Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. S.C. 097826 of Los Angeles County, Linda K. Lefkowitz, Judge.
Law Offices of Jeffrey E. Lieber and Jeffrey E. Lieber for Plaintiff and Appellant.
Overton, Lyman & Prince, and Stephen L. Jones for Defendant and Appellant.
FLIER, J.
Philip J. Forte, individually and as trustee of a family trust (Forte), appeals from a judgment entered by the superior court after a bench trial. The judgment granted his neighbor, Riopharm USA, Inc. (Riopharm), a prescriptive easement over a triangular paved area (the apron) located on Forte’s residential property next to the common driveway and a permanent injunction barring Forte from blocking access to the apron. Riopharm cross-appeals insofar as the judgment grants Forte an equitable easement for a block wall fence and an award of $8,840 for damages to his fence.
The apron measures 11.68 feet by 12 feet by 7 feet.
Forte essentially argues in his appeal that the trial court erred in granting Riopharm a prescriptive easement over the entire apron and no substantial evidence supports the court’s findings. Riopharm argues in its cross-appeal that the court should not have granted Forte an equitable easement for his block wall, improperly calculated the amount of damages and should have allowed Riopharm an option to make repairs in lieu of damages.
We disagree with these contentions and therefore affirm the judgment.
FACTS
The basic facts as stipulated by the parties are generally as follows.
Since 1988, Forte has been the owner of a residential property located above Beverly Hills. Since the 1980’s, Riopharm has owned vacant land uphill from and adjacent to Forte’s property. Both properties are served by a common driveway located on Riopharm’s side of the boundary. Forte has a 10-foot wide easement over Riopharm’s property extending over the entire length of the common boundary. The common driveway provides the only vehicle access to Forte’s home.
Viewed from the south, Riopharm’s property is shaped like an inverted triangle, with Forte’s property on the bottom left of the triangle. The driveway runs along the lower left side of the triangle. The width of Riopharm’s property at the apex of the triangle, where it meets the public road, is only 15.21 feet.
Riopharm’s property is on very steep terrain, and the only relatively flat ground is located at the top of the property. Riopharm has been attempting to build a single family residence on its property since the early 1990’s. In order to build upon the property, the City of Los Angeles required Riopharm to replace a 11/2-foot high wall on the right, uphill, side of the driveway with a 15-foot high retaining wall. This construction reduced the width of the driveway on Riopharm’s side of the property line at the entry by about 2.5 feet, to about 12.71 feet.
The code required Riopharm to have 20-foot street frontage and access to the rear of the property. Due to the property’s configuration, the city allowed Riopharm a nonconforming 15.2 foot access, but this measurement included the apron area on Forte’s property.
Years prior to 2005, Forte’s predecessor installed a gate near the bottom of the common driveway. Forte’s predecessor also erected a seven-foot high pilaster on Riopharm’s property on the right-hand side of the driveway and one on Forte’s property on the left-hand side of the driveway. In 2000, Riopharm filed a lawsuit against Forte seeking removal of the gate and the pilaster erected on Riopharm’s property. In 2002, the parties settled the lawsuit with Forte agreeing to remove the gate and pilaster if and when Riopharm obtained a grading permit from the city. Riopharm obtained such a permit in 2005. Forte then removed the gate and the right-hand pilaster.
The gate Forte’s predecessor had installed was controlled by a box (call box) located on the apron, directly in front of the left-hand pilaster. The call box was operated either by inserting a key or using the call box to ring Forte who would open the gate electronically from inside his home.
Since the early 1990’s, numerous persons have visited Riopharm’s property. These included soils investigators, surveyors, an architect, a gardener, contractors, real estate sale agents and brokers, potential buyers, fire department personnel, Los Angeles building and safety personnel, a neighbor and the principals of Riopharm and its attorney. All of these persons had to drive onto Forte’s property, i.e., the disputed apron area located to the left of the driveway, to use the call box either to insert a key or to call Forte to open the gate.
In 2008, Riopharm began construction on its property. The steep hillside to the right of the driveway periodically had shed dirt and debris onto the driveway. Riopharm therefore installed caissons and the higher retaining wall to the right of the driveway to support the steep terrain.
In early April 2008, Forte installed a pole on the apron to the left of the driveway opening near the roadway. This pole made it difficult for large construction vehicles to gain access to the driveway. Riopharm demanded that Forte remove the pole, and Forte refused. This litigation ensued.
