Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Melvin D. Sandvig, Judge, Super. Ct. No. PC035328
Levinson, Arshonsky & Kurtz and Karol H. Ingber for Defendant and Appellant.
John B. Murdock for Plaintiffs and Respondents.
CHAVEZ, J.
New Paradise Church of God in Christ, a nonprofit religious corporation (appellant), appeals from a final judgment eliminating an easement in favor of undeveloped property owned by appellant and quieting title to the adjacent property, owned by respondents Ritsuo and Michi Takeuchi (respondents). We affirm the judgment.
CONTENTIONS
Appellant contends that the trial court erred in interpreting the easement at issue to be an easement of necessity. Appellant further contends that the trial court erred in failing to enforce the easement. Finally, appellant contends that the trial court erred in denying appellant’s request for injunctive relief, through which appellant sought to prevent respondents from interfering with appellant’s use and maintenance of the easement.
BACKGROUND
1. The Properties
In 1986, respondents acquired property located at 13104 Glenoaks Boulevard in Sylmar, California (Glenoaks). Although respondents have never lived on Glenoaks, they have rented it to various residential tenants since 1986.
In May 2003, appellant acquired an undeveloped parcel of real property adjacent to respondents’ property, located at 13187 North Fellows Avenue in Sylmar, California (Fellows).
2. The Easement Dispute
Appellant sought a permit to construct a church on appellant’s property, which was initially denied by a zoning administrator. According to the allegations in appellant’s cross-complaint, the permit was later approved because appellant stated it would utilize an easement across respondents’ property to ease traffic flow to and from the proposed church. Upon learning of the proposed traffic route across their lot, respondents investigated the claimed easement and filed an action to quiet title. Appellant filed a cross-complaint to quiet title to the easement, for trespass to the easement, and for unreasonable interference and obstruction of use of the easement.
In their complaint, respondents claimed that the easement was terminated by adverse possession, abandonment, termination of necessity, forfeiture, and statutory termination.
Respondents also made claims for nuisance and surcharge of the burden. However, these causes of action were voluntarily abated as moot, therefore the parties were prevented at trial from exploring issues related to the proposed use of appellant’s property. The trial was limited to the issue of whether an easement existed.
Appellant’s cross-complaint sought to establish the validity of the easement and to recover damages for trespass and interference with the easement due to respondents’ construction of a wall which blocked appellant’s access to the easement.
After discovery was complete, the parties filed a joint stipulation of ultimate facts, which set forth the basic ownership and location information of the properties at issue as well as the following facts:
“5. The Grant Deed which conveyed [appellant’s property] to [appellant] . . . attaches a description of “parcel 2” which describes a 20 foot easement for ingress and egress over the adjacent property which is owned by [respondents], excepting the last 10 feet.
“6. The original easement, which did not except the last 10 feet, was created in 1947 by the Brazeltons, who then owned both [appellant’s] and [respondents’] properties as a single lot, when Brazeltons divided and sold the lot now owned by [appellant].
“7. The claimed easement is paved.
“8. At the time the easement was created, [appellant’s property] was not accessible from any other roads until Fellows Avenue was constructed in the late 1950s.
“9. Within the last two years, [respondents] have constructed a block wall which prevents access from the claimed easement to [appellant’s property].
“10. [Respondents] have paid all assessed property taxes on [respondents’ property] for the 5 years prior to the filing of their lawsuit against [appellant] on August 9, 2004.
“11. The Los Angeles County Assessor has not separately assessed property taxes on the easement.
“12. The parties are not making any claims for damages at this time.
“13. All claims in the pleadings as to the alleged burden that would be placed on [respondents’] lot if the Easement is utilized by [appellant] are abated and dismissed without prejudice as such claims are not yet ripe for decision.”
3. The Trial
The matter was tried before the court on July 24, 2006. The evidence before the court consisted of both documentary evidence and trial testimony.
