Filed 4/6/18; Certified for publication 5/1/18 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT

ERIK J. HANSEN et al.,
                                                                           F073106
         Plaintiffs, Cross-defendants and
         Respondents,                                             (Super. Ct. No. VCU255788)

                  v.
                                                                         OPINION
SANDRIDGE PARTNERS, L.P. et al.,

         Defendants, Cross-complainants and
         Appellants.



         APPEAL from a judgment of the Superior Court of Tulare County. Bret D.
Hillman, Judge.
         McCormick, Barstow, Sheppard, Wayte & Carruth and Scott M. Reddie for
Defendant, Cross-complainant and Appellant Sandridge Partners L.P.
         Cunningham & Treadwell, Cunningham, Treadwell & Bartelstone and David
Bartelstone for Defendant, Cross-complainant and Appellant Citibank, N.A.
         Gilmore Magness Leifer and David M. Gilmore for Plaintiffs, Cross-defendants
and Respondents.
                                                      -ooOoo-
       Respondent and cross-appellant Erik Hansen and several relatives (the “Hansens”)
own about 382 acres of farmland in Tulare County (APN 291-010-009; the “09 parcel”).
Appellant and cross-respondent Sandridge Partners, L.P., (Sandridge) owns an adjacent
parcel of about 250 acres (APN 291-010-005; the “05 parcel”).1 This case centers around
approximately 10 acres on the southwest part of Sandridge’s 05 parcel. The parties refer
to this roughly triangular-shaped area as the “Disputed Land.”
       Hansen Ranches, a partnership between Erik and several relatives, has farmed the
09 parcel for as long as Erik can remember. For 30 years, Erik participated in the
farming of the 09 parcel, and now he manages the day-to-day farming operations. When
Erik began managing farming operations, there was already an irrigation ditch on the
09 parcel. The irrigation ditch generally runs along the border between the 09 and 05
parcels.2
       Initially, the Hansens farmed mostly cotton, alfalfa, and wheat. The crops were
planted on the entire 09 parcel and the Disputed Land. While a cotton crop was planted,
there would be intermittent “activity” on the property for the entire year. However,
“there could be weeks, maybe even months where no activity is seen.” This absence of
activity could occur after “ground prep” was finished, or while the Hansens were
preparing to pre-irrigate, or while they were “waiting for rain or any of those kinds of
things.” However, the land would “have the appearance of being prepped for the


1      Citibank, N.A. (Citibank) is also an appellant and cross-respondent. Citibank’s only
apparent involvement is that it loaned $5,082,000 for Sandridge’s purchase of the 05 parcel,
secured with a deed of trust.
2       The Hansens’ brief notes the ditch crosses the Disputed Land. In support, the brief cites a
portion of Erik’s deposition testimony. But Erik’s testimony was that “all” of the ditch is on the
“Hansen side” of the property and “runs along” the boundary between the 09 and 05 parcels.
This testimony may have been imprecise, as it appears both parties acknowledge the ditch
crosses the Disputed Land.



                                                2.
planting.” Specifically, it would “look like either cotton beds were in place with
irrigation borders between checks and irrigation drainage ditch on the drainage side of the
field.”3 Farming cotton involved the use of tractors, cotton planters, cultivators,
“scouting,” and “lots of different operations.”
       Sometimes the Hansens would rotate alfalfa or wheat with the cotton. While
alfalfa was planted on the property, it would be visible to onlookers. Farming alfalfa
often involved the presence of equipment including swathers, bailers, tractors, road
graders, and border makers.
       The Hansens’ farming practices were “[m]ore or less consistent” over the years.
       In 2002, the Hansens planted pistachio trees on part of the 09 parcel, to the north
of the Disputed Land. In 2010, there was an internal discussion about planting pistachio
trees on the remainder of the 09 parcel. In 2011, the Hansen family ordered pistachios
trees for that purpose.
       In early to mid-2011, Erik told his father he had learned that the owner of the
neighboring 05 parcel, Valov4, was in talks to sell it to Sandridge. At that point, Erik’s
father “remembered that there was a lot line adjustment issue.” Erik’s father “explained
that there was a discrepancy in the line in what we have been farming” and that “we need
to talk to [the] Valovs and make sure we straighten out the line before they close.”5
Erik’s father did not explain why Hansen Ranches was farming on property they did not
own. Erik’s “assumption is that’s just the way it was done . . . for the whole time.”




