Johnson v. Little Rock Ranch

Filed 1/3/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

ROGER JOHNSON, Individually and as Trustee,
etc. et al., F078173

Plaintiffs, Cross-defendants and (Super. Ct. No. 2006487)
Appellants,

v. OPINION
LITTLE ROCK RANCH, LLC,

Defendant, Cross-complainant and
Respondent;

PREMIER VALLEY, INC.,

Cross-complainant, Cross-defendant and
Respondent;

ALBERT ROEN et al.,

Cross-defendants and Respondents.

APPEAL from a judgment of the Superior Court of Stanislaus County. Timothy
W. Salter, Judge.
Michael J.F. Smith and John L. Migliazzo, for Plaintiffs, Cross-defendants and
Appellants.
Law Offices of Mayol & Barringer, Bart Barringer, for Defendant, Cross-
complainant, and Respondent.

SEE DISSENTING OPINION
 Fores Macko Johnston, Cory B. Chartrand, for Cross-complainant, Cross-
defendant, and Respondent.
Thompson Welch Soroko & Gilbert, Darin T. Judd, for Cross-defendants and
Respondents.
-ooOoo-
Little Rock Ranch, LLC, the defendant in this matter, bought 677 acres of land in
2012, for the purpose of developing a walnut orchard. The plaintiffs, the Johnson family,
own a 210-acre property adjacent to, and to the south of, the property acquired by Little
Rock Ranch. The Johnsons filed the instant lawsuit in 2014, alleging that Little Rock
Ranch, which had proceeded to develop and plant an irrigated walnut orchard, was
trespassing on 3.44 acres of the Johnsons’ property. The Johnsons alleged Little Rock
Ranch’s walnut orchard encroached on their property’s northern edge, specifically on a
3.44-acre strip adjoining Little Rock Ranch’s property. The Johnsons alleged that Little
Rock Ranch had excavated a hillside, leveled land, planted walnut trees, and laid
irrigation and sprinkler systems on the disputed strip. The Johnsons sought injunctive
relief to end the encroachment and restore the hillside strip to its original condition,
among other remedies.
After a bench trial, the trial court found Little Rock Ranch was trespassing by
encroachment on the Johnsons’ property. However, applying the defense of laches and
the “relative hardship” doctrine, the court denied the injunctive relief sought by the
Johnsons. The court fashioned an alternative equitable remedy: Little Rock Ranch was
required to pay damages to the Johnsons and undertake corrective action to limit erosion
of the now-excavated hillside, while the Johnsons were required to deed the strip of land
at issue to Little Rock Ranch. In a parallel analysis, the trial court found the trespass by
Little Rock Ranch was permanent such that the appropriate measure of damages was
“diminution in value” damages, rather than other alternative measures. The Johnsons
challenge the trial court’s ruling in multiple respects. We affirm.

2.
 FACTS AND PROCEDURAL BACKGROUND
This case is about a dispute over the boundary between two adjoining parcels of
land in Waterford, in the vicinity of Highway 132 and Tim Bell Road, that ripened into a
lawsuit following the sale, in February or March 2012, of one of the parcels. The parcels
of land are in a north-south configuration; the northern parcel is accessed from Tim Bell
Road, while the southern parcel is accessible from Highway 132. The northern parcel is
677 acres, and the southern parcel is 210 acres. A relatively straight barbed-wire fence,
which has existed for over half a century at least (possibly even over a century),
physically separates the two parcels. However, the actual property line lies about 50 feet
to the north of the fence, such that the fence in fact cuts across a northern segment of the
southern parcel. The strip of land between the fence and the actual property line to the
north constitutes 3.44 acres, effectively sandwiched between the far larger parcels on
either side.1 The northern parcel was sold in 2012 to Little Rock Ranch, LLC (Little
Rock Ranch or Little Rock). Prior to the sale, both parcels were owned, for decades, by
members of the same extended family.
Prior to its sale in 2012, the northern parcel had been owned by Albert and Betty
Roen since 1974. At an earlier point, the northern parcel was owned by Albert Roen’s
grandfather, who also owned the southern parcel. The southern parcel eventually came to
be held, in the 1960s, by the Johnson family, specifically LaVerne Johnson, who was a
first cousin of Albert Roen. LaVerne Johnson placed her land, i.e., the southern parcel, in
a family trust in 1992. The Johnson family—specifically, three of LaVerne Johnson’s
children (Roger Johnson, Ellen Ratzlaff, and Gary Johnson) and the Johnson Family 1992

1 The parties had initially stipulated that the strip of land between the fence and the
property line amounted to 3.1 acres. However, following trial and before entry of
judgment it was determined, based upon a survey, that the disputed strip consisted of 3.44
acres of land. The judgment reflects the true acreage; the survey is attached to the
judgment.

3.
Trust—initiated the instant lawsuit (we will refer to the Johnson plaintiffs collectively as
the Johnson family or the Johnsons). Two of the Johnson plaintiffs, namely Roger
Johnson and Gary Johnson, testified at the trial in this matter.
For the many decades that Albert and Betty Roen owned the northern parcel, they
used the land mostly for grazing cattle; they had also occasionally farmed grain on it. As
for the southern parcel, the Johnsons used it for dry grain farming or cattle grazing. The
Johnsons also leased their entire parcel to the Roens at times; the Roens would use the
Johnson property for cattle grazing, much as they used their own land. Albert Roen
testified that, regardless of whether he was leasing the Johnsons’ parcel, he always had
access to and used all the land north of the barbed-wire fence for his cattle. Betty Roen
testified that she “knew the fences were not on the [property] line,” but did not “per se”
know the Roens were using the Johnsons’ land in grazing their cattle up to the barbed-
wire fence.
The Johnsons eventually leased, in 1997, their parcel to an almond farmer, who
planted an almond orchard on the land south of the barbed-wire fence. The strip of land
between the fence and the property line to the north remained an unirrigated and
unfarmed strip. The land in the strip was sloping; the fence ran along the crest and the
land sloped down towards the property line to the north. A dirt road serving the almond
orchard ran along the south side of the fence, on the Johnsons’ property. The almond
farmer had a 20-year lease on the Johnson parcel, and had the option to renew the lease
for an additional five years. The Johnsons only occasionally visited their land parcel;
they did not use the strip north of the barbed-wire fence for any purpose other than
shooting squirrels or rodents on a few occasions.
The Johnsons were aware the Roens had made efforts to sell their parcel over the
years; they were aware the property was for sale before Little Rock Ranch bought it. In
fact, some 18 months before the Roens finally sold their parcel in 2012, LaVerne Johnson
had called Albert Roen and told him the fence ostensibly separating their parcels did not

4.
properly align with the property line. Albert Roen told LaVerne Johnson to commission
a survey and to move the fence if and as required. Albert Roen did not hear back from
any of the Johnsons in this regard. Albert Roen did not mention the phone call from
LaVerne Johnson when he subsequently sold his property to Little Rock Ranch; he said it
“slipped [his] mind.” The Johnsons, for their part, did not do anything about moving the
fence.
The events leading to the sale of the Roen property to Little Rock Ranch took
place in the fall of 2011, when the Roens ran into a local real estate agent named Jim
Booth, whom they had known for approximately 50 years. Albert Roen told Booth that
his property on Tim Bell Road was in escrow but was in danger of falling out of escrow.
Booth subsequently contacted Roen and determined the property had fallen out of
escrow. Booth eventually found a buyer for the Roen property. The buyer, Little Rock
Ranch, was represented by its principal, Raymond Brian Greer.
Booth had passed away by the time of trial; however, his deposition testimony was
admitted at trial; Greer testified at trial. In connection with Little Rock’s purchase of the
Roen property, Booth went to see the property; he met up with Albert Roen there. As
Albert Roen and Booth looked out over the property from a knoll, a canal as well as the
barbed-wire fence could be seen crossing the property. Booth asked Albert Roen whether
the canal marked the property line; Albert Roen answered the fence marked the property
line. Booth in turn told Greer that the fence marked the property’s southern boundary
(both Booth and Greer testified to this effect). Booth testified he informed Greer that the
fence marked the property’s boundary because that is what Albert Roen had confirmed to
Booth. Booth further testified that Albert Roen never told Booth he was using a part of
his neighbors’ property. Albert and Betty Roen both testified at trial; their respective
testimony differed in various respects from Booth’s testimony.
Greer began the process of purchasing the Roen property for Little Rock Ranch in
late 2011. During the process, various documents were generated. Booth ended up

5.
representing both sides to the transaction, i.e., the Roens as the sellers, and Little Rock
Ranch (via Greer) as the buyer. The Roens provided sellers’ disclosures, including a
sellers’ vacant land questionnaire, which was completed and signed by the Roens under
penalty of perjury. One of the questions on the questionnaire was whether the sellers
were using any neighboring property; the Roens answered this question in the negative.
At trial, the Roens testified they answered these questions in the negative at Booth’s
direction; however, in his deposition Booth denied directing the Roens to provide false
information in the questionnaire. Greer, for his part, could not recall whether he saw this
document prior to close of escrow on the property, although Booth maintained he
provided it to Greer upon its completion by the Roens.
Another document generated for purposes of the transaction was a preliminary
title report. The report noted that “the fence line encroaches onto adjoining land in
multiple areas,” but did not specify the extent of divergence between the fence lines and
property lines. The preliminary title report referenced a survey of the property conducted
in 2008 as the basis for its conclusion. The survey, which mapped the divergence
between the property line and fence line, was not attached to the report. Greer received
and signed off on the preliminary title report but did not delve into it deeply; he did not
receive or obtain a copy of the 2008 survey referenced in the report. Greer understood,
based on a conversation he had previously had with Booth, that while there was a
potential, in the case of large agricultural properties, for minor discrepancies between
property lines and fence lines, any such discrepancies would be de minimis, that is,
limited to a foot or two and to some spots.
The purchase price for the Roen property was ultimately discounted by $46,000,
based on the terms of the purchase contract, on account of the discovery on the property
of areas that were susceptible to collecting standing water, and were therefore not
considered suitable, in their undeveloped condition, for farming. Although it initially

6.
appeared 62 acres of the property were affected, including so-called buffer zones, in the
end 30.78 acres were determined to be nonfarmable wetlands.
Greer took possession of the Roen property on March 1, 2012. He immediately
set about preparing a walnut orchard on the entire parcel, operating on his understanding
that the southern boundary of his property ran along the barbed-wire fence, beyond which
lay the neighboring farmer’s almond orchard. Right around the time escrow closed,
Greer ordered thousands of trees for his orchard. The trees were “special bud trees”; it
typically took a long time to generate the requisite “rootstock” and obtain the “special
bud wood,” and to complete the grafting process. The entire process could consume two
years. Between March 1, 2012, and May 1, 2012, Greer had the southern 130 acres of the
property graded, rendering all of it farmable. Dirt was moved and leveled in various
parts of the property, including in the area immediately to the north of the barbed-wire
fence. The downslope extending northwards from the fence line was excavated and
leveled; the excavated soil was moved to other parts of the property. The rest of the
property was graded by “October/November” 2012. Greer also had an irrigation and
sprinkler system planned and designed.
In December 2012, Greer received a letter from an attorney representing the
Johnsons. The letter stated that the fence line was not the true boundary between the
Roen and Johnson parcels; rather, the boundary lay 45 feet from the fence line. Greer did
not understand what the letter was talking about, as Booth had told him the barbed-wire
fence marked the southern boundary of the Roen property. Thus began a long process of
investigation on Greer’s part regarding the merits of the Johnsons’ boundary claim.
Greer tried to ascertain how he reasonably could proceed, given he had preordered all the
trees for the orchard, the irrigation system design was already completed, and costly
excavation and leveling work had been done, all on the assumption his property extended
to the fence line.

