Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. CIV472416.
NEEDHAM, J.
Jerry D. Carroll (Carroll) appeals from a judgment entered after a court trial. He contends the court erred in ruling that respondents had acquired a prescriptive easement to the portion of a driveway that is on his property, because respondents did not prove the elements required for the acquisition of a prescriptive easement and, even if they had, he proved that he extinguished the easement by placing a chain across the driveway. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
At issue is a driveway or alley between a building located on respondents’ property (which we will call the Crueger Property) and a building located on appellant Carroll’s property (the Carroll Property).
A. The Crueger Property
In approximately 1964, Robert Warren, Ernest Crueger Sr., and Michael Pablice began to lease the premises at 985 East San Carlos Avenue (Crueger Property), where they operated their sheet metal business, Cardinal Manufacturing. The property is improved with a commercial building, which has roll-up or rolling doors on the front and back to provide vehicular access to the rear of the building.
In 1976, Robert Warren, Ernest Crueger Sr., and Michael Pablice purchased the property. Since the deaths of Ernest Crueger Sr. and Michael Pablice, the Crueger Property is now owned by respondents – Robert Warren, Ernest Crueger Jr., Dennis M. Crueger, and Susan Poai – as tenants in common.
In roughly 2000, Cardinal Manufacturing was sold to new owners, who rented the premises until 2002. The building has been mostly vacant since late 2002.
B. The Driveway
The area between the building on the Crueger Property and the building on the adjacent property (993 East San Carlos Avenue) has a width of approximately 14-15 feet, is paved with asphalt, and lies partly on the Crueger Property and partly on the adjacent property. At the front, 3.8 of the 14.1 feet between the buildings is on the Crueger Property; at the back, 4.8 of the 15.3 feet between the buildings is on the Crueger Property. The front of the driveway provides ingress and egress to a street; the rear of the alley offers no street access, and is closed off by a rolling gate installed by respondents’ predecessors.
Since respondents’ predecessors purchased the Crueger Property in 1976 (and even before 1976, during their lease of the property), they openly used the entire driveway for deliveries and shipping, whenever they wanted, without asking anyone’s permission. Respondents and their predecessors accessed the driveway from both the front and the back. About once each year, respondents also repaired the tar in the driveway.
At some point, Dennis Crueger testified, Cardinal Manufacturing leased storage space from the prior owner of the adjacent property under a month-to-month lease, for the purpose of storing small parts such as nuts, bolts, and welding rods in a storage facility in the building located on the adjacent property. They crossed the driveway to get from their building to the storage facility.
C. Carroll Purchases The Property Adjacent To The Crueger Property
Carroll purchased 993 East San Carlos Avenue (the Carroll Property) on February 28, 2000, and maintained a machining shop on the premises. He observed that people from the Crueger Property were using the driveway to get to the back of the property. James Trammel, who sold the property to Carroll, told Carroll that they were continuing to use the driveway because of their lease of space “at one point” in the back of Carroll’s building. Carroll did not like respondents using the driveway.
At some point, Carroll testified, he spoke with Robert Crueger and probably Robert Warren about Carroll’s desire to put up a gate across the front of the driveway, because of his security concerns and suspicions of drug activity on the driveway at night. Robert Crueger and Robert Warren rejected the suggestion because they believed the gate would be detrimental to their going in and out of the driveway. They said they felt they had a “grandfathered right” to use the driveway, and Carroll assumed they were correct.
D. Carroll’s Efforts to Limit Use of the Driveway in 2002-2003
In late 2002, after Carroll noticed that Cardinal Manufacturing had ceased operations on the Crueger Property, Carroll read up on prescriptive easements and started to assert control over the driveway, by parking cars on it, erecting a chain across it, and eventually having Robert Crueger and Robert Warren acknowledge Carroll’s right to control the driveway.
1. The Cars
Starting in October or November 2002, Carroll obstructed the driveway by parking cars there 85-90 percent of the time.
