Vieira Enters., Inc. v. McCoy, H039293

Decision Date23 January 2017
Docket NumberH039293
Citation8 Cal.App.5th 1057,214 Cal.Rptr.3d 193
CourtCalifornia Court of Appeals Court of Appeals
Parties VIEIRA ENTERPRISES, INC., Plaintiff, Cross-defendant, and Appellant, v. John MCCOY et al., Defendants, Cross-complainants, and Respondents.

Certified for Partial Publication.*

Attorneys for Plaintiff, Cross-Defendant and Appellant Vieira Enterprises, Inc.: Lawrence R. Jensen, San Jose

Attorneys for Defendants, Cross-Complainants and Respondents John J. McCoy et al.: Sutton Law Firm, M. Dean Sutton, San Jose



This appeal primarily involves the claimed termination of a neighbor's recorded right of way in a private road by adverse possession and an award of $20,000 damages against the claimant for impeding the neighbor's access to his own half of the road. This common factual scenario presents occasions to clarify and refine several points of law.

In October 1996, Vieira Enterprises, Inc.1 acquired a mobile home park (often "the park") in the City of Capitola. According to the grant deed, part of the true western boundary of the park was the center line of Rosedale Avenue, a 40-foot-wide private road running essentially north to south. However, in 1996 the park's apparent western boundary was different because at some earlier unidentified time a 140-foot-long section of Rosedale Avenue had been fenced in by wire fences to the west of the private road, as well as by a wire gate across the road at the park's northern boundary. When Vieira's president, Albert, visited the park property before acquiring it, he was told by the seller and her broker that the road was part of the park's property. Though the trial court disbelieved him, Albert testified that he did not learn otherwise till 2009, when his neighbor to the west, John McCoy, told him that the actual boundary was the center line of Rosedale Avenue and that each neighbor had a 20-foot-wide right of way on the road over the other's property under deeds recorded in the late 1940's.

McCoy acquired his property in October 1994 and maintained it in essentially the same condition, with a warehouse at its northern border, until he obtained the City of Capitola's approval in and after 2007 to erect a light commercial building near the middle of his property. In April 2009, McCoy notified his neighbors that he was ready to begin a construction projection that would involve removal of the apparent boundary fences and the gate and his regular use of his right of way on Vieira's property. In February 2010, Vieira began placing removable barricades where the gate used to be, and in May 2010, Vieira filed this action seeking to quiet title on the basis that Vieira's adverse possession had terminated McCoy's recorded right of way and also alleging that McCoy had trespassed on Vieira's right of way over McCoy's property.2 McCoy responded with an amended cross-complaint seeking declaratory relief as to whether his recorded easement had been extinguished or terminated and also damages and injunctive relief because Vieira had interfered with McCoy's exclusive and unimpeded use of his own property and his use of his easement by both temporarily blocking egress and ingress and by making improvements that encroached on McCoy's property.

Although no written order was filed, the trial court orally ordered bifurcation of the issues presented by the complaint and cross-complaint, with equitable issues to be tried to the court and the remaining issues to a jury. After the court trial the court determined, among other things, that Vieira had not carried its burden of establishing all the elements of adverse possession, principally occupation sufficiently hostile to provide notice to McCoy. The court also determined that structures built by McCoy on Vieira's right of way do not unreasonably interfere with Vieira's right of way and that a mobile home extension built on McCoy's right of way does not unreasonably interfere with his right of way. The court's findings settled several factual questions for the jury trial. In a special verdict, the jury awarded McCoy $20,000 after finding that Manuel's blockading of the road involved trespassing on McCoy's property. After a post-trial hearing, the trial court denied Vieira's motions for new trial and to vacate the judgment.

On appeal Vieira asserts the following substantive and procedural arguments.3 Vieira produced evidence of adverse possession of the entirety of McCoy's right of way on Vieira's property or at least of the spaces under two mobile homes that had encroached on the right of way since before McCoy acquired it. The trial court was required to abate structures that McCoy had built on Vieira's right of way. The trial court should not have allowed defendant Charles Grabeel to file an amended verified answer and should not have taken a view of the property during the court trial without complying with Code of Civil Procedure section 651.4 The court gave an erroneous instruction on the damages available for trespass. The judgment does not adequately resolve Vieira's claim to quiet title. After it prevails on appeal, Vieira should be granted leave to record a new notice of pending action.

