NOT TO BE PUBLISHED

Sonoma County Super. Ct. No. SCV-236130

Jenkins, J.

This is the second time this litigation regarding the scope of a prescriptive easement has reached this court. In the first trial, the trial court found an easement for Greg Levy of 66 feet by 70 feet based on unabated use of a parcel of land since the 1940s. On appeal from the judgment entered after the first trial, we reversed, holding that the historical easement found by the trial court had extinguished due to non-use. However, we did find that evidence of more recent use was sufficient to establish a new easement of a more limited scope on the same parcel. We thus remanded the matter to the trial court to determine the boundaries of the easement with more specificity. After another trial, the trial court, following our directions, found an easement covering an area large enough for two parking spots and a narrow footpath only. Both parties have appealed the trial court’s decision. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Three neighboring parcels of land lie on West College Avenue in Sonoma County. The easternmost parcel, 1000 West College Avenue (1000), sits at the corner of West College Avenue and Clover Drive. West College borders 1000 to the north, and Clover Drive borders 1000 to the east. Immediately to the west of 1000 lies 1030 West College Avenue (1030), and immediately to the west of 1030 lies 1050 West College Avenue (1050). West College Avenue also borders 1030 and 1050 to the north. While 1000 and 1050 have buildings on them, 1030 is a vacant lot.

As set out in great detail in our previous opinion in this matter, during the first trial, appellant Levy presented evidence regarding the history of use on the parcels from the late 1940s until the 1990s. (See Levy v. Liang (July 14, 2006) A111375.) To summarize, from about 1949 until 1989, customers of a gas station and muffler shop located on 1000 parked on 1030. In addition, the shop’s proprietor repaired cars on the vacant lot on 1030. In 1980, the county installed a curb cut on 1030, which the parties thereafter used to enter 1030 from West College. After the gas station closed in the late 1970s, an auto repair shop was located on the property until 1989: then, the new owner of 1000 opened and operated a bookstore until 1994. Testimony established that customers of the bookstore did not park on 1030. From 1963 until 1994, the owner of 1000 also lived in a residential apartment unit located on the property. From 1995 until mid-1997, nobody occupied 1000, nor were commercial activities conducted on the parcel. In 1997, the owner’s granddaughter and a friend moved into the apartment unit on 1000, and would thereafter occasionally have parties, permitting guests of the parties to park on 1030. In addition, a neighbor testified that the community at large had made general use of 1030 for as long as she could remember.

During the first trial, Levy also presented evidence regarding his own use of the parcels. Levy purchased 1000 in October 1999 and immediately began remodeling the property. At that time, it contained a building housing the apartment and a commercial space, a parking lot between the building and West College that was “inadequate to support any type of significant use,” and a stand-alone garage directly east of the main building, which had a driveway that led eastward and connected with Clover Drive. While remodeling 1000, Levy and construction workers parked on 1030, accessing the lot through the curb cut, and stored equipment and construction materials on it. Levy testified that he parked on 1030 continuously from the time he purchased 1000 until January 2005. In May 2004, he opened a coffee shop and a real estate office in the commercial space on 1000; he estimated that on a typical day 12 to 15 cars parked on 1030 to either work at or patronize one of the businesses.

Evidence from the first trial also established that appellant Liang purchased both 1030 and 1050 in 2004. On January 9, 2005, he erected a fence on 1030 along West College that prevented cars from entering the lot through the curb cut.

On January 21, 2005, Levy filed a complaint in Sonoma County Superior Court, claiming that the fence was a nuisance and that he held a prescriptive easement on 1030 to park and to access his property. He sought damages and an injunction to stop Liang from blocking access to the lot.

