Warsaw v. Chicago Metallic Ceilings, Inc.

• Decision Date: 05 March 1984
• Citation: 676 P.2d 584,35 Cal.3d 564,199 Cal.Rptr. 773
• Court: California Supreme Court
• Parties: , 676 P.2d 584 Ernest E. WARSAW et al., Plaintiffs and Respondents, v. CHICAGO METALLIC CEILINGS, INC., Defendant and Appellant. L.A. 31740.

Page 773

199 Cal.Rptr. 773

35 Cal.3d 564, 676 P.2d 584

Ernest E. WARSAW et al., Plaintiffs and Respondents, v. CHICAGO METALLIC CEILINGS, INC., Defendant and Appellant.

L.A. 31740.

Supreme Court of California.

March 5, 1984.

Richard G. Duncan, Jr., Gibson, Dunn & Crutcher, Larry C. Boyd, Christopher L. Cella, Newport Beach, and John J. Waller, Los Angeles, for defendant and appellant.

David S. Smith, Lee S. Smith, Beverly Hills, for plaintiffs and respondents.

RICHARDSON, Justice.

We granted a hearing in this case to consider whether one who acquires a valid prescriptive easement over another's property nonetheless may be required to compensate that person for either (1) the fair market value of the easement, or (2) the cost of removing or relocating any encroaching structures which interfere with use of the easement. We conclude that the statutes which define and validate prescriptive easements neither authorize nor contemplate an award to the underlying property owner of compensation for the reasonable value of the easement, and that under the circumstances in this case it would be improper to charge the owner of the easement with any portion of the cost of removing encroachments.

Although we disagree with the Court of Appeal's resolution of the foregoing issues, its opinion (per Compton, J.) correctly determined the other issues on appeal from the trial court's judgment declaring that plaintiffs had acquired a prescriptive easement over defendant's property. 139 Cal.App.3d 260, 188 Cal.Rptr. 563. Accordingly, we adopt that portion of the opinion as follows: ^*

This is an appeal from an equitable decree which declared that plaintiffs had acquired an easement by prescription over the property of defendant. Defendant was ordered to dismantle and relocate a structure which had been erected on its own property but which interfered with plaintiffs' use of the easement. [ ]

This action involves two contiguous parcels of real estate which front on [the west side of] Downey Road in the City of Vernon. Downey Road runs in a generally north-south direction. The two parcels are approximately 650 feet deep. Plaintiffs own the southerly parcel and defendant owns the northerly parcel. Both parcels were acquired in 1972 from a common owner.

At the time of acquisition both parcels were unimproved. Plaintiffs' arrangement with the seller was that the seller would construct on the parcel to be purchased by plaintiffs a large commercial building erected to plaintiffs' requirements. The building covered almost the entire parcel. A 40 foot wide paved driveway was laid out along the northern edge of plaintiffs' property to provide access to loading docks on the northern side of plaintiffs' building.

For its part defendant constructed on its property a substantially smaller building which ran only about one-half the depth of the northerly parcel and left vacant a strip of ground about 150 feet wide along the side of the parcel which abutted plaintiffs' property.

From the beginning it was apparent that plaintiff's 40 foot wide driveway was inadequate since the large trucks which carried material to and from plaintiffs' loading dock could not turn and position themselves at these docks without traveling onto the defendant's property. The inability of these trucks to make such use of defendant's property would destroy the commercial value of plaintiff's building.

The court found that because of the fact that the possibility of creating an easement over defendant's property was considered and rejected in the original negotiations between the seller, plaintiffs and defendant, no easement by implication was created. The trial court further found that the existence of the driveway on plaintiffs' property militated against the creation of an easement by necessity.

From 1972 until 1979 trucks and other vehicles servicing plaintiffs' facility used a portion of the vacant ground on defendant's property to enter, turn, park and leave the area of plaintiffs' loading dock. On at least two occasions during that period plaintiffs sought, unsuccessfully, to acquire an easement from defendant or to create mutual easements over plaintiffs' and defendant's property.

In 1979 defendant developed plans to construct a warehouse on the southerly portion of the property including that portion of the property being used by plaintiffs. A pad of earth was raised along the southerly portion of defendant's property approximately five feet from the property line. This grading effectively blocked plaintiffs' use of the area and plaintiffs commenced this action for injunctive and declaratory relief.

