Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SCV19876
HULL, J.Plaintiff/cross-defendant Sunset Ranchos Investors, LLC (plaintiff) appeals from a judgment in which the trial court rejected plaintiff’s claims for trespass and quiet title and instead granted to defendants/cross-complainants Kenneth Mollison and Cathleen Taverna (defendants) a “nonexclusive prescriptive easement for landscape and drainage purposes only” on a portion of plaintiff’s property. Plaintiff contends that such a remedy is improper because, despite the court’s characterization, the easement is exclusive and cannot be established by prescription. We agree and reverse the judgment.
FACTS AND PROCEEDINGS
This case comes to us on a settled statement of facts.
Plaintiff and defendants own adjoining pieces of property. Plaintiff’s lot, which is uphill from defendants’ property, is undeveloped; defendants reside in a house built on their lot, which they purchased in 1999. The parties’ dispute centers on an L-shaped portion of plaintiff’s property that abuts defendants’ lot.
Defendants have been making increasing use of this area since they purchased their property in 1999. They have mowed the area for fire prevention, rodent control and snake control. They have run their dog in the disputed area on a nearly nightly basis.
In 1999, defendants planted 19 oak trees in the disputed area. Each was surrounded by a rock border consisting of 50 to 100 rocks. These trees extended to 175 feet north of the boundary between defendants’ and plaintiff’s property. In 2001, defendants planted another five oak trees, a silk tree, an elm tree, and grapevines in the same area. The trees were planted “for aesthetic and erosion-control purposes,” and have grown substantially. At the time of trial, the silk tree was 30 feet tall, and the tallest oak trees were 15-20 feet tall.
Defendants also planted clover for erosion control in this area, and in 2002, began growing hops as well.
Faced with water runoff from plaintiff’s property onto their own, defendants took a number of measures to divert water from running to their house. In 1999, they put in three or four 40-foot lengths of drainage pipe. They subsequently built a concrete cache basin on plaintiff’s property and dug a trench to replace the drainage pipe.
Defendants also used this portion of plaintiff’s property for recreational purposes. They ran their dog in this area and put in a horseshoe pit. Defendants have used this area on a nearly daily basis and defendant Taverna testified that she treats the area in dispute “as an extension of her backyard but sees [it] as ‘different.’” Defendants have not built any structures in this area, but the area is “clearly distinguishable” in appearance from the rest of plaintiff’s lot.
Defendants acknowledged that they did not obtain plaintiff’s permission to use this area. In 2006, plaintiff wrote to defendants asking them to remove the improvements. Defendants refused to remove any of the drainage improvements, plantings or trees.
Defendants testified that they had not paid taxes on any portion of plaintiff’s property and that they did not want to own the disputed area. They did, however, want to continue to use the area as they had since purchasing their property in 1999.
Plaintiff filed a complaint against defendants for quiet title and trespass, seeking (among other things) the removal of all landscape encroachments. Defendants filed a cross-complaint for easement rights and quiet title. The trial court found for defendants on plaintiff’s complaint, and concluded that defendants had established their right to a “nonexclusive prescriptive easement for landscape and drainage purposes only.” The judgment provided: “This easement does not include the right of additional planting or additional landscape-related uses in the area beyond those now being used by [defendants]. [Defendants] shall maintain the easement, including existing groundcover, in its current condition. The easement does not include any structures or supports for the growing of plants. Any such structures or supports shall be removed. [Defendants] shall not expand their current drainage-related efforts on [plaintiff’s lot], [Defendants] shall not undertake any future water diversion and/or drainage measures on any part of [plaintiff’s lot].”
Plaintiff appeals.
DISCUSSION
Plaintiff contends that even though the court described the easement as “nonexclusive,” the easement actually gives defendants exclusive use of a portion of plaintiff’s property. Plaintiff asserts that because an exclusive easement cannot be established by prescription, the judgment must be reversed. We agree.
Adverse possession and a prescriptive easement share common traits. Both require the open, continuous, uninterrupted use or possession of land under a claim of right, hostile to the true owner for the requisite statutory period. Adverse possession additionally requires the payment of taxes, an element that is not required for an easement. (Gilardi v. Hallam (1981) 30 Cal.3d 317, 321-322; Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1305.)
The distinction between exclusive easements and outright title is critical in this case. “The rule regarding an ‘exclusive easement’ is one of long-standing: ‘[A]n “exclusive easement” is an unusual interest in land; it has been said to amount almost to a conveyance of the fee. [Citations.] No intention to convey such a complete interest can be imputed to the owner of the servient tenement in the absence of a clear indication of such an intention.’ [Citation.]” (Mehdizadeh v. Mincer, supra, 46 Cal.App.4th at p. 1308.)
As this court explained in Raab v. Casper (1975) 51 Cal.App.3d 866 (Raab), “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; although the elements of each are similar, the requirements of proof are materially different. [Citations.]
“As the difference between prescriptive use and adverse possession is sometimes obscure, so is the difference between an exclusive easement and outright title. The former is a right to use property of another; every incident of ownership not inconsistent with enjoyment of the easement is reserved to the owner of the servient tenement; the latter may make use of any of the property which does not unduly interfere with the easement. [Citation.] 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.” (Raab, supra, 51 Cal.App.3d at p. 876.)
