Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 1-06-CV-065286
ELIA, J.NMHCS appeals from a judgment quieting title to a prescriptive easement, for vehicular, pedestrian and equestrian ingress and egress in a 40 foot strip of land, extending from the end of John Wilson Way for 198 feet along the northwest boundary of the parcel owned by respondent Rod L. Braughton, in favor of respondent Braughton and respondents Toribio Valdivia and Luz Valdivia. The judgment permanently enjoins appellant, which owns the servient tenement, from interfering or obstructing the use of the easement and awards damages of $9,450 through April 2, 2008 to respondent Braughton and to respondents Valdivia and fixes future damages for obstruction after April 2, 2008.
Appellant contends the trial court failed to adequately describe the scope of the prescriptive easement, respondents were not entitled to any damages and, regardless, Civil Code section 1007 barred respondents from acquiring an easement by prescription. We modify the judgment and affirm it as modified.
All further statutory references are to the Civil Code unless otherwise stated.
A. Evidence
The evidence properly viewed (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660; see also Taormino v. Denny (1970) 1 Cal.3d 679, 686 [prescriptive easement]; O'Banion v. Borba (1948) 32 Cal.2d 145, 147-148 [same]) shows the following.
Appellant NMHCS, a public benefit corporation, was incorporated in 2003 and, on April 9, 2003, purchased the property located at 105 John Wilson Way and there began operating Oakwood Country School. Both respondent Braughton's and respondents Valdivias' separate properties abut appellant's land on the southeast. The disputed area in this case was a rectangular area beyond the end of John Wilson Way that was obstructed in August 2005 when appellant installed a locked double gate in the barrier fence at the end of John Wilson Way and erected a temporary construction fence.
A school had been previously operating on the John Wilson Way property purchased by appellant. Morgan Hill Country School, the predecessor school, began construction of its facilities in 1998. It opened in fall 1998 using portables and substantially completed construction in early fall 1999. A parcel map, signed by the city clerk in acceptance of the dedicated easements, showed a 42 foot dedication of John Wilson Way with an adjacent 10 foot public service easement and a 52 foot wide public service easement extending beyond the end of John Wilson Way, which intersects with a 70 foot wide storm drain easement in the back of the school property. "As-built" documents submitted to the City sometime before September 3, 1999 in connection with the City's acceptance of public improvements showed a street barrier and access gate had been erected at the end of John Wilson Way.
Respondent Braughton first visited the property that he ultimately purchased in late summer 1999. Although the property had a postal address on Monterey Road, the only public access to the property was through John Wilson Way. At the end of John Wilson Way, the asphalt pavement stopped and the road became an oil and screen roadway, a type of country pavement. Braughton's property could be accessed by going left at the end of John Wilson Way before the barrier fence or from the oil and screen roadway after going through the fence opening.
On his initial visit, Braughton reached the property through the unobstructed opening in the fence at the end of John Wilson Way and continued on the oil and screen roadway, which was a natural continuation of the right side of John Wilson Way. Before purchasing the property, Braughton and his friend Dallas Sutton visited it and they entered the property through the gate opening.
In early October 1999, Braughton closed escrow on the property. Braughton worked at the property about 20 days per month during the period between close of escrow and about January 2000, when he moved into the cottage on the property. He reached his property either through the gate opening at the end of John Wilson Way or by going to the left around the fence. There were no obstacles or impediments to proceeding through the gate opening at the end of John Wilson Way.
Braughton's friend Sutton assisted with some of the clean up and grading of the property. Sutton entered Braughton's property by traveling through the opening in the fence, which was consistent with the natural flow of traffic. Braughton noticed there was no right side gate when cleaning up star thistle and grass near the fence, which he believed to be in November or early December 1999.
There were a number of other structures on Braughton's property. He rented the main house on the property to a couple with children who moved in during December 1999. They lived there until about June 2005. They entered the property through the gate opening in the fence, made an immediate U-turn in front of the main house, and exited along the drive that directly accessed John Wilson Way. Other people going to the main house normally entered through the gate opening.
Also, in January 2000, at about the same time as he moved into the cottage, Braughton rented the mobile home on the property to a couple, Tom and Kim. They lived in the mobile home from about January 2000 until just before Christmas 2001. During that period, Tom had never seen the gate opening closed. Tom used the gate opening to come and go from the property five to 10 percent of the time. He saw Braughton and other tenants and the residents of the back house use the opening on a daily basis. He had a direct view of the entrance to the property from his dining room and living room.
In late winter of 1999 to 2000, Braughton brought a horse onto the property. Between January 2000 and March 2000, Braughton installed perimeter fencing, a corral, a covered shelter, and a round pen for keeping a horse. He also built a carport in early spring 2000. Braughton used the gate opening at the end of John Wilson Way when he entered with a horse trailer, car trailer, or dump trailer and then made a wide left turn to go down the back of his property.
