supports the trial court’s finding that the Hendersons openly, notoriously, and
continuously used the old roadway for over five years.
We next consider
the Scheels’ assertion that the Hendersons use was merely a matter of
neighborly accommodation, and therefore not adverse. Whether the use of the real property of
another is hostile or merely a matter of neighborly accommodation presents “a
question of fact to be determined in light of the surrounding circumstances and
the relationship between the parties.†(
supra, 35 Cal.3d at p. 572.) As the
parties’ briefs suggest, the law regarding adverse versus permissive use has a
convoluted history. In 1901, our Supreme
Court stated that a claim of right “must in some way be asserted in such a
manner that the owner may know of the claim.
The fact that the owner knew of the travel and occasional use of the
property does not even raise a presumption that such use was hostile or under
claim of right. If any party who is
allowed by silent permission to pass over the lands of another, nothing being
said as to any right being claimed, after five years, without showing that he
ever communicated such claim in any way to the owner, can thus gain title by
prescription, it would be a blot upon the law.â€
(Clarke v. Clarke (1901) 133
Cal. 667, 670.) Five years later,
however, the court held that undisputed use of an easement for the prescriptive
period raises a presumption of adverse use, shifting the burden to the party
resisting the easement to show otherwise.
(Fleming v. Howard (1906) 150
Cal. 28, 30.) In 1948, the court again
changed course, finding “no apparent reason for discussing the matter from the
standpoint of presumptions. For the
trial court the question is whether the circumstances proven do or do not
justify an inference showing the required elements.†(O’Banion
v. Borba (1948) 32 Cal.2d 145, 149.)
More recently, the court returned to the use of presumptions, holding
that “continuous use of an easement over a long period of time without the
landowner’s interference is presumptive evidence of its existence and in the
absence of evidence of mere permissive use it will be sufficient to sustain a
judgment.†(Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d at pp.
571-572.)
As previously
discussed, the evidence showed that the Hendersons openly, notoriously, and
continuously used the old roadway for from 1963 to the early 1970s. During that time, none of the Scheels’
predecessors in interest attempted to interfere with their use, and the
Hendersons neither asked for nor received permission to use the old
roadway. The Hendersons did not ask for
permission to use the old roadway because they believed it belonged to them,
and consistent with that belief, they maintained and repaired the road during
the prescriptive period. The Hendersons’
open and daily use of the roadway, without permission or interference, for over
seven years, coupled with their treatment of the roadway as their own, constitutes
substantial evidence that their use was under a claim of right and not merely a
neighborly accommodation. (See
supra, 35 Cal.3d at pp. 571-572; Le
Deit v. Ehlert (1962) 205 Cal.App.2d 154, 163.)
Finally, the
Scheels’ claim that the Hendersons “failed to establish the location of any
purported prescriptive easement rights†along the eastern border of the
Scheels’ property lacks merit. A
prescriptive easement cannot be established if there is a substantial variation
from the course or path used during the prescriptive period. (O'Banion
v. Borba, supra, 32 Cal.2d at p. 148.)
Here, the Scheels do not dispute that substantial evidence supports a
finding that the Hendersons used a “defined course of travel†during the
prescriptive period -- 1963 until the early 1970s. Evidence that the Hendersons’ course of
travel may have varied after that
time is not relevant to whether a prescriptive easement was established in the
first instance.
Having determined
that substantial evidence supports the
finding of a prescriptive easement, we next consider the Hendersons’ contention
that the trial court erred in finding the easement was partially extinguished
by nonuse.
As a preliminary
matter, we reject the Hendersons’ claim that the Scheels failed to adequately
plead extinguishment as a defense in their answer to the cross-complaint, and
as a result, the Hendersons were not sufficiently informed of the defense to be
able to fairly oppose it at trial. “If a
plaintiff was fully informed of a defense and the case was fairly tried on the
merits, any defect in the pleading of the defense is usually harmless.†(Harper
v. Kaiser Cement Corp. (1983) 144 Cal.App.3d 616, 620-621.) Here, the Scheels’ answer to the
cross-complaint pleaded facts upon which a claim of extinguishment by nonuse
could be based. They (1) denied that the
roadway was shared by the Hendersons’ family and the Scheels’ predecessors in
interest for vehicular traffic from at least 1975 to the present; (2) denied
that the Hendersons utilized the Sunset Avenue access at their convenience; and
(3) alleged that the roadway referenced in the cross-complaint had been
impassable by vehicles for years.
Moreover, the merits of the extinguishment issue were argued by the
parties at the summary judgment stage and in their trial briefs. Furthermore, the Hendersons introduced
evidence regarding their use of the old roadway from 1963 to the present at
trial. Under these circumstances, any
defect in the pleading of the defense was harmless. (Id. at
p. 621.)
