Filed 3/19/20 Jones v. Bird CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

STEPHEN L. JONES, et al.,

Plaintiffs and Appellants,

v.

ROYLANCE BIRD III, et al.,

Defendant and Respondent. B295440

(Los Angeles County

Super. Ct. No. BC649152)

APPEAL from an order of the Los Angeles County Superior Court, Monica Bachner, Judge. Affirmed.

Stephen L. Jones for Plaintiffs and Appellants.

Laine T. Wagenseller for Defendant and Respondent.

_____________________________________

INTRODUCTION

Stephen Jones (Jones) and his wife Nobuko Jones lived next door to Roylance Bird (Bird) and his wife Pat. The Joneses believed a fence on the east side of their property was the dividing line between their property and the Birds’ property. The Joneses, however, were mistaken; surveys conducted by both neighbors confirmed the fence was actually on the Birds’ property. When the Birds took down the fence in two phases and ultimately replaced it with a new fence, the Joneses filed this action, claiming the Birds destroyed their fence and excluded them from using a portion of the land near the fence.

After a two-day court trial, the trial court ruled against the Joneses on all of their causes of action. The Joneses appeal from the judgment, arguing the evidence compels a decision in their favor. Because the Joneses failed to meet their burden on appeal, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Joneses and the Birds Buy Adjoining Property

Jones, an experienced real estate litigation attorney who has been practicing law since 1976, and his wife purchased residential property in La Cañada Flintridge in 1990. A chain link fence enclosed most of the property. Although nothing in the legal description of the property or the purchase agreement indicated the Joneses were acquiring the chain link fence, they assumed the fence marked the boundary of their property. Over the years, the Joneses did not do anything to maintain the fence, except on one occasion when the Joneses’ dog dug a hole under the fence and got out, and Jones “semi”-repaired the fence by straightening the wires and filling in the hole.

The Birds purchased the property immediately to the east of the Joneses in 1993. Over the years the neighboring families did not communicate much with each other. In fact, although the Joneses and the Birds had been neighbors for 20 years before the events giving rise to this lawsuit, they had never met.

B. The Joneses and the Birds Fight over the Fence

In 2014 the Joneses discovered that the northern portion of the fence had been cut down and “pushed over” and that a tree had been cut down. Jones also saw a new fence had been put up near a portion of the old fence, leaving pieces of bamboo, cut pieces of the old fence, and a cut pipe on the ground. Jones, however, did not see anyone taking down or working on the fence.

Bird denied he cut down or knocked over the fence (or the tree). Bird believed the fence fell down naturally because it was old and trees and brush had been growing on and around it. Bird testified: “I did not destroy any portion of the fence in 2014.”

The Joneses were upset. In May 2014 Jones wrote a letter on his law firm stationery to Bird protesting the new fence and asking Bird to pick up the pieces of the old fence and the tree. Jones wrote: “I am not entirely sure whose fence that was. However, I have been told by neighbors who have lived there forever that the fence was constructed by some prior owner of my house and was entirely on my property. . . . [T]he precise location of the property line is important. If the old fence was wholly on your property, you had the right to destroy it, but not to push it onto my property. If the old fence was wholly or in part on my property, you had no right to destroy it in the first place. Thus, whoever’s fence it was, you had no right to destroy it and leave it on my property.” Jones asked Bird to pay $300 for the cost the Joneses incurred in removing the tree and to remove the portions of the old fence that were on what he contended (see below) was his property. Jones added that “[w]ilfull trespass and destruction of my property are very serious” and that “[p]unitive damages are allowed which may amount to about ten percent of your net worth.” Jones advised Bird: “[Y]ou should also consider that, if I have to go to court over this matter, I will have to obtain a survey so that I can prove to the court whose property the tree and fence were formerly on and whose property their remains are now on. I have a strong suspicion that the survey will show that some or all of your new fence is, in fact, on my property.”

Jones’s suspicion was wrong: He was “astonished” to learn, not only that surveys were expensive, but that, as both his and the Birds’ surveys revealed, the fence was on the Birds’ property. Jones admitted the survey was a “disaster” for him, and he conceded at trial there was no dispute about the boundary line the parties’ surveyors had determined.