7.
 In March 2013, the Johnsons’ attorney provided Greer with a survey from 1950
that showed the boundary between the Roen and Johnson parcels was approximately 50
feet north of the barbed-wire fence. Greer noted: “At that point I realized, okay, we’ve
got an issue here with lot lines and fence lines, but that’s not what was represented to me
when we bought the property.” Greer summed up the situation: “We were still in the
investigative mode, and the trees were ordered. They were special bud trees. They were
in the nursery. Pipelines had been designed. Systems calibrated. The bulk of the
expense was moving the dirt; that had already occurred.”
Greer and Booth met with the Roens at a restaurant in Oakdale to discuss the issue
and get more information, in May 2013. Greer testified: “We were still trying to
understand how this happened. We didn’t know. We weren’t … comprehending what
the issues were.” Booth explained in his deposition that Albert Roen told them for the
first time, at the restaurant, that “there was a dispute” with the Johnsons over the
boundary between the Roen and Johnson parcels. Greer similarly testified: “Jim [Booth]
and I were both surprised to hear what came out of Mr. Roen’s mouth.” Asked what
came out of Albert Roen’s mouth, Greer said: “Well, he told us the LaVerne Johnson
story about the issue with the fence, and [the Johnsons] wanting to move the fence, and
[he] gave them the opportunity to [do a survey and] move [the fence if required,] and [it]
didn’t happen.” Eventually, a surveyor who was doing some other work for Greer
showed him a map that “further corroborated the 1950 survey” sent by the Johnsons’
lawyer.
Greer continued to try to resolve the situation with the Johnsons, even offering to
buy the disputed land, without success. Greer ended up installing the irrigation and
sprinkler systems for the property as, like the trees, these systems had been previously
ordered and paid for. Also, when the preordered, special-variety walnut trees were
delivered, Greer planted them, including in the disputed strip, because the trees must be
planted quickly; they cannot “sit in cold storage.” Greer testified the trees were not

8.
marketable; they were a specially-ordered variety that was unique to Little Rock Ranch’s
orchards and did not move on the market. Approximately 400 trees were planted in the
disputed strip, in keeping with the plan for the overall orchard. At the time of trial in
2016, the trees were 15-18 feet tall; they would eventually become 30 feet tall, with
diameters ranging from 20 to 23 feet. The trees cost $22 each and the cost of planting
was $2 or $3 per tree. On the perimeter of the orchard, Greer planted so-called soldier
rows to serve as “foliar barrier[s].” A soldier row is a closely packed row of trees that
operates as a buffer against neighboring fields that are planted with other types of trees,
and on which different products are used.
Greer incurred substantial costs in developing his orchard. The tractor and dirt
work in preparing the land cost approximately $1.3 million. Four wells were
constructed—none on the disputed strip—at a cost of approximately $1 million. The
irrigation and sprinkler system design and installation cost $1200-$1300 per acre, for 677
acres. Two bridges were constructed for a cost of $160,000. And the main entrance and
truck turnaround were constructed for a cost of $350,000.
At trial, Albert Roen testified that a family member had long ago marked the
boundary between the Roen and Johnson parcels with a post attached to a vehicle frame.
Gary Johnson (around 60 years old at the time of trial) and Roger Johnson (45 years old
at the time of trial) both testified they had known since they were young children that the
fence did not coincide with the boundary between the Johnson and Roen parcels; rather,
the boundary was demarcated by a post attached to a vehicle frame. However, neither
Booth, nor Greer, saw such a post on the property at any time. Booth testified Albert
Roen never mentioned a post attached to a car chassis to him.
Gary Johnson and Roger Johnson acknowledged that neither they, nor their
parents, ever took any action to relocate the fence to the boundary line, despite their
longstanding knowledge of the discrepancy between the two. Gary Johnson and Roger
Johnson testified that Greer’s excavation work in the disputed strip had made the fence

9.
line along the crest of the slope therein, susceptible to erosion. The Johnsons suggested
the slope had been rendered more like a cliff or embankment, which raised concerns that
a service road alongside, and to the south of, the fence would be undermined over time by
erosion.
The Johnsons initiated the present matter on February 28, 2014, suing Little Rock
Ranch to quiet title to the disputed strip and for trespass, conversion, and injunctive
relief, among other claims. Little Rock Ranch cross-complained against the Johnsons
seeking to quiet title to the disputed strip based on adverse possession. Little Rock Ranch
also cross-complained against the Roens for intentional misrepresentation and indemnity,
and against Premier Valley, Inc., dba Century 21 M&M and Associates, Little Rock
Ranch’s real estate broker, for breach of fiduciary duty, negligent misrepresentation, and
indemnity (Jim Booth worked at Century 21 M&M and Associates in Turlock). The
matter proceeded to bench trial from October 25, 2016, to November 1, 2016. The trial
court issued a final statement of decision on August 3, 2017, and judgment was
eventually entered on July 3, 2018.
A. The Trial Court’s Statement of Decision
The trial court issued a detailed 43-page statement of decision, laying out the
evidence adduced at trial as well as the court’s findings of fact and legal conclusions. We
will delineate below the trial court’s comments on the evidence, its findings of fact, and
its legal conclusions, to the extent pertinent to the issues on appeal.
The court described the evidence adduced at trial under the following headings:
“The Disputed Property”; “Sale of the Northern Property”; and “Post-Sale Actions.”
With regard to “The Disputed Property,” the court noted:

“The disputed property is approximately [3.44] acres, a fifty-foot
strip of land, more or less, that lies between an old fence line and the actual
property line to the north. The disputed property actually lies on Plaintiffs’
property, the southern parcel. There was evidence that the Johnson family
let Mr. Roen use that land for 38 years, free of charge. Also, the Johnsons

10.
 did nothing for over 50 years to move the fence and establish [their] rights.
Even after the Johnson family knew that the Roens were selling their
property or had a sale pending, the Johnson family did nothing until well
after the close of escrow. In other words, the fence between the Johnson
and Roen property was in the same place for at least 50 years and the
Johnson family did nothing to correct the fence line until after Mr. Greer
had moved significant amounts of dirt. The fences have probably been in
the same location since the early 1900s [citation]; Mr. Roen had been using
that 50 feet or so of the Johnsons’ property since 1974, even when he was
not leasing Johnson property [citation]; from 1974, until he sold the
property, Mr. Roen occasionally used that 50 feet of Johnson property as
his own and grazed cattle on it. There was never an objection from the
Johnsons.”
Next, in its summary of the evidence, regarding “Sale of the Northern Property,”
the court noted: “There are significant disputes in the testimony of the parties concerning
the circumstances leading up to the sale of the property.” The court described
discrepancies between, on the one hand, the testimony provided by the Roens at trial,
and, on the other hand, the testimony given by real estate agent Jim Booth at his
deposition. As discussed further below, the court ultimately credited Booth’s testimony
and found that “Mr. Roen told Mr. Booth that [the Roen] property went [all the way] to
the fence to the south.” The court also ultimately found that when Booth subsequently
took Greer to look at the Roen property, Booth, in turn, told Greer “that the southern
boundary [of the Roen property] was at the fence line.”
The court also addressed, in its summary of the evidence, what it termed “Post-
Sale Actions.” In this regard, the court noted:

“[Raymond] Brian Greer testified that Little Rock first began
leveling and grading the Disputed Property in March 2012 and that it
completed [dirt] work on the disputed property by May 2012. [Greer]
further testified that Plaintiffs did not notify Little Rock that it was using
[the Johnson] property at any time while the work was being done on the
disputed property [citation] and did not notify Little Rock of any dispute
until Plaintiffs’ attorney, Ronald Hillberg[,] wrote Little Rock a letter on
November 30, 2012, [citation][,] some six (6) months after Little Rock had
completed the grading work on the disputed property.

11.
 “Little Rock has invested significant sums of money on the
development of the Property into a walnut orchard, including the disputed
property. Little Rock testified that it invested approximately $1.3 million
in tractor and dirt work on the property [citation]; $1 million in wells [on
the] Property [citation]; $160,000 in two bridges [citation]; $350,000 at the
main entrance; $871,000 in design and installation of the irrigation system
[citation] and $11,000 in trees specifically planted on the disputed property
[citation] and $1,500 in planting [the] trees on the disputed property
[citation] alone. Plaintiffs did nothing while the disputed property was
being graded and did nothing for six months after completion of the grading
and dirt work and after Little Rock had designed irrigation systems on the
disputed property and ordered the trees for the disputed property.
[Citation.] During the 8 to 9 months that Plaintiffs failed to notice the
development work of Little Rock, it spent, in addition to the $12,500 on
trees and their planting, $7,445 on dirt moving (1.3M/681 x 3.9),2 $5,726
on wells supplying water to the disputed area (1M/681 x 3.9),3 which
equals $25, 671.

“When the Johnsons discovered that Little Rock had excavated their
hillside, they attempted to contact Little Rock. [Citation.] In December
2012, Little Rock received Mr. Hillberg’s letter, on their behalf, demanding
that the property be restored. [Citation.] Mr. Greer testified that he ‘was
completely floored’ when he got the letter. [Citation.] [Mr. Greer’s
attorney] responded with a letter, stating in part: “By the time Little Rock
received your letter, it had already gone through the extent of preparing and
levelling the land, and ordered and paid for trees, irrigation systems,
engineering, and other items to plant right up to the fence line. [Citation.]
[¶] Little Rock had not yet planted its trees, and the irrigation system had
not yet been installed.”
The court went on to make multiple findings of fact, none of which are challenged
on appeal, by any party. The court made the following findings of fact (listed in order):

• “Plaintiffs Roger Johnson and Ellen Ratzlaff are the trustees of the Johnson
Family Trust of 1992.”

2 The court’s calculations assumed the disputed property amounted to 3.9 acres
(based on counsel inadvertently using that figure at trial); as noted, it was subsequently
determined the disputed property amounted to 3.44 acres (see footnote 1, ante).
3 See footnote 2, ante.

12.
• “The Johnson Trust owns approximately 220 acres of land, east of
Waterford, CA, and north of SR 132. Most of the property is planted in
almond trees, which at the time of trial, were approximately 19 years old.”

