Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. CGC-05-438255
Reardon, J.
Following a trial without a jury, the court entered judgment in favor of appellant Andrew Solow in the amount of $102 on his complaint for trespass prosecuted against his neighbor, respondent Elaine O’Brien. However, the trial court also ruled that (1) Solow was not entitled to an easement in his neighbor’s side yard; (2) the neighbor’s fence, sprinkler heads, and sprinkler water spray constituted a de minimis trespass but not a nuisance; and (3) Solow was not due injunctive relief. On appeal, Solow attacks each ruling. We affirm the judgment.
The sprinkler heads on O’Brien’s property have been moved and their trespass is no longer an issue on appeal, just the damages for the past trespass.
I. FACTS
In approximately 1960, Standard Construction Company (Standard) built homes in the Forest Knolls Subdivision No. 2 in San Francisco, including adjacent homes at 58 and 72 Lake Forest Court (LFC). 72 LFC is to the left or east and slightly uphill from 58 LFC when looking at the front of the homes. Standard built these two homes in an identical manner, leaving a three-foot buffer or side yard setback from the sidewall of each home to the actual property lines. Thus, these two side yard setbacks allowed for a six-foot separation between the sidewalls of 58 and 72 LFC. Within this six-foot separation, Standard placed the stairway leading to 58 LFC’s entrance along its east-facing walls (left side of the house) while they left 72 LFC’s west-facing side yard setback (right side of the house) without a structure, creating a path between its front and back yards. In essence, looking at the front of 58 and 72 LFC from the street, 58 LFC’s stairway and 72 LFC’s three-foot side yard pathway abut against one another.
In late 1960, the O’Briens bought the property at 72 LFC. Nine months later, the Sudjian family bought 58 LFC. While growing up in 58 LFC, from 1961 to 1981, Karen Sudjian used O’Brien’s right side yard setback to access their backyard. In 2002, Solow bought the property from the Sudjian estate. When Solow purchased 58 LFC, he could access his backyard through his garage and lower-level living area and by way of the right side yard setback.
Soon after purchasing 58 LFC, Solow remodeled the garage area, adding a lower-level living space for future tenants, thereby limiting his ability to access the backyard through the lower level. Subsequently, Solow began accessing his backyard by using O’Brien’s three-foot right side yard setback area to walk around the stairway on the left side of his house. To aid this use of O’Brien’s right side yard setback area, Solow removed a shrub on O’Brien’s property and placed stepping stones on her property that provided a path around his stairway, without O’Brien’s permission. After doing so, O’Brien removed the stones and replanted her shrub in the right side yard area. Again, without her permission, Solow unearthed the shrub and placed the stepping stones back on O’Brien’s property, reestablishing the walking path around his stairway to access his backyard. In spite of Solow’s repeated harassment of O’Brien’s hired carpenters, she built a fence along their shared property line and placed a gate between her home and the fence, blocking access to her right side yard setback area. It was later discovered that the fence’s lengthwise midpoint, at the top, encroaches two inches onto Solow’s property while the ends of the fence encroach approximately one inch onto his property. From the time that O’Brien purchased 72 LFC until 2002, when Solow bought 58 LFC, there has been no recorded easement for the owners of 58 LFC to use her three-foot right side yard setback area.
O’Brien testified that Solow threatened two of the carpenters she hired to build her fence. She testified that Solow told the first carpenter that he would sue him if he built the fence and he threatened the second carpenter, saying that he would report him to the Internal Revenue Service and ruin his credit. Ultimately, O’Brien’s nephews built the fence.
In 2005, Solow filed an amended complaint for declaratory relief requesting a finding of an implied or prescriptive easement in O’Brien’s right side yard setback area, and for nuisance as well as trespass. O’Brien cross-complained for trespass, breach of contract, negligence and intentional infliction of emotional distress. The trial court awarded Solow de minimis trespass damages, but ruled against him in his easement and nuisance claims and the request for injunctive relief.
O’Brien’s cross-complaint is not an issue on appeal.
II. DISCUSSION
A. Easements
On appeal from a declaratory judgment ruling, deciding matters of law on undisputed facts, we review the trial court’s findings de novo. (See Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799; see also Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888.)
Solow argues that the evidence supports his belief that he has an implied or prescriptive easement to use O’Brien’s right side yard setback. He reasons that when Standard built 58 and 72 LFC, the builders had to use the setback areas between the homes to build them which is sufficient to support a finding of an implied easement. In support of his prescriptive easement argument, Solow argues that the Sudjians used O’Brien’s right side yard setback area daily for decades to access their backyard.
1. Implied Easement
Civil Code section 1104 provides that when an owner of two adjoining parcels of real property sells one parcel, the purchaser acquires the property with all the attendant benefits attached to it as between the purchased parcel and the seller’s retained original parcel. In other words, if the original owner of both parcels, before selling the other parcel, “obviously and permanently” used a portion of his or her retained parcel in such a manner that is reasonably necessary for the beneficial enjoyment of the purchaser’s parcel, then an implied easement to use the owner’s retained parcel existed at the time of the sale and will inure for the benefit of the purchaser’s use. (Ibid.; see Fristoe v. Drapeau (1950) 35 Cal.2d 5, 8.) However, implied easements are not favored and only “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.” (Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 141, fn. omitted.)
