Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. CIV 452362
Jones, P.J.
Plaintiffs and appellants Bernardino M. Vergara, Jr. and Sandra K. Vergara (appellants) appeal the judgment granting an exclusive prescriptive easement in favor of defendants and respondents Francisco Bermudez and Alexandra Bermudez, and Christa Sullivan over a portion of appellants’ backyard. Appellants contend the trial court erroneously granted the easement because it essentially deprives them of all rights to their property. They also contend the court erroneously concluded appellants’ quiet title claim was barred under the doctrine of laches.
BACKGROUND
This case concerns three developed lots, Lots 38, 39, and 13, that are part of a South San Francisco subdivision created by recordation of a subdivision map in September 1962.
The parties to this action purchased their lots with existing single family houses. For convenience this opinion shall refer to each of the three properties by their lot numbers. All geographic descriptions in this opinion are based on the record of survey admitted as appellants’ exhibit 1a. Respondents do not dispute the accuracy of the measurements or depictions on the record of survey.
Lot 38, commonly known as 2755 Shannon Drive, and Lot 39, commonly known as 2745 Shannon Drive, are adjacent to each other, with Lot 38 lying to the east of Lot 38.
Lot 13, commonly known as 2690 Tipperary Avenue, lies immediately north of and uphill from Lots 38 and 39. The whole of Lot 38’s northern boundary abuts Lot 13. Approximately half of Lot 39’s northern boundarythe eastern halfabuts Lot 13. The western half of its northern boundary abuts Lot 12. The owners of Lot 12 are not parties to this action.
In 1976 respondent Christa Sullivan and her late husband, Patrick, purchased Lot 38 from the original owners, who bought it in 1963. When the Sullivans moved into the house, a cinderblock wall extended from the northwest corner of their backyard approximately 26 feet in an easterly direction. A wood fence sat on top of the cinderblock wall. After the cinderblock wall terminated, the wood fence continued in the ground another 14 feet until it met the wood fence on the east side of Lot 13. Two foot high privacy panels sat on top of the wood fence. The Sullivans never had a survey performed on Lot 38.
In 1993 respondents Francisco Bermudez and Alexandra Vasquez (now Bermudez) purchased Lot 39. There had been several owners of Lot 39 since its original 1963 owners. When the Bermudezes bought Lot 39, a six foot high cinderblock retaining wall extended from the northwest corner to the northeast corner of their backyard, where it met the cinderblock retaining wall and wood fence that separated Lot 13 from Lot 38. A wood fence sat on top of the cinderblock wall from the northwest corner of their backyard but it stopped where it met the north/south fence that served as the eastern boundary of Lot 12. At the point where the wood fence ended, and above the continuing cinderblock retaining wall, was an area of vegetation, trapezoidal in shape, approximately six feet by eight feet. At the rear, or northern, end of this trapezoidal area and along its eastern side was a high wood fence. Lot 13 lay on the other side of the trapezoidal area. The wood fence on the eastern side of the trapezoidal area ran from the north end of the trapezoidal area south until it formed an “L” junction with the cinderblock wall topped by the wood fence that divides Lot 13 and Lot 38. The trapezoidal area was, in effect, a 48 square foot protrusion into the southwest corner of Lot 13.
At some date after 1962 U.S. Title sold Lot 13 to Peninsula Master Builders. According to South San Francisco building permit records, a permit issued for Lot 13 on August 8, 1967, for a concrete block retaining wall, 48 feet long by six feet high. The permit contained a “final inspection date” of August 25, 1967. Also on August 8, 1967, a permit issued for the construction of a dwelling on Lot 13, with a final inspection date of January 22, 1968. Such a final inspection date generally reflects completion of the house. In March 1968 Peninsula Master Builders sold Lot 13 to Charles and Claire Gomez.
Although the parties did not have a definitive answer, they understood that the house on Lot 13 was built as a “Model Home.”
In 1998, appellants Bernardino and Sandra Vergara purchased Lot 13 in a probate sale from the estate of Charles Gomez. They made their offer “on the spot” the same day they looked at the house. Sandra Vergara never “gave [] much thought” as to whether the fences correctly encompassed the lot; her primary concerns were the condition of the house itself and the neighborhood.
