Shonafelt v. Busath

Defendants, Mrs. Busath and her daughter, have appealed from a judgment entered in an action for an injunction and to quiet title, by which they were ordered to remove a fence which they had built longitudinally upon a concrete sidewalk constructed several years previously by plaintiffs and over which plaintiffs claimed an easement of right of way by prescription. Defendants denied that plaintiffs had such easement, and by way of cross-complaint alleged that they were the owners of the property involved and prayed that their title be quieted as against plaintiffs. In answer to the cross-complaint, plaintiffs, in addition to setting up the easement of right of way,- alleged that they were the owners of an easement for the purpose of permitting the eaves of their house and the rafters supporting the eaves to extend over and above defendants’ property and for eaves-drip. The court, sitting without a jury, found that plaintiffs were the owners of the easements and rendered judgment in their favor, forever restraining and enjoining the defendants from obstructing or destroying them, or interfering with plaintiffs in their use thereof and requiring them to remove the fence and all obstructions from the easement of right of way.

Plaintiffs, husband and wife, own Lot 35, Block H, Tract 3368, in the city of Avalon, Catalina Island, California, and defendants are the owners of an adjoining lot, being Lot 34. Both lots front on Sumner Street and extend from that street to an alley at the rear of both properties. The lots in Avalon, a resort city, are narrow ones and “so close together that

Defendants contend on appeal that plaintiffs acquired no such easements over their land because “no adverse control or use is shown. Nor is it shown that any adverse claim was ever communicated to defendants. ’ ’

In finding- that the plaintiffs were the “owners” of the easements, the trial court, in effect, found that plaintiffs had acquired title to said easements by prescription and as a necessary consequence found against defendants upon their claims. It was held in Costello v. Sharp (1924), 65 Cal.App. 152 , 156-7 [ 223 P. 567 ], that in order “to establish an easement in the lands of another by prescription, ... all the elements necessary to acquire title by adverse possession must be shown to exist. It must, therefore, be made clearly to appear that

We are of the opinion that all elements necessary to acquire title by adverse possession were shown to have existed

Plaintiffs’ predecessors in title, a Mr. and Mrs. Wilkinson, built the first house on the Shonafelt property in 1911 or 1912. As part of the house construction, a boardwalk on 2 x 4s was constructed on a passageway between the Shonafelt and Busath house. This boardwalk extended from the front of the Shonafelt house to a platform in the rear of the house. In 1918 or 1919 the rear house was built on the Shonafelt property. The Busaths purchased their property in 1928, and the Shonafelts purchased theirs from the Wilkinsons in 1930. In 1934 or 1935 the Shonafelts removed the boardwalk and put in the concrete walk, which we have heretofore mentioned, and which, according to the evidence, did not ‘1 extend over any farther towards the Busath property . . . than the wooden walk. ...”

Mrs. Hazel Wilkinson Otto, daughter of plaintiffs’ predecessors in title, a witness for plaintiffs, stated that when the first house was constructed the boardwalk was built as part of the house and extended from the front ‘‘clear back to the rear of the house. Sometime during those early years we built a complete platform back of the house. At first there was just the walk back there. I don’t think we put the platform in right at the beginning; I would not be positive about that, but it went back and joined with the platform built out there, and then at a still later date the rear house was built. ... Q. . . . when you speak of the platform, that was a little raised place? A. Yes, a boarded-over place, so when we came around the back of the house to enter the house, that was our access to the back of the house, and our only access without going through the house, and we built that so as to do away with the dirt. Q. You would come around the walk and step on this platform? A. Yes. . . . Q. Do you recall approximately how far the board walk was . . . from the Shonafelt house ? A. No, the board walk was moved over. . . . Originally we were not able to buy our property, but leased it, and then when Wrigley took over the Island we had to buy our property [in 1919], and at that time they took off from our lot either 4 or 6 inches, and gave us 19 feet and 8 inches or 19 feet and 6 inches, rather than the 20 feet, and at that time

One of the defendants, Mrs. Alice M. Busath, called under section 2055, Code of Civil Procedure, testified as follows:

“Q. Well, when they [plaintiffs] first started work on the sidewalk, did they run it from the front of their house back to where the old walk ended? A. A narrow strip, I don’t believe it would reach way back there; I have no use for that side, so I don’t go between there. I have no doors or any openings from my house out between there. Q. You say that they first put in a narrow walk? A. Yes. Q. And then they widened it? A. Yes. Q. How many times did they widen it? A. Lawsy! I don’t know. A couple of times, I guess. Q. Do you remember how wide it was when they first put it in? A. Yes, it was pretty well up to my roof eaves. Q. Where did it start; at the edge of their house? A. Yes, just about. Q. And then when they kept adding onto it, they kept adding on over to your side? A. They certainly did, they made it run over towards my house so the drip from their house would run over my property. Q. Did you ever object to them doing that? ... A. Silently, yes; never openly objected, no. I don’t like trouble well enough. The Court : The question is, did you make any objection, and that means orally, or in writing. A. No, sir. Q. You did not say anything about it? A. No, I certainly didn’t; I did not want any trouble with them. . . . Q. And they used this space between the houses to go to and from their premises? A. Yes, especially the Mister; he used it mostly. Q. Did he do that continuously from 1930 up until the time you put the fence in? A. Yes. Q. Did you ever object to him about doing that? A. No. . . . Q. Mrs. Shonafelt used to use that passageway to go back and forth? A. Sometimes, but later she did not need to. Q. You never objected to her using it? A. No, of course I didn’t. . . . Q. . . . Then you never told the Shonafelts that you objected to their use of that passageway at any time? A. No, I didn’t do such a thing at any time, and there is no use saying I did. ... Q. You did not object to them putting in that side entrance, did you? A. I did not like it a bit, because I saw trouble ahead. The Court : The question is, Did you object

