Use it or Lose it

Use It or Lose It - The Importance of Timely Assertion of Property Rights

How long is too long to wait to assert your real property rights? The Fifth District Court of Appeals recently weighed in on this issue in Johnson v. Little Rock Ranch, LLC, 73 Cal.App.5th 576(2022) affirming the trial court’s judgment, which ordered a property owner to sell a portion of their property to a trespassing neighbor. Applying the defense of laches and the doctrine of relative hardship, the Court denied the Johnsons injunctive relief to remove the encroachment which had existed on the property for more than 50 years, instead ordering the Johnsons to deed 3.44 acres of their property to Little Rock Ranch in exchange for the fair market value.

In 2012, Little Rock Ranch, LLC, purchased 677 acres of land in Stanislaus County to develop a walnut orchard. The Johnson family owned a 210-acre property south of and adjacent to the Little Rock Ranch property. Prior to the sale to Little Rock Ranch, the northern 677-acre parcel and the southern 210-acre parcel had been owned for decades by members of the same extended family – with the northern parcel being owned by a first cousin to Laverne Johnson (father to the three members of the Johnson family who initiated the lawsuit). While the two parcels had been separated for over a half of century by a barbed-wire fence, the actual property line was about 50 feet to the north of the fence, such that the fence encroached approximately 3.44 acres onto the southern parcel – a fact known to the owners of both parcels for decades.  

Following a bench trial, the trial court found that Little Rock Ranch was trespassing by encroachment on the Johnson’s property but determined that injunctive relief requiring Little Rock Ranch to move the encroachment was not appropriate. Instead, the court applied the defense of laches and the doctrine of relative hardship to fashion its own equitable remedy whereby the Johnson family was ordered to deed the portion of land that was encroaching to Little Rock Ranch.        

Key to the trial court’s analysis and ruling were facts demonstrating that the Johnsons had let the prior owner (their family) use the disputed portion of land for nearly 40 years free of charge. The Johnsons also did nothing to assert their rights to this portion of the property or move the fence for at least 50 years. Further, the trial court found it significant that Little Rock Ranch had invested a substantial amount of time and money in developing its walnut orchard on that portion of the property. On balance, under the relative hardship doctrine, the trial court found that injunctive relief was not appropriate as the Johnson family could be compensated by money damages. The Fifth District Court of Appeals agreed, affirming the trial court’s ruling.

Acting Presiding Justice Charles Poochigian dissented noting that “there is no ‘use it or lose it’ policy with respect to private land ownership.” Justice Poochigian concluded that “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.”

Click here to read the Court of Appeal of the State of California Fifth Appellate District Opinion.