Opinion
A130208
09-13-2011
MENDOCINO REDWOOD COMPANY, LLC, Plaintiff, Cross-Defendant and Respondent, v. OCEANS UNLIMITED, LLC, Defendant, Cross-Complainant and Appellant. BIAGGI FAMILY PROPERTIES, Plaintiff, Cross-Defendant and Respondent, v. OCEANS UNLIMITED, LLC, Defendant, Cross-Complainant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Mendocino County Super. Ct. No. SCUK CVG-09-53669)
(Mendocino County Super. Ct. No. SCUK CVG-09-54625)
Defendant and cross-complainant Oceans Unlimited, LLC (Oceans) claims a prescriptive easement for access to its property in a road that traverses the properties of plaintiffs and cross-defendants Biaggi Family Properties (Biaggi) and Mendocino Redwood Company (MRC). The court found that Oceans was entitled to a prescriptive easement of limited scope that greatly restricts Oceans' use of the road. Oceans challenges the court's limitation of the easement, its finding that Oceans does not have an easement by necessity, and its determination that MRC and Biaggi are entitled to attorney fees on their trespass causes of action.
We conclude that the ruling recognizing the prescriptive easement and limiting its scope was supported by substantial evidence, that Oceans has no right to an easement by necessity, and that MRC and Biaggi are entitled to attorney fees under Code of Civil Procedure section 1021.9. We therefore affirm the judgment and attorney fee orders.
I. BACKGROUND
Oceans, an entity owned by Charles Robbins, bought its 120-acre property from Franklin and Lillis Moyles in October of 2008 for $600,000. The property sits atop Bald Hill, a drive of four and one-half miles and 30 minutes from Highway 1 along a road that was traditionally known as the "Biaggi Road," but in the litigation is called "Owl Creek Road" after a bordering tributary. A one-lane dirt road, widened in some spots, Owl Creek Road crosses the Biaggi family ranch and timberland owned by MRC before reaching the Oceans parcel. Robbins wants to plant a vineyard on the site, and eventually build a residence there. Robbins was 25 years old at the time of trial, had never before purchased rural land, and did not consult with a lawyer or realtor before buying the Oceans property.
Title to the Oceans property, originally acquired by Hiram Gilmore in 1939 with a patent from the federal government, was passed to Franklin Moyles through inheritance; Lillis Moyles married Franklin, and began visiting the property in 1956. Apart from a period of logging in 2004, the Moyles and their children used the property only for seasonal recreational activities. The Moyles were avid deer hunters, and used the property most frequently during deer season in August and September. Lillis testified that she went to the property from "early spring until the fall rains"; Franklin testified that they had no reason to go to the property in the winter; their 40-year-old son Jerry testified that, when he was young, he went to the property in the winter to hunt pigs and trap fur, but did not continue those activities when he got older.
Beginning in the late 1960's, the Moyles built a camp near their property line, consisting of a one-room cabin, a small trailer, a metal shed, a barbeque pit, and a water tank. In addition to hunting, the Moyles used the property for relaxing, camping, hiking, picking berries, and obtaining firewood. Jerry recalled spending most weekends at the property when he was a child, and Lillis said there were times when she would camp at the property, go to work, and return for the night. Franklin said that he sometimes spent as long as a week at the property, but had not done so since 2000. During the period from 2003 to 2008, he went to the property to hunt and spent weekends there with Lillis in the spring. Lillis said that she did not visit the property often during the last five years she and Franklin owned it because of health problems.
As it turned out, the Moyles' camp was constructed on MRC property. The portion of the judgment requiring Oceans to dismantle the camp is not contested.
Lillis claimed the property had a deeded right-of-way over Owl Creek Road, but that she had given the document to an attorney and it had been lost. No recorded document described an easement in favor of the Moyles over the road. The Moyles always advised the managers of the Biaggi ranch whenever they would be using the road; Lillis considered the calls a courtesy, not requests for permission. Robbins did not ask the Moyles whether they used the property during the winter, and did not contact anyone at the Biaggi ranch or MRC before he began using the road. He testified, "I didn't feel I needed to. I thought the road was a right-of-way like any other road."
