What Are the Elements of Prescriptive Easements and Equitable Easements in California?

These easements were the subject of the recent California appellate decision in Wang v. Peletta, and they are frequently the issues in boundary disputes between neighbors.

Plaintiffs Francis Wang and Laura Young built a retaining wall on property in Napa County (the County, or Napa) in the late 1990’s without first obtaining permits or a survey, apparently in the belief that the boundary between their property and an adjoining one ran along a barbed wire fence between them.

Defendant Peter Peletta later bought the adjoining property, and he later conducted a survey that showed the fence did not in fact mark the property line, and much of the retaining wall encroached on his property.

Unable to resolve the matter amicably, the parties brought competing claims against each other in this action, and the trial court ultimately granted judgment in Peletta’s favor.

On appeal, plaintiffs contended that (1) the trial court erred in granting a motion in limine to exclude evidence that they had a prescriptive easement to the portion of the property in dispute and (2) the evidence introduced at trial establishes an equitable easement as a matter of law.

Disagreeing with plaintiffs on these points—and, in the unpublished portion of the decision, rejecting also their contention that the trial court erred in excluding evidence of allegedly defamatory statements Peletta made—the appellate court affirmed the judgment.

Wang purchased a residential property and it shares a border with the property that Peletta bought.

A barbed wire fence running along a steep ravine marked what plaintiffs, and apparently the prior owner of Peletta’s property, thought was the property line.

In the late 1990’s, plaintiffs constructed a 295-foot long retaining wall, of heights up to 17 feet, together with electrical fixtures and a shed (collectively, the wall or the improvements), on their side of the barbed wire fence. There is no record of their obtaining permits before doing so.

Unfortunately for all concerned, a survey Peletta conducted in 2018 showed that a substantial section of the wall encroached upon the parcel he owns.

In November 2018, the County issued Peletta a citation and order to correct code violations for the portion of the wall on his property.

In the operative second amended complaint, plaintiffs asserted causes of action that included quiet title (based on their alleged prescriptive easement and equitable easement over a portion of Peletta’s property), declaratory relief regarding their easement rights, and defamation.

Peletta cross-complained, asserting a number of causes of action that included quiet title and trespass.

The trial court conducted a bench trial on plaintiffs’ cause of action for an equitable easement.

In its statement of decision, it found that construction of the wall at issue was completed around 1999 or 2000.

At that time, all involved parties thought the line between the two properties was along the barbed-wire fence, and plaintiffs believed the wall was well within their own property line.

However, 270 feet of the wall were actually on Peletta’s property.

Plaintiffs claim an easement of 11,388 square feet on Peletta’s property to maintain the wall and the land on plaintiffs’ side of the wall.

Before building the wall, plaintiffs did not obtain a permit. There was no evidence that a survey was carried out before the wall was constructed. And there was evidence that a survey would have been conducted as part of the permit process, and it would have revealed the true boundary of the two properties and prevented the encroachment.

Additionally, the County would have carried out inspections during construction to ensure the wall complied with applicable codes.

The area of the encroachment at issue here is difficult to reach from the main part of Peletta’s property, and there is no evidence any owner of his property had used the area, or that Peletta had plans to use it. In fact, he had never walked on that portion of his land before 2018.

Peletta obtained a survey of the property line in 2018, discovered the encroachment, called the County to ask about permits and, when he found there were none, reported the encroachment.

The County issued citations for the unpermitted work in November 2018, identifying the fact that the wall was built without a permit as well as code violations for additional unpermitted work.

In its current condition, the wall is stable and not at immediate risk of failure. However, it does not meet current building code requirements for seismic stability, drainage, and erosion control.

The code violations must be corrected, either by obtaining an after-the- fact permit or by removing the wall. At this point, the County cannot say whether it would issue an after-the-fact permit. Such a permit would require an application, structural design plans, and a drainage and erosion-control plan, including plans to address erosion on Peletta’s property.

It would also require changes to the wall, which might include retrofitting, to meet building code requirements. A permit application would require Peletta’s sign-off, which he has not given.

Removal of the wall would also require permits, for grading and for construction of any new wall that might be built. Obtaining the necessary permits would take between three and 12 months, depending on the level of review necessary. Removing the wall and restoring the hillside would require six to eight months, and a total of 727 to 850 man-hours of work, and would cost in the range of $211,000 to $296,000.

Before trial, Peletta moved in limine to exclude evidence of prescriptive use of the disputed area. The trial court granted the motion on the ground the wall was a public nuisance because it was built without the required permits, and there can be no prescriptive right to maintain a public nuisance.

The trial court then divided trial into two phases, the first phase being a bench trial on plaintiffs’ claim to an equitable easement.

After hearing evidence, the trial court ruled in favor of Peletta on plaintiffs’ claim to an equitable easement. finding plaintiffs had not established an equitable easement on three independent bases: plaintiffs’ trespass was not innocent; defendant would be irreparably harmed by the easement; and plaintiffs’ hardship in removing the wall would not be greatly disproportionate to the hardship to Peletta caused by granting the easement.

In preparation for the Phase 2 trial on the remaining claims, Peletta moved in limine to bar evidence or argument regarding communications between himself and governmental agencies on the ground they were protected by the privilege of Civil Code section 47, subdivision (b).

The trial court excluded most of the allegedly defamatory statements as privileged, and the remainder as nonactionable opinions.

On procedural and substantive grounds, plaintiffs contended the trial court erred in granting Peletta’s motion in limine to exclude evidence of a prescriptive easement.

Plaintiffs argued that a motion in limine is a disfavored means to dispose of a cause of action, and this dispute is not an appropriate vehicle for device.

