Warsaw v. Chicago Metallic Ceilings, Inc.
| Decision Date | 19 January 1983 |
| Citation | 188 Cal.Rptr. 563,139 Cal.App.3d 260 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Ernest E. WARSAW, Irving Schoenfeld and John R. Caufield, Plaintiffs and Respondents, v. CHICAGO METALLIC CEILINGS, INC., an Illinois Corporation, and Does 1 through 10, Inclusive, Defendants and Appellants. Civ. 65111. |
For Opinion on Hearing, see 199 Cal.Rptr. 773, 676 P.2d 584.
David S. Smith and Lee S. Smith, Los Angeles, for plaintiffs and respondents.
John J. Waller, Santa Ana, for defendants and appellants.
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.
We have concluded that while the evidence and applicable legal principles support the trial court's determination that plaintiffs have acquired a prescriptive easement, equity and justice dictate that plaintiffs be required to pay reasonable compensation to the defendant for acquisition of the right to use defendant's property.
This action involves two contiguous parcels of real estate which front on Downey Road in the city of Vernon. Downey Road runs in a generally north-south direction. The two parcels are approximately six hundred and fifty (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 forty (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 one hundred fifty (150) feet wide along the side of the parcel which abutted plaintiffs' property.
From the beginning it was apparent that plaintiff's forty (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 plaintiffs' 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 plaintiff's 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 (5) 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 twenty five (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 ninety (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.) (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. However, the trial court was aware of defendant's contention and had viewed the premises. Since the view of the scene constitutes evidence considered by the court, it may be presumed to have supported the final judgment regarding the boundaries of the easement. (Morgan v. Veach (1943) 59 Cal.App.2d 682, 693, 139 P.2d 976.)
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, this court recently adopted the rule 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, 140 Cal.Rptr. 367.)
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.
Defendants' next assignment of error is addressed to the trial court's order to remove that part of the completed structure which interferes with plaintiffs' easement. Defendant argues that a mandatory injunction may not issue to enjoin a completed act. However, there is extensive authority standing for the proposition that a court of equity may, in a proper case, issue a mandatory injunction for protection and preservation of an easement including, where appropriate, an order for removal of an obstruction already erected. (Clough v. W.H. Healy Co. (1921) 53 Cal.App. 397, 200 P. 378; Pacific Gas & Elec. Co....
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Warsaw v. Chicago Metallic Ceilings, Inc.
...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 plain......