• “The northern boundary of Plaintiff’s property was unmarked, other than
with some iron pipes, buried at the Northwest corner and the Northeast
corner. At some point there was apparently a post, with a vehicle chassis
on top that was located near the Northwest corner.”

• “There was also a fence, running east and west, which was located
approximately 50 feet south of the northern boundary of Plaintiff’s
property. It is unknown exactly when this fence was built, but it was built
as recently as the 1950’s or 1960’s. It may have been present since the
early 1900’s.”

• “Plaintiffs’ property has been in the family for four generations, and was
first acquired by their great grandfather. In the earlier years, Plaintiffs or
their relatives used the property to grow grain or raise cattle.”

• “The Johnson property on the north side of the fence was not used much.
In the winter water would accumulate and pool there. In the summer, the
Johnsons would occasionally hunt there, and sometimes throw grain there
to ‘chum.’ Also, occasionally, that land was used for storage of harvester
machinery.”

• “The property to the north of Plaintiff’s land, was a 677 acre parcel. It was
acquired by … Albert and Betty Roen in 1974, after renting the property.
The Roens used the property for grazing their cattle.”

• “In 2012 the Roens met a realtor, Jim Booth. Mr. Booth was an agent with
Premier Valley, Inc. The Roens told Mr. Booth that their property was in
escrow, but would probably ‘fall out.’ ”

• “A few days later, Mr. Roen told Mr. Booth in a phone conversation that
the property had ‘fallen out’ of escrow, and was for sale.”

• “Mr. Booth was introduced to Mr. Greer, who was looking for a large
parcel of real estate that could be used for farming.”

• “Mr. Booth provided Mr. Greer a plot map of the 677 acres. Mr. Booth
was shown the property by Mr. Roen. During this visit, Mr. Roen told Mr.
Booth that the property went to the fence to the south.”

• “Mr. Greer later looked at the property with Mr. Booth. Mr. Booth told Mr.
Greer that the southern boundary was at the fence line.”

13.
 • “Mr. Greer thereafter made an offer to Mr. and Mrs. Roen, to purchase their
property for $8,000 per acre. The offer was later modified, for the price to
be reduced by an agreed-upon reduction for approximately 30 acres of
vernal pools. Mr. Roen added ‘Addendum A’ to provide that he was
selling 677 acres.”

• “Mr. Greer … received and approved the preliminary title report. The
report noted ‘the fact that the fence line encroaches onto adjoining land in
multiple areas.’ Reference was made to [a] survey conducted by
Associated Engineering, Inc.”

• “Mr. Greer did not read the contents of [the preliminary title report].”

• “The escrow closed in either late 2011 or early 2012.”

• “On March 1, 2012, after the Roens had removed their cattle from the
property, Mr. Greer started conducting earth-moving operations on the
property, starting on the north side of the fence in question.”

• “The earth-moving operations were completed by May 1, 2012. During the
process, Little Rock spent over $25,000 improving the [3.44] acres through
ripping, leveling, providing irrigation, and planting approximately 400
walnut trees.”

• “Attorney Ronald Hillberg sent Raymond [Brian] Greer a letter dated
November 30, 2012, informing Mr. Greer that the defendant had
encroached on Plaintiffs’ land. This was the first notification defendant
received that it had moved dirt belonging to Plaintiffs.”

• “The encroachment totals approximately [3.44] acres of land, belonging to
Plaintiffs.”

• “By the time he had received the letter, Mr. Greer had already ordered and
paid for irrigation systems and specially budded walnut trees, including
irrigation and trees for the encroached property.”

• “Mr. Greer attempted to resolve the dispute by purchasing the land being
encroached upon, but was unsuccessful in resolving the matter. Mr. Greer
refused to voluntarily vacate the [3.44] acres and move the dirt back, which
had been moved.”
The trial court also reached and memorialized multiple “[c]onclusions of [l]aw,”
including the following:

14.
• “Defendant encroached onto approximately [3.44] acres of Plaintiffs’
property with earth-moving caterpillar bulldozers in March, 2012, moving
perhaps thousands of cubic yards of the soil.”

• “Defendant’s initial entry onto Plaintiff’s property constituted a trespass,
and Defendant’s continuing occupation of Plaintiffs’ property constitutes
trespass.”

• “Plaintiffs failed to prove that Defendant was guilty of conversion for
removing the dirt on the [3.44] acres.”

• “Plaintiffs are guilty of laches.”

• “The Court has reached the following conclusions: (1) Plaintiffs have
made little or no use of the [3.44] acres for periods as long as years; (2)
Plaintiffs have largely limited the use of their property to that portion which
lies south of the east-west fence; (3) Defendant encroached upon the [3.44]
acres on the mistaken belief that it was part of the property that it had
purchased; (4) Defendant has expended thousands of dollars as well as a
substantial amount of time improving the [3.44] acres, including making it
a part of a productive, irrigated walnut orchard; (5) It would be nearly
impossible for Defendant to accurately replace the dirt that has been moved
around on and away from the [3.44] acres. The Court therefore concludes
that the interests of equity and justice would not be served by requiring
Defendant to vacate the [3.44] acres and attempt to move the dirt back to its
original location next to the fence.”

• “The Court also concludes that requiring Defendant to replace the dirt and
to vacate the property would constitute economic waste, and would actually
diminish the value of the [3.44] acres from $35,000 per acre, to
approximately $8,000 per acre.”

• “The Court has determined that the value of the [3.44] acres is $136,500,
and Defendant should be required to pay this sum to Plaintiffs. Plaintiffs
should then be required to deed to Defendant the [3.44] acres. Defendant
should pay for the engineering/title work necessary to prepare such a deed.”

• “Plaintiffs are entitled to attorney’s fees [payable by Defendant].”

• “Defendant is entitled to equitable indemnity from both Mr. and Mrs. Roen
as well as Premier Valley, Inc., in the following percentages: as to the
Roens, 20%; as to Premier Valley, Inc., 10%. This award of indemnity
does not apply to the attorney’s fees awarded.”

15.
 • “Defendant’s actions in making ‘cuts’ next to the east-west fence, has
caused erosion. Defendant [shall] be ordered to file with the Court a
remedial plan, prepared by a licensed soils engineer or environmental
consultant. The Court [shall] reserve jurisdiction over this case to monitor
compliance with the plan for remediation.”
The court also denied the Johnsons’ request for punitive damages, noting: “The
Court finds that there is no clear and convincing evidence of malice on the part of Mr.
Greer. As previously discussed, he entered Plaintiffs’ land under the mistaken
impression that the boundary line was the fence line. It was only after six months of
earth-moving, and large expenditures for irrigation systems and specially budded trees,
that it was discovered that he had encroached on Plaintiffs’ land. His decision at that
time, to not withdraw from the land, and not to attempt restoration is not viewed as
malicious by this Court.”
In addition, the court noted that both the Roens and Jim Booth were partially at
fault for Greer and Little Rock’s understanding that the boundary between the Roen and
Johnson properties was demarcated by the barbed-wire fence. In this context, the court
observed: “The Court finds that Roen made intentional and obvious misrepresentations
pertaining to the [Roen] Property at the time of the sale to Little Rock. Roen claims that
these representations are somehow immaterial as Little Rock did not get or review the
Sellers [Vacant] Land Questionnaire before the close of escrow. However, it is
undisputed that Booth told Little Rock that the fence line was on the boundary line, or
close to it, and Little Rock relied on this representation to cultivate and plant the Disputed
Property.”
The court added: “Booth testified under oath that Roen told him that the fence
lines were the property lines and Roen testified he did not do this. Roen testified that he
made the intentional misrepresentations on the Sellers Vacant Land Questionnaire at
Booth’s instruction and Booth testified that he did not instruct Roen how to fill out that
form …. [T]he Court finds Booth’s testimony on this point to be more credible. The fact

16.
of the matter is that Roen made intentional misrepresentations regarding boundary lines,
that Booth represented to Little Rock where the property lines were and that Little Rock
relied on those representations and developed the Disputed Property because [it] was
within the fence lines.” The court also found that Premier Valley incurred liability to the
extent Booth did not examine and explain to Greer, the discrepancy between the seller
vacant land questionnaire completed by the Roens and the preliminary title report.
The court noted it had made a site visit to the Roen/Little Rock and Johnson
properties to observe the area of dispute in person.
The court found that the Johnsons were entitled to attorney’s fees under Code of
Civil Procedure section 1021.9, which “allows the recovery of attorney’s fees ‘[i]n any
action to recover damages to personal or real property resulting from trespassing on lands
either under cultivation or intended or used for the raising of livestock.’ ”
Finally, the court noted that it was “reserving jurisdiction to require Defendant to
take remedial actions necessary to correct erosion problems along the location of the
fence and adjoining dirt road.” The court added: “Defendant will be ordered to present
an initial corrective action plan, to be filed with this Court no later than September 1,
2018. The plan must be prepared by a licensed soils engineer or environmental
expert/contractor. The Court intends to monitor this situation for at least the next 5
years.”
DISCUSSION

I. Trial Court Did Not Abuse Its Discretion In Denying Johnsons’ Claims for
Injunctive Relief Regarding Little Rock’s Trespass and Properly Fashioned
Equitable Remedy; In Addition, Court Properly Found Little Rock’s
Trespass Was Permanent and Awarded Appropriate Damages
The Johnsons, in the civil complaint initiating this action, requested injunctive
relief to “[require] Defendant to restore the Subject Property to its condition prior to
Defendant’s trespass of ripping, removing, and excavating the soil, including replacing
the soil, compacting it, and bringing it back to prior elevation levels.” The Johnsons’

17.
complaint also requested injunctive relief to “[prevent] Defendant from entering upon or
interfering with Plaintiffs’ property.” Next, the Johnsons sought, in their complaint, to
quiet title to the disputed property in their favor, to the extent Little Rock Ranch claimed
title thereto based on adverse possession. The complaint further sought “declaratory
relief declaring Plaintiffs’ ownership and title to the subject property, and clearly
establishing the boundary thereof.” The Johnsons also sought damages and attorneys’
fees.
In its statement of decision, the trial court noted, with regard to the disputed
property, that it “assume[d] that Little Rock ha[d] abandoned the theory of adverse
possession,” and that “[i]n any event, Little Rock ha[d] failed to prove adverse
possession.” Rather, the trial court found that, in preparing the land, laying an irrigation
system, and planting walnut trees, right up to the barbed-wire fence, Little Rock Ranch
was “trespassing” on a few acres of the Johnsons’ property.
The court addressed the question of remedies for Little Rock Ranch’s trespass.
The court denied the Johnsons’ request for equitable relief in the form of injunctions
requiring Little Rock Ranch to end the trespass on the disputed property (between the
fence and the true boundary line to the north) and to restore the land to its original state.
We review the trial court’s decision on granting or denying a permanent injunction for
abuse of discretion. (See, e.g., Horsford v. Board of Trustees of California State
University (2005) 132 Cal.App.4th 359, 390.) We detect no abuse of discretion in the
trial court’s denial of the injunctive relief sought by the Johnsons.
(1) Court Properly Found Defense of Laches Barred Injunctive Relief
Preliminarily, the court concluded that the equitable defense of laches applied in
this case to bar the equitable remedy of injunctive relief. “Laches may bar equitable
relief where the party seeking relief has delayed enforcing a right and there is prejudice
arising from the delay.” (Kapner v. Meadowlark Ranch Association (2004) 116
Cal.App.4th 1182, 1190 (Kapner); Holt v. County of Monterey (1982) 128 Cal.App.3d

