July 23, 2018

EXCLUSIVE VS. NON-EXCUSIVE EASEMENTS; MAP ACT

A. NONEXCLUSIVE UNLESS EXPRESSED OTHERWISE

(1) OVERVIEW

(a) An easement is nonexclusive unless made exclusive by express terms of instrument creating it or the parties’ evidenced intent to make it exclusive.

(i) Case Example. Water company, with servient owner's permission, installed water mains and service connections in five-foot wide easements previously granted to easement owner, a competing water service distributor. No language in the grant implied that the easement was exclusive. The easement owner argued that because the grant defined the easement's width, it had the right to occupy the easement to its full width. Held, neither the language of the grant itself, nor the evidence concerning the express or implied intent of the parties, made the easement exclusive. Thus, the servient owner could transfer its retained rights in the easement to the competing water service distributor.1
(b) An exclusive easement is an unusual interest in land because it amounts "almost to a conveyance of the fee."2
(c) An intent to convey an exclusive easement is not imputed to the servient owner absent evidence of clear intent.3

B. RULES OF CONSTRUCTION TO INTERPRET INSTRUMENTS OF CREATION

(1) PLAIN MEANING.

(a) Case Example. Grant gave grantee "the full and free right for all purposes connected with the use of said grantee's land, to pass and repass along, over and upon said private road or alleyway..." The easement owner had been using the easement as a permanent parking lot, marked with painted stalls which were assigned to the easement owner's tenants by name and apartment number. The trial court found that the easement was created for the sole use and benefit of the easement owner's predecessors in interest and the exclusive use by the easement owner was not a violation of the servient owner's rights. Held, the language of the grant deed was clear and free from ambiguity and uncertainty and does not require or authorize the court to consider extrinsic evidence as to the meaning of the grant deed. The use of the terms "full and free" and "all purposes" was not intended to be exclusive to the grantee and does not imply that all rights in connection with the use of the easement area are conveyed, but only the right to pass and repass for all purposes connected with the use of their property.4
(2) If ambiguous, then: INTENT OF PARTIES.

(a) Court looks at extrinsic evidence.
(b) Surrounding circumstances.
(c) Relationship between parties and their respective properties.
(d) Nature and purpose of easement.
(e) Ambiguity interpreted in favor of grantee.
(f) Ambiguity construed against drafter of easement.
(g) Ambiguity in reservation is construed in favor of grantor.

C. RIGHTS OF SERVIENT OWNER

(1) Servient owner has right to use easement as long as such use does not interfere with or impede the easement owner's superior right of enjoyment.

(2) Servient owner may grant the same or similar easement rights in the same location to different persons, but the enjoyment by the second grantee is subject to the superior rights of the first easement owner and cannot unreasonably interfere with the first grantee's use.

(a) Case Example. Water company, with servient owner's permission, installed water mains and service connections in five-foot wide easements previously granted to the original easement owner, a competing water service distributor. The original easement owner argued that the servient owner had no power to grant easements similar to that granted to it in the same fivefoot strip of land. The original easement owner argued it had a right to occupy the five-foot strip completely if the necessity arose, and the water company's installation substantially interfered with its present partial occupation of the easement and its possible future use for additional pipes and connections. The court found the easement was not exclusive. Held, servient owner retains right to use land reasonably himself and the power to transfer that retained right to a third party. Original easement owner has primary right to the use of the easement, but until an irreconcilable conflict arises, the parties should make reasonable enjoyment of the interest as long as possible.5

D. EXCLUSIVE EASEMENT—TANTAMOUNT TO FEE ESTATE?

(1) Whether exclusive easement is tantamount to a fee estate, rather than an easement, depends upon the facts and circumstances of the case. Exclusive easement can be distinguished from fee estate where easement owner’s exclusive use does not encompass entire easement area. But even where easement owner’s use does encompass entire easement area and completely excludes any use by easement grantor, significant restriction on easement owner’s use will also distinguish exclusive easement from fee interest.

