Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SCV18248
BUTZ, J.In this dispute between adjoining property owners in Newcastle, the trial court granted plaintiffs Glenn C. Tuccinardi and Janice M. DeFelice four prescriptive easements for ingress and egress, parking vehicles and maintaining a propane tank on property owned by defendants Joseph J. Tadlock and Noriko Tadlock.
Defendants challenge the judgment insofar as it awards easements for parking and maintaining the propane tank. They contend the trial court erred as a matter of law by granting plaintiffs what amounts to a fee simple title under the guise of a prescriptive easement.
Based on the limited record on appeal, which does not include a reporter’s transcript, we find no reversible error.
BACKGROUND
Because there is no reporter’s transcript, we draw the principal facts from those recited in the trial court’s tentative decision in this case.
This dispute began in 2005 when defendants purchased property that adjoined plaintiffs’ property. Defendants bought the parcel from Thomas and Sidney Parnell, who had lived there since 1988.
In connection with their desire to build a swimming pool, defendants had the property surveyed. The survey showed that their property encompassed two areas used by plaintiffs for the parking of cars and for a propane tank serving plaintiffs’ residence.
When defendants attempted to deny plaintiffs access to these two areas, plaintiffs filed suit for injunctive relief and to quiet title to prescriptive easements for purposes of parking and maintaining the propane tank. Defendants filed a cross-complaint for trespass, injunction and declaratory relief.
After a bench trial, the trial court found that the propane tank, situated on a concrete pad and connected to pipes providing plaintiffs with propane gas to their residence, had been used openly, continuously and notoriously, in a hostile manner and under claim of right, for the prescriptive period by plaintiffs and their predecessors.
The court also found that a second area, near the propane tank and adjacent to a paved driveway, had been used by plaintiffs or their predecessors for a parking area, specifically for the parking of guest vehicles and sometimes other vehicles “‘most of the time’ [and] usually for 5 to 7 days per week, year around.” As with the propane tank, the court found the parking use open, visible, hostile and under claim of right for the required prescriptive period.
None of the foregoing findings is contested on appeal.
Consistent with its findings, the trial court granted plaintiffs prescriptive easements as follows: (1) an easement to “install, support, maintain, repair and replace an above-ground 500 gallon propane tank and concrete supports,” including above- and below-ground utility pipes, “in order to deliver propane gas from the propane tank described herein to plaintiffs’ property”; and (2) a parking easement, “for ingress and egress to, and parking of vehicles, including trailers and boats, on the easement area.” Both easements were set forth in legal descriptions incorporated as exhibits to the judgment. The court issued an injunction forbidding defendants from interfering with plaintiffs’ use of the easements.
The trial court also granted plaintiffs prescriptive easements over two dirt roads for ingress and egress to their property. Defendants do not challenge this part of the judgment.
DISCUSSION
I. The Rule and Supporting Case Law
Defendants contend the trial court erred as a matter of law, because the easements granted plaintiffs for parking and propane tank maintenance constituted “the equivalent of a fee interest,” which is prohibited by California law. Four cases are cited to us for the principle that a prescriptive easement may not grant the dominant tenement owner an exclusive possessory interest in the property, because to do so would grant the easement owner a fee title without having satisfied all the elements of adverse possession.
The landmark case is this court’s decision in Raab v. Casper (1975) 51 Cal.App.3d 866 (Raab). There, part of the “driveway, utility lines, yard and landscaping” surrounding the defendants’ home was built on the plaintiffs’ land. (Id. at p. 876.) When the plaintiffs sought a mandatory injunction and damages, the trial court concluded the “defendants had acquired by prescription an ‘easement’ covering their driveway, utility lines and yard.” (Ibid.) This court reversed the judgment, concluding the defendants could not acquire a prescriptive easement to maintain part of their yard on the plaintiffs’ property. We explained: “There is a difference between a prescriptive use of land culminating in an easement (i.e., an incorporeal interest) and adverse possession which creates a change in title or ownership (i.e., a corporeal interest); the former deals with the use of land, the other with possession.” (Ibid.) The Raab court continued, “An exclusive interest labeled ‘easement’ may be so comprehensive as to supply the equivalent of an estate, i.e., ownership. In determining whether a conveyance creates an easement or estate, it is important to observe the extent to which the conveyance limits the uses available to the grantor; an estate entitles the owner to the exclusive occupation of a portion of the earth’s surface. [Citations.] ‘“‘If a conveyance purported to transfer to A an unlimited use or enjoyment of [land], it would be in effect a conveyance of ownership to A, not [] an easement.’”’ ([4] Powell on Real Property [(2007)], [§ 34.02[1], p. 34-11].) [¶] In this case, defendants had installed on plaintiff[s’] side of the common boundary not only utility lines and part of the driveway to their home, but also part of their yard and landscaping. The judgment declares that defendants are entitled to an easement for roadway and utility lines ‘together with an easement for the maintenance of lawn, fences, shrubs, fruit trees, and landscaping around the [defendants’] house . . . .’ Although adroitly phrased to avoid the language of a grant of title, the last-quoted clause was undoubtedly designed to give defendants unlimited use of the yard around their home. Defendants doubtless did not intend plaintiffs, owners of the nominal servient tenement, to picnic, camp or dig a well in their yard. They doubtless did not intend to own a house on one side of the boundary with an unmarketable yard on the other. The findings and judgment were designed to exclude plaintiffs from defendants’ domestic establishment, employing the nomenclature of easement but designed to create the practical equivalent of an estate. [¶] Achievement of that objective required proof and findings of the elements of adverse possession, not prescriptive use.” (Raab, supra, 51 Cal.App.3d at pp. 876-877, 2d & 3d italics added.)
