Opinion
NOT TO BE PUBLISHED
Santa Clara County, Super. Ct. No. CV050111
ELIA, J.The issue on appeal in this case is whether the trial court erred in determining that, as a matter of law, appellant William Almon has no right to use public utility easements located upon the neighboring property of respondent Blandor Way LLC, a Delaware Limited Liability Corporation, for the purpose of connecting appellant's property to the public sewer line installed underneath Blandor Way. The parties brought opposing motions for summary judgment, which the court resolved in favor of respondent.
Appellant argues that the public utility easements at issue are appurtenant to his property and he is within the class of persons entitled to use the public utility easements because his property is landlocked, the easements were established for the benefit of his property, and installation of a sewer connection across respondent's property is the only possible way for his property to connect to the main public sewer line. Respondent counters that appellant is a private individual who is not within the class of persons entitled to use the public utility easements since appellant is not a public utility provider and appellant may use the private easements to connect to the public sewer. In this appeal, the parties do not dispute that public utility easements were created; the only question is their nature and scope.
A. Code of Civil Procedure Section 437c
A motion for summary judgment is properly granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) The "[s]upporting and opposing affidavits or declarations [must] be made by any person on personal knowledge, [must] set forth admissible evidence, and [must] show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations." (Code Civ. Proc., § 437c, subd. (d).) "In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment may not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact." (Code Civ. Proc., § 437c, subd. (c).)
"A plaintiff . . . has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff . . . has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant . . . may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(1).)
"A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(2).)
"We review the trial court's decision de novo, considering all of the evidence the parties offered in support of and against the motion, and the uncontradicted inferences reasonably deducible from the evidence, except that to which the court sustained objections. [Citation.]" (Paz v. State of California (2000) 22 Cal.4th 550, 557.)
B. Procedural and Factual Background
Appellant and respondent stipulated to certain facts and to the admissibility of certain exhibits and they agreed as to the issues to be resolved by the court in ruling on their motions for summary judgment. The address of appellant's real property is 10570 Blandor Way, Los Altos Hills and the address of respondent's real property is 10568 Blandor Way, Los Altos Hills. Appellant's property is served by a septic tank and he "wishes to connect to the public sewer line through the public utility easements that are the subject of this litigation." "In or about the year 2000, a sewer line connecting to the main public sewer line was installed by a joint venture of property owners pursuant to the Magdalena Avenue Sewer Project Joint Venture Agreement, upon acceptance by the governing municipality known as City of Los Altos Hills, State of California, in the public roadway (i.e., Blandor Way) that serves [the parties'] properties."
The parties' properties were part of a subdivision of land shown on the map of Tract No. 3077, Albertsworth Estates, Unit No. 2, recorded in Book 144 of Maps at pages 12 and 13 in the Office of the County Recorder of Santa Clara County on March 14, 1962 (Tract No. 3077). Appellant's property generally corresponds to Lot 11 on the map and respondent's property is Lot 14 on the map.
The recorded map for Tract No. 3077 shows Lot 14 adjoining Blandor Way and Lot 11 adjacent to Lot 14 and not abutting Blandor Way. The map showed a 10-foot public utility easement connecting Lot 11 to Blandor Way across Lots 14 and 15. The map showed a five-foot public utility easement connecting Lot 11 to Blandor Way across Lot 14. The map further depicted public utility easements and rights of way designated as follows: a "10' P.U.E. (Underground Facilities Only)," a "P.U.E. & R/W for lots 11, 12 and 13," and a "P.U.E. & R/W for lots 11 and 13" on Lot 14 and a "R/W for lot 11" on Lot 13. It also identified W.C.E.'s (Wire Clearance Easements) and an A.E. (Anchor Easement).