Vieira correctly contends that the burden of proof of a prescriptive easement or prescriptive termination of an easement is not clear and convincing evidence and that adverse possession of an easement can originate with the possessor's mistake. Vieira is also correct that the trial court did not instruct the jury about damages for annoyance and discomfort consistent with Kelly v. CB & I Constructors, Inc. (2009) 179 Cal.App.4th 442, 102 Cal.Rptr.3d 32 (Kelly ). However, establishing these points does not require reversal of the judgment. We will affirm the judgment for the reasons stated below. Because Vieira has not prevailed on appeal, we deny its request for leave to file a new notice of pending action under section 405.36.



Testimony and documentary evidence was received during a court trial held on March 20, 21, 26, 27, and 28, 2012. On March 29, the court issued a tentative ruling from the bench that it adopted after hearing oral argument. The oral ruling was expanded into a 28-page statement of decision filed on May 31, 2012 that was based on the following evidence.5

1. Grant Deeds and Recorded Easements

Over time, McCoy, Grabeel, and Vieira became the owners of neighboring properties in the City of Capitola. By a grant deed recorded on October 5, 1994, John McCoy acquired property to the west of a private road called Rosedale Avenue from the Seven Up Bottling Company. The grant deed described the eastern boundary of the property as running along "the center line of Rosedale Avenue." The property had been used as a distribution warehouse and truck parking lot by Seven Up. A rolling cyclone gate was used to seal off the northeastern boundary of the warehouse parking lot.

By a grant deed recorded on May 3, 1996, Charles Grabeel acquired property to the east of Rosedale Avenue from a trust.6 On the property was the Capitola Pump business. Grabeel worked as an employee on the property long before he acquired it. His deed described the western boundary of the property as running along "the centerline of Rosedale Avenue."

By a grant deed recorded October 16, 1996, Vieira acquired property to the east of Rosedale Avenue and to the south of Grabeel's property from Pauline Raymond as the trustee of a trust. Vieira's deed described the western boundary of the property as partly running along "the centerline of Rosedale Avenue." On the property acquired by Vieira was a mobile home park called Cabrillo Mobile Home Estates. Albert Vieira, then president of Vieira, was in the business of operating mobile home parks.

He recalled that a "little fence" apparently separated the park property from McCoy's property.

The grant deeds by which McCoy, Grabeel, and Vieira obtained their properties did not refer to any existing right of way easements. However, in 1947, Charles Ingram owned all the properties. In 1947, Ingram granted what later was divided into the properties of Grabeel and Vieira to the Bryants by a grant deed that excepted from the grant "a Right of Way 20 feet in width, the Westerly boundary of which is the Westerly boundary of the above described parcel of land." In 1949, Ingram granted what later became McCoy's property to Cyrus Watson by a recorded grant deed that excepted from the grant "a right of way, 20 feet in width, the Easterly boundary of which is the Easterly boundary of the above described parcel of land." These deeds that reserved the rights of way referenced the center line of Rosedale Avenue as the boundary between the properties.

McCoy, a licensed real estate broker, testified that when he acquired his property, he was aware that his property and the property to the east were subject to complementary 20-foot right of way easements. When Grabeel acquired his property, he believed he had a right of way for vehicular access on the roadway on the park property. He did not pay attention to how wide it was, as long as he could drive a car over it.

Although Vieira's deed described part of the property's boundary as extending to the centerline of Rosedale Avenue, Albert testified that he was unaware when he took title to the property that it was burdened with an easement. Before buying the park, he toured it with the seller, her real estate broker, and the resident park manager, Santo (Sandy) Brantolino. He asked them if the approximately 140 feet of fenced-in roadway was part of the park, and the answer was affirmative. He believed he owned the entire 40-foot-wide strip.

In connection with purchasing the property, Albert received a preliminary title report and a title insurance policy. Both the report and policy excepted from coverage four specific easements, including two easements recorded in 19...

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