During approximately August 2001, Braughton moved a trailer onto the back of his property with the help of his friend Sutton. He drove the trailer to the end of John Wilson Way and then, concerned the trailer would be unable to get through the gate opening, they got out and measured the trailer and the opening. Braughton drove through the gate opening, which was barely wide enough, with the help of his friend Sutton signaling him. At the time of this move, the gate attached to the left side post was folded completely back against the cyclone fence and there was no gate attached to the right fence post. No right gate was visible in a satellite photograph, which was taken after the round pen was built in Spring 2000 and before the trailer was moved onto the property in August 2001.
Braughton renovated the trailer at the back of the property and then rented it to a woman, Kristine, and her daughter, who moved in during fall of 2001 before Thanksgiving. Kristine entered Braughton's property by coming down John Wilson Way past the school yard and used the driveway on the left or the driveway on the right, which was an extension of John Wilson Way within the disputed area. Kristine could not recall ever being unable to get through the opening at the end of John Wilson Way. She could not recall any kind of obstruction. Braughton observed their visitors driving through the gate opening and then making a left turn in the driveway going to the back. Kristine saw Braughton and the former tenants of the main house use the disputed area to access the road. Kristine and her daughter moved into the main house in November 2005 and moved off the property in May 2007.
Braughton continuously lived in the cottage from about January 2000 and was still living there at the time of trial. Braughton regularly rode his horse across the disputed area once or twice a week until the area was obstructed. He also often walked and exercised his dog there. The usual traffic pattern for tenants, family, and visitors was to drive in through the gate opening in the fence. Delivery trucks normally drove through the gate opening and then made a U-turn at the end. Vehicles typically drove over the areas that were not grassy. Occasional uses of the disputed area included Braughton's grandchildren playing and riding a bicycle in the area, Braughton teaching his grandchildren how to drive a tractor there, and visitor parking.
Beginning in about December or January 1999, Braughton mowed the weeds in front of his property on a regular basis, about six or seven times a year. He also maintained the disputed area by weeding and picking up school papers. He never saw anyone else taking care of the disputed area from the time he bought the property in 1999 until it was closed off in 2005. Braughton cut down three old walnut trees that were dying in that area; the first two were cut down during approximately the latter half of 2002. He replanted three walnut trees in that area. Braughton also kept up the road by twice putting down rock in the area. The gate opening in the fence at the end of John Wilson Way was unobstructed from the time of Braughton's purchase of the property in 1999 until August 2005.
One morning in 2004, after garbage pick up, Braughton found a crushed garbage can and the left gate off its hinges. For safety reasons, he picked up the left gate, restored the leaning fence to an upright position with his tractor, and wired the gate to the fence.
Braughton's daughter, Karen Clampett, went to look at the property with her father before he purchased it. She lived close by and visited the property two to four times every week on average. Until the fence opening was closed in 2005, she always entered and exited through the opening at the end of John Wilson Way when she visited her father's house; she never needed to move or open a gate in order to enter. Clampett also saw her father's tenants and the residents of the white house driving through the disputed area.
Sutton regularly visited Braughton at the property about twice a week. During his visits, Sutton saw vehicles using the disputed area. Sutton had never seen the gate closed until he took photographs for Braughton in about 2005.
Braughton's property adjoins a property with a pillared gate and drive leading to a big house. The former neighbor, Mr. Wahl, exited this adjoining property by going out through his gate, swinging over toward the school, and then down the oil and screen road onto John Wilson Way. Respondent Toribio Valdivia and his family purchased the home in late 2002 and moved in on January 1, 2003. When he first went to look at the property, he traveled down John Wilson Way past the school and went through the opening in the fence. During the remodeling of the property, he visited three or four times per week and entered through the opening because it was "the most straight way to go into the property." He continued to drive through the opening in the fence when he began living there. Since January 1, 2003, Valdivia went through the opening almost every single day and on some days he was going in and out three or four times. He thought he had probably run his horse there a couple of times but did not have a clear recollection.
Braughton observed the Valdivias and their guests enter the Valdivia property by driving on John Wilson Way, going through the opening in the fence, continuing on the oil and screen road, turning left, and entering through their pillared gate. When they exited the Valdivia property, they usually drove along the front of Braughton's property and then jogged to the left to get onto the paved John Wilson Way.
Respondent Toribio Valdivia saw others who were coming and going from his property use the disputed area. He estimated that 90 percent or more of the visitors accessing his property entered through the gate opening. He had seen Braughton riding his horse several times, cutting weeds and mowing the wild grass, and riding his bicycle in the disputed area and he had seen a girl playing there. Prior to late 2005, when the construction fence was erected, there had never been any impediment or obstacle to going through that opening to access the Valdivia property.
Edward Helvey was the president and executive director of appellant NMHCS, a position he had held since January 2003. As a public benefit corporation, NMHCS has tax exempt status. It has no shareholders. Its primary mission is to educate children in the community. Funding for operation of its school comes from donations given "almost exclusively" by parents and tuition. There is no public funding.