Appellants executed a standard six page “real estate purchase contract.” Section Nine on page three was entitled “property condition contingency.” It states Buyer has the right, at Buyer’s expense, to select a qualified professional to inspect the property as to numerous conditions, including boundary lines, that may affect the value of the property. Section Nine further states that Buyer has been alerted as to seven specific factors. One factor, 9A6, states: “PROPERTY BOUNDARY LINES: Buyer is alerted that Seller has not undertaken a survey of the property, and that such apparent property boundary indicators as fences, hedges, walls and other natural or constructed barriers may or may not represent the true boundary lines of the property. Buyer is advised to engage a professional surveyor if Buyer desires to determine precise lot line locations.” A preliminary title report was prepared during escrow as part of the sale and given to appellants. Sandra Vergara knew that the report should have contained a subdivision map of their lot, but she was not concerned about it during the escrow period.
When appellants bought Lot 13, there was an existing wood fence dividing their property from respondents’ properties. Part of the fence sat on top of a cinder block retaining wall. The fence and wall run parallel to and 20 feet from the rear of appellants’ house. Two small trees were on appellants’ side of the fence. A large pine tree was on respondent Sullivan’s side of the fence.
In 2005 appellants decided to landscape their backyard. Until 2005 they had only used their backyard to hang clothes and as a place for the barbeque. They obtained a subdivision map to give to the landscape architect and noted that the map showed the rear property line of Lot 13 as curved, whereas the backyard fence dividing Lot 13 from Lot 38 (the Sullivans) was straight. The map also showed that the trapezoidal area apparently belonging to Lot 39 (the Bermudezes) lay within Lot 13’s boundaries. In July 2005 they engaged surveyor Bryan Taylor to survey the property to provide the landscaper the accurate dimensions of the property. Prior to thinking of hiring a landscaper they never gave any thought to where the back property line lay.
Taylor determined that the trapezoidal area seemingly part of Lot 39 was part of Lot 13. This trapezoidal area is the source of the dispute between appellants and the Bermudez respondents.
Taylor also determined that true boundary line between Lots 13 and 38 lay beyond, i.e., essentially to the south of, the cinder block wall and wood fence that divided Lots 13 and 38. Thus, a triangular piece of land of approximately 700 square feet between the wall and fence and the true boundary line that appeared to be part of Lot 38 is in fact part of Lot 13. This triangular area is the source of the dispute between appellants and respondent Sullivan.
Patrick Sullivan died in October 2005.
Appellants gave copies of Taylor’s survey to respondents, notifying them that they wanted to move the fence back to the true boundary line. From the time they bought their house in 1998 and the 2005 survey, appellants had never seen respondent Sullivan use the triangular piece of land between the fence and the true property line for a social event; according to appellants, it was used only to “collect junk.” The triangular area is flat; the land then slopes downhill to the Sullivan house. After appellants gave the Sullivans the copy of the survey, the Sullivans planted the area and put in garden furniture. Appellants then realized the triangular area contained a deck, which had previously been hidden by “clutter.”
Appellant Sandra Vergara testified that the elevation of the trapezoidal area is the same as the elevation of appellants’ property. She further testified that before appellants notified the Bermudez respondents of the survey, they had never seen them use the trapezoidal area, although they had occasionally seen a dog there.
Respondent Sullivan testified that since moving to the house in 1976, the backyard fence and cinderblock wall dividing Lots 13 and 38 have always been in the same location. Charles Gomez, the previous owner of Lot 13, told her and her husband that the fence was the property line, and she has always understood it to be the property line, particularly because Gomez had lived there for many years before them. When Gomez lived behind the Sullivans, he fixed the fence that sits above the retaining wall and always replaced any damaged privacy panels on that part of the fence because he could reach the panels more easily. Sullivan referred to the disputed triangular area as “the patio.” Her husband had built the patio from railroad ties laid on dirt. He used railroad ties rather than cement because the area is a utility easement, and utility companies require ready access to the ground. At Gomez’s request, the Sullivans were responsible for the repairs to the part of the wood fence on the patio, i.e., the part of the fence directly on the ground, not the part of the fence on top of the cinderblock retaining wall. Sullivan had never met or seen appellants until the instant dispute.
Sullivan testified that she and her late husband used the triangular area “all the time,” although it was not kept up well during his final illness. He sat there and threw the ball to their dogs; he liked it because it was protected from the wind. She keeps patio furniture there during the summer months, removing it in winter. She has not done any extra maintenance on the patio since the dispute other than put two plants on top of the fence where privacy panels used to be.
The Bermudez respondents have never replaced the wood fence that runs at the back (north) and east of the trapezoidal area. There is a footpath from the corner of their backyard to trapezoidal area. When the Bermudezes bought the property they were uncertain why the trapezoidal area would be part of this property. Mr. Bermudez asked Mr. Gomez about the unusual area, and Gomez told him “it’s always been that way.” When the wood fence surrounding the trapezoidal area would be damaged during storms, he and Gomez agreed on repairs.