The surveys also revealed that the area between the fence and the true property line, which the Joneses believed was their property, actually belonged to the Birds. The parties referred to this area as the Disputed Area (although on appeal the Joneses prefer to call it the Occupied Area). The parties stipulated the surveys showing the fence and the Disputed Area were on the Birds’ property were accurate and prepared “according to professional standards.” The Joneses do not argue they own the fence or the Disputed Area.

In 2017 Bird removed the remaining portion of the old fence as part of the installation of the new fence along the true property line. Jones came out of his house and yelled at Bird and his workers not to take down the old fence. Before he built the new fence, Bird obtained approval and a permit for the fence from the City of La Cañada Flintridge. The Joneses did not object when Bird applied for this approval, even though they received notice.

C. The Joneses Sue Bird

In February 2017 the Joneses filed this action against Bird. The Joneses alleged that, when they purchased their property in 1990, a chain link fence separated their property from the Birds’ property and that the fence surrounded the Joneses’ property on the north and west sides. The Joneses alleged that from 1990 to February 2017 they were “in peaceable possession” of the fence and “the real property between” the fence and the property line. The Joneses alleged they “recently discovered,” however, the fence “was not on the surveyed property line,” but instead “is slightly diagonal to the true property line.”

The Joneses asserted seven causes of action, two and three quarters of which they ultimately abandoned. In their first cause of action for “intentional destruction of personal property (a fence),” the Joneses alleged that in March 2014 Bird and his contractors “willfully and wantonly destroyed a large portion of” the fence. The Joneses alleged that part of the destroyed fence was on the Birds’ property, although the Joneses “had peaceable possession” of it, and part of the destroyed fence was on the Joneses’ property. The Joneses claimed Bird “cut the bottom portion of the metal fence poles near the ground level,” pushed the fence “over onto or towards” the Joneses’ property, and left the “cut down pieces” of the fence on the Joneses’ property. The Joneses alleged Bird eventually removed “most of the downed portion” of the fence, but left the concrete footings, which “remained in the ground and constituted a nuisance and danger to anyone walking in the area.” The Joneses claimed they suffered monetary damages as a result of Bird’s destruction of the fence.

In their second cause of action, also for “intentional destruction of personal property (a fence),” the Jones alleged that in February 2017 Bird and his contractor, “willfully, wantonly and with conscious disregard of” the Joneses’ rights, destroyed all “remaining portions” of the fence Bird and the contractor believed were on the Birds’ property. The Joneses alleged that Bird and the contractor built a new chain link fence “apparently intended to follow the property line,” but that part of the new fence was actually on the Joneses’ property, which the Joneses alleged they “confirmed with their surveyor.” The Joneses again sought monetary damages caused by the destruction of the fence.

In their fourth cause of action for ejectment, the Joneses alleged the new chain link fence “substantially trespasses” on the Joneses’ property “in a manner to be shown at trial.” The Joneses sought “an order directing Bird to remove all items trespassing” on their property, including the new chain link fence, and to return the Joneses’ property to the condition it was in prior to the Birds’ construction of the new fence.

The Joneses’ fifth cause of action, titled “Quiet Title (prescriptive easement),” included two separate claims. The first claim, which the Joneses eventually abandoned, was that the Joneses “openly and notoriously” used the Disputed Area (i.e., the area between the old chain link fence and the “surveyed property line”) without permission and that the prior owners of the Joneses’ property “constructed a number of permanent structures within the Disputed Area.” The Joneses alleged they and their predecessors have had peaceable possession of the Disputed Area and have used it as if it were their property openly, notoriously, and without permission for more than five years. On this claim the Joneses sought a prescriptive easement for the Disputed Area. The second claim was that, to protect the Joneses’ property from water flowing downhill from the Birds’ property and “from slope failure” and “catastrophic land slippage,” the prior owners of the Joneses’ property “constructed several permanent retaining walls,” a portion of which was “in the Disputed Area and . . . open and notorious and clearly visible to anyone.” Although it is not entirely clear from the allegations in the complaint (other than from the title of the fifth cause of action), the Joneses ultimately sought a prescriptive easement to access and maintain these walls. The Joneses also alleged they installed a large, “permanent flexible pipe, some 18 inches in diameter,” to help prevent water damage.

