Opinion
A148357 A149041
08-15-2017
KAMRAN EHSANIPOUR et al., Plaintiffs and Appellants, v. MICHAEL STEPHAN et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. CIV526082)
Defendants Michael and Anisse Stephan possessed an easement for passage over a portion of an adjacent lot owned by plaintiffs Kamran and Mitra Ehsanipour. Prior to the Stephans' purchase of their lot, the previous owner of the Ehsanipours' property, an oil company, had erected a fence around the property that prevented all use of the easement. After purchasing the lot, the Ehsanipours maintained the fence for a period of 20 years, during which time the Stephans and their predecessor were unable to make any use of the easement. The trial court denied the Ehsanipours' claim to have extinguished the easement by adverse possession solely on evidence that the oil company, when erecting the fence, had considered it temporary and intended to keep it in place only during environmental remediation of the property. We reverse, concluding the oil company's original intent was irrelevant to a determination of adverse possession.
I. BACKGROUND
The adjacent Burlingame properties now owned by the Ehsanipours and the Stephans were at one time a single parcel. In 1925, the then-owners deeded a portion of the property to Standard Oil Company (Chevron), reserving for themselves an easement across a portion of the deeded parcel for access to El Camino Real, a major thoroughfare. This parcel, which much later became the Stephans' property (Stephan parcel), eventually held a small commercial center. Chevron built and operated a gas station on the servient tenement (Chevron parcel). For many years, customers of the businesses on both parcels crossed the easement for access from El Camino Real.
By 1982, the businesses on the Stephan parcel had ceased operating, due to neglect by the parcel's then-owner. When the parcel owner's daughter sought to resume operations, the City of Burlingame declined to allow their resumption because the parcel was zoned for residential use and the grandfather exceptions under which the businesses had been permitted to operate had lapsed. After extensive negotiations, the Stephan parcel was rezoned, and commercial activities were permitted to resume in 1984. As a condition of the rezoning, vehicular traffic over the easement was banned, and a cement block barrier was erected to prevent vehicular passage. Pedestrian access, however, continued.
In 1987, the Chevron station closed. It was eventually demolished, leaving a vacant lot. A fence was erected around the Chevron property in 1988, enclosing the area of the easement as well, for the purpose of "provid[ing] temporary fencing around [the] demo[lition] site." Initially, Chevron installed a fence on concrete blocks that could be moved to permit equipment access. Later, fence posts were planted in the ground and chain-link fencing was erected on them. At some point, a "keep out" or "no trespassing" sign was placed on the fence. This fixed fence was in place by 1989 and remained there continuously up to the time of trial in 2015, maintained with periodic repairs. Access through the fence is by a locked gate. Contemporary photographs show a sturdy-looking, six-foot-high, chain-link fence supported by aluminum posts. The fence encloses the easement and prevents any access to it, vehicular or pedestrian.
The Chevron property had been contaminated by decades of service station operation. Chevron apparently kept the fence in place following demolition of the station buildings to exclude the public during subsequent soil decontamination. As a handwritten note produced by Chevron indicated, the company had erected "temporary fencing" around the parcel "in order to protect our [decontamination] wells." In 2001, San Mateo County notified Chevron that no further decontamination action was needed, although in a second letter the county noted that contaminated groundwater and subsoil remained. By that time, as discussed below, the property had long since been owned by the Ehsanipours.
In 1989, the Stephans leased a commercial space on the Stephan parcel, and they purchased the parcel 10 years later. The Ehsanipours purchased the Chevron parcel in 1994, a few years prior to the Stephans' purchase. Although the Ehsanipours were aware of the easement at the time of their purchase, Kamran Ehsanipour assumed the easement had been abandoned when the Stephan parcel was rezoned and the easement was blocked to vehicle traffic. By 2001, the Ehsanipours no longer had serious concerns about soil contamination on the Chevron property, but they kept the fence in place in order to keep people off the vacant lot. During the time of the Ehsanipours' ownership, the Stephans never asked for removal of the fence, for access to the portion of the Chevron property subject to the easement, or for a key to the lock on the gate of the fence, and they had not been on the portion of the Chevron property subject to the easement. The same was true of the prior owner of the Stephan parcel.