In Silacci v. Abramson (1996) 45 Cal.App.4th 558 (Silacci) the trial court granted the Abramsons an exclusive prescriptive easement over 1,600 square feet of the Silaccis’ property, which the Abramsons had “fenced in and used as a backyard,” restricting use of the easement “to a backyard garden area.” (Id. at pp. 560-561.) Finding guidance in Raab, the appellate court reversed, observing, “The notion of an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using his land, has no application to a simple backyard dispute like this one. An easement, after all, is merely the right to use the land of another for a specific purpose--most often, the right to cross the land of another. An easement acquired by prescription is one acquired by adverse use for a certain period. An easement, however, is not an ownership interest, and certainly does not amount to a fee simple estate. To permit Abramson to acquire possession of Silacci[s’] land, and to call the acquisition an exclusive prescriptive easement, perverts the classical distinction in real property law between ownership and use. The trial court’s order here amounted to giving Silacci[s’] land completely, without reservation, to Abramson. This the court did, using the term ‘exclusive prescriptive easement,’ an unusual doctrine which does not apply.” (Id. at p. 564.)
In Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296 (Mehdizadeh), the trial court granted Mehdizadeh a prescriptive easement for “landscaping and recreation” purposes over a 10-foot-wide strip of the Mincers’ property that had been fenced as part of Mehdizadeh’s property. (Id. at pp. 1300-1302.) The appellate court reversed, noting, “The prescriptive easement granted by the trial court . . . would divest the Mincers of nearly all rights that owners customarily have in residential property. A fence will bar the Mincers access to the property, and they cannot build on, cultivate, or otherwise use it. Mehdizadeh cannot build on it either, but otherwise his right to ‘use’ looks more like ‘occupancy,’ possession, and ownership.” (Id. at pp. 1305-1306.)
Both Silacci and Mehdizadeh distinguished Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1045, in which a water district was held to have been properly granted the exclusive right to use a reservoir on the servient property. That case, however, involved an extraordinary situation where exclusive use was mandated for public health and safety purposes. (Mehdizadeh, supra, 46 Cal.App.4th at pp. 1306-1307; see also Silacci, supra, 45 Cal.App.4th at p. 564 [“The Otay Water Dist. case must be limited to its difficult and peculiar facts”].)
In Harrison v. Welch (2004) 116 Cal.App.4th 1084, this court synthesized from Raab, Silacci and Mehdizadeh, the rule that “an exclusive prescriptive easement, ‘which as a practical matter completely prohibits the true owner from using his land’ [citation], will not be granted in a case . . . involving a garden-variety residential boundary encroachment.” (Harrison, at p. 1093.)
II. Application
Defendants assert that the above line of cases demonstrates that the trial court erred in granting plaintiffs easements for parking and propane tank maintenance, because the easements effectively exclude them from all beneficial use of these parts of their property. However, the record on appeal includes only the clerk’s transcript and exhibits. Without a reporter’s transcript, it is impossible to undertake a plenary review of the evidence on which the judgment rests.
Plaintiffs explain the absence of a reporter’s transcript by stating that neither side requested a court reporter at the trial. This is not a valid excuse. Parties in a civil case must provide a reporter’s transcript at their own expense. (City of Rohnert Park v. Superior Court (1983) 146 Cal.App.3d 420, 430-431.) In lieu of a reporter’s transcript, an appellant may proceed by way of an agreed statement of the parties or a settled statement. (Leslie v. Roe (1974) 41 Cal.App.3d 104, 108; see Cal. Rules of Court, rules 8.755, 8.756.) Neither of these options was pursued here.