The first sheet of the map for Tract No. 3077 contained the "owner's certificate," signed by the Albertsworths, whose signatures were notarized. The owner's certificate represented that the Albertsworths were "the only persons whose consent is necessary to pass a clear title to said real property." The owner's certificate further stated in pertinent part: "We . . . hereby dedicate for public use, easements for public utilities under, on or over those certain strips of land lying between the rear lines and/or side lines of lots and the dashed lines, each designated as 'Public Utility Easement' or 'P.U.E.' . . . Public Utility Easements to be kept clear of buildings or structures of any kind, except Utility company structures and lawful fences . . . . [¶] We also dedicate for public use, easements for public utilities under those certain strips of land each designated as 'P.U.E. (Underground Facilities Only)' to be kept clear of buildings or structures of any kind except lawful fences. [¶] We also dedicate those certain strips of land delineated and designated as 'R/W for lot 11', 'R/W for lots 11 and 13', 'R/W for lots 11, 12 and 13', as non-exclusive easements for the purpose of providing access to and egress from the lots named and for the purposes of installing, repairing, maintaining, operating, and replacing underground water and/or gas mains, and/or electric lines and appurtenances to serve those individual lots; said non-exclusive easements to be kept open and free from buildings and structures of any kind except lawful fences." The owner's certificate also dedicated for public use the "anchor easement" and "easements for wire clearance" identified on the map for the tract.
The "Certificate of City Council" on the recorded map for Tract No. 3077 certified that the map was approved by the city council. It states that the city council "accept[ed] the dedication of all roads and did also accept all easements offered for public dedication as shown on said map within the blue border lines of said subdivision."
The subdivision's "Declaration Imposing Covenants, Restrictions, Easements and Agreements," was recorded in Book 5501 beginning at page 31 on or about March 14, 1962, in regard to Tract No. 3077. It contained the Albertsworths' notarized signatures. The declaration provided that the property "shall be conveyed subject to the conditions, covenants and charges set forth in the various clauses" and bound "all subsequent purchasers of said property, or any part thereof." In regard to easements, the declaration provides in Clause IV: "Easements as indicated upon the recorded Map of this subdivision, are reserved for the installation and maintenance of sewers, pole lines, utilities, rights of way and other uses for public or quasi-public good. No buildings shall be placed upon such easements or interference be made with the free use of the same for the purposes intended." Clause XV provides: "These covenants, restrictions and agreements are to run with the land and shall continue in full force and effect until the date of March 14, 1987, at which date the same shall be automatically extended for successive periods of 10 years, unless by a properly executed and recorded statement the then owners of 75% or more of the lots in the said Subdivision, as shown on the recorded map thereof, elect to terminate or amend them in whole or part."
A map for Tract No. 4064, Albertsworth Estates, Unit No. 5, "a re-subdivision of lots 11, 12, and 13, 'Tract No. 3077, Albertsworth Estates Unit No. 2,' " was recorded in Book 200 of Maps at pages 34 and 35 on or about October 7, 1965 (Tract No. 4064). This tract map showed the existing public utility easements across Lot 14 previously shown on the map for Tract No. 3077 but reconfigured the lot lines of former Lot 11 and renumbered it as Lot 24, showed a "R/W for Lot 24," and made other changes not relevant here. Appellant's property is Lot 24 on the map for Tract No. 4064. Respondent's property is still identified as Lot 14 on the map.
The first sheet of the map for Tract No. 4064 contained the "owner's certificate," signed by the Albertsworths, whose signatures were notarized. The "owner's certificate" stated in pertinent part: "We . . . hereby dedicate for public use, easements for public utilities under, on or over those certain strips of land lying between the rear lines and/or side lines of lots and the dashed lines, each designated as 'Public Utility Easement' or 'P.U.E.' . . . Public Utility Easements to be kept clear of buildings and structures of any kind except utility company structures and lawful fences. [¶] An exclusive easement for the purpose of providing access to and egress from Lot 24 [lot 11 on Tract No. 3077] and for purposes of installing, repairing, maintaining, operating, and replacing fences, gates, gate posts, underground water and/or gas mains and/or underground electric lines and appurtenances to serve said individual Lot and designated as 'R/W for Lot 24,' is not offered for dedication for public use, but is reserved for the exclusive use of the owner of Lot 24, his licensees, visitors, tenants, servants or employees and service vehicles, said exclusive easement to be kept open and free from buildings and structures of any kind except lawful fences, gates, and gate posts."
The "Certificate of City Council" on the recorded map for Tract No. 4064 certified that the map was approved by the city council. It stated that the city council "accept[ed] all easements offered for public dedication as shown on said map within the blue border lines of said subdivision."
A preliminary report for 10570 Blandor Way (appellant's property), issued by Chicago Title Company effective September 26, 2005, identified covenants, conditions and restrictions recorded "March 14, 1962, Book 5501, Page 31, of Official Records." A separate preliminary report for 10568 Blandor Way (respondent's property), issued by Chicago Title Company effective September 26, 2005, referred to the same covenants, conditions, and restrictions. It also identified public utility easements shown on the map for Tract No. 3077.
