Plaintiffs and Respondents, v. DAVID COOPER

Reset A A Font size: Print

Court of Appeal, Second District, California.

RAYMOND W. BREZINA and SUSAN W. BREZINA, as Trustees, etc., Plaintiffs and Respondents, v. DAVID A. COOPER et al., Defendants and Appellants.

B210125

Decided: January 22, 2010

Law Office of David Alan Cooper and David Alan Cooper, in pro. per., for Defendants and Appellants. Douglas A. Frymer for Plaintiffs and Respondents.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

------------------

Landowners sued to quiet title to an easement for a pipeline conveying water across a neighboring landowner's property, and the right of access to that pipeline to conduct necessary repairs and maintenance.   The trial court found the landowners had established both an express and a prescriptive easement over the neighbor's property.   We shall affirm as to the prescriptive easement.

BACKGROUND

Plaintiffs Raymond and Susan Brezina, trustees of the Raymond W. Brezina and Susan W. Brezina Trust 2001, reside at 1653 Bluebird Road, Glendora.   The Brezinas's parcel, which has been in Susan Brezina's family since 1947, is directly downhill from at least two other lots:  (1) 1791 Mountain Lane, owned by former defendants Virginia Lindsey and Virginia Lindsey, as Trustee of the Lindsey Trust (hereafter, Lindsey), and (2) 1780 Mountain Lane, purchased by defendants and appellants David and Tanya Cooper in 2004.1

For at least one hundred years, a gravity-fed spring has flowed from somewhere beneath Lindsey's property.   Originally, the water was channeled through an iron pipeline that ran downhill across several parcels, including Cooper's, into a concrete reservoir.   From there it ran through pipes used to irrigate two small hillside groves of fruit trees on the Brezinas's property.   For the most part, the iron pipeline from the spring ran just below ground.   But some segments were exposed, including segments in the area that eventually became Cooper's property.2  The Brezinas contend the diversion of the spring, easement for water rights and reservoir are all matters of public record dating back to 1891.

Ray Brezina, a licensed general contractor, began maintaining the pipeline and reservoir in 1986.   In 1987, as a result of irreparable blockages in the ancient iron pipeline, Brezina began bypassing the original line by laying white PVC pipeline above ground and directly above or along the same path as the original pipe.   Later, Brezina buried some of the PVC piping near Kersey's home, to prevent Kersey (an elderly woman) from tripping over it.

In 1990, Brezina installed PVC pipe across the entire portion of Kersey's lot that later became 1780 Mountain Lane (Cooper's parcel).   On that area of land, at least 90 percent of the white pipe, which is about two inches in diameter, and tracked the original pipeline exactly, was above ground.   At that time, the area that later became 1780 Mountain Lane was undeveloped and barren of vegetation, except for weeds.   After Cooper purchased the property, portions were backfilled and irrigated.

At some point in the early 1990's a dispute arose between the Brezinas, on one hand, and Lindsey and her late husband, on the other, over the existence of the Brezinas's easement and their right to access and use water from the spring under the Lindsey property.   Lindsey claimed the Brezinas had no easement, and no right to take water from the spring, and plugged the pipeline temporarily.   The parties initially sought resolution of their dispute from the Main San Gabriel Basin Watermaster (Watermaster).3  The Watermaster conducted an investigation, and ultimately told the Brezinas and Lindsey they would have to resolve the matter themselves or litigate.   That dispute was settled, and water flowed again through the pipeline until Cooper entered the picture.

The Coopers purchased the undeveloped parcel at 1780 Mountain Lane in February 2004.   In summer 2004, they commenced construction of a house, and grading and excavation for a retaining wall and driveway.   Ray Brezina met with Cooper when that construction project began.   He told Cooper about the water easement and pointed out the pipeline and a large reservoir.   Cooper, who is an attorney, told Brezina he would maintain the status quo during the construction, but planned to shift the pipeline a few feet to accommodate his construction project.   Cooper claims he told Brezina he would investigate Brezina's claim to an easement, once he had time to do so.   Brezina recalls the conversation differently.   He recalls Cooper saying he planned to shift the location of the PVC pipe during construction-a plan to which Brezina acquiesced, so long as the pipeline was not disconnected-and restore it to its original location afterwards.

