Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. 233772
Siggins, J.
Defendant Joseph Romano appeals from a judgment in favor of his neighbors Michael and Ann Richter. The Richters sued Romano for damages for trespass and to quiet title and obtain an injunction ordering Romanoto remove a fence that encroaches on the Richter’s property. The Richters prevailed on all counts. Romano contends the Richters’ claims are time-barred. Alternatively, he contends he acquired an irrevocable license that allows the fence to remain in place. We affirm.
BACKGROUND
Romano built the disputed fence in 1993. His neighbor at that time was Ira Lowenthal, who testified that Romano constructed the fence without his knowledge while he was away on vacation. Lowenthal was not sure where the property line was, but he knew the fence was constructed on his property. After Lowenthal complained, Romano and his wife removed the fence in one day. Romano subsequently rebuilt it in a location agreed upon by both neighbors. Lowenthal and Romano agreed that neither would claim the new fence was on their property line or claim any property rights by virtue of its location.
Romano gave a different history of the fence construction. He testified that he approached Lowenthal about constructing a fence to contain his dogs on his property, and that Lowenthal was amenable as long as Romano paid for it. They did not get a survey, but agreed on a spot they both felt was a fair estimate of the property line. With the help of some laborers, Romano constructed the fence by digging postholes, sinking posts in concrete, and stringing wire between the fence posts.
According to Romano, after the fence was completed Lowenthal told him it was in the wrong location and demanded that he move it about six feet further south. Romano agreed, but insisted that if he moved the fence Lowenthal had to agree that the new location “would be the boundary and he wouldn’t complain.” Romano removed the fence and rebuilt it in the agreed location. He planted two redwood trees, put in 10 or 15 potato vine plants near the fence line, and installed drip irrigation. He also built a backyard deck using the fence as a reference to comply with city setback requirements.
Lowenthal emphatically denied that he ever agreed the second fence established the true property line or to transfer the land on Romano’s side of the fence to Romano.
About five years after the fence was built, Lowenthal sold his property to Jeffrey and Laureen Sacco. In the course of the transaction he told Jeffrey Sacco the fence was constructed without a survey and might not be on the property line. Sacco later obtained a survey that showed the fence encroached on his property by some 20 to 22 feet. Sacco asked Romano to move the fence but Romano refused. Sacco consulted an attorney but took no further action.
The Saccos sold their property to the Richters three years later, and disclosed the encroachment and Romano’s position that he owned all of the land on his side of the fence and that he was entitled to maintain the fence in its current location.
The Richters sued Romano to quiet title and for damages and injunctive relief. Romano argued, inter alia, that (1) the action was barred by the three-year statute of limitations for trespass; and (2) he held an irrevocable license to maintain the existing fence based on his expenditures in reliance on Lowenthal’s permission to construct it. After a bench trial, judgment was entered in favor of the Richters. As relevant to this appeal, the court found that (1) the trespass claim was not barred by the statute of limitations because the fence was a continuous, rather than permanent, trespass; and (2) Romano had no irrevocable license to maintain the fence because he did not prove he had spent a substantial amount of time and money in reliance on a promise by Richter’s predecessors in interest. The court awarded the Richters $6,577.50 in damages, ordered Romano to remove the fence, and quieted title in conformance with the deed. Romano timely appealed.
DISCUSSION
I. The Trespass Was Continuing
Romano contends the Richters’ trespass claim is barred by the three-year limitations period of Code of Civil Procedure section 338, subdivision (b) because any cause of action accrued when he built the fence in 1993 and suit was not filed until 2003. We disagree.
Code of Civil Procedure section 335 provides: “The periods prescribed for the commencement of actions other than for the recovery of real property, are as follows:” Section 338 says, in relevant part: “Within three years: [¶] . . . [¶] (b) An action for trespass upon or injury to real property.”
Whether the three-year limitations period in Code of Civil Procedure, section 338, subdivision (b) bars the action turns on whether the trespass is continuing or permanent. Where a nuisance or trespass “is of such character that it will presumably continue indefinitely it is considered permanent, and the limitations period runs from the time the nuisance is created. [Citations.] On the other hand, if the nuisance may be discontinued at any time it is considered continuing in character. [Citations.] Every repetition of a continuing nuisance is a separate wrong for which the person injured may bring successive actions for damages until the nuisance is abated, even though an action based on the original wrong may be barred.” (Phillips v. City of Pasadena (1945) 27 Cal.2d 104, 107-108.)
