Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. 157522
ELIA, J.Plaintiff Chuck Dimick appeals from a judgment declaring his easement extinguished by adverse possession. He contends that defendant Casitas Del Mar Townhouse, Inc. (Casitas) failed to prove the elements of adverse possession because (1) Casitas had violated local land-use law in obstructing his right of way, and (2) in any event he was still able to access the easement as a pedestrian. Based on the record before us, we find no error and therefore must affirm the judgment.
Background
Dimick has owned his property in Santa Cruz since 2005, when it was conveyed to him by grant deed, along with the 15-foot-wide right of way that is the subject of this appeal. Casitas is a residential subdivision consisting of nine condominium units, fronting a driveway that encompasses the right of way. Each Casitas unit has a two-car garage, and there are guest parking spaces in front of the property. At the northern end of the Casitas property is East Cliff Drive. To the east of the Casitas subdivision is Dimick's property, and north of his, next to East Cliff Drive, is the property owned by Isabel Walker.
In 1973 the developer of the Casitas subdivision project, Lawrence Rose, obtained approval of his subdivision plan, subject to the restriction that no parking be allowed "within the easement along the eastern property line." In 1978 Rose asked the planning commission to overturn the zoning administrator's denial of a use permit to allow parking in the easement. He was unsuccessful, as was his appeal to the county board of supervisors. Nevertheless, according to the testimony at trial, from 1984 or earlier there were almost always some cars parked along the easement. Next to the parked cars, which occupied several feet of the 15-foot width of the easement, there was vegetation that took up about three additional feet.
Isabel Walker estimated that the cars might take up about seven feet of the easement. A defense witness, a Casitas resident, had measured 10 feet from the Walker fence to the edge of the parking spaces, and approximately 12 feet from the property boundary to the T's that marked the parking spaces.
At some point before 1984 a fence and electric gate were installed for the use of the Casitas residents. In March 2002 at the latest, the fence and gate were replaced by a new electric gate and a stucco wall, located at the East Cliff Drive end of the Casitas property. Unlike the previous gate, this one required a code to get through. There was testimony that pedestrians were still able to walk along the easement to access the beach. At the end, however, the only way to get down to the beach was over rocks. A staircase to the beach was outside the easement. Once a pedestrian was inside the easement, the only way to exit through the Casitas gate was to push a button at the gate, outside the easement.
Dimick himself said that he had walked on the easement 25-30 times. O. Robert Moon, who owned the Dimick property from 1970 to 2003, had been seen walking along the easement during the mid-1980s or 1990s. Tushar Atre, Dimick's immediate predecessor, testified that he walked along the easement "[d]ozens of times" during his occupancy. On one occasion, having obtained the code, Atre drove his car along the driveway and backed up again, just to "exercise [his] easement." On two or three other occasions, again to "exercise [his] right on [his] deeded easement, " he rode his motorcycle across the vegetation to the easement, rode around in the driveway, and then rode back onto his property. On other occasions he would walk along the easement to "their" stairs, which he would use to reach the beach.
Isabel Walker had owned the property adjacent to Dimick's since 1968, before the Casitas subdivision was built. Even before that time, she explained, there was a 15-foot right of way. In 1970, when James and Mary Stratinger owned the Dimick property, their children would use the easement to go with Walker to the beach. She had also seen Moon using the easement, but some of those occasions apparently occurred before his purchase, while he was a Casitas resident. Walker explained that although she used her easement to access the beach, she had had difficulty using it since about 2001, due to the opposition of Casitas residents to her use of a table located at the end of the property, outside the easement.
Walker further testified that she and her husband had objected to the Casitas development out of concern that cars parked in the easement would impede ingress and egress as well as access to the beach, for either cars or emergency vehicles. Currently, the stucco wall and the parked cars impeded her use of the easement by car; only by obtaining permission to go through the gate was she able to drive on it.
Tia Moon testified that while her father owned the Dimick property, he often used the easement to walk to the beach. During the last three years until Mr. Moon's death in 2003, his caretaker accompanied him along the driveway to the stone table outside the easement.
On July 9, 2007 Dimick filed a complaint against Casitas to quiet title to the easement and for declaratory and injunctive relief to prevent the continued obstruction of its use. Casitas answered and filed a cross-complaint for quiet title and declaratory relief, alleging extinguishment of the easement by adverse possession, abandonment, and incompatible acts.
On the first morning of the court trial, the judge conducted a site visit. Several witnesses then testified for each side. At the conclusion of the trial, the court ruled that the easement had not been abandoned, but it had been extinguished by adverse possession.
Discussion
1. Extinguishment of an Easement by Adverse Possession
A right of way, such as that pertaining to the driveway in dispute here, "is primarily a privilege to pass over another's land. It does not exist as a natural right, but must be created by a grant or by its equivalent. Such rights of way may be either public or private." (Alameda County v. Ross (1939) 32 Cal.App.2d 135, 143.) Notwithstanding the grant of an easement, the owner of the servient tenement (in this case, Casitas) may use the burdened land in any way that "does not interfere unreasonably" with the easement. (City of Pasadena v. California-Michigan Land & Water Co. (1941) 17 Cal.2d 576, 579; see also Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 767.)