After the first trial concluded, the trial court determined that a prescriptive easement for the benefit of 1000 existed on 1030. It found “some use of 1030 West College” to benefit 1000 since the inception of business activities on 1000 in the 1940s. It held that Levy “carried his burden of proof to establish a prescriptive easement for ingress and egress and parking” on 1030. It found open and notorious use from testimony that cars had used the lot “for as long as people can remember.” The use was continuous and uninterrupted for at least five years because “to some extent the lot at 1030 has been used for parking/storage by the owners and occupiers of 1000 West College.” Finally, it found that the use was hostile to the owner of 1030. It thus awarded Levy a rectangular easement that started in the northeast corner of 1030 and extended 66 feet to the south and 70 feet to the west.

Liang thereafter moved for a new trial, claiming that no easement could be recognized because Levy’s commercial use of the property violated a local zoning ordinance. The trial court denied the motion on the ground that Liang could not raise a claim for the first time when seeking a new trial.

Liang then timely appealed to this court for the first time, arguing that the trial court erred in finding sufficient evidence of an easement, and in denying his motion for a new trial.

In our first opinion in this matter, we reversed the trial court’s finding of an easement based on the historic use of 1030 and designed to accommodate customers of Levy’s coffee shop and real estate office. We reasoned that, because the record contained no evidence that anyone used 1030 to benefit either a residence or business on 1000 from 1989 until 1999, the prescriptive easement recognized by the trial court had extinguished in the 1990s. Nevertheless, we concluded that Levy and his tenants had acquired a different and “more limited easement” through their own use. This easement had two purposes: “ingress and egress to 1000 and for parking.” Moreover, it existed only for the benefit of “the owner and tenants of 1000,” and was “no larger in area than necessary to permit parking by the owner and tenants” of 1000 in a “limited portion of the northeast corner of 1030.” It did not include the right to park on 1030 by any customers of the business on 1000, as such use had not been of sufficient duration to meet the requirements for prescriptive use under California law. (See Code Civ. Proc., § 321 [requiring a minimum of five years of adverse use to support a prescriptive easement].) We thus remanded the matter to the trial court to “define with greater specificity the dimensions of the easement consistent with this determination.” Further, because the matter was remanded, we declined to consider whether the trial court erred by denying Liang’s new trial motion. Neither party petitioned the California Supreme Court for review of our first opinion.

On remand, as an initial matter, the parties disagreed regarding the scope of the issue before the trial court. Levy argued the trial court should again permit evidence regarding the historical use of 1030 since the 1940s. Liang disagreed, citing our conclusion that the historical easement, as found by the trial court after the first trial, had extinguished through non-use. Rather, Liang argued that the second trial should be limited to evidence, if any, of Levy’s continuous and open use of 1030 since acquiring the property. On May 29, 2008, after hearing the parties’ arguments, the trial court ordered that the second trial would be limited to the issue of determining “the dimensions of the easement consistent with the findings set forth in the Appellate Court’s decision.”

The second trial took place on June 24 and 25, 2008. Notwithstanding the trial court’s May 29, 2008, order, Levy offered testimony regarding the use of 1030 by individuals associated with 1000 predating his purchase. Liang’s counsel objected several times, and the trial court thereafter warned Levy that such testimony was irrelevant because, under the prior order, Levy was permitted only “to prove the extent of his prescriptive easement that occurred from 1999 through the trial date of 2005.”

At the second trial, Levy testified regarding his use of 1000 in more detail. In particular, Levy explained that, when he purchased 1000, the area behind the main building on 1000 was fenced-in, and a gate on the western edge of the fence connected this “backyard” area of 1000 to 1030. A contractor by trade, Levy extensively remodeled the property from October 1999 until January 2005, repaving the parking lot, expanding the residential apartment, renovating the commercial space, putting in a new fence and gate, and twice “rocking” or “gravelling” a portion of the northeast corner of 1030 to maintain a stable parking surface. In 2005, he removed the old gate from the backyard fence on 1000 and installed a new one six feet closer to West College.