Alexandra Bermudez testified that her family uses the trapezoidal area as a garden and for activities such as Easter egg hunts and hide-and-seek.
Statement of Decision
The action was tried on causes of action for quiet title, ejectment, and injunction. Appellants sought a determination of title as to respondents and against all adverse claims, including those of respondents. They also sought an injunction enjoining respondents from unfettered access to the use and enjoyment of appellants’ property and requiring respondents to quit appellants’ property and to remove all encroachments thereon.
As affirmative defenses, respondents asserted prescriptive easement, adverse possession, the agreed boundary doctrine, and laches.
The trial court concluded that appellants’ title to Lot 13 should be quieted to them with the following exceptions: Respondent Sullivan has an exclusive prescriptive easement and right of use to the disputed triangular portion lying within Lot 13, and the Bermudez respondents have an exclusive prescriptive easement and right of use to the disputed trapezoidal portion lying within Lot 13. The court found that since Sullivan and her late husband purchased Lot 38 in 1976, she has used and occupied the triangular area openly and exclusively, under claim of right, adversely and hostile to the title owner of Lot 13 and has continued to do so since appellants acquired Lot 13 in October 1998. The court found that the Bermudezes had similarly occupied the trapezoidal area in Lot 13 since 1993 and continuing after appellants’ purchase.
The court additionally found that appellants were informed in writing when they bought Lot 13 in 1998 that the fences on the property might not accurately reflect the true boundary lines of the property and if they wanted to ascertain the true boundaries they should commission a survey. Without justification they did not engage a surveyor until 2005, during which time respondent Sullivan’s husband developed an increasingly disabling illness from which he died in October 2005. Because of Mr. Sullivan’s communication with appellants’ predecessor in interest, Charles Gomez, he was likely the most knowledgeable witness concerning the fence boundary issue and had information relevant to the agreements with Gomez concerning boundaries and improvements to the parties’ lots. Appellants’ unwarranted delay in obtaining a survey and commencing their action prejudiced respondents by disabling them from presenting potentially crucial evidence concerning the relative rights of the parties to the boundaries and Gomez’s consent to respondents’ exclusive use of the disputed areas, and allowing them to make justifiable and continuous improvements to the disputed areas during appellants’ ownership.
The court concluded that, under these circumstances, appellants were estopped to seek an adjustment of the boundary fences by a belated exploratory survey. “The subject properties are within communities where the vast majority of homes are purchased on the basis of the existence and location of common boundary fences and monuments due to survey costs and good neighbor policies. To encourage boundary disputes and litigation among neighbors as a result of belated after-purchase surveys in a quest for additional land is not good public policy and is unjustified and inequitable where prejudice to prior owners and adjoining owners results. By reason of the foregoing circumstances, the doctrine of laches is a defense applicable to [appellants’] claims [] and bars [appellants] from obtaining the[ir] [prayed for] relief. The application of the doctrine of laches as a defense to [appellants’] claims estop[ped] [appellants] from exercising access and use of the [disputed portions of] Lot 13. . . . It is upon this basis that [appellants’] actions for ejectment and injunction with respect to [the disputed areas] of Lot 13 are denied and it is upon that basis [respondents] are entitled to maintain the described existing fences and [appellants’] removal of those fences should be denied. The court further finds that the incursion of the described easements of [respondents] affect[s] a small area of [appellants’] property, a substantial portion of which is located at the base of a six foot retaining wall, greatly diminishing its use to [appellants]. The effect of the easement upon [appellants] is de minimus and does not substantially affect the use and benefits of [appellants’] property or its value.”
The court denied respondents’ assertion of adverse possession because they failed to present evidence that they paid taxes on the disputed portions. It denied their defense based on the agreed boundary doctrine because respondents failed to present evidence that the agreement between appellants’ predecessor in title, Charles Gomez, and respondents was entered into for the purpose of resolving a dispute as to the location of the boundaries of Lot 13 and Lots 38 and 39.
DISCUSSION
I. Prescriptive Easement
Appellants contend the grant of an exclusive prescriptive easement is error because it granted respondents an exclusive possessory interest and effectively granted adverse possession of the disputed land, depriving appellants of all rights in their property.
An easement involves the privilege of doing a certain act on, or to the detriment of, another’s property. (Wright v. Best (1942) 19 Cal.2d 368, 381.) It gives a nonpossessory and restricted right to a specific use or activity on the property of another, which right must be less than the right of ownership. (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1306, 1307 (Mehdizadeh).)