to it ? Not openly, no, sir. ...” When this witness appeared in her own defense, she was asked by the court: “Why did you erect that barricade that is there Í A. Because there was so much infringement that I was afraid the time would come that I would be paying for property I could not own. . . .” Mrs. Busath offered no evidence whatsoever to show that the easements arose out of permission or neighborly accommodation; in fact, the contrary appears.

Mrs. M. Esther Shonafelt, one of the plaintiffs, testified to the continued use of the passageway in going and coming from their house from the time they purchased the property until the fence was built; that Mrs. Busath never objected to the use; that she rented the upper floor of her house during “the season” in addition to one room in the rear house; that her guests always used the passageway in going to and from the property and to and from the shower; that in 1934 or 1935 they removed the boardwalk and put in a concrete walk; that the concrete walk did not “extend over any farther towards the Busath property . . . than the wood walk”; that in 1935 they put in a side entrance into the front house, their purpose for doing so being that “our guests would have gone down out the front door and around the side of the house and into the shower, and we built the shower downstairs and one upstairs, and when we have an overflow we could come down and come out that side door and save them from going out on the street, and also coming up from the ocean they would first go to the shower and then upstairs. Q. It was to furnish an entranceway to the upstairs portion of the house, an outside entranceway? A. Yes; it was an accommodation. Q. Did the upstairs guests use that passageway and that side entrance up until the time the fence was built ? A. Yes . . . whenever they came in.” On cross-examination, the witness was asked, “During the period of time that you have owned the property, up until the time of the survey, where did you believe the property line to be ? ... A. I thought that corner stake, just exactly where the old board walk was and where the cement walk was, I did think that was our line. Q... . You believed the walk was entirely on your property? A. Yes, we did. Q. Had you known where the property line actually was, would you still maintain you had the right to use that walk? ... A. Well, inasmuch as it had been used so many

Defendants urge that “occupation by mistake with intent to hold to the true line is not adverse. ’ ’ With respect to land that is occupied by mistake, we find the rule set out in 1 California Jurisprudence 577, section 56: “It is a general rule in California that title by adverse possession or prescription may be acquired, though the possession or use may have commenced under a mistake [footnote eases cited]. ... In its final analysis the question is one rather of intention; and the intention, in turn, cannot be entirely disassociated from the claim of right.” Not only does the testimony clearly show that plaintiffs actually claimed the right to use the sidewalk and passageway in dispute regardless of whose property it was on, but their claim of right, in the absence of evidence, could have been inferred from their notorious acts in the use and improvement of the passageway. (See Conaway v. Toogood (1916), 172 Cal. 706 , 710 [ 158 P. 200 ]; 1 Cal.Jur. 571, § 51.) The court stated in Pacific Gas & E. Co. v. Crockeet L. & C. Co. (1924), 70 Cal.App. 283 [ 233 P. 370 ], “The question as to whether the use was under claim of right is one for the court or jury to determine as a fact in the light of the relations between the parties and the surrounding circumstances, and where there is a conflict upon this subject the findings will of course not be disturbed here (Wells v. Dias, 57 Cal.App. 670 [ 207 P. 913 ]).”

Defendants argue further that “possession of a previous holder cannot be tacked to the time of plaintiff’s possession, where the claimed easement is not included in his conveyance.” Parenthetically, we may state that the cases cited by defendants in support of this contention involved the question of adverse possession of the fee (an issue not involved in this controversy), and not that of an easement, which is an interest in the land of another, with only the right to use the land. A similar contention to the effect that the claimants could not take advantage of a right of way

Defendants contend that the “locations of these easements-by-judgments, are not so described in the judgment that they can be found upon the ground, or found by reference to any monuments described in any public record. Indeed, the judgment is so indefinite in that regard that it must necessarily be reversed.” This contention is not well founded. The judgment provides that the plaintiffs are the owners of easements “which . . . consist of: (1) an easement of right of way for the purpose of passing over the same on foot freely at all times and for ingress to and egress from said property of plaintiffs and cross-defendants above described and for the maintenance of a walk upon and along said easement of right of way over that part of said Lot 34 immediately adjoining and contiguous to said Lot 35 contained within the boundaries of the cement sidewalk, which runs upon the common boundary between said Lots 34 and 35, and the prolongation of the side lines of said cement sidewalk toward the alley at the rear of said Lots 34 and 35 to the intersection thereof with the prolongation toward Lot 34 of the front face of the rear building on said Lot 35, said front face being the one furthest from said alley; and (2) an easement for the purpose of permitting the eaves of plaintiffs’ and cross-defendants’

Judgment affirmed.

Shinn, J., and Wood (Parker), J., concurred.

Appellants’ petition for a hearing by the Supreme Court was denied November 16, 1944.