Russell Shively, manager of MRC's land in the area, started seeing heavy equipment on MRC property after Oceans' purchase from the Moyles. MRC's President wrote Oceans a letter in December 2008 stating: "A review of the MRC title records does not indicate there is a legal right of way across the MRC property for access to the former Moyles parcel. [¶] If you believe that Oceans Unlimited does in fact have a legal access to the newly acquired property I would appreciate it if you would send me a copy of the documentation." Robbins acknowledged that this letter put him on notice that MRC did not believe that he had an easement across its land. Doug Dennis testified that he worked for Robbins clearing brush from the Oceans property from January to March 2009. He regularly hauled a mini-excavator along Owl Creek Road to and from the property on a 16-foot trailer towed by a three-quarter ton pickup truck.
Scott Fraser, the Biaggi Ranch manager, noticed a "huge" increase in traffic on Owl Creek Road during the spring and summer of 2009 as Robbins developed the Oceans property. With the help of a federal grant, Biaggi had portions of the road reshaped in June 2009 to prevent erosion. Robbins used the road daily after that work was completed. Robbins did nothing to maintain the road, but paid Biaggi $600 for the cost of repairing damage caused by his activities.
Robbins testified at trial that he was willing, going forward, to pay to maintain the road and repair any damage he caused, and that he had communicated this willingness to Biaggi and MRC through counsel—a line of questioning the trial court terminated as irrelevant.
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MRC sued Oceans in April 2009, seeking a determination that Oceans had no right, title or interest in MRC's property, and damages caused by Oceans' trespass. Oceans cross-complained to establish an easement across MRC land by prescription, implication, necessity, and equity. Biaggi filed a similar suit against Oceans in September 2009, and Oceans filed a similar counterclaim against Biaggi. The case was consolidated with the MRC suit.
Biaggi obtained a preliminary injunction. Oceans' use of Owl Creek Road was limited after October 15, 2009 to "four wheeler/atv vehicles and/or motorcycles only." The injunction was modified in May 2010 to allow Oceans to use "pick-ups, trucks, automobiles, service trucks and similar vehicles" when the road was dry; no heavy equipment could be used without Biaggi's consent or further court order.
The cases were tried together to the court in June 2010, and the court filed its statement of decision and judgment in August. The court found "that Moyles long use of the Road ha[d] ripened into a prescriptive easement," but "limit[ed] the easement to its historical use." The court wrote: "The facts in this case will not justify heavy equipment, nor the regular consistent traffic that one would find in the use of a building for a dwelling house, and certainly not the regular and consistent traffic use that one would expect to find in the operation of a vineyard. [¶] The evidence established that the historical use of the Road during the prescriptive period was occasional, not more than 10 times per year, limited to the summer and to recreation. The historical use of Owl Creek Road provides access to Oceans Property between May 1st and October 15th for recreational purposes, not to exceed ten trips across the Road per year. The easement shall only allow vehicle access when the Road is dry and not allow use to exceed 12 feet of the Road, except for the areas where there historically have been turnouts or wide spots. The term 'recreational purposes' allows use consistent with the Moyles' past use of the property, specifically, camping, hunting, cutting firewood and berry/flower picking. The easement specifically does not include, agricultural use, domestic residential use, or the use of heavy equipment." The judgment included an injunction prohibiting any use of Owl Creek Road beyond those specified in the prescriptive easement.
II. DISCUSSION
A. Prescriptive Easement
"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), and "[t]he extent of an easement by prescription is ordinarily limited to the actual use under which it is gained" (12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 415, p. 486 (Witkin)). "The strict application of this rule has been relaxed to permit minor alterations in the use of an easement as long as the change is one of degree and not of character. The owner of an easement can make minor changes in the use of the easement as long as there is no material or substantial increase in the burden on the servient tenement." (6 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 15:54, p. 15-176.) "The extent to which the use of an easement can be altered, and the question whether the use is excessive and amounts to a surcharge on the servient tenement, are issues of fact in each case." (Id. at pp. 15-176—15-177.) " 'The burden of proof is on the party asserting prescriptive rights.' " (Connolly v. McDermott (1984) 162 Cal.App.3d 973, 976.)
Oceans contends that the court's ruling on the scope of the prescriptive easement is not supported by substantial evidence, and that the injunction limiting its use of Owl Creek Road was an abuse of discretion. (See generally Bartholomew v. Staheli (1948) 86 Cal.App.2d 844, 850 (Bartholomew)[prescriptive easement decisions are reviewed for substantial evidence]; Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912 [permanent injunctions are reviewed for abuse of discretion].)
Substantial evidence supports the finding that the use Oceans desires to make of Owl Creek Road would change the character, not merely the degree, of the prescriptive easement obtained by the Moyles' prior use, and would materially increase the burden of the easement on the Biaggi and MRC parcels. Oceans sought to replace seasonal recreational use of the road with more frequent and intensive use that included transportation of heavy equipment, associated with a commercial enterprise. Precedent supports the court's refusal to approve that change.