(2) Case Example. By grant deed, the grantor granted to the grantee an appurtenant easement "for parking and garage purposes" over a defined area of the grantor's land that encompassed more than 6,100 square feet. The grantee's successor in interest desired to build a twocar garage on the easement covering approximately eleven percent (11%) of it. The trial court ruled the grant deed authorized the grantee to build a garage on the easement and the grantee was entitled to exclusive use of the garage. Held, the easement does not rise to fee ownership because the rights accorded the grantee under the deed are restricted and the award of exclusive control over the garage, which will occupy only a small portion of the easement, is intended solely to protect those restricted rights.6

(3) Case Example. Water company built reservoir on portion of adjacent properties which an incorrect grant deed and survey led the company to believe was a part of its property. Twenty-one years later, the company discovered the error, and filed a quiet title action for a prescriptive easement. The trial court awarded the water company an exclusive easement over that portion of the properties where the reservoir was located, but restricted the use of the properties to that of a reservoir. The opposing party appealed, arguing an exclusive easement is "tantamount to a fee estate." Held, the easement granted the company by the trial court was not the same as a fee interest because it restricted the company's use of the properties to reservoir purposes only and

prohibited it from increasing the burden placed on the servient estates.7 (But, see subsection G.(4), below, for subsequent narrow reading of this case in prescriptive easement context.)

(4) Case Example. New owner in luxury residential development sued to prohibit adjoining neighbor from passing horses across, and from any use whatsoever of, “exclusive easement of access, ingress and egress” created by CC&Rs over adjoining neighbor’s property for benefit of new owner’s property. Besides referring to the easement as “exclusive,” the language of the CC&R’s explicitly stated that the dominant tenement’s use “shall be exclusive,” lacked any reservation language for the servient tenement, and imposed on the dominant tenement all costs of maintenance of the easement area, and the obligation to indemnify the servient tenement from any liability arising from the dominant tenement’s exclusive use of the easement area. Also, the appellate court found it “inconceivable” on the facts that the easement owner would be expected to share it with the adjoining neighbor. The court therefore ruled that the easement created an exclusive right of use in the owner of the dominant tenement and completely excluded the servient tenement owner from all uses of the area. Nevertheless, the court ruled the easement was not tantamount to a fee estate, because  dominant owner’s use of the easement area was limited to access, ingress and egress purposes.8

E. RETENTION OF RIGHTS BY GRANTOR

(1) Grantor retains incidents of ownership when granting an exclusive easement.

(2) Grantor may use the land not inconsistent with the grant.

(a) Case Example. Grantor granted "permanent and exclusive easements" for electrical transmission lines and express uses incidental to that purpose. Grantor reserved the right to use the servient estate for grazing, agricultural and mineral purposes. Four decades later, after the area of the property had changed from agricultural to industrial and commercial use, the servient owner began using the easement area as an employee parking lot during working hours. The easement owner sought to enjoin such use of the easement. Held, as a matter of law, all other use of the property other than for electrical transmission lines, that is not unreasonable in light of the interest granted, is reserved to the servient owner. Thus, the servient owner could use the easement area as a temporary employee parking lot. The court looked only at the language of the grant, not at the language of the reservation. The limited words of reservation did not control.9

F. EXCLUSIVE EASEMENTS AND SUBDIVISION MAP

(1) SUBDIVISION MAP ACT ("MAP ACT")10 The Map Act regulates the subdivision of land and requires that a subdivision map be prepared and approved by the appropriate local agency.

(a) PURPOSE. (i) To regulate and control design and improvement of subdivisions, providing proper consideration to its relation to adjoining areas; (ii) to require the subdivider to provide for and install any necessary streets, drainage, utilities and other services; (iii) to prevent fraud; and (iv) to protect the public and property purchaser. 11 (b) DEFINITION OF SUBDIVISION. The "division, by any subdivider, of any unit or units of improved or unimproved land, or portion thereof, shown on the latest equalized county assessment roll as a unit or as contiguous units, for the purpose of sale, lease or financing, whether immediate or future."12

(2) EASEMENT UNENFORCEABLE IF IT CAUSES A SUBDIVISION. An exclusive easement may be held unenforceable if found to constitute a subdivision under the Map Act.

