Opinion
RICHARDSON, J. We granted a hearing in this case to consider whether one who acquires a valid prescriptive easement over another’s property nonetheless may be required to compensate that person for either (1) the fair market value of the easement, or (2) the cost of removing or relocating any encroaching structures which interfere with use of the easement. We conclude that the statutes which define and validate prescriptive easements neither authorize nor contemplate an award to the underlying property owner of compensation for the reasonable value of the easement, and that under [569]the circumstances in this case it would be improper to charge the owner of the easement with any portion of the cost of removing encroachments.
Although we disagree with the Court of Appeal’s resolution of the foregoing issues, its opinion (per Compton, J.) correctly determined the other issues on appeal from the trial court’s judgment declaring that plaintiffs had acquired a prescriptive easement over defendant’s property. Accordingly, we adopt that portion of the opinion as follows:*
This is an appeal from an equitable decree which declared that plaintiffs had acquired an easement by prescription over the property of defendant. Defendant was ordered to dismantle and relocate a structure which had been erected on its own property but which interfered with plaintiffs’ use of the easement. [ ]
This action involves two contiguous parcels of real estate which front on [the west side of] Downey Road in the City of Vernon. Downey Road runs in a generally north-south direction. The two parcels are approximately 650 feet deep. Plaintiffs own the southerly parcel and defendant owns the northerly parcel. Both parcels were acquired in 1972 from a common owner.
At the time of acquisition both parcels were unimproved. Plaintiffs’ arrangement with the seller was that the seller would construct on the parcel to be purchased by plaintiffs a large commercial building erected to plaintiffs’ requirements. The building covered almost the entire parcel. A 40-foot wide paved driveway was laid out along the northern edge of plaintiffs’ property to provide access to loading docks on the northern side of plaintiffs’ building.
For its part defendant constructed on its property a substantially smaller building which ran only about one-half the depth of the northerly parcel and left vacant a strip of ground about 150 feet wide along the side of the parcel which abutted plaintiffs’ property.
From the beginning it was apparent that plaintiffs’ 40-foot wide driveway was inadequate since the large trucks which carried material to and from plaintiffs’ loading dock could not turn and position themselves at these docks without traveling onto the defendant’s property. The inability of these trucks to make such use of defendant’s property would destroy the commercial value of plaintiffs’ building.
[570]The court found that because of the fact that the possibility of creating an easement over defendant’s property was considered and rejected in the original negotiations between the seller, plaintiffs and defendant, no easement by implication was created. The trial court further found that the existence of the driveway on plaintiffs’ property militated against the creation of an easement by necessity.
From 1972 until 1979 trucks and other vehicles servicing plaintiffs’ facility used a portion of the vacant ground on defendant’s property to enter, turn, park and leave the area of plaintiffs’ loading dock. On at least two occasions during that period plaintiffs sought, unsuccessfully, to acquire an easement from defendant or to create mutual easements over plaintiffs’ and defendant’s property.
In 1979 defendant developed plans to construct a warehouse on the southerly portion of the property including that portion of the property being used by plaintiffs. A pad of earth was raised along the southerly portion of defendant’s property approximately five feet from the property line. This grading effectively blocked plaintiffs’ use of the area and plaintiffs commenced this action for injunctive and declaratory relief.
When the trial court denied plaintiffs’ request for a preliminary injunction to prevent further construction, defendant proceeded to erect a building on the contested area.
After a trial on the merits, the trial court found that plaintiffs had acquired a 25-foot wide prescriptive easement over and along the southern portion of defendant’s property for the full depth of the property. As noted defendant was ordered to remove that portion of the building which interfered with the described easement. Further the trial court gave defendant 90 days to accomplish the removal and purported to reserve jurisdiction to award damages for failure of defendant to comply with the mandatory injunction. This appeal ensued.
The elements necessary to establish a prescriptive easement are well settled. The party claiming such an easement must show use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years. (Gas & E. Co. v. Crockett L. & C. Co. (1924) 70 Cal.App. 283, 290 [233 P. 370]; Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 430 [114 Cal.Rptr. 380]; Code Civ. Proc., § 321.) Whether the elements of prescription are established is a question of fact for the trial court (O’Banion v. Borba (1948) 32 Cal.2d 145 [195 P.2d 10]), and the findings of the court will not be disturbed where there is substantial evidence to support them.
