Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 26-29482
Marchiano, P.J.
This case involves a boundary dispute between neighbors in the City of Angwin. Michael and Lori Bock filed a complaint against Brian and Gretchen Brakesman to quiet title and for declaratory relief; the Brakesmans cross-complained against the Bocks to quiet title, and for trespass and injunctive relief. The Bocks have appealed, and the Brakesmans have cross-appealed, from the judgment entered after a court trial. The issues center on a prescriptive easement granted to the Bocks, and an injunction ordering them to remove a carport they had been constructing. The prescriptive easement and part of the injunction cannot be sustained. For the reasons that follow, we affirm in part, and reverse in part, the judgment.
I. BACKGROUND
The parties reside next door to each other, and a fence separates their properties. Ms. Bock has lived in her home since 1978; Mr. Bock has been a co-owner since 1988 or 1989. The Brakesmans bought their home in April 2004.
In the 1990’s, the Bocks had their property surveyed and discovered that the Brakesmans’ lot, then owned by Anthony Coltrin, extended over into the area on the Bocks’ side of the fence, including portions of their driveway and backyard, and part of a bedroom and bathroom in their house. Before that survey, the Bocks believed that the fence marked the boundary of the properties. The Bocks informed Coltrin of the survey and Coltrin made no issue of it. When the fence between the properties blew over in a storm, Coltrin had it rebuilt along its previous line. When Coltrin sold the property to the Brakesmans, he mentioned the possibility that the lot extended beyond the fence line into the Bocks’ property.
Shortly after the Brakesmans moved in, the Bocks began building a carport in front of their house, which extended across their driveway over to the Brakesmans’ fence. Ms. Brakesman executed a June 30, 2004, letter to the Napa County Planners Office stating that she had a conversation with the Bocks and that the Brakesmans had “come to an understanding” with respect to the carport. The letter “authorize[d] continuation of building [of the carport],” and advised that “it is okay that it [is] within the 6ft variance that Napa County has established. We are pleased with what they are doing in the architecture and layout of the house and carport. We have no problems with where it is placed next to our fence.” The Brakesmans and Bocks executed an amendment to the letter indicating that the Bocks had “agreed to pay for lattice work to be place[d] along the fence line of where the carport is after completion of the building.”
The Brakesmans subsequently changed their mind about the carport. Mr. Brakesman testified that they became worried that water would run off the carport roof onto their property, and that the carport would decrease their property’s value. The Brakesmans sent an August 18, 2004 letter to the Bocks, with copies to Napa County officials, stating that the carport was being built too close to the property line, demanding that the Bocks stop construction of the carport, and threatening legal action if they did not comply. Ms. Brakesman wrote a letter to the Napa County Planning Office dated August 24, 2004, “retract[ing]” the June 30 letter “due to grievances” noted in the August 18 letter, and declaring that “[t]he only resolution at this point would be to have the carport moved over to be [within] the 6 foot setback law.”
Mr. Bock estimated that they spent about $20,000 on the carport before the Brakesmans began objecting to it. He said that he learned that the Brakesmans had withdrawn their consent to the carport from a county code enforcement officer. Ms. Bock said that they had sought a variance from the county for the setback, but the county had “red-tagged” the carport for demolition.
The relationship between the parties deteriorated after the Brakesmans objected to the carport, and Mr. Brakesman obtained a restraining order after confrontations with Mr. Bock.
The court visually inspected the properties before receiving the evidence at trial.
In its statement of decision and judgment, the court: (1) quieted fee title in favor of the Brakesmans to the area extending to the surveyed boundary of their lot; (2) granted a prescriptive easement to the Bocks for the portions of their bedroom and bathroom that encroached on the Brakesmans’ property, and for a portion of the driveway within the Brakesmans’ property for ingress, egress, and parking; (3) ordered the Bocks to have the easement areas surveyed, and to relocate the fence between the properties to be coextensive with the easement; (4) ordered the Bocks to remove the carport; and (5) awarded the Brakesmans $1 in damages on their claim for trespass. The court found that the Brakesmans’ initial consent to a variance on the setback for the carport did not function as a waiver of any of their rights.
The easement for the bedroom and bathroom included enough room for a single person to walk around the outside of the house next to those rooms. The parties agreed that the location of the existing fence would accommodate the easement for the house, but disputed how far the new fence should be moved into the driveway the Bocks had been using on what was determined to be the Brakesmans’ property. The Bocks proposed a three-foot move, the Brakesmans proposed a move of six or eight feet, and the court decided that the fence would be moved six feet in the Bocks’ direction.
The court denied the Bocks’ motions to vacate the judgment and for a new trial.
