Opinion
F049861
5-30-2007
JOE SILVA, Plaintiff and Respondent, v. CHARLES A. ROWE et al., Defendants and Appellants.
Charles A. Rowe, Mary E. Rowe, in pro. per.; Doyle, Fike & Watson and David Douglas Doyle for Defendants and Appellants. Jamison & Chappel and Gregory M. Chappel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appellants Charles A. and Mary E. Rowe purchased 101 acres of foothill property, hoping to enjoy complete seclusion and privacy out in the country. To their dismay, they soon discovered that a neighboring owner, i.e., respondent Joe Silva, claimed a right to a prescriptive easement over a rough road that traversed their land. The disputed road was used by Silva as a means of access to the upper portion of his 198-acre parcel located northwest of the Rowes property. When the Rowes first saw Silva cross their land, they accused him of trespassing and demanded that he leave. In a later confrontation, the sheriff was summoned. Silva then filed this action to quiet title or obtain a judicial declaration of his asserted right to a prescriptive easement. The trial court found the alleged prescriptive easement was fully established. The Rowes appeal, arguing among other things that the evidence was insufficient to support the courts judgment. We will affirm.
SUMMARY OF FACTS
In 1971, Silva acquired a 198-acre parcel of land in the foothills of Mariposa County. He had also owned, since 1943, other adjoining land to the south. Silva hunted on the 198 acres from approximately 1946 or 1947, going on foot, horseback or motorized vehicle. In gaining access to the upper portion of the 198-acre parcel, he would use an old private road or trail that began at Allred Road and extended over adjacent land, along a ridge, until it reached the upper region of that parcel. After purchasing the 198 acres in 1971, he continued to use that same access route when visiting his property. In fact, it was the only feasible way to reach the upper portion of the 198 acres. He described the road as very visible and easy to traverse. In some years he may have used the access road more than 50 times. In other years, such as the period of 2001-2004, his usage may have been less than once a month on average, but he affirmed that "any time I wanted to go up I went up." Most often, he would use the road in the spring and fall, usually during hunting season.
In the 1970s, the initial point of entry to Allred Road changed from what is called Private Road 1 to Private Road 2, but in other respects was the same.
In 1979, Silva sold the 198 acres, but he reacquired it in 1982 by deed after the buyers ceased making payments. He resumed using the roadway to access the upper end of the 198 acres as soon as the buyers stopped making payments, and he says they only made about four or five payments in all. Thereafter, Silva continued to use the access road as he had before, until the present time. In recent years he has considered building a house and residing "up there" on the 198-acre parcel.
The land on which the access road lies is located southeast of Silvas property and is referred to as the 101-acre parcel. Beginning in the 1970s, it was owned by David Olson, a long-time friend of Silva. Silva specifically recalls at least two occasions when Olson saw him using the access road. Although the two never spoke about it, Silva understood that he had a right to use the road and believed that Olson knew it too. In his testimony, Silva answered affirmatively that he assumed he had "permission" to use the road, but then clarified that "I just assumed I had the prescriptive right at that time because I had used it before." Olson had the property listed for sale in 1993, and afterwards transferred title to his mother, Ruth Olson, who continued the listing agreement. Neither Olsen nor his mother lived on the property during the listing period. The property finally sold in 1999 to the Rowes.
We refer to the property as the 101-acre parcel for convenience. We realize that subsequently, the Rowes deeded a portion of the land to Larry and Joanna Ingram.
Charles Rowe visited the property in the summer of 1999 prior to close of escrow. He noticed that beyond the Lambert house there was a "prism" of a former road or path that was cut in the hillside. Though he could see where the road used to be, it was not passable. However, once he cleared the area of brush, he became concerned that hunters or others might try to gain access to the property, so he put a cable across the road just above the Lambert house in July of 1999, even before escrow had closed. At about that same time, Rowe also placed a lock on a gate near the northwest boundary of his property. However, according to the testimony of licensed surveyor Douglas Bredahl, that gate was entirely on the land of Silva. Bredahl was the only surveyor to testify in the case. Silva likewise understood that this gate, which he referred to as the Harner gate, was well within his own property line, and he noted that he could readily access his property without going through the gate.