Levy did not testify to the specific dimensions of the gravel parking area, but he noted that he parked in various locations on 1030, including the gravel portion of the lot. Further, Levy occasionally parked deep enough on 1030 so that his car was even with the stand-alone garage, and he alternated between parking on the western and eastern portions of 1030. Consistent with Levy’s testimony in this regard, the tenant who moved into the apartment on 1000 testified that he recalled Levy parking his car “all over the place” on the lot.

Levy further testified that the two women living in the residential unit when he purchased the property moved out in March 2000, and that he finished renovating the unit about a year later. At that time, Doug Wickland moved into the apartment with his girlfriend and child, living there until May 2005. Wickland typically parked in the driveway off Clover and did not cross 1030 to enter or exit the apartment. His girlfriend, in contrast, began parking on 1030 within a month of moving in, and continued to park there until Liang erected the fence in January 2005. She consistently parked her car on an eastern portion of 1030 just south of the backyard gate, and entered 1000 through the gate. For five months in 2004, however, Wickland’s girlfriend did not live at 1000, and during that time she did not leave her car in her customary spot.

During the evening of June 24, 2008, after Levy finished presenting evidence, the trial court judge took an in-person view of the parcels. The judge walked around the units in question, and “look[ed] at the whole layout in its physical real form.” He noted that viewing the parcels in person gave him a better sense of the evidence presented at trial.

On June 27, 2008, the trial court issued a statement of decision, which noted as an initial matter that “the scope of this inquiry is exceedingly narrow” given the prior appellate decision, and that Levy had presented “substantial evidence of a historical nature” that was thus irrelevant. However, the trial court did find relevant evidence establishing that Levy used 1030 for parking a single vehicle continuously from 1999 until 2005, that “the residential tenant” of 1000 consistently parked a car on 1030 “sufficient to establish a prescriptive easement,” and that both Levy and the tenant accessed 1000 either through the gate or through the parking lot in front of 1000. The trial court thus set aside a portion of the northeast corner of 1030 for a sidewalk to run along West College, for two parking spaces 10-feet wide and 20-feet long running east-west parallel to West College, and for a footpath running north-south from the parking spots to the existing gate. Further, the trial court ordered Liang to “make no use of this easement inconsistent with” Levy’s and his tenant’s use of it and, if the locked fence remained on the property, to give Levy and the tenant a key so they could access the easement.

Both parties timely appealed the trial court’s decision.

DISCUSSION

In the second appeal of this matter, Levy contends the trial court erred in not awarding him a prescriptive easement consistent with the historical use of 1030 by the owners of 1000 since at least 1948. In so contending, Levy claims there has never been an act by the owners of 1030 interfering with the use of the property by the owners of 1000, nor have the owners of 1000 lost their right to the easement through nonuse. Liang, on the other hand, contends the trial court erred in awarding any prescriptive easement because substantial evidence did not prove that Levy or his tenant continuously used for a five-year period the areas awarded in the easement. Rather, according to Liang, the evidence proved Levy and his tenant never parked in the same area long enough to establish an easement in any particular portion of 1030, and that his tenant’s girlfriend only parked on the property for three and a half years of the five-year period.

I. The Law of the Case Doctrine Applies.

Given our prior decision in this matter, we must begin here with the well-established doctrine of “the law of the case.” This doctrine concerns the “effect of the first appellate decision on the subsequent retrial or appeal,” and prevents relitigation of issues previously decided. (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.) Specifically, where, as in this matter, an appellate court makes a ruling as a matter of law on an issue necessary to the outcome of the case, that ruling becomes determinative of the rights of the parties on remand and in subsequent appeals. (Morohoshi, supra, 34 Cal.4th at p. 491; Nally v. Grace Community Church (1988) 47 Cal.3d 278, 301-302.) In other words, the appellate decision “conclusively establishes” a rule that the parties must adhere to in further proceedings on the dispute. (Morohoshi, supra, 34 Cal.4th at p. 491.) Accordingly, the law of the case doctrine not only limits the issues before the trial court on remand, it also dictates what issues are before the appellate court on a subsequent appeal.

