Cobb v. Gabriele, H029796 (Cal. App. 4/30/2007)

Decision Date30 April 2007
Docket NumberH029796
CourtCalifornia Court of Appeals Court of Appeals
PartiesTERESA COBB, Plaintiff and Appellant, v. CARMEN GABRIELE et al., Defendants and Respondents.



Defendants Carmen and Renee Gabriele had a written easement for a driveway over property owned by their neighbor, plaintiff Teresa Cobb. In 1995, they built a driveway, part of which went outside the easement. In 2003, Cobb filed an action against the Gabrieles. She sought to quiet title and prayed for declaratory and injunctive relief. She also asserted causes of action for trespass, nuisance, breach of contract, negligence, waste, failure to maintain, unreasonable use, fraud, diversion and diminution of water, and damages to trees, and she sought compensatory and punitive damages.

Before trial, the court granted the Gabrieles' motion for summary adjudication on the claims for trespass, nuisance, negligence, waste, fraud, diversion/diminution, and damage to trees and the request for punitive damages, finding them barred by the three-year statute of limitations. A jury trial commenced, and during it, the court granted nonsuit on the claims for breach of contract and unreasonable use. Thereafter, a jury found in Cobb's favor on her claim for failure to maintain and awarded her $30,000 in damages.

Under an agreement by the parties, the quiet title claim was submitted to the court, which found that the Gabrieles had a prescriptive easement over the property where the driveway went outside of the written easement.

Cobb appeals from the judgment. She claims the court erred in finding a prescriptive easement, failing to balance the equities in determining whether to grant injunctive relief, granting nonsuit on her contract claim, and granting summary adjudication on her claims for fraud, trespass, nuisance, and negligence.

We affirm the judgment.


In 1989, the Gabrieles bought a parcel of unimproved land along Salinas Road in San Juan Bautista in San Benito County. They had their engineer, Roger Grimsley, prepare and submit plans for a driveway directly onto their parcel from Salinas Road, but the county would not permit it because the land there was too steep. Thereafter, the Gabrieles discussed an easement with their neighbor Mrs. Phyllis Hoehne. She was open to the idea but wanted an access road for herself. Nothing happened for three years. Then, in January 1993, Hoehne executed and recorded a formal "Grant of Easement," which was drafted by Grimsley. It granted a "non-exclusive easement for ingress, egress and public utilities [purposes] over [legally described land]." The easement also provided that the Gabrieles would "construct a driveway, drainage facilities, erosion improvements and fencing over, across, and around said easement" and "allow [Hoehne] to use said driveway portion to access the lower spring and retention dam located on [her] property." The Gabrieles further agreed "to grade and construct a 10 wide [sic] access road across the dam to the existing building pad of [Hoehne]."

Grimsley had already previously prepared a grading plan for the driveway, which, if constructed as described, would gone outside the easement. In 1994, Hoehne sold her property to Cobb. Cobb testified that she did not really pay attention to the existence of the easement until after escrow.

Carmen Gabriele (hereafter Gabriele) testified that when he first met Cobb near the property, she was unhappy about the easement. Cobb testified that she asked Gabriele to keep her informed about his plans because she had animals and a gate, and he agreed to do so.

However, in October 1995, Gabriele commenced construction of a driveway without notice. Cobb testified that one day she saw heavy equipment and asked Gabriele why he had not consulted with her. She wanted him to stop for a day so they could go over his plans. He declined because the heavy equipment was costly to hire. According to Cobb, Gabriele threatened to have her arrested if she interfered with construction. However, Gabriele gave her a copy of the original easement drawings, on which he sketched the proposed driveway. The diagram showed the proposed driveway completely within the easement boundaries.

Gabriele testified that throughout the construction, Cobb indicated concern about the driveway and possible damage to her property and frustration that someone would be using part of it. Although the driveway was not constructed in accordance Grimeley's original plan, it still went outside the easement and encroached on between 100 and 120 feet on Cobb's property.

