Daily Development for Tuesday, September 4, 2001

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

EASEMENTS; CREATION; EQUITABLE EASEMENT: Where court creates equitable easement as an affirmative protection of the position of an "innocent improver," such easement is not technically a prescriptive easement and is not subject to ordinary rules governing prescriptive easements.

Hirshfield v. Schwartz, 110 Cal. Rptr. 2d 861 (Cal. App. 2001)

The parties were neighbors in Bel Air, a super exclusive area in on the West Side of Los Angeles. The Hirshfields were elderly sisters who had taken into their home and designated as their heir a certain person horticulturalist named Himmelfarb. Himmelfarb developed the Hirshfields' property into a spectacular garden. Ultimately, Himmelfarb commissioned a survey of their property, which revealed that, due to a mistake in boundary identification made forty or fifty years earlier, two small sections of Hirshfields' property were occupied by the Schwartz's and one portion of Schwartz's property was occupied by the Hirshields.

Although Schwartz's predecessor in interest was the owner at the time the original mistake had been made, in recent years the Schwartz's had made extensive installations on the areas encroaching into Hirschield's property consisting primarily of underground pipes, conduit, a concrete contained pumping facility (related to the swimming pool and waterfalls and koi pond), and a very strongly built concrete retaining wall (a careening car had invaded the Schwartz's property some years before, and the wall protected against another such event.) Also, a portion of the Schwartz's sand trap and putting green encroached over the line. The Schwartz's also had extended an already existing fence along the presumed boundary.

Hirshfields sought an injunction ordering removal of the Shwartz's improvements and restoration of the property line.

Under California law, established in recent cases, a party who actually possesses the land of another cannot claim a prescriptive easement, and is forced to make a claim of adverse possession. At least this is the rule in residential boundary disputes. See Silacci v. Abramson, 53 Cal.

Rptr.

2d 37 (Cal. App. 1996) (The DIRT DD for 9/25/96). In California, typically adverse possession requires that the adverse claimant pay taxes, and consequently the intruding possessions of the two neighbors established neither a prescriptive easement nor adverse possession. The court in this case, in dicta, also comments that both adverse possession and prescriptive easements cannot arise where the claimant has possessed the land of another by mistake, citing a 1981 case. If this is still the law in California it represents a true minority viewpoint, but the issue was not relevant for the instant case.

The trial court, applying the "innocent improver" doctrine that is perhaps as well established in California as it is in any state, found that the respective possessions had been innocent, and that, on a "balance of hardships," it would be inappropriate to award an injunction requiring restoration of the boundary and immediate removal of all the Schwartz's improvements. Thus, it denied the injunction sought by the Hirshfields. In addition, through its equitable powers, it granted to Hirshfields an "unlimited easement" as to the small parcel of property fenced on their side that belonged to Schwartz's. As to the larger parcels enclosed within the Schwartz's lot but belonging to Hirshfields, the court ordered that Schwartz's would have an easement that would terminate when the Schwartz's sold their property or no longer lived there. The easement was limited to the existing encroaching improvements. The court also ordered the Schwartz's to pay the fair market value of the lots in which they were getting an interest less the value of the lot granted to the Hirshfields, a sum of about $25,000. [Yes, although only easements are granted, the appeals court uses the term "fair market value of the lots."]

The California Court of Appeals affirmed. It first rejected Hirshfields' claim that the court had inappropriately balanced the interests of the two parties under existing precedent. The discussion is interesting in that it gives examples of other cases in which the device used here had appeared. In a nutshell, however, the court simply concluded that the instant court's approach was consistent with precedent.

The Hirshfields went on, however, to dispute the easements granted to Schwartz's because these easements, in effect, gave Schwartz's complete possession of those parcels, and the existing California law, as mentioned above, was that there could not be a presciptive easement that amounted to a right of possession. The appeals court admitted that the easements given to the Schwartz's might indeed have amounted to the an exclusive right of possession, but concluded that, even if they did, the rule of Silacci and other cases involving prescriptive easements had no impact here. This was not a case of adverse claim, but rather a case of balancing of equities. The equitable easements recognized by the court are entirely distinct from those arising at law through the doctrine of prescription.

Comment 1: Clearly the interests created here, even if they amounted to exclusive use of the surface and immediate subsurface of the property, were not the equivalent of ownership. For one thing, the mineral rights were not affected a significant consideration in oil rich California (although it's possible that the mineral rights had been severed before either property obtained title.) For another thing, easements can expire by abandonment and, at least the Restatement of Servitudes would argue, through changed circumstances or other doctrines.

Finally, although it might appear now that the servient tenant has no effective use of the properties in question, this might not always be the case. Indeed, the Hirshfields were discussing building a circular driveway that, from the brief discussion of the facts given here, they conceivably could locate in part on one of the disputed tracts.

Comment 2: The "innocent improver" doctrine is covered by a California statute, but there is little discussion of the statute in this case.

Like many old California statutes, the doctrine has in effect become part of the California common law.

Comment 3: Note how limited the doctrine is in practice. Although, indeed, the Schwartz's were not enjoined, they had to pay fair market value and received very narrowly defined rights of use, at least in terms of time. To read the discussion of the facts, when the Schwartz's sell, they'll have quite a task rerouting all those pumps and conduit, but if they don't do so, they'll be unable to sell the property with workable waterfalls and pool a significant concern in this neighborhood.

Without a working koi pond, life's just not worth living.

Comment 4: What about that zinger dicta about possession by mistake not amounting to an adverse claim and use by mistake not amounting to hostile prescriptive usage? Is that California law? Perhaps some California practitioners can enlighten us.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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