Nevertheless, "[i]t is well settled that an easement, regardless of whether it was created by grant or use, may be extinguished by the owner of the servient tenement upon which the easement is a burden, by adverse possession thereof by the servient tenement owner for the required statutory period. Perhaps more accurately stated[, ] an easement may be extinguished by the user of the servient tenement in a manner adverse to the exercise of the easement, for the period required to give title to land by adverse possession." (Glatts v. Henson (1948) 31 Cal.2d 368, 370-371; accord, Sevier v. Locher (1990) 222 Cal.App.3d 1082, 1084.)
"Under this general rule, a court may conclude that an easement has been extinguished where the owner of the servient tenement, under an adverse claim of right, with notice thereof to the owner of the dominant tenement, continuously during a period of five years, uses the servient tenement in such a manner as to obstruct its use for easement purposes by the latter owner." (Ross v. Lawrence (1963) 219 Cal.App.2d 229, 232; see also Code Civ. Proc. § 321 [defining applicable period as five years].) The servient tenement owner thus must establish the elements of adverse possession—that is, open and notorious use or possession that is continuous and uninterrupted for the statutory period of five years, adverse or "hostile" to the easement owner, and under color of title or a claim of right. (Gilardi v. Hallam (1981) 30 Cal.3d 317, 321; Sevier v. Locher, supra, 222 Cal.App.3d at p. 1085.)
In California, payment of taxes, which generally must be shown to acquire title by adverse possession, is not necessary in order to extinguish an easement unless taxes on the easement were separately assessed. (Glatts v. Henson, supra, 31 Cal.2d at p. 372; Gilardi v. Hallam, supra, 30 Cal.3d at p. 322.) It is presumed, absent a contrary showing by the easement owner, that no separate taxes were levied upon the easement. (Glatts v. Henson, supra, 31 Cal.2d at p. 372.)
Extinguishment by adverse possession, or prescription, may be of the entire easement or only partial. Furthermore, as relevant here, "[t]he nonpermissive erection and maintenance for the statutory period of permanent structures, such as buildings, which obstruct and prevent the use of the easement will operate to extinguish the easement." (Glatts v. Henson, supra, 31 Cal.2d at p. 371.)
2. Legality of Casitas's Conduct
A key issue in the litigation was whether the easement could be validly extinguished by the parking of cars in the easement in violation of the original conditions for subdividing the Casitas property and by the construction of the wall and gate without permits. On appeal, Dimick renews his contention that adverse possession cannot be based on such "illegal" conduct. In the court below and on appeal, he has described his position variously with the doctrine of unclean hands and more generally with the assertions that "land-use laws trump easement law" and "no one can profit from their [sic] own wrong." In short, Dimick argues that Casitas "should not be rewarded for violating those laws and regulations... thereby encouraging such unlawful conduct."
Casitas's response consists in fallacious inferences, circular reasoning, and references to unsupported facts and inapposite authority. It argues, for example, that because "the very act of trespassing... does not prevent establishing adverse possession, violation of tangential laws or ordinances cannot prevent adverse possession." Casitas further suggests that if the easement was in fact extinguished by adverse possession, then the parking of cars would not violate the conditions of approval. "Said another way, the violation of the conditions of approval [existed only] as long as the easement existed. Thus, the Trial Court's determination [sic] that the easement was extinguished is not a violation of the law. To the contrary, the Court's extinguishment of the easement brings the parking into compliance with the conditions of approval for the subdivision." The faulty logic in both of these arguments is self-evident.
Nevertheless, we need not reach the legal question Casitas has tried to address—i.e., the effect of assertedly illegal conduct on the viability of a claim of adverse possession—because the factual premise of Dimick's claim has not been established. The evidence is not, as Dimick represents, "essentially undisputed." Rather, the record discloses a conflict in the testimony regarding whether Casitas was violating the law in the five-year period preceding Dimick's lawsuit. Ronald Powers, a private land-use consultant, testified for Dimick that (1) the parking in the easement contravened the county's original conditions of approval for the subdivision of the Casitas property; (2) the electric gate required an electrical permit from the county building department and (3) the stucco wall required a building permit and a use permit. None of these permits was obtained, Powers explained. He did believe, however, that if Casitas were to apply for permits for the gate and the wall, the county would likely issue them over the counter "fairly quickly."
On cross-examination Powers expressed the opinion that if the easement did not exist, the parking would not constitute a violation of the conditions of approval for the subdivision. He further acknowledged that only the planning department was authorized to enforce those conditions and that there had never been a code enforcement action by the county, in spite of a complaint filed by John Walker in 1984. Addressing the stucco wall, Powers acknowledged that if the wall was in fact six feet or less in height, a building permit would not have been required for its construction. He had not measured the wall with a tape measure, but had only estimated its height visually. Likewise, if the wall was situated outside the 20-foot setback, a use permit would not have been required. He admitted that he had not measured the distance from the wall to the front property line to determine whether it was located within the 20-foot setback. He had, however, examined the subdivision map, which indicated to him that the wall was inside the setback.
