Nellie Gail Ranch Owners Association v. McMullin

Defendant could not support his adverse possession claim with respect to a retaining wall he built on adjoining property that belonged to plaintiff homeowners’ association.  Neither party requested a statement of decision following a six-day court trial, so the doctrine of implied findings applied.  Though the basic facts may have been undisputed, the implied findings doctrine applied to the trial court’s resolution of the conflicting inferences arising from those facts. Defendant waived its equitable estoppel defense by not raising at trial and so could not urge that defense on appeal.  Furthermore, substantial evidence supported the trial court’s implied finding that defendant had not relied on the plaintiff’s alleged acquiescence in defendant’s construction of a retaining wall on plaintiff’s property since the construction occurred before the alleged acquiescence.  Also there was evidence plaintiff didn’t know all the pertinent facts when it initially acquiesced.  Defendant could not support his adverse possession claim with respect to a retaining wall he built on plaintiff’s adjoining property since he couldn’t show he paid property taxes on that adjacent property during the preceding five years.  That the property had been conveyed by the developer to the plaintiff, a homeowner’s association, for no consideration for use as open space did not establish that the property was worthless and not subject to property taxation.  Indeed, at trial defendant agreed it had value but simply claimed it was worth less than plaintiff asserted as its value.   Ordinarily, a landowner is entitled to a permanent injunction requiring a neighboring landowner to remove encroaching structures from the plaintiff’s property.  However, the court has equitable discretion to require the plaintiff to accept damages instead as compensation for a judicially created easement allowing the encroachment if the defendant is an innocent encroacher, the public interest will not be harmed, and the hardship to the defendant will be grossly disproportionate to the damage done plaintiff.  Here, the court did not abuse its discretion in issuing an injunction since there was evidence showing that defendant’s encroachment was intentional, not innocent.  A notice of appeal from the judgment did not raise on appeal any error in a later-entered order awarding attorney fees.  The notice of appeal mentioned only the originally entered judgment, not the later entered attorney fee order or the later amended judgment incorporating that fee award.  Though the original judgment had a blank for the amount of fees awarded the prevailing plaintiffs, the trial court had not at that point determined either the plaintiff’s eligibility for or the amount of the fee award.  Appellant failed to amend its notice of appeal or file a new notice of appeal mentioning the post-judgment fee order or amended judgment.

California Court of Appeals, Fourth District, Division 3 (Aronson, J.); October 3, 2016 (modified & published upon denial of rehearing, October 27, 2016); 2016 WL 6395070

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