[571]Further, the existence of a prescriptive easement must be shown by a definite and certain line of travel for the statutory period. (Dooling v. Dabel (1947) 82 Cal.App.2d 417 [186 P.2d 183].) “The line of travel over a roadway which is claimed by prescription may not be a shifting course, but must be certain and definite. Slight deviations from the accustomed route will not defeat an easement, but substantial changes which break the continuity of the course of travel will destroy the claim to prescriptive rights .... [Citations.] [Manifestly the distance to which a roadway may be changed without destroying an easement will be determined somewhat by the character of the land over which it passes, together with the value, improvements, and purposes to which the land is adapted.” (Matthiessen v. Grand (1928) 92 Cal.App. 504, 510 [268 P.675].)
The trial court found that “the truckers using [the disputed parcel] did, in fact, follow a definite course and pattern, and while admittedly, no two truck drivers followed the exact course . . . and the traffic situation . . . varied from day to day, the deviation taken by various drivers over the seven-year period was only slight.”
The evidence revealed that truck drivers who were making deliveries to or receiving goods from plaintiffs used the parcel to approach the building, swing around and back into plaintiffs’ loading dock. Since the drivers varied in their abilities, the space required to complete this manuever was variable. No two drivers followed precisely the same course, but all used the parcel for the same purpose—to turn their vehicles so they could enter plaintiffs’ loading docks. There was substantial evidence to support the findings on this issue.
Defendant contends that there was no evidence supporting use of several hundred feet of the westerly portion of the parcel. From the trial transcript, it is difficult to discern exactly to which portion of the parcel specific bits of testimony pertain. [ ] [Our review of the record, however, discloses substantial evidence supporting the establishment of a prescriptive easement over the westerly portion at issue.]
Defendant contends that there was no substantial evidence that plaintiffs’ use of the property was hostile rather than permissive. Again, we find that this contention is without merit.
The issue as to which party has the burden of proving adverse or permissive use has been the subject of much debate. However, [ ] [we agree with the view, supported by numerous authorities,] that continuous use of an easement over a long period of time without the landowner’s interference is presumptive evidence of its existence and in the absence of evidence of [572]mere permissive use it will be sufficient to sustain a judgment. (MacDonald Properties, Inc. v. Bel-Air Country Club (1977) 72 Cal.App.3d 693, 702 and cases cited [140 Cal.Rptr. 367].)
Defendant relies on evidence that plaintiffs at one time attempted to purchase the disputed parcel from the seller and at various times attempted to negotiate for an express easement, [¶] Whether the use is hostile or is merely a matter of neighborly accommodation, however, is a question of fact to be determined in light of the surrounding circumstances and the relationship between the parties. (Taormino v. Denny (1970) 1 Cal.3d 679 [83 Cal.Rptr. 359, 463 P.2d 711]; Fobbs v. Smith (1962) 202 Cal.App.2d 209 [20 Cal.Rptr. 545].)
There was evidence adduced at trial that despite plaintiffs’ unsuccessful attempts to negotiate an express easement, their use of the property continued uninterrupted for approximately seven years. There was no evidence that defendant had ever expressly permitted plaintiffs to use the parcel for truck and vehicular traffic. In fact defendant’s adamant refusal to negotiate on the issue is evidence that no permission was given or contemplated.
Defendant’s next assignment of error is addressed to the trial court’s order to remove that part of the completed structure which interferes with plaintiffs’ easement. Defendant argues that a mandatory injunction may not issue to enjoin a completed act. However, there is extensive authority standing for the proposition that a court of equity may, in a proper case, issue a mandatory injunction for protection and preservation of an easement including, where appropriate, an order for removal of an obstruction already erected. (Clough v. W. H. Healy Co. (1921) 53 Cal.App. 397 [200 P. 378]; Pacific Gas & Elec. Co. v. Minnette (1953) 115 Cal.App.2d 698 [252 P.2d 642].) The determination as to whether such remedy is appropriate is within the sound discretion of the trial court. (Pacific Gas & Elec. Co. v. Minnette, supra.) A mandatory injunction may issue even if the cost of removal is great under certain circumstances [, especially if the encroaching structure was wilfully erected with knowledge of the claimed easement. (See Brown Derby Hollywood Corp. v. Hutton (1964) 61 Cal.2d 855, 859 [40 Cal.Rptr. 848, 395 P.2d 896]; Dolske v. Gormley (1962) 58 Cal.2d 513, 521 [25 Cal.Rptr. 270, 375 P.2d 174]; Raab v. Casper (1975) 51 Cal.App.3d 866, 873 [124 Cal.Rptr. 590]; D’Andrea v. Pringle (1966) 243 Cal.App.2d 689, 698 [52 Cal.Rptr. 606]; Pacific Gas & Elec. Co. v. Minnette, supra, 115 Cal.App.2d at p. 710; Christensen v. Tucker (1952) 114 Cal.App.2d 554, 563-564 [250 P.2d 660]; Morgan v. Veach (1943) 59 Cal.App.2d 682, at p. 689 [139 P.2d 976].)