Respondent obtained a survey of its property on or about November 10, 2005. It identifies the locations of the easements at issue.
C. Scope of Public Utility Easements Burdening Lot 14
1. Applicable Law
Easements may be either appurtenant to land or in gross, that is personal to the grantee (see Civ. Code, §§ 801, 802; Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 521). "The land to which an easement is attached is called the dominant tenement; the land upon which a burden or servitude is laid is called the servient tenement." (Civ. Code, § 803.) "[A]n easement in gross runs in favor of the persons specified in the grant. [Citations.]" (Buehler v. Oregon-Washington Plywood Corp. (1976) 17 Cal.3d 520, 527.)
"An intended easement will never be construed as personal when it may fairly be construed as appurtenant to some other estate. Accordingly, when the deed does not expressly declare the easement to be appurtenant, or when the language of the deed is ambiguous, and it does not clearly appear whether the easement was intended to be in gross or appurtenant to land, evidence aliunde the document is admissible to determine the nature of the easement and to establish a dominant tenement. [Citations.] This principle applies with even greater force where . . . an appurtenant easement was clearly intended, but a dominant tenement was not specifically described." (Wright v. Best (1942) 19 Cal.2d 368, 383-384.) Where an intended easement may not be fairly construed as appurtenant, it will be construed as in gross. (See Elliott v. McCombs (1941) 17 Cal.2d 23, 32 [reservation in deed by grantor that had already conveyed all other parcels must be construed as easement in gross since the reservation "could not have been made for the benefit of any other property"].) "Whether an easement in a given case is appurtenant or in gross is determined mainly by the nature of the right and the intention of the parties creating it." (Eastman v. Piper (1924) 68 Cal.App. 554, 568.)
"The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired." (Civ. Code, § 806.) " '[T]he rules applicable to the construction of deeds generally apply with full force and effect to instruments conveying easements or other similar rights or privileges.' [Citations.] " (Laux v. Freed (1960) 53 Cal.2d 512, 522-523.) "With deeds as any other contracts, '[t]he primary object of all interpretation is to ascertain and carry out the intention of the parties. [Citations.] All the rules of interpretation must be considered and each given its proper weight, where necessary, in order to arrive at the true effect of the instrument. [Citation.]' (Burnett v. Piercy (1906) 149 Cal. 178, 189 [86 P. 603]; Civ. Code, § 1066; see Civ. Code, § 1635 et seq.; Code Civ. Proc., § 1856 et seq.)" (City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 238.)
" 'Extrinsic evidence is "admissible to interpret the instrument, but not to give it a meaning to which it is not susceptible" [citations], and it is the instrument itself that must be given effect. [Citations.] It is therefore solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence.' " (City of Manhattan Beach v. Superior Court, supra, 13 Cal.4th at p. 238.) "In determining the scope of an easement, extrinsic evidence may be used as an aid to interpretation unless such evidence imparts a meaning to which the instrument is not reasonably susceptible. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 521-523 . . . .") (Buehler v. Oregon-Washington Plywood Corp., supra, 17 Cal.3d at p. 526.)
An appellate court is not bound by a trial court's construction of an instrument establishing an easement " 'based solely upon the terms of the written instrument without the aid of evidence [citations], where there is no conflict in the evidence [citations], or a determination has been made upon incompetent evidence [citation].' [Citiations.]" (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-866, fn. omitted.)
2. County of Sacramento v. Pacific Gas &Elec. Co.
Relying on County of Sacramento v. Pacific Gas and Elec. Co. (1987) 193 Cal.App.3d 300, respondent asserts that, as a rule, public utility easements are exclusively for the benefit of public utility providers and appellant is not a public utility provider. In the cited case, the County of Sacramento granted franchises to the Pacific Gas and Electric Company (PG & E) to use county streets to supply gas and electricity to the public under the Broughton Act (Pub.Util.Code, § 6001 et seq.) and PG & E was statutorily required under Public Utilities Code section 6006 to pay the county a fee of two percent of its "gross annual receipts" derived from the use of the franchises. (Id. at p. 307.) The principal issue on appeal was whether PG & E was obligated to include in its fee calculations the value of gas and electricity transmitted and distributed to itself for its own internal use. (Ibid.)