The appellate court concluded the trial court’s ruling was correct.

A prescriptive easement is established where the claimant proves use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.

Such an easement provides not title, but the right to make a specific use of someone else’s property.

Plaintiffs contend they would be able to establish these elements at trial; that is, that they could provide evidence that they openly constructed the wall and other encroachments on the disputed property and openly used the property to gain access to the encroachments; and that the encroachment has continued since the late 1990’s without the true owner’s permission and under claim of right.

But despite the evidence they might be able to present on these points, the record shows as a matter of law that plaintiffs did not gain a prescriptive easement.

That is because the wall and other encroachments were built without permits and as a result are—and have always been—a public nuisance subject to abatement.

There is no dispute that plaintiffs were required to obtain permits before constructing the improvements. But there is no evidence in the record that plaintiffs applied for or received permits for the wall and other encroachments, and plaintiffs do not contend they could provide evidence of any such permits.

The County’s November 2018 citation to Peletta was based on the lack of permits for the retaining wall, storage building, electrical box, grading and earth disturbance, and earth-moving work.

That citation gave Peletta the option of either submitting a complete building permit application, including a soils report, or removing the retaining wall and returning the area to its previous condition.

It is well established that it is within the police power to declare an act or condition to be a nuisance for regulatory purposes.

A nuisance per se exists when a legislative body with appropriate jurisdiction, in the exercise of the police power, expressly declares a particular activity, or circumstance, to be a nuisance.

That has happened here: The Napa County Code provides that it is unlawful and a public nuisance for any persons, firm or corporation to erect or construct any building or structure in the unincorporated territory of Napa County without complying with provisions that, plaintiffs did not dispute, required permits and compliance with applicable codes in building the wall and other improvements.

Courts in this state have long held that there can be no prescriptive right to maintain a public nuisance.

Plaintiffs acknowledged this principle but contended it has no application here because it is limited to public nuisances that are continuing, rather than permanent.

The crucial difference between a permanent and a continuing nuisance was whether the nuisance could be discontinued or abated; if this was possible, the nuisance was continuing and thus not subject to the statute of limitations.

The continuing nature of the nuisance refers to the continuing damage caused by the offensive condition, not to the acts causing the offensive condition to occur.

It is true that where, as here, the nuisance is a solid structure, it is often treated as permanent rather than continuing.

However, this rule may not apply where it appears the solid structures can be removed, as in the case of a city-installed barrier blocking access to property, or an encroaching structure pushing the plaintiff’s building out of alignment.

The fact that a nuisance can be ordered abated itself implies that the nuisance was abatable and therefore of a continuing nature.

Moreover, in case of doubt as to the permanency of the injury, the owner of the land encroached upon may elect whether to treat a particular nuisance as permanent or continuing.

The nuisance caused by the unpermitted wall and other improvements in this case can be characterized as a continuing nuisance.

The encroachments were built without a permit, and the nuisance thereby created has always been subject to abatement. Not only can this public nuisance be abated, but the County has ordered it must be, through a citation directed to Peletta.

The trial court did not err in determining as a matter of law that plaintiffs could not establish a claim to a prescriptive easement, and in barring them from introducing evidence on that point.

Plaintiffs contended the evidence compels a conclusion that they satisfied the elements of an equitable easement to the disputed property.

A trial court has discretion to grant an equitable easement if the person seeking the easement shows three things: the trespass was innocent rather than willful or negligent; the easement will not cause irreparable injury to the public or the property owner; and the hardship to the trespasser from denying the easement is greatly disproportionate to the property owner’s from continuance of the easement.  The court may not grant the easement unless all three of these prerequisites are established.

Of the three elements, the requirement that the encroachment be innocent rather than willful or negligent, is the most important.

Courts approach the issuance of easements with an abundance of caution and resolve doubtful cases against the easement.

The trial court concluded that plaintiffs had established none of the three elements of an equitable easement.

Plaintiffs argued their encroachment on Peletta’s property was innocent because they, like Peletta’s predecessor, reasonably believed the barbed-wire fence marked the boundary of the two properties, and the wall was built on their side of the fence.

But the question is not whether the trial court could properly have granted an equitable easement, but whether it acted within the scope of its discretion in denying it, an inquiry in which we presume the judgment is correct and resolve all ambiguities in favor of affirmance.

In considering whether the encroachment was innocent, the trial court found that plaintiffs thought they were building on their own property and that, like many property owners, they would have relied on their contractor or engineers to pull permits.

However, the trial court went on to explain that it had a difficult time believing that Plaintiffs, both highly intelligent and apparently successful attorneys, did not know that they needed permits to construct the Wall.

The court also noted that, as a result of the unpermitted construction, the wall was built not only on Peletta’s property but also without stormwater and erosion control plans that would have prevented water erosion on Peletta’s property, which will now have to be remediated if the retaining wall is to remain in place.

LESSONS:

1.         Surveys of boundary lines are essential to determine whether structures are encroaching on a neighbor’s property, and should always be obtained before building any structures near a boundary line.

2.         A prescriptive easement is established where the claimant proves use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.

3.         Courts in California have long held that there can be no prescriptive right to maintain a public nuisance.

4.         The crucial difference between a permanent and a continuing nuisance was whether the nuisance could be discontinued or abated; if this was possible, the nuisance was continuing and thus not subject to the statute of limitations.

5.         A trial court has discretion to grant an equitable easement if the person seeking the easement shows three things: the trespass was innocent rather than willful or negligent; the easement will not cause irreparable injury to the public or the property owner; and the hardship to the trespasser from denying the easement is greatly disproportionate to the property owner’s from continuance of the easement.  The court may not grant the easement unless all three of these prerequisites are established.