18.
797, 801 [equitable defense of laches applies where “unjustified delay has operated to the
injury of another”].) “In determining whether laches apply, the court should weigh the
competing equities and grant or deny relief depending on the balance of those equities.”
(Kapner, supra, at p. 1190; Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 77
[“ ‘The telling consideration must be that laches constitutes an affirmative defense which
does not reach the merits of the cause.’ ”].)
Here, the court properly noted: “The defense of laches requires unreasonable
delay plus either acquiescence in the act about which the Plaintiff complains or prejudice
to the defendants resulting from the delay.” (See Johnson v. City of Loma Linda, supra,
24 Cal.4th at p. 77 [“The doctrine of laches bars a cause of action when the plaintiff
unreasonably delays in asserting or diligently pursuing the cause and the plaintiff has
acquiesced in the act about which the plaintiff complains, or the delay has prejudiced
defendant.”]; see also Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d
351, 360 [“ ‘It is not so much a question of the lapse of time as it is to determine whether
prejudice has resulted. If the delay has caused no material change in statu quo, ante, i.e.,
no detriment suffered by the party pleading the laches, his plea is in vain.’ ”].) The court
also correctly set forth the elements of the defense of laches, as follows: “The basic
elements of laches are: (1) an omission to assert a right; (2) a delay in the assertion of the
right for some appreciable period; and (3) circumstances which would cause prejudice to
an adverse party if assertion of the right is permitted.” (See Stafford v. Ballinger (1962)
199 Cal.App.2d 289, 296.)
The court noted that the Johnsons had taken “no action whatsoever to move the
fence to the proper boundary line” over the course of multiple decades, during which
time the Roens “freely used the disputed property,” while the Johnsons “never used the
disputed property for any [significant] purpose of their own.” The court further noted
that the Johnsons had “delayed” asserting their rights to the disputed property “until well
after Little Rock had completed the grading and groundwork of the disputed property.”

19.
The court pointed to Greer’s testimony to the effect the Johnsons “did not notify Little
Rock that it was using [the Johnsons’] property at any time while [this] work was being
done on the disputed property” and “did not notify Little Rock of any dispute until
Plaintiffs’ attorney, Ronald Hillberg, wrote Little Rock a letter on November 30, 2012 …
some six (6) months after Little Rock had completed the grading work on the disputed
property.” The court reemphasized that “Plaintiffs did nothing while the disputed
property was being graded and did nothing for six months after completion of the grading
and dirt work,” waiting until “after Little Rock had designed irrigation systems on the
disputed property and ordered the trees for the disputed property.”
The court also observed:

“The plaintiffs in this case … were absentee owners who only occasionally
visited their property, and then, usually to hunt or shoot at targets. It is of
interest to the Court to note that when plaintiffs in this case leased their
property for the purpose of farming almonds, neither they nor their lessee
farmer, attempted to make any [significant] use of the disputed [3.44] acres.
Instead, the farmer who leased their property farmed up to the fence, and no
farther. The farmer may have been aware of Little Rock’s earth-moving
activities after the sale to Little Rock, but the plaintiffs did not discover it
for almost 6 months [after completion of the land grading work], during
which time defendants were spending serious time and effort to develop
their walnut orchard. While six months by itself might not be sufficient to
trigger laches, that time, combined with at least 50 years of inaction, is
sufficient … for the Court to apply laches. However, laches in this instance
does not bar all remedies, only equitable remedies.”
In addition, the court found “there was prejudice to Little Rock consisting of the
money and time spent on improving the [3.44] acres during the 8 to 9 month interval
before Plaintiffs notified Little Rock of the encroachments. By then, Little Rock had
already spent nearly 9 months working on the ranch, including [on] the disputed acreage,
and [expended] over $25,000 on the disputed acreage.” The court noted: “The Court
finds this delay brought about detriment and prejudice to Little Rock.” The court also
found the Johnsons had not furnished an entirely satisfactory explanation as to why they

20.
did not sooner discover and complain about “the radical earth moving being done on their
property by Little Rock,” given that their land was in use and Little Rock Ranch’s
activities on the disputed property were out in the open. The court concluded that
“Plaintiffs are guilty of laches” and “Plaintiffs’ claim for injunctive relief is barred by
laches.”
“Generally, a trial court’s laches ruling will be sustained on appeal if there is
substantial evidence to support the ruling.” (Johnson v. City of Loma Linda, supra, 24
Cal.4th at p. 67; see Bono v. Clark (2002) 103 Cal.App.4th 1409, 1417 [“ ‘Generally,
speaking, the existence of laches is a question of fact to be determined by the trial court
in light of all of the applicable circumstances, and in the absence of manifest injustice or
a lack of substantial support in the evidence its determination will be sustained.’ ”]; cf. In
re Marriage of Fogarty and Rasbeary (2000) 78 Cal.App.4th 1353, 1364-1365 [stating,
with regard to the application of laches, that “the better rule is to review … for abuse of
discretion”].)
Here, the problem was not that there was no fence on the boundary line separating
the properties. Rather, the problem was that there was an actual fence on the Johnson
property just a short distance from the boundary line. The Johnsons were long aware that
the fence was in the wrong place and that the Roens intended to sell their property. Some
18 months before the eventual sale of the Roen property, LaVerne Johnson contacted
Albert Roen and indicated the property line should be accurately determined and the
fence moved to coincide with the property line. The Johnsons, however, never took any
steps to settle the boundary issue with Roen or to move the fence or to otherwise alleviate
the situation. On the contrary, they waited until nine months after escrow closed on the
Roen property to bring the boundary issue to the attention of Little Rock Ranch, by which
time Little Rock Ranch had already completed major excavation and leveling work,
among other improvements, on the disputed property.

21.
 We conclude the trial court’s application of laches to bar injunctive relief is amply
supported by substantial evidence in the record. Furthermore, to the extent the applicable
standard of review is abuse of discretion, we detect no such abuse in the trial court’s
denial of injunctive relief based on the application of laches.

(2) Court Properly Applied the “Relative Hardship” Doctrine to Deny
Injunctive Relief, Compel the Johnsons to Accept Damages, and Craft an
Equitable Remedy
(a) Applicable Law
The “relative hardship” doctrine is applied by California courts in encroachment
cases to determine whether to grant an injunction requiring removal of the encroachment
or to resolve the issue by fashioning an alternative, equitable remedy and awarding
damages. (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 758 [“California Courts
have long applied the relative hardship doctrine in determining whether to grant an
injunction to enjoin a trespass by encroachment on another’s land.”] (Hirshfield).)
Pursuant to the “relative hardship” doctrine, which involves balancing the equities that
bear on the situation at issue, courts have power in equity to create a protective interest in
favor of an encroacher. (See Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1009
[“courts may exercise their equity powers to affirmatively fashion an interest in the
owner’s land which will protect the encroacher’s use”].)
In other words, “[u]nder [the relative hardship] doctrine, once the court determines
that a trespass has occurred, the court conducts an equitable balancing to determine
whether to grant an injunction prohibiting the trespass or whether to award damages
instead.” (Hirshfield, supra, 91 Cal.App.4th at pp. 758-759, 761 [“Under the relative
hardship test, the trial court must identify the competing equities underlying each party’s
position. It then must balance the relative hardships of granting or denying an injunction
to remove encroachments from the plaintiff’s property.”].) “ ‘ “[W]here the
encroachment does not irreparably injure the plaintiff, was innocently made, and where

22.
the cost of removal would be great compared to the inconvenience caused plaintiff by the
continuance of the encroachment, the equity court may, in its discretion, deny the
injunction and compel the plaintiff to accept damages.” ’ ” (Salazar v. Matejcek (2016)
245 Cal.App.4th 634, 649 (Salazar); Hirshfield, supra, 91 Cal.App.4th at p. 761 [an
injunction request may be defeated upon a showing of “the substantial hardship the
encroacher must endure when balanced against the lesser hardship to the plaintiff”].)
An encroacher’s failure to adduce direct evidence of the cost of removing the
encroachments in question is not fatal where the trial court viewed the disputed property,
as “its observations are evidence which may be used alone or with other evidence to
support its findings.” (Hirshfield, supra, 91 Cal.App.4th at p. 762 [“[Where] the court’s
observations were not reported and are not part of the record on appeal, we must presume
that the evidence the court saw was sufficient to support its findings].)4 The court may
also properly consider testimony describing the character of improvements made by the
encroacher, and from its inspection and such evidence, infer that the cost of removal
would be significant. (Ibid.; see Dolske v. Gormley (1962) 58 Cal.2d 513, 520
[reviewing court may take judicial notice of the fact that removal of encroaching
structures, “as pictured in the exhibits” in the appellate record, “would involve
considerable expense”] (Dolske).)
Hirshfield explained that under the relative hardship doctrine, the court further has
broad equitable powers to fashion a remedy to fit the requirements of specific cases.
(Hirshfield, supra, 91 Cal.App.4th at pp. 765, 770-771 [“the courts are not limited to
judicial passivity as in merely refusing to enjoin an encroachment. Instead, in a proper
case, the courts may exercise their equity powers to affirmatively fashion an interest in
the owner’s land which will protect the encroacher’s use”]; see Salazar, supra, 245

4 Here, the trial court personally viewed the disputed property and, as was the case
in Hirshfield, its observations are not part of the record on appeal.