As soon as the driveway was completed, the Gabrieles started using it and have continuously used it ever since. In 1997, the Gabrieles paved the driveway with concrete. The county gave its final approval of the driveway in 2001.1

In August 1998, Cobb wrote to the Gabrieles asking about her access road. In September 1998, Gabriele wrote back. He explained that the road he had agreed to build for Hoehne was to be "a roughed in dirt road the [width] of a bulldozers [sic] front blade, about 10 ft. wide and used only for a fire exit." He noted that Grimsley had previously explained to Hoehne that "the roughed in road could not be an approved road by the county of San Benito because of the steepness of the grade approaching the house side. Based on the engineers [sic] determination Mrs. Hoehne understood that it could only be an emergency first exit road and not used as a primary or secondary driveway."

Gabriele further recounted his conversation with Cobb when the driveway construction first began, in which they talked about the agreement with Hoehne to "rough doze" a "fire exit road." At that time, Cobb said she did not want the area disturbed with a road, so he offered to do work on her house equivalent to the cost of building the road. She said she would get back to him, but she never did. Gabriele concluded the letter by offering to buy the easement land if she was amenable to selling it. At trial, Gabriele reiterated that during the initial construction, Cobb informed him she did not want the access road and told him not to touch the hill over which it would be built.

Cobb did not respond to Gabriele's 1998 letter. She testified that she first considered the possibility that the driveway had been mislocated when a stranger came by and informed her that the driveway had not been properly constructed and was not where it was supposed to be. Later, in March 2000, Cobb's attorney wrote to the Gabrieles about the easement. He asserted that some of the improvements that were supposed to have been constructed in connection with the driveway had not been completed; nor had the "10' wide access road across the [dam] to the existing building pad" been constructed. He further claimed that "the driveway [had] been construed in a location outside of that designated by the easement." Cobb testified that at that time she did not have "absolute knowledge" that the driveway was outside the easement. She said her attorney had made that accusation to cover all possibilities should there be litigation.

A year before filing her action, Cobb hired an expert, who advised her that the driveway went outside the easement. At that time, she did not know exactly where the encroachment was. On April 25, 2003, Cobb filed her complaint. Later, in the fall of 2003, Cobb received the results of a survey by Michael Geotz, which confirmed that part of the driveway was outside the easement.

At trial, Geotz testified that the driveway did not follow the original grading plan prepared by Grimsley in 1992. Geotz said that the driveway was about 100 to 120 feet outside the easement.

Cobb testified that she did not know "for sure" that the driveway encroached on her property until Goetz had completed his survey. Gabriele also testified that he did not know that the driveway exceeded the easement and encroached on Cobb's property until after she filed the lawsuit.


In her first cause of action to quiet title, Cobb sought a declaration of the parties' rights concerning the area of encroachment. Cobb contends that the court erred in finding that the Gabrieles had a prescriptive easement.

Despite some variation in how they are articulated, the elements necessary to establish a prescriptive easement are well settled. (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570 (Warsaw).) "The party claiming such an easement must show use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years. [Citations]" (Ibid.; Gilardi v. Hallam (1981) 30 Cal.3d 317, 321-322 ["open and notorious use or possession that is continuous and uninterrupted, hostile to the true owner, and under a claim of title"]; Taormino v. Denny (1970) 1 Cal.3d 679, 686 [same]; see Civ. Code, §1007; Code of Civ. Proc., § 321.)2

The purpose of the open-and-notorious element is to "`insure that the owner of the real property which is being encroached upon has actual or constructive notice of the adverse use and to provide sufficient time to take necessary action to prevent that adverse use from ripening into a prescriptive easement.'" (Twin Peaks Land Co. v. Briggs (1982) 130 Cal.App.3d 587, 593; see Rest.3d Property, Servitudes, § 2.17, com. h, illus. 17-30, pp. 273-279.)3 Thus, it follows that prescriptive rights do not arise if an adverse use was hidden, concealed, or clandestine. (Connolly v. McDermott (1984) 162 Cal.App.3d 973 (Connolly), 977; Costello v. Sharp (1924) 65 Cal.App. 152, 157.)

The requirement that the use be hostile and adverse and under claim of right means that the property owner has not expressly consented to or permitted, allowed, or authorized the use of his or her land; and the user does not recognize or acknowledge the owner's rights. (Aaron v. Dunham (2006) 137...

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