Helvey's children had attended the predecessor school, Morgan Hill Country School, since its opening in September 1998. In October 2001, Helvey began working in an official capacity for the predecessor school in an off site location. His office moved to the school site in August 2002. He acknowledged that by August 2002 there was no right gate.
Helvey's recollection, evidence rejected by the trial court, was that, during the 1999 to 2000 school year and during September 2000 through December 2000, the gates were closed at the end of John Wilson Way on the occasions he took his children to school. After a Christmas holiday break, which Helvey believed to be in 2000 to 2001 school year, Helvey observed that the right gate was damaged and he heard something about an accident involving a drunk driver hitting the fence.
In 2005, appellant NMHCS began implementing its plans to expand Oakwood Country School through high school, which required purchase of additional land and construction. In August 2005, a temporary construction fence was erected, one gate was repaired and another gate was installed, and the gates were locked. The morning the fence panels were delivered, Braughton telephoned the school but was unable to speak with anyone about his concerns and did not receive a return call. Braughton then called the city to complain. After a city planner with the City of Morgan Hill called Helvey and told him that a neighbor had complained about the fence, Helvey called Braughton to discuss the situation. Later that day or shortly thereafter, Helvey met with Braughton on site. Braughton complained about the change in their ability to use the area and he told Helvey that he did not think he could turn the corner with his large trailers. The meeting did not resolve the problem. Braughton and Valdivia met with Helvey. Their discussions did not result in removal of the temporary fence and closed gate at the end of John Wilson Way. After Helvey sent a letter to Braughton in February 2006 conditioning continued use of the disputed area, Braughton asserted a prescriptive easement in writing.
Braughton testified that he had been inconvenienced by the fence and closed gate. He testified that that $10 per day was the reasonable rental value for nonexclusive use of the disputed area. Valdivia thought $300 per month was fair rental value for using the disputed area to access his property. The construction fence and locked gate made entering and exiting the property more difficult and inconvenient for Valdivia because it is difficult for two cars to pass each other on the roadway along Braughton's property.
B. Scope of Prescriptive Easement
Appellant complains that the trial court failed to limit the prescriptive easement to use of the visible surface roadway and exclude the grassy and tree areas within the disputed area and failed to specify "the amount and precise location of the use." It asks this court to restrict the easement to "a right of way for daily residential use by plaintiffs, their tenants, guests and invitees for traffic and occasional pedestrian use as needed and occasional equestrian use over the roads situate [sic] within the disputed area...." Appellant asserts that the present judgment improperly confers upon respondents "too much control and unrestricted dominion." Appellant asserts that the court's description of the easement failed to protect its residual rights to use the property as the fee simple title owner. Appellant points out that the court did not recognize any easement right to landscape, abate weeds, or park in the disputed area.
The judgment describes the prescriptive easement over a particular strip of land and provides a legal description of its location. Exhibits to the judgment show the disputed area outlined in dashed red ink on an aerial photograph showing a grassy meridian with several openings to access respondents' properties. As to the burden imposed, it stated that the "prescriptive nonexclusive surface easement" is for "unobstructed vehicular, pedestrian and equestrian ingress and egress" by respondents, "their respective families, guests, tenants, invitees, heirs and successors" for the benefit of the dominant parcels. This judgment must be interpreted and applied consistent with the general legal principles applicable to easements. (See O'Banion v. Borba, supra, 32 Cal.2d 145, 155 ["judgment must be interpreted in the light of the use for which the easements were acquired by plaintiffs, and the right of defendants to make a reasonable use of their land subject to the easements thus acquired"].)
Section 806 provides: "The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired." It is "settled doctrine that both parties have the right to insist that so long as the easement is enjoyed it shall remain substantially the same as it was at the time the right accrued, entirely regardless of the question as to the relative benefit and damage that would ensue to the parties by reason of a change in the mode and manner of its enjoyment." (Allen v. San Jose Land & Water Co. (1891) 92 Cal. 138, 141.) "A person using the land of another for the prescriptive period may acquire the right to continue such use, but does not acquire the right to make other uses of it. [Citations.]" (Hannah v. Pogue (1944) 23 Cal.2d 849, 854.)
" '[T]he owner of a dominant tenement must use his easement and rights in such a way as to impose as slight a burden as possible on the servient tenement.' (Baker v. Pierce (1950) 100 Cal.App.2d 224, 226....) 'Every easement includes... the right to do such things as are necessary for the full enjoyment of the easement itself. But this right is limited, and must be exercised in such reasonable manner as not to injuriously increase the burden on the servient tenement. The burden of the dominant tenement cannot be enlarged to the manifest injury of the servient estate by any alteration in the mode of enjoying the former. The owner cannot commit a trespass upon the servient tenement beyond the limits fixed by the grant or use.' (North Fork Water Co. v. Edwards (1898) 121 Cal. 662, 665-666....)" (Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 356, fn. 17.) Thus, for example, the holder of an express easement over a five-foot strip of property for the purpose of installing and maintaining a water pipe line did not have the right to cut trees where "a pipe line could easily [have been] installed without destroying the trees." (Baker v. Pierce (1950) 100 Cal.App.2d 224, 225-226.)