[573]As the court in Morgan explained:] “An appropriate statement relative to defendants’ assertion that an injunction would work an inequitable burden is in 28 Am.Jur., section 56, page 253 as follows: ‘In view of the drastic character of mandatory injunctions, the rule under consideration as to balancing the relative conveniences of the parties applies with special force to a prayer for such mandatory relief. Where, therefore, by innocent mistake or oversight, buildings erected . . . slightly encroach . . . and the damage to the owner of the buildings by their removal would be greatly disproportionate to the injury ... the court may decline to order their removal.... But relief by way of a mandatory injunction will not be denied on the ground that the loss caused by it will be disproportionate to the good accomplished, where it appears that the defendant acted with a full knowledge of the complainant’s rights and with an understanding of the consequences which might ensue . . . .’
“In a note in 57 A.L.R., first column, page 343, it was said: ‘Wilfulness on the part of the defendant in proceeding with the violation of the restriction after warning by the complainant, especially after suit is brought, is a ground for equitable relief by mandatory injunction greatly stressed by the courts.’” (P. 689.)
In the case at bench, the structure to be removed was not begun until after the underlying action was filed. It was completed while the litigation was still pending. Defendant gambled on the outcome of the action and lost. The fact that its decision may have been reasonable in light of the denial of the preliminary injunction does not change the result.
[ ] [Defendant next challenges the trial coúrt’s] retention of jurisdiction to award damages in the event of defendant’s noncompliance with the mandatory injunction within 90 days of judgment. Defendant argues that this portion of the judgment interferes with its right to an automatic stay of the injunction on appeal. (Byington v. Superior Court (1939) 14 Cal.2d 68, 70 [92 P.2d 896].)
Code of Civil Procedure section 916, subdivision (a), provides: “Except as provided in Sections 917.1 through 917.9 and in Section 117.7, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Italics added.)
The order reserving jurisdiction was made by the court in apparent recognition of the fact that plaintiffs continued to suffer damages every day that [574]use of the easement was obstructed. If defendant’s contentions had been upheld on appeal, there would of course have been no basis for an award of damages. Hence the judgment was not enforceable during the pendency of the appeal.
On the other hand, a stay in the enforcement of the judgment during the pendency of the appeal does not a fortiori prevent the accrual of the damages which become part of the judgment if and when the judgment becomes final and enforceable. [ ] [The trial court’s retention of jurisdiction for the possible awarding of damages thus was appropriate under the circumstances of this case.] (End of Court of Appeal opinion.)
We next consider whether defendant is entitled to any offsetting monetary relief from plaintiffs. Defendant contends that the trial court’s judgment is overly harsh because it both granted plaintiffs an easement over a 16,250-square-foot parcel of defendant’s property free of charge and also required defendant to incur the entire cost of relocating or reconstructing its building. Would application of equitable principles dictate that plaintiffs either pay to defendant the fair market value of the easement they acquired, or contribute a portion of the costs of relocating? We think not.
Initially, the statutory procedure for acquiring an easement by prescription quite clearly retains the traditional common law rule that such an easement may be obtained without incurring any liability to the underlying property owner. Civil Code section 1007, enacted in 1872, provides that “Occupancy for the period prescribed by the Code of Civil Procedure as sufficient to bar any action for the recovery of the property confers a title thereto, denominated a title by prescription, which is sufficient against all . . . .” (Italics added.) We have confirmed that if the requisite elements of a prescriptive use are shown, “Such use for the five-year statutory period of Code of Civil Procedure section 321 confers a title by prescription. ” (Taormino v. Denny, supra, 1 Cal.3d at p. 686, fns. omitted, italics added.)
Thus, plaintiffs herein have acquired a title by prescription which is “sufficient against all,” including defendant. That being so, there is no basis in law or equity for requiring them to compensate defendant for the fair market value of the easement so acquired. To exact such a charge would entirely defeat the legitimate policies underlying the doctrines of adverse possession and prescription “ ‘to reduce litigation and preserve the peace by protecting a possession that has been maintained for a statutorily deemed sufficient period of time.’” (Italics added, Gilardi v. Hallam (1981) 30 Cal.3d 317, 324 [178 Cal.Rptr. 624, 636 P.2d 588], quoting from an earlier case; see also Rest., Property, intro, note at pp. 2922-2923; 3 Powell, The Law of Real Property (1981 ed.) ¶ 413, pp. 34-103—34-104.) As described [575]by Professor Powell, “Historically, prescription has had the theoretical basis of a lost grant. Its continuance has been justified because of its functional utility in helping to cause prompt termination of controversies before the possible loss of evidence and in stabilizing long continued property uses.” (Ibid., fn. omitted, italics added.) If the doctrine of prescription is truly aimed at “protecting” and “stabilizing” a long and continuous use or possession as against the claims of an alleged “owner” of the property, then the latter’s claim for damages or fair compensation for an alleged “taking” must be rejected.