To establish a prescriptive easement, the claimant must prove use of the property for five years, which use has been open and notorious; continuous and uninterrupted; hostile to the true owner; and under claim of right. (Mehdizadeh, supra, 46 Cal.App.4th at p. 1305; Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570.) However, an easement does not create an ownership interest. (Mehdizadeh, supra, 46 Cal.App.4th at p. 1307.) If the effect of the prescriptive easement is to divest the property owner of all rightsuse, occupation, enjoymentowners customarily have in residential property, the grant of a prescriptive easement is generally error. A claimant seeking such complete exclusion of the property owner must present proof of adverse possession, which requires, in addition to the elements of a prescriptive easement, possession under claim of right or color of title and payment of all taxes assessed against the property for a five year period. (Id. at pp. 1305-1308; see also Silacci v. Abramson (1996) 45 Cal.App.4th 558, 564 (Silacci); Raab v. Casper (1975) 51 Cal.App.3d 866, 877 (Raab).)
In rare instances involving socially important duties of the claimant, courts have granted exclusive prescriptive easements that give the claimant exclusive use of the property for the public good. (Mehdizadeh, supra, 46 Cal.App.4th at p. 1307.) In Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, for example, the water district, based on its erroneous deed description, mistakenly built a portion of a reservoir on the adjoining property owner’s land. (Id. at pp. 1044-1045.) The court granted an exclusive prescriptive easement because the water district established that its exclusive use was necessary to prevent potential contamination of the water supply and for other health and safety purposes. (Id. at pp. 1047-1048.) However, as subsequent cases have noted, the long-standing rule regarding “exclusive easement” makes clear that an exclusive easement “ ‘is an unusual interest in land; it has been said to amount almost to a conveyance of the fee. [Citations.] No intention to convey such a complete interest can be imputed to the owner of the servient tenement in the absence of a clear indication of such an intention.’ [Citation.]” (Mehdizadeh, supra, 46 Cal.App.4th at p. 1308.) Because it is “a very unusual interest in land . . . which, as a practical matter completely prohibits the true owner from using his land, [it] has no application to a simple backyard dispute. . . . An easement, after all, is merely the right to use the land of another for a specific purposemost often, the right to cross the land of another. An easement acquired by prescription is one acquired by adverse use for a certain period. An easement, however, is not an ownership interest, and certainly does not amount to a fee simple estate.” (Silacci, supra, 45 Cal.App.4th at p. 564.)
Appellants argue that this case is factually comparable to the Raab/Silacci/Mehdizadeh/Harrison (Harrison v. Welch (2004) 116 Cal.App.4th 1084 (Harrison)) line of cases which have held that an “exclusive prescriptive easement” is unavailable to claimants whose claim would wholly deprive the property owner of use of the land.
In Raab, the defendants installed utility lines on part of the driveway to their house and on part of their yard, and landscaping on the property owners’ side of their common boundary. The trial court granted defendants an easement over plaintiffs’ property which, “[a]lthough adroitly phrased to avoid the language of a grant of title,. . . was undoubtedly designed to give defendants unlimited use of the yard around their home. . . . The finding and judgment were designed to exclude plaintiffs from defendants’ domestic establishment, employing the nomenclature of easement but designed to create the practical equivalent of an estate.” (Raab, supra, 51 Cal.App.3d at p. 877.) Raab reversed because the granting of an estate in the real property required proof of adverse possession, which defendants could not show. (Id. at p. 878.)
The dispute in Silacci was over use and ownership of a portion of land behind the parties’ houses. The trial court granted claimant Abramson an exclusive prescriptive easement over 1,600 square feet of the Silacci property, which Abramson had fenced in and used as a backyard, restricting Abramson’s use of the easement to a backyard garden. (Silacci, supra, 45 Cal.App.4th at pp. 560-561.) Silacci reversed. “An easement, however, is not an ownership interest, and certainly does not amount to a fee simple estate. To permit Abramson to acquire possession of Silacci’s land, and to call the acquisition an exclusive prescriptive easement, perverts the classical distinction in real property law between ownership and use. The trial court’s order here amounted to giving Silacci’s land completely, without reservation, to Abramson.” (Id. at p. 564.)
