Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of the County No. VC047248, of Los Angeles, Robert J. Higa, Judge. .
Law Offices of Speros P. Maniates, Speros P. Maniates for Defendant and Appellant.
No appearance by Plaintiffs and Respondents.
MOSK, J.
INTRODUCTION
The trial court found that defendant’s wall encroached upon plaintiffs’ easement for ingress and egress and incidental purposes and would have to be removed. The trial court also awarded plaintiffs damages. Defendant asserts on appeal that although the wall was within the legal description of the easement, it did not interfere with the easement and that the trial court’s damages erroneously included an amount attributable to attorney fees. We hold that the trial court erred by granting relief without determining that the interference with an easement was unreasonable and by assessing damages based on attorney fees.
BACKGROUND
Plaintiffs Leopoldo Echeveste and Angelina Pena own residential property in Cudahy, California. Mario Velasquez owns property adjacent to plaintiffs’ property. In 1993, Lorenzo Espinoza, who owned both properties, recorded a grant deed reserving an easement over ten feet of what is now defendants’ property for “ingress, egress and incidental purposes.”
Mr. Espinoza transferred what became defendant’s property. Those who purchased the property sold it to defendant in 2003. The deed transferring the property to defendant failed to include reference to the easement. The easement was included in chain of title documents on plaintiffs’ property, but not on defendant’s property. In 2006, defendant obtained a building permit from the City of Cudahy to build a block wall along with a wrought iron fence on his property. In this connection, he started with a trench along the property line separating the two properties and which included the easement. The trench left an entrance to plaintiffs’ property near the northern end of the property. The trench later was filled in. The wall was on the easement, part of which plaintiffs use for ingress and egress. The wall did not, however, prevent plaintiffs’ access to their property through the driveway. It may have affected access through another entrance. There are suggestions that the installation of the wall related to conflicts between the parties. Prior to the wall being built, there was a chain link fence on plaintiffs’ property next to where the wall was built.
The trial court found that plaintiffs had an easement over a portion of defendant’s property for ingress, egress and incidental purposes; defendant’s trench and wall on a portion of the easement interfered with the easement; a water pipe serving plaintiffs’ property may use a portion of the easement; and such use constituted an “incidental purpose” under the easement. The trial court ordered that defendant remove the wall and fill in a trench along a portion of the easement. The trial court also awarded plaintiffs $14,000 in damages, plus costs.
As to the damages, the following took place at the conclusion of the trial: “[The Court]:... But you did suffer damages. You’ve asked for $22,000. I know there’s no attorney’s fee clause here, but what is it costing you to start this thing? What’s the attorney’s fees?” [¶] [Plaintiffs’ Counsel]: I haven’t fully billed it to date, Your Honor. It’s approximately $12,000. I tried to do as little work as possible. [¶] [The Court]: And since you did go to him with your deed and tell him there was an easement there at the beginning, he tried to—you tried to keep him from doing it, and then you had to go to the expense of hiring a lawyer to enforce it, I’m going to give you—there’s no attorney’s fees, but I think those are righteous damages to you, and I’m going to give you those damages. So that will be $12,000 approximately for the attorney’s—as damages, as damages, plus the $2,000 nominal, so that’s $14.”
Defendant has timely appealed. Plaintiffs have not filed a brief.
DISCUSSION
“An easement is an interest in the land of another, which entitles the owner of the easement to a limited use or enjoyment of the other’s land.” (12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 382, p. 446.) “The land to which an easement is attached is called the dominant tenement; the land upon which a burden or servitude is laid is called the servient tenement.” (Civ. Code, § 803.) “Interference with an easement is a form of trespass. Consequently, an easement holder is entitled to equitable relief against a servient owner’s unlawful interference with the easement holder’s enjoyment of the servitude, particularly when the obstruction is of a permanent character.” (Ely and Bruce, The Law of Easements & Licenses in Land (2009 update) § 832 (footnote omitted).)
When, as here, an easement is non exclusive, “the common users must accommodate each other.” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 767.) “‘The general rule is clearly established that, despite the granting of an easement, the owner of the servient tenement may make any use of the land that does not interfere unreasonably with the easement.’” (Camp Meeker Water System, Inc. v. Public Utilities Com. (1990) 51 Cal.3d 845, 867.) Thus, the “owner of the servient estate may make continued use of the area the easement covers so long as the use does not ‘interfere unreasonably’ with the easement’s purpose.” (Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702-703.) “An obstruction which unreasonably interferes with the use of a roadway easement can be ordered removed ‘for the protection and preservation’ of the easement.” (Id. at p. 703, see City of Pasadena v. California-Michigan Land & Water Co. (1941) 17 Cal.2d 576, 579; 6 Miller and Starr, Cal. Real Estate (2006 update) § 15:56, p. 95-189 [“grantor reserves all rights of use that do not cause an unreasonable interference with the grantee’s use of the easement”].)
Defendant conceded that the wall interferes minimally, or “de minimus,” with plaintiffs’ easement. The trial court concluded that “[the plaintiff] has a way to get to her property, get to the driveway onto her property, the two entrances.” The trial court said, “The law is pretty clear that easement is not to be interfered with in any way. It can’t be obstructed. You can’t build on it.” The trial court also said that the plaintiffs have a right to use “the whole property line for incidental purposes” and that the “water pipe serving plaintiffs’ property may use a portion of this easement [and] such use is allowed as an ‘incidental purpose under the easement.’” (Italics added.) And the trial court found that the wall “interferes with [the] easement.” These statements appear to be inconsistent with the authorities that provide that the owner of the servient tenement may make any use of the land on which there is an easement so long as the use does not unreasonably interfere with the easement.
Thus, the trial court applied the incorrect legal standard in determining whether plaintiffs are entitled to relief. For that reason, we reverse the judgment. On remand, the trial court should determine if defendant has unreasonably interfered with the easement. (See Dolske v. Gormley (1962) 58 Cal.2d 513 [trial court’s finding that fence not an unreasonable restriction of easement rights upheld].)
In light of our conclusion, we do not have to address the damages. But for the guidance of the trial court on remand, we do so. “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 damaged as measured in the case of a private nuisance. [Citations.].” (Moylan v. Dykes (1986) 181 Cal.App.3d 561, 574.) Compensatory damages for a temporary interference with a nuisance, may consist of the diminution of value of plaintiff’s property, or loss of use. (See Kazi v. State Farm Fire & Casualty Co. (2001) 24 Cal.4th 871, 884; Moylan v. Dykes, supra, 181 Cal.App.3d at p. 574; Neff v. Ernst (1957) 48 Cal.2d 628, 632; Fletcher v. Stapleton (1932) 123 Cal.App. 133, 138; Rest.2d Torts, § 931 and com. (b). Moreover, as a plaintiff may recover damages for annoyance, inconvenience, and discomfort caused by a nuisance (see Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 275; Herzog v. Grosso (1953) 41 Cal.2d 219, 225; Judson v. Los Angeles Suburban Gas Co. (1910) 157 Cal. 168, 172), such damages should be recoverable for interference with an easement. (See 6 Miller and Starr, supra, § 15:72.)
Here, the trial court fixed the damages by the amount of attorney fees expended by plaintiffs and referred to them as “righteous damages.” This was not an appropriate measure of the damages. The damages must be compensatory—diminution of value; loss of use; annoyance, inconvenience and discomfort.
DISPOSITION
The matter is reversed and remanded to the trial court to make determinations consistent with this opinion. Defendant is awarded his costs.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.