Armitage v. Decker

• Decision Date: 13 March 1990
• Docket Number: No. A043830,A043830
• Citation: 218 Cal.App.3d 887,267 Cal.Rptr. 399
• Court: California Court of Appeals
• Parties: Eric R. ARMITAGE, Plaintiff and Appellant, v. Michael DECKER, et al., Defendants and Respondents.

Page 399

267 Cal.Rptr. 399

218 Cal.App.3d 887

Eric R. ARMITAGE, Plaintiff and Appellant, v. Michael DECKER, et al., Defendants and Respondents.

No. A043830.

Court of Appeal, First District, Division 2, California.

March 13, 1990.

Review Denied June 20, 1990.

[218 Cal.App.3d 892] Eric R. Armitage, St. Helena, for plaintiff and appellant.

George O. Benton, Maxwell, Allen, Cooper & Manwell, Candace H. Shirley, Thomas P. Kelley, Jr., Anderson, McDonald, Belden & Kelly, Santa Rosa, for defendants and respondents.

KLINE, Presiding Justice.

Eric R. Armitage appeals from a judgment quieting title to certain property in favor of respondents and awarding damages against him for trespass. Appellant contends that the trial court gave erroneous jury instructions regarding application of the doctrine of agreed boundaries and damages for trespass. We shall affirm the judgment.

STATEMENT OF THE CASE

On November 21, 1984, appellant filed a complaint against respondents Michael and Joyce Decker and Rudy and Joan Goldstein to establish the boundary line between adjacent landowners and quiet title, for an injunction to prevent encroachment by trespass and abate nuisance, and for prescriptive easement. The cause of action for injunction was based on allegations that respondents had erected fences which encroached onto appellant's property. Respondents' answer denied appellant's claim to the disputed property and sought to have title quieted in their favor. Appellant's application for a preliminary injunction was denied after a hearing on February 1, 1985.

In October 1986, the Deckers sought an injunction against appellant, alleging that he had caused fill to be placed in the drainage course and creek between his property and the Deckers' in the course of grading and excavation of his property. The court issued an order to show cause and the partiesstipulated that appellant would be enjoined from entering and trespassing on the Deckers' property, except to remove the dirt deposited there and on the disputed strip, and from depositing dirt, foliage rocks or other substances, or creating encroachments on the Deckers' property pending the hearing then scheduled for October 22. This restraining order was dissolved when the parties failed to appear for the hearing, but the Deckers sought and obtained a second one upon allegations that appellant had not removed all the fill from the channel and that the excavation crew had dumped additional dirt onto the Deckers' property and knocked down a fence between the properties. A preliminary injunction issued on November 10, 1986.

On November 18, 1986, the court granted the Deckers' motion for leave to file a "Supplemental Cross-Complaint" seeking damages and injunctive relief for appellant's trespasses; the pleading was filed on December 2, 1986. Appellant filed a supplemental amended complaint on November 17, 1986.

On January 12, 1987, the Deckers sought to modify the preliminary injunction to require appellant to remove dirt from the Deckers' property and the drainage course and a mound of dirt on appellant's property which was allegedly encroaching and slipping onto the Deckers'. The modification was denied on the ground that the issue was sufficiently addressed by the existing injunction, and appellant was ordered to remove the dirt from the Deckers' property.

A ten-day jury trial began on December 14, 1987. The jury quieted title in favor of respondents as bounded by the deed line and awarded the Deckers $25,000 in compensatory and $1,000 in punitive damages for appellant's trespasses. Appellant's motion for a new trial was denied on February 11, 1988. The court heard the remaining equitable issues on March 18, 1988; appellant's application for a permanent injunction was denied and the Deckers' application for a permanent injunction was granted. Judgment was entered on August 19, 1988 and appellant's notice of appeal was timely filed on October 7, 1988.

STATEMENT OF FACTS

A. Property boundaries

Appellant is the owner of property at 1600 Riebli Road in Sonoma County. The Deckers' property at 3635 Stallion Drive lies to the east of and adjoins appellant's property. The northern boundary of the Deckers' property is Riebli Creek; a drainage ditch runs along and/or near the boundary with appellant's property. The Goldsteins' property at 3599 Stallion Drive lies south of the Deckers' and east of appellant's, adjoining both.