Escrow closed on the Rowes purchase of the 101-acre property on September 24, 1999. In October of that year, Mary Rowe, out of concern that hunters might enter their land, posted a number of signs saying "no trespassing," "no hunting" and "keep out." Later, she added wording to the signs in accordance with Civil Code section 1008 — namely, that the "right to pass was by permission of owners, subject to approval."
When the Rowes purchased the property, they believed they had found a haven in the foothills where their privacy would never be disturbed because the land was situated at the end of the road. The improved road ended at the Lambert house, just below where they intended to build, and much of their land lay beyond that point. The Rowes built a house on their new property that was completed in 2002. They also gave a parcel of the land (located below the Lambert house) to their daughter and son-in-law, Joanna and Larry Ingram, who also built a home there in 2002.
According to Silva, after the Rowes purchased the 101-acre property, he continued to use the access road and would go there at different times during the year, but he was careful not to drive vehicles in the area during the summer due to fire danger. However, he continued to use the road for access to the upper portion of his 198 acres, which he estimated to be about once per month, perhaps less, but "any time [he] wanted to go up [he] went up." He testified that he never saw a steel cable or any closed or locked gate blocking the access road. Silva either did not notice any "no trespassing" signs or did not pay attention if there were any. He admitted he did not notice the Rowes or Ingrams houses being built in 2002, but explained that he was hospitalized and recuperating for a couple of months beginning in late 2002, and also he "paid no attention [because] theres so many houses being built around there." He did see that a white vinyl gate had been installed, which was left open. He figured that Mrs. Lambert put it in for some reason.
The Rowes and Ingrams testified that they never saw Silva on their land until the incident in November of 2002. On that occasion, Silva drove over the access road to the Harner gate. He was confronted there by Charles Rowe, who claimed Silva was trespassing and ordered him off the property. Silva replied that he did not have to leave and informed Rowe that he had a prescriptive right to use the access road. Another confrontation occurred in 2004, when Silva was visiting Mrs. Lambert and Rowe called the sheriff to have Silva removed for trespassing. Later, in February of 2005, after this lawsuit was filed, Silva and Carol Harner drove up the access road to the Harner gate and were confronted by Larry Ingram, who told them to leave.
Regarding the disputed access road, surveyor Douglas Bredahl completed a survey and prepared a map showing where the road was located, and explained that a dotted line on prior United States Geological Survey (USGS) maps indicated that historically there was at least a trail there. He testified that while performing his survey, he had no difficulty determining the existence of the roadway. Its width was generally between 10 and 12 feet, and was approximately nine feet in the narrowest parts. He opined that it was superior to a mere trail, and was obviously a road.
However, as pointed out by the Rowes, Bredahls road measurements were made after the California Department of Forestry did grading along that area in 2004.
Other witnesses testified that they traversed the access road with Silva in the past. Otis (Butch) Johnson said that he had traveled on the access road with Silva on hunting trips beginning a year or two after he moved to Mariposa County in 1978 until approximately 2001. Johnson recalled that the road was always passable, although sometimes there were tree limbs or branches on the road that had to be removed, and he always carried a chain saw with him for that purpose. He testified that he never saw any chains or gates blocking use of the road. Johnson, who was employed with Pacific Gas and Electric as an electric crew foreman, stated that he helped place a meter on the Rowes property in 2000 and he did not notice any cables across the road at that time.
Donald Simms recalled taking the road with Silva in the 1980s for the purpose of cutting wood on Silvas property in the area of the Harner gate. He also traveled with Silva to the same location in 2000 or 2001 looking for wildlife. He did not recall anything in the road that prevented travel to Silvas property, and he saw no cable blocking the way. Although there was some brush on the roadway, they had no problem "making the road."
Mary Ann Visher, the real estate agent listing the Olsons property from 1993 to 1999, contacted Silva about the best way to get to the northwest corner of the 101-acre parcel. He told her to drive up the subject roadway. Her recollection was that there was not a passable road to Silvas property. The road was not used and it was full of brush, so she never got through. Visher admitted that sometime after 1994, Silva told her that he had a prescriptive easement across the Olson property. She responded that he would have to work that out with the Olsons. Visher later informed Mrs. Olson about the claimed prescriptive easement, although she (Visher) did not find the claim to be credible because it appeared the road was never used. She also testified that she did not notice any cable on any part of the road or property. According to Silvas rebuttal testimony, in 1999 Visher drove up the access road with him accompanied by a surveyor, Jim Gregory, in order to look for the northwest corner of the Olson property, and they drove as far as the Harner gate. Silva recalled driving on the subject roadway with her approximately four or five times in all.
