Miller v. Johnston

• Decision Date: 28 February 1969
• Citation: 270 Cal.App.2d 289,75 Cal.Rptr. 699
• Court: California Court of Appeals Court of Appeals
• Parties: Ivan J. MILLER and Aletha D. Miller, Plaintiffs and Respondents, v. Alex JOHNSTON and Carol L. Johnston, Defendants and Appellants. Civ. 25265.

Page 699

75 Cal.Rptr. 699

270 Cal.App.2d 289

Ivan J. MILLER and Aletha D. Miller, Plaintiffs and Respondents, v. Alex JOHNSTON and Carol L. Johnston, Defendants and Appellants.

Civ. 25265.

Court of Appeal, First District, Division 1, California.

Feb. 28, 1969.

Rehearing Denied March 18, 1969.

Bagshaw, Martinelli, Weissich & Jordan, San Rafael, for plaintiffs.

M. Maroni Smith, San Francisco, for defendants.

SIMS, Associate Justice.

Defendants Johnston have appealed ¹ from a judgment which subjects two portions of their property to easements for pedestrian and vehicular ingress and egress to the property of plaintiffs Miller. The judgment requires plaintiffs to bear the costs of maintaining the improvements over the easements and to adjust their use of the easements so as to permit near maximum use by defendants while allowing reasonable ingress and egress to plaintiffs' property, and permanently enjoins the defendants from interfering with the reasonable use and enjoyment of the easements by plaintiffs.

In its conclusions of law the trial court ruled that the plaintiffs had prescriptive easements over both parcels; that an agreement executed in 1953 by which one of the plaintiffs purported to terminate any easement or right of way over one of the parcels in return for a revocable license was void for lack of consideration; that the defendants were estopped to attack plaintiffs' claim to any easement over the latter parcel; that plaintiffs were equitably entitled to an easement over that parcel; and that in any event, if the law permitted, plaintiffs should be awarded an easement over the second parcel upon payment of $200. Defendants attack each of these conclusion, and the findings of fact upon which they are predicated, on the grounds they are not sustained by the evidence or by pertinent legal principles. It is concluded that the trial court correctly concluded that plaintiffs had a prescriptive easement over the first parcel; that the court erred in avoiding the agreement, which was valid and served to prevent the acquisition of a prescriptive right to the parcel it covered; but that nevertheless the court properly adjusted the equitable rights of the parties in presently awarding plaintiffs the easement over the second parcel. It is unnecessary to consider the court's authority to permit the exercise of the power of eminent domain by plaintiffs. ²

General Facts

On January 17, 1951 plaintiffs acquired an improved residential lot lying about 100 feet southwesterly of Cloud View Road, a public street in the City of Sausalito. Their deed provided for a nonexclusive 15-foot wide easement which runs 115 feet northwesterly, from a point 15 feet southwesterly of the northwest corner of their property, past that corner and along the southwest boundary of the property which was acquired by defendants in an unimproved condition on December 31, 1951. The relative location of the properties, the easement and plaintiffs' driveway to which it leads, may be visualized by picturing the letter 'L' or more accurately the open angle of a hockey stick. The recorded easement leading to Cloud View Road is represented by the perpendicular. Defendants' property, which fronts on Cloud View Road, is embraced within the angle. The horizontal bar would represent the northwest boundary of plaintiffs' property to which their entrance from the easement leads. Southwest of the easement and fronting on Cloud View Road is the Gump property. At the southeast end of the easement is the Linehan property. It abuts on the end of the easement and runs northwesterly approximately 15 feet along the southwest line of the easement to the Gump property. The recorded easement is appurtenant to all four properties. ³

At the time plaintiffs acquired their property in 1951 there was, and there now is, an improved paved driveway or roadway from Cloud View Road to the properties of plaintiffs' and the Linehans. It generally follows the alignment of the recorded easement. The pavement, however, lies outside the recorded easement and encroaches upon the defendants' residential lot in two locations. The northerly parcel (referred to by the parties and in the findings as triangle 'A', and in the judgment as 'Parcel 1') is a triangle containing about 150 square feet and extending into defendant's property 4.48 feet along Cloud View Road, and running to a point 75 feet southeasterly along the line of the recorded easement. The southerly parcel (referred to by the parties and in the findings as triangle 'B', and in the judgment as 'Parcel 2') contains about 50 square feet and extends 6.0 feet along the boundary line common to plaintiffs' and defendants' properties, and then on a 26.38 foot arc, which bulges toward the true corner of defendants' property, to the same point on the recorded easement line as designates the apex of triangle 'A'.

The remaining facts are reviewed below in connection with the contentions of the parties.

