*1 A. No. 31740. Mar. [L. 1984.] al., E.
ERNEST WARSAW et Plaintiffs and Respondents, CEILINGS, INC., CHICAGO METALLIC Defendant and Appellant. *5 Counsel Duncan, Jr.,
Gibson, Crutcher, Larry C. Boyd, Dunn & Richard G. and Appellant. for Defendant L. Celia and John J. Waller Christopher Smith and Respondent. and Lee S. for Plaintiff David S. Smith Opinion this case to consider whether
RICHARDSON, hearing We granted J. over another’s easement property one who a valid acquires prescriptive for either that person be to compensate nonetheless required or easement, cost of removing relocating of the fair market value of the with use easement. We interfere structures which any encroaching validate easements prescriptive define and conclude that the statutes own- underlying property to an award neither nor contemplate authorize easement, and that under value reasonable er of for the compensation the circumstances in it would be the owner of charge this case improper the easement with encroachments. of the cost of any portion removing we with Court resolution of the fore
Although disagree of Appeal’s issues, J.) determined the other going its opinion (per correctly Compton, issues on from the trial had declaring court’s appeal judgment plaintiffs easement over defendant’s acquired Accordingly, property. we adopt as follows:* opinion
This is an from an decree which declared that appeal plaintiffs equitable had acquired over the of defendant. by prescription property Defendant was ordered to dismantle and which had relocate a structure been erected on its own but which interfered with use of the property plaintiffs’ easement. [ ]
This action involves two of real estate which front on contiguous parcels west side Downey Road of Vernon. Road runs City Downey [the of] in a generally north-south The direction. two are parcels approximately feet deep. Plaintiffs own the southerly and defendant owns the north- parcel erly Both common parcel. were from a parcels owner. acquired
At the time of both were acquisition parcels Plaintiffs’ ar- unimproved. with the rangement seller was that the seller would construct on the parcel to be purchased by large commercial erected to building plain- tiffs’ covered almost the building entire A requirements. parcel. 40-foot wide was laid out the northern driveway along paved edge plaintiffs’ provide access docks on the northern side of loading plain- tiffs’ building.
For its defendant part constructed on its a substantially smaller property which building ran about only one-half the of the northerly and depth parcel left vacant a of about 150 feet wide strip ground the side of the along parcel which abutted plaintiffs’ property.
From the it beginning was that apparent 40-foot wide plaintiffs’ driveway was inadequate since the large trucks which carried material to and from plaintiffs’ dock could loading not turn and themselves at these position docks without onto the defendant’s The of traveling these trucks property. inability to make such use of defendant’s would property destroy commercial value of plaintiffs’ building. ], together, * Brackets opinion this manner are used to indicate deletions from the of [ Appeal; (other citations)
the Court enclosing parallel of material than the brackets editor’s are, indicated, (Estate unless otherwise used to denote insertions or additions this court. 874].) McDill 14 Cal.3d 537 P.2d an creating The court found that because of the fact that the possibility in the rejected orig- over was considered and easement defendant’s property defendant, seller, and no easement inal between the negotiations plaintiffs that the existence The court further found created. trial implication the creation an of the on militated driveway property against plaintiffs’ easement by necessity. facil- servicing plaintiffs’
From 1972 until 1979 trucks and other vehicles enter, to property used a of the vacant on defendant’s ity portion ground turn, dock. On at least two and leave the area of park plaintiffs’ loading to unsuccessfully, acquire occasions during period plaintiffs sought, over and from or to create mutual easements plaintiffs’ defendant defendant’s property. on the
In construct a warehouse south- 1979 defendant developed plans being erly property portion property including portion southerly portion used A of earth was raised by plaintiffs. along pad line. This defendant’s five feet from the property property approximately com- of the area and plaintiffs blocked use grading effectively plaintiffs’ menced this action for and relief. declaratory injunctive injunction
