676 P.2d 584 (Cal. 1984)
We granted a hearing in this case to consider whether one who acquires a valid prescriptive easement over another's property nonetheless may be required to compensate that person for either (1) the fair market value of the easement, or (2) the cost of removing or relocating any encroaching structures which interfere with use of the easement. We conclude that the statutes which define and validate prescriptive easements neither authorize nor contemplate an award to the underlying property owner of compensation for the reasonable value of the easement, and that under the circumstances in this case it would be improper to charge the owner of the easement with any portion of the cost of removing encroachments.
Although we disagree with the Court of Appeal's resolution of the foregoing issues, its opinion (per Compton, J.) correctly determined the other issues on appeal from the trial court's judgment declaring that plaintiffs had acquired a prescriptive easement over defendant's property. Accordingly, we adopt that portion of the opinion as follows.
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.
This action involves two contiguous parcels of real estate which front on the west side of Downey Road in the City of Vernon. Downey Road runs in a generally north-south direction. The two parcels are approximately 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 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 150 feet wide along the side of the parcel which abutted plaintiffs' property.
From the beginning it was apparent that plaintiffs' 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 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 trial court found that because 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 plaintiffs' 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 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 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 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. Whether the elements of prescription are established is a question of fact for the trial court, 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. The line of travel over a roadway claimed by prescription may not be a shifting course, but must be certain and definite. Slight deviations from the accustomed route will not defeat an easement, but substantial changes which break the continuity of the course of travel will destroy the claim to prescriptive rights. The distance to which a roadway may be changed without destroying an easement depends on the character of the land, and the purposes to which the land is adapted.
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 used the parcel to approach the building, swing around and back into plaintiffs' loading dock. 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. Although the transcript does not always make specific points of testimony clear, our review of the record discloses substantial evidence supporting the establishment of a prescriptive easement over the westerly portion at issue.
Defendant also contends there was no substantial evidence that plaintiffs' use of the property was hostile rather than permissive. 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. Defendant relies on evidence that plaintiffs at one time attempted to purchase the disputed parcel and attempted to negotiate for an express easement. Whether the use is hostile or is merely a matter of neighborly accommodation is a question of fact to be determined in light of the surrounding circumstances. There was evidence 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; defendant's adamant refusal to negotiate is evidence that no permission was given or contemplated.
Defendant next assigns error 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, 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. The determination as to whether such remedy is appropriate is within the sound discretion of the trial court. A mandatory injunction may issue even if the cost of removal is great under certain circumstances, especially if the encroaching structure was wilfully erected with knowledge of the claimed easement.
The structure to be removed in this case was not begun until after the underlying action was filed and was completed while the litigation was still pending. Defendant gambled on the outcome of the action and lost. The fact that its decision may have been reasonable in light of the denial of the preliminary injunction does not change the result.
Defendant next challenges the trial court's retention of jurisdiction to award damages in the event of defendant's noncompliance with the mandatory injunction within 90 days of judgment. Defendant argues that this portion of the judgment interferes with its right to an automatic stay of the injunction on appeal.
Code of Civil Procedure section 916 provides that the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order. The order reserving jurisdiction was made in recognition of the fact that plaintiffs continued to suffer damages every day that use of the easement was obstructed. If defendant's contentions had been upheld on appeal, there would of course have been no basis for an award of damages. Hence the judgment was not enforceable during the pendency of the appeal.
A stay in enforcement of the judgment during the pendency of the appeal does not prevent the accrual of damages which become part of the judgment if and when the judgment becomes final and enforceable. The trial court's retention of jurisdiction for the possible awarding of damages thus was appropriate under the circumstances of this case.
We next consider whether defendant is entitled to any offsetting monetary relief from plaintiffs. Defendant contends that the trial court's judgment is overly harsh because it both granted plaintiffs an easement over a 16,250-square-foot parcel of defendant's property free of charge and also required defendant to incur the entire cost of relocating or reconstructing its building. Would application of equitable principles dictate that plaintiffs either pay to defendant the fair market value of the easement they acquired, or contribute a portion of the costs of relocating? We think not.
