Harrison v. Welch

In Harrison v. Welch (2004) 116 Cal.App.4th 1084, the defendant built a woodshed and installed landscaping on property that partially encroached on that owned by plaintiff. (Id. at pp. 1087-1088.) The trial court refused to grant defendant an exclusive easement to maintain the woodshed or a nonexclusive easement to maintain the landscaping, and the defendant appealed. (Id. at p. 1089.) The Court affirmed, reiterating the rule that "an exclusive easement, 'which as a practical matter completely prohibits the true owner from using his land' will not be granted in a case . . . involving a garden-variety residential boundary encroachment." (Id. at p. 1093.) The Court held that an encroaching woodshed, just as much as any encroaching landscaping, prohibited the property owner from using the land, and concluded that the trial court properly denied a prescriptive easement for the woodshed. (Ibid.) The Court then examined the landscaping itself. Defendant made an argument remarkably similar to the one made here. She asserted that her use of this property was not exclusive because there were no physical barriers excluding the owners from the landscaped area. (Harrison v. Welch, supra, 116 Cal.App.4th at pp. 1093-1094.) The Court rejected this claim because defendant's landscaping "effectively prevented the owners from determining how the area of the encroachment is to be used. As the trial court . . . had thoughtfully explained: 'Granted the planter boxes and trees are arguably an attractive border for both lots and the owners are not physically excluded from those portions of the encroachment area, but such facts do not make the encroaching use any less exclusive. It is the exclusivity of the use of the surface of the land in the encroachment area that is determinative, and the landscaping scheme of defendant has essentially co-opted the encroachment area to an exclusive use designed by defendant.'" (Id. at p. 1094.) The Court concluded that because defendant's landscaping precluded the owners from making any other use of this portion of their property, the trial court properly refused to grant defendant a prescriptive easement to maintain the landscaping. (Ibid.) The Court explained that: "The basic limitations period for bringing an action to recover real property is prescribed by Code of Civil Procedure section 318, which provides: 'No action for the recovery of real property, or for the recovery of the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the property in question, within five years before the commencement of the action.' This statute must be read in conjunction with Code of Civil Procedure section 321, which provides: 'In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the property is presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title, unless it appear that the property has been held and possessed adversely to such legal title, for five years before the commencement of the action.' ( 321.) Thus, '"section 321 . . . establishes the presumption of possession in the legal owner, unless such presumption is rebutted by the actual adverse possession . . . of another . . . ." (Harrison, supra, 116 Cal.App.4th at p. 1095)