Turning to the
merits, once acquired, a prescriptive easement may be lost by nonuse for five
years. (People v. Ocean Shore Railroad, Inc. (1948) 32 Cal.2d 406, 419; see
also Civ. Code, § 811, subd. 4.) It is
well established that extinguishment by adverse possession may be of the entire
easement or a portion thereof. (
370.) We see no reason why this rule
should not extend to extinguishment by nonuse, and the Hendersons offer
none. This is particularly true where,
as here, the Hendersons not only ceased using the roadway for vehicular ingress
and egress, but the easement became unusable for that purpose for well over
five years.
Contrary to the
Hendersons’ assertion, Marangi v.
Domenici (1958) 161 Cal.App.2d 552 supports
the trial court’s ruling. That case
involved a six-foot wide driveway. While
the driveway was located primarily on the defendants’ property, the plaintiff
and the defendants’ predecessor in interest shared the driveway for many years
and split the cost of paving it. (
purchased the property, the driveway was being used openly and continuously by
the plaintiff and her tenants, and the plaintiff and her tenants continued to
use the full-width of the driveway for vehicles and pedestrians for several
years despite defendants’ objections, with one exception. (Id. at
p. 555.) The plaintiff built a porch on
the side of her rear residence, rendering vehicle traffic to the rear portion
of her property impossible and “use of the driveway back of the porch was
discontinued except for pedestrian travel.â€
(Ibid.) The trial court ruled that the plaintiff had
prescriptive easement rights “to the 83 feet of driveway lying north of the
rear house on plaintiff’s premises,†which did not include the rear portion of
the driveway that had been rendered inaccessible by vehicle. (Id. at
pp. 556, 559.) On appeal, the defendants
suggested that the nonuse of the rear portion of the driveway for vehicular
traffic “somehow impair[ed] the existing easement or prove[d] its
nonexistence.†(Id. at p. 559.) In finding
the defendants’ suggestion “untenable,†the court stated: “Changes in the extent or nature of [the use]
which do not increase the burden on the servient tenement do not destroy the
easement though acquired by prescription.â€
(Ibid.) Stated another way, the fact that a portion
of the driveway was no longer accessible by vehicle did not mean that the
existing easement was destroyed.
The trial court’s
ruling in this case is entirely consistent with the court’s finding in
Hendersons’ failure to use the old roadway for vehicular access extinguished
the entire easement. To the contrary,
the court found the Hendersons retained their prescriptive easement right for
purposes of pedestrian, bicycle, and recreational access, but that any right to
use the old roadway for vehicle access had been extinguished. Substantial evidence supports the trial
court’s finding.
At trial, members
of the Henderson family acknowledged that after Arbardee Drive opened up in the
early 1970s, they ceased using the old roadway for vehicular access to their
property. Evidence also was submitted
that the old roadway became impassible by automobile for at least five years
and was essentially reduced to a path.
While the Hendersons used the Scheels’ driveway for access to and from
Martsmith Way after the Scheels extended it, evidence was presented that such
use was with the Scheels’ permission.
Thus, the Hendersons did not acquire any additional rights by virtue of
their later use of the driveway. (See
supra, 35 Cal.3d at p. 572.)
Finally, we reject
the Hendersons’ claim that “[t]he trial court improperly shifted the burden of
proof to require [them] to prove that their easement had not been
abandoned.†The Scheels presented
evidence that the Hendersons stopped using the old roadway for vehicular access
once Arbardee Drive opened up in the early 1970s, and that the roadway was
impassible by car between 1985 and 1999.
Only then did the court suggest that the Hendersons must show their
right to use the old roadway for vehicular access had not been extinguished by
nonuse. Contrary to the Hendersons’
assertion, they were not required to prove the easement had not been
extinguished in the first instance.
IV
The
Trial Court Properly Determined That The Scheels’ “Removal Of Encroaching
Structure†Cause of Action Was Not Time Barred
The Hendersons
contend that the Scheels’ fourth cause of action for removal of encroaching
structure, a mailbox, is barred by the three year statute of limitations
applicable to permanent structures specified in Code of Civil Procedure section
338, and that the trial court erred in deferring to an earlier court ruling
which it believed found that the five year limitation period set forth in Code
of Civil Procedure sections 318, 319 and 321 applied. As we shall explain, the removal of
encroaching structure cause of action is subject to the five year limitation
period set forth in Code of Civil Procedure sections 318 and 321. Accordingly, any error in interpreting or
deferring to an earlier ruling was harmless.
“[A]n action
seeking to enjoin a permanent encroachment is properly characterized as an
action for the recovery of real property subject to the five-year limitation
period in [Code of Civil Procedure] sections 318 and 321,[
rather than as an action for trespass subject to the three-year limitation
period in [Code of Civil Procedure] section 338, subdivision (b).[
v. Welch (2004) 116 Cal.App.4th 1084, 1096.) In Harrison
v. Welch, the plaintiffs “specifically sought injunctive relief requiring
[the defendant] to remove [a] woodshed and . . . landscaping from their
property . . . .†(Id. at p. 1098.) Under those
circumstances, we concluded the action was one to recover real property, and
therefore was subject to the five year statute of limitation. (Id.
at pp. 1096-1098.) The same is true
here.
