Warsaw v. Chicago Metallic Ceilings, Inc.

REYNOSO, J.

I respectfully dissent from that portion of the majority opinion which denies compensation of fair market value for the easement.

A. Fair Market Value

Plaintiffs called upon the power of the trial court, acting in equity, to declare and protect a prescriptive easement. The court agreed. Yet the practical result, as indicated by the Court of Appeal opinion (per Compton, J.), is that: “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 . . . .”

The majority argues that the result, unjust or not, is ordained by statute. I disagree. My review of the statutes cited by the majority convinces me that they have not removed from the courts the traditional power to invoke the equitable doctrines which deal with fairness. Those doctrines persuade me that plaintiffs should pay fair market value for the property interest acquired.

1. Statutory Scheme

The law of prescriptive easements and their enforcement enjoyed a long history at common law before 1872. In that year Civil Code section 1007 was enacted. It merely codified the general concept of prescriptive easement *578 found at common law. 1 We must look, therefore, to common law precepts to resolve the issue at hand.

At common law, the declaration of whether a prescriptive easement existed was considered an action at law. 2 It remains so. (2 Defuniak, Handbook of Modern Equity (1956) § 31, pp. 55-56, hereinafter Defuniak.) However, the protection of the declared right was generally considered, and still is, an action in equity. (Walsh on Equity (1930) § 35, p. 184; hereinafter Walsh; Defuniak, § 31, p. 56.)

Mere citation to Civil Code section 1007 resolves nothing. The term “title by prescription,” for example, describes the rights which a person acquires upon establishing a prescriptive easement. Nothing more. The case at bench assumes acquisition; the real issue deals with the conditions which the court may impose to protect that judicially declared easement. Thus, in Taormino v. Denny (1970) 1 Cal.3d 679 [ 83 Cal.Rptr. 359 , 463 P.2d 711 ], cited by the majority, our court did no more than affirm the prescriptive right over a private roadway. (See also Niles v. City of Los Angeles (1899) 125 Cal. 572 [ 58 P. 190 ]; Clarke v. Clarke (1901) 133 Cal. 667 [ 66 P. 10 ].) Not surprisingly, the parties have not cited the section before the trial court, the appellate court, or before us. Neither the trial court nor the Court of Appeal mentioned it. And no papers before us mention the code section. Yet, the section erroneously forms the basis for the majority opinion.

2. The Power of the Court Acting in Equity

The Court of Appeal correctly identified the nature of plaintiff’s cause of action and the issue in this appeal when it wrote: “This is an appeal from an equitable decree which declared that plaintiffs had acquired an easement by prescription over the property of defendant.” (Italics added.) Neither the parties nor the majority disagree with that characterization.

We come, therefore, to the power of the court in equity. Whether the trial court must order the plaintiffs to pay fair market value for the prescrip *579 live easement, as the Court of Appeal concluded, depends on the breadth of discretion which the court in equity enjoys. Let us briefly explore the concept of equity.

Equity’s origins lie in the King’s extraordinary judicial power, exercised through the Chancery, to administer justice whenever “it was probable that a fair trial in the ordinary Courts would be impeded, and also whenever, ... the regular administration of justice was hindered. (5 Pomeroy’s Equity Jurisprudence (1941) § 31 p. 37, hereinafter Pomeroy.) The Chancellor was obliged to look only to “Honesty, Equity, and Conscience [ ]” to decide conflicts. (Id., § 35, p. 40.) Today, it is only a matter of degree that separates the early Chancellors who decided “whether reason and conscience demanded special intervention. ...” (Walsh, § 53, p. 282) from the modern judges and their grants of equitable relief. (Id.) The modern judge remains the repositor of special relief; he stands in the states’ stead “modifying the rigor of hard and fast rules at law where reason and conscience demand it.” (Ibid.)

What would be fair under the circumstances of the case at bench? The problem began because plaintiff built a large commercial building without leaving sufficient room for delivery trucks to approach the loading docks. The building which defendant had built left a 150-foot wide strip of unimproved land. The 40-foot wide driveway plaintiffs had constructed was simply insufficient for its purposes. Therefore, the delivery trucks went on to defendant’s land. In the original negotiations the creation of an easement was considered by the seller, plaintiffs and defendant, but none was negotiated. Later, plaintiffs offered to purchase an easement at least twice. Finally, when defendant raised a dirt pad of land on his land (apparently in preparation for the construction) which prevented the trucks from trespassing more than five feet, plaintiffs brought this action.

Traditionally the courts have not imposed a condition that fair market value be paid before a prescriptive easement will be declared and protected. However, in my view, the courts do have such power. In the case at bench that power should be exercised.

