Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment and postjudgment order of the Superior Court of Orange County, Gregory H. Lewis, Judge, Super. Ct. Nos. 05CC04317 & 05CC07995.
Law Offices of Marjorie G. Fuller, Marjorie G. Fuller, J.E.T. Rutter and Shara Beral Witkin; Daniel H. McLinden; Genovese & Owens and Timothy Genovese, for Defendants, Cross-Complainants, Respondents and Appellants, Preston Flanigan and Elizabeth Flanigan, individually and as Trustees of the Flanigan Family Trust, Eugene J. Toth and Elizabeth Y. Toth.
O’Connor Christensen & McLaughlin and Edward F. O’Connor for Plaintiffs, Cross-defendants, Respondents and Appellants Alfred Gausewitz and Bonnie Gausewitz.
BEDSWORTH, J.
This is an action to quiet title to an express easement claimed to have been extinguished by adverse possession. Alfred Gausewitz and Bonnie Gausewitz (Gausewitz) brought the action against Preston Flanigan and Elizabeth Flanigan, individually and as trustees of the Flanigan Family Trust, Eugene J. Toth, and Elizabeth Y. Toth (collectively, Flanigan unless otherwise indicated).
Flanigan appeals from a judgment entered on a special verdict that found no adverse possession. He argues the evidence does not support the verdict, mistaken instructions were given to the jury, and the scope of the easement was too broad. Gausewitz cross-appeals from a postjudgment order that denied his motion for attorney fees. Gausewitz contends the easement conferred a significant benefit on the public, so he was entitled to fees for prevailing on a public interest issue. We disagree on both counts, and so affirm both the judgment and the fee order.
In July 2003, Gausewitz purchased a hillside residence in Lemon Heights (an unincorporated area of Orange County). His neighbor to the east is Flanigan, who bought his home in 1997. South of Flanigan lies the Toth residence (purchased in 1993), and south of Gausewitz is the home of Torres (purchased in 1999). The four properties are of unequal size, such that Flanigan’s property extends some distance south of the Gausewitz/Torres boundary. The properties are bordered to the north by Foothill Boulevard and to the south by La Loma Drive. Access to the Gausewitz and Flanigan residences is via Wilding Road, a private road between their properties that runs south from Foothill Boulevard roughly to the Gausewitz/Torres property line. Toth and Torres have access from La Loma Drive.
We consider the evidence most favorable to Gausewitz under the rule that a judgment is presumed correct, and all presumptions must be indulged in favor of its correctness. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)
The Gausewitz deed included the following easement: “A right of way and easement for road and electrical, gas and water service and connection, over, along, under and across the following: a strip of land 12 feet wide, now used for a private roadway . . . as shown on a map of tract No. 61, C. E. Utt’s addition to Lemon Heights [recording details omitted].”
The private roadway referred to in the easement is Wilding Road. An assessor’s map of the parties’ properties reproduced in Flanigan’s brief – not challenged by Gausewitz – shows the easement in dispute as an extension of Wilding Road. The easement continues from the point at which Wilding Road ends, running along the west side of the Flanigan and Toth properties, south to La Loma Drive.
Bonnie Gausewitz, a real estate agent, investigated the property prior to purchasing it, and she knew it included a recorded easement down to La Loma Drive. She obtained a preliminary title report that showed the easement, had it plotted by engineers, and visually inspected the property. What she saw was a fence between the Flanigan and Toth properties with a gate in the fence across the easement (referred to by the parties as the Toth/Flanigan gate), and beyond the gate “a very wide, very clear dirt road all the way down to . . . La Loma.”
A month after Gausewitz purchased the property in July 2003, Alfred Gausewitz walked down the easement to the Toth/Flanigan gate. He found a chain fastened around the middle of the gate, secured by two locks. A day or two later, he rented a bolt cutter, cut through one of the links in the chain, and replaced the link with a combination lock.