3      This sentence likely contains a reporter’s transcription error.
4      According to deeds in the record, title was actually held in the name of several trusts, but
for convenience we will refer to the prior owners of the 05 parcel as “Valov” or “the Valovs.”
5     Prior to 2010, Erik did not know there was a dispute as to the ownership of the Disputed
Land. Erik believed the Disputed Land belonged to the Hansen family.


                                                3.
         Erik contacted Valov. Valov had a “vague recollection” of the lot line issue6 but
did not discuss specifics. Erik “asked him what stage of the game his deal is, and that we
need to straighten out any discrepancies in the lot line before they close.” Valov said he
thought they would be able to resolve the issue before closing. Valov and Erik made
arrangements to speak again later. However, Valov eventually stopped returning Erik’s
calls.
         At some point “prior to planting [the pistachio trees] and prior to putting a drip
system in” Erik spoke with Larry Richie, an employee of Sandridge. The “outcome” of
the conversation “was that we would take care of this [lot line issue] some way, if it
didn’t get handled prior to closing through Valovs.”
         In the spring of 2012, the Hansens took several steps to prepare 160 acres of
land—including the Disputed Land—for pistachio trees, including deep ripping the land
and installing a drip irrigation system.7 When the irrigation system was installed, Erik
knew from his father “that a lot line adjustment needed to happen” but still claims he still
did not know “the specifics” of the issue. Nonetheless, the Hansens planted the pistachio
trees in June 2012.8 Erik did not receive any complaints from any neighbors concerning
the installation of the irrigation system or the planting of the pistachio trees.
         Valov’s sale to Sandridge closed in December 2012.
         Erik finally spoke with Valov again after the sale closed. Erik said he wished they
could have fixed the lot line issue before the close of the sale. Valov apologized, said his

6        The parties’ briefs and Erik’s testimony refer to the situation as a “lot line issue.” Given
that approximately 10 acres were involved, “lot line issue” is a bit of a euphemism, but we will
use it to be consistent with the parties and testimony.
7      The Hansens also installed a filtration station “probably a month” before the June 2012
planting. Part of the filtration station was on the Disputed Land.
8       In appellate briefing, the Hansens indicate that the irrigation system was installed after
the trees were planted. But Erik testified that he believed the irrigation system was installed in
spring of 2012, and the trees were planted thereafter in June 2012.



                                                  4.
father was dying and “that he thought it might have created a problem for dealing with
his dad’s estate.”
       Sandridge, the Hansens, and their representatives negotiated to potentially resolve
the Disputed Land issue. Those negotiations were unsuccessful, and the present litigation
commenced.
       The Hansens sued to quiet title to a “prescriptive easement for their continued use
and occupation of the Subject Property.” Under the prescriptive easement sought,
Sandridge would have “no right to use or occupy any portion of the Subject Property.”
Sandridge cross-complained against the Hansens to quiet title and seek damages for
conversion and trespass.
       After a court trial, the superior court denied the Hansens’ request for a prescriptive
easement but instead granted the Hansens an “equitable interest . . . of limited scope and
duration . . . with the following conditions:”

               “1) Hanson [sic] pay the full fair market value of the unimproved
       land to Defendant based on a valuation as of the date of trial. The
       Hirshfield[9] court ordered payment of full fair market value even though
       the interest granted was of limited scope and duration.

                “2) Hanson [sic] may not add to the encroachment, though they may
       repair the irrigation and filtration system and replace trees that die in the
       first five years after the initial planting in June 2012[.]

             “3) The interest will end should the Hansons [sic] stop farming the
       Disputed Property for a period of one year or more, or sell the Disputed
       Property.

              “4) The interest will terminate after the Pistachio trees currently
       planted are no longer a commercially viable crop. No testimony was
       offered by the parties on this issue so the court cannot set an exact duration
       of the easement.”



9      Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749 (Hirshfield).