2. The April 2003 Chain
On April 21, 2003, deciding to do something “more definitive, ” Carroll hired a welder to attach loops to metal posts located at the front corners of the two buildings, attached a chain to the loops, and secured it with two locks: one lock held the chain to the post on Carroll’s side of the driveway, and the other lock held the chain to the post on Crueger’s side of the driveway. With the chain up, respondents and their predecessors could still access the driveway from the back of their property, but the chain precluded vehicles from going out to the street or coming in from the street.
Robert Warren and Robert Crueger asked Carroll about the chain within two or three days after he put it up. By Carroll’s account, he told them there were some security issues with the driveway, it was his property, and he wanted to control the incoming and outgoing traffic. Carroll would unlock the chain and allow passage by respondents and their predecessors upon request.
Ernest Crueger Jr. recalled that, when the chain first appeared, Carroll told him that “he had put the chain up because he was nervous about people parking in there overnight. There was some evidence of alcohol abuse or whatever, broken bottles that I never saw. But that was the reason he gave me for putting up the chain.” Ernest Crueger, Jr. believed the chain was not meant to exclude him from using the driveway, but to exclude “night intruders.” When Dennis Crueger noticed the chain, he too believed it was to prevent other people, not respondents or their predecessors, from parking between the buildings.
At trial, it was disputed whether Carroll was the only person with a key to the locks on the chain. Carroll testified that, between April 21, 2003, and May 13, 2003, Robert Crueger and Robert Warren asked Carroll for a key, but Carroll refused. By Carroll’s account, one key operated both locks, he never changed the lock, and he never gave anyone a key to the locks. Ernest Crueger also testified that when the chain first went up, he asked Carroll for a key, and Carroll refused. According to respondents’ response to a request for admission, which was admitted into evidence at trial, respondents admitted that “Jerry Carroll has maintained control over the lock on the chain continuously from April 21, 2003 to the present.”
On the other hand, Dennis Crueger testified that his brother Robert (deceased by the time of trial) had a key to the lock and, therefore, could take down the chain without Carroll’s help. Dennis Crueger testified that he used his brother’s key to open the lock until Carroll changed the lock in 2007.
3. The May 2003 Notice and Acknowledgement
By May 1, 2003, Carroll had prepared and printed out a notice of his position that he had the exclusive right to control the portion of the driveway that was on his land. The notice states in part: “To Whom it May Concern:... This is to notify you as owner and/or occupant of the building next door... of my ownership rights and to let you know that I maintain the right to control the portion of the driveway area, which is on my property.... Any right of access or passage which I may grant is solely of my own free will and I maintain the right to either grant or deny access to the section of the driveway which is located on my property at any and all times which I may see fit.... Please govern yourself accordingly.”
Robert Crueger and Robert Warren met with Carroll and read the notice on May 13, 2003. On that date, they signed the following acknowledgement: “I acknowledge ownership of Jerry Carroll of the driveway area between the two buildings... and further acknowledge his sole right to control access to the portion of the driveway which is located on his property.”
Carroll testified that, when he discussed the notice with Robert Crueger and Robert Warren, he insisted that the driveway was his property and he should be able to control it. Robert Warren testified, however, that when he signed the notice, he did not understand that Carroll intended to exclude respondents from the driveway. Even after he signed the acknowledgement, Warren believed that Carroll had put up the chain to protect his property from thieves, because of Carroll’s complaints that people parked overnight in the driveway and he had found needles there.
In 2007, Carroll changed the lock to the rolling gate at the back of the driveway, refusing to give respondents a copy of the key because “he didn’t feel like it.”
E. The Lawsuit
Respondents filed a complaint against Carroll on April 30, 2008, seeking to quiet title as to their easement on the Carroll Property and for a judicial declaration that they are the rightful owners of the easement.
Carroll filed a cross-complaint to quiet title to the portion of the driveway on his property, as against any claim by prescriptive easement or otherwise, and to quiet title in himself as to a prescriptive easement on the portion of the driveway on the Crueger Property.
The case proceeded to trial by the court in December 2009. Carroll requested a statement of decision.