(a) Case Example. In a case of first impression reported May 22, 2007, the Second District examined a grant deed that conveyed to the grantee an appurtenant easement "for parking and garage purposes" over a defined area of the grantor's land that encompassed more than 6,100 square feet. The grantee's successor in interest desired to build a two-car garage on the easement covering approximately eleven percent (11%) of it. The trial court ruled the grant deed authorized the grantee to build a garage on the easement and the grantee was entitled to exclusive use of the garage.

On appeal, the grantor's successor in interest argued that the easement, as construed by the trial court, amounted to a subdivision under the Map Act, and because the grantor did not prepare a subdivision map nor obtain appropriate agency approval, the easement was unenforceable. Held, the easement at issue is not the division of property into distinguishable possessory estates or interests, nor is it the sale of land or a lease, but is merely the right to use a portion of the property in a restricted manner. Thus, the easement does not meet the definition of a subdivision and, therefore, does not need to comply with the Map Act. The court distinguished Pescosolido v. Smith,13 because that case dealt with a transfer of ownership interest in the land. The court also distinguished four opinions of the Attorney General14 because each one dealt with a scheme of joint or collective ownership of the land.15

(b) Case Example. The grantors sold one of two adjacent lots they owned and reserved the rear portion of the conveyed lot subject to a written agreement that they could continue to use it until they sold the remaining lot or died. The city served a notice alleging the effect of the agreement was to subdivide the property in violation of the Map Act. Held, the agreement did not constitute a subdivision because by its own terms it was only the right to use a portion of the lot and was not a sale of land, nor was it a lease, as a lease is an estate in land created for a definite period of time, and the agreement at issue was for an uncertain duration.16

(3) EASEMENT UNENFORCEABLE IF LOT LINE ADJUSTMENT. An exclusive easement may be held unenforceable if found to constitute an illegal lot line adjustment.

(a) LOT LINE ADJUSTMENT. A lot line adjustment is where land is taken from one parcel and added to an adjoining parcel and no additional number of parcels is created. If a lot line is adjusted between four or fewer existing adjoining parcels, such an adjustment is expressly exempt from conditions imposed under the Map Act as long as approval of the appropriate local agency is obtained.

(b) APPLICABILITY TO EXCLUSIVE EASEMENTS. If the exclusive use is not properly restricted in scope in the language of the easement, a court may find may that fee ownership has transferred between the properties and a lot line adjustment has occurred. The easement would be held unenforceable because approval for the lot line adjustment was not obtained from the appropriate local agency.

(c) PRACTICAL DRAFTING CONSIDERATION. Any language creating an exclusive easement must be carefully drafted to restrict the rights of the grantee in the easement and/or to reserve rights to the grantor.

(i) In drafting language concerning a fence surrounding the easement, be sure to include access by the grantor, such as a gate, to ensure a court does not deem such exclusive easement to be a transfer of fee ownership.

G. BOUNDARY LINE DISPUTES

(1) INTRODUCTION. Boundary line disputes typically arise when a landowner erects a fence or a wall, constructs a building or stairway, and/or plants trees or a hedge near or on what he believes to be the boundary line between his property and another's, but is later proven by a survey to not be the property line described in the respective deeds.

(a) The remedies of the adjoining property's landowner might include a quiet title action, declaratory relief, injunctive relief, breach of contract, negligence, an order for possession or ejectment, trespass and/or nuisance.

(b) The defenses of an encroaching landowner might include laches, statute of limitations, comparative fault, fraud, estoppel and/or consent. (c) The theories of recovery for an encroaching landowner in a crosscomplaint, or in a quiet title action of his own, might include the agreed boundary doctrine, adverse possession, prescriptive easement, equitable easement, easement by necessity or implication, and/or an easement by agreement.