A further question on appeal was "whether the right to use public utility easements [was] included in the franchises granted by the County." (County of Sacramento v. Pacific Gas and Elec. Co., supra, 193 Cal.App.3d at p. 313.) The appellate court explained that the trial court correctly determined that PG & E was not required to "pay franchise fees based upon gross receipts arising out of the use of public utility rights of way." (Id. at p. 314.) The court stated: "Public utility easements arise from the terms of Government Code section 66475, which provides that as a condition of approving a subdivision map a local government may require the subdivider to dedicate real property for public utility easements. Such easements are not granted in the public streets and highways, but are upon the real property purchased by the purchasers of the subdivided lots. Neither the easements nor the servient estate are granted to the County; rather the easements are expressly dedicated to the public utility purposes. It is fundamental that the language of a grant of an easement determines the scope of the easement. (Wilson v. Abrams (1969) 1 Cal.App.3d 1030, 1034 . . . .) Long ago our Supreme Court made clear the difference between public and private rights of way: 'Public ways, as applied to ways by land, are usually termed "highways" or "public roads," and are such ways as every citizen has a right to use. [¶] A private way relates to that class of easements in which a particular person, or particular description or class of persons, have an interest or right as distinguished from the general public.' (Kripp v. Curtis (1886) 71 Cal. 62, 64 . . . citation omitted.) Public utility easements, by their express terms, define the class of persons who have an interest or right in the use of the easement, and these easements do not extend rights to the public in general or to the County in particular. PG and E is in the class of persons for whom public utility easements were dedicated. Regardless of whatever regulatory rights the County has in public utility easements, PG and E obtained its rights to use such easements as a member of the class of grantees and not by virtue of its Broughton Act franchises." (Id. at pp. 313-314.)
At the time the subdivision maps at issue in this case were recorded, Government Code section 66475 had not yet been enacted (see Stats. 1974, ch. 1536, § 4, p. 3485, operative Mar. 1, 1975) but easements could be established by dedication on a subdivision map. (See former Bus. & Prof. Code, §§ 11590-11591 [Stats. 1943, ch. 128, § 1, p. 872; Stats. 1957, ch. 1606, § 1, pp. 2954-2955; Stats. 1965, ch. 1738, § 1, pp. 3894] [requiring certificates offering dedication by all parties having any record title interest and requiring certificates by approving governing bodies accepting or rejecting dedication to appear on final maps]; former Bus. & Prof. Code, § 11611 [Stats. 1961, ch. 1740, § 1, p. 3747; Stats. 1963, ch. 340, § 1, p. 1129-1130] [requiring governing body to accept or reject offers of dedication at time subdivider's final map approved].) As the appellate court in County of Sacramento v. Pacific Gas & Elec. Co., supra, 193 Cal.App.3d 300 correctly observed, the language of a written instrument creating an easement controls its scope. (See Buehler v. Oregon-Washington Plywood Corp., supra, 17 Cal.3d at pp. 526, 528; see also Continental Baking Co. v. Katz, supra, 68 Cal.2d at pp. 521-523; Civ. Code, § 806.)
Government Code section 66475 merely provides in pertinent part: "There may be imposed by local ordinance a requirement of dedication or irrevocable offer of dedication of real property within the subdivision for streets, alleys, including access rights and abutter's rights, drainage, public utility easements and other public easements." At the time the subdivision maps for Tract Nos. 3077 and 4064 were recorded, former Business and Professions Code section 11535, from which Government Code section 66475 was later derived, contained no language authorizing imposition of a dedication requirement for subdivision. (See Stats.1961, ch. 2060, § 1, p. 4287; Stats. 1963, ch. 1551, § 1, pp. 3136-3137; cf. Stats. 1965, ch. 1180, § 7, p. 2982.)
3. Public Utility Easements Burdening Lot 14
Pointing to the recorded subdivision maps and CC&R's, appellant argues that the express public utility easements established an easement appurtenant to his property that entitled him to install a sewer connection to the main public sewer line. Appellant's argument is impliedly based on the placement of the public utility easements on those maps. He maintains that the logical purpose of the easements was to give him as owner "the right to connect to the public sewer if and when such sewer [was] connected" and "the only logical conclusion to be drawn from the documents is that the easement was created for the benefit of" his property.