Finally, on their seventh cause of action, titled “Unlawful diversion of surface water,” the Joneses alleged a pipe “diverts surface and/or other waters” from the Birds’ roof onto the Joneses’ property. The Joneses sought an order enjoining Bird “from diverting surface water through the pipes or other devices onto” the Joneses’ property.

D. The Trial Court’s Ruling Is for the Birds

The trial court, correctly analyzing the Joneses’ first and second causes of action for “intentional destruction of personal property (a fence)” as causes of action for conversion, found the Joneses “failed to establish intentional destruction of a fence” either in 2014 or 2017. The court found the Joneses had not proven by a preponderance of the evidence they owned or peaceably possessed the fence. The trial court also ruled the Joneses’ fourth cause of action for ejectment failed because they failed to establish “a right of possession.”

On the Joneses’ fifth cause of action for quiet title based on a prescriptive easement, the trial court found the Joneses “failed to establish a prescriptive easement by clear and convincing evidence.” Regarding the first claim in the fifth cause of action, for a prescriptive easement on the disputed area, the court cited the Joneses’ concessions that the court “correctly noted the mere occupancy of the Disputed Area is not a use for which a prescriptive easement may be maintained” and that “Jones readily admits that he does not have a prescriptive easement over the entire Disputed Area.” Regarding the second claim in the fifth cause of action, for a prescriptive easement regarding what the Joneses claimed were retaining walls, the court ruled the Joneses “did not sufficiently establish adverse ‘use’ of the walls.” The court found the Joneses “did not build the walls or maintain the walls, and did not establish that they are in fact retaining walls.”

Finally, on the Joneses’ seventh cause of action for water diversion, the court ruled the Joneses “failed to present any evidence of encroachment of a water pipe or diversion of surface water, or any damage.” The court found that Jones “has never seen any water draining from the pipe” and that the Joneses “are not claiming any damage from diversion.”

The court entered judgment against the Joneses. The Joneses timely appealed.

DISCUSSION

A. Standard of Review

Where, as here, plaintiffs allege but fail to prove their causes of action, the standard of review on appeal, as the Joneses recognize, is not whether substantial evidence supports the judgment. (See Juen v. Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 978; Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.) “On appeal from a determination of failure of proof at trial, the question for the reviewing court is ‘whether the evidence compels a finding in favor of the appellant as a matter of law.’” (Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 769; see Eisen v. Tavangarian (2019) 36 Cal.App.5th 626, 647.) “‘“Specifically, the question becomes whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’”’” (Patricia A. Murray Dental Corp. v. Dentsply Internat., Inc. (2018) 19 Cal.App.5th 258, 270; accord, Petitpas v. Ford Motor Co. (2017) 13 Cal.App.5th 261, 302-303.) “‘Where, as here, the judgment is against the party who has the burden of proof, it is almost impossible for him to prevail on appeal by arguing the evidence compels a judgment in his favor. That is because unless the trial court makes specific findings of fact in favor of the losing plaintiff, we presume the trial court found the plaintiff’s evidence lacks sufficient weight and credibility to carry the burden of proof. [Citations.] We have no power on appeal to judge the credibility of witnesses or to reweigh the evidence.’” (Patricia A. Murray Dental Corp., at p. 270; see Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1486.)

B. The Evidence Does Not Compel a Finding in Favor of the Joneses on Their Causes of Action for Conversion of the Fence in 2014 and 2017

“‘“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are the plaintiff’s ownership or right to possession of the property at the time of the conversion; the defendant’s conversion by a wrongful act or disposition of property rights; and damages.”’” (Plummer v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38, 45.) Conversion can be based on the taking, alteration, or destruction of personal property. (Staley v. McClurken (1939) 35 Cal.App.2d 622, 628-629; 5 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, §§ 810, 823.)

The trial court found the Joneses did not meet their burden of proving Bird destroyed the fence in 2014. The evidence does not compel a contrary finding. Bird testified that he did not take down the fence in 2014 and that it fell down naturally over time, under the weight of surrounding flora and neglect. The trial court was entitled to credit that testimony and discredit Jones’s testimony to the contrary. (See Wright v. Best (1942) 19 Cal.2d 368, 379-380 [“the weight of the testimony and the credibility of the witnesses [are] matters wholly within the exclusive province of the trier of fact, whose determination upon them will not be disturbed by an appellate court”]; Hawkins v. City of Los Angeles (2019) 40 Cal.App.5th 384, 393 [credibility is the exclusive province of the trier of fact].) Although Bird admittedly removed the remainder of the old fence in 2017, by that time both parties knew from the surveys the fence was on the Birds’ property and, as Jones wrote to Bird in May 2014, the Birds had the right to destroy the fence if it was on their property.