Eventually, the Ehsanipours filed this action to quiet title to the easement, alleging the easement had been extinguished by abandonment or adverse possession. Following a bench trial, the court delivered an oral decision, ruling for the Stephans, and later filed a statement of decision. In the statement of decision, the court rejected the claim of abandonment, citing maps prepared following erection of the stone wall that continued to show the existence of an easement and the testimony of the prior owner who claimed no intention of abandonment. The court also found no extinguishment due to adverse possession. The court reasoned that Chevron intended the fence to be temporary when it was erected, citing the two Chevron memoranda. Based on these memoranda, the court concluded, "the Fence was put up by Chevron and has been and still remains intended as a temporary structure." Further, the court concluded, remediation of the Chevron parcel "remains open," based on the county's 2001 letter noting the presence of contaminated groundwater and subsoil. The court retained jurisdiction over the matter to ensure the parties acted in good faith with respect to the easement and later awarded $178,809 in attorney fees to the Stephans.
The Ehsanipours appeal, contending the trial court's findings were not supported by substantial evidence and there was no legal basis for an award of attorney fees.
We earlier denied a motion to dismiss, which contended this appeal was not timely filed. The Stephans reargue the motion to dismiss in their respondents' brief, but we find no basis for reconsidering our denial. The Stephans also argue the Ehsanipours have waived their arguments by failing to object to the trial court's statement of decision. Such objections are necessary merely to prevent invocation of the doctrine of implied findings. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Their absence does not prevent challenges to the validity of the judgment independent of any implied findings.
II. DISCUSSION
"It 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.) " 'The elements necessary to establish title by adverse possession are tax payment and open and notorious use or possession that is continuous and uninterrupted, hostile to the true owner and under a claim of title,' for five years. [Citation.] The five-year prescriptive period begins to run when a cause of action accrues, that is, when the owner is deprived of possession." (Sevier v. Locher (1990) 222 Cal.App.3d 1082, 1085.) Whether these elements have been satisfied is ordinarily a question of fact. (Id. at p. 1087.)
There is little room for debate that Chevron and, subsequently, the Ehsanipours engaged in " 'open and notorious use or possession that is continuous and uninterrupted' " for a period of five years. No later than 1989, Chevron placed a fixed, six-foot-high fence around the Chevron parcel, including the portion subject to the easement, secured by a locked gate. "Keep out" or "no trespassing" signs were posted. Once the Ehsanipours purchased the property, they maintained the fence to the present day. Since the erection of the fence, the owners of the Stephan parcel have never been given access to the easement, and they have not set foot on the portion of the Chevron parcel subject to the easement since sometime before 1989. By excluding the owners of the dominant tenement from using the easement, Chevron and the Ehsanipours were unquestionably exercising "use or possession" of the portion of the property subject to the easement, and this possession has continued uninterrupted since 1989. Further, it is difficult to envision a more "open and notorious" possession than a fence with a locked gate, combined with "keep out" signs. (See Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057, 1078 [no notice is required to the owner of property to establish adverse possession other than the claimant's occupancy].)
The debate at trial involved the Chevron parcel owners' intent. As noted above, adverse possession requires use or possession that is " 'hostile to the true owner and under a claim of title.' " In finding no adverse possession, the trial court focused on references in two memoranda prepared by Chevron at the time the fence was erected, suggesting Chevron intended to maintain the fence in place for only as long as required to remediate the contamination on the property. Because Chevron had not intended permanently to exclude the dominant tenement from the property, the court reasoned, its possession was not hostile or under a claim of title. As discussed below, the trial court's reliance on evidence of Chevron's purpose in erecting the fence misunderstands the element of hostile possession under a claim of title.
Even under the law as envisioned by the trial court, its ruling suffers from an obvious deficiency. The trial court failed to consider the Ehsanipours' intent in maintaining the fence, even though they have owned the Chevron parcel for the last 20 years—four times the period of possession necessary to secure adverse possession—and unambiguously excluded the owners of the Stephan parcel from the easement for the entire time.