A second pole installed close to the call box and left pilaster is not in issue.
PROCEDURAL HISTORY
1. Pleadings and Temporary Restraining Order
Riopharm commenced the present lawsuit in April 2008. A first amended complaint sought a temporary restraining order, a preliminary injunction and a permanent injunction. Among other things, Riopharm alleged that a block wall erected by Forte or his predecessor on the left, downhill, side of the driveway along the property line partially encroached on Riopharm’s property. Riopharm also sought a prescriptive easement for the apron area and requested that Forte be ordered to remove the offending pole under a prescriptive easement.
Riopharm also asserted claims for trespass, ejectment, nuisance, negligence and quiet title.
It was stipulated at trial that the block wall has been located on the property for at least 40 years. The evidence at trial also indicated the wall in part veered into Forte’s property, giving Riopharm use of a portion of Forte’s property.
The trial court issued a temporary restraining order and then a preliminary injunction directing Forte not to interfere with Riopharm’s removal of the pole nearest the street. The pole was removed after the court issued the temporary restraining order.
Forte filed a cross-complaint against Riopharm for damages, declaratory relief and quiet title. Forte alleged that Riopharm’s construction equipment was trespassing off the common driveway and onto Forte’s property, resulting in substantial damage. Forte sought damages for the destruction of trees, shrubbery and a fence caused by Riopharm’s equipment. He also asserted a prescriptive easement to keep and maintain a “concrete drainage device” (the block wall) constructed to prevent flooding on Forte’s property.
2. Trial
The parties proceeded to a bench trial. At trial, the parties proffered evidence in addition to the stipulated facts.
3. Decision
After receiving evidence, which included evidence from a stipulated site visit by the court, and after allowing the parties to provide written and oral arguments, the trial court issued an extensive statement of decision.
On Riopharm’s complaint, the court stated it would grant Riopharm relief by issuing a permanent injunction barring Forte from blocking access to the disputed apron area at the foot of the joint driveway and granting Riopharm a permanent prescriptive nonexclusive easement for access over the apron owned by Forte.
On Forte’s cross-complaint, the court indicated it would grant Forte’s request for an equitable easement for the continued and permanent encroachment of the block wall fence. The court indicated it would award Forte damages of $8,840 for repair of the damage to his wall caused by Riopharm’s construction activities.
The trial court found that the only realistic vehicle access to Riopharm’s property was from the west via Beverly Estates Drive. Although Riopharm had owned its property since the 1980’s, construction on the site was only made possible by modern construction techniques, particularly the development of caissons making it feasible to build upon the flat area of its property at the top and to develop an access below from Beverly Estates Drive. Though Forte formerly looked out upon a natural landscaped canyon hillside, his view now consists of a 15-foot concrete caisson wall, which the city required Riopharm to construct to safeguard against slope failure and which extends along the driveway for some 250 feet. The construction of the wall narrowed the width of the opening of the driveway at the road to 15.21 feet, narrower than permitted by city fire regulations.
The court found the parties’ dispute centers upon the claim of exclusive right to the apron, which is paved and is indistinguishable by the average eye from the Riopharm property at the foot of the driveway. Beverly Estates Drive is a narrow, almost rural, canyon road. It is nearly impossible for two cars to pass in opposite directions with vehicles parked on one side of the street. The approach to the driveway and the apron, the court observed, lies at the beginning of a “U” curve, as Beverly Estates Drive meets Beverly Grove Drive. As one approaches the driveway and apron, one is almost on a straight line pointed directly at the apron.
Although an approaching passenger vehicle could negotiate the turn into the driveway without entering the apron, the court found it “highly probable” the average reasonable driver will drive across the apron, “as a matter of unconscious ease in passage.” The court also found it reasonably probable that a larger vehicle would damage any pole, fence or other obstruction placed on the apron, particularly so given the narrow entry to the driveway.
The court found that most vehicles have used at least some portion of the disputed apron to enter the driveway, and the fire department included the disputed apron in determining that the driveway met fire department standards for adequate width. In response to the court’s questioning, Forte had declined to state he would not refrain from fencing the apron once the construction on Riopharm’s property was concluded.