In Bartholomew, for example, the defendants claimed an easement for access to a nudist colony on land that had previously been a family ranch. The court upheld a judgment that limited the easement to the prior less intensive use, observing: "The easement for access to a tranquil home and farm was converted into a turbulent route to reach a hilarious nudist colony. That unauthorized change of burden on the easement was a harmful imposition on plaintiffs' property rights." (Bartholomew, supra, 86 Cal.App.2d at p. 850; see also Cushman v. Davis (1978) 80 Cal.App.3d 731, 734-736 [access for proposed residential subdivision denied; easement limited to five trips in February and five in July, consistent with prior use of property as an apricot orchard]; Pipkin v. Der Torosian (1973) 35 Cal.App.3d 722, 728 (Pipkin)[use of the dominant tenement could change "so long as the amount of traffic [over the easement] is not substantially increased"].) The evidence in this case established that Oceans intended to use Owl Creek Road far more intensively than the Moyles.
Gaither v. Gaither (1958) 165 Cal.App.2d 782 (Gaither), another case on point, involved a driveway that had historically been used as a means of access to a home and a farm. The respondent wanted to expand the use to accommodate a trailer park on her property. The court reversed the grant of an easement in the driveway for house trailers, finding that the "change in physical objects passing over the driveway" represented "a substantial change in the nature of the use and a consequent increase of burden upon the servient estate. It would be something more than a change in the degree of use." (Id. at pp. 785-786; see also Connolly v. McDermott, supra, 162 Cal.App.3d at p. 978 [plaintiffs who had driven cattle over a road on defendants' property denied a prescriptive easement that would allow motor vehicles on the road, citing Gaither].)As these cases show, Oceans could be precluded from transporting heavy equipment along Owl Creek Road because the road had never been used in that manner.
Contrary to Oceans' substantial evidence argument, the limits placed on the prescriptive easement were in line with the uses the Moyles described. It appeared from the evidence that the Moyles had not used the property during the winter for many years, and made little or no use of it in the years just before the sale to Oceans. Since the Moyles always contacted the Frasers before using the road, the court could credit Scott Fraser's testimony that the Moyles did not visit the property during the last three years they owned it. Franklin Moyles testified in his deposition that he made no use of the property from 2003 to 2008, and the court was not obliged to believe his explanation at trial that he took "use" of the property to mean building something, or cutting trees, rather than access and enjoyment. While the Moyles may have visited the property on more than 10 occasions from May 1 to October 15 in some years, the 10-annual-visits limit was consistent with the evidence of their use over the entire span of their ownership.
Oceans contends that the court erred in focusing on the Moyles' limited use of the road during the five years immediately before they sold the property. Oceans reasons that the Moyles prescriptive rights were established by at least 1965, five years after construction of the road as currently configured, that they never abandoned the easement, and thus "the prescriptive period was 1960-1965."
The record does not support Oceans' assumption that the court's limitation was based on the Moyles' use of the road during their last years of ownership. At the hearing on Oceans' motion to set aside the judgment, the court remarked that "there's some evidence in the record to suggest that for a period of up to five years they didn't even use [the property] for anything"—evidence that could have justified denial of a prescriptive easement altogether. (See Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570 [five years of use required to obtain prescriptive easement]; Civ. Code, § 811 [servitude acquired by enjoyment is extinguished "by disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoyment"].) But the court found a "limited prescriptive easement" by "looking at all of the evidence as a whole and taking the totality of the circumstances" into account. The court thus considered the Moyles' entire term of ownership, not just the years from 2003 to 2008. If the court had focused only on those last five years, the easement would have been even more limited. And Oceans cites no authority that supports its suggestion that, in determining the scope of the easement, the court could look only at uses made of the road during the period when the easement was first established, and could not consider the uses of the road for the 40 years thereafter.
Oceans argues that the 10-visit per year and May 1 to October 15 limitations on the easement are arbitrary and unreasonable. The court acknowledged that the 10-visit limit is an estimate and the evidence could have supported an easement allowing as few as five, and as many as 14, trips per year. As for the seasonal restriction, the court explained that it framed the restriction in terms of dates, rather than weather and the condition of the road, to make the easement definite and certain, and to forestall future litigation. The court's line-drawing was within a range permitted by the evidence, and the injunction issued to enforce those restrictions was not an abuse of discretion.