The elements of adverse possession are phrased in time-worn, arcane language that, as one court has noted, "invites misinterpretation." (Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449 (Felgenhauer).) While the term "hostile" appears to require a dispute, or at least ill will, and the phrase "claim of right" suggests an express declaration of ownership, neither is required. Rather, all that is required for adverse possession is use of the servient tenement in a manner that precludes use of the easement by the dominant tenement, without the permission of the dominant tenement, for the statutory period of time. (Glatts v. Henson, supra, 31 Cal.2d at pp. 370-371.)
In the absence of some acknowledgment, express or implied, by the owner of the servient tenement of the rights of the dominant tenement, the intent of the owner of the servient tenement in excluding the dominant tenement is irrelevant. As the Supreme Court has noted, "the hostility requirement 'means, not that the parties must have a dispute as to the title during the period of possession, but that the claimant's possession must be adverse to the record owner, "unaccompanied by any recognition, express or inferable from the circumstances of the right in the latter." ' " (Gilardi v. Hallam (1981) 30 Cal.3d 317, 322-323.) Similarly, as Felgenhauer held, "Claim of right does not require a belief or claim that the use is legally justified. [Citation.] It simply means that the property was used without permission of the owner of the land. [Citation.] . . . 'In most of the cases asserting [the requirement of a claim of right], it means no more than that possession must be hostile, which in turn means only that the owner has not expressly consented to it by lease or license or has not been led into acquiescing in it by the denial of adverse claim on the part of the possessor.' " (Felgenhauer, supra, 121 Cal.App.4th at p. 450; see Aaron v. Dunham (2006) 137 Cal.App.4th 1244, 1249 [quoting Felgenhauer]; see also Windsor Pacific LLC v. Samwood Co., Inc. (2013) 213 Cal.App.4th 263, 270 & fn. 2, overruled on other grounds in Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (Jul. 31, 2017, S223436) ___ Cal.5th ___ [2017 Cal. Lexis 6017 at pp. *12-*17 & fn. 3] ["[A] claimant's use is adverse to the owner if the use is made without any express or implied recognition of the owner's property rights." " 'Adverse use is sometimes characterized as a use made under a claim of right, but such a description is imprecise because a claim need not be formally asserted, nor must the use be made with the belief that it is lawful.' "].)
As discussed above, Chevron's conduct in erecting a locked fence that entirely excluded the owners of the Stephan parcel from access to the easement, and the Ehsanipours' continuation of that conduct, constituted possession of the servient tenement in a manner adverse to the rights of the dominant tenement. There was no testimony that Chevron ever consulted with the owners of the Stephan parcel about their exclusion or acknowledged the rights of the Stephan parcel owners to use the easement. Accordingly, there was no evidence to support a finding that the Stephan parcel owners " 'expressly consented to [Chevron's occupancy] by lease or license' " or were led to acquiesce in Chevron's occupancy " 'by the denial of adverse claim on the part of the possessor.' " (Felgenhauer, supra, 121 Cal.App.4th at p. 450.) On the contrary, Chevron appears to have acted in thorough disregard for the dominant tenement property rights. Although Chevron's employees might have intended to remove the fence at some point, as the internal memoranda suggested, Chevron's failure to communicate that intent to the Stephan parcel owners or otherwise to seek their permission to block the easement rendered its corporate intent irrelevant to an analysis of adverse possession. The same is true of the Ehsanipours. Although they excluded the Stephan parcel owners for 20 years, there is no evidence they sought permission for the exclusion or otherwise recognized the dominant tenement's property rights. Their exclusive use of the Chevron parcel was therefore sufficient to support a claim for adverse possession.
On appeal, the Stephans argue Chevron's fencing of the Chevron parcel did not constitute hostile use because it was meant to exclude persons during the remediation, rather than to prevent use of the easement. The argument is a non sequitur; excluding persons from the property necessarily prevented them from using the easement. Accordingly, Chevron did erect the fence for the purpose of preventing use of the easement, as well as any other incursion onto the property, for the duration of the remediation. In any event, for the reasons discussed above, Chevron's reason for erecting the fence is irrelevant to the issue of adverse possession.