Initially, the statutory procedure for acquiring an easement by prescription retains the traditional common law rule that such an easement may be obtained without incurring any liability to the underlying property owner. Civil Code section 1007, enacted in 1872, provides that occupancy for the statutory period confers a title by prescription, which is sufficient against all. We have confirmed that if the requisite elements of a prescriptive use are shown, such use for the five-year statutory period confers a title by prescription.
Thus, plaintiffs herein have acquired a title by prescription which is sufficient against all, including defendant. That being so, there is no basis in law or equity for requiring them to compensate defendant for the fair market value of the easement so acquired. To exact such a charge would defeat the policies underlying adverse possession and prescription: to reduce litigation and preserve the peace by protecting a possession that has been maintained for a statutorily deemed sufficient period of time. Historically, prescription has had the theoretical basis of a lost grant and has been justified for its utility in terminating controversies and stabilizing long continued property uses. If the doctrine of prescription is aimed at protecting and stabilizing a long and continuous use or possession as against the claims of an alleged owner, then the latter's claim for damages or fair compensation for an alleged taking must be rejected.
Similarly, the system of acquiring an interest in land by prescription remains on the books, and any decision to alter that system by requiring the payment of compensation clearly would be a matter for the Legislature. Defendant cites no authorities indicating that the present system is unconstitutional in any respect.
Assuming that an award of compensation for the value of the easement is unavailable, may the courts nonetheless order the easement owner to contribute all or part of the cost of relocating or reconstructing an encroaching building? It is arguable that a court of equity could order, in an appropriate case, that the plaintiff contribute a portion of the cost of relocating an innocent encroachment, as a condition to an award of injunctive relief. It is well established that a court has discretion to balance hardships and deny removal of an encroachment if it was innocently made and does not irreparably injure the plaintiff, and where the cost of removal would greatly exceed the inconvenience to the plaintiff by its continuance. If an outright denial of injunctive relief would be sustained under those circumstances, then no compelling reason exists for depriving the trial court of the lesser power of granting the injunction on condition that the plaintiff pay a reasonable portion of the cost of relocation.
In the present case, however, it would be inequitable to charge plaintiffs, who lawfully perfected an easement by prescription, for the cost of removing an encroaching structure erected by defendant with prior notice of plaintiffs' claim. Defendant's building was erected after plaintiffs' suit was filed and remained pending. Under similar circumstances, the courts have deemed an encroachment to be wilful and have ordered its removal despite a disproportionate hardship to the defendant. Plaintiffs should not be required to contribute to the cost of relocating encroaching structures which were erected by defendant with full knowledge of plaintiffs' claim.
The judgment is affirmed.
MOSK, KAUS and BROUSSARD, JJ., concur.
GRODIN, Justice, concurring.
I cannot accept the majority's attempted justification for the current law of prescriptive easements. How, in today's urban society, litigation is reduced or the peace is preserved by allowing persons situated as are these plaintiffs to acquire rights in what is concededly the land of another without a cent of payment is beyond my comprehension. I therefore agree entirely with the policy criticisms contained in Justice Reynoso's dissenting opinion.
I am persuaded, however, that if change is to come to this arcane area of the law it should come through the Legislature rather than through the courts. It is not alone the existence of Civil Code section 1007 which persuades me; as my dissenting colleague observes, that section, adopted in 1872, was early interpreted as merely fixing the time within which a right by prescription may be acquired. But in 1965 the Legislature modified the harsh application of the prescriptive easement doctrine by adding Civil Code section 1008, which permits a property owner to avoid acquisition of an easement by the simple expedient of posting a sign.
Given that modification, and that degree of legislative attention, I would leave the next move to Sacramento. I therefore join in affirming the trial court's judgment.
