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

Ernest E. WARSAW, Irving Schoenfeld and John R. Caufield, Plaintiffs and Respondents, v. CHICAGO METALLIC CEILINGS, INC., an Illinois Corporation, and Does 1 through 10, Inclusive, Defendants and Appellants.

Civ. 65111.

Decided: January 19, 1983

David S. Smith and Lee S. Smith, Los Angeles, for plaintiffs and respondents. John J. Waller, Santa Ana, for defendants and appellants.

This is an appeal from an equitable decree which declared that plaintiffs had acquired an easement by prescription over the property of defendant.   Defendant was ordered to dismantle and relocate a structure which had been erected on its own property but which interfered with plaintiffs' use of the easement.

We have concluded that while the evidence and applicable legal principles support the trial court's determination that plaintiffs have acquired a prescriptive easement, equity and justice dictate that plaintiffs be required to pay reasonable compensation to the defendant for acquisition of the right to use defendant's property.

This action involves two contiguous parcels of real estate which front on Downey Road in the city of Vernon.   Downey Road runs in a generally north-south direction.   The two parcels are approximately six hundred and fifty (650) feet deep.   Plaintiffs own the southerly parcel and defendant owns the northerly parcel.   Both parcels were acquired in 1972 from a common owner.

At the time of acquisition both parcels were unimproved.   Plaintiffs' arrangement with the seller was that the seller would construct on the parcel to be purchased by plaintiffs a large commercial building erected to plaintiffs' requirements.   The building covered almost the entire parcel.   A forty (40) foot wide paved driveway was laid out along the northern edge of plaintiffs' property to provide access to loading docks on the northern side of plaintiffs' building.

For its part defendant constructed on its property a substantially smaller building which ran only about one-half the depth of the northerly parcel and left vacant a strip of ground about one hundred fifty (150) feet wide along the side of the parcel which abutted plaintiffs' property.

From the beginning it was apparent that plaintiff's forty (40) foot wide driveway was inadequate since the large trucks which carried material to and from plaintiffs' loading dock could not turn and position themselves at these docks without traveling onto the defendant's property.   The inability of these trucks to make such use of defendant's property would destroy the commercial value of plaintiffs' building.

The court found that because of the fact that the possibility of creating an easement over defendant's property was considered and rejected in the original negotiations between the seller, plaintiffs and defendant no easement by implication was created.   The trial court further found that the existence of the driveway on plaintiffs' property militated against the creation of an easement by necessity.

From 1972 until 1979 trucks and other vehicles servicing plaintiff's facility used a portion of the vacant ground on defendant's property to enter, turn, park and leave the area of plaintiffs' loading dock.   On at least two occasions during that period plaintiffs sought, unsuccessfully, to acquire an easement from defendant or to create mutual easements over plaintiffs' and defendant's property.

In 1979 defendant developed plans to construct a warehouse on the southerly portion of the property including that portion of the property being used by plaintiffs.   A pad of earth was raised along the southerly portion of defendant's property approximately five (5) feet from the property line.   This grading effectively blocked plaintiffs' use of the area and plaintiffs commenced this action for injunctive and declaratory relief.

When the trial court denied plaintiffs' request for a preliminary injunction to prevent further construction, defendant proceeded to erect a building on the contested area.

After a trial on the merits, the trial court found that plaintiffs had acquired a twenty five (25) foot wide prescriptive easement over and along the southern portion of defendant's property for the full depth of the property.   As noted defendant was ordered to remove that portion of the building which interfered with the described easement.   Further the trial court gave defendant ninety (90) days to accomplish the removal and purported to reserve jurisdiction to award damages for failure of defendant to comply with the mandatory injunction.   This appeal ensued.