In Mehdizadeh, the trial court granted the claimant a prescriptive easement over a 10-foot wide strip of the property owned by his neighbor Mehdizadeh. The strip had been fenced in as part of the claimant’s property; it contained trees, shrubbery, and a sprinkler system connected to the claimant’s water supply. (Mehdizadeh, supra, 46 Cal.App.4th at pp. 1301-1302.) The claimant enjoyed the view of the disputed area, and his dog used it. (Id. at p. 1302.) The trial court limited the claimant’s use to landscaping and recreation purposes; he could not build or maintain any structures except fences and a retaining wall. The property owners were to retain air, light and privacy rights. (Ibid.) Mehdizadeh reversed. “ ‘The owner of the dominant tenement must use his or her easement and right in such a way as to impose as slight a burden as possible on the servient tenement.’ [Citation.] ‘ “[T]he owner of the servient tenement may make any use of the land that does not interfere unreasonably with the easement.” ’ [Citation] [The property owners] are fenced off from the property subject to the easement, and we question whether they can use, occupy, or enjoy it in any meaningful way. They have no access to the property. The fence reduces the size and alters the shape of their lot, potentially creating problems with setbacks and building codes that could impede alterations to structures [the property owners] might wish to make, and also potentially reducing the value or salability of their property. The easement thus burdens [the property owners’] property heavily, while leaving [the property owners] only a minimal right to use itenjoying air, light, and privacy rights.” (Id. at pp. 1307-1308.)
In Harrison, the property owners (Harrison) sought to quiet title to their property and an injunction that Welch remove encroachments (a shed and landscaping) from their lot. (Id. at p. 1088.) Welch cross-complained on theories of prescriptive easement and balancing of hardships. (Ibid.) The trial court concluded that Welch had proved the elements of prescriptive easement, but Welch’s encroachments constituted an “exclusive use” of the area, and California law does not allow exclusive prescriptive easements. (Id. at p. 1089.) The trial court also determined the Harrisons were barred by the three year statute of limitations from obtaining a mandatory injunction requiring Welch to remove the permanent encroachments. (Ibid.) However, the trial court concluded it could engage in “ ‘equitable balancing of hardships . . . through Welch’s request for equitable relief.’ ‘[W]eighing all of the relevant factors such as the relative innocence/good faith of the parties, relative hardships, etc.’ ” the trial court determined that the trees on the disputed area belonged to the Harrisons; Welch could remove the planter boxes and shed by a given date, and if she failed, the Harrisons could do with them as they wanted; and the buried irrigation lines installed by Welch could remain in place but any encroaching sprinkler heads had to be capped unless the Harrisons allowed them to remain. (Ibid.)
Harrison affirmed, observing that exclusive prescriptive easements “will not be granted in a case (like this) involving a garden-variety residential boundary encroachment.” (Harrison, supra, 116 Cal.App.4th at p. 1093.) Harrison also concluded that although the trial court erred in concluding that the Harrisons’ request for injunctive relief was time-barred, the error was harmless because they were largely granted the relief they sought through Welch’s request for equitable relief. (Id. at p. 1098.)
Following this line of cases, the grant of an exclusive prescriptive easement to respondents here was error as a matter of law because the easement, as a practical matter, completely prohibits appellants from the use and enjoyment of their land.
II. Equitable Relief
Relying primarily on Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 771 (Hirshfield) and Christensen v. Tucker (1952) 114 Cal.App.2d 554, respondents contend there was no error because the court granted them an easement through the exercise of its equitable powers; an interest fashioned in equity is reviewed under the abuse of discretion standard; and the trial court here did not abuse its discretion.
In Hirshfield, the Hirshfields and the Schwartzes assumed that a chain link fence between their adjacent residential properties marked the property line. (Hirshfield, supra, 91 Cal.App.4th at p. 755.) Between 1979 and 1996 the Schwartzes made extensive exterior improvements to property on their side of the fence. (Ibid.) In 1997 the Hirshfields commissioned a boundary survey, which revealed that the Schwartzes had used two sections of land (parcels one and three) that were Hirshfield land, and the Hirshfields had used one section of land (parcel two) that was Schwartz land. (Id. at p. 756.) The Hirshfields brought an action for quiet title, declaratory relief and trespass based upon the Schwartzes’ encroachments on parcels one and three. (Ibid.) The Schwartzes asserted affirmative defenses of laches and the existence of “an easement by prescription ‘or otherwise.’ ” (Ibid.)
Applying the doctrine of relative hardships articulated in Christensen, the trial court concluded that the balance tipped in favor of the Schwartzes. It therefore denied the injunctive relief the Hirshfields sought on their causes of action. (Hirshfield, supra, 91 Cal.App.4th at p. 757.) The court also protected the interest of the Schwartzes by granting them “ ‘an easement’ ” in parcels one and three. It ruled that the easement would terminate when the Schwartzes transferred the property or no longer lived there, it forbade the Schwartzes to encroach any further, it awarded the Hirshfields an unrestricted easement to parcel two, and it ordered the Schwartzes to pay the Hirshfields the fair market value of parcels one and three, less the fair market value of parcel two. (Id. at pp. 757-758.)