Approximately two years later, on January 16, 2006, Cooper wrote to the Brezinas.   Cooper said he had looked into the title history and, to the extent he was able to ascertain, the Brezinas's water line was not a matter of public record.   Cooper informed the Brezinas they “might have rights about which [he was] unaware” and, if the Brezinas believed they did, recommended they “consult with an attorney who specializes in land-law issues.”   If that attorney and Cooper agreed the Brezinas had an easement, Cooper said he and the Brezinas would “have to reach an accommodation as to the method and location of the water-line.”   Cooper requested a response to his letter, but did not set a deadline.

Cooper wrote again two weeks later, on January 31, 2006.   He noted he had not yet heard back from the Brezinas, and said their silence led him “to assume” they had “no objection to [his] proposed removal of the water-line.”   Cooper said he planned to begin removing the pipeline within two weeks, but “remain [ed] willing to discuss this with [the Brezinas] and/or [their] attorney before taking any action.”   Cooper claims the Brezinas never responded to either letter;  the Brezinas claim they did.   Whatever the case, in February 2006, Cooper cut and capped-off the PVC pipeline, stopping the water flow entirely, and also removed a section of the original iron pipe.

In September 2006, the Brezinas filed this action for declaratory relief and to quiet title.   They alleged they had a recorded easement to connect and maintain the water pipeline that crosses Cooper's parcel or, in the alternative, that they had acquired an easement by prescription.

A one-day bench trial was conducted in mid-June 2008.   At the conclusion of that trial, at Cooper's request, the parties submitted written closing arguments.4  The trial court issued its ruling in mid-July 2008.   It found the Brezinas's property interests included an express easement “for purposes of carrying the water from the natural spring over defendants' real property by maintaining a piping system in its historical location, coupled with a right of entry upon [Cooper's] property for the limited purpose of access to repair, replace, and maintain said piping system.”   The court also found the Brezinas had acquired a prescriptive easement.   Judgment was entered in mid-August.   This appeal followed.

DISCUSSION

The Brezinas have acquired a prescriptive easement

To establish a prescriptive easement, a plaintiff must establish four elements by clear and convincing evidence:  (1) open, notorious, and uninterrupted use;  (2) hostile to the true owner;  (3) under the claim of right;  (4) for the statutory period of five years.  (Civ.Code, § 1007;  Code Civ. Proc., § 321;  Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1305;  Silacci v. Abramson (1996) 45 Cal.App.4th 558, 563;  Applegate v. Ota (1983) 146 Cal.App.3d 702, 708.)   Prescriptive easements differ from adverse possession in that they do not require payment of taxes.  (Gilardi v. Hallam (1981) 30 Cal.3d 317, 322;  Mehdizadeh v. Mincer, supra, 46 Cal.App.4th at p. 1305.)   “Whether the elements of prescription are established is a question of fact for the trial court [citation], and the findings of the court will not be disturbed where there is substantial evidence to support them.”  (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570.)   Under this standard, we lack power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.   (O'Banion v. Borba (1948) 32 Cal.2d 145, 149-150.)   We resolve all factual conflicts in favor of the prevailing party, viewing the evidence in a light most favorable to that party.  (Ibid.;  Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449.)

On appeal, Cooper insists the trial court erred in finding both that the Brezinas's use of their neighboring landowners' property was “hostile” rather than permissive, and that they had satisfied the “open and notorious” element of the test for a prescriptive easement.   Neither contention has merit.