 The elements necessary to establish a prescriptive easement are well settled.   The party claiming such an easement must show use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years.  (Gas & E. Co. v. Crockett L. & C. Co. (1924) 70 Cal.App. 283, 290, 233 P. 370;  Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 430, 114 Cal.Rptr. 380;  Code Civ.Proc. § 321.)   Whether the elements of prescription are established is a question of fact for the trial court, (O'Banion v. Borba (1948) 32 Cal.2d 145, 195 P.2d 10.) and the findings of the court will not be disturbed where there is substantial evidence to support them.

 Further the existence of a prescriptive easement must be shown by a definite and certain line of travel for the statutory period.  (Dooling v. Dabel (1947) 82 Cal.App.2d 417, 186 P.2d 183.)  “The line of travel over a roadway which is claimed by prescription may not be a shifting course, but must be certain and definite.   Slight deviations from the accustomed route will not defeat an easement, but substantial changes which break the continuity of the course of travel will destroy the claim to prescriptive rights․  [Citations.]   Although manifestly the distance to which a roadway may be changed without destroying an easement will be determined somewhat by the character of the land over which it passes, together with the value, improvements, and purposes to which the land is adapted.”  (Matthiessen v. Grand (1928) 92 Cal.App. 504, 510, 268 P. 675.)

The trial court found that “the truckers using [the disputed parcel] did, in fact, follow a definite course and pattern, and while admittedly, no two truck drivers followed the exact course ․ and the traffic situation ․ varied from day to day, the deviation taken by various drivers over the seven-year period was only slight.”

The evidence revealed that truck drivers who were making deliveries to or receiving goods from plaintiffs used the parcel to approach the building, swing around and back into plaintiffs' loading dock.   Since the drivers varied in their abilities, the space required to complete this manuever was variable.   No two drivers followed precisely the same course, but all used the parcel for the same purpose—to turn their vehicles so they could enter plaintiffs' loading docks.   There was substantial evidence to support the findings on this issue.

 Defendant contends that there was no evidence supporting use of several hundred feet of the westerly portion of the parcel.   From the trial transcript, it is difficult to discern exactly to which portion of the parcel specific bits of testimony pertain.   However, the trial court was aware of defendant's contention and had viewed the premises.   Since the view of the scene constitutes evidence considered by the court, it may be presumed to have supported the final judgment regarding the boundaries of the easement.   (Morgan v. Veach (1943) 59 Cal.App.2d 682, 693, 139 P.2d 976.)

 Defendant contends that there was no substantial evidence that plaintiffs' use of the property was hostile rather than permissive.   Again, we find that this contention is without merit.

The issue as to which party has the burden of proving adverse or permissive use has been the subject of much debate.   However, this court recently adopted the rule that 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.  (MacDonald Properties, Inc. v. Bel-Air Country Club (1977) 72 Cal.App.3d 693, 140 Cal.Rptr. 367.)

Defendant relies on evidence that plaintiffs at one time attempted to purchase the disputed parcel from the seller and at various times attempted to negotiate for an express easement.

Whether the use is hostile or is merely a matter of neighborly accommodation, however, is a question of fact to be determined in light of the surrounding circumstances and the relationship between the parties.  (Taormino v. Denny (1970) 1 Cal.3d 679, 83 Cal.Rptr. 359, 463 P.2d 711;  Fobbs v. Smith (1962) 202 Cal.App.2d 209, 20 Cal.Rptr. 545.)

There was evidence adduced at trial that despite plaintiffs' unsuccessful attempts to negotiate an express easement, their use of the property continued uninterrupted for approximately seven years.   There was no evidence that defendant had ever expressly permitted plaintiffs to use the parcel for truck and vehicular traffic.   In fact defendant's adamant refusal to negotiate on the issue is evidence that no permission was given or contemplated.