23.
Cal.App.4th at p. 648 [“The trial court ha[s] the authority to fashion an equitable remedy
appropriate to the circumstances of [each] case. It is well established that a ‘court called
upon to afford relief historically or analytically equitable in its nature “has broad powers
to fashion a remedy. [Citation.] It may create new remedies to deal with novel factual
situations.” ’ ”].) As Hirshfield explained:

“ ‘ “It has always been the pride of courts of equity that they will so mold
and adjust their decrees as to award substantial justice according to the
requirements of the varying complications that may be presented to them
for adjudication.” [Citation.]’ ‘The powers of a court of equity, dealing
with the subject-matters within its jurisdiction, are not cribbed or confined
by the rigid rules of law. From the very nature of equity, a wide play is left
to the conscience of the chancellor in formulating his decrees.… It is of the
very essence of equity that its powers should be so broad as to be capable
of dealing with novel conditions. [Citation.]’ Equity acts ‘ “in order to
meet the requirements of every case.” ’ ” (Hirshfield, supra, 91
Cal.App.4th at pp. 770-771.)
Thus, a trial court may deny “an injunction to remove encroachments” and exercise “its
equity powers to grant affirmative relief tailored to protect the encroacher’s use of the
disputed land.” (Hirshfield, supra, at p. 770.) “[T]he interest created will be affirmed
unless it amounts to an abuse of the trial court’s discretion.” (Id. at p. 771.)
(b) Analysis
“ ‘The grant or denial of a permanent injunction rests within the trial court’s sound
discretion and will not be disturbed on appeal absent a showing of a clear abuse of
discretion. [Citation.] The exercise of discretion must be supported by the evidence and,
“to the extent the trial court had to review the evidence to resolve disputed factual issues,
and draw inferences from the presented facts, [we] review such factual findings under a
substantial evidence standard.’ ” (Salazar, supra, 245 Cal.App.4th at p. 647.) “A trial
court’s discretionary ‘ruling “will be sustained on review unless it falls outside the
bounds of reason.” [Citation.] We could therefore disagree with the trial court’s
conclusion, but if the trial court’s conclusion was a reasonable exercise of its discretion,

24.
we are not free to substitute our discretion for that of the trial court.’ ” (Ibid.; see
Hirshfield, supra, 91 Cal.App.4th at p. 771 [where “the trial court exercised its equity
powers when fashioning [an] interest [in favor of an encroacher], we review the judgment
under the abuse of discretion standard”]; see also Husain v. California Pacific Bank
(2021) 61 Cal.App.5th 717, 727-728 [“ ‘[T]he trial court is better equipped than we are to
fashion equitable relief and we afford it considerable discretion.’ ”].)
Here, the trial court effectively applied the “relative hardship doctrine” in denying
injunctive relief, awarding damages, and fashioning an alternative equitable remedy to
resolve the dispute. Although the trial court did not explicitly state, in its statement of
decision, that it was applying the “relative hardship doctrine,” the record is clear the court
balanced the relative equities implicated by the parties’ respective positions in reaching
its decision. In other words, the court’s analysis and ultimate resolution of the dispute
applied the relative hardship doctrine in substance, even if not expressly so. In fact, in
subsequently ruling on the Johnsons’ motion for new trial, the court explicitly clarified it
had applied the “relative hardship doctrine” in reaching its decision in the underlying
dispute.
We detect no abuse of discretion in the trial court’s resolution of the dispute in this
matter. We further conclude that the implied and express factual findings underlying the
court’s rulings are supported by substantial evidence. (See Briggs v. Eden Council for
Hope & Opportunity (1999) 19 Cal.4th 1106, 1115-1116, fn. 6 [we presume the “trial
court impliedly found ‘every fact necessary to support its order’ ”].) Accordingly, we
affirm the trial court’s rulings.
Little Rock Ranch and the Johnsons had neighboring properties in Waterford; both
properties were large. Little Rock’s property exceeded 600 acres and was planted with
walnut trees. The Johnsons’ property exceeded 200 acres and was planted with almond
trees. The trial court found Little Rock Ranch was trespassing, by encroachment, on a
strip of the Johnsons’ property, having physically leveled the land and integrated it into

25.
the development of an irrigated walnut orchard on its own land. The disputed strip
consisted of 3.44 acres and, prior to Little Rock’s encroachment, was essentially barren.
It had not been put to any significant use by the Johnsons in decades, nor was any
significant future use contemplated by the Johnsons.
The court considered various factors in assessing the equities at issue. Little Rock
had invested substantial time, resources, and acumen in developing the orchard. The
proportionate cost of the improvements made to the largely barren strip exceeded
$25,000. The court observed that, as result of considerable time, effort, and money
expended by Little Rock Ranch, “the value of the property in dispute ha[d] been
improved by the planting of walnut trees” and “[i]t’s value [was] now greater than it was
originally.”
The court also considered the Johnsons’ position: “The Plaintiffs have demanded
that the [3.44] acres in dispute be restored to their original condition before Little Rock
Ranch improved the property. In other words, the Plaintiffs wish to have the walnut trees
and irrigation installed on the property removed and wish to have several thousand tons
of dirt brought back to the property.” The court inferred that undoing the improvements
would cost substantially more than the cost of making them, because, inter alia, “the cost
of transporting big caterpillars to the property would have to be spread over less than 4
acres, instead of 677 acres.” In other words, because the entire orchard had been
designed and developed as a whole, Little Rock generated economies of scale during the
initial development. Undoing the improvements on the strip would not only be
disproportionately more expensive, but would affect other aspects of the orchard, given
its integrated design as reflected in, among other things, the irrigation system and the
utilization of “soldier rows” of trees along its perimeter. The court concluded that the
cost of restoring the property to its original condition, including the required earth-
moving and reconstruction of a hillslope, would be “excessive.”

26.
 The court further noted that “removing an estimated 400 18 to 24 foot tall walnut
trees” and “removing all of the irrigation piping and micro sprinklers” would be
economically wasteful, in that the cost would outweigh the value of the land in an
unimproved state.5 The court observed that were the trees and irrigation system to be
ripped out, the land would “become a dry, barren ‘patch’ of land, in the midst of beautiful
orchards on either side of it,” and its value would drop from “$35,000 per acre to roughly
$8,000 per acre.”
The trial court found that while Greer committed the trespass, he (1) had operated
on the understanding that his property extended to the barbed-wire fence, and (2) had
taken multiple steps towards designing and developing his walnut orchard before the
Johnsons made any move to inform him that the fence line was not the property line. The
court made findings of fact to the effect that Jim Booth, Little Rock Ranch’s realtor, was
told by Albert Roen that the Roen property extended all the way to the fence to the south,
and that Booth, in turn, told Greer that the southern boundary of the Roen property was
marked by the barbed-wire fence. The court also found Greer did not properly read the
relevant contents of the preliminary title report that generally noted the fence line
encroached onto adjoining land in multiple areas.6 Finally, the court found that, by the
time the Johnsons complained to Greer about Little Rock’s encroachment on to their

5 The court noted the law did not “sanction economic waste” and mentioned “the
doctrine of economic waste.” Plaintiffs question the applicability of the doctrine of
economic waste in the present context. However, as a general principle, “[e]quity abhors
wanton waste.” (Gammon v. McKevitt (1920) 50 Cal.App. 656, 665.)
6 Greer testified that he undertook a cursory review of the preliminary title report.
Furthermore, Greer understood, based on a conversation he had previously had with
Booth, that while there was a potential, in the case of large agricultural properties, for
minor discrepancies between property lines and fence lines, any such discrepancies
would be de minimis, that is, limited to a foot or two and to some spots. Therefore, the
relevant general notation in the preliminary title report would not necessarily have tipped
him off as to the existence of the boundary dispute underlying this case.

27.
property, Greer had completed leveling and earth-moving work on the entirety of the
property he believed was his (including the disputed property) and had “already ordered
and paid for irrigation systems and specially budded walnut trees” for the same acreage.
As for detriments suffered by the Johnsons on account of the trespass, the trespass
interfered with the Johnsons’ ability to use the disputed strip however they desired and,
more specifically, the opportunity to use it for occasional hunting of squirrels and rodents
(which represented their usual use). After balancing the equities and hardships applicable
to each side, the court denied the Johnsons’ request for an injunction to end Little Rock
Ranch’s trespass. (See Dolske, supra, 58 Cal.2d at p. 520 [in applying the relative
hardship doctrine, the court considers, inter alia, the “proportionate hardships to the
parties”].) In reaching its decision, the court also relied on the test articulated in Brown
Derby Hollywood Corp. v. Hatton (1964) 61 Cal.2d 855, 858 [“ ‘[W]here the
encroachment does not irreparably injure the plaintiff, was innocently made, and where
the cost of removal would be great compared to the inconvenience caused plaintiff by the
continuance of the encroachment, the equity court may, in its discretion, deny the
injunction and compel the plaintiff to accept damages.’ ”].)
In light of evidence that excavations undertaken by Little Rock on the disputed
property created the potential for erosion of a dirt road (running alongside the fence) on
the Johnsons’ property, the court ordered Little Rock to prepare and execute a “remedial
plan, prepared by a licensed soils engineer or environmental consultant,” subject to
monitoring by the court. The court also awarded damages to the Johnsons.
The court’s ruling finds support in case law, including Hirshfield and Dolske. In
Hirshfield, supra, 91 Cal.App.4th 749, defendants encroached onto plaintiffs’
neighboring property with a masonry wall, a putting green, a sand trap, and waterfalls.
The trial court denied the plaintiffs’ request for an injunction compelling the removal of
the defendants’ encroachments onto the plaintiffs’ property. The Court of Appeal
affirmed because the costs of removing the encroachments outweighed the limited value

28.
of the affected property to the plaintiffs. In Dolske, supra, 58 Cal.2d at p. 520, the
California Supreme Court held the trial court erroneously ordered the removal of disputed
encroachments instead of awarding money damages, “where said encroachments are
causing little or nominal damage … and the cost of their removal would be
proportionately great.”
Plaintiffs rely on Salazar, supra, 245 Cal.App.4th 634, a case involving
encroachment by the defendant onto the plaintiffs’ neighboring property, by making a
road and erecting a gate on the latter property, cutting down trees thereon, and diverting
water from it through pipes and culverts. (Id. at pp. 638-641.) The Salazar court
concluded the trial court there did not abuse its discretion in granting injunctive relief to
plaintiffs and fashioning an equitable remedy in favor of plaintiffs that was tailored to the
factual circumstances of that case. (Id. at pp. 647-649.) However, Salazar is
distinguishable on the facts in many respects. In particular, in Salazar, “there was ample
evidence that [the] defendant’s encroachment onto [the] plaintiffs’ land was intentional,”
and was undertaken to take advantage of the flatter, more level grade of the plaintiffs’
land to make a road, and to tap into a spring on plaintiffs’ land in order to grow marijuana
on his own plot (which lacked a water source). (Id. at pp. 639-640, 642, 649.) In the
instant matter, by contrast, Greer and Little Rock Ranch undertook earth-moving work,
ordered specially budded trees, and had an integrated irrigation system designed, all in
the belief that the fence represented the boundary between the Roen and Johnson
properties. Furthermore, in Salazar, in contrast with the present case, the plaintiffs
presented relatively detailed evidence of a remediation plan and restoration costs. (Id. at
pp. 641-642, 648-649.)
Relying on Hansen v. Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020—a
case with far simpler facts and that is distinguishable on the facts—the dissent contends
that equitable relief was not warranted here. The dissent suggests that Greer was
negligent in not properly reading the preliminary title report, which contained a general

