Gilardi v. Hallam

• Decision Date: 03 December 1981
• Citation: 178 Cal.Rptr. 624,636 P.2d 588,30 Cal.3d 317
• Parties: , 636 P.2d 588 Richard L. GILARDI, et al., Plaintiffs and Respondents, v. Gary L. HALLAM, et al., Defendants and Appellants. S. F. 24325.
• Court: California Supreme Court

Page 624

178 Cal.Rptr. 624

30 Cal.3d 317, 636 P.2d 588

Richard L. GILARDI, et al., Plaintiffs and Respondents, v. Gary L. HALLAM, et al., Defendants and Appellants.

S. F. 24325.

Supreme Court of California, In Bank.

Dec. 3, 1981.

Michael F. Scully, Paulsen & Vodonick, Grass Valley, and E. John Vodonick, for defendants and appellants.

Caylor, Dowling, Edwards & Kaufman, Gary M. Caylor and Linda M. Hartman, Grass Valley, for plaintiffs and respondents.

BROUSSARD, Justice.

Defendants appeal from judgment quieting plaintiffs' title to Lake of the Pines lot 1407, rejecting defendants' prescription and adverse possession claims to a portion of the lot. The parties stipulated to the facts and submitted the case to the judge without a jury. ¹

More than five years prior to the commencement of the action, defendants' predecessors, owners of lot 1408, improved a portion of lot 1407 by installing a sidewalk, sprinkler system, nine poplar trees, and a lawn. The sidewalk was used for access to and from a deck and dock on the lake. A survey stake purporting to establish the boundary between the two lots had been erroneously placed on plaintiffs' property without fault of either plaintiffs or defendants or their predecessors, and in making the above improvements and using them, defendants' and their predecessors relied upon the position of the stake. They believed that the improved portion of lot 1407 was part of their lot. ²

Each party and their predecessors were assessed taxes by lot number. No record exists of the sidewalk or ornamental plantings having been considered in the appraisal of the improvements on lot 1408. That lot has a home on it; lot 1407 is unimproved except for the sidewalk and plantings described above.

Finding that defendants and their predecessors mistakenly believed from the outset that the disputed portion of lot 1407 was part of lot 1408, the trial court determined that they did not intend to claim any land which did not belong to them and that their possession was not hostile and adverse. The court also concluded that they had not paid taxes on the disputed property.

Title to property by adverse possession may be established either under color of title or by claim of right. (Code Civ.Proc., §§ 322-325.) When, as in the instant case, title is asserted by claim of right, Code of Civil Procedure section 324 provides: "Where it appears that there has been an actual continued occupation of land, under a claim of title, exclusive of any other right, but not founded upon a written instrument, judgment or decree, the land so actually occupied, and no other, is deemed to have been held adversely."

Section 325 of that code requires that to obtain title by adverse possession the land must be occupied and claimed for five years continuously and that claimants or their predecessors must have paid all taxes levied and assessed against the land.

The elements necessary to establish title by adverse possession are tax payment and open and notorious use or possession that is continuous and uninterrupted, hostile to the true owner and under a claim of title. (Taormina v. Denny (1970) 1 Cal.3d 679, 686, 83 Cal.Rptr. 359, 463 P.2d 711; Sorensen v. Costa (1948) 32 Cal.2d 453, 458, 196 P.2d 900 et seq.; West v. Evans (1946) 29 Cal.2d 414, 417, 175 P.2d 219; Kunza v. Gaskell (1979) 91 Cal.App.3d 201, 210-211, 154 Cal.Rptr. 101; Berry v. Sbragia (1978) 76 Cal.App.3d 876, 879-880, 143 Cal.Rptr. 318.)

A prescriptive easement requires establishment of the same elements except that payment of taxes is required only if the easement has been separately assessed. (Civ.Code, § 1007; Taormino v. Denny, supra, 1 Cal.3d 679, 686, 83 Cal.Rptr. 359, 463 P.2d 711.)

Although there is some conflict in cases from other jurisdictions, the rule is settled in California that the requisite hostile possession and claim of right may be established when the occupancy or use occurred through mistake. In Woodward v. Faris (1895) 109 Cal. 12, 17, 41 P. 781, the court pointed out that most cases of adverse possession commenced in mistake and that the possession must be by mistake or deliberately wrong. To limit the doctrine of adverse possession to the latter possession places a premium on intentional wrongdoing contrary to fundamental justice and policy. Numerous cases have since recognized that title by adverse possession may be acquired though the property was occupied by mistake. (E. g., Sorensen v. Costa, supra, 32 Cal.2d 453, 459-461, 196 P.2d 900; Park v. Powers (1935) 2 Cal.2d 590, 596, 42 P.2d 75; Kunza v. Gaskell, supra, 91 Cal.App.3d 201, 210-211, 154 Cal.Rptr. 101; Lobro v. Watson (1974) 42 Cal.App.3d 180, 187, 116 Cal.Rptr. 533; Newman v. Cornelius (1970) 3 Cal.App.3d 279, 289, 83 Cal.Rptr. 435; Winchell v. Lambert (1956) 146 Cal.App.2d 575, 581-582, 304 P.2d 149; see 3 Witkin, Summary of Cal. Law (8th ed. 1973) p. 1819.)