(2) AGREED BOUNDARY DOCTRINE. In a boundary dispute, a landowner might attempt to show that an agreement had been reached between him and the adjoining property's landowner as to the boundary line's location. If successful, the agreed upon line becomes in legal effect the true line and defines the land described in each deed.

(a) ELEMENTS

(i) Uncertainty as to the true boundary line.
(ii) Express or implied agreement between the adjoining property landowners fixing the location of the line.
(iii) An acceptance and acquiescence in the boundary line for the period of the statute of limitations, or for a lesser period under such circumstances that substantial loss would be caused by a change of position.
(b) When the true location of a boundary line is uncertain or in doubt, the adjoining property landowners can establish a boundary by agreement, which may be implied from the surrounding facts and circumstances, including the parties' conduct.
(c) The agreed boundary doctrine will likely not apply where lots have been professionally surveyed and boundary markers have been set into the ground. In that scenario, it would be difficult to prove that the true location of the boundary line was uncertain or in doubt, or that there was an implied agreement between the parties that the location of the boundary was anywhere other than that established by the boundary markers.
(d) If one or both of the adjoining landowners know that the agreed line is not the true line, then there cannot be any uncertainty, and therefore, the agreed boundary doctrine will not apply. Similarly, the parties cannot by their mere agreement establish a boundary other than the true one, where they know that the line attempted to be fixed is not the true line. Such an attempt to transfer land without a conveyance would be a violation of the statute of frauds.
(e) Each of the elements must be proved.
(f) Once established, the agreed boundary line becomes the true line that is legally enforceable between the parties, regardless of the accuracy of the agreed location as compared to the boundary shown by a subsequent survey.
(g) The policy behind this doctrine is to provide stability to agreements that the parties themselves have undertaken in good faith in an effort to settle an existing controversy.
(h) Case Example. A landowner built a concrete bathhouse and wall on what he believed to be the property line between his two lots. He then sold one of the lots to his new neighbor. Later, the neighbor's contractor discovered that the wall and bathhouse were located 3-1/2 feet onto the neighbor's property. The landowner and neighbor discussed the matter and the neighbor took no action. Thereafter, the landowner further improved the wall to protect their swimming pool. The neighbor did not object nor pay for any of the cost of the improvements. The landowner continued to pay taxes on the wall. Two years after the discrepancy was discovered, the properties were reassessed. The landowner asked the neighbor if she wanted to pay taxes on the wall and the neighbor said "no." The relations deteriorated between the parties over the next year due to a dispute arising from the landowner's desire to cut a 1-inch hole in the wall for the purpose of running a gas line to the bathhouse heater. The neighbor threatened to tear down the wall after the neighbor learned that the landowner had retained an attorney to help resolve the dispute. The next day, without the landowner's permission, the neighbor demolished the wall and retained the materials. The landowner then brought an action to quiet title in the 3 1/2 foot wide strip of land and to recover damages for the destruction of the wall. Held, sufficient evidence was presented under the agreed boundary doctrine to uphold the trial court's judgment in favor of the landowner.17

(i) Case Example. A landowner purchased property with a row of pomegranate trees and a wire fence running the length of what he believed to be the southern boundary line of his property. The landowner controlled the strip of land running along the hedge by putting in a new fence and tearing down a barn that was built up against the hedge. His neighbor never objected. The landowner then had a survey performed and learned that the boundary line was located five feet north of the pomegranate hedge. He later discovered boundary stakes along the true line. The landowner brought an action to quiet title in the strip of land and an action to restrain the neighbor from cutting down the pomegranate trees. Held, the agreed boundary doctrine does not apply. The landowner was unable to show that his neighbor was ever uncertain about the location of the boundary line. The neighbor's acquiescence in allowing the landowner to exercise dominion over the strip of land might work against the neighbor in an adverse possession claim, but such acquiescence is without meaning in the agreed boundary context. An agreement fixing a common boundary line is only effective where the true boundary line is either uncertain in fact or is believed by the parties to be uncertain.18

(3) ADVERSE POSSESSION. In the boundary line dispute context, the most difficult element to prove in an adverse possession claim is the payment of property taxes on the disputed land. If there is an agreement between the parties regarding an uncertain boundary, then the payment of the taxes on the property described in the deed may be sufficient because the agreed upon line becomes the true line called for by the respective legal descriptions and defines the land described in each deed. However, in such an instance, the claimant likely established title under the agreed boundary doctrine. By contrast, if there is no agreement as to an uncertain boundary line, the payment of taxes in accordance with the deed description likely will not constitute payment of taxes for purposes of adverse possession.