1. Hostile use

Cooper maintains the Brezinas cannot establish a prescriptive easement because, between 1990 and 2000, when their parcel was still combined with Kersey's, Kersey “gave express permission to both Ray Brezina and Sue Brezina to run the pipeline,” and permissive use necessarily defeats a claim of prescriptive easement.   This argument would prevail, if it found factual support in the record.  (See Aaron v. Dunham (2006) 137 Cal.App.4th 1244, 1252 [landowner's express permission defeats assertion of a prescriptive easement].)   It does not.

Whether the use of the real property of another is hostile or merely a matter of neighborly accommodation “is a question of fact to be determined in light of the surrounding circumstances and the relationship between the parties.”   (Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d at p. 572.)   “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.”  (Id., at pp.   571-572.)   Moreover, “once a prima facie case is shown by the party asserting the easement, the burden of proof shifts to the landowner to show the use is permissive rather than hostile.”  (Applegate v. Ota, supra, 146 Cal.App.3d at p. 709.)

Cooper claims that both Ray and Sue Brezina testified at trial that Kersey “ ‘expressly consented’ ” to the installation of the PVC pipeline on her property.   Cooper is able to reach this conclusion only by mischaracterizing the testimony and selectively misstating the record.   Ray Brezina testified consistently and unequivocally that Kersey never gave him permission to install pipeline on her property, that he never requested permission from her to do so, and that he never believed he needed Kersey's permission because the Brezinas “felt [they] had the right to go through there because the deeds say that we have the right to maintain the pipe․”  Kersey was very particular about her driveway.   So, in 1990, when he was replacing the portion of pipeline that crossed Kersey's property, Brezina asked her only if he could drive a large machine (a trencher) up her driveway.   Brezina was not installing piping at the time he requested Kersey's permission, and did not carry any piping with him on the tractor/trencher when he drove it on her driveway.   At trial, Cooper tried repeatedly to obtain Brezina's concession that Kersey gave him “permission to install the pipe.”   After several unsuccessful efforts, Cooper was effectively admonished by the trial court to stop trying to obtain that concession, because Brezina had clearly “testified he didn't ask her permission to do that.”

Taking a slightly different twist, Cooper implies that Sue Brezina testified Kersey gave the Brezinas “her permission” to install the pipeline.   Again, however, this was not the testimony.   First, Sue Brezina was not the person who conducted the trenching, nor did she install any of the piping.   She testified only that at some point after the PVC pipeline had already been installed, the Brezinas asked Kersey, an elderly woman, if they could bury the portion of the pipeline that ran behind her house, because they were concerned she might trip on it;  Kersey said “she did not care.”

Lindsey also testified to the “hostile” nature of the Brezinas's use of the pipeline and neighboring property.   She testified that once in 1991, when she was having breakfast with her husband they “heard a noise outside and ․ went out to see what it was and there was Mr. Brezina with a skip loader ․ excavating into the side of [their] hillside and [they] were shocked,” because no one had ever approached them about the water rights before.   When Mr. Lindsey asked him what he was doing, Brezina told him he had “a right to the water rights.”   Lindsey ordered them off the property.   Brezina, however, continued to make regular unauthorized early morning forays onto Lindsey's property to work on the spring and pipeline.   Each time they caught him there, the Lindsey's ordered Brezina off their property.

As noted in case law and a leading treatise on the subject of California real property law, the mere fact that the user of an easement does not seek permission may, in and of itself, be sufficient to prove the use was under a claim of right.  (6 Miller & Starr, Cal. Real Estate (3d. ed 2006) Ch. 15, Easements, § 15:32, p. 15-123 (rel.8/2006), citing O'Banion v. Borba, supra, 32 Cal.2d at p. 152;  Twin Peaks Land Co. v. Briggs (1982) 130 Cal.App.3d 587, 594;  Cleary v. Trimble (1964) 229 Cal.App.2d 1, 8-10;  Lord v. Sanchez (1955) 136 Cal.App.2d 704, 707.)   On these facts, as evidenced by his conduct with Lindsey and Kersey, Ray Brezina's claim to have a right to enter his neighbors' property anytime without their permission to access the pipeline, cannot be considered anything other than a “claim of right.”