Hirshfield affirmed. It first held there was substantial evidence to support application of the relative hardship doctrine, long used in California to determine “whether to grant an injunction to enjoin a trespass by encroachment on another’s land.” (Hirshfield, supra, 91 Cal.App.4th at p. 758.) The doctrine presupposes that because the defendant is the trespasser, he is considered the wrongdoer. To deny an injunction under the doctrine, three factors are necessary: (1) the defendant must be innocent, i.e., his encroachment was not willful or negligent; (2) the injunction to enjoin the trespass should be granted if the plaintiff will suffer irreparable injury regardless of injury to the defendant; and (3) the hardship to the defendant from granting the injunction must be greatly disproportionate to the hardship caused to the plaintiff by the continuance of the encroachment, and this fact must appear clearly in the evidence and be proved by the defendant. (Id. at p. 759.)
Hirshfield concluded the easement awarded to the Schwartzes was a proper exercise of the court’s equity powers. (Hirshfield, supra, 91 Cal.App.4th at p. 764.) It rejected the Hirshfields’ characterization of the interest awarded the Schwartzes as an exclusive prescriptive easement disapproved of by the Raab/Mehdizadeh/Silacci line of cases. (Id. at p. 764.) “When a trial court refuses to enjoin encroachments which trespass on another’s land, ‘the net effect is a judicially created easement by a sort of non-statutory eminent domain.’ [Citations.]. . . [I]n a proper case, the courts may exercise their equity powers to affirmatively fashion an interest in the owner’s land which will protect the encroacher’s use.” (Id. at pp. 764-765.) Given the pleadings and arguments of the Schwartzes and the trial court’s statement of decision, Hirshfield concluded that although the trial court may have used the term “ ‘prescriptive easement’ ” during posttrial hearings, it “relied solely on its equity powers, not the laws regarding prescriptive easements, when creating the protective interest which it called an easement.” (Id. at pp. 766, 767.)
Hirshfield further concluded that, given the disparate policies of adverse possession/prescriptive easement on the one hand and equity on the other, “the disapproval of exclusive prescriptive easements expressed in Raab, Silacci, and Mehdizadeh” did not apply to the instant judgment, which “finds its basis in the trial court’s denial of an injunction to remove encroachments and an exercise of its equity powers to grant affirmative relief tailored to protect the encroacher’s use of the disputed land.” (Hirshfield, supra, 91 Cal.App.4th at p. 770.) “[T]he source and scope of the trial court’s power in the present case is clear. True, the trial court used the term ‘easement’ to describe the protective interest it created. Nonetheless, that equitable interest is not necessarily subject to the limitations of prescriptive easements created at law. . . . [T]he interest created will be affirmed unless it amounts to an abuse of the trial court’s discretion.” (Id. at p. 771.)
Hirshfield finally concluded that the Schwartzes’ protected interest“whatever its name”fell within the trial court’s permissible range of options and was therefore not an abuse of discretion. As it noted, the trial court granted the Schwartzes no greater relief than was necessary to protect their use of parcels one and three. It limited the duration and scope of their easements, it granted the Hirshfields an unrestricted easement in parcel two, and it awarded them damages. (Id. at pp. 771-772.)
The trial court’s statement of decision here is contradictory. After reciting the elements of a prescriptive easement, it plainly states that respondents have “acquired an exclusive prescriptive easement and right of use” to the disputed areas. Standing alone, that statement amounts to a conclusion that respondents are entitled, as a matter of law, to an exclusive prescriptive easement, which, as discussed, ante, is error. However, the statement of decision goes on to explain why appellants are not entitled to the injunctive relief they seek, i.e., ejectment of respondents’ encroachments from appellants’ property, requiring respondents to quit appellants’ property and remove and not maintain any encroachments thereon. That ensuing explanation sounds in equity: appellants delayed having a survey, even though the purchase agreement put them on notice the existing fences may not accurately reflect the true boundaries; their delay prejudiced respondents by precluding them from presenting evidence potentially favorable to them concerning boundaries; respondents have made improvements on the disputed property during the period of delay; boundary disputes from belated surveys are contrary to the public policy of good neighborliness; the easement will have little effect on the use or value of appellants’ property because the easement “affect[s only] a small area of [appellants’] property,” and that property “is located at the base of a retaining wall, greatly diminishing its use to [appellants].”