When the trial court for a preliminary denied plaintiffs’ request construction, to erect a further defendant proceeded building prevent the contested area. merits, found that had acquired
After trial on the trial court and the southern along portion easement over a 25-foot wide prescriptive As noted defend- of defendant’s for the full depth property. interfered with building ant was ordered to remove that defendant 90 days Further the trial court gave described easement. to award dam- jurisdiction the removal and to reserve accomplish purported injunction. This mandatory for failure of defendant to with ages comply ensued. appeal easement are well
The elements to establish necessary must show use of the property such an easement settled. party claiming notorious, adverse for an uninter which has been continuous open, *7 (1924) v. Crockett L. & C. Co. (Gas of & E. Co. five rupted period years. 370]; (1974) Zimmer 39 Dykstra v. 70 290 P. Cal.App. [233 Proc., 380]; 321.) Code Civ. 430 Cal.App.3d § [114 established is a of fact question are Whether the elements of prescription 10]), 32 145 (1948) Cal.2d P.2d (O’Banion for the trial court v. Borba [195 where there is substantial not be disturbed and the of the court will findings them. evidence to support
571 Further, by the of a easement must be shown existence prescriptive of v. (Dooling definite and certain line travel for the statutory period. 82 “The 183].) Dabel line of travel P.2d Cal.App.2d [186 roadway over a which not be a by shifting is claimed prescription course, from but must be certain and deviations the accus Slight definite. easement, tomed will route not defeat an but substantial which changes break the of course of will the claim continuity pre the travel to destroy .... to scriptive rights [Manifestly the distance which a road [Citations.] be be way may changed without easement will determined destroying the somewhat character of the land which it with together over passes, value, the improvements, and to which the land is purposes adapted.” (Matthiessen P.675].) Grand Cal.App.
The trial court found that “the truckers using disputed parcel] [the did, fact, follow a no definite course and and while admittedly, pattern, two truck drivers followed the exact course . . . and the traffic situation . . . varied day from to the deviation the day, taken various drivers over seven-year was period only slight.”
The evidence revealed that truck who were to making drivers deliveries from receiving goods used the the parcel building, approach around and swing back into dock. Since the plaintiffs’ loading drivers varied abilities, in their space required this manuever was variable. complete No two course, drivers followed the same used precisely but all the parcel for the same purpose—to turn their vehicles so enter they could plaintiffs’ loading docks. There was substantial evidence to support findings this issue.
Defendant contends that there was no evidence use of several supporting hundred feet westerly portion of the From the trial parcel. transcript, it is difficult to discern exactly which bits parcel specific however, testimony record, review pertain. discloses [ ] [Our substantial evidence supporting establishment of a
over the westerly portion at issue.]
Defendant that there no contends substantial evidence that plaintiffs’ use was hostile rather than we permissive. Again, find contention this is without merit.
The issue as to party has the burden of adverse or proving However, use has been permissive subject of much debate. agree [ ] [we view, with the authorities,] numerous supported by that continuous use an easement over a of time long period without landowner’s interference evidence of its existence presumptive the absence evidence
572 (MacDonald be to sustain a judgment. mere use it will sufficient permissive 693, 702 72 (1977) Cal.App.3d Club Country Inc. v. Bel-Air Properties, 367].) and cases cited Cal.Rptr. [140 at one time attempted
Defendant relies on evidence at various times from the seller and attempt to purchase disputed parcel easement, Whether the use is hostile ed to for an negotiate express [¶] accommodation, however, is a question or is a matter of merely neighborly and the to be determined in circumstances light surrounding fact (1970) 1 (Taormino v. Cal.3d 679 Denny between relationship parties. 359, 711]; (1962) 202 463 P.2d Fobbs v. Smith Cal.Rptr. Cal.App.2d [83 545].) 209 Cal.Rptr. [20