There is no evidence the Brezinas ever sought permission from Kersey-or anyone else-to lay or maintain the pipeline.   Apart from his attempt to misconstrue the Brezinas's statements, Cooper provided no evidence to contradict this testimony, and no evidence that any neighboring or prior owner gave the Brezinas permission to install pipeline across their property.   The trial court found the Brezinas's consistent and long-term use of their neighbors' property to have been sufficiently hostile.   This finding has ample support in the record.   Indeed, there is no other plausible conclusion.

2. Open and notorious

Cooper also contends the Brezinas failed to demonstrate that their use of the pipeline was open, notorious and uninterrupted for the requisite period of time.   Again, he is mistaken.

To establish a prescriptive easement the use must be sufficiently visible, open and notorious so that anyone viewing the servient tenement would discover the easement.   As courts have colorfully described, the adverse user “ ‘must unfurl his flag on the land, and keep it flying, so that the owner may see, if he will, that an enemy has invaded his domains, and planted the standard of conquest.’ ”  (Myran v. Smith (1931) 117 Cal.App. 355, 362.)   The requirement that each element of a prescriptive easement be established is intended “to insure that the owner of the real property which is being encroached upon has actual or constructive notice of the adverse use and to provide sufficient time to take necessary action to prevent that adverse use from ripening into a prescriptive easement.”  (Berry v. Sbragia (1978) 76 Cal.App.3d 876, 880, disapproved on other grounds by Gilardi v. Hallam, supra, 30 Cal.3d at p. 326;  Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 235.)   Whether the use has been sufficiently open, visible and notorious to ripen into a prescriptive right is a question of fact.   That determination is made by reviewing the physical evidence, the nature of the easement, the relationship between the parties and surrounding circumstances.  (Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d at p. 571;  Taormino v. Denny (1970) 1 Cal.3d 679, 687.)

The evidence at trial established that Ray Brezina has been openly maintaining, welding and splicing ancient iron pipeline on six contiguous properties between his property and Lindsey's since 1986.   There is no evidence the Brezinas ever asked permission of any landowner to use or maintain the pipeline, nor did they believe there was any reason for them to do so.   According to Lindsey, Brezina made so many unauthorized, early morning forays onto her property to conduct excavations and do other work on the pipeline, the Lindsey's had to install a baby monitor in one end of their home so they would know when he was there, and kick him out.   Lindsey finally found the situation so intolerable she had her attorney send the Brezinas a “cease and desist” letter in January 1992.   The requirement that the property be used under a claim of right, “ ‘means no more than that possession must be hostile, which in turn means only that the owner has not expressly consented to it by lease or license or has not been led into acquiescing in it by the denial of an adverse claim on the part of the possessor.’ ”  (Felgenhauer v. Soni, supra, 121 Cal.App.4th at p. 450.)   At least until she settled her portion of this action, Lindsey never acquiesced in the Brezinas's use of or access to the spring.

Cooper also argues the Brezinas's use of Kersey's land was not “open and notorious” because the pipeline was obscured by vegetation.   From 1987 until 1990, Brezina replaced the entire iron pipeline with white, plastic PVC piping.   The new pipeline ran exactly or virtually along the same path as the iron pipe.   The Brezinas testified that the PVC pipeline was 90 to 100 percent above ground on (what later became) the 1780 Mountain Lane portion of Kersey's property.   Except for weeds, that property was barren of vegetation before Cooper bought it, back-filled the area, and began irrigating.   Other evidence admitted at trial demonstrated that the collection point for the pipeline, as well as the valves, cistern and reservoir have always been in plain view.