The analysis is essentially the same for trespass and nuisance. (Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668, 675, KFC Western, Inc. v. Meghrig (1994) 23 Cal.App.4th 1167, 1182.)
The trial court properly concluded that Romano’s fence was a continuing, rather than permanent, nuisance. A nuisance or trespass is continuing rather than permanent if it is “abatable,” meaning that the nuisance or trespass “can be remedied at a reasonable cost by reasonable means.” (Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1097, 1103.) For example, in Phillips the Supreme Court held that a locked gate placed across a road to the plaintiff’s property was a continuing nuisance or trespass because it appeared the gate could be removed at any time. (Phillips v. City of Pasadena, supra, 27 Cal.2d at p. 108.) Romano relies on cases concerning buildings or other improvements of a much more substantial nature to argue that his fence is a permanent rather than continuing nuisance. (See Bertram v. Orlando (1951) 102 Cal.App.2d 506 [three wooden buildings on concrete piers]; Castelletto v. Bendon (1961) 193 Cal.App.2d 64, 66-67 [buildings constructed on concrete piers and a permanent foundation]; Tracy v. Ferrera (1956) 144 Cal.App.2d 827 [walls, foundation, pipes and vents]; Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228 [sewer pipe buried eight feet deep].) Here, however, the trial court made a factual finding that Romano’s wire and post fence could readily be removed from the property; in fact, Romano and his wife removed the first fence he constructed in just one day. Because the finding that the fence was “expeditiously abatable” is supported by substantial evidence (see Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874), the trial court properly ruled the trespass was continuing and the trespass claim was not barred by the three-year limitations period.
II. Romano Did Not Prove He Had an Irrevocable License
Romano contends he has an irrevocable license to maintain the fence in its current location based on the money and labor he expended to construct the fence, landscaping, and deck. This argument is also unpersuasive.
A license is a privilege to enter another’s property for a specific purpose without creating an estate in that property. Although a license is ordinarily revocable at will (see Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 36), “where a party has made substantial expenditures in reliance on a license, the license acts, for all purposes, as an easement, estopping the grantor and his successor from revoking it.” (Noronha v. Stewart (1988) 199 Cal.App.3d 485, 490, 491; Belmont County Water Dist. v. State of California (1976) 65 Cal.App.3d 13, 17-18.) “As the court put it in County of Alameda v. Ross (1939) 32 Cal.App.2d 135, 141: ‘Under certain circumstances a license which is ordinarily revocable at will may become irrevocable by the licensor, when the licensee, acting in good faith under the terms of the instrument, constructs valuable improvements on the property, making it unjust to permit the cancellation without first fully compensating the licensee for his loss and expenditure of money’. . . . The cases underline that the exception thus stated is predicated on the doctrine of equitable estoppel and its primary purpose is to prevent the revocation of the license when the licensee has made substantial expenditures in reasonable reliance upon the representations by the licensor with respect to the duration of the license and when the permission of revocation would work fraud or injustice upon the license.” (Belmont County Water Dist., supra, at pp. 17-18.)
Whether Romano made a “substantial” expenditure of time or money and, if so, whether he did it in reasonable reliance on a license were questions of fact for the trial court. The court credited Lowenthal’s testimony that there was never any agreement to permanently relocate the property line, thereby undermining Romano’s claim of reasonable reliance. The court also found Romano failed to show a substantial expenditure of time or money and, in fact, that he failed to offer any evidence as to the cost, value, or details of the post and wire fence or other “ ‘improvements.’ ” As the record supports these findings, we will not disturb the court’s determination.
The nature of the fence and minimal landscaping improvements alone does not establish a substantial expenditure. Romano’s apparent suggestion that even the most trivial expenditure of money or labor creates an irrevocable license is unsupported by citation to any case and ignores the specification in Noronha and Belmont that the expenditure must be substantial.
DISPOSITION
The judgment is affirmed.
We concur:
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.