However, because this doctrine can lead to “harsh” results in certain situations, a number of exceptions and qualifications have been developed. (Morohoshi, supra, 34 Cal.4th at pp. 491-492.) Generally, application of the law of the case doctrine cannot lead to a decision that results in a “manifest misapplication of existing principles” leading to “substantial injustice” against one of the parties. (Id. at pp. 491-492.) Thus, when a party raises a new issue of law in the subsequent trial or appeal, the doctrine does not necessarily prevent adjudication of that new legal issue. (Nally v. Grace Community Church, supra, 47 Cal.3d at p. 302.) Similarly, if the controlling rule itself changes because of a decision published between the issuance of the first appellate opinion and the subsequent proceeding, the court may consider application of that new rule to the facts of the case. (Morohoshi, supra, 34 Cal.4th at p. 492.) Finally, the doctrine does not prevent new evidence from being presented in a subsequent trial, so long as that evidence is otherwise admissible and, for some valid reason, could not be presented in the first trial. (People v. Barragan (2004) 32 Cal.4th 236, 247-248.)

Applying these principles here, we have identified two rulings we made as a matter of law in the prior appeal that were necessary to the outcome. First, we concluded as a matter of law that the historical easement on 1030 had expired in the 1990s due to non-use. (See Levy v. Liang (July 14, 2006) A111375.) Second, we concluded as a matter of law that Levy had nonetheless proven a different and more limited easement for parking and ingress and egress based on his and his tenant’s use of the property after he arrived in 1999. (Ibid.)

Neither party has identified any reason in law or equity why these two legal conclusions that we previously rendered should not bind them for purposes of this appeal. (Cf. Morohoshi, supra, 34 Cal.4th at pp. 491-492 [law of the case doctrine should not be applied if it would result in “substantial injustice” to either party].) In particular, neither party has pointed to new evidence that could not have been offered in the first trial, or to a change in the law of prescriptive easements that alters the relevant legal analysis. Moreover, to the extent Levy or Liang merely disagrees with our legal conclusions in the prior appeal, they should have petitioned for a rehearing, or to the California Supreme Court for review, which neither party did. (Puritan Leasing Co. v. Superior Court (1977) 76 Cal.App.3d 140, 147 [A party who believes a reviewing court erroneously issued directions on remand should raise the grievance on appeal to a higher court, and cannot raise it on remand or on a subsequent appeal]; Cal. Rules of Court, rule 8.268; see also In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1518.) Accordingly, under the law of the case doctrine, we will not revisit the issues of whether, as Levy contends, an easement exists based on the commercial or historical use of 1030 by people other than him and his tenants, or of whether, as Liang contends, there is no easement at all on 1030. (See Morohoshi, supra, 34 Cal.4th at p. 491.)

We thus turn to the issue that is properly before us – whether substantial evidence supports the easement, as found by the trial court, for two parking spaces 10-feet wide and 20-feet long running east-west parallel to West College, and for a footpath running north-south from the parking spots to the existing gate.

II. Substantial Evidence Supports the Trial Court’s Judgment.

A party seeking to prove a prescriptive easement must show actual use of the servient property that is open and notorious, hostile and adverse to the owner’s interest in the land, continuous and uninterrupted for at least five years, and used under a claim of right. (Code Civ. Proc., § 321; Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449.)

Whether the party can prove all the elements of a prescriptive easement is a factual question which we evaluate on appeal using the substantial evidence standard. (See O’Banion v. Borba (1948) 32 Cal.2d 145, 148-150, 153; Felgenhauer, supra, 121 Cal.App.4th at p. 449.) We will affirm the trial court’s judgment if any substantial evidence supports the decision. (Applegate v. Ota (1983) 146 Cal.App.3d 702, 708 [hereinafter, Applegate].) Evidence is substantial if “it is of ‘ponderable legal significance,’ ‘reasonable in nature, credible, and of solid value’... [Citations.]” (Brewer v. Murphy (2008) 161 Cal.App.4th 928, 935-936.) We consider evidence supporting the prevailing party only, and discard any unfavorable evidence. (Felgenhauer, supra, 121 Cal.App.4th at p. 449.) If the trial court draws a reasonable inference, we cannot draw a different one. (Ibid.) A trier of fact’s in-person view of the land in question “is independent evidence which can be considered by him in arriving at his conclusion, and is substantial evidence in support of findings consistent therewith. [Citations].” (Applegate, supra, 146 Cal.App.3d at p. 712.)