After the trial, the court issued a written Order After Hearing. In its order, the court found that respondents had established a prescriptive easement as to the portion of the driveway on the Carroll Property, based on the usage of the area over many years with the knowledge of Carroll (or his predecessor(s)). The court further found that Carroll had not extinguished the easement by his interference with its use for the requisite statutory period, since respondents did not have full notice of the extent of Carroll’s adverse claim to the easement until May 13, 2003, when Robert Warren and Robert Crueger signed Carroll’s notice. As to Carroll’s cross-complaint, the court found that respondents did not oppose Carroll’s claim to a prescriptive easement as to the portion of the driveway on the Crueger Property and, therefore, Carroll’s claim of prescriptive easement was granted.
After receipt of the order, Carroll filed a Notice to Trial Court of Unaddressed Issues Necessary to Decision, asserting that findings should have been made as to the following issues: (1) the date respondents’ period of disability as a former tenant of Carroll’s predecessor ended; (2) the existence of any notice by unequivocal act that respondents changed their attitude to hostile possessor after their tenancy ended; (3) the date of any such notice; (4) respondents’ open, continuous, or hostile use of Carroll’s driveway during the period of prescriptive use; and (5) the date Carroll deprived respondents of their use of his portion of the driveway. Respondents objected, contending that the order adequately addressed all issues necessary to the decision. The court did not amend its order.
Judgment was entered on February 8, 2010, and this appeal followed.
II. DISCUSSION
As mentioned, Carroll contends that: (1) respondents did not acquire a prescriptive easement as to Carroll’s portion of the driveway; and (2) Carroll extinguished any such prescriptive easement by adversely possessing the easement area beginning no later than April 21, 2003, when he placed the chain across the front of the driveway.
A. Respondents’ Prescriptive Easement
“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.” (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570; see Aaron v. Dunham (2006) 137 Cal.App.4th 1244, 1250 (Aaron); Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449 (Felgenhauer); Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 430 (Zimmer) [prescriptive easement requires adverse use for five-year period, and adverse use requires use that is open and notorious, continuous and uninterrupted, hostile to the true owner, and under a claim of right].) Whether the elements have been met is a question of fact reviewed for substantial evidence. (Aaron, supra, 137 Cal.App.4th at p. 1250; Felgenhauer, supra, 121 Cal.App.4th at p. 449; Zimmer, supra, 39 Cal.App.3d at p. 431.)
There is no dispute that respondents or their predecessors openly and notoriously used the driveway, including the portion that was on the Carroll Property, from the time respondents’ predecessors purchased the property in 1976 (or as far back as their lease of the premises beginning in 1964), through at least the time that Carroll began to interfere with their use in 2002. The issue, therefore, is whether the use by respondents or their predecessors was adverse for the requisite five-year period.
The term “adverse use” is synonymous with use that is under “claim of right” or “hostile, ” and it “means only that the owner has not expressly consented to [the use] by lease or license.” (Aaron, supra, 137 Cal.App.4th at pp. 1249-1250, citing Felgenhauer, supra, 121 Cal.App.4th at p. 450 [claim of right means without permission of owner].) Respondents contend, and the trial court found, that the use of the alleyway by respondents and their predecessors was adverse because it was known to Carroll and his predecessor(s) and occurred without their permission.
Substantial evidence supports the court’s finding of the requisite adverse use. Crueger testified that respondents and their predecessors used the driveway (which would include the portion on Carroll’s land) whenever they wanted, without asking or obtaining permission, since at least 1976. Carroll confirmed that, when he purchased the Carroll Property in 2000 and noticed the use of the driveway, the seller told him that the owners of the Crueger Property had been using the driveway. From this evidence, it might reasonably be inferred that the use of the portion of the driveway on Carroll’s land by respondents’ predecessors was without the permission of the owner of the Carroll Property. Conversely, there was no evidence that Carroll or his predecessor had expressly consented to respondents or their predecessors using the driveway per se, at least in regard to vehicular use.
Carroll argues that respondents or their predecessors were lessees of Carroll’s predecessor in interest, and that the time required for establishing a prescriptive easement could not begin to run until five years after the last payment of rent under the lease. (Code Civ. Proc., § 326.) Further, Carroll contends, the period of adverse use could not commence until the tenant gave notice by unequivocal act of its intent to possess the property adversely. (Citing, e.g., Storrow v. Green (1918) 39 Cal.App. 123, 127 (Storrow).)