                                                 5.
                                       DISCUSSION
I.      The Hansens Are Not Entitled to an Equitable Easement
       Appellants challenge the court’s recognition of an equitable easement in favor of
the Hansens. We conclude that the Hansens’ encroachment on Sandridge’s land was
negligent as a matter of law, and reverse the recognition of an equitable easement.
       A. Law of Equitable Easements
       “For a trial court to exercise its discretion to . . . grant an equitable easement,
‘three factors must be present. First, the [encroacher] must be innocent. That is, his or
her encroachment must not be willful or negligent. The court should consider the parties’
conduct to determine who is responsible for the dispute. Second, unless the rights of the
public would be harmed, the court should [stop the encroachment] if the [burdened
landowner] “will suffer irreparable injury . . . regardless of the injury to [the
encroacher].” Third, the hardship to the [encroacher] from [ordering removal of the
encroachment] [“]must be greatly disproportionate to the hardship caused plaintiff by the
continuance of the encroachment and this fact must clearly appear in the evidence and
must be proved by the defendant.” ’ [Citation.] ‘Unless all three prerequisites are
established, a court lacks the discretion to grant an equitable easement.’ ” (Nellie Gail
Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 1003–1004 (Nellie Gail).)
       “ ‘Overarching the analysis is the principle that since the [encroacher] is the
trespasser, he or she is the wrongdoer; therefore, “doubtful cases should be decided in
favor of the plaintiff.” ’ [Citations.] Moreover, ‘courts approach the issuance of
equitable easements with “[a]n abundance of caution.” ’ ” (Nellie Gail,, supra, 4
Cal.App.5th at p. 1004.)
       B. Standard of Review
       “ ‘We defer to the trial court’s factual findings so long as they are supported by
substantial evidence, and determine whether, under those facts, the court abused its



                                               6.
discretion. If there is no evidence to support the court’s findings, then an abuse of
discretion has occurred.’ ” (Nellie Gail, supra, 4 Cal.App.5th at p. 1006.) While the
resolution of factual disputes is left to the trial court, appellate courts may determine
whether the elements of an equitable easement have been established by the facts as a
matter of law. (E.g., Shoen v. Zacarias (2015) 237 Cal.App.4th 16, 21 (Shoen).)
       C. Application
          1. The Hansens Negligently Encroached on the 05 Parcel When They
             Planted the Pistachio Trees and Installed the Irrigation System
       The first requisite for an equitable easement is that the trespasser’s encroachment
“ ‘must not be willful or negligent.’ ” (Nellie Gail, supra, 4 Cal.App.5th at p. 1003;
Shoen, supra, 237 Cal.App.4th at p. 19; Tashakori v. Lakis (2011) 196 Cal.App.4th 1003,
1009 (Tashakori).10) While all three elements of an equitable easement are necessary,
this one is the most important. (Hirshfield, supra, 91 Cal.App.4th at p. 769 [encroaching
party’s innocence is “paramount”].) “If the [encroaching] party is willful, deliberate, or
even negligent in his or her trespass, the court will enjoin the encroachment.” (Ibid.)
       Here, the trial court found the Hansens’ “conduct in planting trees or constructing
improvements was not an intentional or negligent encroachment.”11 As explained below,

10       Earlier cases stated this requirement differently: “ ‘1. Defendant must be innocent—the
encroachment must not be the result of defendant’s willful act, and perhaps not the result of
defendant’s negligence.’ ” (Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 265, italics
added (Linthicum), quoting Christensen v. Tucker (1952) 114 Cal.App.2d 554, 563
(Christensen).) More recent equitable easement cases have dropped the equivocal language
concerning negligent encroachments. (Nellie Gail, supra, 4 Cal.App.5th at p. 1003; Shoen,
supra, 237 Cal.App.4th at p. 19; Tashakori, supra, 196 Cal.App.4th at p. 1009.) We agree with
the latter approach, and reject the Hansens’ contentions that they may still be entitled to an
equitable easement if their encroachment was negligent.
11       At one point, the Hansens appear to argue that the relevant encroachment is the 30 years
of farming row or annual crops, rather than the 2012 planting/installation of the pistachio
trees/irrigation system. But with respect to the balancing of hardships, the Hansens rely on the
“disproportionate hardships” of having to remove the pistachio trees and reconfigure the
irrigation system. Thus, it appears the Hansens want to use the 30 years of row or annual crops
as the relevant encroachment for certain purposes but the pistachio trees/irrigation system as the