The present case is materially indistinguishable from Ross v. Lawrence (1963) 219 Cal.App.2d 229. In that case, the owners of adjacent properties had reciprocal easements for ingress and egress on either side of a road on which the center line was the border between the properties. Early on, the predecessors of the defendants developed their property with apartments. As part of that work, they extended the construction into the plaintiffs' easement, building a curb 10 feet within the easement and striping the area next to the curb for diagonal parking, thereby occupying the remainder of the easement. This use, which entirely precluded the plaintiffs' use of the easement, continued for at least 13 years. (Id. at p. 231.) The court found this sufficient to extinguish the easement by adverse possession. As the court held, "the extent of the parking use was such as to constitute a total obstruction to the use of the easement by the owners of the dominant tenement; was wholly irreconcilable with the latter use; was hostile to every aspect of that use; and was the equivalent of a claim that they had no rights in the servient tenement, i.e., the property upon which the easement originally was imposed." (Id. at p. 233.) The court also rejected the contention that this use was insufficient to provide notice to the plaintiffs. As the court held, "[u]nder the rules heretofore noted such notice may be either actual or constructive; may be implied from the adverse nature of the use to which the servient tenement is subjected; and need not be orally communicated to the owners of the dominant tenement." (Id. at p. 234.) To the same effect is Masin v. La Marche (1982) 136 Cal.App.3d 687, in which the owner of a servient tenement blocked use of the easement road by the dominant tenement owner for several years by use of a barrier, as well as storing large items within the easement. The court found this inconsistent use sufficient to extinguish the easement. (Id. at pp. 694-695.)
The decisions denying adverse possession in the presence of a fence are not inconsistent with our conclusion. In Tract Development Services, Inc. v. Kepler (1988) 199 Cal.App.3d 1374, the court found the erection of a fence insufficient to create an adverse possession. As the court noted, however, there was a gate in the fence that allowed use of the easement right-of-way, and there was no evidence the owners of the dominant tenement had ever been prevented from using it. (Id. at p. 1387.) Here there was no such possibility of use. The plaintiff in Gerhard v. Stephens (1968) 68 Cal.2d 864, possessed an easement for oil and gas rights on ranch property. For 20 years, the defendants had improved the ranch, fencing the property and running cattle. The court found the presence of a fence and cattle operations did not work an adverse possession of the plaintiff's subsurface rights because (1) ranching did not alert the plaintiff to an adverse claim with respect to his subsurface rights and (2) the defendants' construction of a fence and keeping of cattle was not inconsistent with the right of the plaintiff to enter the land and explore for oil. (Id. at pp. 901-903.) In the present case, of course, the locked fence was wholly inconsistent with the right of the Stephan parcel owners to use the easement for ingress and egress.
In the judgment, the trial court also found the Ehsanipours estopped from asserting adverse possession because Chevron had permitted use of the easement prior to the fencing, citing Mattes v. Hall (1915) 28 Cal.App. 361. We find no basis for estoppel. The doctrine depends on reliance by one party on the conduct or statements of another. (In re Donovan L. (2016) 244 Cal.App.4th 1075, 1085.) Given the absence of any evidence that either Chevron or the Ehsanipours ever communicated with the Stephans about the easement, there was no basis for a finding of estoppel. Further, in Mattes, the party against whom adverse possession was asserted had consented to the allegedly hostile use. (Id. at p. 364.) There is no evidence of consent by the Stephans or the prior owner of the Stephan parcel to Chevron's and the Ehsanipours' fencing of the parcel. --------
Because we conclude the easement was extinguished by adverse possession, we need not consider the issue of abandonment. (Ross v. Lawrence, supra, 219 Cal.App.2d at p. 234.) We also vacate the award of attorney fees to the Stephans because they are no longer the prevailing party.
III. DISPOSITION
The judgment of the trial court, including its retention of jurisdiction and its award of attorney fees, is reversed. The matter is remanded to the trial court with directions to enter a judgment quieting title to the easement in the Ehsanipours, consistent with this decision. The Ehsanipours may recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Banke, J.