Code of Civil Procedure section 326 reads: “When the relation of landlord and tenant has existed between any persons, the possession of the tenant is deemed the possession of the landlord until the expiration of five years from the termination of the tenancy, or, where there has been no written lease, until the expiration of five years from the time of the last payment of rent, notwithstanding that such tenant may have acquired another title, or may have claimed to hold adversely to his landlord. But such presumptions cannot be made after the periods herein limited.”
The evidence pertaining to the lease, however, was paltry at best. Dennis Crueger testified that he believed there might have been a month-to-month lease at some point between Carroll’s predecessor and his father’s business – Cardinal Manufacturing – for a small storage space on the Carroll Property for nuts, bolts, and welding equipment. Carroll testified that Trammel had told him there was a lease for the back of his building “at some point.” Even assuming that a lease by Cardinal Manufacturing could be attributed to respondents or their predecessors as property owners, there was no evidence as to the commencement, duration, or expiration of the lease, the date of the last payment of rent, or other material terms. Furthermore, the lease was for a storage area in the building on the Carroll Property, not for the portion of the driveway on the Carroll Property. Although Carroll urges that the lease implies permission to use the part of the driveway on his property (and, indeed, Trammel allegedly told Carroll that respondents were using the driveway due to the lease), Crueger emphasizes that the storage space could be accessed by respondents on foot and did not reflect consent to use the driveway for parking cars and deliveries by truck.
In the final analysis, the scant evidence of the lease does not negate the sufficiency of the evidence supporting the trial court’s decision. Because there was no evidence as to when the lease commenced, there was no evidence to rebut the conclusion that a prescriptive easement in the driveway had already arisen by the time the lease of the storage facility had commenced. And, once the prescriptive easement had been established in the driveway, it could not be extinguished merely by the lease of the storage facility.
Carroll argues that Code of Civil Procedure section 326 applies even where the tenant claims a prescriptive easement arose before the lease, because the statute states that the tenant’s possession is deemed the landlord’s possession “notwithstanding that such tenant may have acquired another title, or may have claimed to hold adversely to his landlord.” However, the statutory language does not provide that a holder of a prescriptive easement could lose a prescriptive easement by continuing to use the easement to gain access to another portion of land covered by a new lease. Carroll’s argument is off the mark, since the lease was for the storage facility, not the property to which respondents’ predecessors had established a prescriptive easement.
The cases on which Carroll relies are inapposite. In Storrow, supra, 39 Cal.App. 123, the defendant had granted the plaintiff’s predecessor a right to use a 50-foot strip of land. The defendant argued that he had subsequently acquired all of the plaintiff’s interest in that strip by adverse use. The court rejected the argument, because the defendant’s use had arisen from his rental of the plaintiff’s lawn area and was therefore permissive. (Id. at pp. 124-126.) Storrow says nothing about whether a party who has already established a prescriptive easement to one part of the land can lose it by entering into a lease for another part of the land.
In San Juan Gold Co. v. San Juan R. etc. Assn. (1939) 34 Cal.App.2d 159, the respondent’s predecessors had leased property to appellants for a water system to be used for irrigation purposes. Appellants eventually used the water system in connection with hydraulic mining operations instead, and claimed they had thereby acquired prescriptive rights. (Id. at pp. 163-164.) The court disagreed: because appellants had initially entered onto the property by permission under the lease, their use even for mining purposes was presumed to be permissive. (Id. at pp. 170-171.) The case did not address whether a party that had obtained a prescriptive easement as to one portion of the property could lose it by leasing another portion of the property.
Lastly, Carroll argues that the substantial evidence standard of review should not apply because the trial court failed to issue a statement of decision that addressed particular issues, namely the existence of the prior lease. (See Code Civ. Proc., § 632; Cal. Rules of Court, rule 3.1590.) This argument is unavailing as well.
