Wernet v. Pitney CA2/6

Filed 1/19/16 Wernet v. Pitney CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

CONNIE WERNET, as Trustee, etc., 2d Civil No. B260085 (Super. Ct. No. 1418276) Plaintiff and Appellant, (Santa Barbara County)

v.

GILBERT A. PITNEY et al.,

Defendants and Respondents.

Plaintiff sought a prescriptive easement or, in the alternative, an equitable easement over a neighboring property for recreational purposes and to maintain a visual buffer. The trial court found in favor of defendants and refused to impose an easement. The trial court found plaintiff's use of the disputed area was permissive and thus did not result in a prescriptive easement. Linthicum v. Butterfield (2009) 175 Cal.App.4th 259 contains a good example of circumstances in which an equitable easement should be imposed. This case contains a good example of circumstances in which an equitable easement should not be imposed. We affirm the judgment. FACTS Connie Wernet, as trustee of the Connie Wernet Trust (hereafter "Wernet"), owns a multiple-acre improved residential parcel in Montecito. Gilbert Pitney and Dayna

McKee (hereafter collectively "Pitney") own the neighboring multiple-acre residential parcel. Wernet acquired her parcel in 1999. The existing residence was built within five feet of Pitney's property line. A low wall runs on Wernet's parcel just inside the property line. Wernet's predecessor had landscaped a portion of Pitney's parcel running for 45 feet along the boundary line and extending between 25 and 53 feet onto Pitney's parcel. The landscaping extended not only over Pitney's parcel, but also onto land owned by the Montecito Water District. Wernet had been a real estate agent for 10 years at the time she purchased her property in 1999. She claims that at the time she purchased her parcel, she was unaware that the residence was only five feet from the boundary. She claims she believed her property extended over the landscaped portion of Pitney's parcel. She claims she learned of the true boundary line only in 2000 when Pitney's predecessor in interest, Bob Bree, had a survey conducted prior to the sale of the parcel to Pitney. While Pitney was in escrow with Bree for the purchase of his parcel, Bree presented Pitney with a written easement for landscaping and maintenance. Pitney refused to sign it. In June 2000, shortly after Pitney closed escrow on the purchase of his parcel, Wernet invited Pitney to her home to introduce herself. Wernet testified Pitney stated at the meeting, "I know why you want us over here; you want an easement but we will never give it to you and we don't want to hear about it again." Wernet presented Pitney with a draft easement. Pitney told her there was no need to sign the easement because she had his permission to maintain the trees. For the next 12 years, until Wernet filed the complaint, Wernet continued to maintain the landscape on a weekly basis without interference from Pitney After the meeting in 2000, Pitney and Wernet had very little contact. In 2012, Wernet and Pitney met to discuss a water line within the disputed area. Pitney