Easements involving private rights of way acquired by adverse use are "limited to the uses which were made of the easements during the prescriptive period. [Citation.]" (O'Banion v. Borba, supra, 32 Cal.2d at p. 155.) "[N]o different or greater use can be made of the easements without [the servient owner's] consent." (Ibid.) Thus, for example, in Bartholomew v. Staheli (1948) 86 Cal.App.2d 844, 851, defendants had acquired an easement "to personally travel the private roadway incident to the enjoyment of their home and farm" but the easement did not "entitle them to invite large numbers of the members and patrons of their nudist colony, the summer resort, dining room and store, to travel the private roadway to patronize those commercial enterprises, to the detriment of plaintiffs' property rights."
"The owner of property subject to an easement may use his property in any manner and for any purpose not inconsistent with the full and free enjoyment of the easement. [Citation.]" (Colegrove Water Co. v. City of Hollywood (1907) 151 Cal. 425, 429.) Generally, "[w]hether a particular use of the land by the servient owner, or by someone acting with his authorization, is an unreasonable interference is a question of fact.... [Citations.]" (City of Pasadena v. California-Michigan Land & Water Co. (1941) 17 Cal.2d 576, 579-580.)
The judgment understood in the context of applicable law adequately specifies the location, scope, and burden of the appurtenant prescriptive easements acquired by respondents. Whether a particular use will interfere with the rights of any party is a matter for future determination if and when the issue arises. (See O'Banion v. Borba, supra, 32 Cal.2d at p. 155.)
C. Damages
1. Nature of Appellant's Conduct
In this case, respondents alleged that "[b]eginning on or about 9/1/05, and continuing to the present time,... NMHCS interfered with and obstructed [respondents']... prescriptive easement rights across the School Parcel by erecting and installing fencing material and/or a locked gate preventing access to or across such Easement, and thereby preventing the use of the Easement for ingress and egress by [respondents], their families, guests and invitees." Respondent Braughton and respondents Valdivia each sought damages of at least $10 per day beginning September 1, 2005 or earlier for obstruction of the prescriptive easement. The court determined that respondents had acquired a prescriptive easement by September 1, 2005 and appellant had wrongfully obstructed the easement. The court granted a permanent injunction requiring appellant to dismantle and remove obstructions to the use of the easement, but allowing appellant to leave the barrier fence in place provided the gate remained fully open for ingress and egress, and awarded damages.
Appellant argues that there is no substantial evidence that it acted "wrongfully" when it put up the construction fence and locked the gate in August 2005. Appellant maintains that the "record does not show wrongful conduct by the School" but rather "shows that the School acted in good faith and within its rights" when it installed the construction fence and locked the barrier gate at the end of John Wilson Way in August 2005. It now contends that Helvey had reasonable grounds for believing that it was his duty to maintain the fence until the litigation was resolved and asserts that "[t]he School did not commit any wrongdoing when it protected and kept its own school children from the path of potentially dangerous heavy equipment and construction operations."
"The elements necessary to establish a prescriptive easement are, with the exception of the requirement that taxes be paid, identical with those required to prove acquisition of title by adverse possession: open and notorious use or possession that is continuous and uninterrupted, hostile to the true owner, and under a claim of right. [Citation.] Such use for the five-year statutory period of Code of Civil Procedure section 321 confers a title by prescription. (Civ. Code, § 1007.)" (Taormino v. Denny, supra, 1 Cal.3d 679, 686, fns. omitted; see Gilardi v. Hallam (1981) 30 Cal.3d 317, 321-322.) "Whether the elements of prescription are established is a question of fact for the trial court (O'Banion v. Borba (1948) 32 Cal.2d 145...), and the findings of the court will not be disturbed where there is substantial evidence to support them." (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570.) The evidence viewed in the light most favorable to prevailing respondents is clearly sufficient to establish that they had acquired a prescriptive easement appurtenant to their properties by September 1, 2005.
Appellant first asserts that Code of Civil Procedure section 634 prevents this court from relying upon the trial court's statement of decision finding appellant had "wrongfully obstructed the disputed property" because appellant timely objected to this language and the trial court did not explain why appellant's actions were "wrongful." Code of Civil Procedure section 634 provides: "When a statement of decision does not resolve a controverted issue, or if the statement is ambiguous and the record shows that the omission or ambiguity was brought to the attention of the trial court... prior to entry of judgment..., it shall not be inferred on appeal... that the trial court decided in favor of the prevailing party as to those facts or on that issue."
