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Wong v. 396 Investment Co.5/17/2005
pertained to the property boundary lines; it did not address the location of Anaheim's drainage easement.
We note some tiny printing on the map that may, as best we can discern given its limited legibility, pertain to the location of the drainage easement. To the extent we can make out the printing and the depiction, it would appear that the easement marked on the map takes the form of a channel running roughly next to the northern border of Tract 10439 and that the boundaries of the easement are not coterminous with those of Tract 10439. At a minimum, we are unable to conclude from a review of the map that the plaintiffs' properties must necessarily be subject to the easement.
The most complete description of the easement that Anaheim provides is contained in its reply brief. There, Anaheim states that " t the easement's start point, the water daylights into a surface channel . . . ; before that point, the water is subsurface flow under Anaheim's own property." (Underscoring omitted.) In support of this characterization, Anaheim cites the testimony of Gary D. Johnson, the City Engineer for the City of Orange from 1968 until 1996. Johnson testified to his recollection that water seeping from the reservoir was collected and discharged down the concrete channel. Anaheim does not tell us where the surface channel winds up or whether the easement area conveyed is in actuality greater than or equal to the dimensions of that surface channel. Nonetheless, we construe Anaheim's statement as an admission that the easement has been used for a surface channel.
The trial court found that Anaheim had provided no evidence to support its express easement theory. We must agree. Anaheim has cited no portion of the record demonstrating that it had an express easement over the plaintiffs' properties for the subsurface drainage of 34 million gallons of water per year.
(2) Prescriptive Easement
Next, Anaheim argues that if the court should hold that there is no express easement for the type of drainage at issue, then Anaheim must necessarily hold a prescriptive drainage easement over the plaintiffs' properties. Anaheim argues that if at the time it acquired the reservoir site the parties did not contemplate the seepage that later occurred, then this is proof of a prescriptive easement. This is so, Anaheim reasons, because its use of the reservoir met each of the requirements for a prescriptive easement.
"The elements of a prescriptive easement are `(a) open and notorious use; (b) continuous and uninterrupted use; (c) hostile to the true owner; (d) under claim of right; and (e) for the statutory period of five years. (Civ. Code, § 1007; Code Civ. Proc., § 321).' [Citations.]" (Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1045.) The burden of proof with respect to each of these five elements is upon the party asserting the claim. (Twin Peaks Land Co. v. Briggs (1982) 130 Cal.App.3d 587, 593.)
The trial court found that the "open and notorious" element was not satisfied. It explained that "Anaheim's failure to share information with the adjoining property owners regarding the leakage mitigates against such a finding."
Anaheim insists it established that the reservoir seepage was open and notorious for many years, and claims that the court erred in finding to the contrary. Anaheim is correct that the actual knowledge of the owners of the servient tenement need not be shown. (See Applegate v. Ota (1983) 146 Cal.App.3d 702, 709.) Rather, the visible, open, and notorious use of the servient tenement may be sufficient to impart constructive notice to the owner. (Connolly v. McDermott (1984) 162 Cal.App.3d 973, 977; Twin Peaks Land
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