Appellants’ opening brief asserts that the “order re: composition of final statement [etc.]” contains “a rather glaring factual error,” to wit, the area affected by the prescriptive easement being “approximately 49 square feet.” Appellants then observe that the order makes no reference to the 700 square foot incursion by respondent Sullivan, even though she was also granted a prescriptive easement, and that the two easements together effectively prevent appellants from using almost half their backyard, so cannot be considered de minimus incursions. This factual error first appears in the court’s order instructing respondent Sullivan to prepare a proposed statement of decision. The final statement of decision, prepared by Sullivan and signed by the court, nowhere specifies the size of the two disputed areas. While the court’s characterization of the area as de minimus may be unsupported by the record, appellants are not asserting this alleged “glaring factual error” as a ground for reversal.
A judgment based on the trial court’s exercise of its equity powers to protect a property interest is reviewed under the abuse of discretion standard. (Hirshfield, supra, 91 Cal.App.4th at p. 771.) We conclude this judgment constitutes an abuse of discretion.
First, the court relied largely on the equitable doctrine of laches to grant the easement and deny appellants injunctive relief. A defendant asserting laches on the plaintiff’s part must show that the plaintiff acquiesced in the defendant’s wrongful acts and has unduly delayed in seeking equitable relief, to the prejudice of the defendant. (Gerhard v. Stephens (1968) 68 Cal.2d 864, 904.) The mere lapse of time, other than the limitation prescribed by statute, does not bar the plaintiff from seeking relief. (Ibid.) Nevertheless, in determining the reasonableness of a delay in filing an action, courts are guided by the applicable statute of limitation. (David Welch Co. v. Erkskine & Tulley (1988) 203 Cal.App.3d 884, 893.)
In Harrison, supra, 116 Cal.App.4th at pp. 1088, 1095, the Harrisons sought quiet title to a parcel of land on which Welch had built encroachments more than seven years before the Harrisons brought their action which sought injunctive relief. Welch asserted the action was time barred. Harrison disagreed. “[O]nce the Harrisons established their legal title to lot 8 by offering into evidence their deed to the property, they were entitled to pursue an action to recover possession of their property from Welch unless Welch showed she had been in adverse possession of the disputed portion of lot 8 for five years prior to the filing of the Harrisons’ complaint. In other words, the running of the five-year limitations period for bringing an action to recover real property [Code Civ. Proc. §§ 318, 321] is the same as the five-year period of use and occupancy required to establish either title by adverse possession or a prescriptive easement. [Citation.] . . . ‘[T]o start the statute running against the legal owner of the land [in a claim of adverse possession or prescriptive easement], there must be an avowed claim of ownership by the party relying upon the statute and substantially all the elements essential to the establishment of title by adverse possession shown to exist.’ [Citation]. . . . Thus, unless and until the encroacher’s use of the property ripens into title by adverse possession or a valid prescriptive easement, the legal title holder’s right to bring an action to recover his or her property from the encroacher never expires. This must be so, ‘otherwise, the record owner would be unable to recover possession, and a possessor would be unable to establish title’ or a prescriptive easement. [Citation.]” (Id. at pp. 1095-1096.) Harrison had previously determined that Welch did not have a prescriptive easement under the rule of Raab/Silacci/Mehdizadeh, because the easement she sought effectively excluded the Harrisons from any use of the property. (Harrison, supra, 116 Cal.App.4th at pp. 1093,1094.) “[B]ecause Welch’s encroachment on the Harrisons’ property never ripened into . . . a prescriptive easements . . . the limitations period for the Harrisons to bring an action to recover their property from Welch had not expired when they filed their complaint in December 2001, even though Welch had been encroaching on their property for more than seven years.” (Id. at p. 1096.)
As we have discussed, respondents here, like defendant Welch, could not as a matter of law have an exclusive prescriptive easement over the disputed property. Because appellants’ action for quiet title and injunctive relief was not time-barred, the court could not rely on the doctrine of laches to grant equitable relief to respondents.
Moreover, even assuming the doctrine of laches could, under certain circumstances, allow equitable relief in the form of an “easement,” the basis of the court’s application of the doctrine here does not demonstrate prejudice. The court found prejudice to respondents from appellants’ seven year delay in having the survey done: the time lapse from the purchase in 1998, until the survey in 2005. The court stated that respondent Sullivan’s husband, Patrick, was the witness with the most knowledge concerning agreements with Charles Gomez, appellants’ predecessor in interest, about boundaries and improvements dividing the parties’ lots and exclusive use of the disputed areas. But because appellants waited until 2005 to commission the survey, Patrick Sullivan, who died in October 2005, was unavailable to provide his information.
