Opinion
Opinion on pages 209-215 omitted.
HEARING GRANTED [*]
Opinion Vacated, see 212 Cal.Rpt. 701. [187 Cal.Rptr. 709] Raymond E. Schaal, Lakeport, for plaintiffs, cross-defendants, appellants and respondents.
Crump, Bruchler & Crump, Lakeport, for defendant, cross-complainant and respondent Harlan.
Phil N. Crawford, Crawford, Major & Kranz, Lakeport, for defendant, cross-complainant, respondent and appellant Speckman.
MILLER, Associate Justice.
Plaintiffs Merle and Sandra Holmes and defendant Speckman appeal from a judgment quieting title to a certain parcel of real property in defendants Harlan.
The judgment also awarded plaintiffs $923 in damages against defendants Harlan and $3,788 in damages against defendant Speckman. The issues on appeal relate only to that portion of the judgment quieting title to the disputed property in defendants Harlan.
This dispute concerns a 39-foot strip of real property lying between plaintiffs' and defendants' property. Plaintiffs purchased an approximately three acre parcel of land from defendant Speckman in 1976. In conversations prior to the sale, Mrs. Speckman told plaintiffs that a certain fence constituted the property line and that, in her opinion, a barn was part of the property. Plaintiffs used the barn and road, planted a garden and installed a septic tank and trailer on the disputed strip.
Mrs. Speckman testified that she purchased the property in March 1975 and sold it to plaintiffs in June 1976. During the [187 Cal.Rptr. 710] time she owned her parcel she used the barn, planted a garden and spread rocks within the disputed strip. Robert Thompson, Speckman's predecessor in interest, purchased the land in 1969 and sold it to Mrs. Speckman in 1975. He used the road and barn as well as planted a garden on the portion of property here in question. He later rebuilt the barn in the same place where the old one had been located.
Steven Johnson, Thompson's predecessor in interest, purchased the tract in 1961. At the time he purchased the property, the fence and barn were located on it. His tenants used the roadway between the tree arbor located on the 39-foot strip.
Marvin Carpenter, chief appraiser for the assessor's office of Lake County, testified that taxes for the disputed strip of land had been paid by the defendants and their predecessors in interest. The taxes were for land without any improvements.
Plaintiffs and their predecessors in interest assumed that they owned the land up to the fence which included the 39-foot strip. Since at least 1955, portions of a fence ran along the south boundary of plaintiff's parcel. The fence did not enclose the property due to several 20 to 30 foot gaps. Nor could it restrain animals.
Defendants Harlan purchased their property in 1976. The deed to the property includes the strip here in dispute and they have paid all taxes levied against their entire parcel. Defendants did not see the fence nor enter upon the property during the time of their ownership although Burton Harlan had seen the fence during the period in which his father owned the property. The parties never agreed that the fence line was the boundary.
Plaintiffs and their predecessors have paid the taxes on the land only to the boundary line recorded in their deeds, which did not include the 39-foot strip. The heart of the dispute lies in the fact that plaintiffs and their predecessors have been assessed and have paid the taxes on the improvements (barn, road, septic tank, trailer) on the 39-foot strip and have used the same for an accumulated period of about 20 years. Thus, plaintiffs vigorously assert their ownership of the strip.
Plaintiffs contend that they acquired the strip in question by implied agreement of the boundary line. Citing Spear v. Smith (1958) 161 Cal.App.2d 744, 327 P.2d 36, they argue that such an agreement can be inferred from the long acquiescence of the parties. The contention is without merit.
It is settled that the mere acquiescence in the existence of a fence in the absence of any agreement that said fence shall be taken as the true boundary line is not sufficient to establish a claim of title to a disputed strip of ground. (Drew v. Mumford (1958) 160 Cal.App.2d 271, 274, 325 P.2d 240; Dibirt v. Bopp (1935) 4 Cal.App.2d 541, 543, 41 P.2d 174.) Here, there was no evidence that the parties or their predecessors in interest ever expressly or impliedly agreed that the fence constituted the boundary line to their respective properties.
Plaintiffs also contend that they acquired title to the 39-foot strip of land by adverse possession.
Section 325 of the Code of Civil Procedure provides: "For the purpose of constituting an adverse possession by a person claiming title, not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only:
"1. Where it has been protected by a substantial inclosure.
"2. Where it has been usually cultivated or improved.
"Provided, however, that in no case shall adverse possession be considered established under the provision of any section or sections of this code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, state, county, or municipal, which have been levied and assessed upon such land." Case law has construed the first and second requirements [187 Cal.Rptr. 711] to be read in the alternative. (See e.g., County of Los Angeles v. Berk (1980) 26 Cal.3d 201, 225, 161 Cal.Rptr. 742, 605 P.2d 381; Brown v. Berman (1962) 203 Cal.App.2d 327, 329, 21 Cal.Rptr. 401.)