The Court of Appeal recently described the rationale underlying the related adverse possession doctrine as follows: “[I]ts underlying philosophy is basically that land use has historically been favored over disuse, and that therefore he who uses land is preferred in the law to he who does not, even though the latter is the rightful owner. [Fn. omitted.] Hence our laws of real property have sanctioned certain types of otherwise unlawful taking of land belonging to someone else, while, at the same time, our laws with respect to other types of property have generally taken a contrary course. This is now largely justified on the theory that the intent is not to reward the taker or punish the person dispossessed, but to reduce litigation and preserve the peace by protecting a possession that has been maintained for a statutorily deemed sufficient period of time . . . . [¶] Quite naturally, however, dispossessing a person of his property is not easy under this theory, and it may even be asked whether the concept of adverse possession is as viable as it once was, or whether the concept always squares with modern ideals in a sophisticated, congested, peaceful society . . . . [¶] Yet this method of obtaining land remains on the books, and if a party proves all five of the [requisite] elements [citation], he can claim title to another’s land . . . .” (Finley v. Yuba County Water Dist. (1979) 99 Cal.App.3d 691, 696-697 [160 Cal.Rptr. 423], italics added.)
Similarly, the system of acquiring an interest in land by prescription “remains on the books,” and any decision to alter that system by requiring the payment of compensation clearly would be a matter for the Legislature. Defendant cites no authorities indicating that the present system is unconstitutional in any respect.
Assuming that an award of compensation for the value of the easement is unavailable, may the courts nonetheless order the easement owner to contribute all or part of the cost of relocating or reconstructing an encroaching building? It is at least arguable that a court of equity could order, in an appropriate case, that the plaintiff contribute a portion of the cost of relocating an innocent encroachment, as a condition to an award of injunctive relief. As previously noted, it is well established that a court has dis[576]cretion 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 would greatly exceed the inconvenience to the plaintiff by its continuance. (See Brown Derby Hollywood Corp. v. Hatton, supra, 61 Cal.2d at p. 858; Dolske v. Gormley, supra, 58 Cal.2d at pp. 520-521; Raab v. Casper, supra, 51 Cal.App.2d at p. 872; Donnell v. Bisso Brothers (1970) 10 Cal.App.3d 38, 45 [88 Cal.Rptr. 645].) If, as the foregoing cases establish, an outright denial of injunctive relief would be sustained under those circumstances, then no compelling reason exists for depriving the trial court of the lesser power of granting the injunction on condition that the plaintiff pay a reasonable portion of the cost of relocation. (See Collester v. Oftedahl (1941) 48 Cal.App.2d 756, 760-761 [120 P.2d 710] [injunctive relief conditioned upon payment of costs]; cf. Farmers Ins. Exch. v. Ruiz (1967) 250 Cal.App.2d 741, 747-748 [59 Cal.Rptr. 13]; 2 Witkin, Cal. Procedure (2d ed. 1970) Provisional Remedies, § 82, at p. 1520; 2 Pomeroy’s Equity Jurisprudence (5th ed. 1941) § 385 et seq. [“He who seeks equity must do equity”].)
In the present case, however, it is apparent that it would be inequitable to charge plaintiffs, who lawfully perfected an easement by prescription, for the cost of removing an encroaching structure erected by defendant with prior notice of plaintiffs’ claim. As previously noted, defendant’s building was erected after plaintiffs’ suit was filed and remained pending. Under similar circumstances, the courts have deemed an encroachment to be wilful and have ordered its removal despite a disproportionate hardship to the defendant. Likewise, plaintiffs should not be required to contribute to the cost of relocating encroaching structures which were erected by defendant with full knowledge of plaintiffs’ claim.
The judgment is affirmed.
Mosk, J., Kaus, J., and Broussard, J., concurred.
Brackets together, in this manner [ ], are used to indicate deletions from the opinion of the Court of Appeal; brackets enclosing material (other than the editor’s parallel citations) are, unless otherwise indicated, used to denote insertions or additions by this court. (Estate of McDill (1975) 14 Cal.3d 831, 834 [122 Cal.Rptr. 754, 537 P.2d 874].)