There at trial that unsuc plaintiffs’ was evidence adduced despite easement, cessful their use of attempts negotiate express no evi continued for seven There was years. uninterrupted approximately dence that defendant had ever to use permitted plaintiffs parcel expressly In adamant refusal to ne for truck and vehicular traffic. fact defendant’s on the that no was or contem given issue is evidence gotiate permission plated. to the trial court’s
Defendant’s next of error is addressed assignment which interferes with order to remove that structure part completed not mandatory injunction may easement. Defendant that a plaintiffs’ argues However, stand authority issue to act. there is extensive enjoin completed case, for in a issue a that a court of ing proposition equity may, proper of an easement includ for mandatory injunction protection preservation an obstruction already where an order for removal of ing, appropriate, 378]; (1921) P. erected. v. W. H. Co. 53 397 (Clough Healy Cal.App. [200 (1953) Gas & Elec. 115 Co. v. Minnette 698 P.2d Cal.App.2d [252 Pacific 642].) The determination as to whether such is within remedy appropriate Minnette, & Elec. Co. v. (Pacific the sound discretion of the trial court. Gas if the cost of removal is A issue even supra.) mandatory injunction may [, structure encroaching under certain if the great especially circumstances (See Brown erected with of the claimed easement. wilfully knowledge 855, (1964) Hutton 61 Cal.2d 859 Derby Hollywood Corp. Cal.Rptr. [40 848, 513, 896]; 521 395 P.2d Dolske v. 58 Cal.2d Gormley [25 866, 174]; (1975) 51 375 P.2d Raab v. Casper Cal.App.3d Cal.Rptr. 590]; (1966) 243 873 D’Andrea v. Cal.Rptr. Pringle Cal.App.2d [124 Minnette, 606]; 115 supra, Gas & Elec. Co. v. [52 Pacific 710; (1952) 114 Cal.App.2d at Christensen v. Tucker Cal.App.2d p. at 660]; Cal.App.2d 563-564 v. Veach Morgan P.2d [250 976].) P.2d p.
573 As the court in Morgan “An statement explained:] relative to appropriate defendants’ assertion that would injunction work an burden inequitable Am.Jur., in 28 section 253 as follows: ‘In view of page the drastic character of mandatory injunctions, the rule under consideration as to bal- the relative ancing conveniences of the with force to parties applies special Where, therefore, for such prayer mandatory relief. innocent mistake by or oversight, erected . . . buildings encroach . . . and the slightly damage to the owner of the their removal be buildings by would greatly dispropor- tionate to the injury ... the court decline to order their removal....
But relief by of a way mandatory injunction will not be on the denied ground that the loss caused it will by be to the disproportionate good accomplished, where it that the appears defendant acted with full of the com- knowledge plainant’s rights with an of the understanding consequences might ensue . . . .’
“In a note in A.L.R., column, first it was said: page ‘Wilfulness on the of the part in defendant with the violation of the restric- proceeding tion after warning by after suit is complainant, especially is a brought, for ground equitable relief by mandatory injunction greatly stressed by (P. 689.) courts.’”
In the bench, case at the structure to be removed was not until begun after the action underlying was It filed. was while the completed litigation was still pending. Defendant on gambled the outcome of the action and lost. The fact that its decision may have been in reasonable light denial of the preliminary injunction does not the result. change next
[ ] [Defendant the trial challenges retention of juris coúrt’s] diction to award damages the event of defendant’s with noncompliance the mandatory injunction within 90 days Defendant judgment. argues that this the judgment interferes with its to an right automatic stay the injunction on appeal. (Byington Superior Court 14 Cal.2d 896].) P.2d
Code of Civil Procedure section (a), subdivision provides: “Except as provided 117.7, Sections 917.1 917.9 and in Section through the per- fecting an appeal stays the trial court proceedings upon judgment or order appealed from or the matters embraced upon therein or affected thereby, order, including or but judgment the trial court enforcement of may proceed other upon any matter embraced in the action and not affected judgment (Italics added.) order.”