(a) Case Example. A landowner constructed a fence and improvements on what he believed to be the northern boundary line of his property, but which was eighteen inches over the true boundary line. The predecessor-in-interest of the landowner's neighbor had conveyed the lot to the landowner and pointed out to him the four corners of the lot. Later, a survey was performed and the discrepancy between the fence line and the property line in the deed was discovered. A quiet title action was commenced. The neighbor argued that the landowner's claim of adverse possession failed because of the landowner's failure to pay taxes on the eighteen inch wide strip of land. Held, the agreed upon line attached itself to the deeds of the respective parties and became the true line so that the landowner, who was in possession of the overlapping property, holds title to such property. The court reasoned that a payment of taxes assessed is a payment on the land in the possession of the parties. Furthermore, there is a natural inference that the assessor put the value on the land and improvements based upon the parties' visible possession of the land, rather than by a survey.19

(4) PRESCRIPTIVE EASEMENT. A prescriptive easement claim might seem to have a better chance of succeeding in the boundary line dispute context than an adverse possession claim because a claimant does not need to prove he paid taxes on the disputed land. Exactly such a claim succeeded in Otay Water District v. Beckwith20 (summarized in subsection D.(3), above). (a) However, a line of cases indicates that – at least absent the special circumstances of Otay Water District – the courts will not award exclusive prescriptive easements, which would be the equivalent of fee ownership, without a claimant satisfying the elements of adverse possession.21

(i) Case Example. A landowner's predecessor-in-interest fenced in and used as a backyard a 1,600 square foot area that was located on his neighbor's land. The neighbor sought a declaration of his rights in the land and the landowner cross-complained to quiet title to a prescriptive easement over the land. The trial court granted the landowner an exclusive prescriptive easement over the fenced-in portion of the neighbor's land. Held, the grant of an exclusive prescriptive easement is the same as the grant of fee title by adverse possession and, therefore, the landowner must prove all of the elements of adverse possession in order to succeed, including the payment of property taxes. The court stated that the notion of an exclusive prescriptive easement has no application to a simple residential boundary dispute. The court distinguished Otav Water District by limiting it to its peculiar facts and the court's stated policy reasons of preventing contamination of the water supply and for other health and safety purposes. In Otav Water

District, the court reasoned that the exclusive easement did not amount to a fee simple because the landowner could take back his property if the reservoir owner deviated from the reservoir's historical use.22

(ii) Case Example. A landowner's predecessor-in-interest built a fence between his property and the adjacent lot. Later, a survey was performed and the landowner installed a new fence which was 10 feet down the slope from the original fence. The property between the two fences contained trees, shrubs and a sprinkler system maintained by the neighbor and connected to the neighbor's water supply. The trial court granted the neighbor a prescriptive easement, limiting the neighbor's use to landscaping and recreational purposes, and restricting his right to build improvements in the easement area other than fences and a retaining wall. The landowner was to retain air, light and privacy rights and was ordered to remove the new fence. Held, the prescriptive easement granted by the trial court effectively divests the landowner of nearly all rights that an owner customarily has in residential property. The landowner cannot access the property and the fence reduces the size and alters the shape of the landowner's lot, potentially creating problems with setback and building codes. The creation of such an easement would dispossess a nonconsenting landowner while circumventing accurate legal descriptions contained in the respective deeds.23