Over the next year and a half, Gausewitz and Flanigan had disagreements over the former’s use of the easement. Matters came to a head in the spring of 2005, when Elizabeth Flanigan (also a real estate agent) accosted Bonnie Gausewitz and a friend walking along the easement, scolding her and asking what she was doing on the Flanigan property. Later that day, Bonnie Gausewitz called Elizabeth Flanigan to ask what was going on, only to be told by Elizabeth Flanigan that “Mr. Toth is very upset, and he told me he was considering doing a drive[-]by shooting.” Bonnie Gausewitz took the threat seriously. The instant action followed in March 2005.
The complaint named as defendants Flanigan, Toth, and Torres. It alleged Gausewitz had a recorded easement over the Flanigan and Toth properties, Flanigan had obstructed the easement, and both had interfered with use of the easement. Causes of action were set out to quiet title to the easement, for a declaration the easement was valid, and for an injunction against interference with the easement.
Flanigan’s theory on appeal is the evidence showed the easement was extinguished by adverse possession for a period of five years commencing in 1997 (when he purchased his property), because he kept the gate locked continuously, so the easement no longer existed when Gausewitz bought his residence in 2003. However, at oral argument the status of the gate prior to 1997 became an issue, so we set out a timeline of the testimony concerning the gate going back to 1993.
1993 – James Doyle. James R. Doyle owned the Toth property from 1969 until he sold it to Toth in 1993. Doyle testified there was no gate between his land and the neighbor to the north (now the Flanigan residence) when he owned the parcel. Both families’ children regularly used the pathway between La Loma Drive and the northern property. When Doyle sold to Toth, there was no gate between his property and the one to the north. Doyle had a block wall along his northern property line “over to the easement” “but it never crossed that easement.” A fence ran along the block wall, and then south along Doyle’s driveway down the western side of the property, but the fence did not cross the easement.
1993 to 2005 – Eugene Toth. Toth was called as a witness by Gausewitz. Toth contradicted Doyle, saying there was a gate between his property and the one to the north when he bought in 1993. He said the gate was wired shut, without a lock or chain.
In a 2005 deposition, Toth had told a different story. He said there was a fence with a locked gate blocking the easement when he bought the house. Toth said he did not know who had the key. Before closing, he had asked Doyle, but Doyle said he did not know anything about it. At the deposition, Toth said he changed the lock on the gate about five years earlier (2000). At bit later, he said he had not changed the lock, but instead put on another lock for security.
Confronted with the deposition testimony, Toth said it was possible there had been a lock on the gate. He testified he did not remember asking about the key and had never spoken with Doyle, since “everything went through my wife.”
On cross-examination, Toth was asked how many locks he had put on the gate. He said two. The first was a lock and chain he installed in 1993. Then this. “[Q.] Did you ever replace that lock? [¶] [A.] Yes. [¶] [Q.] When did you replace the lock? [¶] [A.] I’m not sure. I think it’s 2000. . . . [¶] [Q.] Is that lock still on there? [¶] [A.] No. [¶] [Q.] When was the last time you saw that lock on there? [¶] [A.] I think it’s 2000 – 2005, I think. [¶] [Q.] Did you replace that lock? [¶] [A.] Yes.”
On redirect examination, Toth gave a different explanation of what he did in 2000. He said there was a lock on the gate in 2000, but he lost the key, so he “put extra lock on there which I can control.” Asked “[s]o it’s not your testimony [the] lock was already on the gate when you purchased the property,” Toth replied “[t]hat was [the] reason why, so I didn’t remember. I know the gate was shut.”
1997 to 2003 – Preston Flanigan. Preston Flanigan testified there was a lock and chain on the Flanigan/Toth gate when he purchased his property in 1997. Flanigan put another lock on the gate in mid-October 1997, because “I wanted my own lock on there for security.” He never removed it. Flanigan’s lock was “sort of [a] horseshoe thing and . . . it’s designed, it prevents you from lifting and swiveling it.” From time to time during the ensuing years, whenever Flanigan walked the property and looked at the gate, it was always locked. Flanigan was told Gausewitz removed the lock, although he did not say who told him that.