Oceans maintains finally that court erred by "ignoring reasonably foreseeable normal development of the dominant tenement." This argument rests on cases such as Hill v. Allan (1968) 259 Cal.App.2d 470 (Hill), and Jordan v. Worthen (1977) 68 Cal.App.3d 310 (Jordan), where lands were evolving from agricultural to residential use, and prescriptive easements were expanded to accommodate development of residential subdivisions. These cases applied section 479 of the Restatement of Property, which counsels that "the needs which result from a normal evolution in the use of the dominant tenement" be considered in ascertaining whether particular uses are permissible under a prescriptive easement. The commentary to the section, citing the "everchanging nature in the condition of land," states that "new needs are privileged . . . if the condition requiring them is a normal development of the condition the needs of which were served by the adverse use which created the easement. A normal development is one which accords with common experience. It is, therefore, one which might reasonably have been foretold. Such uses, however, must be consistent with the pattern formed by the adverse use by which the prescriptive easement was created." (Rest., Property, § 479, coms. a & b.)
While these authorities "allow[] some flexibility in the use of the dominant tenement" (Pipkin, supra, 35 Cal.App.3d at p. 729), no evidence of changing development comparable to that in Hill or Jordan was presented here. In Hill, supra, 259 Cal.App.2d at p. 485, it had for years been "apparent to all concerned that the character of the dominant tenement had clearly changed to residential and that the subdivision thereof was reasonably to be anticipated." The owners of the servient tenement that was historically grazing and dairy land had themselves obtained a plan for the construction of 20 to 28 home sites on their property. (See also Jordan, supra, 68 Cal.App.3d at pp. 320-321 [since the 1940's, the lands at issue had "followed a pattern of division into smaller parcels and a change from the original family farms to use as recreational areas with 'second homes or retirement homes' "; owners of the servient estate had themselves constructed second homes for recreation and retirement on their properties].) Here, Oceans presented no evidence of a pattern of development of unimproved lands in the area into vineyards. Robbins offered only a photograph of a vineyard on the ridge to the south of his property. His evidence fell far short of establishing as a matter of law that his intended use of the property would have been foreseeable to Biaggi and MRC.
B. Easement by Necessity
Oceans contends that the court erred by rejecting its claim that it had an easement by necessity in Owl Creek Road. "An easement is created because of necessity only in very limited circumstances where (1) the servient and dominant tenements were in common ownership at some point in time and (2), as a result of a conveyance by the common owner, one parcel became completely landlocked." (6 Miller & Starr, Cal. Real Estate, supra, § 15:27, p. 15-104.) "The right-of-way by necessity exists only in cases of strict necessity, and not when the grantee has another method of access, even if the other method is inconvenient." (12 Witkin, supra, Real Property, § 399, p. 467.)
The court found no strict necessity in this case because Oceans' property is accessible from Highway 1 via Mallo Pass Road. Mallo Pass Road extends from Highway 1 across Stornetta Ranch and MRC land to the Oceans property. Oceans contends that Mallo Pass Road does not provide access to its parcel because the road passes entirely through private property and Oceans has no right to use it. We need not decide whether Oceans' property is accessible by Mallo Pass Road because an easement by necessity is precluded here by the rule announced in Murphy v. Burch (2009) 46 Cal.4th 157 (Murphy). In Murphy, as here, title to the lands in question was originally acquired through federal government patents.
MRC real estate consultant Roger Krueger testified that patents were issued for the Biaggi and MRC lands between 1875 and 1894, before the Gilmore patent for the Oceans' property in 1939. The federal government likewise deeded title to the landlocked parcels in Murphy after conveying title to the parcels over which the easement by necessity was claimed. The landlocked parcels were denied an easement by necessity in Murphy for reasons that apply equally in this case.
The Murphy court noted that because "the federal government owned most of the land at one time," the common ownership requirement could be "meaningless unless stronger showings are required for implying an easement by necessity in cases tracing back to patents." (Murphy, supra, 46 Cal.4th at p. 165.) Moreover, "strict necessity does not exist in the case of the sovereign as in the case of the private landowner, because the sovereign can exercise the power of eminent domain to obtain any and all reasonable rights-of-way." (Ibid.)Thus, implied reservations of easements are not typically recognized in lands conveyed by a sovereign. (Ibid.) The party claiming such an easement must produce evidence "regarding the government's intent to reserve an easement and the government's lack of power to condemn." (Id. at p. 167.) No evidence in Murphy showed that the government expressly or impliedly reserved an easement for the benefit of a landlocked parcel when it conveyed the lands over which the easement was claimed, or that "the government lacked authority to condemn access if it deemed that doing so was necessary." (Id. at p. 168.) This necessary evidence was also lacking here. Accordingly, under Murphy, Oceans had no right to an easement by necessity over the Biaggi or MRC properties.