29.
notation to the effect that the “the fence line encroaches onto adjoining land in multiple
areas,” but did not specify the extent of divergence between the fence line and the
property line. The dissent posits that since Greer was negligent, Little Rock Ranch
cannot be considered an innocent encroacher, thereby precluding equitable relief in its
favor. However, the trial court specifically faulted Booth, Little Rock Ranch’s real estate
agent, for not explaining to Greer the contradictions between, on the one hand, the
seller’s vacant land questionnaire (which was completed by the Roens and indicated the
Roens were not using any neighboring property), and on the other hand, the preliminary
title report (which indicated the fence line did not perfectly align with the property line).
Moreover, there was evidence indicating that Greer understood, based on a conversation
he had previously had with Booth, that while there was a potential, in the case of large
agricultural properties, for minor discrepancies between property lines and fence lines,
any such discrepancies would be de minimis, that is, limited to a foot or two and to some
spots. Accordingly, the general notation in the preliminary title report to the effect the
fence line encroached, in places, onto adjoining property, would not necessarily have
alerted Greer to the facts underlying the instant dispute.
The court also considered the fact that Greer was assured by Booth that the Roen
property extended to the fence line, which fact, together with Greer’s understanding that
any potential divergence between the fence line and the property line would be limited to
a foot or two, in some spots, undercut the value of the aforementioned notation in the
preliminary title report for purposes of alerting Greer to the facts underlying the instant
dispute. Finally, the court considered the fact that, in undertaking extensive and
expensive earth-moving work, designing and ordering an irrigation system, and ordering
specially budded trees (that were not marketable), Greer relied on Booth’s assurance that
the Roen property extended to the fence line. The court’s express and implied findings
underlying its conclusion that Greer did not willfully or negligently cause the
encroachment at issue, are supported by substantial evidence, and the court’s conclusion

30.
in this regard was not an abuse of discretion. (Nellie Gail Ranch Owners Assn. v.
McMullin (2016) 4 Cal.App.5th 982, 1004 [“ ‘The question whether the defendant’s
conduct is so egregious as to be willful or whether the quantum of the defendant’s
negligence is so great as to justify an injunction is a matter best left to the sound
discretion of the trial court.’ ”].) Nor can it be said here, given the highly complex
factual situation at issue and the necessity of a site visit on the part of the trial court, that
Greer acted negligently as a matter of law, so as to categorically preclude the granting of
equitable relief.
Given the applicable law and relevant facts, we conclude the court’s resolution of
the disputed issues, including its denial of injunctive relief and formulation of an
alternative, equitable remedy, does not represent an abuse of discretion.

(3) Court Properly Found Little Rock’s Trespass Was Permanent Such That
“Diminution in Value” Damages Were Appropriate
The court also concluded that Little Rock Ranch’s trespass on the Johnsons’
property was permanent, such that an award of damages based on the diminution in value
of plaintiffs’ overall property in light of the loss of the disputed property, rather than
injunctive relief or damages pursuant to Civil Code section 3334, was the appropriate
remedy. We detect no error in the court’s rulings.
(a) Applicable Law
In determining whether injunctive relief and/or a damages award is an appropriate
remedy and in identifying the proper measure of damages, courts consider whether the
underlying trespass is permanent or can be abated. The law regarding private nuisances
is also instructive in this context. (See Mangini v. Aerojet-General Corp. (1991) 230
Cal.App.3d 1125, 1136 (Mangini) [“California cases have … recognized that invasions
of … property, otherwise amounting to a trespass, may also constitute a nuisance”];
Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 594
(Starrh & Starrh [“generally the principles governing the permanent or continuing nature

31.
of a trespass or nuisance are the same and the cases discuss the two causes of action
without distinction”].)
In determining whether the trespass or nuisance is abatable, courts may consider
“ ‘[w]hether (1) the offense activity is currently continuing, which indicates that the
[trespass or] nuisance is continuing, (2) the impact of the condition will vary over time,
indicating a continuing [trespass or] nuisance, or (3) the [trespass or] nuisance can be
abated at any time, in a reasonable manner and for reasonable cost, and [whether such
abatement] is feasible by comparison of the benefits and detriments to be gained by
abatement.’ ” (Starrh & Starrh, supra, 153 Cal.App.4th at pp. 594, 599 [“Technical
feasibility does not necessarily prove abatability.”]; see Mangini, supra, 230 Cal.App.3d
at p. 1146 [“the crucial distinction between a permanent and continuing [trespass or]
nuisance is whether the [trespass or] nuisance may be discontinued or abated”; “a
continuing nuisance is one that may be discontinued at any time”]; Beck Development
Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1217 (Beck)
[“[t]here is no short and all-inclusive rule for distinguishing between permanent and
continuing nuisances”; rather, any of various “ ‘tests’ emphasizing different factors which
may be considered”—ultimately, each “case must be determined upon its own peculiar
circumstances”].)
Beck addressed various tests for assessing whether a trespass or nuisance is
continuing or permanent. One test, for example, is the “continuing activity”/“permanent
encroachment” test. Beck explained that, depending on the circumstances, it may be
useful to consider whether the alleged injury can be abated simply by discontinuing an
ongoing use of the land or whether the injury arose on account of the location of the
defendant’s structures (an encroachment). (Beck, supra, 44 Cal.App.4th at p. 1218.)
Beck noted that while generally there would appear to be a distinction between a
continuing activity and a permanent encroachment, under some circumstances it is hard
to draw this distinction. A nuisance arising from a continuing activity is generally seen

32.
as having, as a “salient feature,” an impact that varies over time and gradually increases,
rather than effects that are “relatively static.” (Ibid.)
Beck also addressed another often-used test, “that is, whether the nuisance can be
abated at any time.” (Beck, supra, 44 Cal.App.4th at p. 1219.) Beck explained that “[t]he
abatability test, phrased as whether the nuisance can be abated at any time, is stated in
such broad terms that, standing alone, it does not convey much information.” (Id. at p.
1220.) Beck observed: “Accordingly, ‘the discontinued-or-abated rubric should be
regarded as no more than a convenient shorthand for the fundamental considerations’ that
must enter into the determination.” (Id. at p. 1220.) “These considerations include such
things as the feasible means of, and alternatives to, abatement, the time and expense
involved, legitimate competing interests, and the benefits and detriments to be gained by
abatement or suffered if abatement is denied.” (Ibid.) Beck emphasized, “there is no
single overriding test for determination whether a nuisance is permanent or continuing,”
and “[t]he determination must be made on the facts and circumstances of each case with
guidance from the various tests that have been set forth.” (Id. at p. 1222.)
The nature of the trespass— i.e., whether it is permanent or continuing—affects
the proper measure of damages. For example, when a trespass is continuing, a permanent
measure of damages is not an appropriate choice, as future harm is not ascertainable to a
certainty. (See Starrh & Starrh, supra, 153 Cal.App.4th at pp. 592, 598 [the distinction
between a continuing trespass and a permanent trespass is relevant to determining the
correct measure of damages; if the trespass will continue into the future because
abatement is not feasible, then damages can be fully ascertained, and full recovery is
available to the plaintiff for all harm suffered]; see also Beck, supra, 44 Cal.App.4th at p.
1216 [“In an action on a permanent nuisance, the plaintiff will be permitted to recover
both past and prospective damages while in an action on a continuing nuisance
prospective damages are unavailable and recovery is limited to actual injury suffered
prior to commencement of each action.”]; Spaulding v. Cameron (1952) 38 Cal.2d 265,

33.
267 [“some types of nuisances should be considered permanent, and in such cases
recovery of past and anticipated future damages [are] allowed in one action”].) In fact,
the question of characterization of a trespass as continuing or permanent “is related to the
damages suffered.” (Starrh & Starrh, supra, at p. 598 [“the question of whether a
trespass is continuing or permanent is ultimately a damages question”]; see Nestle v. City
of Santa Monica (1972) 6 Cal.3d 920, 937 [whether trespass is continuing or permanent
depends on the type of harm suffered].) In short, there is an interplay between the nature
of the trespass or nuisance (i.e., whether it is continuing or permanent) and the damages
suffered.
“Pursuant to Civil Code section 3334, damages allowed for continuing trespass
include the value of the use of the property, reasonable cost of repair or restoration to the
property’s original condition, and the costs of recovering possession.”7 (Starrh & Starrh,
supra, 153 Cal.App.4th at p. 592, italics added.) However, “general principles of
damages in trespass cases require that the damages bear a reasonable relationship to the
harm caused by the trespass.” (Id. at p. 601.) “ ‘[T]he general rule is that if the cost of
repairing the injury and restoring the premises to their original condition amounts to less
than the diminution in value of the property, such cost is the proper measure of damages;
and if the cost of restoration will exceed such diminution in value, then the diminution in
value of the property is the proper measure.’ ” (Id. at pp. 588, 602 [“[D]iminution in
value may be a legitimate measure of damages where restoration costs are
unreasonable.”].)
Thus, if restoration of the property encroached upon is not possible or is
economically impractical, then statutory damages for such restoration costs are not
available pursuant to Civil Code section 3334; rather, diminution in value damages may

7 “Continuing trespasses are essentially a series of successive injuries.… In order to
recover for all harm inflicted by a continuing trespass, the plaintiff is required to bring
periodic successive actions.” (Starrh & Starrh, supra, 153 Cal.App.4th at p. 592.)

34.
be recovered. (Starrh & Starrh, supra, 153 Cal.App.4th at p. 599.) Simply put, under
Starrh & Starrh, “when the cost of abatement is not reasonable, these costs cannot be
recovered under either Civil Code section 3334 or [any other theory].” (Id. at p. 600.)
Starrh & Starrh further explained that “restoration cost is a statutorily authorized
economic damage which must rest on specific evidence or be reached by a mathematical
manipulation of the evidence presented.” (Ibid.)
“In any trespass case, the proper measure of damages is the one that will fully
compensate the plaintiff for damages that have occurred or can with certainty be expected
to occur.” (Starrh & Starrh, supra, 153 Cal.App.4th at p. 599.) Courts retain flexibility
in identifying and applying a theory of damages that is appropriate to the circumstances
at issue. (Id. at p. 604 [“Trial courts in trespass actions have historically been given great
flexibility to award damages that fit the particular facts of the case.”]; Givens v. Markall
(1942) 51 Cal.App.2d 374, 379, 380 [whatever rule is best suited to determine amount of
loss in particular case should be adopted]; Basin Oil Co. v. Baash-Ross Tool Co. (1954)
125 Cal.App.2d 578, 606 [there are many ways to measure damages for wrongful
occupation of property and courts must be flexible and choose measure allowing full
recovery as appropriate to circumstances]; Cassinos v. Union Oil Co. (1993) 14
Cal.App.4th 1770, 1785 [each case must be determined on its facts applying rule best
suited to determine amount of loss].)
(b) Analysis
As noted, the trial court concluded that Little Rock Ranch’s excavation of the
Johnsons’ hillside and encroachment thereon constituted a permanent trespass. In this
respect, the court stated: “Unless the Court orders the ripping out of the walnut trees,
now 15 to 20 feet high, and producing walnuts, as well as the drip irrigation system, the
trespass [by defendant] has to be considered as a permanent trespass.”
The case law supports the court’s conclusion that Little Rock Ranch’s excavation
of the Johnsons’ hillside and encroachment thereon by planting walnut trees and laying