The trial court also found the Joneses failed to meet their burden of proving they owned or were in “peaceable possession” of the fence. The evidence again does not compel contrary findings. The fence was not on the Joneses’ property, the Joneses did not construct the fence, and there was no evidence the Joneses paid for the fence when they bought their property. Putting aside what it means to peaceably possess a fence, as opposed to land enclosed by a fence (see Goodrich v. Van Landigham (1873) 46 Cal. 601, 603 [“[f]ences are a means by which the possession of land may be taken and held”]), and the Joneses’ concession “it makes no sense even to talk about peaceable possession of a boundary fence,” the evidence was not uncontradicted and unimpeached that the Joneses possessed the fence, peacefully or otherwise. Jones testified he did not do anything to maintain or repair the fence, which Bird testified “deteriorated over time,” became “progressively worse,” and fell down out of neglect. Whatever it takes to “possess” a fence, the Joneses did not do it.

The Joneses argue the trial court’s finding they failed to establish peaceable possession “is bewildering” because the Joneses “clearly [have had] peaceable possession of the [Disputed] Area” since 1990. But the Joneses’ conversion causes of action did not seek recovery of or damages to the Disputed Area; they sought damages for destruction of the fence. And “[t]he tort of conversion applies to personal property, not real property.” (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1295; see Munger v. Moore (1970) 11 Cal.App.3d 1, 7 [“conversion is a tort that may be committed only with relation to personal property and not real property”].)

The cases cited by the Joneses, Daluiso v. Boone (1969) 71 Cal.2d 484 and Allen v. McMillion (1978) 82 Cal.App.3d 211, are distinguishable. In Daluiso the plaintiff, an 85-year-old man with a heart condition who lived on a ranch he did not own, got into a “heated verbal exchange” with his neighbor after the neighbor took down a boundary fence that was on the neighbor’s property. The plaintiff became “very excited and upset” and “suffered emotional distress followed by physical injury,” and subsequently sued for intentional infliction of emotional distress. (Daluiso, at p. 488.) In ruling the trial court did not err in awarding the plaintiff damages without determining whether the neighbor had title to the land on which the fence was located, the Supreme Court held that, where “a plaintiff is in peaceable possession of land, he may recover in tort for all damages for injuries to his person or goods which are the natural and proximate result of a forcible entry by another irrespective of whether the entering party has title or the right to possession.” (Id. at pp. 486, 488, 499.) In contrast to the plaintiff in Daluiso, the Joneses did not sue Bird for intentional infliction of emotional distress or for personal injuries. They sued for conversion and sought damages for the destruction of the fence. And the Joneses did not claim or submit evidence that they were elderly and infirm or that they suffered any emotional distress or physical illness or injury.

In Allen v. McMillion, supra, 82 Cal.App.3d 211, also a fence removal case, the court extended Daluiso by holding that “one in peaceable though wrongful possession of real property may sue in tort for forcible interference with that possession even in the absence of injury to his [or her] person or goods.” (Id. at p. 214.) The plaintiff in Allen, however, alleged a cause of action for nonstatutory forcible detainer, which the court treated as a cause of action for trespass. (Id. at pp. 214, 218.) Indeed, the court in Allen conditioned its holding “upon proof of the elements of a trespass, i.e., a nonstatutory action for forcible entry . . . .” (Id. at p. 219.) In contrast, the Joneses did not allege a cause of action for nonstatutory forcible detainer or trespass. As Bird points out, the Joneses “did not assert a cause of action for trespass (for either claims related to the [f]ence in 2014 or 2017),” nor do they “seek damages related to any trespass (either in 2014 or 2017).”