The role which the court in equity can play is seen in two disparate examples, one old and one new. First, we look to the traditional case wherein the building of one owner trespasses upon that of another. Where the law recognizes a legal wrong in such a trespass, and would normally order the removal of the encroaching building (as was done in the case at bench), the court in equity may instead order that money damages be paid by the encroaching party as a condition of protecting the encroachment, particularly where the encroachment was unintentional. (See Walsh, § 55, pp. 284-85.) *580 Second, I cite a quite different example which does not deal with property. The courts, pursuant to their inherent equitable powers, have created several exceptions to the statutory rule (Code Civ. Proc., § 1021) which requires each party to pay his or her own attorney fees. (See Serrano v. Priest (1977) 20 Cal.3d 25, 34-47 [ 141 Cal.Rptr. 315 , 569 P.2d 1303 ].) These examples simply illustrate the not too startling notion that courts of equity, in search of fairness, may (1) impose conditions before a decree protecting rights will issue, (2) grant monetary damages, and (3) extend statutory rights. I cite these only to stress that no reason abides in the history, concept or modern practice of equity which would so restrict the power of the court that it could not impose a requirement that fair market value be paid by the trespasser who is granted a prescriptive easement.

Finally, I turn to the fairness issue. By permitting the prescriptive easement in the case at bench the state, acting through the court, endorses a private action akin to eminent domain. Practically, 3 it is the taking of property rights from defendant and giving them to plaintiff. Can it be fair to reward a wrongdoer and punish an innocent property owner?

The majority says “yes.” It is fair, according to the majority, for several reasons including (1) reducing litigation, (2) protecting possession, and (3) preference for use over disuse of land. None of these reasons is convincing. First, no litigation was reduced. Society should not be in the business of forcing an owner of land to bring suit when a trespass has occurred. Such a policy increases litigation. Second, the possession of the easement has in fact been protected; plaintiffs are only required to pay for the easement. Third, modern society evidences a preference for planned use, not the ad hoc use of a trespasser. It is questionable that in the urban setting of the case at bench, such use by the trespasser is preferred by society.

I do not rely solely on my personal view of fairness. Rather, it is my role as a judge, as it was with the chancellor, to apply a “conception of justice in accordance with the prevailing reason and conscience of the time.” (Walsh, § 53, p. 281.) (See also 5 Pomeroy, Equity Jurisprudence, § 67, p. 89; “[Equity] is so constructed . . ., that it possesses an inherent capacity of expansion, so as to keep abreast of each succeeding generation and age.”) The final decree of the trial court, approved by the majority, contravenes today’s basic notions of fairness and justice. A requirement that plaintiffs pay fair market value for the land use given them is the least our society expects.

*581 B. Disposition

The suggestion of the concurring opinion that the Legislature should study this area of law bears underscoring. The statutes need to reflect today’s realities. Certainly—they should at least ameliorate the harsh consequences the majority feels compelled to enforce. However, I note that the recent legislative changes referred to in the concurrence only provide a landowner relief from the creation of a prescriptive easement. There remains the need for an equitable avenue by which the courts may relieve a landowner subject to a prescriptive easement of an otherwise inequitable burden.

I would affirm the judgment. However, I would remand to the trial court for further proceedings to fix an amount of reasonable compensation to be paid by plaintiffs to defendant. That compensation would be the fair market value of the property interest acquired. From that compensation damages, if any, sustained by plaintiff should be subtracted.

Our 1872 codification generally followed the 1865 New York codification. (See 1 Powell, The Law of Real Property (1981 ed.) U 83, p. 307.) New York, like California, recognized the applicability of the common law. (Generally, see id., at ¶ 59, p. 186.) Indeed, California had already incorporated the common law of England, if not in conflict with constitutional or statutory provisions, as it existed in 1850. (See Civ. Code, § 22.2 [formerly Pol. Code, § 4468]; Martin v. Superior Court (1917) 176 Cal. 289 [ 168 P. 135 ]; McMurray, Seventy-five Years of California Jurisprudence (1925) 13 Cal. L.Rev. 445.)

In Clarke v. Clarke (1901) 133 Cal. 667, 669 [ 66 P. 10 ], we find this description: “Prescription, at common law, was a mode of acquiring title to incorporeal hereditaments by immemorial or long-continued enjoyment. It had its origin in a grant evidenced by usage, and was allowed on account of its loss, either actual or supposed, and for this reason only those things could be prescribed for which could be created by grant. The presumption of the grant of an easement in the lands or over the lands of another is sometimes indulged.’’

The fiction that a lost “title” is newly found by the trespasser and that therefore he or she has a title sufficient as to all flies in the face of reality. The facts in the case at bench cannot accommodate that fiction.