In issuing its statement of decision, the trial court relied on the “modern, ‘better and more widely held rule’” expressed in Applegate v. Ota (1983) 146 Cal.App.3d 702, 708 (Applegate), and other recent decisions, under which the continuous use of an easement over a long period of time without the landowner’s interference is deemed presumptive evidence of a prescriptive easement, shifting the burden of proof to the landowner to show the use was permissive or neighborly rather than hostile. The court found Riopharm had met these requisites of a nonexclusive prescriptive easement.
In contrast, the court was not persuaded by Forte’s attempt to show past use of the apron was not hostile, but permissive. The court found insufficient Forte’s argument that prior to the gate’s removal a user of the apron would either have to obtain a remote control device from him or enter the apron to use the call box to seek access, thus making any use permissive. The court instead found that any user of the apron had to enter the apron even before reaching the call box or using a remote control device.
The court noted, moreover, that Forte was placed on notice as early as 2000 that Riopharm did not believe Forte’s permission was required to enter the apron, when Riopharm brought suit to remove the gate. The court cited Forte’s testimony that he was aware people were using the remote device and entering the apron without first seeking his permission. The court observed that Forte had made no effort to stop visitors from traveling over the apron, either by contacting Riopharm or posting signs or by preventing entry with any mechanism, until he suddenly erected obstructing poles in 2008. The court concluded under all the evidence the relationship between the parties indicated an adverse use rather than one born of neighborly accommodation.
The trial court found an equitable basis for alternatively granting Riopharm an equitable easement, but it determined there was no current appellate authority authorizing such relief absent an encroachment. We need not reach this issue, as we determine, post, that the court properly granted Riopharm a prescriptive easement under the factual circumstances of this case.
The trial court noted Riopharm did not appear to be seeking removal of Forte’s block wall, which encroached upon Riopharm’s property. However, the court construed Forte’s cross-complaint, which referred to the block wall as a “drainage device, ” as seeking quiet title to the block wall. Because the parties stipulated the wall had been present in its current location for at least 40 years, the trial court found the wall is “clearly a permanent structure upon the property.” The court concluded the block wall satisfied the essential requirements for an equitable easement, namely, that a party has used and improved the easement “‘for a long period of time with an innocent belief that he or she had a right to use the easement, ’” that “‘there would be irreparable harm if the party could not continue to use the easement, ’” and that the “‘servient tenement, ’” i.e., the Riopharm property, “‘would suffer little harm from further use of the easement.’” (See Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749 (Hirshfield).) Unlike the apron, which the court found was under a prescriptive but not equitable easement, there was no question the block wall was an encroaching structure, and thus it found an equitable easement to be appropriate.
The court further found no dispute that the block wall has been damaged, the only issues being the extent of the damage, whether the wall should be replaced or merely repaired and the cost of repair. The court stated that Riopharm’s own expert opined the cost of repair would be $4,300, with an additional $3,500 needed to repair the stucco on one side of the wall. Forte’s expert, however, opined the entire wall needed to be replaced and rebuilt with rebar to prevent further damage to the wall from construction vibrations, at a total cost of $59,000 or $80 per square foot. The court did not find the latter testimony compelling and concluded damages of $7,800 were appropriate for repair of the damaged portion of the wall.
As Forte points out in his cross-respondent’s brief, Riopharm’s expert actually testified the cost to repair the wall was $4,340, for a total amount of $7,840 if the cost of stuccoing one side of the wall were included.
Having found the repair of the damaged portion of the block wall would cost $7,800, the court concluded that Forte was entitled to an award of $8,840 for repair of damages to the wall. Both the court’s written findings and its minute order recited that “the court awards damages to [Forte] in the sum of $8,840 for repair of damage to [Forte’s] block wall fence.”
The court directed Riopharm to prepare a judgment with its findings, and the court entered a judgment accordingly.
Neither party called the court’s attention to the potential discrepancy between the repair estimate the court purported to attribute to Riopharm’s expert ($7,800) and the court’s award of damages ($8,840) even though both figures appeared on the very same page in the court’s statement of decision. Riopharm proceeded to incorporate the $8,840 figure in its proposed judgment, which the court signed, and neither party moved for a new trial or to vacate the judgment.
Forte timely appealed from the judgment, and Riopharm filed a timely cross-appeal.