In their removal
of encroaching structure cause of action the Scheels alleged that the
Hendersons caused a mailbox “to be constructed at the far southeast portion ofâ€
their property without their permission and sought an injunction compelling its
removal. Accordingly, the Scheels’
removal of encroaching structure cause of action is subject to the five year
statute of limitation set forth in Code of Civil Procedure sections 318 and
321, not the three-year statute of limitation specified in section 338,
subdivision (b). The mailbox was placed
on the Scheels’ property sometime after January 10, 2000. The complaint was filed less than five years
later, on September 27, 2004. Accordingly,
the removal of encroaching structure cause of action was not time barred, and
any error in interpreting or deferring to the earlier ruling was harmless.
V
The
Trial Court Properly Declined To Award
The
Scheels Their Attorney Fees
Finally, the Scheels
assert that the trial court erred in failing to award them attorney fees as
damages incurred to quiet title to the 40-foot strip of land. More particularly, they contend that the
Hendersons disparaged their title by asserting that the Jacobs, and not the
Scheels, owned the 40-foot strip of land, and that “[t]hey had no choice but to
incur legal fees to remove this cloud, which caused them damage.†The contention lacks merit.
Generally
speaking, except as provided by statute or agreement, the parties to litigation
must pay their own attorney fees. (Code
Civ. Proc., § 1021.) However, “[a]
person who through the tort of another has been required to act in the
protection of his interests by bringing or defending an action against a third
person is entitled to recover compensation for the reasonably necessary loss of
time, attorney’s fees, and other expenditures thereby suffered or
incurred.†(Prentice v. North American Title Guaranty Corp. (1963)
1305, 1310.) The “tort of anotherâ€
doctrine is “an application of the usual measure of tort damages.†(Sooy
v. Peter, supra, 220 Cal.App.3d at p. 1310; see also Prentice v. North American Title Guaranty Corp., supra, 59 Cal.2d
at p. 621.) “The theory of recovery is
that the attorney fees are recoverable as damages resulting from a tort in the
same way that medical fees would be part of the damages in a
v. Peter, supra, 220 Cal.App.3d at p. 1310.) Courts have applied this doctrine in holding
that the
expense of clearing title is a proper element of damages in a slander of title
action. (Glass v. Gulf Oil Corp. (1970) 12 Cal.App.3d 412, 438;
184 Cal.App.2d 59, 67-68.)
The Scheels appear
to rely upon the tort of slander of title in support of their assertion that
they are entitled to recover the attorney fees they incurred in quieting title
to the 40-foot strip of land. Assuming
for argument’s sake that the Scheels’ failure to plead such a cause of action
in their complaint is not fatal to the damages they now seek, their claim still
fails because they cannot establish each of the elements of a slander of title
cause of action.
The elements of
such a claim are as follows: “(1) a
publication, (2) which is without privilege or justification, (3) which is
false, and (4) which causes direct and immediate pecuniary loss.†(Manhattan
Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1051.) The publication element requires a
communication to a third party. (
203 Cal.App.2d 673, 676.) Thus, John P.
Henderson’s letter to Norman Scheel claiming an easement interest in the
disputed land does not suffice. (
Moreover, the allegations set forth in the Hendersons’ pleadings are
absolutely privileged. (Civ. Code, § 47,
subd. (b); Albertson v. Raboff (1956)
46 Cal.2d 375, 381.) Because the Scheels
have failed to establish any tort from which their alleged damages flow, they
likewise have failed to establish any entitlement to attorney fees. Moreover, insofar as the purported
disparaging communications either were not published to third parties or were
privileged, we question whether any doubt was cast upon the Scheels’ title and
whether the attorney fees sought were necessarily or reasonably incurred in the
first instance. (See Rest.2d Torts, §
633.)
The trial court
did not err in declining to award the Scheels their attorney fees.
DISPOSITION
The judgment is
affirmed. The parties shall bear their
own costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(5).)
BLEASE , J.
We concur:
RAYE , P. J.
MURRAY
, J.
name="_ftn1" title="">[1] Defendants also include Sam Henderson, all
persons claiming any legal or equitable right, title, estate, or interest in
the disputed land, the testate and intestate successors of Richard and Mildred
Henderson, and all persons claiming, by, through, or under such decedents. We shall collectively refer to defendants and
cross-complainants as “the Hendersons.â€
John P. Henderson is the son of Richard and Mildred Henderson. He and his brother David C. Henderson are
attorneys. They represented the
Hendersons in the underlying action and represent them on appeal.
name="_ftn2" title="">[2] A diagram depicting the two properties as
they appeared at the time of trial is contained in Exhibit 11-1, a copy of
which is attached to this opinion as part of the Appendix.
