Zimmer v. Dykstra

• Decision Date: 23 May 1974
• Citation: 39 Cal.App.3d 422,114 Cal.Rptr. 380
• Court: California Court of Appeals Court of Appeals
• Parties: Robert ZIMMER, Executor of the Estate of Edward Zimmer et al., Plaintiffs and Respondents, v. Christine E. Wolfrank DYKSTRA, Defendant and Appellant. Civ. 42148.

Page 380

114 Cal.Rptr. 380

39 Cal.App.3d 422

Robert ZIMMER, Executor of the Estate of Edward Zimmer et al., Plaintiffs and Respondents, v. Christine E. Wolfrank DYKSTRA, Defendant and Appellant.

Civ. 42148.

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

May 23, 1974.

[39 Cal.App.3d 426] Leonard Sacks, Pico Rivera, for defendant and appellant.

Joseph A. Lazaroni and Henry W. Low, Los Angeles, for plaintiffs and respondents.

HANSON, Associate Justice.

This case involves a dispute between real property owners residing in a residential area over the use of a portion of a nondedicated alleyway at the rear of their properties.

THE FACTS

The real property at issue is located in what is known as 'Reilly's Spring Tract' in the Highland Park area of the City of Los Angeles. The parties to this action, as reflected in the sketch, Infra, reside in the city block bordered by Longfellow Street to the north, Avenue 55 to the east, Avenue 54 to the west and Glen Ellen Place to the south. Plaintiffs- respondents Edward Zimmer ¹ (hereinafter ZIMMER) and Louis E. McAfee and Lukena McAfee, husband and wife (hereinafter for the sake of brevity will be referred to in the singular, McAFEE), the dominant tenements, live next to each other in the middle of the west half of the block facing Avenue 54, with the ZIMMER property north of the McAFEE property. Defendant-appellant Christine E. Wolfrank Dykstra (hereinafter DYKSTRA), the servient tenement, lives in the middle of the east half of the block facing Avenue 55, with the rear of her lot abutting the rear of the McAFEE lot.

There is a nondedicated alley extending north up the middle of the block from Glen Ellen Place between the residences facing west onto Avenue 54 and the residences facing east onto Avenue 55. This alley does not extend the full city block to Longfellow Street; it dead-ends at a point north of the ZIMMER property. The alley is partly asphalt, partly concrete, partly rock and partly dirt and is approximately 15 feet wide. A concrete driveway or ramp, approximately 15 feet wide, has been constructed at the entrance to the alley off

of Glen Ellen Place. Many of the properties abutting the alley have been improved with garages with no access to the street except by use of the alley. The abutting property owners each own one-half (7 1/2 feet) of the alleyway.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The chronology of acquisition of the properties and the events which precipitated the litigation at bench, as disclosed by the record on appeal and the superior court file, ² are as follows:

Since 1944, 1945 and 1947, respectively, DYKSTRA, ZIMMER and McAFEE have owned and resided on their properties.

Since 1951 and 1947, respectively, ZIMMER and McAFEE, or their tenants who live in small houses to the rear of their properties, used the alley from Glen Ellen Place to gain access to the garages at the rear of their properties. There are no driveways from Avenue 54 through the lots to the rear of plaintiffs' properties, and the garages were constructed with entry off the alley.

On January 31, 1964, DYKSTRA made application to construct a new 4-unit building After the 'grape stake' fence had been up for a little more than a year, it became damaged and was removed. Thereafter, with the 'grape stake' fence removed, some of DYKSTRA'S tenants started parking in the same area but facing east-west. The distance from the new building to the west end of DYKSTRA'S lot (middle of the alleyway) is 22 feet, or 14 1/2 feet from the east side of the alleyway. There was testimony at trial that DYKSTRA'S tenants parked 1 1/2 feet from the building and their cars were between 16 to 18 feet long.

on the rear of her lot. The building was completed later the same year. After completing this building, DYKSTRA erected a 'grape [39 Cal.App.3d 428] stake' fence from the west end of a wooden fence, which ran along the north boundary of her property, extending 3 to 4 feet into the alleyway, south for 16 to 18 feet. (See sketch, Supra.) The 'grape stake' fence did not extend the full width of her lot and did not interfere with use of the alley. Some of DYKSTRA'S tenants parked inside the fence facing north and south.

In mid-December 1969 McAFEE terminated DYKSTRA'S use of a garage which had been rented for several years by DYKSTRA for storage purposes. Subsequent to this, DYKSTRA advised McAFEE that she intended to erect a fence across the back of her property to include 7 1/2 feet of the alley (down the center of the alleyway).

On December 23, 1969, by letter (Plaintiffs' Exhibit 1), McAFEE'S attorney notified DYKSTRA that McAFEE claimed a permanent right to use the land for ingress and egress and that if the fence was constructed, legal action would be taken. The letter, ³ dated December 23, 1969, was postmarked December 24, 1969, and was received by DYKSTRA on December 27, 1969.