STANDARD OF REVIEW
In determining Riopharm to be entitled to a prescriptive easement over the apron and Forte to an equitable easement regarding his right to continued and permanent encroachment of the block wall fence, and denying other relief, the trial court exercised its equity powers. (See Hirshfield, supra, 91 Cal.App.4th at p. 771.) We review the trial court’s equitable determinations for abuse of discretion. (Hartford Casualty Ins. Co. v. Travelers Indemnity Co. (2003) 110 Cal.App.4th 710, 724.) We will reverse the court’s exercise of discretion only if its application of the law to the facts is “arbitrary and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 712; see Shamblin v. Brattain (1988) 44 Cal.3d 474, 478 [“exceeded the bounds of reason”].) Moreover, “[a]s a reviewing court, we do not reweigh evidence or reassess the credibility of witnesses.” (Peak-Las Positas Partners v. Bollag (2009) 172 Cal.App.4th 101, 108; see also Estate of Young (2008) 160 Cal.App.4th 62, 76.) To the extent an appellant takes issue with factual determinations of the trial court, our power begins and ends with the determination whether, based on the entire record, substantial evidence, contradicted or uncontradicted, supports the court’s findings, and when two or more inferences can reasonably be deduced from the facts, we are without power to substitute our deductions for those of the trial court. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
Whether the requirements for a prescriptive easement are established is a question of fact for the trial court. (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570 (Warsaw).) Although the trial court’s finding of the existence of a prescriptive easement must be based upon clear and convincing evidence (Applegate, supra, 146 Cal.App.3d at p. 708), we will not disturb the court’s decision on appeal if there is substantial evidence to support the court’s conclusion. (Ibid.)
DISCUSSION
1. Appeal
A. Prescriptive Easement
To establish the elements of a prescriptive easement, a claimant must prove use of land that is open and notorious, hostile to the original owner, under a claim of right and continuous for five years. (Applegate, supra, 146 Cal.App.3d at p. 708; see Warsaw, supra, 35 Cal.3d at p. 570; Code Civ. Proc., § 321; Civ. Code, § 1007.) The prescriptive easement requirements ensure the owner of the real property being encroached upon has actual or constructive notice of the adverse use and has sufficient time to take necessary action to prevent that adverse use from ripening into a prescriptive easement. (Brewer v. Murphy (2008) 161 Cal.App.4th 928, 938-939.) In contrast to adverse possession, a prescriptive easement does not require the payment of taxes. (Gilardi v. Hallam (1981) 30 Cal.3d 317, 321-322.) Moreover, a prescriptive easement is not a right to ownership, but only a right to a specific use of another’s property. (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1306-1307.)
The general view is that continuous use of an easement over a long period of time without the landowner’s interference is presumptive evidence of its existence and is sufficient to sustain a judgment absent evidence of mere permissive use. (Warsaw, supra, 35 Cal.3d at pp. 571-572; Applegate, supra, 146 Cal.App.3d at pp. 708-709.) 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.” (Warsaw, supra, at p. 572; see also Applegate, supra, at p. 709.) Once a prima facie case is shown by the party claiming the easement, the burden of proof shifts to the landowner to show the use is permissive, not hostile. (Appelgate, at p. 709; but see Grant v. Ratliff (2008) 164 Cal.App.4th 1304, 1310 [disagreeing that any presumption is raised, but stating, “If a presumption is warranted, we agree with the trial court that it is one affecting the burden of producing evidence”].)
We conclude substantial evidence supports the trial court’s finding that Riopharm established a prescriptive easement for using the apron to enter the common driveway. The evidence shows (1) an open and notorious use of the apron, (2) hostile and adverse to Forte’s rights, (3) under a claim of right and (4) that continued for at least five years prior to the time Forte erected the posts.
B. Open and Notorious
There was no evidence that Riopharm concealed use of the apron to enter the driveway or used the apron surreptitiously. Riopharm showed that during the time the gate was in place, visitors to Riopharm’s property had to pull up on the apron to use the call box either to open the gate with a key or to call Forte to open the gate. Riopharm’s employees, workers and agents testified at trial that during the period the gate was in place they routinely crossed over the apron whenever they entered the driveway. Others working for Riopharm had a “clicker” that operated like a garage door opener to open the gate. But these persons continued to use the apron area to enter the driveway to gain access because the opening was too narrow to make the turn. Because the apron was paved and appeared to be part of the driveway, those using the driveway typically crossed over the apron when making the turn between the driveway and roadway. Even after the gate was removed, the configuration of the adjoining roads made it necessary to make a sharp “S” turn to gain access to the driveway. Accordingly, persons entering the driveway had long used some of the apron as a shortcut to straighten out the “S” curve.