Documentary evidence
The documentary evidence included property deeds to both properties dating back to 1941. The documents showed that both Glenoaks and Fellows were originally one lot, owned by Oscar and Ruby Brazelton. In 1947 the Brazeltons split their property in two and sold the lot which is now Fellows to Alfred and Jessie Hipolito. The deed specified that the Hipolitos received Parcel 1, consisting of what is now Fellows, and Parcel 2, “[a]n easement for ingress and egress” over the southeasterly 20 feet of the southwest half of what is now Glenoaks. The Hipolitos sold the property to the Mormon Church in 1957, the year that Fellows Avenue was under construction. The Mormon Church never built anything on the lot and sold it in 1977 to Richard and Marjorie M. Smith. In 1980, the lot changed hands again and went to Paul and Peggy Hermann, who sold it in 1981 to Michael Orozco Sr. Orozco Sr. quitclaimed to Orozco Jr. in 2000, and Orozco Jr. conveyed it to appellant in 2003.
The deed for Glenoaks was conveyed in 1986 from Ruby Brazelton to respondents and their daughter, Janice Takamoto. The title policies issued to respondents revealed no easement across respondents’ property other than public utilities.
Aerial photographs of the property between 1975 and 2003, as well as photographs of the driveway area used by respondents’ tenants and barricaded at the entry gate to Fellows, were received in evidence. The city street dedication, establishing the date that Fellows Avenue gave public access to Fellows as 1957, was also received in evidence, as well as pictures showing that Glenoaks was gated at the Glenoaks Boulevard entry with a sign saying “No Trespassing – Violators will be Prosecuted.”
Testimony
Janice Takamoto, daughter of respondents, testified that she participated with her parents in the purchase of Glenoaks in 1986. No one mentioned any easement across the lot, nor did she ever see anyone from Fellows use the easement. During the entire period from 1986 until 2005, there was a locked gate between the two properties. Ms. Takamoto took photographs of the area and described it to the court, explaining that the sole use of the claimed easement area was a driveway used by the tenants on Glenoaks. Ms. Takamoto further testified that when the family acquired Glenoaks they obtained a title report, and later upon re-financing acquired a second one, and that neither report disclosed the existence of the purported easement across the property. Upon questioning from the court, Ms. Takamoto indicated that after the family acquired the property in 1986, she was there at least three to four times per week and that no one, to her knowledge, had used the claimed easement to access Fellows.
Ritsuo Takeuchi, who was 93 years old at the time of trial, testified that in 1977 he purchased land in Sylmar referred to as lot 16, which is adjacent to both Fellows and Glenoaks. Mr. Takeuchi was a carpenter and spent nearly every day for 10 years working to improve the lot. He was able to observe Fellows and Glenoaks during that time, and never saw anyone access Fellows from Glenoaks. In 1986 he and his wife bought Glenoaks from Ruby Brazelton, a widow. The title report on the lot disclosed no easement across the property.
A witness for appellant, Emmanuel Knight, testified that he entered into a contract to purchase the vacant lot that is now Fellows in May 2003 for the purpose of building a church on the site. At the time he acquired it, he was unaware of any easement across Glenoaks. However, he later noticed some writing on the deed and went back to the title company to ask them about it. He also asked Mr. Orozco, Sr. about it and learned that the writing described the purported easement across Glenoaks. There was a locked gate at the driveway entrance towards Glenoaks Blvd. Mr. Knight always accessed the property from Fellows Avenue. On one occasion, he went onto the driveway on Glenoaks but a tenant came out of the house on the lot and “said a few bad words” so he left.
Michael Orozco, Sr. also testified. He stated that after he purchased Fellows he used the easement to clean up the lot. After that he put a lock on the gate between the two parcels and never took it off. At the time that he sold the property, he didn’t know where the key to the lock was. Both Mr. Orozco Sr. and Mr. Orozco, Jr. testified that they had intended to build a house on the lot but never did.
Annmarie Ramirez testified that she was a tenant living on Glenoaks from April 1987 through 2004. She testified that there were two houses on the lot, and she lived in the back house with her husband and four children. The children played in the driveway area, and the gate was locked with a big rusty lock the entire time she lived there. Her husband’s work truck was disabled for more than five years and was parked up against the gate at the property line to Fellows for that entire time. It was physically blocking the gate, and no one could get through. She never saw anyone come through the gate from Fellows to Glenoaks. She recalled one occasion in about 2003 when some men she didn’t know came up from Glenoaks Blvd. on the driveway, but because she was there by herself with her kids she said, “Well, I told him, you know, they all need to get the hell off my property.” She also testified that there was a gate at the end of the driveway on the Glenoaks Blvd. side, which she always kept closed. She got in and out of her car to open and close the gate.