Finally, the Coopers purchased their property with actual knowledge of the pipeline easement.   In verified responses to pretrial discovery asking them to admit they knew of the pipeline when they bought their property, and knew it ran downhill across their property and into a concrete reservoir, the Coopers “admit[ted] that a plastic pipeline became known during the purchase process,” that “a plastic pipeline recently ran downhill as described” and “into a concrete structure of some sort.”   Cooper reiterated his discovery responses as to the obvious nature and visibility of the pipeline at trial.5

This evidence, taken together, and particularly the physical evidence, the obvious nature of the easement, and the adverse relationship between the Brezinas and Lindsey, coupled with the absence of evidence of any permitted use by Kersey, is sufficient to support the finding that the Brezinas's unpermitted use of the property was open, visible and notorious in a manner sufficient to impart actual notice of their use to the owner of the dominant tenement.   (Connolly v. McDermott (1984) 162 Cal.App.3d 973, 977.)   There is substantial evidence to support the trial court's conclusion that the Brezinas acquired an easement by prescription.6

The Brezinas have a prescriptive easement to divert and carry away water from the spring beneath Lindsey's real property, across Cooper's parcel for the purpose of carrying water from the spring to their parcel, consistent with the scope and location and conditions of use of the easement during the prescriptive period, as described in the judgment.7

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. For ease of discussion and unless otherwise stated, our references to Cooper in the singular, are to David Cooper, the individual respondent principally involved in the matters at issue..  FN1. For ease of discussion and unless otherwise stated, our references to Cooper in the singular, are to David Cooper, the individual respondent principally involved in the matters at issue.

FN2. The parcel Cooper purchased in 2004 had previously been part of a larger property located at 1770 Mountain Lane, owned by Mrs. Kersey (Kersey).   In 2000 or 2002, Kersey subdivided her parcel, into what is now 1770 and 1780 Mountain Lane..  FN2. The parcel Cooper purchased in 2004 had previously been part of a larger property located at 1770 Mountain Lane, owned by Mrs. Kersey (Kersey).   In 2000 or 2002, Kersey subdivided her parcel, into what is now 1770 and 1780 Mountain Lane.

FN3. The Watermaster is a court-appointed board responsible for administering adjudicated water rights and managing groundwater resources and watershed in an area known as the Main San Gabriel Basin.  (See http:// www.watermaster.org.) Except for a brief involvement in an earlier dispute between the Brezinas and Lindsey, neither the Watermaster nor its functions and duties are relevant here.We mention the Watermaster only because there is a minor dispute about whether the spring out of which the pipeline travels is known, as the Brezinas claim, simply as “the spring” or, as Cooper contends, the “Cullen-Kennard” spring.   The latter term was first used by Mr. Lindsey in communications with the Watermaster.   Thereafter, the Watermaster, Lindsey and the Brezinas all referred to the spring, at various times, as the “Cullen-Kennard” spring.   The Brezinas claim they only adopted the reference the “Cullen-Kennard” spring in communications with the Watermaster for the sake of continuity, because that was how Mr. Lindsey first referred to it.   This dispute is not material to our resolution of this appeal..  FN3. The Watermaster is a court-appointed board responsible for administering adjudicated water rights and managing groundwater resources and watershed in an area known as the Main San Gabriel Basin.  (See http:// www.watermaster.org.) Except for a brief involvement in an earlier dispute between the Brezinas and Lindsey, neither the Watermaster nor its functions and duties are relevant here.We mention the Watermaster only because there is a minor dispute about whether the spring out of which the pipeline travels is known, as the Brezinas claim, simply as “the spring” or, as Cooper contends, the “Cullen-Kennard” spring.   The latter term was first used by Mr. Lindsey in communications with the Watermaster.   Thereafter, the Watermaster, Lindsey and the Brezinas all referred to the spring, at various times, as the “Cullen-Kennard” spring.   The Brezinas claim they only adopted the reference the “Cullen-Kennard” spring in communications with the Watermaster for the sake of continuity, because that was how Mr. Lindsey first referred to it.   This dispute is not material to our resolution of this appeal.