However, Patrick Sullivan’s possible testimony would have been relevant only to the application of the doctrine of agreed boundaries, which the court specifically found did not apply. His testimony would have had no bearing on whether a prescriptive easement had been established. Even if appellants had commissioned the survey within a week of their 1998 purchase, the result of that survey would have been the same as the 2005 survey: the existing fences did not designate the true boundaries, and under the Mehdizadeh line of cases, respondents would not have been entitled to an indefinite exclusive use of the disputed area any more then than they are now. The delay, if anything, favored respondents: they got an extra seven years’ exclusive use of an area on which appellants were unknowingly paying the taxes.
Second, the court here neither explicitly nor impliedly applied the doctrine of relative hardships. Equity contemplates a balancing of interests. (See Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 180; Christensen, supra, 114 Cal.App.2d at p. 562.) The court’s statement of decision does not reflect any consideration of the interests appellants have in the use and access to property that is legally theirs or that it weighed those interests against the interests of respondents in retaining use of that property and the hardships respondents would suffer if enjoined from the use they have enjoyed.
Third, the court’s reasons, beyond laches, for concluding the equities lie with respondents are strained and not well supported by the evidence. The court characterized the disputed area as “small.” On appeal appellants assert the two incursions, added together, comprise almost half their backyard. They did not present any evidence at trial as to the square footage of their backyard when measured to the true property line. However, a gross observation of the survey, which was an exhibit at trial and has been provided to us, shows the two intrusions to constitute a significant portion of their backyard. While the incursions may not be large in absolute terms, they do not appear “small” relative to the size of appellants’ backyard.
The court also refers to a “substantial” portion of the incursions as being located at the base of a retaining wall, “greatly diminishing” its use to appellants and resulting in the incursions having a de minimus effect on them. This statement implies that the disputed area is unusable because it consists of a steep hillside, but there was no evidence to that effect. The photo exhibits offered at trial, which have also been provided to this court, show the trapezoidal area used by the Bermudez respondents as a level area, and the triangle area used by respondent Sullivan as being sufficiently level to support a patio table and chairs and potted plants. Also, the finding that the locale of the disputed area diminishes its use to appellants is contrary to the respondents’ own reason for wanting to retain the disputed area for the uses to which they claim to have put it: gardening, outdoor eating, a play area for children, an exercise area for dogs. If the disputed area is not of use to appellants, why is it of use to respondents? Conversely, why could not appellants, who testified the area would provide more space for their second dog and their daughter’s playhouse, make the same use of the area as respondents have made?
Finally, the court does not identify improvements to the disputed area by the respondents since appellants’ ownership of Lot 13; it simply states respondents have used the area for cultivation, recreation, and landscaping, and have maintained a wooden fence. Nor was there evidence at trial of expensive, permanent and continuing improvements, by contrast to Hirshfield, where the encroachers had build a koi pond, putting green, sand trap, waterfalls, stone deck, and had installed plumbing and electrical lines. (Hirshfield, supra, 91 Cal.App.4th at p. 755.) Here, the Bermudez respondents had done very little to the trapezoidal area except plant a few bushes, which they did not describe as rare or costly. Long before appellants moved to Lot 13, respondent Sullivan and her family had laid some railroad ties on the triangular area to create a patio and had put in some plants, again not described as rare or costly; otherwise they had done nothing except some basic gardening.
In short, this record cannot support granting respondents an equitable interest that is tantamount to fee ownership in a parcel of land to which title is legally held by appellants.
DISPOSITION
The judgment granting the Bermudez respondents an exclusive easement, consisting of an area approximately 49 square feet and trapezoidal in shape, appurtenant to Lot 39 upon Lot 13 as shown on the record of survey, is reversed. The judgment granting respondent Sullivan an exclusive easement, consisting of an area approximately 700 square feet and triangular in shape, appurtenant to Lot 38 upon Lot 13 as shown on the record of survey, is reversed. The judgment denying appellants’ third and seventh causes of action for, respectively, ejection and injunction, is reversed to the extent it denies appellants access to and use of appellants’ property and precludes appellants from removing any encroachments on their property. In all other respects, including quiet title in favor of appellants in Lot 13 as shown on the record of survey, the judgment is affirmed.
Costs on appeal to appellants.
We concur: Simons, J. Gemello, J.