It is fundamental that an appealed judgment comes to this court clothed with a presumption of correctness. “‘All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; see also In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) To overcome this presumption, the appellant must provide an adequate appellate record demonstrating the error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 4:2, p. 4-1.) “Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].” (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
Defendants assert that the easement for parking effectively grants plaintiffs and their guests an exclusive right to park cars and other vehicles, thereby depriving them of all use of the land. However, the judgment merely states that plaintiffs shall have an easement “for ingress and egress to, and parking of vehicles, including trailers and boats, on the easement area.” Nothing in this language can be construed as “employing the nomenclature of easement but designed to create the practical equivalent of an estate.” (Raab, supra, 51 Cal.App.3d at p. 877.)
Defendants repeatedly characterize the parking easement as “exclusive,” but we find nothing in the judgment roll that states or implies exclusive use. The general rule is that the rights of an easement owner are restrictive and the rights of the servient tenement owner are residual. (6 Miller & Starr, Cal. Real Estate (3d ed. 2006) Easements, § 15:63, pp. 15-214 to 15-215.) “Thus, the easement owner possesses only those rights of enjoyment established by its creation, and all other rights and uses of the property remain with the owner of the servient tenement.” (Id. at p. 15-215, fn. omitted.) The judgment language does no violence to these principles.
Defendants’ claim of error with respect to the propane tank easement is similarly flawed. The judgment grants plaintiffs the right to maintain a propane tank on defendants’ property for the purpose of providing propane service to their home. In rejecting the same argument defendants make here, the court declared that the area occupied by the tank was “de minimus” relative to the size of defendants’ parcel and that it did not impair defendants’ use of their land. The court continued: “[A]s made clear at trial, plaintiffs do not seek or claim exclusive use of the propane tank easement area. . . . With the confirmation of the prescriptive easements, [defendants] would enjoy the same range of uses of the property enjoyed by their predecessor owners, the Parnells. [Citation.] In short, the continued use of the propane tank easement area for placement of the propane tank can hardly be said to deprive defendants of substantially all rights in their property.” (Italics added.) Without a record of trial testimony, it must be conclusively presumed the evidence at trial supports the court’s findings.
Finally, defendants claim that the portion of the judgment enjoining them from interfering with plaintiffs’ prescriptive easements effectively keeps them out of their own land and amounts to a mandate for plaintiffs’ exclusive use of the property. However, the fragmentary record before us undermines rather than supports their argument.
In explaining its reasons for granting the injunction, the trial court wrote: “Plaintiffs’ second cause of action seeks injunctive relief to prevent defendants from interfering with the[ir] prescriptive rights. Defendants, even after the issuance of the preliminary injunction, secured the gate, either by lock or otherwise, and thus precluded the previously enjoyed access by plaintiffs to the lower property. Here, plaintiffs ask not for exclusive rights to the easement areas but only for reasonable, non-exclusive uses consistent with the historic uses. The failure to grant injunctive relief would deprive plaintiffs of the ability to access and maintain their well and septic system as in the past, to continued use of the long-established parking area, . . . and to continued propane service from the long-existing tank. In order to assure plaintiffs such reasonable use of the prescriptive easements, it is appropriate for the court to grant the injunctive relief requested.” (Italics added.)
Consistent with this language, the judgment states that “defendants, their employees, agents, guests, heirs, successors and assigns, are enjoined and restrained from placing within the easement areas . . . any improvements, fixtures, personal property, vegetation, or other materials or things that does or is likely to interfere with the use of the easement areas by plaintiffs . . . .”
Nothing in the quoted language supports defendants’ assertion that the trial court barred them from using their own property or granted plaintiffs an unlimited exclusive right to possession. The injunction does no more than prevent defendants from blocking or impeding plaintiffs’ right to use their newly acquired easements. Consequently, defendants’ hyperbolic claim that the injunction “is the practical equivalent of a traffic cop with the power to write parking tickets and send in tow trucks if [defendants] and their guests dare park in [plaintiffs’] exclusive assigned parking spots,” finds no support in the record.
Conclusion
Where “the record on appeal consists of only a clerk’s transcript and exhibits and no error appears on the face of the record, the sufficiency of the evidence to support the trial court’s rulings is not open to consideration by a reviewing court; in such a case, ‘any condition of facts consistent with the validity of the judgment will be presumed to have existed rather than one which would defeat it [citations].’ (Brockway v. Heilman (1967) 250 Cal.App.2d 807, 810; Ford v. State of California (1981) 116 Cal.App.3d 507, 513-514.)” (County of Los Angeles v. Surety Ins. Co. (1984) 152 Cal.App.3d 16, 23.)
Without a reporter’s transcript, we are required to presume the judgment is adequately supported by the evidence. Moreover, the incomplete record defendants have provided us utterly fails to support their claims of legal error.
DISPOSITION
The judgment is affirmed. Plaintiffs are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: ROBIE, Acting P.J., CANTIL-SAKAUYE, J.