The order reserving jurisdiction was made the court in rec- apparent ognition fact that continued to suffer every day that damages been had If defendant’s contentions obstructed.
use for been no basis an award there have would course appeal, upheld *10 the during pendency of the was not enforceable damages. Hence judgment appeal. of the hand, of the judgment during a in the the
On the other enforcement stay of the the damages not a fortiori accrual pendency does appeal prevent final the if when the becomes judgment which become and judgment part the jurisdiction for pos- and enforceable. trial court’s retention [ ] [The the circumstances of under damages sible thus awarding appropriate (End of Court opinion.) this of Appeal case.] any offsetting We is entitled to next whether defendant consider the trial court’s relief from Defendant contends that monetary plaintiffs. an over is it both easement plaintiffs harsh because judgment overly granted charge free of and also a of defendant’s 16,250-square-foot parcel property or reconstructing defendant to incur the entire cost of relocating required dictate Would building. application equitable principles plaintiffs its they acquired, either defendant fair market value of easement pay think not. contribute costs of We relocating? a by for an easement acquiring pre Initially, statutory procedure rule that the traditional common law such quite clearly retains scription to the any liability underlying be obtained without incurring 1872, provides Civil Code enacted in owner. section property as Code of Civil Procedure for the “Occupancy period prescribed by a title sufficient bar action for the any recovery property confers thereto, all which against denominated a title is by prescription, sufficient (Italics if elements added.) . .” have confirmed that the requisite . . We shown, statutory period “Such for the five-year a use are use ” a by prescription. of Code of Civil 321 title Procedure section confers omitted, added.) (Taormino fns. italics supra, 1 Cal.3d at Denny, p. Thus, have a title prescription herein acquired so, all,” is no That there being “sufficient defendant. including against for the defendant compensate basis law or for them to equity requiring a would To exact such charge fair market value of the easement so acquired. adverse the doctrines of underlying defeat the entirely legitimate policies “ and preserve peace and ‘to reduce litigation possession prescription deemed statutorily that has been maintained for protecting possession added, (1981) 30 (Italics v. Hallam of time.’” Gilardi period sufficient 588], from an earlier Cal.3d 636 P.2d quoting intro, Powell, 2922-2923; case; Rest., also note at pp. see Property, 34-103—34-104.) (1981 ed.) 413, As described of Real Law Property pp. ¶ Powell, the theoretical ba by Professor has had “Historically, prescription sis of a lost Its of its functional grant. continuance has been because justified to cause of controversies before the utility helping termination prompt loss of evidence continued uses.” possible and stabilizing long (Ibid., omitted, added.) fn. If is truly italics the doctrine of prescription aimed at and continuous use or “protecting” “stabilizing” long pos session as then against claims of an “owner” of the alleged property, the latter’s claim for or fair for an damages “taking” compensation alleged must be rejected.
The Court of described the the re Appeal recently underlying rationale *11 lated adverse possession doctrine as follows: underlying philosophy “[I]ts is disuse, that land basically use has been favored over and historically therefore he not, who uses land is in the law to he who does even preferred the though latter is the owner. Hence our rightful laws of [Fn. omitted.] real have sanctioned property certain of types otherwise unlawful of taking land else, while, belonging time, someone the at same our laws with to other respect of types have taken a property generally contrary course. This is now on largely justified the that the intent not theory is to reward the taker or the punish but reduce person dispossessed, and litigation the preserve by peace protecting that has been maintained possession for a statutorily deemed sufficient Quite of time . . period . . naturally, [¶] however, dispossessing of his person is not under this the easy and it ory, even may be asked whether the of adverse concept possession was, as viable as it once or whether the with concept always modern squares ideals in a sophisticated, congested, . . . . Yetthis meth peaceful society [¶] books, od obtaining land remains on the and if a all five of party proves of the [requisite] [citation], elements he can claim title to another’s land . . . .” (Finley v. Yuba County 691, Water Dist. 99 Cal.App.3d 696- 697 423], Cal.Rptr. added.) italics [160 the
Similarly, system an acquiring interest land “re- prescription books,” mains the and decision any to alter that system by requiring payment compensation would be clearly a matter for the Legislature. Defendant cites no authorities that the indicating system is uncon- present stitutional in any respect. that an award