1997 to 2003 – Ruben Vasquez. Ruben Vasquez was Flanigan’s gardener. He testified he had worked on the property since 1997, coming in Tuesday morning, “in the afternoons and on weekends.” Vasquez said there was a fence between Flanigan and Toth when he went to work for Flanigan, with a gate closed by a chain with a lock, and another lock in the middle of the gate. The same chain was there at the time of trial (July 2006). Vasquez said the gate was always locked when he was working on the property in the afternoons.
1999 – Howard Hall. Hall lived in the neighborhood and met the Flanigans at a party in the summer of 1999, where he struck up a conversation with Elizabeth Flanigan. Hall testified Elizabeth Flanigan told him the couple had walked to the party down “a pathway that connects Wilding Drive or Road to La Loma Drive.” He said “Mrs. Flanigan described it as a unique neighborhood feature that was open access, as if there was an ability for anybody to have walked up and down the pathway.”
2003 – Alfred Gausewitz. Alfred Gausewitz’s testimony is set out above, and we reprise it here to complete the picture of the evidence on the subject of the gate. Gausewitz looked at the gate shortly after buying his property in July 2003. It was secured by a chain with two locks, but neither was the horseshoe lock Flanigan claimed to have installed. Gausewitz cut a link out of the chain and refastened it with his own combination lock. Asked about Gausewitz’s testimony, Flanigan said Gausewitz was not telling the truth.
The jury was given the following instruction on the “continuous” element of adverse possession. “To find that the deeded easement has been extinguished by adverse possession, the Toths and the Flanigans must prove that the [] easement use was blocked continuously and uninterrupted for a period of five years. [¶] A single interruption during any five years, under such circumstances as to challenge the right of the adverse claimant, will prevent extinguishment, for there would then be no period of continuous adverse use for five years.”
On the “hostile” element of adverse possession, the jury was instructed as follows. “To find that a deeded easement has been extinguished by adverse possession, the Toths and the Flanigans [] must prove their possession was hostile as to the whole world, including each other, continuously and uninterrupted throughout the five year statutory period. [¶] Hostility means, not that the parties must have a dispute, but that the interference must be adverse to the easement holders rights to use the easement.”
The jury was given a special verdict form with three questions on the adverse possession defense. First was this: “Did the Flanigans block the ingress and egress to and from La Loma Drive for any period of five consecutive years from 1997 to the day Alfred Gausewitz removed the Flanigans’ lock from the Toth/Flanigan gate?” The answer was “no.” The remaining questions were not answered, since the form advised the jury to go on only if they answered question 1 in the affirmative.
Following the verdict, Flanigan requested a statement of decision on the scope of recorded easement. He asked for a declaration whether the easement was limited to the paved portion of Wilding Road and, if not, the permissible uses of the easement across the Flanigan and Toth properties.
The trial court found the easement “means the paved portion of Wilding Road . . . for vehicular and pedestrian use, and south of the paved portion, for the pedestrian use or such other use as is consistent with said easement and approved by appropriate governmental authority, and continuing to La Loma Drive, across the Flanigan and Toth properties.” Beyond that, the court declined to rule on the scope of the easement. It found the issue was not raised in the pleadings, nor addressed by the evidence offered at trial. Judgment was entered declaring the recorded easement valid and not subject to any claim by Flanigan, quieting title in Gausewitz, and enjoining Flanigan from encroaching upon, blocking, obstructing, or otherwise interfering with the reasonable use of the easement by Gausewitz.
I
Flanigan argues the “undisputed” evidence shows the easement was extinguished because all of the elements of adverse possession were met. But the only element in issue is the “continuous” requirement found wanting by the jury, and while a lot of things could be said about the evidence on that point, “undisputed” is not one of them. The evidence on that point supports the jury’s verdict – just as it would have supported a contrary verdict, depending upon whom the jury believed.
The burden of proof was on Flanigan, as the party claiming adverse possession, to show he exercised dominion and control over the easement continuously for five years following 1997. Flanigan offers two views of the evidence that, he contends, show the jury could not reasonably have found continuous possession lacking. One focuses on Preston Flanigan’s testimony, and the other on the testimony of Eugene Toth. Neither is persuasive enough to allow us to reject the jury’s verdict.