35.
irrigation lines, amounted to a permanent trespass. Bertram v. Orlando (1951) 102
Cal.App.2d 506, 508, indicates that a permanent encroachment is “ ‘one which may not
be readily remedied, removed, or abated at a reasonable expense or one of a durable
character evidently intended to last indefinitely, costing as much to alter as to build it in
the first instance, while, if the structure causing injury can easily be changed or repaired
at reasonable expense, it is a temporary structure.” (See Field-Escandon v. DeMann
(1988) 204 Cal.App.3d 228, 233-243 [“the courts have held that the encroachment of
buildings, walls, foundations, pipes and vents erected on another’s property [citation],
and railroad tracks [citation,] are permanent in nature”].)
Little Rock’s trespass involved excavating and leveling a hillside on the plaintiffs’
property, planting approximately 400 specialty walnut trees, and laying down an
irrigation system. The court could properly find that Little Rock Ranch’s structural
changes, infrastructure development, and investment in trees were intended to be
permanent and were not readily abatable (the court noted that restoration costs would be
“excessive”). (See Starrh & Starrh, supra, 153 Cal.App.4th at p. 592 [“A permanent
trespass is an intrusion on property under circumstances that indicate an intention that the
[changes in use of the property] shall be permanent.”].) The changes and improvements
could not simply be discontinued on a dime and their impacts were relatively stable,
rather than varying over time. The Johnsons contend the trespass was continuing.
However, “[a] plaintiff cannot simply allege that a nuisance is continuing … but must
present evidence that under the circumstances the nuisance may properly be considered
continuing rather than permanent.” (See Beck, supra, 44 Cal.App.4th at p. 1217.)
Moreover, “[i]t is only where the evidence would reasonably support either classification
that the plaintiff may choose which course to pursue.” (Ibid.) The Johnsons’ contentions
in this context are not persuasive.
Since the trespass was permanent, the court concluded the Johnsons were entitled
to damages based on the “the decrease in market value” of their property. (See

36.
Spaulding v. Cameron, supra, 38 Cal.2d at p. 270 [where the trespass or nuisance is
permanent, damages for the decrease in market value of the affected property are
appropriate].) More specifically, the court stated that “the appropriate compensatory
damages” for the Johnsons being deprived of the 3.44 acres of their property was the
diminution in the market value of their overall property on account of the loss of 3.44
acres. The court elected to calculate the compensatory damages based on the “present
value” of the land, that is, $35,000 per acre, instead of “the value of undeveloped farm
land in that area,” that is, $8,000 per acre. The court thus awarded damages in the
amount of 3.44 acres x $35,000, for a total of $120,400.
The Johnsons argue that Civil Code section 3334 “provides the applicable damage
remedy.” Civil Code section 3334 provides:

“(a) The detriment caused by the wrongful occupation of real property … is
deemed to include the value of the use of the property for the time of that
wrongful occupation, not exceeding five years next preceding the
commencement of the action or proceeding to enforce the right to damages,
the reasonable cost of repair or restoration of the property to its original
condition, and the costs, if any, of recovering the possession.

“(b)(1) Except as provided in paragraph (2), for purposes of subdivision (a),
the value of the use of the property shall be the greater of the reasonable
rental value of that property or the benefits obtained by the person
wrongfully occupying the property by reason of that wrongful occupation.

“(2) If a wrongful occupation of real property subject to this section is the
result of a mistake of fact of the wrongful occupier, the value of the use of
the property, for purposes of subdivision (a), shall be the reasonable rental
value of the property.”
The Johnsons contend that pursuant to Civil Code section 3334, they are entitled
to an award of costs of restoration of the disputed property, the economic benefits
received by Little Rock Ranch, and the costs of regaining possession. However, as
discussed above, here the court concluded the trespass was permanent, in part because the
cost of restoring the property to its original condition, including the required earth-

37.
moving and reconstruction of a hillside, would be “excessive.” In light of these
determinations, damages under Civil Code section 3334 were not available to plaintiffs.
(See Starrh & Starrh, supra, 153 Cal.App.4th at p. 599 [if restoration of the property
encroached upon is not possible or is economically impractical, then statutory damages
for such restoration costs are not available pursuant to Civ. Code, § 3334; rather,
diminution in value damages may be recovered].)
It should also be noted that the Johnsons—who sought the costs of restoration of
the property to its original state, as damages pursuant to Civil Code section 3334—did
not present specific, appropriate evidence as to the amount of these costs; moreover, the
feasibility of restoring the disputed property to its original hillside form was very much in
doubt on the present record. (See Starrh & Starrh, supra, 153 Cal.App.4th at p. 600
[“restoration cost is a statutorily authorized economic damage which must rest on specific
evidence or be reached by a mathematical manipulation of the evidence presented”].)
Furthermore, the Johnsons contended, based on far-fetched calculations contained
in their post-trial brief, that the economic benefit derived by Little Rock Ranch was
“$2,306,500, less any costs of development,” and that this figure was just one component
of the total damages to which the Johnsons were entitled under Civil Code section 3334.
Not only did the Johnsons not adduce appropriate evidence of damages under Civil Code
section 3334, but the figures they propounded were wholly disproportionate to the value
of the strip of land at issue (the evidence showed the value of the 3.44 acre disputed
property was $8,000 per acre in its original condition and $35,000 per acre as developed
by Little Rock Ranch).
As mentioned above, based on descriptive evidence in the record as well as its
own observations of the relevant properties, the trial court ultimately concluded the cost
of restoration would be “excessive.” The court accordingly declined to award damages
pursuant to Civil Code section 3334. The court determined that an appropriate award of
damages would properly reflect the diminution in the market value of the Johnsons’

38.
property on account of the loss of 3.44 acres. (See Starrh & Starrh, supra, 153
Cal.App.4th at p. 588 [“diminution in value may be a legitimate measure of damages
where restoration costs are unreasonable”].)
We detect no error in the court’s decision to the effect the trespass was permanent
and, in turn, to award damages based on the diminution in value of the Johnsons’
property absent the 3.44 acres. (See Starrh & Starrh, supra, 153 Cal.App.4th at p. 604
[“there are many ways to measure damages for wrongful occupation of property and
courts must be flexible and choose measures allowing full recovery as appropriate to
circumstances”]; also see Civ. Code, § 3359 [“Damages must, in all cases, be reasonable,
and where an obligation of any kind appears to create a right to unconscionable and
grossly oppressive damages, contrary to substantial justice, no more than reasonable
damages can be recovered.”].)
The Johnsons further claim the court erred in not awarding additional damages for
conversion of dirt excavated from their property. We see no merit in this claim.
Addressing the Johnsons’ claim for conversion damages, the trial court observed:
“Plaintiffs seek to have Little Rock held responsible for the separate tort of conversion,
for the removal of dirt from the [3.44] acres, and spread elsewhere over the 677 acres.
They claim that the dirt was used to turn 60 plus acres of wetlands into productive
farmland. However, the Court rejects this contention.” The court explained that the
Johnsons had not provided authorities to support their claim for conversion damages.
The court added: “Secondly, if this were a case in which Little Rock had gone onto
Plaintiffs’ property, taken the dirt, and then retreated to its own property, Plaintiffs’ claim
for conversion might be valid. But here, it is not logical to attempt to separate out the dirt
from the property. The fact is, Little Rock trespassed onto the property and still retains
the property. There was no separate crop on the [3.44] acres. The dirt cannot be
considered separately from the property itself.” The court continued: “Third, there was
no proof of where the dirt, removed by Little Rock, ended up. At least some of the dirt

39.
could have been removed from one portion of the [3.44] acres to another portion of the
[3.44] acres.”
The court concluded the Johnsons’ theory of conversion damages—based on the
value of over 60 acres of Little Rock Ranch’s own property—amounted to a request for
“astronomic damages,” and denied the request. Significantly, damages are an element of
the tort of conversion, and are generally based on the value of the thing converted; at trial
the Johnsons failed to present competent evidence as to the amount of dirt removed from
the disputed property and the dirt’s value. (See Greka Integrated, Inc. v. Lowrey (2005)
133 Cal.App.4th 1572, 1581; Civ. Code, § 3336; CACI No. 2102.) We detect no error in
the court’s analysis and ruling rejecting the Johnsons’ theory of additional conversion
damages.
DISPOSITION
The judgment is affirmed. Each party to bear its own costs.

SMITH, J.
I CONCUR:

SNAUFFER, J.

40.
POOCHIGIAN, Acting P.J., dissenting,
The Johnson family has owned a 220-acre property for four generations. Its
northern boundary is marked by iron pipes at the northeast and northwest corners. There
is also a fence on the property that runs east to west about 50 feet south of the northern
boundary.1
Between the fence and the boundary lies about 3.44 acres of land.2 Roger Johnson
testified that during the summer, they would park harvesters there. The Johnsons also
occasionally hunted in this area and would sporadically throw down seed to “chum it.”
Overall, the Johnsons did not use this land often.
To the north of the Johnson property is a 677-acre property formerly owned by the
Roen family. Albert Roen (Roen) showed his property to a realtor. Roen testified that he
told the realtor about the correct boundary marker and that the fence was not on the
property line. However, the trial court did not credit that testimony and found that Roen
had incorrectly told the realtor that his property went to the fence on the Johnson property
(rather than to the actual boundary demarcated at its ends by the iron pipes). The court
found that the realtor conveyed this incorrect information to Raymond Greer, the
principal of Little Rock, and a potential buyer of the Roen property.

1 The majority characterizes this as the fence being in the “wrong” place. (Maj.
opn., ante, at p. 21.) However, there is no requirement that landowners only place fences
on property boundaries.
Moreover, it’s not entirely clear who built the fence. Roen testified the fence
surrounding his parcel – which apparently included the portion of fence in question
here – had been built “probably” close to 1900. Thus, even if the fence was in the
“wrong” place, it may have been Little Rock Ranch’s (Little Rock) predecessor-in-
interest who placed it there, rather than the Johnsons’ predecessor-in-interest.
2 Various acreage figures for the disputed area were used throughout the record.
The parties stipulated that the area was “3.1 acres, more or less.” The court’s ruling used
the figure of 3.9 acres. However, it appears the most accurate number is 3.44 acres. (See
maj. opn., ante, p. 3, fn. 1.) That figure is used throughout this separate opinion.