(iii) Case Example. A landowner built a woodshed and installed trees, planter boxes and an irrigation system on her property that partially encroached on the vacant lot next door. When the vacant lot was purchased, the new neighbor brought an action to quiet title to the disputed land and to enjoin the landowner's encroachment. The landowner sought to establish title by adverse possession or a prescriptive easement. The trial court rejected the landowner's adverse possession and prescriptive easement claims and directed the landowner to remove the woodshed and landscaping. Held, under Raab,24 Silacci 25 and Mehdizadeh,26 the landowner cannot be granted an easement in the woodshed, since it would effectively exclude the neighbor from any use of that portion of their property on which the woodshed stands. Similarly, the landscaping completely prohibits the neighbor from using that part of their land. The neighbor would be unable to install a driveway or use the land to run utility lines as they had planned to, nor would they be able to install a fence. An exclusive prescriptive easement cannot be claimed in a garden-variety residential encroachment. Thus, the appellate court affirmed.27 (b) These cases should be distinguished from Blackmore v. Powell,28 in which the exclusive easement was by express grant, not by prescription. (c) These cases should also be distinguished from the equitable easement line of cases (see subsection (5), below).

(5) EQUITABLE EASEMENTS. A court may refuse to grant plaintiff’s request for an injunction against an encroachment, and exercise its equity powers to affirmatively fashion an interest in the owner's land which will protect the defendant's use. (a) Also known as the "Relative Hardship Doctrine." (b) A court has the discretion to balance the hardships and deny removal of an encroachment if it was innocently made and does not irreparably injure the plaintiff, and where the cost of removal to the defendant (the encroacher) greatly exceeds the inconvenience to the plaintiff.

(c) TEST

(i) The defendant must be innocent, that is the encroachment must not be willful or seriously negligent.
(ii) Unless the rights of the public would be harmed, the court should grant the injunction if the plaintiff will suffer "irreparable injury," regardless of the injury to the defendant.
(iii) The hardship to the defendant must be greatly disproportionate to the hardship caused plaintiff by the continuance of the encroachment. This element must clearly appear in the evidence and be proven by the defendant.
(d) The court must first identify the competing equities for each party. Then, it must balance the relative hardships to either party by granting or denying the injunction.

(e) Case Example. For over twenty years, two neighbors assumed a chain link fence separating their properties marked their property line. One landowner built waterfalls, a koi pond and stone deck, added a putting green and sand trap, and built an exceptionally strong wall. Meanwhile, the neighbor created a beautiful botanical garden with a wide variety of exotic plants and trees. Later, a survey revealed that a number of improvements that the landowner had installed encroached on the neighbor's property, including a small portion of the sand trap, a portion of the wall, extensive underground water and electrical lines, and several motors that ran the waterfalls and the swimming pool recirculation. The neighbor sued. The trial court applied the relative hardship doctrine and ruled in favor of the landowner. Held, the appellate court affirmed the trial court's balancing of the equities in favor of the landowner. The cost and inconvenience in removing the encroachments would cause substantial hardship, or irreparable injury, to the landowner. In contrast, the continuance of the encroachments would cause little true hardship to the neighbor. The equitable easement granted by the trial court properly limited the landowner's rights in duration and scope. The landowner would be unable to add to his encroachments, and his rights would terminate if he either moved from his residence or sold his property. Furthermore, the landowner was ordered to pay as damages an amount equal to the fair market value of the property encroached upon. The appellate court found that the holdings of Raab,29 Silacci30 and Mehdizadeh31 did not apply in this case. By prohibiting a prescriptive easement, those courts were concerned with protecting the adverse possession laws. The appellate court found no mention in those cases of a court's power in equity to create a protective interest in an encroacher.32

(f) PRESCRIPTIVE EASEMENTS vs. EQUITABLE EASEMENTS. In the relative hardship analysis, the encroaching party's intent is paramount: it must be innocent; it cannot be willful, deliberate or even seriously negligent. In contrast, an adverse possession or prescriptive easement claim requires intent to dispossess the owner of the disputed property, whether the encroacher is acting deliberately or negligently.

(g) The standard of review for an equitable easement case is abuse of discretion.

(6) MAINTENANCE OBLIGATIONS OF COTERMINOUS LANDOWNERS.