Although after trial appellant objected to the word "wrongfully" in the court's statement of decision and maintained that its actions were not tortious because it had acted in a good faith belief that no prescriptive easement had been acquired, appellant's good or bad faith was not a controverted issue at trial and was not an issue specified by appellant in its request for a statement of decision. (See Code Civ. Proc., § 632; see In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1134 [two-step process requires a party to first "request a statement of decision as to specific issues"].) No finding on the issue of good faith was necessary to the decision. Moreover, the finding in the trial court's statement of decision that appellant had "wrongfully obstructed the disputed property" was not ambiguous in light of the law of nuisance.
The California Supreme Court has distinguished a nuisance from a trespass. " 'A trespass is an invasion of the interest in the exclusive possession of land, as by entry upon it.... A nuisance is an interference with the interest in the private use and enjoyment of the land and does not require interference with the possession.' [Citation.]" (Wilson v. Interlake Steel Co. (1982) 32 Cal.3d 229, 233.) "[L]iability for trespass will not be imposed unless the trespass was intentional, the result of recklessness, negligence, or the result of an extra hazardous activity. [Citation.]" (Ibid.) "As Prosser and Keeton on Torts (5th ed. 1984) section 13, pages 73-74 explained, '[t]he intent required as a basis for liability as a trespasser is simply an intent to be at the place on the land where the trespass allegedly occurred.... The defendant is liable for an intentional entry although he has acted in good faith, under the mistaken belief, however reasonable, that he is committing no wrong.' " (Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1480-1481; see MacLeod v. Fox West Coast Theatres Corp. (1937) 10 Cal.2d 383, 387 [one who is on the land of others without their consent and against their will is a trespasser].)
Appellant cites no case suggesting that a good faith belief that no prescriptive easement existed defeats liability for damages where a court has found that a prescriptive easement did exist and appellant wrongfully interfered with it. Code of Civil Procedure section 731 states in part: "An action may be brought by any person... whose personal enjoyment is lessened by a nuisance, as the same is defined in section thirty-four hundred and seventy-nine of the Civil Code, and by the judgment in such action the nuisance may be enjoined or abated as well as damages recovered therefor." In California, the statutory definition of nuisance includes interference with the use and enjoyment of land. (See Civ. Code, § 3479.)
The evidence at trial established that the temporary construction fence and locked gate interfered with respondents' use and enjoyment of the prescriptive easement and respondent Braughton promptly complained to Helvey. Implicitly, appellant's wrongdoing consisted of either an intentional or negligent interference with respondents' use and enjoyment of their prescriptive easement. (See Snow v. Marian Realty Co. (1931) 212 Cal. 622, 625-626 [since the conduct causing harm continued after complaints, "it is immaterial whether the acts be considered wilful or negligent; the essential fact is that, whatever be the cause, the result is a nuisance"].) Even under the Restatement Second Torts, "an invasion of another's interest in the use and enjoyment of land... need not be inspired by malice or ill will on the actor's part toward the other. An invasion so inspired is intentional, but so is an invasion that the actor knowingly causes in the pursuit of a laudable enterprise without any desire to cause harm." (Rest.2d Torts, § 825, com. c., p. 118.)
Moreover, appellant's theory of defense at trial was that respondents had failed to prove the existence of a prescriptive easement and, regardless, section 1007 barred the acquisition of any prescriptive easement. Appellant never argued at trial that, even if respondents had acquired a prescriptive easement, damages were not recoverable because it had a good faith belief that it was acting within its rights or because its actions did not constitute a nuisance. "[P]arties may advance new theories on appeal when the issue posed is purely a question of law based on undisputed facts, and involves important questions of public policy." (Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 654, fn. 3.) However, "[t]he general rule that a legal theory may not be raised for the first time on appeal is to be stringently applied when the new theory depends on controverted factual questions whose relevance thereto was not made to appear at trial. (Panopulos v. Maderis (1956) 47 Cal.2d 337, 340-341....)" (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 780.) This is because the opposing party should not be required to defend against a new theory that "contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial." (Panopulos v. Maderis (1956) 47 Cal.2d 337, 341.)
2. Date of Title to Easement Acquired By Prescription
Appellant asserts that no damages are awardable for interference with a prescriptive easement "until the easement is perfected through court action." An appellate court has stated that "[g]enerally a judgment in a suit to quiet title takes effect on the rights and titles of the parties to the suit as they exist at the time of the rendition of the judgment and not as they existed at the commencement of the suit or before that time. (Barstow San Antonio Oil Co. v. Whitney, 205 Cal. 420, 421...; 49 C.J.S. 876, § 446.)" (Burch v. Hibernia Bank (1956) 146 Cal.App.2d 422, 431.) However, a determination of title may be made as of a date prior to the date of commencement of the action. (See Code Civ. Proc., § 761.020, subd. (d) [enacted in 1980], Cal. Law Rev. Com. com., 17A West's Ann. Code Civ. Pro. (2008 supp.) foll. § 761.020, p. 65 ["Subdivision (d) is intended to permit a title determination as of a date prior to the date of the action"].)