Flanigan argues the evidence was uncontradicted that Preston Flanigan put a lock on the Toth/Flanigan gate in 1997, and it remained there until removed by Alfred Gausewitz in 2003. He also asserts that three witnesses testified the gate was locked during the years between 1997 and 2003. So, Flanigan reasons, the easement had been extinguished by the time Gausewitz purchased his property in 2003.
But that is not the entire picture. There was conflicting testimony, and the credibility of Preston Flanigan and his witnesses was a matter for the jury. Alfred Gausewitz testified that Flanigan’s horseshoe lock was not on the gate when he examined it in July 2003. That contradicted Preston Flanigan’s testimony, and the jury was entitled to believe Gausewitz. It also was a permissible inference that Preston Flanigan was not telling the truth when he said he installed the horseshoe lock in 1997. Nor was the jury required to believe Flanigan when he said he had always seen the horseshoe lock on the gate during the years in dispute. So Preston Flanigan’s testimony did not compel a finding of continuous adverse use for five years after 1997.
As for Flanigan’s witnesses, only one testified the gate was locked. Ruben Vasquez, Flanigan’s gardener from 1997 though the date of trial, said he saw the gate locked when he first went to work on the property. After that, the gate was locked every time Vasquez was at the property (Tuesday mornings, plus an unspecified number of days during the week and on weekends), and it remained locked at the time of trial. In considering Vasquez’s testimony, the jury was entitled to weigh the fact he was not there every day, and the fact he was Flanigan’s employee. It was no more required to believe Vasquez than Preston Flanigan, and it cannot be said that Vasquez’s testimony compelled a finding of continuous possession.
Neither of the other two witnesses testified to events between 1997 and 2003. Frank Torres was Gausewitz’s neighbor to the south, and Willard Keeler was the prior owner of the Torres property. Nothing in the portion of the record cited by Flanigan contains testimony by Torres regarding the years between 1997 and 2003. The cited testimony was that Torres had been working in the area in the early 1990’s, the gate was put up sometime between 1993 and 1995 and, as far as he knew, it was always locked. Torres said he did a walk-through of the property with Flanigan “about 1997” and saw locks on the gate. Torres had nothing to say about the gate after 1997. As for Keeler, none of the record citations are to his testimony. So we have not been directed to any compelling testimony by these witnesses that supports Flanigan’s case. It was Flanigan’s burden to prove adverse possession, and the jury was entitled to disbelieve Preston Flanigan and Vasquez.
Flanigan’s second theory, first raised at oral argument, focuses on the testimony of Eugene Toth. He argues Eugene Toth testified the gate was locked in 1993 when he purchased his property, Toth added a second lock and chain of his own at that time, replaced his lock with a stronger one in 2000, and the latter was the lock cut off in 2003 by Gausewitz.
The argument regarding Toth is untimely, not having been raised in Flanigan’s opening brief, and that alone is sufficient ground to reject it.
But here again, there was contradictory testimony. James Doyle, the prior owner of the Toth property, testified there was neither a gate nor fence across the easement when he sold to Toth in 1993. And Eugene Toth’s testimony on the matter of a gate and lock was, to say the least, confused. He offered three different versions of events in 1993 – gate locked but key missing (deposition), gate wired shut without a lock or chain (first version at trial), and lock and chain he installed (on cross-examination at trial). Eugene Toth’s recollection of 2000 was also varied. At one time or another, he testified he changed the lock in 2000, he added another lock for security in 2000, he added the lock in 2000 because he lost the key to the prior one, and he was not sure when he replaced the 1993 lock, but he thought it was 2000. Toth also testified he had installed two locks on the gate, then seemed to say it was really three (1993 lock, replaced in 2000, and replaced again without saying when).
The jury could have believed Doyle and found there was no gate in 1993. It also could have disbelieved Eugene Toth’s claim to have put a lock and chain on the disputed gate in 1993. If so, the jury was left with no evidence when, if at all, Eugene Toth locked the gate prior to 2000, and with his 2000 lock as the one cut off in 2003 by Gausewitz. Without any evidence that Toth kept the gate locked for five years prior to 2003, the jury was entitled to find Flanigan failed to establish continuous adverse possession.