The evidence at trial showed that Forte himself, as well as his housekeeper, gardener and pool maintenance man, all drove over the apron when entering or leaving the driveway.
Forte had actual or constructive knowledge the apron was being used in this manner. He testified that when he acquired his property, a video camera was in place on the left side of the driveway pointed toward the entrance, and he could observe who was using the driveway from a monitor inside his home. He also admitted that the driveway entry was visible from his den. Even though Forte testified he did not in fact continuously view the monitor, he had the opportunity to do so. Actual knowledge of the landowner need not be shown for a prescriptive easement. (See Applegate, supra, 146 Cal.App.3d at p. 709 .) Visible, open, and notorious use of the land is sufficient to impart actual or constructive notice to the owner. (Ibid.;Connolly v. McDermott (1984) 162 Cal.App.3d 973, 977; Twin Peaks Land Co. v. Briggs (1982) 130 Cal.App.3d 587, 593 (Twin Peaks).)
C. Hostile and Adverse
The evidence also sufficiently indicated Riopharm’s use of the apron was hostile and adverse to Forte’s rights. “Adverse use” means only that the claimant’s use of the property was without explicit or implicit permission of the landowner. (Aaron v. Dunham (2006) 137 Cal.App.4th 1244, 1252; Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 450.) Riopharm never asked Forte for permission to use the apron. Riopharm’s witnesses testified they typically crossed over the apron with their vehicles to enter the driveway from the 1990’s onwards until Forte erected the pole next to the roadway. There was no evidence that Riopharm ever acknowledged Forte’s ownership or control over the apron. Riopharm used the apron openly without permission since the 1980’s, and no one questioned Riopharm’s use of the apron until Forte erected the pole in 2008. The court’s finding Riopharm’s use was hostile and adverse to Forte’s interests is amply supported by the evidence.
D. Claim of Right
The evidence also supports a finding that Riopharm used the apron under a claim of right. A “claim of right” 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.) Use of property in a manner that clearly indicates the user does not seek permission may, in and of itself, be sufficient to prove such use was under a claim of right. (O’Banion v. Borba (1948) 32 Cal.2d 145, 149.) No evidence was produced to show anyone ever asked for or received Forte’s permission to use the apron or that use of the apron was denied anyone prior to Forte’s installation of the pole in April 2008. (See Cleary v. Trimble (1964) 229 Cal.App.2d 1, 3-5, 11.) Forte could have erected permissive user signs or taken other actions to prevent the continuous use of the apron prior to installing the pole, yet he did not do so. (See Applegate, supra, 146 Cal.App.3d at p. 710.) There was no evidence that Riopharm sought or obtained Forte’s express consent or any lease or license to use the area in dispute, nor was there evidence Riopharm denied any adverse claim with respect to the apron. The court could reasonably conclude Riopharm was using the apron under a claim of right.
To the extent Forte offered evidence to the contrary, the court expressly found such evidence unpersuasive.
E. Continuous Use
It could also be reasonably found from the evidence that Riopharm made continuous use of the apron from the 1980’s until Forte blocked access over the apron in 2008. The testimony showed Riopharm used the apron from time to time as required in the course of developing its property. In Twin Peaks, the court held that evidence the claimant or its predecessors used a right of way over the defendant’s property to gain access to the claimant’s property from time to time as necessary over a course of years constituted a “continuous” use. (Twin Peaks, supra, 130 Cal.App.3d at p. 593.) Riopharm similarly used the apron to gain access to its driveway as needed over the course of years, and Forte did not question or prevent such use. (See Warsaw, supra, 35 Cal.3d at pp. 571-572.)
