Berry v. Sbragia

Opinion

TAYLOR, P. J.

This is an appeal by Phillip and Gail Berry

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(Berrys), from a judgment denying relief on their complaint and quieting title on the cross-complaint of John Paul and Geraldine Sbragia (Sbragias), their neighbors, to a fence, on the theory of a prescriptive easement. We have concluded that the judgment must be reversed.

The basic facts are not in dispute. The Berrys and Sbragias own adjacent parcels of real property in Lafayette. When the Sbragias acquired their lot in 1964, the subdivider informed them that their rear property line approximated an existing wire fence; consistent with this belief, the subdivider constructed a drainage ditch and graded the Sbragia lot to the approximate location of the ditch and wire fence. In the summer of 1967, Sbragias replaced the wire fence with a 6-foot-high wooden fence and planted the 560-square foot area enclosed by it. Sbragias believed the wire fence was on the property line and put the

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wooden fence inside what they believed was their property because of the drainage ditches. They did not intend to claim any additional property by erecting the fence.

The Berrys acquired their property in 1973. In 1974, they discovered through a survey that the fence and plantings, in fact, were located on their parcel. The Berrys planned to subdivide and sell their parcel. The presence of the fence has frustrated and interfered with a sale. At all times, Berrys or their predecessors have paid taxes on the portion of their property enclosed by the Sbragias’ fence.

After unsuccessful attempts to settle the dispute, Berrys in 1975 filed the instant action seeking injunctive relief to compel removal of the fence, damages for trespass arid declaratory relief; Sbragias answered and cross-complained to quiet title to the prescriptive easement of the fence. Sbragias admitted that the fence encroached on the Berrys land and deprived the Berrys access to the land enclosed by the fence, except at pain of climbing the fence.

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The court found that since its installation, and for a period in excess of five years, the fence, trees and shrubs have been openly, notoriously, and continuously maintained under claim of right by Sbragias, which maintenance and claim have been hostile to the Berrys. Sbragias have not paid real property taxes on the property in dispute. Berrys are not entitled to any relief except a declaration of the rights and duties of the párties, namely, Sbragias have a prescriptive easement to maintain the fence, trees and shrubs in substantially the same location and condition as presently maintained. The court concluded that Sbragias had a prescriptive easement to the fence and over the fenced property, but that the Berrys retained the underlying fee, subject to a reasonable right of inspection at all reasonable times.