In addition, there was evidence from which the jury could infer there was no gate, or no locked gate, across the easement as late as 1999. Howard Hall testified he spoke to Elizabeth Flanigan at a neighborhood party that year, where she told him the Flanigans had just walked to the party down a pathway connecting Wilding Road to La Loma Drive. In Hall’s words, “Mrs. Flanigan described it as a unique neighborhood feature that was open access, as if there was an ability for anybody to have walked up and down the pathway.” That was directly contrary to Preston Flanigan’s trial testimony there was a locked gate across the easement from 1997 until Gausewitz cut the chain in 2003. The jury was entitled to believe Hall, and from that it could infer there was a period of time when the easement was open to all, without gate or lock. So on the record before us, there is sufficient evidence to support the special verdict that Flanigan did not establish continuous adverse possession for five years commencing in 1997.
II
Flanigan asserts two jury instructions on the law of adverse possession were wrong. One defined the element of continuous use, and the other defined hostile use. Neither point is well taken.
The instruction on continuous use said, in part, “[a] single interruption during any 5 years, under circumstances as to challenge the right of the adverse claimant, will prevent extinguishment, for there would then be no period of continuous adverse use for 5 years.”
Flanigan asserts this instruction was mistaken because the continuity of a possessor’s adverse use is not broken by a single re-entry of the dominant owner. He claims the error was prejudicial, since there was evidence that suggested Elizabeth Flanigan had once walked down the unpaved portion of the easement, and under the instruction given, the jury could have fastened on that fact in finding no continuous adverse use. A nice try, but it does not work.
The argument overlooks a key portion of the instruction. The jury was told that a single interruption is fatal only if made “under circumstances as to challenge the right of the adverse claimant.” That is the law. What is required to break the continuity of an adverse possessor’s claim is a third-party’s assertion of the right to use an easement, and an entry without assertion of that right is insufficient. In other words, “to interrupt the adverse user the re-entry of the legal title holder must be open, notorious and under claim of right and must equal in dignity and character that required to initiate an adverse possession.” (Smith v. Southern Pac. R. R. Co. (1934) 1 Cal.2d 272, 275.) The instruction given by the trial court comes verbatim from Armstrong v. Payne (1922) 188 Cal. 585, 597, and it remains a correct statement of the law. There was no error in instructing the jury on this issue.
Flanigan’s challenge to the instruction on hostile use is puzzling. The instruction was requested by both sides, so Flanigan can hardly assert now that it was error. “The doctrine of invited error bars an appellant from attacking a verdict that resulted from a jury instruction given at the appellant’s request. [Citations].” (Stevens v. Owens-Corning Fiberglass Corp. (1996) 49 Cal.App.4th 1645, 1653.) So no instructional error is shown.
Flanigan moves to strike as improper three attachments to Gausewitz’s brief on the ground they are copies of documents not contained in the record. Gausewitz agrees the documents are not part of the record, but contends they were provided to Flanigan during the trial. One of the attachments is a copy of the “continuous” instruction requested by Gausewitz (and given by the court) that includes supporting legal authority. Since attachments 1, 2, and 3 to Gausewitz’s brief are not part of the record, the motion to strike filed on July 10, 2007 is granted.
III
Finally, Flanigan argues the easement was too broad. He contends the scope of the easement was an issue in the case, and it should have been limited to a footpath because Bonnie Gausewitz said at one point that was all she wanted. We disagree.
An easement may be extinguished in whole or in part by adverse possession. (Glatts v. Henson (1948) 31 Cal.2d 368, 371.) In other words, the scope of an easement may be narrowed by adverse possession if the possessor’s use is such as to block some uses but not others. For example, if the servient owner of a parcel subject to an express roadway easement bars vehicles but allows pedestrians through, a fact finder could find the easement partially extinguished or, if you like, the scope of the easement narrowed to use as a footpath.