In this case, respondents sought to quiet title to the prescriptive easements as of September 1, 2005 and the trial court determined that respondents had acquired a prescriptive easement as of September 1, 2005. Since a prescriptive easement is conferred by the requisite use for the statutory period, it was reasonable to quiet title to the prescriptive easements as of a date earlier than the date of the action or judgment.
The case of Jones v. Young (1957) 147 Cal.App.2d 496 cited by appellant as an example of a court not awarding damages for interference with a prescriptive easement prior to a judicial decree is inapposite since the action merely sought injunctive relief and not damages. Similarly, Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, which was mentioned by both parties, similarly involved an action for declaratory and injunctive relief. (Id. at p. 570.) "[A]n opinion is not authority for a proposition not therein considered." (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)
3. Measure of Damages
"When a person interferes with the use of an easement he deprives the easement's owner of a valuable property right and the owner is entitled to compensatory damages. The interference is a private nuisance and the party whose rights have been impeded can recover damages as measured in the case of a private nuisance. [Citations.]" (Moylan v. Dykes (1986) 181 Cal.App.3d 561, 574.) Appellant claims that the sole measure of damages for interference with an easement is any diminution in rental value of the real property owned by respondents but, in this case, there was no evidence that the rental value of their properties was diminished by the temporary construction fence and locked gate. It further asserts that the opinion testimony regarding the rental value of the easement was incompetent, irrelevant and not to be credited. Appellant also complains the trial court erroneously awarded future damages.
Appellant is correct that the trial court erred in fixing future damages because prospective damages are unavailable in an action for damages caused by a temporary, abatable nuisance and respondents are required to bring another action to recover such future damages. (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 869; see Phillips v. City of Pasadena (1945) 27 Cal.2d 104, 108 [removable locked gate]; see also Civ. Code, § 3484 ["The abatement of a nuisance does not prejudice the right of any person to recover damages for its past existence"].) Accordingly, the judgment must be modified to omit prospective damages.
As to the measure of damages, although a proper measure of damages in some cases of an abatable nuisance may be "the temporary decrease in the value of the use of the property [harmed by the nuisance] while the nuisance continued" (Spaulding v. Cameron (1952) 38 Cal.2d 265, 270 [plaintiff's property suffered physical damage from mud flows resulting from leveling operations on defendant's property]), which may be calculated based upon the diminution in rental value of the plaintiff's property even if the plaintiff still lives there (see Spaulding v. Cameron (1954) 127 Cal.App.2d 698, 706), it is not the exclusive measure. "Lost use" may be the appropriate measure of damages in cases of temporary interference with an easement. (See Moylan v. Dykes, supra, 181 Cal.App.3d at p. 574 [upholding trial court judgment enjoining defendants from interfering with plaintiffs' use of an easement across the defendants' land and fixing damages at $3 per day even though plaintiffs' "properties ultimately appreciated in value" and damages were intangible]; Neff v. Ernst (1957) 48 Cal.2d 628, 632 [interference with easement resulted in compensable temporary loss of use of plaintiff's garages]; see also Rest.2d Torts, § 931 [damages for tortious prevention of use of land include compensation for the value of the lost use during the period of prevention] and com. b. [owner entitled to recover at least rental value for lost use as damages], pp. 551-552; Kazi v. State Farm Fire and Cas. Co. (2001) 24 Cal.4th 871, 884 [damages for interference with an easement may include "loss of the easement's fair market value"].) In addition, damages may be recovered for annoyance, inconvenience, and discomfort caused by nuisance. (See Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 275; Herzog v. Grosso (1953) 41 Cal.2d 219, 225; see also Judson v. Los Angeles Suburban Gas Co. (1910) 157 Cal. 168, 172 [where nuisance causes only discomfort or annoyance, "the amount of detriment sustained is not susceptible of exact pecuniary computation" and "[i]t is for the court to say what sum of money the plaintiff should receive in view of the discomfort or annoyance to which he has been subjected"].)
Under California statutory law, the owner of property or an interest in property is qualified to express such opinion regarding the value of that property or property interest. (Evid. Code, § 813, subd. (a).) Since there was no evidentiary objection regarding respondents' opinions, appellant failed to preserve for appeal any issue regarding the admission of respondents' testimony regarding rental value. (Evid. Code, § 353.)
Here, each respondent indicated that the value of the use or rental value of their prescriptive easement was about $10 per day. There was no contrary evidence.
It is well established that "the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact." (Evid. Code, § 411.) " '... To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.]...'' [Citations.]" (People v. Thornton (1974) 11 Cal.3d 738, 754.) Moreover, appellant did not address the measure of damages used by respondents at trial or in its trial briefs. (See Durkee v. Chino Land & Water Co. (1907) 151 Cal. 561, 570 [defendant could not raise sufficiency of the evidence to sustain the damages where defendant acquiesced in measurement of damages and did not object to the evidence received].) Sufficient evidence supports the award of damages to respondents for obstruction of the prescriptive easement.