Witnesses' estimates of the height of the wall ranged from five feet, 10 inches to six and one-half feet.
Following Powers's testimony, Casitas presented Joanna Phillips, who had lived in one of the units since 1996. Phillips had been involved in the replacement of the original fence and gate. She went to the planning department with pictures of the existing structures and asked a county planner whether the gate could be upgraded. The planner told her that if the height, opening mechanism, and location did not change, it would be considered a gate improvement. Phillips could not remember whether she had asked about a permit, but the planner had not raised the issue.
When the stucco wall was built in the same location as the previous fence, Phillips showed the drawings to the planning department. The planner did not say he needed to or planned to inspect the site. Phillips also contacted the fire department, the sheriff's department, and the post office. Both the sheriff's department and the fire department visited the site and established their ability to get in and out; on its part the post office approved the newly replaced mailboxes. The construction of the new wall and gate was completed in early March 2002, more than five years before Dimick initiated this action.
"On appeal, when the evidence is contradictory, conflicting interpretations are presented thereby, or conflicting inferences may be drawn therefrom, that which favors the judgment must be accepted as true, and that which is unfavorable must be discarded as not having had sufficient verity for acceptance by the trial court." (Ross v. Lawrence, supra, 219 Cal.App.2d at p. 232; accord, Sevier v. Locher, supra, 222 Cal.App.3d at p. 1087.) Here, having heard the testimony of both Powers and Phillips, the trial court ruled that Dimick had failed to present authority or "facts to support the position that the doctrine of Unclean Hands was applicable to this easement case." We can only infer from this conclusion that the court credited the account provided by Phillips and accordingly determined that the county not only had approved the alterations to the Casitas property but had permitted the use of the easement for parking. Thus, the factual basis of Dimick's argument on appeal, that the parking and structures were unlawful, was found to be without evidentiary support.
3. Sufficiency of the Evidence
The primary question presented on appeal is whether the superior court correctly found that Dimick's easement had been extinguished by adverse possession. Whether an easement has been either acquired or lost by prescription is a question of fact, and the findings of the court as trier of fact will not be disturbed if they are supported by substantial evidence. (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570; Popovich v. O'Neal (1963) 219 Cal.App.2d 553, 556; see also Reichardt v. Hoffman, supra, 52 Cal.App.4th at p. 766.) "For the trial court the question is whether the circumstances proven do or do not justify an inference showing the required elements. In the appellate court the issue is merely whether there is sufficient evidence to support the judgment of the trial court." (O'Banion v. Borba (1948) 32 Cal.2d 145, 149-150.) Accordingly, as noted above, this court must view the evidence in a light most favorable to the judgment, and all conflicts must be resolved in favor of the prevailing party. If there is any substantial evidence to support the judgment, it must be affirmed. (Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 431.)
Dimick frames the issue on appeal as whether an easement can be extinguished by adverse possession "when the easement owner retains beneficial use of the easement at all times by using the easement at least for passage by foot to the beach and the bluff." The question posed, however, again presumes facts that were not found to be true. The trial judge, having visited the site and heard the testimony, concluded that the "constant parking of numerous vehicles" and the maintenance of the wall and gate constituted a use of the easement "in such a manner as to physically block any practical usage of the easement by the Dimick property."
Dimick maintains, however, that Casitas failed to prove adverse possession because it did not show that it exclusively occupied the easement. Although he implicitly concedes that vehicles were effectively obstructed by the wall and gate, he insists that adverse possession was not established because he was still able to walk along the easement.
The trial court, however, found otherwise. Although Dimick and other witnesses stated that they walked along the easement to obtain access to the beach, there was conflicting testimony on this point. Even Isabel Walker, Dimick's own witness, testified that the parked cars prevented her from using the 15-foot right of way; it was necessary to "walk into [Casitas's] property in order to access the beach." Joanna Phillips testified that it was not possible to exit through the gate, whether by car or on foot, while remaining within the boundaries of the easement. Likewise, the path down to the beach required a descent over rocks or by the stairs, which were well outside the easement. With cars parked on the easement, which occurred every day, "it's like they stick out, which means that somebody coming through the easement [by car] would hit them." She did not know whether this would occur with a motorcycle. Here the trial judge apparently believed Phillips's testimony, which, together with his own observations, convinced him that a pedestrian could not easily walk along the driveway and still remain in the easement, rendering the easement of no practical use. (Cf. Sevier v. Locher, supra, 222 Cal.App.3d at p. 1087 [blocking access to driveway with chain and padlock, then with locking gate, was inconsistent with plaintiffs' right of way and therefore sufficiently adverse to extinguish easement]; compare Silveira v. Smith (1926) 198 Cal. 510, 519 [unlocked gate did not destroy easement].) Because the appellate standard of review precludes our reweighing the evidence (Popovich v. O'Neal, supra, 219 Cal.App.2d at p. 558), we must uphold the trial judge's finding that the easement was extinguished by adverse possession.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, Acting P. J., GROVER, J.
Judge of the Superior Court of Monterey County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.