Assuming for the value of compensation the ease unavailable, ment is the courts nonetheless order the easement owner to contribute or all part cost of an en relocating reconstructing It croaching building? order, is at arguable least that a court of could equity case, an appropriate contribute plaintiff the cost of portion an relocating encroachment, innocent as a condition to an award of injunc tive noted, relief. As it previously is well established that a court has dis-
576 of an encroachment if it to balance the removal deny cretion hardships and where injure plaintiff, made and does not innocently irreparably inconvenience to the plaintiff of removal would exceed the greatly cost Hatton, (See v. Derby Hollywood Corp. supra, its continuance. Brown 858; 520-521; Dolske Gormley, supra, 61 at 58 Cal.2d at p. pp. Cal.2d 872; 51 at Donnell v. Bisso Brothers Casper, supra, Cal.App.2d p. Raab v. If, 645].) (1970) 10 as cases foregoing Cal.App.3d Cal.Rptr. [88 establish, would be sustained under denial of relief outright injunctive circumstances, exists for the trial depriving those then no reason compelling of the lesser on condition that injunction court power granting (See of relocation. Collester v. a reasonable of the cost plaintiff pay [injunctive 760-761 P.2d Cal.App.2d [120 710] Oftedahl costs]; relief conditioned cf. Farmers Ins. Exch. v. upon payment Ruiz Witkin, 13]; 2 (1967) 250 Cal. 747-748 Cal.App.2d 1520; Remedies, (2d 1970) at Procedure ed. Provisional p. § (5th 1941) 385 et who Pomeroy’s seq. ed. Equity Jurisprudence § [“He seeks must do equity equity”].) case, however, be in
In the it is that it would present apparent *12 easement by to who an equitable charge plaintiffs, lawfully perfected pre erected de by for the cost of structure removing encroaching scription, noted, defend fendant with notice of claim. As prior previously plaintiffs’ suit was filed and remained ant’s was erected building plaintiffs’ after circumstances, an encroach Under similar the courts have deemed pending. a ment to be wilful and have ordered its removal despite disproportionate Likewise, to the defendant. should not be required hardship plaintiffs structures which were erect contribute to the cost of relocating encroaching ed defendant with full of claim. by knowledge plaintiffs’
The is affirmed. judgment Kaus,
Mosk, J., J., Broussard, J., concurred. GRODIN, J., I cannot the Concurring. majority’s jus- accept attempted How, for the in tification current law of easements. prescriptive today’s by allowing urban is reduced or the is society, litigation peace preserved in what is rights concededly situated as are these persons acquire my of another a cent of is beyond comprehension. the land without payment in Justice I with the criticisms contained therefore agree entirely policy Reynoso’s dissenting opinion. however, arcane area of
I if is to come to this am persuaded, change the through rather than the law it should come the through Legislature 1007 which per- of Civil Code section courts. It is not alone the existence me, section, in suades for as observes that my dissenting colleague adopted 1872, the time within which a merely fixing right as early interpreted But, may be in modified by prescription Legislature acquired. of
harsh doctrine Civil Code application by adding easement prescriptive section of an owner to avoid permits property acquisition of Given that modifica- by simple expedient posting sign.1 tion, attention, and that I degree would leave the next move legislative to Sacramento. I therefore the trial judgment. court’s join affirming
Bird, J.,C. concurred. REYNOSO, dissent I respectfully majority from J. which denies for the opinion fair market value easement. compensation A. Fair Market Value
Plaintiffs court, called upon the trial power acting equity, declare and protect easement. The court Yet the agreed. prac- result, tical as indicated Court J.), (per Appeal opinion Compton, “A that: affirmance simple would result who judgment plaintiffs, are admittedly trespassers, practical possession a sixteen thou- acquiring sand two (16,250) hundred fifty square foot of defendant’s valuable parcel free of charge . . . .” result, majority argues not, that the unjust is ordained statute. *13 I disagree. My review of the statutes cited the me by convinces majority that they have not removed from the the courts traditional to invoke power the equitable doctrines deal with fairness. Those doctrines persuade me that should plaintiffs fair value pay market for the interest property acquired. Statutory
1. Scheme The law of easements and prescriptive their enforcement a enjoyed long at history common law before 1872. In year Civil Code section 1007 was enacted. It merely codified the general easement concept prescriptive 1 Civil Code provides: any section 1008 by persons persons, “No use no or matter how continued, land, any long ripen shall by prescription, ever into an easement if the owner property posts of such at each to property entrance the or at of not more 200 intervals than along boundary feet sign reading substantially ‘Right pass permission, as follows: to ” control, subject 1008, and of owner: Section Civil Code.’