                                                7.
while there is evidence the Hansens’ encroachment was not intentional, the evidence
does not support the trial court’s conclusion that the encroachment was not negligent.
        In early or mid-2011, Erik’s father “explained that there was a discrepancy in the
line in what we have been farming.” As a result, Erik “knew that . . . a lot line
adjustment needed to happen,” though he did not know “the specifics” of the issue.
Nonetheless, the Hansens planted pistachio trees on 160 acres, including the Disputed
Land.
        Given that Erik knew there was a lot line issue at least by early/mid-2011, it
strains credulity that he still did not know the “specifics” of the lot issue by the time the
irrigation system was installed in the Spring of 2012. But, we must indulge every
inference in favor of the judgment. Under that standard, Erik’s claim he did not know the
“specifics” of the lot line issue in 2012 supports the trial court’s finding the Hansens did
not knowingly and intentionally plant the pistachio trees on Sandridge’s land.
        However, even accepting Erik’s version of events and the favorable inferences
arising therefrom, we conclude it was undoubtedly negligent to plant trees on the land


relevant encroachment for other purposes. This mix-and-match approach does not work. Only
the encroachment of the pistachio trees/irrigation system can conceivably satisfy the equitable
easement requirement that “the hardship to the [encroacher] from [ordering removal of the
encroachment] ‘must be greatly disproportionate to the hardship caused plaintiff by the
continuance of the encroachment.’ ” (Nellie Gail, supra, 4 Cal.App.5th at p. 1004.) Moreover,
the pistachio trees and irrigation system are the encroachments considered by the trial court for
purposes of determining whether an equitable easement should be recognized. Consequently, for
purposes of analyzing the equitable easement, we consider the installation of the irrigation
system and planting of pistachio trees to be the relevant encroachment.
        The Hansens also identify relocation of the irrigation ditch as a potential hardship. But if
this were the relevant encroachment, the Hansens would only be entitled to, at most, an easement
for the irrigation ditch, not the land on which the pistachio trees were planted. That is not the
property interest they sought in their complaint.
        Granted, 30 years of farming could conceivably be the basis for a prescriptive easement.
But the prescriptive easement sought here is improper for the reasons as explained in section II
of the Discussion, post.



                                                 8.
without first learning the location of a known, unspecified lot line issue. Indeed, if that
conduct does not constitute a negligent encroachment, it is hard to imagine what would.
While growers do not have a general duty to survey or otherwise confirm boundaries
before planting, it is negligent to plant permanent crops on a swath of land, knowing that
some unspecified part of that land is in need of a “lot line adjustment.” Moreover, a
contrary rule would encourage trespassers who are aware of an unspecified boundary
issue to quickly build or plant something that is difficult to remove, rather than act
responsibly and learn more about the issue. In equity, such willful ignorance should not
be condoned, and certainly not rewarded.
       The Hansens insist that “ ‘innocent’ does not mean literally at no fault
whatsoever.” We agree. And if the Hansens had no reason to doubt they owned all of
what they thought was the 09 parcel, it likely would not have been negligent to rely on
factors like the purported lack of objection from Valov—or visual cues like the irrigation
ditch. But by early to mid-2011, the Hansens did have reason to doubt their prior
assumptions were wrong. Nonetheless, they planted the pistachio trees in the area after
becoming aware that there was a lot line issue concerning the border between their parcel
and Valov’s.
       The Hansens insist that Erik did not know the lot line issue involved the Disputed
Land. That factor suggests the encroachment was not intentional, but it does not settle
the issue of negligence. To the contrary, the fact that Erik did not know where the lot line
adjustment was needed, is precisely why it was negligent to plant a permanent crop in the
area without determining where the correct lot line was located.
       In sum, the Hansens’ encroachment fails to satisfy the first element of an equitable
easement.12


12     Because the absence of a single prerequisite precludes an equitable easement, we do not
address the parties’ contentions as to the other prerequisites. (See Nellie Gail, supra, 4