2. Permissive Use
Nor did the evidence compel a conclusion that Riopharm was a mere permissive user. “‘[W]hen one who claims an easement by prescription offers satisfactory evidence that all the required elements existed, the burden of showing that the use was merely permissive shifts to the owner of the land.’” (Twin Peaks, supra, 130 Cal.App.3d at p. 594.) Forte asserted the bare fact he installed a gate that required visitors to use a key for access, to telephone him from the call box or to use clickers that he provided to Riopharm established Riopharm was a mere permissive user of the apron. The court, however, concluded otherwise on the conflicting evidence. The evidence was that no permission was ever asked for nor was any given for users to enter the apron, and, until Forte erected the pole barring access, no one ever questioned the right of visitors to use the apron.
Forte contends the trial court’s grant of a prescriptive easement over the entire apron was error because there was no evidence of Riopharm’s line of travel over the apron. (See Warsaw, supra, 35 Cal.3d at p. 571.) This argument at heart attacks the court’s finding of a prescriptive use of the apron. The court visited the site and observed the apron, the adjoining roadways and the driveway and determined the line of travel over the apron that was necessarily or customarily taken by large trucks as well as passenger cars. The relatively small dimensions of the apron are such that even if there was a line of travel requirement the customary route of such vehicles would be obvious. Slight deviations from an accustomed route, moreover, will not defeat a prescriptive easement. (Ibid.) Forte’s argument is without merit.
The trial court therefore did not err in concluding Riopharm acquired a prescriptive easement to use the apron area owned by Forte.
3. Cross-appeal
On cross-appeal, Riopharm attacks the trial court’s grant of an equitable easement for the block wall and damages for its repair. We conclude the cross-appeal is not well taken as to either claim of error.
A. Equitable Easement
Riopharm argues that the trial court erred in granting Forte an equitable easement insofar as the block wall fence encroaches on Riopharm’s property because (1) the easement is unlimited in duration and scope; (2) Forte never pleaded a claim for equitable easement; and (3) Forte failed to prove the elements necessary for an equitable easement. We disagree.
Riopharm argues that in granting the equitable easement, the trial court improperly applied Hirshfield, supra, 91 Cal.App.4th 749. Hirshfield articulated the relative hardship doctrine, which sets forth the criteria under which courts consider whether to grant an injunction prohibiting a trespass on another’s real property. (Id. at p. 758.) In doing so, Hirshfield indicated the appropriate test in determining whether to grant an injunction ordering removal of encroachments from another’s land was stated in Christensen v. Tucker (1952) 114 Cal.App.2d 554 (Christensen). (Hirshfield, supra, at p. 754.)
The doctrine is also referred to as the doctrine of “balancing of equities, ” “balancing conveniences” and “comparative injury.” (Hirshfield, supra, 91 Cal.App.4th at p. 754, fn. 1.)
The parties in Hirshfield were adjoining owners of residential property, and the plaintiffs sought an injunction ordering the removal of certain improvements, including a chain link fence, waterfalls, a koi pond and stone deck, a putting green, a sand trap, and a concrete block wall, all constructed by defendants on plaintiffs’ property. (Hirshfield, supra, 91 Cal.App.4th at pp. 755-756 .) The plaintiffs claimed they needed access to this portion of their property so that they could build a driveway and a greenhouse. (Id. at pp. 756-757.) The trial court denied plaintiffs an injunction and awarded the defendants an equitable easement to the disputed area. (Id. at p. 757.)
The appellate court rejected the plaintiffs’ claim that the trial court had misapplied the relative hardship doctrine. (Hirshfield, supra, 91 Cal.App.4th at p. 758.) The court found that Christensen authoritatively discussed the appropriate test whether to enjoin a trespass caused by an encroachment. (Hirshfield, supra, at p. 759.) Specifically, once the court determines a trespass has occurred, the court must balance the equities to determine “whether to grant an injunction prohibiting the trespass, or whether to award damages instead.” (Ibid.) The test is subject to the overarching principle that because the trespasser is the wrongdoer, doubtful cases should be decided in the plaintiff’s favor. (Ibid.; see Christensen, supra, 114 Cal.App.2d at p. 562.)
To deny an injunction, the court must consider three factors: (1) the encroaching defendant must be innocent, and the encroachment must not be the result of the defendant’s willful or negligent act; (2) unless the rights of the public would be harmed, the court should grant the injunction if the plaintiff owner of the property being encroached will suffer irreparable injury irrespective of the harm to the defendant; and (3) the hardship to the defendant from granting the injunction must be greatly disproportionate to the hardship to the plaintiff from allowing the encroachment to continue, and this must be clearly proved by the defendant. (Hirshfield, supra, 91 Cal.App.4th at p. 759; see Christensen, supra, 114 Cal.App.2d at pp. 562-563.) Moreover, the affirmative relief granted the encroaching defendant should be no greater than is reasonably necessary to protect the defendant. (Hirshfield, at p. 763, fn. 9; see Christensen, at p. 563; see also Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 268 (Linthicum).)
