Reset A A Font size: Print

Court of Appeal, Third District, California.

Richard L. GILARDI and Jennie L. Gilardi, Plaintiffs and Respondents, v. Gary L. HALLAM and Olga Hallam, Defendants and Appellants.

Civ. 19811.

Decided: June 18, 1981

Paulsen & Vodonick and E. John Vodonick and Michael F. Scully, Auburn, for defendants and appellants. Caylor, Dowling, Edwards & Kaufman and Gary M. Caylor, Grass Valley, for plaintiffs and respondents.

This case involves a boundary line dispute between adjoining landowners at a resort area known as Lake of the Pines. It was submitted to the trial judge on a stipulation of facts, and he was asked to resolve three issues, (1) whether defendants Hallam own an easement by prescription to maintain a sidewalk over property of plaintiffs Gilardi, (2) whether Hallams own such an easement to maintain shrubs and trees on said property, and (3) whether Hallams acquired title to the land underlying the sidewalk and shrubbery and trees by adverse possession.

The stipulation recites that more than five years before the action was filed a corner survey stake was erroneously placed some 15 feet1 away from its true location and within lot 1407 (the Gilardi lot). Neither Gilardis nor Hallams apparently were at fault for the error. The result was that the adjoining lot 1408 (the Hallam lot) was ostensibly enlarged to a substantial degree at the expense of lot 1407. Treating the added portion as their own property, Hallams' predecessors improved it by planting therein trees, shrubbery, and grass, and installing a sprinkler system and sidewalk, the latter for access to and from a dock on the lake. Throughout the over five-year period real estate taxes were paid by each party on his own lot, and there is nothing to indicate whether the Nevada County Assessor took into account the aforementioned improvements in assessing values.

Gilardis sued to quiet title to all of the surveyed lot 1407, including the disputed segment used and occupied by Hallams. The trial court ruled in Gilardis' favor and Hallams appealed. We reverse as to the prescriptive easement claims and affirm as to the adverse possessory claim of title.

In a carefully considered opinion the trial judge relied upon Berry v. Sbragia (1978) 76 Cal.App.3d 876, 143 Cal.Rptr. 318, and its holding that for property rights to vest by adverse possession or use the wrongdoer's intent must be to claim as his own property he specifically knows not to be his; without this, reasons the Berry court, “(t)he requisite element of a hostile use under a claim of right is missing.” (76 Cal.App.3d at p. 880, 143 Cal.Rptr. 318.) Since he inferred from the stipulated evidence (an inference which we respect and accept (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, s 254, p. 4245, et seq.), that Hallams intended to occupy only such property as they actually owned (lot 1408) and nothing more, the judge held that their wrongful possession was simply a mistake and hence not hostile.

We do not fault the trial judge for following authority as close on its facts as Berry. We do however disagree with and hereby disapprove that case, finding it in conflict not only with traditional adverse possession theory but with the law enunciated by our own Supreme court. Adverse possession is probably more often than not grounded on mistake; it is not thereby rendered any less hostile for purposes of the doctrine.

“Title by adverse possession may be acquired through the possession or use commenced under mistake. (Woodward v. Faris, 109 Cal. 12, 41 P. 781; McCormack v. Silsby, 82 Cal. 72, 22 P. 874; Wagner v. Meinzer, 38 Cal.App. 670, 177 P. 293; 1 Cal.Jur. 577; note 80 A.L.R. 156) ” (Park v. Powers (1935) 2 Cal.2d 590, 596, 42 P.2d 75.)

“Appellant's contention that the respondent's possession was not adverse is based on the statement in Holzer v. Read, 216 Cal. 119, 123, 13 P.2d 697, that ‘where the occupation of land is by a mere mistake, and with no intention on the part of the occupant to claim as his own, land which doesn't belong to him, but with the intention to claim only to the true line, wherever it may be, the holding is not adverse.’ On the other hand, in Woodward v. Faris, (supra ), 109 Cal. 12, 17, 41 P. 781, this court expressly held that if a claimant intends to claim the area occupied as his land, the mere fact that the claim was based on mistake does not preclude him from acquiring title by adverse possession. Since the Woodward case, it has been an established rule in this state that ‘Title by adverse possession may be acquired through the possession or use commenced under mistake.’ ” (Emphasis in original. Sorensen v. Costa (1948) 32 Cal.2d 453, 459-460, 196 P.2d 900.)

The most recent authority on the subject is Kunza v. Gaskeel (1979) 91 Cal.App.3d 201, 210-211, 154 Cal.Rptr. 101. There the Court of Appeal states what we declare to be the correct rule, as follows: “ ‘The requirement of ” hostility“ means, not that the parties must have a dispute as to the title during the period of possession, but that 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.“ ”Title by adverse possession may be acquired through (sic ) the possession or use commenced under mistake.“ ‘ ” (Emphasis added.)

Applying the foregoing to the claimed easements by prescription, we conclude that they are established as a matter of law. On the other hand the claim to fee title was properly rejected by the trial court because payment of taxes is essential to the acquisition of such title (Code Civ.Proc., s 325),2 a requirement which does not exist for a prescriptive easement (see Berry v. Sbragia, supra, 76 Cal.App.3d at p. 879, fn. 3, 143 Cal.Rptr. 318).

The judgment is reversed as to issues (1) and (2) and the trial court is directed to enter judgment for Hallams awarding them an easement by prescription over the disputed ground to maintain thereon shrubs, trees, grass and a sidewalk as in the past. Otherwise the judgment is affirmed. Hallams shall recover costs on appeal.


1.  This is our own estimate from an inspection of the map used by the trial court. The precise dimension is not given.

2.  This is not an agreed boundary case.

PARAS, Associate Justice.

REGAN, Acting P. J., and EVANS, J., concur.