Appellant purchased his property in April 1979. According to appellant's testimony, he walked the boundaries of the property with the prior owner, Dickson, on several occasions before the purchase. The property was fenced on three sides with barbed wire and on one side with a picket fence. Dickson stated on all three occasions that the picket fence was the boundary of the property. He also said that he had never seen any survey markers, and the two men did not see any when they looked on the ground the length of the fence. Appellant did find two markers after he purchased the property.

The picket fence ran the entire length of the eastern boundary of the property, approximately 1,000 feet, and appeared to have been there a long time because some of the oak trees growing next to the fence had grown into the wire. When appellant first saw it, the fence was standing in all but two places; the portion of the fence separating appellant's property from respondents' was straight and intact.

Two prior owners of the property testified for appellant. David Robert Dickson lived on the property now owned by appellant from 1956 to 1960, inherited the property when his father died in 1976, and sold it to appellant in 1979. Dickson testified that he believed the old picket fence to be the eastern boundary of the property and did not recall seeing monuments on the ground during the time he owned the property. He assumed that the fence was on the deed line but never tried to determine whether the fence line was in fact consistent with the description in his deed. Dickson had never discussed the boundary line with his neighbors to the east and was not aware of any disputes with them over the line. The fence appeared to be straight and to Dickson's knowledge had never been moved or repaired during the time he lived on the property. Dickson's father had maintained an orchard of small trees immediately around his residence, with trees ten or twelve feet or more from the fence and not running along it. During the time Dickson lived on the property, the adjoining owner, McMillan, kept sheep on the land to the east of the fence. There was a hole in the fence because the two families were close and went to each others houses frequently.

Edward Riebli testified that he had lived on Riebli Road in Sonoma County from 1906 to the time of trial. The property now owned by appellant had once been part of a 1,335-acre ranch owned by Riebli's family; Riebli inherited the property when his father died in 1950. Riebli testified that the picket fence marked the eastern boundary of his family's ranch. He did not know who built the fence, which was there before he came to the property; his deed did not refer to the fence but Riebli assumed the fence ran along the line described in the deed. Neither Riebli nor his father had had the property surveyed.

Riebli testified that the property to the east was owned by the Werners from 1906 to 1933. Reibli repaired the fence twice a year during this period. He discussed repairing the fence with Werner, to prevent animals from crossing over the fence line, but the Rieblis took it upon themselves to make the repairs rather than making them at Werner's request. Riebli also discussed maintenance of the fence with Dr. McMillan, who owned the adjoining property after Werner. Riebli and McMillan discussed the fence as being the boundary at the southeast corner of the property but had no other discussions about the fence as a boundary.

In 1982, appellant hired a surveyor, Douglas Donmon, to prepare a parcel map for a subdivision of his property. At this time, appellant learned of additional survey monuments marking a boundary different from the old picket fence. Donmon testified that he located physical monuments in the field at the corners of appellant's property corresponding to the description in appellant's deed. The deed described appellant's property by reference to the deed of a prior owner recorded in 1951; that deed, from Chapman to Strobino, described the eastern line of the property as running southerly along the westerly boundary of the lands of McGrath, a prior owner of respondents' properties to the east. Donmon established the boundary of appellant's property by setting up the line described in these prior deeds. Donmon testified that at least four or five surveyors had surveyed the area of appellant's property since the 1950's; the deeds for appellant's property from 1951 through 1979 all described the same boundaries; and that the monuments referred to in those deeds were the ones Donmon located in the 1982 survey. Donmon testified that the difference between the deed line and the picket fence ranged from two or three feet to ten feet; he did not find a pin in the drainage ditch.

Donmon testified that the picket fence was in good repair in 1982 to within approximately 200 feet of the creek, then deteriorated in condition; south of the creek the fence was also in need of repair, with portions on the ground. When Donmon observed the fence in 1986, it was in worse repair than in 1982.

Rudy Lewis Goldstein testified that he bought his property in 1976 from Jack Clement. Before the purchase, Goldstein walked over the property with his real estate agent and Clement. Portions of the fence were lying on the ground. In pointing out the western boundary of the property, Clement walked to the other side of the fence and showed Goldstein a metal stake in the ground as the survey marker; the pins at the northwest and southwest corners of the...