Four cases are of particular relevance to this appeal. In Raab,defendants installed utility lines, part of a driveway, part of their yard, and landscaping on plaintiff’s side of their common boundary. (Raab, supra, 51 Cal.App.3d at p. 877.) The trial court found defendants were entitled to an easement for roadway and utility lines as well as an easement for the maintenance of lawns, trees, landscaping and fences around their yard. (Ibid.) We reversed, noting, “Although adroitly phrased to avoid the language of a grant of title, the [latter easement] was undoubtedly designed to give defendants unlimited use of the yard around their home.” (Ibid.) We concluded that this “easement” in fact created the “practical equivalent of an estate” by giving defendants the exclusive use of the disputed area. (Ibid.) Under these circumstances, the party must satisfy the elements of adverse possession, rather than a prescriptive easement. (Ibid.)
In Silacci v. Abramson (1996) 45 Cal.App.4th 558, defendants fenced in a portion of plaintiff’s land to use as their backyard. (Id. at pp. 560-561.) The trial court found that defendants had an exclusive prescriptive easement over this area (id. at p. 561.), and the appellate court reversed, finding guidance in Raab, and ruling: “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 [defendants] to acquire possession of [plaintiff’s] land, and to call the acquisition an exclusive prescriptive easement, perverts the classical distinction in real property law between ownership and use.” (Silacci, at p. 564.)
In Mehdizadeh, one neighbor built a fence on the property of another. When the owners discovered the true property line, they built a second fence on that boundary. A dispute arose over the area between the two fences, an area that contained 10 trees and a number of shrubs. (Mehdizadeh v. Mincer, supra, 46 Cal.App.4th at p. 1301.) The trial court granted the neighbor a prescriptive easement subject to various restrictions, specifically, that the neighbors could not use the disputed property for any purposes other than landscaping and recreation, and could not build any structures other than fences and a retaining wall. The property owners maintained a right to light, air, and privacy. (Id. at p. 1302.)
The appellate court reversed, ruling that the prescriptive easement “would divest [the owners] of nearly all rights that owners have in residential property. A fence will bar [the owners’] access to the property, and they cannot build on, cultivate, or otherwise use it. [The neighbor] cannot build on it either, but otherwise his right to ‘use’ looks more like ‘occupancy,’ possession, and ownership.” (Mehdizadeh v. Mincer, supra, 46 Cal.App.4th at pp. 1305-1306.)
Harrison v. Welch (2004) 116 Cal.App.4th 1084, another case from this court, is particularly instructive. In Harrison, the defendant built a woodshed and installed landscaping on property that partially encroached on that owned by plaintiff. (Id. at pp. 1087-1088.) The trial court refused to grant defendant an exclusive easement to maintain the woodshed or a nonexclusive easement to maintain the landscaping, and the defendant appealed. (Id. at p. 1089.) We affirmed, reiterating the rule that “an exclusive 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.” (Id. at p. 1093.) We held that an encroaching woodshed, just as much as any encroaching landscaping, prohibited the property owner from using the land, and concluded that the trial court properly denied a prescriptive easement for the woodshed. (Ibid.)
We then examined the landscaping itself. Defendant made an argument remarkably similar to the one made here. She asserted that her use of this property was not exclusive because there were no physical barriers excluding the owners from the landscaped area. (Harrison v. Welch, supra, 116 Cal.App.4th at pp. 1093-1094.) We rejected this claim because defendant’s landscaping “effectively prevent[ed] the [owners] from determining how the area of the encroachment is to be used. [¶] As the trial court... [had] thoughtfully explained: ‘Granted the planter boxes and trees are arguably an attractive border for both lots and [the owners] are not physically excluded from those portions of the encroachment area, but such facts do not make the encroaching use any less exclusive. It is the exclusivity of the use of the surface of the land in the encroachment area that is determinative, and the landscaping scheme of [defendant] has essentially co-opted the encroachment area to an exclusive use designed by [defendant].’” (Id. at p. 1094.) We concluded that because defendant’s landscaping precluded the owners from making any other use of this portion of their property, the trial court properly refused to grant defendant a prescriptive easement to maintain the landscaping. (Ibid.)
The same is true here. Defendants have planted 26 trees on plaintiff’s property, and the tallest of these trees are now 15 to 30 feet tall. Defendants have planted clover, hops and grapevines in the area, and they dug trenches to control water run-off. Even though plaintiff is not physically excluded from this area, the encroachments in this area preclude plaintiff from making virtually any other use of the property. Defendants argue that plaintiff did not present any evidence that other uses were impossible, but given the landscaping involved here, such a conclusion is compelled. The mere presence of a large number of trees and landscaping on a portion of plaintiff’s property prevents plaintiff from making any other use of its own land. As in Harrison, defendants essentially co-opted the property for their own purposes.
Although the trial court ostensibly granted a nonexclusive easement to defendants, the practical effect of permitting the encroachments to remain is tantamount to giving defendants exclusive use of plaintiff’s property. As Raab, Silacci, Mehdizadeh, and Harrison make clear, a prescriptive easement cannot be granted under these circumstances. The trial court’s determination must be reversed.
DISPOSITION
The judgment is reversed and the matter remanded to the trial court for such further proceedings as are appropriate. Plaintiff is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur,BLEASE, Acting P. J., BUTZ, J.