Here, the undisputed facts fail to establish that Solow is entitled to an implied easement because Solow did not show that use of O’Brien’s right side yard setback is reasonably necessary for the beneficial enjoyment of his land. In order for a court to find an implied easement, “its use must be more than ‘merely convenient’ to the alleged dominant tenement . . . .” (Leonard v. Haydon (1980) 110 Cal.App.3d 263, 273.) Solow testified that he is seeking an easement to use O’Brien’s property as “a matter of convenience . . . [and] of not being forced to grovel and crawl so that [he] can access[,] maintain and use [his] property.” Furthermore, Solow testified that he can access his backyard by using his own right side yard setback on his property as an alternative to using O’Brien’s right side yard setback area. Thus, the finding of no implied easement stands because an easement is not reasonably necessary to enable Solow to access his backyard and beneficially enjoy his property.
2. Prescriptive Easement
To establish a claim for a prescriptive easement, Solow must have shown that he continuously used O’Brien’s right setback area for five years in an open and notorious manner, which was hostile and adverse to her estate, under a claim of right. (Civ. Code, § 1007; Code Civ. Proc., § 321; Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570; Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449.) In satisfying the temporal requirement, a prescriptive easement claimant may present evidence of prior users who used the disputed easement to tack together the five-year term. (See Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 432.) However, in order to tack on a prior user’s time, the prior user must have also satisfied the prescriptive easement elements in his or her use of the claimed property. (See ibid.)
Here, Solow has failed to satisfy the first element of his claim for a prescriptive easement to O’Brien’s right side yard setback area. He purchased 58 LFC in 2002 and claimed to use O’Brien’s right side yard setback area for his use until she built the fence in 2004. Thus, on its face, Solow’s claim for a prescriptive easement fails because his continuous use lasted less than the statutorily mandated five-year period.
While Solow attempts to stitch together the prior use of his predecessor in interest, the Sudjians, their use of O’Brien’s side yard setback was not under a claim of right. Karen Sudjian testified that, as a child, she used O’Brien’s right side yard setback to access their backyard and the use continued until 1981. However, as she passed over the neighbor’s setback area, she was not attempting to assert any legal right to do so. Thus, Solow’s attempt to tack the Sudjians’ prior use fails.
B. Nuisance
Solow also challenges the trial court’s finding that O’Brien’s fence and sprinkler water spray do not constitute a nuisance. He reasons that these items interfere with the comfortable enjoyment of his property and hence constitute a nuisance.
On review of a trial court’s ruling on a claim of nuisance, we apply a substantial evidence standard, deciding if, “on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the [trial court’s] determination . . . .” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.) A nuisance is “[a]nything which is injurious to health . . ., or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . .” (Civ. Code, § 3479.) A nuisance may be found when a party actually and physically encroaches upon the land of another in a substantial manner. (Case v. Sisich (1929) 97 Cal.App. 106, 110.) However, a party’s encroachment onto another’s land does not automatically warrant equitable relief if it can be shown that the encroachment was slight in nature and not caused by a willful act. (Christensen v. Tucker (1952) 114 Cal.App.2d 554, 563-564.) Further, if a plaintiff proves a slight encroachment, courts may weigh the relative hardships of the defendant being forced to remove the encroachment versus the gravity of the encroachment’s harm against the plaintiff. (Ibid.)
There is substantial evidence that O’Brien’s fence encroachment and seasonally sporadic sprinkler spray onto Solow’s property was slight, not warranting a finding of nuisance. The middle of O’Brien’s fence lies two inches into Solow’s property while the ends of it encroach by only one inch. This slight encroachment does not interfere with Solow’s comfortable enjoyment of his property. Also, there is no interference from the sprinkler spray because the sprinkler is used only in the early morning during a few dry months of the year and does not impair the enjoyment of his property. While the spray may land on Solow’s property in a trivial manner, it is likely that the amount is much less than what pools up during San Francisco’s rainy season. Solow had not suffered an actionable nuisance.
C. Evidentiary Error, Injunctive Relief and Trespass Damages Arguments Waived
Finally, Solow makes three arguments with no citations to authority or to the record on appeal, claiming that (1) the trial court should have admitted into evidence pictures of his neighborhood to show other homes with the same side yard setback areas without gated fences; (2) injunctive relief should have been granted, requiring O’Brien to remove the fence or allowing him to remove it; and (3) trespass damages were inadequate. California Rules of Court, rule 8.204(a)(1)(C) requires that an appellant’s brief contain citations to the record on appeal and a cognizable legal argument relevant to each appellate issue (id., rule 8.204(a)(1)(B)). Solow’s brief does not satisfy these requirements on the above arguments, and thus these matters are waived. (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.)
Furthermore, on appeal we presume that the trial court’s decision is correct. We indulge all intendments and presumptions in support of it on matters on which the record is silent, and an appellant must affirmatively show error in order to prevail on appeal. This is not simply a principle of appellate practice, but an ingredient of the constitutional doctrine of reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Shepherd v. Greene (1986) 185 Cal.App.3d 989, 994.) Regarding Solow’s three unsupported arguments, he did not affirmatively show error in the trial court that would warrant reversal of its decision.
III. DISPOSITION
The judgment is affirmed. O’Brien’s motion for sanctions is denied.
We concur: Ruvolo, P.J, Sepulveda, J.