Roscoe Rowney, employed with the California Department of Forestry, had to bulldoze the trail area shown on the USGS map in the course of defending the area against a fire in 2004. He was preparing the area so he could get fire engines up and down the ridge fairly easily. He confirmed that he saw the road prism and that a cut road was visible to him in most places.
A number of witnesses called by the Rowes indicated they had never seen Silva using the access road. For example, Hettie Lambert, the Rowes neighbor and Silvas friend, testified that she had never seen Silva drive up the road past her house and that her dog always barked if anyone drove up the road. Real estate agent Lynn Varney stated that when showing the 101-acre property, it was difficult to drive the subject road in her four-wheel drive vehicle and she never made it to the Silva property. However, she did not feel a need to go any further than the top of the ridge, since she just wanted to show prospective buyers the view from there. Jerry Marx, a contractor who assisted the Rowes at the property site from 1999 until 2001, testified he never saw Silva on the property. Marx recalled that in April of 1999, he could not get his vehicle past the Lambert house. Although he could see what looked like a "road cut," it was overgrown with brush which he eventually helped remove. Marx assisted Rowe in putting up the steel cable across the road about 15 feet above the Lamberts driveway.
As alluded to earlier, according to the Rowes, Ingrams, and Jerry Marx, a steel cable was placed across the road above the Lambert house beginning in July of 1999. In July of 2001, the Rowes replaced the cable with a white vinyl gate. They claimed that either the cable was in place (between July 1999 and July 2001), or the gate was closed and locked (after July 2001), a high percentage of the time, thereby blocking access to the road. Also, in 1999, Charles Rowe put a lock on the Harner gate, believing it to be on the northwest boundary of his property. Numerous "no trespassing" and related signs were posted throughout the property after escrow closed, including signs using the wording of Civil Code section 1008. Aside from the three confrontations with Silva described above, the Rowes claim to have never seen him on the access road or property.
After hearing all the evidence, the trial court issued a statement of decision which held that Silva is the owner of an easement by prescription in the approximate location as depicted in the USGS map. The court found that Silva had used the roadway continuously for a period in excess of five years, and such use was open, notorious, and hostile to the interests of the owners. The court also found that Silva used the easement without interruption during the time that the Rowes claimed they obstructed the roadway, and the evidence that the roadway was impassible was deemed to be not credible. The decision limited the easement to residential purposes only. Judgment was entered in Silvas favor on December 23, 2005, and timely notice of appeal followed.
DISCUSSION
In challenging the trial courts judgment, the Rowes contend as follows: (1) the evidence was insufficient to establish the elements of a prescriptive easement; (2) Silvas claim was precluded by the posting of signs pursuant to Civil Code section 1008; (3) Silvas rights, if any, were lost by abandonment; and (4) the easement described in the judgment improperly extended to parcels owned by nonparties. We will consider each of these contentions in turn.
I. Determination of Prescriptive Easement Supported by Substantial Evidence
A prescriptive easement may be acquired by use that is open, notorious, continuous and hostile, under a claim of right, for a five-year period. (See Civ. Code, § 1007; Code Civ. Proc., § 321; Taormino v. Denny (1970) 1 Cal.3d 679, 686.) Whether the elements of a prescriptive easement have been established is a question of fact for the trial court to determine, which we review under the substantial evidence rule. (OBanion v. Borba (1948) 32 Cal.2d 145, 147-150; Taormino v. Denny, supra, at p. 686; Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449.) Thus, "if there is any substantial evidence to support the judgment, it must be affirmed" (OBanion v. Borba, supra, at p. 147), and "all conflicts must be resolved in favor of the prevailing party and the evidence viewed in a light most favorable to him." (Id. at pp. 147-148; Taormino v. Denny, supra, at p. 686.) "Although the trial courts finding of the existence of a prescriptive easement must be based upon clear and convincing evidence, if there is substantial evidence to support its conclusion, the determination is not open to review on appeal." (Applegate v. Ota (1983) 146 Cal.App.3d 702, 708.)