In the present action the trial court's finding of fact No. 7 provides as follows: "Said property so claimed by plaintiffs was not protected by a substantial enclosure, and said property so claimed by defendants in the past had not been usually cultivated or improved." (Emphasis supplied.) Apparently the court determined that the disputed strip was not substantially enclosed because the fence, thought to be the property line by plaintiffs and their predecessors in interest, had several large gaps in it and could not restrain animals. However, although the finding states that defendants' had not cultivated their property, it fails to mention that plaintiffs and their predecessors had cultivated the disputed area. In addition to the fence, a barn and a road were on the land and continued to be used when Steven Johnson owned the property. After Robert Thompson purchased the parcel he rebuilt the barn and planted a garden on the disputed strip. Thereafter, Mrs. Speckman expanded the garden and otherwise cultivated the land with a tractor. Even if the fence may have been insufficient to protect the area by "substantial enclosure", there appears to be sufficient evidence that the disputed strip was "usually cultivated or improved" by plaintiffs and their predecessors.
On the other hand, the evidence is clear that plaintiffs and their predecessors never paid the taxes for the 39-foot strip. Their payments were for the land up to the true boundary line as indicated in their grant deeds and only the improvements located on the disputed strip. Having failed to pay taxes on the land, plaintiffs' claim of adverse possession apparently is barred by section 325.
Plaintiffs next claim that they acquired a prescriptive easement to the 39-foot strip. The recent case of Gilardi v. Hallam (1981) 30 Cal.3d 317, 178 Cal.Rptr. 624, 636 P.2d 588 is particularly instructive on this issue.
In Gilardi the parties stipulated that more than five years prior to the commencement of the action defendants' predecessors, owners of lot number 1408, improved a portion of the adjacent property, lot number 1407, by installing a sidewalk, sprinkler system, nine poplar trees and a lawn. A survey stake purporting to establish the boundary between the two lots had been erroneously placed on plaintiffs' property without fault of either party or their predecessors. In making the improvements and using them, defendants and their predecessors relied upon the position of the stake, believing that the improved portion of lot 1407 was part of their lot. The parties and their predecessors were assessed taxes by lot number and there was no record of the sidewalk or plantings having been considered in the appraisal of the improvements on lot 1408. That lot had a home on it; lot 1407 was unimproved except for the sidewalk and plantings.
Reiterating settled law, our Supreme Court held that a prescriptive easement requires establishment of the same elements as adverse possession except that payment of taxes is required only if the assessment has been separately assessed. (30 Cal.3d at p. 322, 178 Cal.Rptr. 624, 636 P.2d 588.) The Court held that "[w]hen it appears that the occupier enters the land mistakenly believing he is the owner, possession is adverse unless it is established by substantial evidence that he recognized [a] potential claim of the record owner and expressly or impliedly reflected intent to claim the disputed land only if record title was determined in his favor." (30 Cal.3d at p. 326, 178 Cal.Rptr. 624, 636 P.2d 588.) The Court concluded that since no taxes had been separately assessed for the disputed land, the lack of tax payment did not bar a claim of prescriptive easement. (30 Cal.3d at p. 327, 178 Cal.Rptr. 624, 636 P.2d 588.) The court never reached the issue of whether the prescriptive easement would be the equivalent of a fee interest or whether such an interest could be obtained in the absence of tax payment.
The present action presents an even stronger case for prescriptive easement. [187 Cal.Rptr. 712] Although plaintiffs herein never paid taxes for the underlying land in dispute, they were assessed and did pay taxes for the improvements on the [138 Cal.App.3d 215] strip. "[W]here the claimant by construction of buildings or other valuable improvements or by the building of fences has visibly shown occupation of a disputed strip of land adjoining the boundary, several cases have reasoned that the 'natural inference' is that the assessor did not base the assessment on the record boundary but valued the land and improvements visibly possessed by the parties." (Gilardi v. Hallam, supra, 30 Cal.3d 317, 327, 178 Cal.Rptr. 624, 636 P.2d 588.) In the case at bench, the assessor obviously considered the improvements part of the plaintiffs' property despite the fact that the underlying land was still being assessed according to the recorded deeds. Given this evidence we can only conclude that plaintiffs acquired a prescriptive easement.
We note in passing that defendants have argued that plaintiffs' failure to raise any issue as to the validity of the lower court's findings or to contend that such findings do not support the judgment requires that the judgment be affirmed. However, "the reviewing court may make factual determinations contrary to or in addition to those made by the trial court. The factual determinations may be based on the evidence adduced before the trial court either with or without the taking of evidence by the reviewing court.... This section shall be liberally construed to the end among others that, where feasible, causes may be finally disposed of by a single appeal and without further proceedings in the trial court except where in the interests of justice a new trial is required on some or all of the issues." (Code Civ.Proc., § 909; see also, Ernie v. Trinity Lutheran Church (1959) 51 Cal.2d 702, 709, 336 P.2d 525; Duncan v. Peterson (1970) 3 Cal.App.3d 607, 612, 83 Cal.Rptr. 744.) Accordingly, this court finds that plaintiffs have acquired a prescriptive easement to that property described in findings (1) and (2).
The court's first finding of fact essentially stated that plaintiffs neither own in fee simple nor are possessed of the disputed property. The second finding of fact states that defendants are and were the owners of said land.
The judgment is reversed except for that portion that adjudged "Plaintiffs have judgment against Burton C. Harlan in the amount of $173.00, plus $750.00 exemplary damages." and "Plaintiffs shall recover their costs from Defendants, Hazel Speckman and Burton C. Harlan," on the issue of damages herein.
ROUSE, Acting P.J., and SMITH, J., concur.
[*] The Court's final opinion on rehearing was not certified for publication.