                                              9.
           2. Sandridge Was Not Contributorily Negligent in Causing the
              Encroachment
       Some cases have suggested that an equitable easement may be permitted even
where the encroaching party was negligent if the landowner was also negligent. (See
Linthicum, supra, 175 Cal.App.4th at pp. 266–267; Hirshfield, supra, 91 Cal.App.4th at
pp. 769–770; Christensen, supra, 114 Cal.App.2d at pp. 562–565.) We need not decide
whether we agree with this principle because Sandridge was not negligent in any relevant
sense. The trial court observed that Sandridge and Citibank “fault Hansen for failing to
obtain a survey prior to commencing planting of their trees, but [Sandridge/Citibank]
have not explained why they did not obtain a survey before closing escrow with the
Valovs. [¶] Therefore, the Court is not going to fault the Hansens for failing to identify
the exact location of the encroachment while exonerating Sandridge and Citibank for the
same failure.” But the question is whether and to what extent the parties were negligent
in causing the encroachment. (See Christensen, at p. 564 [relevant negligence includes
the encroacher’s negligence in solely causing encroachment, and the landowner’s
negligence in contributing to it].) Here, the Hansens were negligent in encroaching on
the Disputed Land by planting pistachio trees without confirming they owned the land in
light of their knowledge that a lot line adjustment was needed. In contrast, Sandridge’s
“failure” to obtain a survey before the close of escrow has no causal relationship with the
encroachment. Sandridge did not even own the land when the Hansens initiated the
relevant encroachment and never acquiesced in the Hansens’ uncompensated use of the
Disputed Land. This is not a case where the landowner “observed” the construction of
the encroachment “and acquiesced therein.” (Id. at p. 558.) Because Sandridge was not
negligent in any relevant sense, the concept of contributory negligence discussed in cases
like Christensen and Hirshfield is not applicable.

Cal.App.5th at p. 1004 [“ ‘Unless all three prerequisites are established, a court lacks the
discretion to grant an equitable easement.’ ”].)



                                                10.
       Nor does Erik’s conversation with Sandridge’s employee, Ritchie, raise an
inference of negligence by Sandridge. A vague representation that the parties would,
together, “take care of this some way” in no way suggests that Sandridge was
preemptively acquiescing to the Hansens’ subsequent planting of pistachio trees and
installation of an irrigation system on Sandridge’s property. Moreover, the parties
stipulated that “[a]ny use of the Disputed Land by [the Hansens] was done without the
permission of Sandridge.” In sum, Sandridge’s conduct is not analogous to the
Christensen landowner, who watched as the encroachment was built “and acquiesced
therein.” (Christensen, supra, 114 Cal.App.2d at p. 558.)
II.    The Hansens Are Not Entitled to the Prescriptive Easement They Seek
       The Hansens cross-appeal with respect to the trial court’s refusal to recognize a
prescriptive easement. The trial court concluded that “the interest sought here isn’t a
prescriptive use culminating in an easement, but an adverse possession that seeks to
effectively create a change in title.” We agree with the trial court in this regard and reject
the Hansens’ challenge.
       Interests in land can take several forms, including “estates” and “easements.”
(Civ. Code, §§ 701, 801.) An estate is an ownership interest in land that is, or may
become, possessory. (4 Miller & Starr, Cal. Real Estate (4th ed. 2017) § 12:1.) In
contrast, an easement is not a type of ownership, but rather an “incorporeal interest in
land . . . ‘ “which confers a right upon the owner thereof to some profit, benefit,
dominion, or lawful use out of or over the estate of another.” ’ ” (Guerra v. Packard
(1965) 236 Cal.App.2d 272, 285, italics added; see Silacci v. Abramson (1996) 45
Cal.App.4th 558, 564 (Silacci) [easement not an ownership interest].) An easement is, by
definition, “less than the right of ownership.” (Mehdizadeh v. Mincer (1996) 46
Cal.App.4th 1296, 1306 (Mehdizadeh).) Examples of easements include a right-of-way
over another’s land or the right to pasture on another’s land. (Civ. Code, § 801.)