II. DISCUSSION
A. The Easement
Trial briefs have not been included in the appellate record, so it is not entirely clear which theories were put before the court, prior to the Bocks’ posttrial motions, with respect to the disputed area between the fence line and survey line separating the properties. The theories the Bocks might have advanced to obtain an interest in this area, which the surveys showed belonged to the Brakesmans, included: (1) adverse possession, which was mentioned in the complaint, but not pursued at trial; (2) agreed boundary, which was advanced and rejected at trial; (3) prescriptive easement, which was advanced and accepted at trial; and (4) equitable easement based on balancing of hardships, which was raised at least in passing at trial, but was not addressed in the statement of decision.
The Bocks’ counsel began his closing argument: “Your Honor, we’ve filed an action for quiet title. Two of the issues that I’m looking at in this lawsuit, one is prescriptive easement, and the second is the agreed boundary doctrine. Within the quiet title context, the Court has tremendous equity powers to balance the hardships as well.” Counsel for the Brakesmans also referred in argument to the court’s equitable powers, albeit in the context of a prescriptive easement: “We then go,” counsel said, “to the prescriptive easement issue. . . . [M]y clients . . . have no desire to force the knocking down of the bedroom and bathroom. . . . [T]o the extent that your Honor has the equitable power, which I believe you do and I believe you know you do, to carve some sort of prescriptive use out to allow that to remain . . . I take no exception to that.”
Since the Bocks’ appeal raises no issues with respect to the theories of adverse possession or agreed boundary, the quieting of fee title in favor of the Brakesmans to the land extending to the surveyed boundary of the properties must be affirmed.
The parties do, however, dispute the Bocks’ right to a prescriptive easement and, to some extent, their entitlement to an equitable easement.
As for the prescriptive easement issue, it is well settled that a residential boundary dispute cannot be resolved with the grant of a prescriptive easement that “ ‘as a practical matter completely prohibits the true owner from using his land.’ ” (Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1093 (Harrison), quoting Silacci v. Abramson (1996) 45 Cal.App.4th 558, 564 (Silacci); see Harrison, supra, 116 Cal.App.4th at pp. 1090-1093 [discussing Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296 (Mehdizadeh); Silacci, supra; and Raab v. Casper (1975) 51 Cal.App.3d 866 (Raab)]; see also Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182, 1187 (Kapner).) The grant of such “an exclusive prescriptive easement” (Silacci, supra, at p. 564) impermissibly permits circumvention of the requirements for adverse possession to obtain what is tantamount to a fee interest (Kapner, supra, at p. 1187).
The Brakesmans are plainly prohibited from making any use of the area of the easement covering portions of the Bocks’ house. The granting of a prescriptive easement as to that area must, accordingly, be reversed. The Brakesmans are also, as a practical matter, prohibited from making any use of the easement over the driveway, which the Bocks can use for parking as well as ingress and egress. Since the Brakesmans, as owners of the servient tenement, may not use the land so as to interfere unreasonably with the easement (Mehdizadeh, supra, 46 Cal.App.4th at p. 1308), the Brakesmans would effectively be precluded from using the area—whatever use they wanted to make of the surface of the driveway would be trumped whenever the Bocks wanted to park there. Thus, the granting of a prescriptive easement as to that area must also be reversed.
The Bocks attempt to distinguish the cases prohibiting exclusive prescriptive easements on the grounds that some of them involved areas that were fenced off from the true owners, and none of them involved easements for ingress and egress. The Bocks point out that the fence between the properties has been erected and maintained by the Brakesmans and the Brakesmans’ predecessor in title, and the Bocks reason that the Brakesmans should not be able to argue that their own fence prohibits them from using the area of the easement over the driveway.
These arguments lack merit. The rule against exclusive prescriptive easements is not confined to fenced-off properties. While Kapner, Mehdizadeh, and Silacci involved fences, Harrison and Raab did not. The issue is whether the easement grants exclusive use; the presence of a fence is relevant, but not controlling. The fact that easements are often granted for ingress and egress is not dispositive because the easement in question also extends to parking, and, because of that additional use provided under the easement, the Brakesmans are essentially precluded from using the area of the easement whether or not a fence separates that area from their other property.
The Bocks note that there are precedents for the granting of parking easements, but the cases they cite involved commercial properties and are distinguishable on that ground. (Dieterich Internat. Truck Sales, Inc. v. J. S. & J. Services, Inc. (1992) 3 Cal.App.4th 1601, 1603 [neighboring industrial lots]; Wilson v. Abrams (1969) 1 Cal.App.3d 1030, 1033 [shopping center]; Renden v. Geneva Development Corp. (1967) 253 Cal.App.2d 578, 584 [shopping center].) This is a residential boundary dispute, which, as we have stated, cannot be settled with the grant of a prescriptive easement that effectively prevents the owners from using their land, and the Bocks fail to explain how the Brakesmans can realistically be expected to use the area of the parking easement.