Prescriptive Right Over Parcel 1

The court found: '7. The area designated as triangle A has been openly and notoriously used by plaintiffs and their predecessor owners for pedestrian and vehicular ingress and egress from their residential lot to the public street for a continuous period of more than fifteen (15) years prior to the commencement of this action.'

The testimony indicates that the paved driveway had existed and been maintained since at least 1948 or 1949 in the location in which it was established at the time of trial; and that it was continuously used as a driveway by the plaintiffs. Defendants acknowledged that it had been used for many years without permission or any agreement.

'It is true that title to an easement for the use of a private roadway must be established by clear and satisfactory evidence that it was used for more than the statutory period of five years openly, notoriously, visibly, continuously and without protest, opposition or denial of right to do so. But clear and satisfactory evidence of the use of the road in that manner creates a Prima facie title to the easement by prescription. Such evidence raises a presumption that the road is used with an adverse claim of right to do so, and in the absence of evidence of mere permissive use of the road, it will be sufficient upon which to sustain a judgment quieting title to the easement therein.' (Wallace v. Whitmore (1941) 47 Cal.App.2d 369, 372--373, 117 P.2d 926, 928. See also Van Amersfoort v. Young (1951) 105 Cal.App.2d 22, 25--27, 232 P.2d 569; Shonafelt v Busath (1944) 66 Cal.App.2d 5, 7--9, 151 P.2d 873; Crawford v. Lambert (1934) 136 Cal.App. 617, 621, 29 P.2d 428; and Wells v. Dias (1922) 57 Cal.App. 670, 672, 207 P. 913. Cf. Peck v. Howard (1946) 73 Cal.App.2d 308, 325--326, 167 P.2d 753; and Nelson v. Robinson (1941) 47 Cal.App.2d 520, 526 and 528, 118 P.2d 350.) The fact that the pavement was placed on the property ultimately acquired by defendants, and that it was subsequently utilized as a right of way under the mistaken belief that it lay within the recorded easement, does not defeat the rights acquired by the use adverse to the rights of the true owners. (Shonafelt v. Busath, supra, 66 Cal.App.2d at p. 13, 151 P.2d 873.)

Defendants erroneously rely on the principle that one common owner or user cannot acquired rights by adverse possession against another without giving notice that his use is hostile. (See Johns v. Scobie (1939) 12 Cal.2d 618, 623--624, 86 P.2d 820, 121 A.L.R. 1404; and 3 Am.Jur.2d, Adverse Possession, § 53, pp. 142--143.) This contention overlooks the fact that the respective rights claimed by plaintiffs and defendants in Parcel 1 do not stem from a common title. 'It is settled law in this state that exclusiveness of user is not essential to acquisition of a prescriptive easement.' (Marangi v. Domenici (1958) 161 Cal.App.2d 552, 556, 326 P.2d 527, 530. See also Crawford v. Lambert, supra, 136 Cal.App. 617, 620, 29 P.2d 428; and Wells v. Dias, supra, 57 Cal.App. 670, 673, 207 P. 913.)

The findings of fact, conclusions of law and the judgment with respect to Parcel 1 are sustained by the evidence and the law.

Prescriptive Rights Over Parcel 2

The court found: '9. For more than five (5) years preceeding September 18, 1953, plaintiffs and their predecessors in the ownership of their property openly, notoriously, and under a claim of right, tranversed and used triangle B for pedestrian and vehicular access from their property to Cloud View Road. At all times since September 18, 1953, plaintiffs have continued to use said triangle B for the same purposes and in the same fashion.' This finding is in part predicated upon a general finding which reads, '6. The paved driveway or roadway from Cloud View Road to plaintiffs' property existed in its present condition, including the areas of encroachment upon defendants' property, at the time plaintiffs acquired their property and for many years prior thereto.'

The plaintiffs are entitled to take advantage of the use made of the property in dispute by their predecessors in interest. (Shonafelt v. Busath, supra, 66 Cal.App.2d 5, 13--14, 151 P.2d 873.) Defendants contend, however, that there is no evidence to show the nature of the use made of that property prior to the time it was acquired by the plaintiffs in 1951.

The plaintiffs did establish that in the latter part of 1936 or the early part of 1937 a utility pole, which appears to be located at the southerly edge of plaintiffs' entrance on the boundary line between plaintiffs' and Linehans' properties, was first erected to furnish service to a residence then located on what was to become plaintiff's property. Other testimony indicated that in 1948 or 1949 the paved driveway and the entrance to the property were in the same locations as found at the time of trial. This evidence sustains the second quoted finding, No. 6. It, nevertheless, does not adequately cover the question of the nature of the use prior to 195...