Appellant NMHCS asserts that section 1007 precludes respondents from acquiring a prescriptive easement against it because, as a nonprofit public benefit corporation, it is a "public entity." Section 1007 states in pertinent part: "[N]o possession by any person, firm or corporation no matter how long continued of any land, water, water right, easement, or other property whatsoever dedicated to a public use by a public utility, or dedicated to or owned by the state or any public entity, shall ever ripen into any title, interest or right against the owner thereof." (Italics added.)
Appellant acknowledges there is no case law holding that a "public benefit corporation" is a "public entity." It argues that the ordinary meaning of the term "entity" includes a corporation, the terms "public benefit" and "public" are not distinguishable, and "[t]here is nothing in this statute which requires that the 'public entity' be a governmental agency." We disagree.
A "nonprofit public benefit corporation" or "public benefit corporation" is "a corporation which is organized under Part 2 (commencing with Section 5110) or subject to Part 2 under the provisions of subdivision (a) of Section 5003" of the Corporations Code. (Corp. Code, § 5060.) Subject to applicable law, "a corporation may be formed under [the Nonprofit Public Benefit Corporation Law] for any public or charitable purposes" by "one or more persons." (Corp. Code, §§ 5111, 5120.)
In contrast, "[p]ublic corporations are 'those corporations formed for political and governmental purposes and vested with political and governmental powers.' (Bettencourt v. Industrial Acc. Com. (1917) 175 Cal. 559, 561...; accord, Napa State Hospital v. Dasso (1908) 153 Cal. 698, 703...; see People v. Rinner (1921) 52 Cal.App. 747, 752....)" (Service Employees' Internat. Union, Local No. 22 v. Roseville Community Hosp. (1972) 24 Cal.App.3d 400, 407 [public employees collective bargaining statute did not apply to community hospital organized as a private nonprofit corporation because it did not qualify as "public agency," which was statutorily defined to include public and quasi-public corporations under Government Code section 3501].) Certain entities formed for governmental purposes are designated by law as "public corporations." (See e.g. Cal. Const. art. VI, § 9 [State Bar of California]; Cal. Bus. & Prof. Code, § 6001 [same]; Gov. Code, §§ 67520, 67521 [San Francisco Bay Area Transportation Terminal Authority]; Gov. Code, §§ § 67655, 67657 [Fort Ord Reuse Authority], Gov. Code, §§ 67810-67812 [military base reuse authority]; Harb. & Nav. Code, §§ 6200, 6290 [port districts]; Harb. & Nav. Code, §§ 6800, 6890 [river port districts]; Harb. & Nav. Code App. 1, §§ 3, 28 [San Diego Unified Port District]; Harb. & Nav. Code App. 2, §§ 1, 3 [Humboldt Bay Harbor, Recreation, and Conservation District]; Pub. Util. Code, §§ 30100, 30101 [Southern California Rapid Transit District]; Pub. Util. Code App. 2, §§ 4.1, 4.5 [West Bay Rapid Transit Authority].)
Appellant acknowledges that it is not a governmental entity and neither has it been deemed such by the Legislature. It was not created by the government and is not owned or operated by the government and it does not have a governmental purpose. Appellant has provided this court with no legislative history or other authority indicating that section 1007 is applicable to public benefit corporations. Principles of statutory construction support the conclusion that section 1007 does not protect public benefit corporations.
Section 1007, as originally enacted in 1872, made a title by prescription "sufficient against all" while case law provided that "real property held by the state or any of its subdivisions was subject to loss by adverse possession if such property was held in a proprietary capacity and not reserved for or dedicated to some public use. (See Henry Cowell Lime & Cement Co. v. State, 18 Cal.2d 169...; City & County of San Francisco v. Straut, 84 Cal. 124...; Ortiz v. Pacific States Properties, 96 Cal.App.2d 34....)" (Southern Pac. Co. v. City & County of S. F. (1964) 62 Cal.2d 50, 53, fn. 1.) The 1935 amendment of section 1007 extended "to all property of the specified governmental entities, whether or not devoted to a public use, the exemption from prescriptive claims theretofore attached only to the property of such entities which was devoted to a public use. [Citation.]" (City of Los Angeles v. City of San Fernando (1975) 14 Cal.3d 199, italics added.) The most recent amendment in 1968 "extended the statutory exemptions to apply to property 'dedicated to a public use by a public utility...' " (Id. at p. 271, fn. 67) and substituted the phrase "the state or any public entity" for the governmental entities named in the former provision.