Adjoining property landowners have the equal obligation to maintain (a) the boundaries and monuments between them, and (b) the fences between them, unless one of them chooses to keep his land unfenced; in which case, if he later chooses to enclose his land, he must refund to the other owner a just proportion of the value, at that time, of any fence constructed by the latter.33

(a) The obligations of Civil Code Section 841 may be modified by agreement. For example, the agreement may allow a party to enter the land of the other to maintain or repair the improvements located on the boundary line.
(b) Both parties must act reasonably and not damage boundary trees to the detriment of the other.

(i) Trees whose trunks stand wholly on the land of one owner belong exclusively to that owner, even if their roots grow into the land of another.34
(ii) Trees whose trunks stand partly on the land of two or more coterminous landowners belong to them in common.35
(iii) The usual measure of damages for injury to a tree is the difference between the value of the real property before and after the injury. Alternatively, the damages could be measured as the cost of restoring the property to its pre-injury condition. (iv) The payment of treble damages may be available if one party wrongfully injured or removed trees on the property of another.36

(c) SPITE FENCE LAW. It is considered a private nuisance if a landowner maliciously erects or maintains a fence or structure in the nature of a fence exceeding 10 feet in height for the purpose of annoying his neighbor.37

(i) A structure in the nature of a fence can include a row of trees planted on or near the boundary line.

(ii) Case Example. A landowner planted a row of evergreen trees, including hybrid cypresses designed to serve as screening barriers and windbreaks, near the boundary line between his property and his neighbors' after he learned that his neighbor planned to build a two-story log home close to the property line. After completing their log-home, the neighbor filed suit against the landlord under several theories including the spite fence statute. The neighbor claimed that if the trees were allowed to grow unabated, they would eventually block their view of Mt. Shasta. The trial court ruled that trees are neither built nor constructed but rather they grow, and given that the trees in question were not pruned or trimmed but growing in their natural state, they could not be deemed a fence or structure in the nature of a fence. Held, a row of trees planted on or near the boundary line between adjoining properties can be a "fence or other structure in the nature of a fence." A structure, like a row of trees, is something arranged in a definite pattern of organization.

In reviewing the statute's purpose, the court found that a structure does not need to prevent intrusion to be a "fence or other structure in the nature of a fence," but rather a structure need only serve to separate or mark the boundary between adjoining landowners—in an annoying and unnecessarily high manner. For purposes of the "malice" element, the court ruled that a landowner's intent to annoy his neighbor must not be the sole purpose for building or maintaining the fence or other structure in the nature of a fence, but rather the "dominant" purpose.38

(7) ENCROACHMENT AGREEMENTS. To resolve or avoid a boundary line dispute, the parties can enter into an encroachment agreement, which would allow one party to use a portion of the other's property, whether it be for access purposes or to permit the encroachment of improvements.

(a) An encroachment agreement may be in the form of an easement, a license, a covenant, a party wall agreement, or any combination of such forms.

(b) EXAMPLES (i) Access agreement for pedestrian and vehicle ingress and egress; parking of vehicles; maintenance of vegetation or structures; grading, installation, maintenance and landscaping of a slope; and/or construction, maintenance, use and repair of utility lines, or the spreading field for a septic tank system.

(ii) Agreement for the encroachment of a driveway, deck, stairway, building or other structure onto another's property.