While the Bocks are not entitled to the prescriptive easement granted in the judgment, their right to an equitable easement based on a balancing of the hardships remains an open issue. “A court may create an easement on equitable grounds . . . [w]hen (1) a party has used and improved an easement for a long period of time with an innocent belief that he or she had a right to use the easement, (2) there would be irreparable harm if the party could not continue to use the easement, and (3) the servient tenement would suffer little harm from the further use of the easement, . . .” (6 Miller & Starr, Cal. Real Estate (3d ed. 2006) § 15:46, p. 15-161.) When such an easement is granted, the owner of the servient tenement is entitled to damages for the hardship suffered. (See Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 758-759 (Hirshfield) [under relative hardship doctrine, court conducts equitable balancing to determine whether to grant injunction prohibiting a trespass by encroachment, or instead award damages].)
The Brakesmans do not contend that the equitable easement theory was waived by failure to assert it below; they agree that a balancing of hardships should be conducted, at least with respect to the encroaching portion of the Bocks’ house. Since the equitable easement theory was not waived, the Bocks are free to pursue it as to all of the disputed property except the carport, which we discuss below.
Because the boundary of the easement, if any, which may be granted to the Bocks remains uncertain, the judgment must be reversed insofar as it pertains to the relocated fence; issues concerning the fence need to be redetermined in light of the ruling on the equitable easement.
The judgment on the Brakesmans’ trespass cause of action must also be reversed because the equitable easement issue remains unresolved. That cause of action was interpreted to involve incidents of harassment that led the Brakesmans to obtain a restraining order. The court was troubled by the allegations and found them to be credible, but awarded only $1 in damages because the incidents appeared to have occurred after the cross-complaint was filed—a determination the Brakesmans do not challenge in the cross-appeal. However, because the Brakesmans will be eligible for damages for trespass by encroachment if the court grants the Bocks an equitable easement (Hirshfield, supra, 91 Cal.App.4th at pp. 758-759), the trespass cause of action has not been finally determined.
B. Carport
The Bocks argue that the injunction requiring them to remove the carport must be reversed because the Brakesmans forfeited their right to object to the carport when they executed the June 30, 2004 letter consenting to its construction and location. The Bocks submit that the letter created an enforceable contract authorizing the carport, or a waiver of rights, or estoppel, to object to it.
The Brakesmans contend that the contract and waiver arguments must be rejected because they were not advanced in the trial court. The Bocks, as we have said, have not included their trial brief in the appellate record; they argue that contract and waiver issues were preserved in their oral closing arguments below, but neither subject is mentioned in the quoted transcript. Therefore, as to the contract and waiver issues, the Bocks have not satisfied their obligation as appellants to establish error with an adequate record. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)
The Bocks’ counsel did allude to “an estoppel issue” in closing arguments, but even if these passing words were sufficient to preserve that issue for review we would not disturb the trial court’s determination. “The existence of an estoppel is generally a question of fact for the trier of fact, and ordinarily the trial court’s determination is binding on appeal unless the contrary conclusion is the only one to be reasonably drawn from the facts.” (Atkins v. State of California (1998) 61 Cal.App.4th 1, 49.) While the facts here are essentially undisputed, reasonable minds could disagree as to whether they created an estoppel that prevented the Brakesmans from objecting to the carport, despite their initial acquiescence in its construction. We note in this regard that the Bocks needed a setback variance from the county in order to build a carport up against the Brakesmans’ fence, and that the latter’s consent did not give the Bocks license to build the nonconforming structure.
The Bocks argue that the judgment is “vague and overly broad” insofar it requires removal of the carport. As the Brakesmans observe, there is nothing vague about this aspect of the judgment, which states that the Bocks “are ordered to completely remove their existing carport.” However, the Brakesmans have no response, and we see no viable one, to the argument that the injunction is overly broad insofar as it requires the Bocks to remove the portion of the carport that is on the Bocks’ land. As between the Brakesmans and the Bocks, the Brakesmans can require only that the Bocks remove the part of the carport that encroaches on the Brakesmans’ parcel. Further relief relating to county setback requirements is between the Bocks and the county.
III. DISPOSITION
The judgment is affirmed insofar as it quiets fee title in favor of the Brakesmans. The portion of the judgment requiring complete removal of the carport is modified to require removal of that part of the carport that encroaches on the Brakesmans’ land and, as so modified, that portion of the judgment is affirmed. The balance of the judgment is reversed for a determination of an equitable easement based on balancing the hardships. The parties shall bear their own costs on appeal.
We concur: Swager, J., Margulies, J.