"As originally enacted in 1872, Civil Code section 1007 provided: 'Occupancy for the period prescribed by the Code of Civil Procedure as sufficient to bar an action for the recovery of the property confers a title thereto, denominated a title by prescription, which is sufficient against all.' " (City of Los Angeles v. City of San Fernando (1975) 14 Cal.3d 199, 270, fn. 66.) "The 1935 amendment imposed a limitation on the operation of the section by changing it to read as follows: 'Occupancy for the period prescribed by the Code of Civil Procedure as sufficient to bar any action for the recovery of the property confers a title thereto, denominated a title by prescription, which is sufficient against all, but no possession by any person, firm or corporation no matter how long continued of any land, water, water right, easement, or other property whatsoever dedicated to or owned by any county, city and county, city, irrigation district, public or municipal corporation or any department or agency thereof, shall ever ripen into any title, interest or right against such county, city and county, city, public or municipal corporation, irrigation district, or any department or agency thereof or any agency created or authorized by the Constitution or any law of this State for the administration of any State school, college or university. The exemption of certain classes of governmental property is intended as a limitation and shall not be deemed to subject to the operation of this section any classes of governmental property which would not otherwise be subject thereto.' " (Ibid.)
Before the amendment of section 1007 in 1968, the Legislature had defined "public entity." In 1963, the Legislature enacted Government Code section 811.2, which defines "public entity" for purposes of the California Tort Claims Act (Gov. Code, § 810 et seq.) Government Code section 811.2 provides: " 'Public entity' includes the State, the Regents of the University of California, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State." When enacted, this definition was "intended to include every kind of independent political or governmental entity in the State." (Cal. Law. Rev.Com. com, 32 West's Ann. Gov. Code (1995 ed.) foll. § 811.2, p. 158.) Also, in 1963, the Legislature enacted Government Code section 818, a provision "exempt[ing] public entities from liability for punitive or exemplary damages." (Cal. Law. Rev. Com. com, 32 West's Ann. Gov. Code (1995 ed.) foll. § 818, p. 221, italics added.) Subsequently, in 1965, before the amendment of section 1007 in 1968, the Legislature enacted Evidence Code section 200, which provides: " 'Public entity' includes a nation, state, county, city and county, city, district, public authority, public agency, or any other political subdivision or public corporation, whether foreign or domestic."
Government Code section 818 provides: "Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant."
"The Legislature, of course, is deemed to be aware of statutes and judicial decisions already in existence, and to have enacted or amended a statute in light thereof. (People v. Overstreet (1986) 42 Cal.3d 891, 897....)" (People v. Harrison (1989) 48 Cal.3d 321, 329.) In the absence of countervailing legislative history, we can assume that, when it amended section 1007 in 1968, the Legislature had the existing definitions of "public entity" in mind and did not intend to include corporate entities other than "public corporations" within its meaning.
Moreover, the Legislature had the opportunity to declare public benefit corporations to be "public corporations" for purposes of section 1007 when it enacted the Nonprofit Public Benefit Corporation Law in 1978 (Stats.1978, ch. 567, § 5, pp. 1750-1821) or at any subsequent time. But it has not.
Appellant lastly argues that section 1007 applies because a public services easement in favor of the City of Morgan Hill runs through the disputed area, a storm drain runs down the middle of the disputed area, the Santa Clara Valley Water District (SCVWD) has a right of way to access the drainage system at the rear of its property, and the city required the barrier at the end of John Wilson Way to be installed to prevent vehicular traffic from proceeding beyond the paved road. We note that there was no showing at trial that respondents' use of the unpaved roadway interfered or conflicted with any public use easement or any right of access belonging to the city or the SCVWD. Moreover, the respective interests and rights of respondents and any entity other than appellant were not before the trial court. A person may obtain prescriptive rights against a land owner "while recognizing a superior title or right in a governmental entity...." (Abar v. Rogers (1972) 23 Cal.App.3d 506, 513.)
The bottom line is that section 1007 did not prevent respondents from acquiring a prescriptive easement against appellant.
The judgment is modified to omit any prospective damages for continued obstruction of the easement after April 2, 2008. As modified, the judgment is affirmed. The parties shall each bear their own costs on appeal.
WE CONCUR: RUSHING, P. J., PREMO, J.
"In distinction to trespass, liability for nuisance does not require proof of damage to the plaintiff's property; proof of interference with the plaintiff's use and enjoyment of that property is sufficient. [Citation.] In further distinction to trespass,... liability for private nuisance requires proof of two additional elements." (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937.) "The first additional requirement for recovery of damages on a nuisance theory is proof that the invasion of the plaintiff's interest in the use and enjoyment of the land was substantial, i.e., that it caused the plaintiff to suffer 'substantial actual damage.' [Citation.]" (Id. at p. 938.) "The degree of harm is to be judged by an objective standard" and is "a question of fact that turns on the circumstances of each case." (Ibid.) The second additional requirement for nuisance is that the interference be unreasonable. (Ibid.) "The primary test for determining whether the invasion is unreasonable is whether the gravity of the harm outweighs the social utility of the defendant's conduct, taking a number of factors into account. (Rest. 2d Torts, §§ 826-831.)" (Ibid.) This test is objective and a question of fact. (Ibid.)