On December 26, 1969, DYKSTRA commenced construction of a 'chain link' fence down the middle of the alley. (See sketch, Supra.) The fence was completed on December 29, 1969. As a result of the fence, McAFEE and their tenants and ZIMMER'S tenant were unable to use the garages on the rear of their properties and have had to park on the street because a normal size car could not go through the space that was left. ⁴

THE CASE

On March 4, 1970, plaintiffs-respondents ZIMMER and McAFEE filed a complaint to Quiet Title to Prescriptive Easement and to Enjoin Interference with their use of the alley. DYKSTRA and other property owners to the south were named as Defendant DYKSTRA by her answer to the complaint and evidence offered at the trial, although admitting the erection of the 'chain link' fence, defends on the theories (1) that plaintiffs' use of her half of the alley was permissive in nature and no prescriptive easement was created; and (2) if plaintiffs acquired a prescriptive easement it was extinguished by nonuse or abandonment by plaintiffs and/or the actions of defendant DYKSTRA or her tenants.

defendants. The complaint alleges that ZIMMER, McAFEE and DYKSTRA all owned the real property heretofore described and that a visibly present alleyway has been continuously, openly, notoriously and adversely used by ZIMMER and McAFEE and their predecessor for more than five years for ingress and egress to the rear of their properties for access to their garages located to the rear of their properties. The complaint further alleges that the defendant DYKSTRA is unlawfully, wrongfully and forcibly withholding possession of the property from plaintiffs and seeks a decree establishing their (plaintiffs') easement and enjoining defendant DYKSTRA from interfering with their (plaintiffs') use of the alleyway. The plaintiffs prayed for money damages in the sum of $20 for every day their use of the alleyway was withheld and for punitive damages in the sum of $5,000.

Following the filing of disclaimers of any interest or estate in the plaintiffs' alleged easement by all defendants except DYKSTRA, the matter was tried nonjury. The trial court found in favor of the plaintiffs and against the defendant. The judgment decreed that plaintiffs ZIMMER and McAFEE were owners of prescriptive easements over the rear 7 1/2 feet of defendant DYKSTRA'S property and the properties of the other defendants who had filed disclaimers; ordered defendant DYKSTRA to remove her 'chain link' fence blocking ingress and egress; and awarded plaintiffs nominal damages in the sum of $10 and exemplary damages in the sum of $1,500 as against DYKSTRA.

Defendant DYKSTRA'S motion for a new trial was denied.

Defendant appeals from the judgment.

ISSUES

The controlling issues on appeal are whether or not there is substantial evidence to support the trial court's findings (1) that plaintiffs ZIMMER and McAFEE acquired a prescriptive easement on the east one-half of the alley; and (2) that they (plaintiffs) did not abandon their prescriptive easements nor were the easements otherwise extinguished.

In addition, DYKSTRA contends that plaintiffs were not entitled to exemplary damages and if they (plaintiffs) were, the damages awarded were excessive.

DISCUSSION

Did plaintiffs ZIMMER and McAFEE acquire (at any time) a prescriptive easement over the western 7 1/2 feet of defendant DYKSTRA'S property, or was the use not adverse, but permissive, with the servient tenement DYKSTRA consenting to its use as a neighborly accommodation?

General:

First, the two broad elements required to create a prescriptive easement are (1) an adverse use for (2) the five-year prescriptive period. (Civ.Code, § 1007; Code Civ.Proc., § 321.)

The elements necessary to establish an adverse use are: [a] open and notorious use; (b) continuous and uninterrupted use; (c) hostile to the true owner; and (d) under a claim of right. (3 Witkin, Summary of Cal.Law (8th ed., 1973), Real Property, § 365, pp. 2059, 2060 and cases there cited.) ⁵

The above elements are designed to insure that the owner of the real property which is being encroached upon has actual or constructive notice of the adverse use and to provide sufficient time to take necessary action to prevent that adverse use from ripening into a prescriptive easement.

Second, the burden of proof as to each and all of the requisite elements to create a prescriptive easement is upon the one asserting the claim. (See Kerr Land & Timber Co. v. Emmerson, 233 Cal.App.2d 200, 229, 43 Cal.Rptr. 333; Serrano v. Grissom, 213 Cal.App.2d 300, 306, 28 Cal.Rptr. 579; Hahn v. Curtis, 73 Cal.App.2d 382, 166 P.2d 611; Smith v. Skrbek, 71 Cal.App.2d 351, 358, 162 P.2d 674.)

Third, the existence or nonexistence of each of the requisite elements to create a prescriptive easement is a question of fact for the court or jury. (See O'Banion v. Borba, 32 Cal.2d 145, 195 P.2d 10; Kerr Land & Timber Co. v. Emmerson, Supra, 233 Cal.App.2d 200, 43 Cal.Rptr. 333; Cleary v. Trimble, 229 Cal.App.2d 1, 9, 39 Cal.Rptr. 776; ...