C. The Evidence Does Not Compel a Finding in Favor of the Joneses on Their Cause of Action for Ejectment

The elements of a cause of action for ejectment are the plaintiff’s ownership of “some interest in real property” and the defendant’s possession and withholding of the property. (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 634, p. 65; see Haggin v. Kelly (1902) 136 Cal. 481, 483 [the “essential allegations” of a cause of action for ejectment “are the estate of plaintiffs, possession by defendants at the commencement of the action, and their wrongful withholding of the same”].) A plaintiff who does not own the land may maintain an ejectment action if he or she has a superior right to possession. (5 Witkin, supra, § 636, p. 66; see Payne & Dewey v. Treadwell (1860) 16 Cal. 220, 244 [“the substance of a complaint in ejectment under our practice is this: ‘A owns certain real property, or some interest in it; the defendant has obtained possession of it, and withholds the possession from him’”]; id. at p. 243 [“Now, what facts must be proved to recover in ejectment? These only: that the plaintiff is seized of the premises, or some estate therein in fee, or for life, or for years, and that the defendant was in their possession at the commencement of the action.”]; Western States Holding Co. v. Vaughan (1937) 24 Cal.App.2d 272, 276 [for ejectment, it is “unnecessary to prove that [the plaintiff] was the owner of the property, it being only necessary to allege and prove that he was in possession thereof”].)

The Joneses’ cause of action for ejectment was based on the allegation the chain link fence the Birds built in 2017 was on the Joneses’ property. The Joneses sought an injunction directing Bird “to remove all portions of the new fence . . . and other items which he has planted and/or installed” on the Joneses’ property. The evidence was undisputed, however, the fence was not on the Joneses’ property.

In addition, the trial court found the Joneses failed to establish a right to possession of the fence or the Disputed Area, and the evidence does not compel a contrary finding. (See Williams v. Goodwin (1974) 41 Cal.App.3d 496, 509 [“[w]hether plaintiff’s relationship to the land amounts to possession . . . is a question of fact to be determined by the jury”].) The Joneses did not build any structures, install any irrigation, or do any gardening in the Disputed Area, although from time to time they would go into the Disputed Area to clean up debris and fallen branches. The Joneses do not need the Disputed Area to access their house. Indeed, the only evidence the Joneses used the Disputed Area at all was their testimony they enjoyed the deer and other animals that would occasionally come there. Jones stated, “I used the deer for my enjoyment,” explaining, “So that’s not a use, but it is a use.” The Joneses provide no authority for the proposition viewing wildlife on real property amounts to possession for purposes of ejectment.

The Joneses argue the trial court’s “most critical finding,” that the Joneses “had not proved that they had ‘peaceable possession,’” was ambiguous because the trial court did not state whether the Joneses had failed to prove peaceable possession of (1) the fence, (2) “the narrow strip of land directly underneath” the fence, or (3) the Disputed Area. The Joneses argue we cannot imply a finding they failed to prove they possessed the Disputed Area because Code of Civil Procedure section 634 provides that “[w]hen a statement of decision does not resolve a controverted issue, or if the statement is ambiguous and the record shows that the omission or ambiguity was brought to the attention of the trial court . . ., it shall not be inferred on appeal . . . that the trial court decided in favor of the prevailing party as to those facts or on that issue.” The Joneses argue this rule applies here because they objected to ambiguities and omissions, as well as legal errors, in the trial court’s tentative decision.

The Joneses’ challenge to the (admittedly brief) statement of decision does not help their cause. First, as stated (and as the Joneses concede), the issue is not whether substantial evidence supports the trial court’s actual or implied findings; the issue is whether the evidence in the record compels findings in favor of the Joneses. As discussed, it doesn’t. Second, the trial court’s statement of decision is not ambiguous. It is clear from the trial court’s statement of decision that the court ruled against the Joneses on their ejectment cause of action because they had failed to prove a right of possession to the Disputed Area. The court identified the elements of a cause of action for ejectment as ownership of real property (not of a fence or other personal property), the defendant’s possession and withholding of that property (the Joneses did not claim Bird was possessing and withholding the fence or the strip of land under it), and damages. In the paragraph concluding the Joneses had “not established a right of possession,” the court stated that, although “the area . . . had been enclosed by the fence,” the Joneses did not maintain, garden in, or make any improvements to “the disputed area,” nor did “they need the disputed area to access their house.”

