Reset A A Font size: Print

Court of Appeal, First District, Division 3, California.

Margaret MERRILL, Plaintiff, Cross-defendant and Appellant, v. Thomas O. BALLARD et al., Defendants, Cross-complainants and Appellants.

No. A059126.

Decided: August 05, 1993

Harry D. Miller, Miller, Starr & Regalia, Oakland, for defendants, cross-complainants and appellants. Rita F. Gilmore, Duryee & Gilmore, San Rafael, for plaintiff, cross-defendant and respondent.

Defendants Robert K. Ballard and Thomas O. Ballard appeal from a judgment awarding plaintiff Margaret Merrill a prescriptive easement in a strip of land owned by defendants.   Plaintiff cross-appeals from that portion of the judgment rejecting her claim that she had acquired the property by adverse possession and denying monetary damages.   For the reasons stated below we reverse the judgment.


This dispute involves a 10–foot strip of land which is located between the western boundary of plaintiff's home located at 241 Summit Avenue in Mill Valley and the eastern boundary of a parcel owned by defendants located at 247 Summit Avenue.   While the 10–foot strip extends from Summit Avenue on the north to Tamalpais Avenue on the south, this controversy only concerns that portion of the strip which extends from Summit Avenue on the north to the southerly border of plaintiff's property line.   The parties stipulated that prior to October 3, 1983, there were no taxes assessed against the strip.

Plaintiff acquired her home adjacent to and east of the disputed strip in 1970.   At that time the strip was owned by the Tamalpais Land and Water Company, a privately owned water company.   A redwood fence separated the disputed strip from 247 Summit Avenue.   On plaintiff's side of the fence and within the 10–foot strip there was a pool shed, a woodshed, and a planted garden.   There was also a ramp and stairway which led from the back door of plaintiff's house to the swimming pool.

After acquiring her home plaintiff maintained and improved the property within the strip.   She cleaned the pool shed, replaced its concrete base and purchased a new pool motor.   With the help of gardeners, she continually planted, watered, pruned, weeded and trimmed the garden.   She replaced the stairway leading to the pool and reroofed the woodshed.

Plaintiff and her guests used the 10–foot strip continuously since 1970, because she believed it was hers.   She also believed the fence belonged to her.   She regularly trimmed the ivy on the fence.   In 1983, the fence needed repair;  plaintiff telephoned Dr. Thomas Ballard, thinking he might share the cost of repairs.   Ballard refused, stating, “[Y]ou want me to fix your fence.”

Plaintiff testified that defendants' predecessor, Mrs. Frank, had requested permission to put a water meter on plaintiff's side of the fence.   Plaintiff agreed.   Mrs. Frank also mentioned that there was some kind of easement running between 241 and 247 Summit Avenue and the redwood fence ran down the middle of it.

In 1989, a windstorm blew down a portion of the fence.   Plaintiff called her insurance adjuster in order to get an estimate for repairing the fence.   Before the fence could be repaired, Dr. Ballard called plaintiff and said he was going to remove the fence.   The fence was subsequently cut down.

After destruction of the redwood fence, plaintiff was forced to erect a chicken wire fence in order to contain her dogs and to fence the swimming pool.   The loss of the redwood fence resulted in deer eating her garden and the absence of privacy.

Defendants purchased 247 Summit Avenue in 1977 but did not move onto the property until 1988.   In September 1983 defendants purchased the disputed strip from the Tamalpais Land and Water Company.   Since that date the strip has been assessed for taxes and defendants have paid all the taxes assessed against the property.

On November 2, 1983, after consultation with an attorney, Thomas Ballard wrote a letter to plaintiff giving her permission to continue using the disputed strip.   Ballard's secretary, who is now his wife, typed the letter and placed it in the mail.   Mrs. Ballard could not remember whether she left the letter in her “out” box or placed it directly in a mailbox.   Plaintiff denied receiving this letter.

Thomas Ballard testified that in 1981 1 plaintiff called him and demanded he fix his fence.   He responded that if she felt that strongly about it she should participate in paying for half the repair.   Plaintiff became annoyed and discontinued the conversation.

He also stated that in 1989 he spoke with plaintiff after the fence blew down.   He said the fence was very old, it needed to be replaced and he would replace the fence along her surveyed property line.   Plaintiff responded that she did not know where that line was and would get back to him.   Two weeks later Ballard called again.   Plaintiff told him her insurance adjuster was coming out and she would repair the fence.   Ballard said that would not be necessary;  it was his fence and he would take care of it.

Based on this evidence the trial court found plaintiff had acquired a prescriptive easement in the disputed strip by virtue of her “open, notorious, continuous and adverse use under a claim of right.”   The court also found plaintiff's use commenced in 1970 and exceeded a period of five years.   With respect to defendants' affirmative defenses the court found defendants failed to bear their burden of establishing plaintiff had received their letter granting plaintiff permissive use of the disputed land and that the 10–foot strip was dedicated to public use.