Here, Liang concedes based on the evidence that Levy used 1030 in an open and notorious manner that was hostile to the owner of 1030, continuing for more than five years from 1999 until the start of litigation in 2005. Liang likewise concedes that Levy believed he neither had nor needed the owner of 1030’s permission to use the lot. However, relying on Levy’s testimony that he and his tenant parked “all over” the property rather than in particular places, Liang claims substantial evidence fails to support the trial court’s award. We disagree.

Generally, “ ‘[t]he 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, section 806.] It is settled law that ‘[t]he scope of a prescriptive easement is determined by the use through which it is acquired. A person using the land of another for the prescriptive period may acquire the right to continue such use, but does not acquire the right to make other uses of it. [Citations.]’ ” (Connolly v. McDermott (1984) 162 Cal.App.3d 973, 977.) The court thus looks at the “nature, character, and volume” of the use to determine the scope of the easement. (Pipkin v. Der Torosian (1973) 35 Cal.App.3d 722, 726-727.)

A court is not without discretion when determining the boundaries of a prescriptive easement, so long as, consistent with the court’s determination, the dominant tenement can fully exercise “the use” that had been made of the servient tenement during the prescriptive period. (See Code Civ. Proc., § 580; Applegate, supra, 146 Cal.App.3d at p. 712 [“the court may grant [the plaintiff] any relief consistent with the case made by the complaint and embraced within the issue”].) When determining the scope of an easement, courts are guided by two principles: ensuring the dominant tenement can enjoy the use it maintained, and “avoiding [imposing] increased burdens upon the servient tenement.” (See Applegate, supra, 146 Cal.App.3d at p. 711.) While respecting these two principles, however, courts “may fashion a decree which will do justice to all parties... and slight deviation from accustomed routes does not defeat the easement.” (Applegate, supra, 146 Cal.App.3d at p. 712 [citing Redke v. Silvertrust (1971) 6 Cal.3d 94, 98]; Matthiessen v. Grand (1928) 92 Cal.App. 504, 510].)

For example, in Applegate, the appellate court considered the scope of an easement over a one-lane road. (Applegate, supra, 146 Cal.App.3d at pp. 711-713.) The trial court had awarded a 20-foot wide easement that continued for the length of the road — even though the road was only 10-feet wide — reasoning that cars affiliated with the dominant tenement should be able to pass each other on the shoulder. (Applegate, supra, 146 Cal.App.3d at 711-713.) In so ruling, the trial court relied on testimony showing that vehicles affiliated with the dominant tenement needed a minimum of five feet of shoulder on each side to pass each other, even though cars did not often pass one another on the road. (Applegate, supra, 146 Cal.App.3d at p. 712.) Testimony also showed that the 5-foot area outside of the paved portion of the road did not threaten the servient estate’s crops that were growing alongside the road. (Ibid.) On appeal, the Applegate court concluded substantial evidence supported the trial court’s award. The Applegate court relied in part on an earlier case, Stevens v. Mostachetti (1946) 73 Cal.App.2d 910, where the appellate court had affirmed a 20-foot wide easement on a road “where 20 feet appeared to be an average width and where it was clear that not all 20 feet were used for the entire length of the road.” (Applegate, supra, 146 Cal.App.3d at p. 712.) Applying the same reasoning to the facts before it, the Applegate court stated: “[w]e find no error in that order,” given that it “was fashioned to allow maximum necessary use... [that]... would not impose a greater burden on the servient tenement.” (Applegate, supra, 146 Cal.App.3d at p. 711.)