                                             11.
       Property interests like estates and easements can be acquired by (1) occupancy;
(2) accession; (3) transfer; (4) will; or (5) succession. (Civ. Code, § 1000.) When title is
acquired by occupancy, it is called title by “prescription.” (Civ. Code, § 1007.) The
process of acquiring an estate by prescription is called adverse possession. (See
Marriage v. Keener (1994) 26 Cal.App.4th 186, 192.) An easement acquired by
prescription, is called a prescriptive easement.
       “There is a difference between a prescriptive use of land culminating in an
easement (i.e., an incorporeal interest) and adverse possession which creates a change in
title or ownership (i.e., a corporeal interest); the former deals with the use of land, the
other with possession; although the elements of each are similar, the requirements of
proof are materially different.” (Raab v. Casper (1975) 51 Cal.App.3d 866, 876, italics
added (Raab).)
       “To establish the elements of a prescriptive easement, the claimant must prove use
of the property, for the statutory period of five years, which use has been (1) open and
notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under
claim of right. [Citations.] To establish adverse possession, the claimant must prove:
(1) possession under claim of right or color of title; (2) actual, open, and notorious
occupation of the premises constituting reasonable notice to the true owner; (3)
possession which is adverse and hostile to the true owner; (4) continuous possession for
at least five years; and (5) payment of all taxes assessed against the property during the
five-year period.” (Mehdizadeh, supra, 46 Cal.App.4th at p. 1305.)

       “In no case shall adverse possession be considered established under the provision
       of any section of this code, unless it shall be shown that the land has been
       occupied and claimed for the period of five years continuously, and the party or
       persons, their predecessors and grantors, have timely paid all state, county, or
       municipal taxes that have been levied and assessed upon the land for the period of
       five years during which the land has been occupied and claimed.” (Code. Civ.
       Proc., § 325, subd.(b), italics added.)



                                              12.
       Conversely, a “prescriptive easement does not require payment of taxes.”13
(Mehdizadeh, supra, 46 Cal.App.4th at p. 1305.)
       Because of the taxes element, it is more difficult to establish adverse possession
than a prescriptive easement. The reason for the difference in relative difficulty is that a
successful adverse possession claimant obtains ownership of the land (i.e., an estate),
while a successful prescriptive easement claimant merely obtains the right to use the land
in a particular way (i.e., an easement). (Mehdizadeh, supra, 46 Cal.App.4th at p. 1300.)
       Unsurprisingly, claimants have often tried to obtain the fruits of adverse
possession under the guise of a prescriptive easement to avoid having to satisfy the tax
element. (Kapner v. Meadowlark Ranch Assn (2004) 116 Cal.App.4th 1182, 1187.) That
is, they seek judgments “employing the nomenclature of easement but . . . creat[ing] the
practical equivalent of an estate.” (Raab, supra, 51 Cal.App.3d at p. 877.) Such
judgments “pervert[] the classical distinction in real property law between ownership and
use.” (Silacci, supra, 45 Cal.App.4th at p. 564.) The law prevents this sophistry with the
following rule: if the prescriptive interest sought by a claimant is so comprehensive as to
supply the equivalent of an estate, the claimant must establish the elements of adverse
possession, not those of a prescriptive easement. (Raab, at pp. 876–877.) In other words,
the law simply “does not allow parties who have possessed land to ignore the statutory
requirement for paying taxes by claiming a prescriptive easement.” (Kapner, at p. 1187.)
       To state the above rule is virtually to decide the Hansens’ cross-appeal. In their
complaint, the Hansens sought a “prescriptive easement” establishing their right to farm
the property “to the exclusion of Defendants and all other persons” leaving “Defendants
. . . no right to use or occupy any portion” of the Disputed Land (italics added). Though
the Hansens labeled it a “prescriptive easement,” the interest they sought would “divest

13     Except “in the rare instance the easement has been separately assessed.” (Mehdizadeh,
supra, 46 Cal.App.4th at p. 1305.)