A. Use Was Open, Notorious and Hostile
The Rowes contend that the evidence did not show Silva used the access road in a way that was open, notorious and hostile. Rather, they point out that virtually no one noticed him using the road, and that prior to 1999 his only use was obviously with the permission of his friend, David Olson. We disagree, because substantial evidence supports a contrary conclusion.
The use must be sufficiently open and notorious to give the owner actual or constructive notice thereof. (Connolly v. McDermott (1984) 162 Cal.App.3d 973, 977; Berry v. Sbragia (1978) 76 Cal.App.3d 876, 880.) As summarized earlier, the evidence at trial indicated regular and visible use of the access road by Silva dating back to 1946 or 1947, and continuing through the date he purchased the 198-acre parcel in 1971 until the present time. A temporary respite in his ongoing use of the roadway occurred when the property was sold in 1979 and reacquired by Silva in 1982 due to the buyers failure to make payments, after which Silvas use of the roadway continued as before. For the most part, Silva drove on the roadway to his 198 acres to hunt or simply to visit his land. Although the evidence consisted primarily of Silvas own testimony, it is apparent the trial court found it to be quite credible, and we agree his testimony constituted substantial evidence of his continuous use of the roadway for the purpose of access to the upper portion of his 198-acre parcel. Other witnesses confirmed they would occasionally go with Silva to the 198 acres by way of the access road, and there was evidence that on at least two occasions David Olson observed Silva using the roadway. Further, a number of witnesses testified that the roadway was reasonably well-defined and passable even when there was brush present. We conclude there was substantial evidence that Silvas use was open and notorious such that it would provide the owners of the servient tenement with actual or constructive notice of the easement. (See Applegate v. Ota, supra, 146 Cal.App.3d at p. 709 [actual or constructive notice to owner may be implied from visible, open usage].)
Since Silva did not actually purchase the 198-acre parcel until 1971, that date would mark the beginning of use of the roadway for benefit of that property as dominant tenement. (See Civ. Code, § 803 [defining dominant and servient tenements].)
Silva correctly notes that the "continuous" use need not be every day or every week, but is sufficient if it occurs at those times as may be necessary or convenient for the purposes of the user. (Hesperia Land & Water Co. v. Rogers (1890) 83 Cal. 10, 11; Fogerty v. State of California (1986) 187 Cal.App.3d 224, 239; Twin Peaks Land Company v. Briggs (1982) 130 Cal.App.3d 587, 593.) Use may be continuous "though there are periods of time more or less extended between the specific acts of use." (Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 432.) Here, the use by Silva was shown to be "continuous" in this sense at least from the time he reacquired the property in 1982, which is more than sufficient to establish the prescriptive easement prior to the Rowes purchase. We note Silva argues his use of the roadway was "continuous" from the time of his acquisition of the 198 acres in 1971, because such use would have ripened into an easement by 1976. Thus the transfer of title in 1979 would have included the prescriptive rights, which he received back in 1982. That is, once the easement attached to the property, the change in ownership did not extinguish it, and Silva resumed his use once the property was deeded back to him. (See, e.g., Jones v. Young (1957) 147 Cal.App.2d 496, 498; and see Elliott v. McCombs (1941) 17 Cal.2d 23, 31.) We need not resolve this question, as it is unnecessary to trace his continuous use back so far.
The use must also be hostile and under claim of right. This means that the use must be adverse or without permission of the owner. (Aaron v. Dunham (2006) 137 Cal.App.4th 1244, 1252; Felgenhauer v. Soni, supra, 121 Cal.App.4th at p. 450.) "`In most of the cases asserting [the requirement of a claim of right], it means no more than that possession must be hostile, which in turn means only that the owner has not expressly consented to it by lease or license or has not been led into acquiescing in it by the denial of adverse claim on the part of the possessor." (Felgenhauer v. Soni, supra, at p. 450.) Open use of land without asking or receiving permission may be sufficient to show the use was hostile under claim of right. (Lord v. Sanchez (1955) 136 Cal.App.2d 704, 707; Felgenhauer v. Soni, supra, at p. 450.) However, the use must not be "by consent, permission or mere indulgence of the owner ...." (Peck v. Howard (1946) 73 Cal.App.2d 308, 328.)