When the trial court denied plaintiffs' request for a preliminary injunction to prevent further construction, defendant proceeded to erect a building on the contested area.

After a trial on the merits, the trial court found that plaintiffs had acquired a 25 foot wide prescriptive easement over and along the southern portion of defendant's property for the full depth of the property. As noted defendant was ordered to remove that portion of the building which interfered with the described easement. Further the trial court gave defendant 90 days to accomplish the removal and purported to reserve jurisdiction to award damages for failure of defendant to comply with the mandatory injunction. This appeal ensued.

The elements necessary to establish a prescriptive easement are well settled. 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. (Gas & E. Co. v. Crockett L. & C. Co. (1924) 70 Cal.App. 283, 290, 233 P. 370; Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 430, 114 Cal.Rptr. 380; Code Civ.Proc., § 321.) Whether the elements of prescription are established is a question of fact for the trial court (O'Banion v. Borba (1948) 32 Cal.2d 145, 195 P.2d 10), and the findings of the court will not be disturbed where there is substantial evidence to support them.

Further, the existence of a prescriptive easement must be shown by a definite and certain line of travel for the statutory period. (Dooling v. Dabel (1947) 82 Cal.App.2d 417, 186 P.2d 183.) "The line of travel over a roadway which is claimed by prescription may not be a shifting course, but must be certain and definite. Slight deviations from the accustomed route will not defeat an easement, but substantial changes which break the continuity of the course of travel will destroy the claim to prescriptive rights .... [Citations.] [M]anifestly the distance to which a roadway may be changed without destroying an easement will be determined somewhat by the character of the land over which it passes, together with the value, improvements, and purposes to which the land is adapted." (Matthiessen v. Grand (1928) 92 Cal.App. 504, 510, 268 P. 675.)

The trial court found that "the truckers using [the disputed parcel] did, in fact, follow a definite course and pattern, and while admittedly, no two truck drivers followed the exact course ... and the traffic situation ... varied from day to day, the deviation taken by various drivers over the seven-year period was only slight."

The evidence revealed that truck drivers who were making deliveries to or receiving goods from plaintiffs used the parcel to approach the building, swing around and back into plaintiffs' loading dock. Since the drivers varied in their abilities, the space required to complete this manuever was variable. No two drivers followed precisely the same course, but all used the parcel for the same purpose--to turn their vehicles so they could enter plaintiffs' loading docks. There was substantial evidence to support the findings on this issue.

Defendant contends that there was no evidence supporting use of several hundred feet of the westerly portion of the parcel. From the trial transcript, it is difficult to discern exactly to which portion of the parcel specific bits of testimony pertain. [ ] [Our review of the record, however, discloses substantial evidence supporting the establishment of a prescriptive easement over the westerly portion at issue.] Defendant contends that there was no substantial evidence that plaintiffs' use of the property was hostile rather than permissive. Again, we find that this contention is without merit.

The issue as to which party has the burden of proving adverse or permissive use has been the subject of much debate. However, [ ] [we agree with the view, supported by numerous authorities,] that continuous use of an easement over a long period of time without the landowner's interference is presumptive evidence of its existence and in the absence of evidence of mere permissive use it will be sufficient to sustain a judgment. (MacDonald Properties, Inc. v. Bel-Air Country Club (1977) 72 Cal.App.3d 693, [702, 140 Cal.Rptr. 367, and cases cited].)

Defendant relies on evidence that plaintiffs at one time attempted to purchase the disputed parcel from the seller and at various times attempted to negotiate for an express easement. Whether the use is hostile or is merely a matter of neighborly accommodation, however, is a question of fact to be determined in light of the surrounding circumstances and the relationship between the parties. (Taormino v. Denny (1970) 1 Cal.3d 679, 83 Cal.Rptr. 359, 463 P.2d 711; Fobbs v. Smith (1962) 202 Cal.App.2d 209, 20 Cal.Rptr. 545.)

There was evidence adduced at trial that despite plaintiffs' unsuccessful attempts to negotiate an express easement, their use of the property continued uninterrupted for approximately seven years. There was no evidence that defendant had ever expressly permitted plaintiffs to use the parcel for truck and vehicular traffic. In fact defendant's adamant refusal to negotiate on the issue is evidence that no permission was given or contemplated.

Defendant's next assignment of error is addressed to the trial court's order to remove that...