                                             13.
[Sandridge] of nearly all the rights that owners customarily have” including access and
usage. (Mehdizadeh, supra, 46 Cal.App.4th at pp. 1305–1306; cf. Raab, supra, 51
Cal.App.3d at p. 876 [in determining whether a conveyance creates easement or estate,
courts look to “the extent to which conveyance limits uses available to the grantor[,] an
estate entitles the owner to exclusive occupation of a portion of the earth’s surface”].)
That is, Sandridge would not be able to use the Disputed Land for any “practical
purpose.” (Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1094 (Harrison).) Because
the interest sought by the Hansens was the practical equivalent of an estate, they were
required to meet the requirements of adverse possession, including payment of taxes.
(See Mehdizadeh, at pp. 1305–1308; Silacci, supra, 45 Cal.App.4th at p. 564 [“as a
practical matter,” easement completely prohibited true owner from using his land]; Raab,
at pp. 876–877.) There is no dispute that element was not satisfied. Because the
elements of adverse possession were not met, the Hansens cannot obtain the exclusive
prescriptive easement they seek.
       The Hansens counter that all easements involve “use of another’s property that
cannot be interfered with by the owner.” But that does not mean that all easements are
the practical equivalent of an estate. For example, consider an easement for a road across
the property of another. The Hansens observe that such easements necessarily prevent
the servient landowner from farming the property under the road, storing material in the
roadway, or building a structure on the roadway. But the servient landowner would still
be able to drive on the road.14 Such nonexclusive easements do not create the same
problem that arises when a purported easement prevents the servient tenement landowner
from using the land for any “practical purpose.” (Harrison, supra, 116 Cal.App.4th at
p. 1094.)

14     Unless the easement excluded the landowner from driving on the road, in which case it
would present the same type of concerns raised here.



                                             14.
       A. Otay Water Dist. v. Beckwith Does Not Alter Our Conclusion
       The Hansens contend otherwise, arguing the present case is controlled by Otay
Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041 (Otay).
       In Otay, Kuebler Ranch conveyed certain real property to a water district. Kuebler
Ranch inadvertently included in its grant to the water district three parcels it did not own.
The water district subsequently built a reservoir, part of which was on the adjacent
properties Kuebler Ranch had improperly purported to convey to the water district. The
water district operated the reservoir continuously, beginning in 1963.
       In 1972, Beckwith purchased 10 acres adjacent to the reservoir, which included
1.68 acres the water district thought it had acquired from Kuebler Ranch. The water
district discovered the problem and sued to quiet title to a prescriptive easement against
Beckwith and others in 1989.
       The Court of Appeal upheld the water district’s prescriptive easement. Beckwith
had argued that “since an exclusive easement is tantamount to a fee estate, the only
mechanism by which [the water district] could continue exclusive use would be to obtain
a fee title” through adverse possession. (Otay, supra, 1 Cal.App.4th at p. 1048.) The
Otay court acknowledged “that where an easement would create the practical equivalent
of an estate, the party must satisfy the elements of an adverse possession, rather than a
prescriptive easement.” (Ibid.) But the court rejected Beckwith’s premise that the water
district’s interest was equivalent to an estate, because the water district’s use was
restricted to “reservoir purposes.” (Ibid.) “Such a restricted use is not the same as a fee
interest.” (Ibid.)




                                             15.
       We decline to follow Otay.15 While the water district’s “easement” was restricted
to “reservoir purposes,” the interest was still the practical equivalent of an estate. The
water district got to use the land in the only way it wanted: as a reservoir. In contrast,
the owner of the land, Beckwith, could not use the land at all. As a result, the “easement”
in Otay was the practical equivalent of an estate and should only have been permitted
upon satisfaction of the elements of adverse possession.
               1. Other Cases Cited by the Hansens Are Inapposite
       The Hansens also cite to cases involving express easements. (E.g., Pasadena v.
California-Michigan Etc. Co. (1941) 17 Cal.2d 576 (Pasadena); Gray v. McCormick
(2008) 167 Cal.App.4th 1019, 1031; Blackmore v. Powell (2007) 150 Cal.App.4th 1593;
Los Angeles v. Igna (1962) 208 Cal.App.2d 338; Ajax Magnolia One Corp. v. So. Cal.
Edison Co. (1959) 167 Cal.App.2d 743.) But such cases are inapposite because express
easements do not raise the same concerns as prescriptive exclusive easements. Because
the statutory tax requirement applies to prescriptive estates but not prescriptive
easements, it is especially important to maintain the distinction between easements and
estates in the context of prescription. (See Code Civ. Proc., § 325, subd.(b).) That is, if
courts allowed claimants to obtain by prescription a functional estate without satisfying
the statutory requirements of adverse possession, then Code of Civil Procedure section
325, subdivision (b)’s tax requirement would be nullified. In contrast, that statute’s tax
requirement does not apply to express easements (e.g., easement by a written grant), so