The Rowes contend that any use prior to 1999 must have been by permission, since David Olson was Silvas friend. We disagree. Although the relationship of the parties is a factor to be considered, it is not the only one. A determination of whether the requirements of a prescriptive easement have been satisfied, including the question of adverse versus permissive use, is based on all the surrounding circumstances. (See Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 572; OBanion v. Borba, supra, 32 Cal.2d at p. 149.) In this case, considering among other things the existence of the defined roadway, the evidence of Silvas longstanding and open use, his understanding that the roadway was needed for reasonable access to the upper portion of his property, his belief he had acquired a prescriptive right based on his ongoing use, and the absence of any indication that permission had ever been sought or given, the trial court had more than ample evidence upon which to draw the conclusion that Silvas use was not based on permission. (See Applegate v. Ota, supra, 146 Cal.App.3d at p. 710 [noting similar factors].) Moreover, "continuous use of an easement over a long period of time without the landowners interference is presumptive evidence of its existence and in the absence of evidence of mere permissive use it will be sufficient to sustain a judgment." (Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d at pp. 571-572.) We conclude there was substantial evidence that the pre-1999 use was adverse or prescriptive, rather than permissive.
No interference occurred in Silvas use of the road until November of 2002, the first confrontation with the Rowes. There was sufficient evidence that by that time, Silvas prescriptive easement was already established as a matter of right.
B. Use Was Continuous For Five Years or More
The Rowes argue there was insufficient evidence to support the trial courts conclusion that Silvas use of the easement was continuous for five or more years. We disagree. As indicated by the summary of the facts above, there was substantial evidence for the trial court to conclude the prescriptive easement was established, including the requirement of five years continuous use, well before the Rowes ever purchased the property in 1999. "[I]f the requisite elements of a prescriptive easement are shown, `[s]uch use for the five-year statutory period ... confers a title by prescription." (Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d at p. 574.) The trial court plainly found credible Silvas testimony of his ongoing use of the roadway in the decades following his purchase of the 198 acres, and as noted above, there was sufficient evidence that the pre-1999 usage was adverse rather than permissive. "[O]nce the easement is created, the use continues as a matter of legal right, and it is irrelevant whether the owner of the servient estate purports to grant permission for its continuance." (Felgenhauer v. Soni, supra, 121 Cal.App.4th at pp. 450-451 [trier of fact could reasonably conclude prescriptive easement established prior to erection of fence and gate].)
C. "Clear and Convincing"
The Rowes contend that the trial court erred because a prescriptive easement must be based on clear and convincing evidence, which they argue was lacking in this case. The contention is without merit. "Although the trial courts finding of the existence of a prescriptive easement must be based upon clear and convincing evidence, if there is substantial evidence to support its conclusion, the determination is not open to review on appeal." (Applegate v. Ota, supra, 146 Cal.App.3d at p. 708.) As emphasized above, there was substantial evidence to support the trial courts conclusion regarding the existence of a prescriptive easement. We have no doubt in this case that the trial court, in evaluating the credibility of witnesses and resolving conflicts in the evidence, could reasonably conclude the evidentiary standard was satisfied, and we will not reweigh the evidence on appeal. "Where the trial court or jury has drawn reasonable inferences from the evidence, we have no power to draw different inferences, even though different inferences may also be reasonable." (Felgenhauer v. Soni, supra, 121 Cal.App.4th at p. 449.)
II. Prescriptive Easement Was Not Precluded by Civil Code Section 1008
The Rowes argue that Silvas claim to a prescriptive easement was prevented by the fact that they posted signs in accordance with Civil Code section 1008. This statute provides as follows: "No use by any person or persons, no matter how long continued, of any land, shall ever ripen into an easement by prescription, if the owner of such property posts at each entrance to the property or at intervals of not more than 200 feet along the boundary a sign reading substantially as follows: `Right to pass by permission, and subject to control, of owner: Section 1008, Civil Code."