1.
 Roen accepted an offer from Greer to buy the Roen property, and escrow was
opened. Fortunately, the preliminary title report did its job, observing that “ ‘the fence
line encroaches onto adjoining land in multiple areas.’ ” Greer signed a document stating
he received and approved the preliminary title report. However, Greer had in fact not
read the report.
From March to May 2012, Little Rock conducted earthmoving operations on its
own property and on the 3.44 acres between the Johnsons’ fence and the actual property
line. In November 2012, a lawyer contacted Greer by letter protesting the encroachment
on the Johnsons’ property. Nonetheless, Little Rock proceeded to plant walnut trees and
install an irrigation system on the 3.44 acres after receiving the letter.3 According to
Greer, the previously ordered trees were not marketable because they were uniquely
suitable to Little Rock’s orchards.4 (Maj opn., ante, at pp.7–9.)
Unsurprisingly, the trial court found Little Rock had encroached and trespassed on
3.44 acres of the Johnson property. The court nonetheless ordered that the Johnsons deed
the 3.44 acres to Little Rock for $136,500.5
Equitable Relief
We faced a similar situation in Hansen v. Sandridge Partners, L.P. (2018) 22
Cal.App.5th 1020 (Hansen).6 In that case, the Hansens and Valovs owned adjoining

3 Indeed, Greer specifically testified that he knew he was planting the trees on the
Johnsons’ property. Shortly thereafter, Greer testified that he at least knew it was a
“possibility” he was planting and installing an irrigation system on the Johnsons’
property, but he “took the chance” and planted the trees anyway.
4 Greer testified that while the tree variety known as Tulare was grown elsewhere,
the trees ordered by Little Rock had their rootstock budded to a “specific subvarietal.”
According to Greer, the specific subvarietal would not “readily move[] on the market.”
However, Greer did not even ask the nursery if they could resell the 500 trees Little Rock
had ordered.
5 The trial court’s written ruling, and its willingness to conduct a site visit, reflect
a thorough and thoughtful consideration of the issues presented.
6 Though erroneously applied here, the law of equitable relief is not altered by
today’s opinion. The majority does not undermine or persuasively distinguish Hansen,

2.
parcels. The Hansens had long used their parcel for farming. Respondent Erik Hansen’s
father told him there was a “ ‘lot line adjustment issue’ ” under which “ ‘there was a
discrepancy in the line in what we [i.e., the Hansens] have been farming.’ ” (Id. at
p. 1025.) The specifics of the “ ‘lot line adjustment issue’ ” became clear in the ensuing
litigation: the Hansens had been farming on their own land plus about 10 acres of
Valov’s property.
In the spring of 2012, the Hansens installed a drip irrigation system and performed
“deep ripping” of 160 acres – including the 10 acres on Valov’s property. (Hansen,
supra, 22 Cal.App.5th at p. 1026.) In June 2012, the Hansens planted pistachio trees on
the 160 acres. (Ibid.)
Valov sold his property to appellant Sandridge Partners, L.P., and the sale closed
in December 2012. The Hansens and Sandridge attempted to resolve the dispute
concerning the 10 acres but were unable to do so.
Hansen and Sandridge sued each other. Sandridge’s suit alleged causes of action
for conversion, trespass, and quiet title. After a trial, the court fashioned equitable relief
for the Hansens pursuant to Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749. The
Hansens were permitted to continue farming the 10 acres of Sandridge’s property but had
to pay the fair market value of the unimproved land to Sandridge. (Hansen, supra, 22
Cal.App.5th at p. 1027.)7
We began our analysis by stating the applicable standard of review. “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

which remains good law. The majority also affirms that encroachments must have been
“ ‘ “ ‘innocently made’ ” ’ ” to warrant denial of an injunction against the encroachment.
(Maj. opn., ante, at p. 23, quoting Salazar v. Matejcek (2016) 245 Cal.App.4th 634; see
also maj. opn., ante, at p. 28, citing Brown Derby Hollywood Corp. v. Hatton (1964) 61
Cal.2d 855, 858.)
7 The Hansens’ equitable relief would terminate upon certain conditions.

3.
matter of law. [Citation.]” (Hansen, supra, 22 Cal.App.5th at p. 1028.) Doubtful cases
are to be resolved in favor of the innocent landowner over the encroacher. (Ibid.)
Applying this standard, we reversed the grant of equitable relief to the Hansens.8
We observed that an overarching principle animating the law in this area is that
encroaching trespassers are wrongdoers. (Hansen, supra, 22 Cal.App.5th at p. 1028.)
The “most important” manifestation of this principle is the absolute requirement that an
encroacher not have acted negligently or willfully in causing the encroachment. (Id. at
pp. 1028–1029 & fn. 10; see also maj. opn., ante, at p. 23, citing Salazar v. Matejcek,
supra, 245 Cal.App.4th at p. 649 [encroachment must have been “ ‘ “ ‘innocently
made’ ” ’ ”].)9
We concluded that, even assessing the evidence in favor of the judgment, the
Hansens’ encroachment was clearly negligent because they knew their boundary with the
adjoining property was in need of a “ ‘lot line adjustment.’ ” Nonetheless, they installed
an irrigation system and planted trees across a broad swath of land without first
determining the nature of the lot line issue. (Hansen, supra, 22 Cal.App.5th at pp. 1029–
1030.)
Similarly, the evidence presented here, even when viewed in favor of the
judgment, clearly shows Greer was at least negligent in causing the encroachment. A
preliminary title report expressly notified Greer that the fence line encroached on the

The other portion of the opinion dealt with a different issue: the Hansen’s request
8
for a prescriptive easement. (See Hansen, supra, 22 Cal.App.5th at pp. 1032–1037.)
9 The two other elements of equitable relief are (1) absence of irreparable injury to
the burdened landowner and (2) the hardship to the encroacher is “ ‘greatly
disproportionate’ ” to the hardship to the plaintiff caused by continuance of the
encroachment. (Hansen, supra, 22 Cal.App.5th at p. 1028.) However, if all three
elements are not present, the trial court lacks the discretion to grant equitable relief.
(Ibid. & id., fn. 12.) Thus, even if the majority and trial court correctly considered the
relative hardships as required by the third element, equitable relief was unavailable here
due to the encroacher’s negligence under the first element.

4.
neighboring property.10 Greer did not read the report, yet signed a document stating he
had.11 This is a rather straightforward example of how an encroachment can arise from
negligence. And even after being made aware of the “dispute” surrounding the 3.44
acres, Greer proceeded to plant the walnut trees and install an irrigation system.
The majority counters that Greer testified he undertook a cursory review of a
preliminary title report and “understood” that any discrepancy between the fence and
property “would be de minimis, that is, limited to a foot or two and to some spots.” (Maj.
opn., ante, at p. 28, fn. 6.) Nonetheless, the fact remains that Greer planted trees and
installed an irrigation system instead of determining the actual extent of the divergence.
And he did so on land that he admittedly knew possibly belonged to someone else. If
Greer had ascertained the actual extent of the discrepancy, he would have learned the
divergence was not a “de minimis” one or two feet, but instead around 50 feet.
And even after it turned out his claimed “understanding” was wildly wrong – to
the tune of 3.44 acres – Greer now asserts that the risk of error should fall on the
Johnsons, innocent nonparties to the transaction involving Greer, Booth and Roen. The
fact that Greer did not know the actual extent of the divergence is “precisely why it was
negligent to plant a permanent crop in the area without determining where the correct lot
line was located.” (Hansen, supra, 22 Cal.App.5th at p. 1030.) “Indeed, if that conduct
does not constitute a negligent encroachment, it is hard to imagine what would.” (Ibid.)
“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.” (Hansen, supra, 22

10 Innocent in this context does not mean “correct.” If the preliminary title report
had not put Greer on constructive notice of the issue, he would have likely been entitled
to rely on representations of the seller/realtor and visual cues like the fence.
11 It is not that Greer failed to read the preliminary title report “properly,” (maj.
opn., ante, at p. 30), he did not read the contents of the report at all.

5.
Cal.App.5th at p. 1030.) That is exactly what occurred here. Greer himself testified that
he knew it was a “possibility” he was planting and installing an irrigation system on the
Johnsons’ property, but he “took the chance” and did it anyway. In equity, such conduct
“should not be condoned, and certainly not rewarded.”12 (Ibid.)
Because the encroachment here was not “innocent,” the Johnsons were entitled to
injunctive relief against Little Rock’s trespass. (See Salazar v. Matejcek, supra, 245
Cal.App.4th at p. 649.)
Laches
The court held that the Johnsons’ effort to obtain equitable relief was defeated by
the doctrine of laches. “[L]aches is established by showing unreasonable delay in
bringing the action and prejudice to defendant resulting from this delay [citations].”
(Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 14.) Only when the delay is
unreasonable will laches apply. (See Hahn v. Board of Education (1988) 205 Cal.App.3d
744, 753.) “The party asserting laches bears the burden of production and proof on each
element of the defense. [Citation.]” (Highland Springs Conference & Training Center v.
City of Banning (2016) 244 Cal.App.4th 267, 282.)
Here, the court focused on the fact that Little Rock’s earthwork on the property
was completed by May 2012, yet the Johnsons’ lawyer did not contact Greer until the end
of November 2012. However, as the court acknowledged, the Johnsons are “absentee
owners who only occasionally visited their property.” They had leased the land to a

12 The majority’s response to the points raised in dissent is to note that Booth
acted negligently in connection with the sale of land from Roen to Greer. (Maj. opn.,
ante, at p. 30.) However, as explained above, Greer was clearly negligent in causing the
encroachment. The fact that Booth also acted negligently does not aid their position that
the encroachment was “ ‘ “ ‘innocently made.’ ” ’ ” (Id. at p. 23, quoting Salazar v.
Matejcek, supra, 245 Cal.App.4th at p. 649.) Moreover, Booth was negligent in
connection with the sale of land from Roen to Greer – a transaction to which the
Johnsons were strangers and bore no responsibility.

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farmer. While the lessee farmer “may” have been aware of the earthmoving activities,
the Johnsons “did not discover it for almost 6 months.”
The court conceded that “six months by itself might not be sufficient to trigger
laches.”13 Nonetheless, the court added to the six months what it referred to as “at least
50 years” of “inaction.” The court held that this combined time period displayed an
“attitude of disinterest” and triggered laches.
However, laches applies to a delay in bringing suit. It is unclear how the
Johnsons’ “inaction” during the 50 years before Little Rock’s trespass could constitute a
delay in bringing suit for said trespass.
Nor is it relevant that the Roens used the 3.44 acres during the preceding decades,
because they did so with the Johnsons’ knowledge and permission. Allowing your
neighbors (and, in this case, family) to use your property is not a “failure” to assert the
rights attendant to property ownership. If anything, the granting of permission to use
property is an expression of ownership. In any event, it is not grounds for laches.
Moreover, it is unclear what action the Johnsons were required to take during
those 50 years. The Johnsons used the land for storing harvesters and hunting. It is true
that this use was “occasional.” However, there is no “use it or lose it” policy with respect
to private land ownership.
The court did observe earlier in its ruling that the Johnsons “took no action
whatsoever to move the fence to the proper boundary lines.” However, there is no
requirement to only have fences on the boundaries of one’s property. The Johnsons were

13 The trial court correctly used the performance of the earthwork as the beginning
of the time period relevant to laches. That is when the Johnsons suffered an actionable
wrong. The majority’s laches analysis instead observes that the Johnsons “waited” until
“nine months after escrow closed” to bring the boundary issue to the attention of Little
Rock. (Maj. opn., ante, at p. 22.) However, when escrow closed, the Johnsons had
suffered no wrong and had no cause of action. Since there was no lawsuit to file, there
could be no delay in filing suit.

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quite within their rights to maintain a fence on their property apart from the parcel
boundary.
Conclusion
Ordering private landowners to sell their property against their will to a trespasser
is a profound power. If it is to be used at all, it must be used sparingly. The facts of this
case do not justify it. I respectfully dissent.

POOCHIGIAN, Acting P. J.

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