Riopharm argues that the trial court erred because, unlike Hirshfield in which the equitable easement was limited in duration and scope and the encroacher ordered to pay compensation to the property owner in exchange, there is no limit on the scope and duration of the easement granted here and no compensation payable by Forte to Riopharm.
As Hirshfield explained, the refusal to order the removal of improvements on another’s land constitutes “‘a judicially created easement by a sort of non-statutory eminent domain.’ [Citations.] However, the courts are not limited to judicial passivity as in merely refusing to enjoin an encroachment. Instead, in a proper case, the courts may exercise their equity powers to affirmatively fashion an interest in the owner’s land which will protect the encroacher’s use.” (Hirshfield, supra, 91 Cal.App.4th at pp. 764-765.)
As Hirshfield explains, nothing in cases such as Christensen “suggests that when exercising its powers in equity, the trial court may grant only a limited easement and no more. Nor do they suggest that the equitable property interest so created is subject to the strict rules of law which govern easements. Indeed, to hold otherwise would be contrary to the very essence and spirit of equity.” (Hirshfield, supra, 91 Cal.App.4th at p. 770, fn. omitted.) Thus, the interest created by the court in affording equitable relief “will be affirmed unless it amounts to an abuse of the trial court’s discretion.” (Id. at p. 771.) The trial court granted in favor of the Forte property, and against the Riopharm property, a right to a continued and permanent encroachment of the block wall fence. The court found the balance of hardships militated against an injunction directing Forte to remove his wall. We find no abuse of discretion in the court’s fashioning of an equitable remedy here.
This is not a doubtful case. It was undisputed that the Riopharm property suffered no harm from the block wall, and Riopharm was not prevented from using the driveway easement because of the block wall. On the other hand, the evidence established the block wall is a matter of necessity to prevent damage to the Forte property. Forte showed that a flood occurred in 2000 and, except for the pool area, the block wall protected Forte’s property from mud and debris that washed down from Riopharm’s property. Forte later extended the block wall to protect the area around his pool. Removal of the wall would certainly expose Forte’s property to the possibility of future inundations and damage.
The trial court noted that Riopharm had not asked for removal of the block wall in its complaint; however, in seeking “quiet title” for a “prescriptive easement” in his cross-complaint, the court found Forte in effect was requesting equitable relief from the court. The court did not err in that determination. Even though a person who encroaches on a residential boundary cannot establish an exclusive prescriptive easement, in ruling on an owner’s request for injunctive relief, the court may refuse to enjoin the encroachment and “exercise [its] equity powers to affirmatively fashion an interest in the owner’s land which will protect the encroacher’s use.” (Hirshfield, supra, 91 Cal.app.4th at p. 765.) We find the pleadings sufficient to invoke the court’s equity powers here.
A prescriptive easement is an inappropriate remedy in a “garden-variety residential boundary encroachment” when the encroachment effectively completely prohibits the true owner from using his land. (Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1093 (Harrison).)
In particular, Riopharm’s complaint alleged a partial encroachment by the block wall and claimed “irreparable injury... to the extent that the encroaching wall... interfere[s] with [Riopharm’s] ability to develop [its] property, or fully access it and use the property.” Riopharm prayed for injunctive relief compelling Forte to remove the encroachment, to refrain from interfering with Riopharm’s full access to its property and for a judgment “determining the rights and interests of the parties to such area in dispute.” Forte’s amended cross-complaint alleged the “concrete drainage device, ” i.e., the block wall, had been in place continuously for more than 20 (in fact, 40) years, was openly visible and prevented excessive surface water and mud runoff from Riopharm’s property to the Forte property. Forte alleged the parties desired a judicial determination of their respective rights as to the concrete drainage device and prayed for a declaration quieting title that Forte has a “prescriptive” easement to maintain the concrete drainage device in its present location.