The trial court found the scope of the easement was not raised by the pleadings or the evidence, and it confirmed Gausewitz had an easement for “vehicular and pedestrian use” as stated in his deed. The record supports the finding.
The complaint put in issue the validity of the recorded easement and whether Flanigan had interfered with it, nothing more. The answer asserted adverse possession as an affirmative defense, but the claim was the easement had been extinguished, not that its scope had been narrowed to a footpath. And Flanigan’s theory at trial, along with his evidence, was that he blocked all access to the easement by maintaining locks on the Toth/Flanigan gate for five years. There was no claim, or evidence, that Flanigan barred automobiles but allowed pedestrians to use the pathway down to La Loma Drive. Since the scope of the easement was not contested, there was no error in quieting title to the easement set out in the Gausewitz deed. Nor is there any basis to set aside the judgment for insufficient evidence or erroneous jury instructions, so the judgment for Gausewitz must be affirmed.
Flanigan does not provide a record citation for the assertion that Bonnie Gausewitz said she only wanted a footpath, nor would such testimony be relevant to show the scope of the easement was limited by adverse possession. It might have been relevant to show abandonment, which is a question of intent (see, e.g., Flanagan v. San Marcos Silk Co. (1951) 106 Cal.App.2d 458, 462-463), but that theory was not submitted to the jury.
IV
We turn next to the cross-appeal. Gausewitz argues the trial court abused its discretion in denying his fee motion, brought on the theory that he had prevailed in public interest litigation. We disagree.
Code of Civil Procedure section 1021.5 provides, in relevant part, that “a court may award attorneys’ fees to a successful party . . . in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit . . . has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement . . . are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.” “The statute’s purpose is to encourage public interest litigation that might otherwise be too costly to pursue. [Citations.]” (Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1343.) We must accept the trial court’s decision unless it was an abuse of discretion. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 578.)
In denying the motion, the trial court said Gausewitz sued to enforce a private easement, not a public right of access, and “[a]ny benefit to the public was incidental.” It added that evidence of “‘public’” use by neighbors (in the years prior to 1997) was offered solely to support Gausewitz’s claim to a private easement.
Gausewitz argues that his chain of title showed the easement was appurtenant to a large tract of land on which there are 213 homes, he represented the interests of all owners in the tract, and he “clearly enforced a public right of access.” That is wishful thinking.
There was no abuse of discretion in denying the motion. The evidence shows Gausewitz sued on his own behalf to enforce the easement, nothing more. The only plaintiffs in the action are Alfred Gausewitz and Bonnie Gausewitz, and the relief sought in the complaint was a declaration that they own the easement, along with an order quieting title in their names. The judgment is consistent with the relief sought – after setting out the deed description of the easement, it provides “title to the easement. . . is quieted in Alfred and Bonnie Gausewitz.”
The prayer for relief in the complaint requests “an order declaring the validity and existence of [p]laintffs’ [e]asement, and [p]laintiffs’ right to utilize [p]laintiffs’ [e]asement,” along with a declaration “[t]hat [p]laintiffs are the owners of [p]laintiffs’ [e]asement and that no [d]efendant has any interest in [p]laintiffs’ [e]asement adverse to [p]lainitffs.”
Further, any argument the easement is appurtenant to a larger tract is waived for failure to support it with adequate record citations, reasoned argument, or legal authority. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283.) The only citation offered is to 74 pages in the clerk’s transcript, consisting of 15 exhibits. These are raw title documents and maps, perhaps understandable to a title examiner, but not to us without further explication. No effort is made to explain how the documents support the proposition asserted, and no legal authority is offered. That is insufficient to raise a claim of error on appeal. Since there was no evidence the judgment enforced a right affecting the public interest, or that it conferred a significant benefit on a large class of persons, the fee motion was properly denied.
In fine, the evidence supports the special verdict, the jury was correctly instructed, and there was no basis to limit the scope of the easement, so the judgment is affirmed. On the cross-appeal, there was no evidence the judgment benefited the public, so the postjudgment order denying attorney fees is likewise affirmed. The parties shall bear their own costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.