The Rowes argument misreads the statute. It clearly provides that posting of the signs will prevent adverse use from ripening into a prescriptive easement. However, based on the record before us, there was ample evidence for the trial court to conclude, as it implicitly did, that the easement was established long before the signs were posted in 1999. A prescriptive easement is not lost simply because the owner of the property posts a sign to the effect that the property is private. (Harrison v. Bouris (1956) 139 Cal.App.2d 170, 175.) "[O]nce the easement is created, the use continues as a matter of legal right, and it is irrelevant whether the owner of the servient estate purports to grant permission for its continuance." (Felgenhauer v. Soni, supra, 121 Cal.App.4th at pp. 450-451.) The case cited by the Rowes, Aaron v. Dunham (2006) 137 Cal.App.4th 1244, is distinguishable because it did not involve a situation where the easement was established before the signs were posted.
The Rowes point out the trial court did not expressly address the Civil Code section 1008 question. It is helpful to reiterate our standard of review, including of the trial courts implied findings: `"Where findings of fact are challenged on a civil appeal, we are bound by the "elementary, but often overlooked principle of law, that ... the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court. [Citation.] [¶] The substantial evidence standard applies to both express and implied findings of fact made by the superior court in its statement of decision rendered after a nonjury trial. [Citation]. The doctrine of implied findings ... (1) directs the appellate court to presume that the trial court made all factual findings necessary to support the judgment so long as substantial evidence supports those findings and (2) applies unless the omissions and ambiguities in the statement of decision are brought to the attention of the superior court in a timely manner. [Citations.]" (SFPP, L.P. v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 462.)
Even without reference to such implied findings regarding the time the easement was established, we would have no difficulty in affirming the judgment. The trial court was entitled to resolve all conflicts in the evidence. Also, "[t]he trier of fact is not required to believe even uncontradicted testimony." (Felgenhauer v. Soni, supra, 121 Cal.App.4th at p. 449.) Thus, the court could have concluded the signs were not posted, or were not posted when claimed, or were not posted in the locations required by the statute.
III. Prescriptive Easement Was Not Abandoned
The Rowes argue that the easement was abandoned, or lost by prescription, because the roadway was blocked by cables and gates for a period of five years. (See Civ. Code, § 811 ["A servitude is extinguished ... by disuse thereof by the owner of the servitude for the period prescribed for the acquiring title by enjoyment"].) In particular, "[t]he nonpermissive erection and maintenance for the statutory period of permanent structures ... which obstruct and prevent the use of the easement will operate to extinguish the easement." (Glatts v. Henson (1948) 31 Cal.2d 368, 371.) We find the Rowes argument to be without merit, because there was substantial evidence in the record that during the five-year period after the Rowes arrived at the property, the roadway was passable and was not obstructed. Significantly, Silva testified he had no difficulty using the road, never saw a cable or a closed gate, and he continued driving on the roadway when he wanted to do so. The trial court was entitled to believe this testimony. Although there may have been evidence that would allow the trial court to reach a different conclusion, it was not required to do so as a matter of law under the evidence in this case. (See OBanion v. Borba, supra, 32 Cal.2d at p. 151.)
IV. Easement and Property Description
The judgment includes a legal description of the easement and of the land which the easement burdens. However, in addition to describing the Rowes parcel (as servient tenement), the legal description also refers to parcels 2 and 3 which the parties agree are not owned by the Rowes, but by nonparties. Since the court does not have jurisdiction over the nonparties or their land, the Rowes object to the reference to parcels 2 and 3 in the legal description because it suggests that Silvas easement burdens these other parcels as well. Silva responds that the inclusion of this surplus language was unrelated to the easement itself and harmless. Both parties agree that this court may correct the inadvertent reference to parcels 2 and 3 by either modifying the judgment or remanding to the trial court to modify the judgment. We adopt the latter course and will remand the matter to the trial court for the limited purpose of clarifying the legal description of the servient property by deleting the reference therein to parcels of nonparties. (See Code Civ. Proc., § 43.) In all other respects, the judgment is affirmed.
It seems that parcels 2 and 3 were referenced within the overall description of the Rowes property as there were appurtenant easements of record over those parcels for the benefit of the Rowes property.
DISPOSITION
The matter is remanded to the trial court for the limited purpose of clarifying the legal description of the property that is burdened by the prescriptive easement by deleting the reference to parcels of nonparties. In all other respects, the judgment is affirmed. Respondent Silva is entitled to recover his costs on appeal.
We Concur:
Harris, Acting P.J.
Wiseman, J.