578 look, therefore, law to common precepts found at common law.1 We must to resolve the issue at hand. law, of whether a
At common the declaration Defuniak, (2 remains so. considered an action at law.2 It existed was 55-56, 31, Defuniak.) (1956) hereinafter Handbook of Modern Equity pp. § considered, However, of the declared protection right generally 184; is, (1930) herein- (Walsh p. still an action equity. Equity § Walsh; Defuniak, 56.) after p. § The term “title nothing.
Mere citation to Civil Code section 1007 resolves
which a
acquires
for
describes the rights
person
by prescription,”
example,
at bench
more. The case
Nothing
easement.
upon establishing prescriptive
the court
with the conditions which
assumes
the real issue deals
acquisition;
Thus, in Taormino
declared easement.
may impose
judicially
protect
711], cited
1
463 P.2d
Denny
Cal.3d 679
[83
over
the prescriptive right
our court did no more than affirm
majority,
(1899) 125 Cal.
(See
Angeles
also Niles v.
Los
roadway.
City
private
10].) Not
190];
2. The Power Acting Equity Court cause of identified the nature of correctly plaintiff’s Court of Appeal “This is an from appeal action and the issue in when it wrote: appeal this an easement decree which declared that had equitable plaintiffs acquired added.) (Italics Neither the over the of defendant.” by prescription characterization. nor the with that parties majority disagree come, therefore, Whether the We to the of the court equity. power market value for the prescrip- trial court must order the fair pay Powell, (See codification. generally 1 Our1872 codification followed the New York California, York, (1981 ed.) 307.) recognized like Property p. New The Law Real the U *14 id., Indeed, 59, 186.) p. California applicability (Generally, see at ¶ common law. if not in conflict with constitutional already incorporated England, had the common law of Code, (See [formerly Pol. Civ. 22.2 statutory provisions, § as it existed in 1850. 135]; McMurray, Code, 4468]; (1917) Superior P. Martin v. Court 176 Cal. [168 § 445.) (1925) Seventy-five Jurisprudence Years 13 Cal. L.Rev. of California 10], description: “Pre we find this 2 InClarke v. Clarke 133 Cal. P. law, incorporeal hereditaments acquiring title to scription, at common was a mode by usage, grant evidenced enjoyment. origin It in a long-continued immemorial or had its loss, only supposed, and for this reason allowed on account of either actual or and was its by grant. presumption The things prescribed be for which could be created those could indulged.’’ is sometimes in the lands of another grant the of an easement the lands or over concluded, the breadth easement, depends live as the Court of Appeal the Let us briefly explore which the in equity enjoys. of discretion court of equity. concept exercised judicial power, lie in origins King’s extraordinary the
Equity’s “it that was Chancery, justice probable the administer whenever to through whenever, and also a fair trial in the Courts would be ordinary impeded, (5 Pomeroy’s Equity ... hindered. justice the administration was regular The Chancellor was hereinafter Jurisprudence Pomeroy.) 31 p. § to decide look and Conscience obliged only “Honesty, Equity, [ ]” (Id., it is a matter of that 40.) sepa p. Today, only degree conflicts. § decided reason and conscience rates the Chancellors who “whether early (Walsh, 53, 282) from the mod demanded intervention. ...” special p. § The re (Id.) ern and their modern grants judge relief. judges equitable relief; he in the states’ stead “modi mains the stands repositor special the of hard rules at where reason and conscience fying rigor and fast law (Ibid.) demand it.” The
What would be fair the of the case at bench? under circumstances because built commercial without problem began building plaintiff large the sufficient room for docks. leaving delivery loading trucks approach which had built 150-foot wide of unim- building defendant left a strip land. The was sim- driveway 40-foot wide had constructed proved plaintiffs Therefore, on to delivery insufficient for its the trucks went ply purposes. In defendant’s land. the the creation of an easement original negotiations defendant, seller, was but considered none was nego- plaintiffs Later, at Fi- tiated. offered to an easement least twice. plaintiffs purchase nally, when defendant a dirt on his land raised of land pad (apparently construction) for the the trucks from preparation prevented trespass- feet, ing more than five brought this action. not condition fair market