These pleadings sufficiently raised the court’s power to grant Forte an equitable easement. (See Harrison, supra, 116 Cal.App.4th at p. 1093, fn. 5; Hirshfield, supra, 91 Cal.App.4th at p. 765.)
Riopharm further claims the elements of equitable easement are not satisfied because there was no evidence Forte had an “innocent belief” the retaining wall was on his own property. This issue is left to the court’s sound discretion, and we find no cause to overturn the court’s exercise of discretion in this regard. (Christensen, supra, 114 Cal.App.2d at p. 563 [court should weigh encroacher’s conduct “to ascertain if he is in any way responsible for the situation”]; accord, Linthicum, supra, 175 Cal.App.4th at pp. 266-267.) There was no evidence Forte was responsible for the encroaching portion of the block wall, which was in place when he acquired his property.
We also find no error in the court’s failure to order Forte to pay compensation as damages to Riopharm in granting the easement. The evidence showed the block wall partially was on Forte’s property as well as encroaching upon Riopharm’s property. Because Riopharm thus obtained an advantage from the block wall, the court could have reasonably determined no net compensation should be awarded to Riopharm in balancing the equities. In any case, the court cannot award damages in the abstract. Riopharm had the burden of proving damages from the use of its property and failed to make any showing of such value. (Linthicum, supra, 175 Cal.app.4th at p. 268.)
B. Damage to Block Wall
As we have noted elsewhere, there was an apparent discrepancy between the cost of repair of Forte’s block wall that Riopharm’s expert testified to and the amount of damages the trial court awarded to Forte. Riopharm notes that one witness even testified it would cost merely $2,500 to repair the block wall and at most the amount awarded should be $7,800. Even then, Riopharm claims, the $7,800 should be offset by $1,050 because if one side were to be stuccoed and the other side painted, then half of the cost of painting the wall should be deducted.
Forte concedes the trial court’s statement of decision is “internally inconsistent” in the award of damages to Forte. He admits the court awarded him damages of “$7,800 for repair of the damaged portion of the wall” and, on the very same page, summarized its decision as awarding damages “in the sum of $8,840 for repair of damage to [Forte’s] block wall fence.” Forte states the trial court apparently adopted the testimony and damages estimates given by Riopharm’s expert, noting the amount the expert actually testified to was “neither $8,840 nor $7,800” but rather $7,840. Forte quotes the expert’s testimony during trial and argues that Riopharm’s argument does not reflect what the expert actually said. Forte states that Riopharm’s real contention is that its own expert erroneously failed to consider the savings from not having to paint one side of the wall if it were stuccoed.
Two truths are obvious to this court: (1) neither party brought the claimed discrepancy in damage figures to the trial court’s attention, and (2) the fact the parties are having the argument at all indicates the evidence presented at trial created room to differ in calculating the amount of damages. It is the court’s province as finder of fact to resolve conflicting evidence and to determine the extent of Forte’s damage. A reviewing court will not question the discretionary determinations of the finder of fact so long as they fall within a reasonable range permitted by the evidence. (Abbott v. Taz Express (1998) 67 Cal.App.4th 853, 856-857 [trier of fact not bound by value of nontechnical services announced by expert but may bring to bear its own general knowledge].) The amount of damages actually awarded in the judgment, $8,840, is within a reasonable range of the evidence presented to the court, i.e., $2,500 to $59,000. Thus, there is substantial evidence to support the damages awarded.
As to whether the court should have allowed Riopharm to repair the wall in lieu of paying damages, the issue was never presented to the trial court. In its closing trial brief, Riopharm primarily claimed Forte was seeking an excessive amount of damages. Riopharm never argued or even suggested the court was obliged to allow it an option to repair the wall as an alternative to damages. Riopharm simply argued that “[i]f Riopharm contractors are to repair any damage, they must have the right to go onto the Forte property.”
The court gave each party the opportunity to raise additional issues orally before submission, and Riopharm failed to argue it was entitled to an option whether to repair or pay damages. We may treat the issue as forfeited. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-592 [claims that could have been but were not presented to trial court generally deemed forfeited]; see also McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784, 805, fn. 9 [contention raised for first time on appeal forfeited].)
In any case, we find no abuse of discretion. It was well within the court’s discretion to fashion an appropriate remedy to make Forte whole for the damage to his block wall.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
We concur: BIGELOW, P. J., RUBIN, J.