Woodward v. Faris, supra, 109 Cal. 12, 17, 41 P. 781, also recognized an exception to the mistake rule where the possessor does not claim that his fences mark the true line but intends to move them to the true line when it is discovered. It was pointed out that in such cases the possessor is not claiming adversely. The exception was applied to deny a claim of adverse possession in Holzer v. Reid (1932) 216 Cal. 119, 123, 13 [636 P.2d 591] P.2d 697, where the occupation of the land was by mistake "with no intention on the part of the occupant to claim as his own, land which does not belong to him, but with the intention to claim only to the true line wherever it may be."

The relationship between the mistake rule and the exception was addressed in Sorensen v. Costa (1948) 32 Cal.2d 453, 459-461, 196 P.2d 900. Discussing Woodward and Holzer the court pointed out that the hostility requirement "means, not that the parties must have a dispute as to the title during the period of possession, but that the claimant's possession must be adverse to the record owner, 'unaccompanied by any recognition, express or inferable from the circumstances of the right in the latter.' " (32 Cal.2d at p. 459, 196 P.2d 900.) After recognizing the Holzer decision, the court reaffirmed the rule that title by adverse possession may be acquired when the possession or use commenced under mistake and upheld trial court determination that the land occupied on the basis of mistake was held adversely. ³

Because under Sorensen adverse possession may be established by evidence that possession was based on mistake, it is apparent that rejection of the mistaken possession may not be based on speculation that the possessor might not have occupied the land had he known of the record title. Rather to show that the possession based on mistake was not hostile and adverse it must be established by substantial evidence that the possessor recognized potential claim of the record owner and expressly or impliedly reflected intent not to claim the occupied land if record title was in another. To hold that the occupier's belief of ownership of the disputed land showed without more an intent not to claim nonowned land would emasculate the mistake rule.

Plaintiffs rely on Berry v. Sbragia (1978) 76 Cal.App.3d 876, 880, 143 Cal.Rptr. 318, where the "uncontroverted evidence" indicated that the possessors believed they constructed the fence on their own property or the property line and "that they had no intention of claiming any property that did not belong to them." The opinion does not set forth the uncontroverted evidence establishing the intention. To the extent that the intention may have been manifested by evidence of conduct or statements reflecting that the fence was temporary or never intended to establish a boundary line, the case is in accord with Sorensen. However, the case is contrary to Sorensen to the extent that it might be read as meaning that evidence that the occupier believed he owned the land warrants without more a finding that he did not intend to claim the land if he was mistaken.

Plaintiffs urge that the adverse possession doctrine should be modified in the light of modern conditions. They state that the doctrine arose during a period when conveyances used metes and bounds descriptions, while the great majority of property is now described by reference to subdivision lots.

The viability of the adverse possession doctrine was questioned in Finley v. Yuba County Water District (1979) 99 Cal.App.3d 691, 696-697, 160 Cal.Rptr. 423. The court reasoned that the underlying historical philosophy of the doctrine is that land use was favored over disuse and that modern environmental concerns in a sophisticated, congested, peaceful society may sometimes result in disuse being favored over use. However, it is questionable whether environmental concerns warrant a general policy against land use rather than one of merely regulating development in accordance with such concerns. In any event, the court recognized that the modern justification for the adverse possession doctrine is "to reduce litigation and preserve the peace by protecting a possession that has been maintained for a statutorily deemed sufficient period of time." (99 Cal.App.3d at p. 697, 160 Cal.Rptr. 423.)

Such justification for the rule is as applicable to our modern society as in past years and has little relation to method of deed description. In ascertaining the land described by map and parcel number, the landowner must still resort to metes and bounds description.

Plaintiffs also urge that the 1968 good-faith-improver legislation warrants modification of adverse possession doctrine because the legislation furnishes relief to the mistaken occupier. (Code Civ.Proc., § 871.1 et seq.) The legislation is based on the equity doctrine which grants damages but denies injunctive relief against an innocent encroachment which could be removed only at heavy cost and which does not cause irreparable damage to the landowner. (Raab v. Casper (1975) 51 Cal.App.3d 866,...