 Defendants' next assignment of error is addressed to the trial court's order to remove that part of the completed structure which interferes with plaintiffs' easement.   Defendant argues that a mandatory injunction may not issue to enjoin a completed act.   However, there is extensive authority standing for the proposition that a court of equity may, in a proper case, issue a mandatory injunction for protection and preservation of an easement including, where appropriate, an order for removal of an obstruction already erected.  (Clough v. W.H. Healy Co. (1921) 53 Cal.App. 397, 200 P. 378;  Pacific Gas & Elec. Co. v. Minnette (1953) 115 Cal.App.2d 698, 252 P.2d 642.)   The determination as to whether such remedy is appropriate is within the sound discretion of the trial court.  (Pacific Gas & Elec. Co. v. Minnette, supra.)   A mandatory injunction may issue even if the cost of removal is great under certain circumstances.

“An appropriate statement relative to defendants' assertion that an injunction would work an inequitable burden is in 28 Am.Jur., section 56, page 253 as follows:  ‘In view of the drastic character of mandatory injunctions, the rule under consideration as to balancing the relative conveniences of the parties applies with special force to a prayer for such mandatory relief.   Where, therefore, by innocent mistake or oversight, buildings erected ․ slightly encroach ․ and the damage to the owner of the buildings by their removal would be greatly disproportionate to the injury ․ the court may decline to order their removal․  But relief by way of a mandatory injunction will not be denied on the ground that the loss caused by it will be disproportionate to the good accomplished, where it appears that the defendant acted with a full knowledge of the complainant's rights and with an understanding of the consequences which might ensue․’

“In a note in 57 A.L.R., first column, page 343, it was said:  ‘Wilfulness on the part of the defendant in proceeding with the violation of the restriction after warning by the complainant, especially after suit is brought, is a ground for equitable relief by mandatory injunction greatly stressed by the courts.’ ”  (Morgan v. Veach (1943) 59 Cal.App.2d 682, 689, 139 P.2d 976.)

In the case at bench, the structure to be removed was not begun until after the underlying action was filed.   It was completed while the litigation was still pending.   Defendant gambled on the outcome of the action and lost.   The fact that its decision may have been reasonable in light of the denial of the preliminary injunction does not change the result.

 The final assignment of error is addressed to the retention of jurisdiction to award damages in the event of defendant's non-compliance with the mandatory injunction within 90 days of judgment.

Defendant argues that this portion of the judgment interferes with its right to an automatic stay of the injunction on appeal.  (Byington v. Superior Court (1939) 14 Cal.2d 68, 70, 92 P.2d 896.)

Code of Civil Procedure section 916(a) provides:

“Except as provided in Sections 917.1 through 917.9 and in Section 117ha, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.”  (Emphasis added.)

The order reserving jurisdiction was made by the court in apparent recognition of the fact that plaintiffs continued to suffer damages every day that use of the easement was obstructed.   If defendant's contentions had been upheld on appeal, there would of course have been no basis for an award of damages.   Hence the judgment was not enforceable during the pendency of the appeal.

 On the other hand, a stay in the enforcement of the judgment during the pendency of the appeal does not a fortiori prevent the accrual of the damages which become part of the judgment if and when the judgment becomes final and enforceable.

Our deference to the fact finding power and discretion of the trial court in upholding what appears to be a legally supportable conclusion that plaintiffs had acquired a prescriptive easement cannot mask the fact that the result is a harsh one indeed.   Nor are we lead inexorably to the conclusion that the result should be countenanced by a court of equity.

A simple affirmance of the judgment would result in plaintiffs, who are admittedly trespassers, acquiring practical possession of a sixteen thousand two hundred fifty (16,250) square foot parcel of defendant's valuable property free of charge with the added damage to the defendant of the cost of relocating the building.

 The doctrines of adverse possession and prescription purely and simply result in one person taking for his own use the private property of another.   While the distinction between adverse possession and prescription lies in the fact that in the former fee title is acquired and in the latter simply a right in the land of another, the practical result is that in each case the true owner is divested of the right to make use of his land as he desires.   The case at bench presents a classic example of that result.

Though differing in the method of achievement, that result is the same as in three other situations which must be compared.   These three situations are (1) the application of the doctrine of “balancing hardships”, (2) specific performance in favor of a buyer of a contract to sell real estate and (3) the exercise of the power of eminent domain.   In each of these situations, a person or an entity obtains rights in the property of another by virtue of a judicial decree.