Upon timely request of a party in a nonjury trial, a trial court must render a statement of decision addressing the factual and legal bases for its decision as to each of the principal controverted issues in the case. (Code Civ. Proc., § 632; Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1124.) However, the statement of decision need not address all the issues raised by the parties, but merely the ultimate facts on which the decision is based. (Id. at pp. 1124-1125.) Furthermore, even if a court fails to make a finding on a particular matter, the omission is harmless if the judgment is otherwise supported, unless the evidence is sufficient to sustain a finding in favor of the complaining party, which in turn would undermine the other findings of the court. (Nunes Turfgrass, Inc. v. Vaughan-Jacklin Seed Co. (1988) 200 Cal.App.3d 1518, 1525 (Nunes Turfgrass).)
Here, the court’s Order After Hearing clearly addressed the ultimate issue: whether respondents had established an easement on the Carroll Property. In addition to expressly ruling on the issue, the court identified the legal theory (prescription) and explained the ultimate facts supporting its determination – the usage of the driveway by respondents or their predecessors for many years with knowledge of the owners of the Carroll Property. It was unnecessary for the court to make a specific finding with respect to the existence of the prior lease (or the other findings Carroll requested). Furthermore, even if such a finding was required, the omission would be harmless because, as we have already explained, the evidence of the lease was insufficient to preclude the finding of a prescriptive easement. (See Nunes Turfgrass, supra, 200 Cal.App.3d at p. 1525.)
Carroll fails to demonstrate that the trial court erred in finding that respondents had established a prescriptive easement as to the portion of the driveway on Carroll’s property.
B. Carroll’s Extinguishment of Prescriptive Easement by Adverse Possession
“Generally, a prescriptive easement once acquired can be extinguished by actions of the servient tenement which satisfy the same elements required for the creation of the easement.” (Zimmer, supra, 39 Cal.App.3d at p. 435; see Glatts v. Henson (1948) 31 Cal.2d 368, 370-371 (Glatts) [“an easement may be extinguished by the user of the servient tenement in a manner adverse to the exercise of the easement, for the period required to give title to land by adverse possession”].) In essence, respondents could lose their prescriptive easement if Carroll adversely possessed it – by open, notorious, continuous adverse use for five years.
The question here is whether Carroll acted adversely to respondents’ exercise of the easement for the requisite period, which turns on when Carroll’s adverse acts began. Carroll contends his adverse acts started no later than April 21, 2003, when he placed the chain across the front of the driveway. Respondents contend – and the trial court found – that the adverse acts did not begin until Carroll got Robert Warren and Robert Crueger to sign his written notice on May 13, 2003. The timing is significant, because respondents commenced their lawsuit on April 30, 2008 – either a few days after the requisite five years had passed (such that Carroll had already extinguished the prescriptive easement) or a few days before the required time had passed (thus precluding the extinguishment).
Generally speaking, the servient owner’s adverse possession begins when the servient owner starts to act adversely to the easement holder’s use of the easement. (Glatts, supra, 31 Cal.2d 368, 370-371; see Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 325 (Nielsen) [five-year period of adverse use for extinguishment of easement commences at same time as five-year limitations period begins for claim of interference with the easement].) Nonetheless, the servient owner’s acts must be such that they give the easement holder actual or constructive notice, under the circumstances, that what the servient owner is doing is in fact adverse to the easement holder’s use of the easement. (Clark v. Redlich (1957) 147 Cal.App.2d 500, 507-508 [easement cannot be acquired or extinguished by adverse use unless the party whose rights are affected thereby has actual or constructive knowledge of the adverse nature of the use]; see also Nielsen, supra, 178 Cal.App.4th at p. 326 [whether the occupation of an adverse possessor is sufficiently open and notorious to constitute notice to the owner is a question of fact].)
Carroll contends the court erred in ruling that the five-year period did not begin until May 13, 2002, because the court improperly required him to show that he had provided “full notice” to respondents of his adverse intent. Carroll bases this contention on his reading of the following statement in the court’s Order After Hearing: “As to [respondents’] claim for a prescriptive easement on [Carroll’s] portion of the roadway, the Court finds that [respondents] were not under full notice of the extent of [Carroll’s] claim until the meeting and signing of a written document on May 13, 2003. Thus five years had not passed since [Carroll’s] effort to eliminate [respondents’] access.” (Italics added.)