BIRD, C.J., concurs.
I respectfully dissent from that portion of the majority opinion which denies compensation of fair market value for the easement.
A. Fair Market Value
Plaintiffs called upon the power of the trial court, acting in equity, to declare and protect a prescriptive easement. The court agreed. Yet the practical result is that plaintiffs, who are admittedly trespassers, acquire practical possession of a 16,250-square-foot parcel of defendant's property free of charge.
The majority argues that the result, unjust or not, is ordained by statute. I disagree. My review of the statutes cited by the majority convinces me that they have not removed from the courts the traditional power to invoke equitable doctrines which deal with fairness. Those doctrines persuade me that plaintiffs should pay fair market value for the property interest acquired.
1. Statutory Scheme
The law of prescriptive easements and their enforcement enjoyed a long history at common law before 1872. In that year Civil Code section 1007 was enacted. It merely codified the general concept of prescriptive easement found at common law. We must look, therefore, to common law precepts to resolve the issue at hand.
At common law, the declaration of whether a prescriptive easement existed was considered an action at law. However, the protection of the declared right was generally considered, and still is, an action in equity. Mere citation to Civil Code section 1007 resolves nothing. The term "title by prescription" describes the rights which a person acquires upon establishing a prescriptive easement, but it does not answer the question of the conditions which the court may impose to protect that judicially declared easement. The real issue is the breadth of discretion which the court in equity enjoys.
2. The Power of the Court Acting in Equity
Equity's origins lie in the Chancellor's power to administer justice when the ordinary courts could not. The Chancellor looked to honesty, equity and conscience in deciding conflicts. Today the modern judge remains the repository of special relief, modifying rigid rules at law where reason and conscience demand it. The modern judge can impose conditions before a decree protecting rights will issue, grant monetary damages, and extend statutory rights when fairness requires.
What would be fair under the circumstances of this case? Plaintiffs built a large commercial building without leaving sufficient room for delivery trucks to approach the loading docks. Defendant's building left a 150-foot-wide strip of land unimproved. Plaintiffs' 40-foot driveway was insufficient, so trucks traveled on defendant's land. Plaintiffs attempted to negotiate an easement and to purchase an easement, but were unsuccessful, and finally sued when defendant's grading blocked the trucks' access.
Traditionally the courts have not imposed a condition that fair market value be paid before a prescriptive easement will be declared and protected. However, in my view, the courts do have the power to require payment, and the power should be exercised in this case.
Two examples illustrate equity's role. First, where a building encroaches upon another's land, equity may order money damages as a condition of protecting the encroachment, particularly where the encroachment was unintentional. Second, courts have created equitable exceptions to statutory rules, demonstrating that courts can act to achieve fairness. These examples show that courts of equity may impose conditions and award compensation when justice requires.
By permitting the prescriptive easement in this case, the court effectively takes property rights from defendant and gives them to plaintiffs. Can it be fair to reward a wrongdoer and punish an innocent property owner? The majority's justifications—reducing litigation, protecting possession, and favoring use over disuse—are not convincing here. First, no litigation was reduced. Second, possession already has been protected by the decree. Third, in an urban setting, society prefers planned use, not ad hoc takings by trespassers.
It is the judge's role, as it was with the Chancellors, to apply a conception of justice in accordance with the prevailing reason and conscience of the time. The decree approved by the majority contravenes today's notions of fairness and justice. A requirement that plaintiffs pay fair market value for the land use given them is the least our society should expect.
B. Disposition
The concurring opinion's suggestion that the Legislature study this area of law deserves emphasis. The statutes should reflect today's realities and provide courts an equitable avenue to relieve landowners of otherwise inequitable burdens. I would affirm the judgment but remand to the trial court for further proceedings to fix an amount of reasonable compensation to be paid by plaintiffs to defendant. That compensation would be the fair market value of the property interest acquired, from which damages sustained by plaintiffs, if any, should be subtracted.