Oceans argues that Murphy is distinguishable because the party that claimed the easement by necessity in that case, unlike Oceans, did not have a prescriptive easement over the access road at issue, and had not offered to pay consideration for use of the road, but neither of those facts was material to Murphy's analysis. Oceans also submits that Murphy was wrongly decided, but we are bound to follow our Supreme Court's decision in that case. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
C. Attorney Fees
The court determined that Oceans and its agents had trespassed on Biaggi and MRC property, and awarded Biaggi and MRC damages of $805 and $1,500, respectively, caused by Oceans' use of Owl Creek Road. Oceans contends that substantial evidence of damages was lacking, but the awards covered the costs of road repair, and damage to a Biaggi cattle guard, to which Fraser and Shively testified. The award of damages for trespass gave rise to claims by Biaggi and MRC for attorney fees.
The court awarded Biaggi and MRC attorney fees of $15,000 and $5,000, respectively, on their trespass causes of action pursuant to Code of Civil Procedure section 1021.9, which provides: "In any action to recover damages to personal or real property resulting from trespassing on lands either under cultivation or intended or used for the raising of livestock, the prevailing plaintiff shall be entitle to reasonable attorney's fees in addition to other costs, and in addition to any liability for damages imposed by law."
Oceans contends that it cannot be liable for attorney fees under this statute because it never trespassed on Biaggi or MRC lands. Oceans claims that its entry on those lands was privileged because it "relied on the same claim of right as [its] predecessor in interest," i.e., the Moyles' prescriptive easement. However, Oceans was mistaken about the extent of its prescriptive rights. When it traversed the Biaggi and MRC properties, Oceans was engaging in a commercial activity it had no permission or authority to pursue. Oceans was thus a trespasser, even if due to an honest mistake. "One who intentionally enters land in the possession of another is subject to liability to the possessor of the land as a trespasser, although he acts under a mistaken belief of law or fact, however reasonable, not induced by the conduct of the possessor, that he [¶] . . . [¶] has [a] privilege to enter or remain on the land." (Rest.2d Torts, § 164, p. 296; see also Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 778 [trespass occurred despite good faith belief that entry was permitted]; Cassinos v. Union Oil Co. (1993) 14 Cal.App.4th 1770, 1780 "[w]here one has permission to use land for a particular purpose and proceeds to abuse the privilege . . . he becomes a trespasser"]; Patel v. Southern Cal. Water Co. (2002) 97 Cal.App.4th 841, 845-846 [use beyond scope of easement was a trespass].)
Biaggi's land is "used for the raising of livestock" within the meaning of Code of Civil Procedure section 1021.9, but Oceans disputes whether MRC's land, which is used for commercial timber harvesting, is land "under cultivation" for purposes of the statute. A case that looked at the statute's legislative history observed that it reflected an "obvious concern [] for the farm and ranch communities of our state," and remarked that agriculture was an important industry with "unique" interests, but identified nothing dispositive of the issue Oceans raises. (Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 608.)
The parties identify no statutory definition of the term "cultivation"; dictionary definitions include "the art or process of agriculture," and such definitions of the word "cultivate" include: "to prepare for the raising of crops," and "to till or labor over." (Webster's 3d New Internal Dict. (1970) p. 552.) Oceans argues that cultivation refers to "methods of farming," and that timberlands are not under cultivation because the management of those lands "does not require typical farming techniques such as plowing or fertilizing; it consists primarily of land holding and periodic timber harvests." On the other hand, MRC notes that "timberland" is broadly defined in the Public Resources Code as land "which is available for, and capable of, growing a crop of trees of any commercial species." (Pub. Resources Code, § 4526; see also § 4581 et seq. [rules for timber "harvesting"].) We find no persuasive reason, in applying Code of Civil Procedure section 1021.9, to distinguish between commercial timberlands and lands devoted to other types of crops. We conclude that all such lands are under "cultivation" within the meaning of the statute, a construction consistent with the rule that remedial statutes are to be broadly construed. (E.g., Barragan v. County of Los Angeles (2010) 184 Cal.App.4th 1373, 1382.)
III. DISPOSITION
The judgment and the attorney fee orders are affirmed.
Siggins, J. We concur: McGuiness, P.J. Pollak, J.