Clause IV of the recorded Declaration of Covenants, Restrictions, Easements and Agreements for Tract No. 3077 Albertsworth Estates Unit No. 2 indicated the properties in the subdivision were subject to the various easements shown on the recorded map and generally described their uses, including "for the installation and maintenance of sewers . . . ." The recorded map for Tract No. 3077 contained the Albertsworths' words of dedication, which were explicitly accepted by the Town of Los Altos Hills and which made clear that the Albertsworths intended to dedicate the P.U.E.'s designated on the map for public use for public utility purposes.
Appellant nevertheless maintains that the public utility easements should be construed as appurtenant to Lot 11 and this construction is supported by and consistent with California's private condemnation statutes, Civil Code sections 1001 and 1245.325, which empower an owner of real property to acquire by eminent domain an appurtenant easement to provide utility service, including sewer service, to the owner's property. The short answer is that, while the statutory eminent domain provisions impliedly recognize that provision of sewer service is a public use, they provide no extrinsic evidence relevant to the parties' intentions as expressed in the instrument establishing the public utility easements.
Civil Code section 1001 states: "(a) As used in this section, 'utility service' means water, gas, electric, drainage, sewer, or telephone service. [¶] (b) Any owner of real property may acquire by eminent domain an appurtenant easement to provide utility service to the owner's property. [¶] (c) In lieu of the requirements of Section 1240.030 of the Code of Civil Procedure, the power of eminent domain may be exercised to acquire an appurtenant easement under this section only if all of the following are established: [¶] (1) There is a great necessity for the taking. [¶] (2) The location of the easement affords the most reasonable service to the property to which it is appurtenant, consistent with the least damage to the burdened property. [¶] (3) The hardship to the owner of the appurtenant property, if the taking is not permitted, clearly outweighs any hardship to the owner of the burdened property."
"The power of eminent domain may be exercised to acquire property only for a public use." (Code Civ. Proc., § 1240.010.) This statutory requirement "reiterates the basic constitutional limitation that property may be acquired by eminent domain only for 'public use.' Cal.Const., Art. I, § 19; U.S.Const., Amend. XIV. Where the Legislature provides by statute that a use, purpose, object, or function is one for which the power of eminent domain may be exercised, such action is deemed to be a declaration by the Legislature that such use, purpose, object, or function is a public use." (Cal. Law Revision Com. com., 19 West's Ann. Code of Civ. Proc. (1982 ed.) foll. § 1240.010, p. 482.) It has been held that "[c]ondemnation of private property to provide sewer service also is a taking for a public use. (See City of Oakland v. Oakland Raiders (1982) 32 Cal.3d 60, 71-72 . . .; Linggi v. Garovotti, supra, 45 Cal.2d at pp. 23-26; 2A Nichols on Eminent Domain, supra, § 7.5154.)" (L&M Professional Consultants, Inc . v. Ferreira (1983) 146 Cal.App.3d 1038, 1053; see City of Pasadena v. Stimson (1891) 91 Cal. 238, 253.)
The public utility easements at issue were dedicated. " 'Dedication' is 'the uncompensated transfer of an interest in private property to a public entity for public use.' (Rohn v. City of Visalia (1989) 214 Cal.App.3d 1463, 1470, 263 Cal.Rptr. 319.)" (City of Hollister v. McCullough (1994) 26 Cal.App.4th 289, 297; see People v. Marin County (1894) 103 Cal. 223, 227.) "In general, there is no such thing as dedication between a landowner and private individuals." (26 Cal.Jur.3d (2000) Dedication, § 6, p. 254; see Prescott v. Edwards (1897) 117 Cal. 298, 301.) "[T]here can be no dedication to private uses." (26 Cal.Jur.3d (2000) Dedication, § 7, p. 257.) Thus, in this case, in light of the manifest intention to dedicate and the express offer of and acceptance of dedication, the public utility easements must be construed as in gross rather than appurtenant to a particular lot. This construction is reinforced by the fact that the map for Tract No. 3077 did not indicate that the public utility easements were for particular lots.