In Heath v. Kettenhofen (1965) 236 Cal.App.2d 197, 206 (hereinafter, Heath), the trial court likewise exercised a degree of discretion when fashioning the boundaries of an easement for a parking space in order to ensure justice was done for both parties. There, the evidence established that the owner of the servient tenement parked his vehicles all over a 40-foot wide area, often “interfere[ing] with [the dominant tenement’s] right” to access his property. (Heath, supra, 236 Cal.App.2d at p. 206.) The trial court thereafter awarded the servient party an easement for parking that was 10-feet wide. (Heath, supra, 236 Cal.App.2d at pp. 202-203.) The appellate court affirmed, concluding that “each party was entitled to use the easement for such transitory parking as would not interfere with the rights of the other party.” (Heath, supra, 236 Cal.App.2d at p. 202.) As such, substantial evidence supported the trial court’s award, given that the record established that each party needed only 10 feet for parking, and that a 10-foot wide easement would permit “reasonable use” by both parties while ensuring neither party could “interfere with the rights of the other.” (Heath, supra, 236 Cal.App.2d at p. 204.)

Here, we conclude substantial evidence likewise supports the trial court’s award of a prescriptive easement. Levy sought a remedy that would, at least in part, allow him and his tenant to park on the lot on 1030 and to access his property from it. In support of his claim, Levy introduced evidence of the nature of his and his tenant’s enjoyment of the lot: two cars consistently parked on 1030 — one by Levy and the other by his tenant’s girlfriend. Levy also introduced evidence that both drivers exited their vehicles and walked onto 1000 across 1030, often through the backyard gate. The easement awarded by the trial court is consistent with the “nature, character, and volume” of that use – i.e., enough space on 1030 to park two vehicles (a 10-feet by 20-feet area for each parking spot) and a pathway for ingress and egress onto 1000 (a 3-feet by 70-feet path). (See Pipkin v. Der Torosian, supra, 35 Cal.App.3d at pp. 726-727.)

True, the boundary of the easement awarded by the trial court does not encompass the entire range of locations used by Levy and his tenant for parking and accessing the property. However, as in Heath and Applegate, the fact that the area used for these activities may have varied over the prescriptive period need not invalidate the easement. (See Heath, supra, 236 Cal.App.2d at p. 204; see also Applegate, supra, 146 Cal.App.3d at p. 712.) Rather, the trial court had discretion to craft an easement designed to ensure the dominant tenement could enjoy the use that has been maintained, and “would not impose a greater burden on the servient tenement.” (See Applegate, supra, 146 Cal.App.3d at p. 711.)

Here, the trial court did just that. After conducting its own view of the property, the court concluded that an easement consisting of space for two parking spots and a pathway in one corner of the lot would permit use of 1030 by Levy and his tenant in a manner consistent with the “nature, character, and volume” of their use during the prescriptive period from 1999 to 2005, without substantially interfering with Liang’s rights. (See Heath, 236 Cal.App.2d at p. 204; Applegate, supra, 146 Cal.App.3d at p. 712; Civ. Code, § 806.) While the easement takes away a portion of Liang’s lot, that portion consists of only the minimum amount of land necessary for Levy and his tenant to park their vehicles in an out-of-the-way location on the lot. Liang remains free to use and otherwise develop the rest of 1030 without constraint. Accordingly, we conclude the trial court’s award provides Levy and his tenant “reasonable use” of the property in a way that does not overly burden Liang’s use and enjoyment of the servient tenement. (See Applegate, supra, 146 Cal.App.3d at p. 712; Heath, supra, 236 Cal.App.2d at p. 204.) Accordingly, we find no error in the judgment.

DISPOSITION

The judgment is affirmed.

We concur: McGuiness, P. J., Siggins, J.