FN4. Neither party requested a statement of decision.   The Brezinas's closing argument is not in the appellate record..  FN4. Neither party requested a statement of decision.   The Brezinas's closing argument is not in the appellate record.

FN5. Cooper also makes an understandably tepid-and meritless argument-that the Brezinas's use of the pipeline was not “uninterrupted” for the requisite period.   The Brezinas testified that except for a brief period in 1992 (when Lindsey plugged it temporarily), until Cooper capped it off in 2006, water has always flowed through either the iron or PVC pipeline, although in dry times it was merely a “trickle,” and has always been used to water their fruit trees and yard.Continuous use may entail continuous intermittent use and will depend upon the nature of the easement claimed.   The requirement may be satisfied by long-term seasonal or occasional use consistent with the nature of the right claimed, as long as the use is sufficiently open and notorious to give notice to the owner of the servient estate that the user is asserting an easement.  (See, e.g., Wallace v. Whitmore (1941) 47 Cal.App.2d 369, 372, 375 [periodic use of roadway with vehicle tracks on land of another for 25 years to haul produce and drive sheep and cattle to a public road sufficient for continuous use];  U.S. on Behalf of Zuni Tribe of New Mexico v. Platt (D.Ariz.1990) 730 F.Supp. 318, 322 [Zuni tribe's religious pilgrimage to a mountain area once every four years, for hundreds of years, sufficient to constitute continuous use].).  FN5. Cooper also makes an understandably tepid-and meritless argument-that the Brezinas's use of the pipeline was not “uninterrupted” for the requisite period.   The Brezinas testified that except for a brief period in 1992 (when Lindsey plugged it temporarily), until Cooper capped it off in 2006, water has always flowed through either the iron or PVC pipeline, although in dry times it was merely a “trickle,” and has always been used to water their fruit trees and yard.Continuous use may entail continuous intermittent use and will depend upon the nature of the easement claimed.   The requirement may be satisfied by long-term seasonal or occasional use consistent with the nature of the right claimed, as long as the use is sufficiently open and notorious to give notice to the owner of the servient estate that the user is asserting an easement.  (See, e.g., Wallace v. Whitmore (1941) 47 Cal.App.2d 369, 372, 375 [periodic use of roadway with vehicle tracks on land of another for 25 years to haul produce and drive sheep and cattle to a public road sufficient for continuous use];  U.S. on Behalf of Zuni Tribe of New Mexico v. Platt (D.Ariz.1990) 730 F.Supp. 318, 322 [Zuni tribe's religious pilgrimage to a mountain area once every four years, for hundreds of years, sufficient to constitute continuous use].)

FN6. Cooper takes issue with the trial court's failure to define the precise location of the prescriptive easement.   He need not.   The scope and location of a prescriptive easement are determined by the use through which it is acquired.  (Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1047;  Thomson v. Dypvik (1985) 174 Cal.App.3d 329, 340;  see 6 Miller & Starr, Cal. Real Estate, supra, § 15.58, pp.   15-192-15-193 [once a prescriptive easement has been acquired, the location and extent of its use is determined by the use during the prescriptive period].).  FN6. Cooper takes issue with the trial court's failure to define the precise location of the prescriptive easement.   He need not.   The scope and location of a prescriptive easement are determined by the use through which it is acquired.  (Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1047;  Thomson v. Dypvik (1985) 174 Cal.App.3d 329, 340;  see 6 Miller & Starr, Cal. Real Estate, supra, § 15.58, pp.   15-192-15-193 [once a prescriptive easement has been acquired, the location and extent of its use is determined by the use during the prescriptive period].)

FN7. Our resolution of the Brezinas's claim to a presecriptive easement makes it unnecessary to address the other issues Cooper raises..  FN7. Our resolution of the Brezinas's claim to a presecriptive easement makes it unnecessary to address the other issues Cooper raises.

MALLANO, P.J. CHANEY, J.