Although the California Constitution, article I, section 14, and the U.S. Constitution, 5th and 14th Amendments prohibit the taking of private property for private use, there exists in California a line of cases which achieves a result comparable to a right of private eminent domain.   Those cases involve minor innocent encroachments by one person on the land of another.  (Christensen v. Tucker (1952) 114 Cal.App.2d 554, 250 P.2d 660;  Miller v. Johnston (1969) 270 Cal.App.2d 289, 75 Cal.Rptr. 699;  Donnell v. Bisso Brothers (1970) 10 Cal.App.3d 38, 88 Cal.Rptr. 645.)

In the above cited cases the doctrine of “balancing the hardships” was applied in actions for injunctive relief to remove an encroachment.   By refusing to grant injunctive relief and in lieu thereof awarding damages to the offended property owner, the court in effect exercised the right of eminent domain in favor of a private person.

In applying the doctrine of “balancing the hardships”, however, the court in each instance stressed the innocence of the party causing the encroachment, the comparative negligence of the parties and the disproportionate degree of hardship in removing the encroachment as compared to the hardship to the property owner in permitting its continuance.

Similarly where a buyer is afforded specific performance of a contract to sell real estate the wrongfulness of the seller's refusal to perform must be established.   Thus the buyer is a totally innocent party and the seller has contracted away his rights in the property.

Further in the exercise of the statutory power of eminent domain, the entity taking the property of another is an innocent party in that the power is specifically authorized by statute.

In each of these three situations, i.e., (1) “balancing the hardships”, (2) specific performance and (3) eminent domain, innocent takers of the property are none the less required to pay just and reasonable compensation for the property rights so acquired.

 In the case at bench plaintiffs are not innocent but are instead, by their own admission, willful trespassers, while defendant was at best accommodating, and at worst, negligent by failing to take affirmative action to block the trespass.   The hardship to the defendants by creation of the easement is great and not disproportionately less than the hardship to plaintiffs that would result from the failure to obtain the easement.

The concepts of adverse possession and prescription arose and developed in primarily a rural or agrarian setting.   In our opinion it may be time to reexamine their continued viability in an urban and industrialized society.   The facts of this case at least suggest the need to answer the question “why should a willful trespasser receive more favorable treatment at the hands of a court of equity than the buyer in a specific performance case, an entity exercising the statutory right of eminent domain or the innocent creator of a minor encroachment?”

Equitable relief is flexible and expanding.   A court of equity need not wait for precedent but may assert its authority in those situations where justice would be defeated but for its intervention.  (7 Witkin, Summary of Cal.Law (8th ed. 1974) Equity, § 3, p. 5230;  30 Cal.Jur.3d, Equity, § 5, p. 436.)

Further a court of equity is not limited in granting relief by the demands and offers of the parties themselves, but may fashion a decree which will do justice to all parties.  (Redke v. Silvertrust (1971) 6 Cal.3d 94, 98 Cal.Rptr. 293, 490 P.2d 805.)

Finally the equitable maxim that he who seeks equity must do equity justifies, under appropriate circumstances, the requirement that a party seeking equitable relief pay appropriate compensation therefor.  (7 Witkin, Summary of Cal.Law (8th ed. 1974) Equity, § 6, p. 5231 and 5232.   Also see Ochoa v. McCush (1931) 213 Cal. 426, 2 P.2d 357.)

We thus conclude that this matter must be remanded to the trial court for further proceedings to fix an amount of reasonable compensation to be paid by plaintiffs to defendant according to the fair market value of the property interest acquired, less any damages sustained by plaintiffs as the result of defendant's erection and maintenance of its offending building to date.

The judgment as entered is affirmed.   The matter is remanded to the trial court for further proceedings in accordance with this opinion.   Each side to bear its own costs.

COMPTON, Associate Justice.

ROTH, P.J., and GATES, J., concur.

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