Traditionally imposed courts have that value be before a be declared and easement will paid protected. view, However, in have In at bench my the courts do such the case power. that should be power exercised. which the can ex-
The role court in is seen two equity disparate play First, we wherein one old and one new. look to the traditional case amples, the law of one of another. Where building upon owner trespasses order the recognizes normally in such a and would legal wrong trespass, bench), (as done in case at building removal encroaching be en- court damages paid by instead order equity money encroachment, as a party particularly condition croaching protecting Walsh, 284-85.) (See pp. where the encroachment was unintentional. § *15 Second, I cite a different which does not deal with quite property. example courts, The created several to their inherent have pursuant equitable powers, Proc., (Code 1021) to the which requires rule Civ. exceptions statutory § (See (1977) each Priest his or her own fees. Serrano v. party pay attorney 1303].) 34-47 Cal.3d 569 P.2d These examples in illustrate the not too notion that courts of search simply startling equity, fairness, (1) conditions before a decree will impose protecting rights issue, (2) (3) I cite statutory and extend grant monetary damages, rights. these to stress that no reason abides in the or modern only history, concept which would of the court that it practice so restrict equity power could not a that fair market value be the tres- impose paid by requirement who is a easement. granted prescriptive passer I turn Finally, to the fairness issue. ease- By permitting state, court, ment in a the case at bench the endorses acting through akin to action eminent domain. it is the private Practically,3 taking prop- it be from defendant and them to Can fair to erty rights giving plaintiff. reward a an innocent owner? and wrongdoer punish fair, It is to the for several majority says “yes.” according majority, (3) reasons and including reducing litigation, protecting possession, for use over disuse of land. None of these reasons is preference convincing. First, no was reduced. should not be the business of litigation Society an Such forcing owner of land to suit when a has occurred. bring trespass Second, increases of the easement has policy litigation. possession fact been are for the only easement. protected; plaintiffs required pay Third, use, modern for not the ad evidences a society preference planned hoc use of a It is that in the urban trespasser. setting questionable bench, case at such use by society. trespasser preferred Rather, I do not it is role rely my view of fairness. solely my personal chancellor, of justice as as it was with the judge, apply “conception the time.” accordance with the reason and conscience of prevailing (Walsh, 281.) (See also 5 Pomeroy, Equity Jurisprudence, p. § § 89; ., inherent is so constructed . . that it p. “[Equity] possesses capacity so as to abreast of each and expansion, succeeding generation age.”) keep court, The final decree of the trial contravenes approved by majority, basic notions of A today’s justice. fairness requirement the least our society fair market value for the land use them is pay given expects. newly trespasser 3 The fiction lost found and that therefore he or that a “title” is reality. bench
she has a title to all in the face of The facts in the case at sufficient as flies cannot accommodate that fiction.
B. Disposition should study the Legislature suggestion concurring opinion today’s to reflect The statutes need area of law bears underscoring.
this harsh consequences ameliorate the should at least realities. Certainly—they However, note that recent I to enforce. feels majority compelled a landowner only provide referred to the concurrence legislative changes remains the need There creation from the of a easement. relief prescriptive landowner subject relieve a for an avenue which the courts equitable burden. to a easement of an inequitable otherwise However, I trial court I would affirm the would remand judgment. be fix an of reasonable compensation for further amount proceedings be the fair would market to defendant. That by plaintiffs compensation paid damages, interest From compensation value acquired. if sustained should be any, subtracted. plaintiff