We read the order differently than Carroll. In context, the court was not opining that a servient owner must always prove that the easement holder had full actual knowledge of what the servient owner was doing, in order for the five-year period to commence. Rather, the court ruled that, under the circumstances of this particular case – including statements that Carroll had made to respondents’ predecessors before the chain went up – Carroll’s placement of the chain across the driveway was insufficient to provide the requisite notice of adversity until Carroll also presented respondents’ predecessors with the May 13 notice. At any rate, whether or not this was precisely what the trial court had in mind, we may affirm the judgment on any lawful ground supported by substantial evidence. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19.)
Substantial evidence supports the conclusion that the five-year period did not commence with Carroll’s placement of the chain across the front of the driveway. Before he put up the chain, Carroll suggested to Robert Crueger and Robert Warren that a gate be placed across the driveway because of Carroll’s concern about drug activity and other overnight activity of third parties. When the chain went up, Carroll told Ernest Crueger Jr. that “he had put the chain up because he was nervous about people parking in there overnight.” Carroll acknowledged that, when Robert Warren and Robert Crueger asked him about the chain, he told them there were some security issues with the driveway, it was his property, and he wanted to control the incoming and outgoing traffic, which under the circumstances could reasonably be understood to refer to the traffic of thirdparties rather than respondents. With the chain up, respondents and their predecessors could still access the driveway area from the back of their property. Furthermore, Dennis Crueger, Ernest Crueger Jr., and Robert Warren all testified that they believed the chain was put up not to curb their use of the driveway, but other people’s use. From this evidence it may reasonably be inferred that the mere placement of the chain, under the circumstances, was insufficient to give actual or constructive notice of an intent adverse to respondents’ prescriptive easement.
In addition, Dennis Crueger Jr. testified that Robert Crueger had a key to the lock on the chain and could take down the chain without Carroll’s help until Carroll changed the lock in 2007. Carroll claims this testimony was inadmissible because, by respondents’ response to a request for admission, it was conclusively established against respondents that Carroll controlled vehicular traffic on the driveway from April 21, 2003. (Code Civ. Proc., § 2033.410, subd. (a). Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248, 260 [trial court may not consider evidence contrary to unambiguous admission where plaintiffs did not seek withdrawal or amendment of their admission].) However, respondents admitted only that “Jerry Carroll has maintained control over the lock on the chain continuously from April 21, 2003, to the present.” (Italics added.) This admission precluded respondents from disputing that Carroll “maintained control over the lock” – whatever that means – but the admission was not sufficiently clear, broad, or precise enough to preclude respondents from introducing evidence that Robert Crueger had a key to the lock, let alone evidence that Carroll did not exert control over the easement area adverse to respondents. With or without Dennis Crueger Jr.’s testimony regarding Robert Crueger’s key, there was substantial evidence to support the conclusion that the five-year period did not commence with Carroll’s placement of the chain across the driveway.
Carroll relies on Masin v. La Marche (1982) 136 Cal.App.3d 687, 691 [easement extinguished where servient owner stretched a rope across the road, later placed a wooden barrier, and for awhile stored the walls of a dismantled cabin along the road, precluding use of the easement], Sevier v. Locher, (1990) 222 Cal.App.3d 1082, 1085-1087 [five-year period commenced with obstruction of the roadway easement with a chain and padlock, and continued with a fence], and Roth v. Cottrell (1952) 112 Cal.App.2d 621, 623-625 [cause of action for interference with easement arose where owner of servient estate interfered with use of the easement by allowing his logging trucks to create ruts in the road such that the easement holder’s vehicle could not drive over the road. These cases are inapposite, since none of them addressed a situation in which the servient owner made statements suggesting that his actions were not adverse to the easement holder.
Carroll fails to establish reversible error.
III. DISPOSITION
The judgment is affirmed.
We concur. JONES, P. J., SIMONS, J.