1 City of Pasadena v. California-Michigan Land & Water Co., 17 Cal.2d 576, 577-579, 581-583, 110 P.2d 983 (1941).
2 Id., at 578.
3 Id.
4 Keeler v. Haky, 160 Cal.App.2d 471, 473-475, 325 P.2d 648 (2d Dist. 1958).
5 City of Pasadena, 17 Cal.2d at 576, 579, 582-583.
6 Blackmore v. Powell, 150 Cal.App.4th 1593, 59 Cal.Rptr.3d 527, 530-533 (2d Dist. 2007)
7 Otay Water District v. Beckwith, 1 Cal.App.4th 1041,1048, 3 Cal.Rptr.2d 223 (4th Dist. 1991).
8 Gray v. McCormick, 167 Cal.App.4th 1019, 84 Cal.Rptr.3d 777 (4th Dist. 2008).
9 City of Los Angeles v. Ingersoll-Rand Co., 57 Cal.App.3d 889, 891-892, 894, 129 Cal.Rptr. 485 (2d Dist. 1976).
10 Gov. Code §§ 66410 et. seq.
11 Pratt v. Adams, 229 Cal.App.2d 602, 606,40 Cal.Rptr. 505 (1st Dist. 1964)
12 Gov. Code § 66424.
13 142 Cal.App.3d 964, 191 Cal.Rptr. 415 (1983)
14 17 Ops.Cal.Atty.Gen. 79, 80-82 (1951); 38 Ops.Cal.Atty.Gen. 125,126-128 (1961); 39 Ops.Cal.Atty.Gen. 82, 82-85 (1962); 57 Ops.Cal.Atty.Gen. 556,556-560 (1974).
15 Blackmore, 150 Cal.App.4th at 530, 534-536
16 Robinson v. City of Alameda, 194 Cal.App.3d 1286, 1287-1288, 239 Cal.Rptr. 926 (1st Dist. 1987).
17 French v. Brinkman, 60 Cal.2d 547, 35 Cal.Rptr. 289 (1963)
18 Clapp v. Churchill, 164 Cal. 741,130 P. 1061 (1913)
19 Price v. Reyes, 161 Cal. 484,489, 119 P. 893 (1911)
20 1 Cal.App.4th 1041,3 Cal.Rptr.2d 223 (4th Dist. 1991).
21 Raab v. Casper, 51 Cal.App.3d 866,124 Cal.Rptr. 590 (3d Dist. 1975); Silacci v. Abramson, 45 Cal.App.4th 558, 53 Cal.Rptr.2d 37 (6th Dist. 1996); Mehdizadeh v. Mincer, 46 Cal.App.4th 1296, 54 Cal.Rptr.2d 284 (2d Dist. 1996); Harrison v. Welch, 116 Cal.App.4th 1084,11 Cal.Rptr.3d 92 (3d Dist. 2004).
22 Silacci v. Abramson, 45 Cal.App.4th 558, 53 Cal.Rptr.2d 37 (6th Dist. 1996).
23 Mehdizadeh v. Mincer, 46 Cal.App.4th 1296, 54 Cal.Rptr.2d 284 (2d Dist. 1996).
24 51 Cal.App.3d 866,124 Cal.Rptr. 590 (3d Dist. 1975).
25 45 Cal.App.4th 558, 53 Cal.Rptr.2d 37 (6th Dist. 1996).
26 46 Cal.App.4th 1296,54 Cal.Rptr.2d 284 (2d Dist. 1996).
27 Harrison v. Welch, 116 Cal.App.4th 1084, 11 Cal.Rptr.3d 92 (3d Dist. 2004).
28 150 Cal.App.4th 1593,59 Cal.Rptr.3d 527 (2d Dist. 2007)
29 51 Cal.App.3d 866,124 Cal.Rptr. 590 (3d Dist. 1975).
30 45 Cal.App.4th 558, 53 Cal.Rptr.2d 37 (6th Dist. 1996).
31 46 Cal.App.4th 1296, 54 Cal.Rptr.2d 284 (2d Dist. 1996).
32 Hirshfield v. Schwartz, 91 Cal.App.4th 749,110 Cal.Rptr.2d 861 (2d Dist. 2001).
33 Civil Code § 841.
34 Civil Code §833
35 Civil Code § 834.
36 Civil Code § 3346; CCP § 733.
37 Civil Code § 841.4. "Any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance. Any owner or occupant of adjoining property injured in either his comfort or the enjoyment of his estate by such nuisance may enforce the remedies against its continuance prescribed in [Civil Code § 3501 et seq.].
38 Wilson v. Handley, 97 Cal.App.4th 1301, 119 Cal.Rptr.2d 263 (3d Dist. 2002).