15     Several appellate opinions have stopped just short of expressly disagreeing with Otay.
Instead, they “limit[]” Otay to situations involving public health or safety. (Mehdizadeh, supra,
46 Cal.App.4th at p. 1307; Silacci, supra, 45 Cal.App.4th at p. 564.)
        The Hansens object to limiting Otay to its facts, but at the same time insist that Silacci
and its progeny should be limited to “ ‘garden variety residential boundary’ disputes.” While the
land use at issue here (i.e., agriculture) does not precisely match Otay, Silacci or Mehdizadeh, we
do not find that fact dispositive in determining which cases are instructive.



                                               16.
permitting express exclusive easements does not create the same statutory nullification
issue that prescriptive exclusive easements do.
       The Hansens also cite to Hirshfield, supra, 91 Cal.App.4th 749, but that was an
equitable easement case, not a prescriptive easement case.16 (Id. at pp. 769–771.)
       Finally, the Hansens cite to cases involving prescriptive nonexclusive easements.
(Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564; MacDonald
Properties, Inc. v. Bel-Air Country Club (1977) 72 Cal.App.3d 693.) The Hansens argue
the easement in Warsaw was exclusive “[o]ther than the [landowner’s] right to also drive
on the . . . easement.” (Italics added.) But that exception is crucial, because an easement
is nonexclusive if the servient landowner shares in the benefit of the easement. (Black’s
Law Dict. (9th ed. 2009) p. 586, col. 1.)
              2. Conclusion
       In sum, an interest in land that is functionally equivalent to ownership may be
acquired by adverse possession, but not as a prescriptive easement. The elements of
adverse possession were not satisfied here, and the trial court properly rejected the
Hansens’ claim.




16       Hirshfield does suggest in dictum that Silacci and Mehdizadeh “may be overbroad”
because (1) prescriptive easements are determined by historical use and (2) exclusive easements
exist. (Hirshfield, supra, 91 Cal.App.4th at p. 769, fn. 11.) But the fact that prescriptive
easements and exclusive easements both exist separately does not aid in determining when, if
ever, it is appropriate to grant easements that are both prescriptive and exclusive. Hirshfield
relied on Pasadena, supra, 17 Cal.2d 576 and O’Banion v. Borba (1948) 32 Cal.2d 145 to
support its criticism of Silacci and Mehdizadeh. But Pasadena concerned an express easement,
and O’Banion involved a prescriptive nonexclusive easement. Neither case supports the
suggestion that Silacci and Mehdizadeh were overbroad in their treatment of easements that are
both prescriptive and exclusive.



                                              17.
                                        DISPOSITION
       The judgment is reversed. The trial court is directed to enter judgment on the
Hansens’ complaint in favor of defendants Sandridge Partners, L.P. and Citibank, N.A.
Said defendants shall recover costs on appeal.




                                                                      _____________________
                                                                                   HILL, P.J.
WE CONCUR:


 _____________________
SMITH, J.*


_____________________
MEEHAN, J.




*       Justice Gomes was part of the panel that heard oral argument in this matter.
Unfortunately, he passed away on March 6, 2018. Justice Smith was assigned to this case in his
stead. Justice Smith has reviewed the record in this case and has listened to the recording of the
oral argument.



                                               18.
Filed 5/1/18

                           CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FIFTH APPELLATE DISTRICT

ERIK J. HANSEN et al.,
                                                                     F073106
        Plaintiffs, Cross-defendants and
        Respondents,                                  (Tulare Super. Ct. No. VCU255788)

               v.
                                                        ORDER DENYING REHEARING,
SANDRIDGE PARTNERS, L.P. et al.,                         CERTIFYING OPINION FOR
                                                              PUBLICATION
        Defendants, Cross-complainants and
        Appellants.


THE COURT:

       Respondents’ petition for rehearing filed on April 23, 2018, in the above
referenced case is hereby denied.

       As the nonpublished opinion filed on April 6, 2018, in the above entitled matter
hereby meets the standards for publication specified in the California Rules of Court,
rule 8.1105(c), it is ordered that the opinion be certified for publication in the Official
Reports.


                                                                                   HILL, P.J.
WE CONCUR:



SMITH, J.



MEEHAN, J.