D. The Evidence Does Not Compel a Finding in Favor of the Joneses on Their Cause of Action for a Prescriptive Easement for the Walls on the Birds’ Property

As stated, the Joneses’ fifth cause of action for quiet title based on prescriptive easement included two claims, one seeking a prescriptive easement for the Disputed Area and one seeking a prescriptive easement for access to the walls on the Birds’ property. The Joneses abandoned the former claim, leaving only the claim for “a prescriptive easement to keep, access, and maintain a retaining wall.”

“The elements necessary to establish a prescriptive easement are well settled. The party claiming such an easement must show use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years.” (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570; accord, Ditzian v. Unger (2019) 31 Cal.App.5th 738, 743.) “‘To be adverse to the owner a claimant’s use must give rise to a cause of action by the owner against the claimant. [Citations.] This ensures that a prescriptive easement can arise only if the owner had an opportunity to protect his or her rights by taking legal action to prevent the wrongful use, yet failed to do so.’” (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1181; see 6 Miller & Starr, Cal. Real Estate (4th ed. 2015) § 15:29 [“A prescriptive right can only be established by a property owner’s failure to interfere with a use of property that he or she has a legal right to prevent.”].) “The burden of proof is on the party asserting the prescriptive easement.” (Hinrichs v. Melton (2017) 11 Cal.App.5th 516, 525.) “‘Whether the elements of prescription are established is a question of fact for the trial court.’” (Ranch at the Falls LLC v. O’Neal (2019) 38 Cal.App.5th 155, 180.)

The trial court found the Joneses had failed to meet their burden of proving they were entitled to an easement to access and maintain the walls because they failed to prove adverse use. There was no evidence the Joneses used an easement to access or maintain the walls on the Birds’ property at all, let alone continuously, openly, notoriously, or adverse to the Birds. (See 6 Miller & Starr, supra, § 15:35 [“The use is ‘adverse’ if it is not in subordination to the rights of the owner of the servient tenement, is without permission of the owner of the servient tenement, and is wrongful and open.”], fns. omitted.) Indeed, the trial court found the Joneses did not even prove the walls were retaining walls the Joneses (or anyone else) might need access to the Birds’ property to maintain. Bird testified they were landscape walls, not retaining walls. Bird testified that he built retaining walls on his property, that the city required permits for retaining walls, and that the Birds went to the city and were unable to find any permits for the walls the Joneses claim were retaining walls.

The Joneses argue that the walls “had been in continuous existence for over 27 years” and that “they were open, notorious, and obvious.” The issue, however, is not whether the Joneses met their burden of proving the walls were an easement, but whether they proved they had an easement to go onto the Birds’ property to access and maintain the walls. The trial court found they did not, the evidence does not compel the opposite conclusion, nor do the Joneses even argue it does.

E. The Evidence Does Not Compel a Finding in Favor of the Joneses on Their Cause of Action for Diversion of Surface Water

The Joneses’ final cause of action alleged the Birds diverted water from their roof by attaching a small rubber hose to a downspout from the Birds’ roof that deposited the water on the Joneses’ property. The Joneses stated in their posttrial brief they were “not yet claiming any damage from Bird’s diversion of the surface water,” but were seeking “an injunction before any damage occurs.”

The trial court found the Joneses had failed to prove the Birds diverted any surface water to the Joneses’ property. The evidence does not compel a contrary finding. Indeed, the Joneses concede “the trial court’s findings were technically correct . . . .” Bird testified the rubber hose was 50 feet long and transferred water from the drain spout to the corner of the Birds’ property. The Joneses did not present evidence that water from this hose actually flowed onto their property. Jones testified that the hose was “very difficult to get to from [his] property” and that he had never seen any water coming out of the pipe. He also testified he was not aware the hose had caused any damage. The Joneses did not present a single percipient witness who observed any water diversion or an expert witness who could state that the placement of the hose or the topography of the property would cause diversion of water onto the Joneses’ property. Yes, there was a hose, and there was circumstantial evidence the Birds used the hose to divert water from their roof to an area on their property, but there was no evidence whether, how, or where the hose diverted any water onto the Joneses’ property.

DISPOSITION

The judgment is affirmed. Bird is to recover his costs on appeal.

SEGAL, J.

We concur:

PERLUSS, P. J. FEUER, J.