The elements required to establish a prescriptive easement are settled.   The party claiming such an easement must show use of the property which has been open, notorious, continuous and hostile or adverse to the true owner for an uninterrupted period of five years.  (Code Civ.Proc., § 321;  Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1045, 3 Cal.Rptr.2d 223.)   “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, 199 Cal.Rptr. 773, 676 P.2d 584.)

Defendants claim there was no evidence that plaintiff's use of the disputed strip was hostile.   They point to plaintiff's testimony that she occupied the disputed strip because she thought she owned it.2  They also maintain the trial court erred in precluding a question on whether plaintiff only wanted to claim the property that was rightfully hers under her grant deed.   We agree.

 It is settled the requisite hostile possession for a prescriptive easement claim may be established when the initial occupancy or use occurred through mistake.  (Gilardi v. Hallam (1981) 30 Cal.3d 317, 322, 178 Cal.Rptr. 624, 636 P.2d 588;  Sorensen v. Costa (1948) 32 Cal.2d 453, 459–461, 196 P.2d 900.)   However, “the claimant's possession must be adverse to the record owner, ‘unaccompanied by any recognition, express or inferable from the circumstances of the right in the latter.’  (4 Tiffany, Real Property (3d ed.), 425.)”  (Sorensen v. Costa, supra, 32 Cal.2d at p. 459, 196 P.2d 900;  see also Mesnick v. Caton (1986) 183 Cal.App.3d 1248, 1259, 228 Cal.Rptr. 779.)   In order “to show that the possession based on mistake was not hostile and adverse it must be established by substantial evidence that the possessor recognized the potential claim of the record owner and expressly or impliedly reflected intent not to claim the occupied land if record title was in another.”  (Gilardi v. Hallam, supra, 30 Cal.3d at pp. 323–324, 178 Cal.Rptr. 624, 636 P.2d 588.)

In Sorensen, the trial court found on the basis of substantial evidence that plaintiff Sorensen and his predecessors, who had mistakenly occupied certain property, claimed the land as their own and held it adversely to all the world.  (32 Cal.2d at p. 460, 196 P.2d 900.)   The Sorensen court distinguished the facts in its case from those in Holzer v. Read (1932) 216 Cal. 119, 13 P.2d 697, where the trial court found the occupier only intended to claim whatever land was described in his own deed.  (Sorensen v. Costa, supra, 32 Cal.2d at p. 460, 196 P.2d 900.)

In Gilardi, the stipulated facts established that the defendants and their predecessors took possession of the disputed land mistakenly believing they were the owners.   The trial court determined the defendants did not intend to claim any land which did not belong to them and that their possession was not hostile and adverse.   The Supreme Court reversed.   Since there were no additional facts showing that the defendants recognized the potential claim of the record owners or that they intended to renounce their claim if they did not have title, the Supreme Court found the defendants' possession was hostile and adverse.  (Gilardi v. Hallam, supra, 30 Cal.3d at p. 326, 178 Cal.Rptr. 624, 636 P.2d 588.)

 The Holzer, Sorensen and Gilardi decisions indicate that adverse possession and prescriptive easement cases may be determined by the subjective intent of the party occupying the land.  (See 5 Miller & Star, Cal.Real Estate (2d ed. 1989) § 16.14, pp. 645–648, recommending a different approach.)   Thus, the subjective intent of the occupant is material to determine the hostile or adverse element of prescriptive easements.

 In this case defense counsel posed the following question to plaintiff:  “And you have always at all times wanted to claim only the property that is rightfully yours under your grant deed, correct?”   The court sustained plaintiff's objection to the question on the basis that it called for a legal opinion, despite defendants' argument that plaintiff's intent was a necessary element for her claim to the property.   We find the exclusion of plaintiff's response to defendant's question constitutes error.

While plaintiff testified she always believed she owned the strip and redwood fence, she also stated Mrs. Frank had advised her of an easement.   Moreover, whether in 1981 or 1983, plaintiff asked defendants to share in the cost of repairs to the fence.   Such testimony was sufficient to indicate plaintiff recognized the potential claim of the record owner.   Defendants were entitled to pursue inquiry as to plaintiff's intent given that recognition.   Since the right of cross-examination is fundamental, the court's restriction of questioning on this issue mandates reversal.  (Fremont Indemnity Co. v. Workers' Comp. Appeals Bd. (1984) 153 Cal.App.3d 965, 971, 200 Cal.Rptr. 762.


The judgment is reversed.   Each party to pay their own costs and fees.


1.   Although the year differs, it is probable this communication was the same that plaintiff testified occurred in 1983.

2.   The trial court's statement of decision specifically found this to be true.

WHITE, Presiding Justice.

MERRILL and CHIN, JJ., concur.

Copied to clipboard