However, "where land was conveyed by reference to a map or plat showing proposed streets, it has been held that the grantee had an implied easement therein for use as a private way. [Citations.]" (Fristoe v. Drapeau (1950) 35 Cal.2d 5, 9.) "The purpose of the doctrine of implied easements is to give effect to the actual intent of the parties as shown by all the facts and circumstances." (Id. at p. 8.) "When a lot conveyed by a deed is described by reference to a map, such map becomes a part of the deed. If the map exhibits streets and alleys, it necessarily implies or expresses a design that such passageway shall be used in connection with the lots, and for the convenience of the owners in going from each lot to any and all the other lots in the tract so laid off. The making and filing of such a plat duly signed and acknowledged by the owner . . . is equivalent to a declaration that such right is attached to each lot as an appurtenance. A subsequent deed for one of the lots, referring to the map for the description, carries such appurtenance as incident to the lot." (Danielson v. Sykes (1910) 157 Cal. 686, 690.) "It is a thoroughly established proposition in this state that when one lays out a tract of land into lots and streets and sells the lots by reference to a map which exhibits the lots and streets as they lie with relation to each other, the purchasers of such lots have a private easement in the streets opposite their respective lots, for ingress and egress and for any use proper to a private way, and that this private easement is entirely independent of the fact of dedication to public use, and is a private appurtenance to the lots . . . ." (Id. at p. 689.)
Appellant suggests that the public utility easements could not have been granted in gross to the Town of Los Altos Hills because the town did not derive any benefit from a public utility easement that connects to only his property. The dedicated public utility easements permitted access to the interior lots of the subdivision that would be needed for any future development of a public sewer system serving the subdivision. The fact that appellant's property would benefit directly if the public utility easements on Lot 14 were utilized to provide Lot 24 (former Lot 11) with a sewer connection does not allow those public utility easements to be construed as appurtenant when the express dedication requires those easements to be construed as in gross.
The dedicated public utility easements at issue were not granted to a class of grantees. The subdivided property was located in the Town of Los Altos Hills, the Albertsworths made a written offer of dedication of the public utility easements depicted on the recorded subdivision map for Tract No. 3077, the town accepted that offer, and that offer and acceptance were certified on the recorded map. Thus, it appears from the record before us that the town acquired those P.U.E.'s for public use, specifically for public utility purposes.
Appellant asserts that the original subdividers would have expressly granted easements to a specific utility company such as PG&E if they "intended to convey the subject public utility easements to the public agency and/or a public utility company . . . ." The answer to this argument appears in appellant's own appellate brief, which explains that there was no available public sewer system when the subdivision was created and the lots were serviced by individual septic tanks. Presumably, the public utility easements established by dedication enabled the town to furnish sewer service to the subdivision in the future if it so wished. (See Civ. Code, § 1044 ["Property of any kind may be transferred, except as otherwise provided by this Article]; Callahan v. Martin (1935) 3 Cal.2d 110, 121 [under Civil Code section 1044, servitudes in gross "are assignable unless they are expressly or by necessary implication made personal to a particular individual"]; cf. Gov. Code, § 50335 ["The legislative body of a local agency may convey to any public corporation, or private corporation engaged in the public utility business, an easement to lay, construct, reconstruct, maintain, and operate water, sewer, gas or storm drain pipes or ditches, electric or telephone lines, and access roads used in connection therewith, over and upon any land belonging to the local agency, upon such terms and conditions as the parties thereto may agree"].)
The preliminary title reports and survey prepared decades after recordation of the subdivision maps and CC&R's add nothing to our construction of the instruments establishing the public utility easements at issue. Those public utility easements are not appurtenant to appellant's property and appellant does not have a private right as an owner to use the public utility easements at issue to install a sewer connection.
Appellant complains that, if the trial court's decision stands, he "will continue to dispose sewage waste in an old septic tank, rather than the public sewer system, which is not desirable for the surrounding properties or the environment." He also states that "the Town of Los Altos Hills, by ordinance and like many other governing entities, does not undertake the act of, nor is it responsible for, connecting the sewer line from a private property to the main public sewer line." "[Civil Code] [s]ection 1001 [was] added to provide the right of eminent domain to private persons for the limited [purpose] of . . . making utility connections." (Law Rev. Com. com., 7A West's Ann. Civ. Code (2007 ed.) foll. § 1001, p. 155.) Presumably, evidence of environmental degradation resulting from continued disposal of waste in a septic tank would be relevant to whether there was "great necessity" supporting acquisition by eminent domain of an appurtenant easement for a sewer connection. The scope of the "R/W" easements for Lot 24 (former Lot 11) depicted on the recorded maps for Tract Nos. 3077 and 4064 is not before this court and, therefore, we do not address whether those easements may be utilized by appellant to make a sewer connection.
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.