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District Court of Appeal, First District, Division 2, California.

Jessle F. ERNIE, Plaintiff and Appellant, v. TRINITY LUTHERAN CHURCH, a nonprofit corporation, First Doe, Second Doe, Third Doe, Fourth Doe, and Fifth Doe, Defendants and Respondents.*

Civ. 17918.

Decided: July 02, 1958

Joseph A. Brown, San Francisco, for appellant. John B. Ehlen, San Francisco, for respondent.

The plaintiff appeals from a judgment quieting the defendant's title to a strip of land in the City of San Rafael. Her contentions on appeal are that the trial court erred in its implied finding that the defendant had obtained title by adverse possession and its conclusion that the plaintiff's action was barred by the Statute of Limitations, laches and lack of due diligence by the plaintiff and her predecessor in interest.

Plaintiff and defendant are adjoining landowners along the southern side of Fifth Avenue, near its intersection with D Street in the City of San Rafael. Fifth Avenue runs east and west; D Street runs north and south. Defendant acquired its parcel of land in 1942 from St. Matthews Evangelical Church. St. Matthews acquired the following property from Mrs. Hock in 1925.

‘Beginning at a point in the southerly line of Fifth Avenue, distant 155 feet West from its intersection with the westerly line of D Street; thence southerly parallel with D Street, 140 feet; thence westerly parallel with Fifth Avenue 5 feet; thence northerly parallel with D Street, 40 feet; thence westerly parallel with Fifth Avenue, 30 feet; thence northerly parallel with D Street, 100 feet to the southerly line of Fifth Avenue; thence easterly along said Avenue 35 feet to the point of beginning.’

In 1944, plaintiff acquired from Mrs. Hock, a parcel of land described as follows:

‘Commencing at a point on the southerly line of Fifth Avenue, distant thereon westerly 100 feet from the point of intersection of said southerly line of Fifth Avenue with the westerly line of ‘D’ Street, thence westerly along said southerly line of Fifth Avenue, 55 feet; thence at right angles southerly 140 feet; thence at right angles easterly 55 feet; and thence at right angles northerly 140 feet to the point of beginning.'

The dispute concerns a strip of land 9/10 of a foot wide and 140 feet long on the west side of the plaintiff's property. In 1926, St. Matthews built its rectory, a wooden frame building in a cement foundation, a cement walkway and erected a substantial fence along the east side of its property, 154 1/10 feet from the intersection of Fifth Avenue and D Street. Therefore, each of these encroached 9/10 of a foot on the land subsequently conveyed to the plaintiff. The evidence is that St. Matthews was in the sole and exclusive possession of the rectory, sidewalk and fence from 1926 until 1942 and used the walkway and rectory for church purposes. On June 30, 1942, the defendant bought the property from St. Matthews, believing the east boundary of the property to be along the fence, the walkway and the rectory, 154 1/10 feet from the intersection of Fifth Avenue and D Street. Ever since June 30, 1942, the defendant has been in continuous possession of the disputed strip and has used the property exclusively for church purposes.

Until 1952, no one made any claim to the disputed strip. The reason for the present controversy, is a survey made by the plaintiff in February 1952, which brought to light the encroachment. She mentioned the matter to the defendant's minister, but took no further action until January 30, 1956, when she filed her complaint in this action, asking the court to quiet her title and abate the encroachment upon her property. The defendant pleaded adverse possession, statute of limitations, laches and an agreed boundary line but did not pray for decree quieting title. Both sides waived a jury trial. After receiving oral and documentary evidence the trial court found for the defendant. The court expressly found that the plaintiff had paid all taxes on the property described in her deed, and that the plaintiff had never used, occupied or possessed the disputed property. In its conclusions of law, the trial court stated the plaintiff's action was barred by Code of Civil Procedure, sections 318 and 338, and by the laches and lack of due diligence of both the plaintiff and her predecessor in interest.

Defendant has not shown payment of taxes upon the property it claims. Payment of taxes by the claimant is essential to establishment of title by adverse possession. Code Civ.Proc. § 325. Defendant suggests that, since church property is tax exempt (Cal.Const. Art. XIII, sec. 1 1/2), there is no need to show such payment. But filing of an affidavit for exemption is required (Rev. & Tax. Code, §§ 254, 256) and the right to exemption is waived by failure to file such affidavit (Rev. & Tax.Code, § 260). The burden is upon the defendant to show that it paid the taxes or that none were assessed (2 Cal.Jur.2d 570–1). The court specifically found that the taxes were paid by plaintiff. Under the findings, the decree quieting title to the fee in defendant can be supported only upon the theory of adverse possession. Since the essential element of payment of taxes is lacking, this decree, insofar as it quiets title in defendant, cannot stand.

It does not follow, however, that plaintiff is entitled to the decree for which she prays. Her complaint, in addition to seeking quieting of her title, describes the sidewalk, building and fence of defendant as an ‘encroachment’ and prays for a decree ‘requiring the removal of the said encroachment’. Defendant's rectory is a permanent structure. Since one of its walls has for 30 years rested upon a strip of plaintiff's land, it is clear that it is a permanent encroachment. Rankin v. De Bare, 205 Cal. 639, 271 P. 1050. An action either for its removal or for damages for its maintenance is barred after three years. Code Civ.Proc. § 338(2); Bertram v. Orlando, 102 Cal.App.2d 506, 227 P.2d 894, 24 A.L.R.2d 899; Tracy v. Ferrera, 144 Cal.App.2d 827, 301 P.2d 905. This does not affect plaintiff's title to the fee of the land encroached upon, but requires that her title to that fee be quieted only subject to defendant's right to maintain the encroachment portion of its building.

The concrete walk running from the front line of the property to the rectory presents a somewhat different situation. Along the side of this walk nearest plaintiff's land is a fence, the posts of which are embedded in the concrete of the walk. The evidence is undisputed that for more than 30 years this walk has been openly and exclusively used by the church to afford access to the rectory and Sunday School. Payment of taxes is not essential to acquisition of an easement by adverse possession, unless the party resisting the claim to a prescriptive easement shows that taxes have been assessed or levied against the easement. (17 Cal.Jur.2d 126–7.) Plaintiff contends that the use was not adverse. However, the rule is clear that an open, visible, continuous and unmolested use of an easement for more than the statutory period fully warrants a prescriptive right, whether the terminology be that such use gives rise to a presumption of adverse use and claim of right (Fleming v. Howard, 150 Cal. 28, 30, 87 P. 908) or that it presents a fact situation warranting such a finding (17 Cal.Jur.2d 125–6). Thus decree establishing an easement in defendant over this portion of the disputed strip would be proper. However, the present decree purports to quiet title to the fee, rather than to an easement. While the findings refer to an easement, they do not specifically determine its acquisition by prescription.

As to the portion of the disputed strip lying to the rear of the rectory, we find in the record no basis for any determination adverse to plaintiff. Defendant cites and we find no authority indicating that a fence constitutes an encroachment within the meaning of the rule above applied to the rectory. There is no evidence of user of an easement upon this portion. Defendant paid no taxes upon the land. It follows that plaintiff is entitled to a decree quieting title to the fee of this portion of the strip.

Judgment reversed and case remanded for further proceedings not inconsistent with this opinion. The trial court may reopen the case for further evidence or revise its findings upon the evidence already before it, as it deems advisable.

KAUFMAN, Presiding Justice.

DOOLING and DRAPER, JJ., concur.

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