4. The Judgment
Following its consideration of all of the evidence and the arguments of counsel, the trial court issued a written decision, which was filed on October 3, 2006. The court found that the easement was created in 1947 when the Brazeltons divided the property and sold Fellows to the Hipolitos. The court specified that “[i]n order to complete that transaction and not land lock the sale of [Fellows], they created the easement so that [Fellows] could be accessed from [Glenoaks]; however in 1957 when Fellows Avenue was constructed, it is the Court’s ruling that that terminated the easement in 1957.” In other words, the court ruled that the easement was an easement of necessity and that it expired by operation of law when the necessity no longer existed.
The court acknowledged that both Mr. Orozco Sr. and Mr. Orozco Jr. testified that they had intended to use the easement, but the court found that testimony to be “self-serving.” The court indicated “[t]here hasn’t been any proof, building permits, or anything showing that they planned to build a garage on the back of the property and use that easement for access.”
Based upon the foregoing findings, the court ordered judgment for respondents quieting title and eliminating the easement at issue. Appellant subsequently filed a motion to vacate the judgment which the court heard and denied on October 19, 2006. Appellant filed its notice of appeal on November 16, 2006.
DISCUSSION
I. Standards of Review
Interpretation of a deed is generally a question of law which should be reviewed de novo. (City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 252.) “‘It is therefore solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence.’” (Id. at p. 238.)
Here, the trial court felt the need to look beyond the language of the deed in order to arrive at its decision. The court considered “the testimony of all witnesses, the documentary and physical evidence received,” in reaching its conclusion. In analyzing the trial court’s factual findings resulting from its consideration of this evidence, our review is limited to whether substantial evidence exists to support such findings. (Machado v. Southern Pacific Transportation Co. (1991) 233 Cal.App.3d 347, 362.) We must uphold the court’s factual findings if supported by substantial evidence. (Masnick v. Caton (1986) 183 Cal.App.3d 1248, 1259.) Questions of credibility must be resolved in favor of the factfinder’s determination. (Abar v. Rogers (1972) 23 Cal.App.3d 506, 510.)
In sum, we find that the trial court’s determination that the easement in question was an easement of necessity, which ceased to exist upon expiration of the necessity, presents a mixed question of fact and law for our review. (See Kellogg v. Garcia (2002) 102 Cal.App.4th 796, 802.) We shall apply a de novo standard of review to the trial court’s application of the law and interpretation of the written instrument, but we shall apply a substantial evidence standard of review to the trial court’s factual conclusions.
II. The Trial Court Properly Considered Extrinsic Evidence to Ascertain the Nature and Extent of the Rights Created
Appellant argues that the easement should be strictly construed according to its granting language. Citing Norris v. State of California ex rel. Dept. Pub. Wks. (1968) 261 Cal.App.2d 41, 45 (Norris), appellant contends that where a right-of-way has been created by grant, the scope and extent of the easement is to be determined by the terms of the grant. Thus, appellant argues, we should limit our review to the language of the deed and interpret that language as creating an express easement for ingress and egress.
Respondents, on the other hand, argue that “[c]reation of a way of necessity depends on the terms of the deed and facts of the particular case.” (Daywalt v. Walker (1963) 217 Cal.App.2d 669, 672-674 (Daywalt). Respondents contend that the facts of this case, and the terms of the 1947 deed which specify that the easement is for access, can only be construed in one way: the easement was created for necessity because the parcel owned and sold by the Brazeltons to the Hipolitos in 1947 had no access to public roads, and that the easement ceased by operation of law in 1957 when the public road known as Fellows Avenue was created, which gave the owners of appellant’s property access to the premises.
As set forth below, we find that the matter may not be resolved on the narrow review advanced by appellant. As the cases cited by appellant acknowledge, it is not always possible to determine the scope and extent of an easement by the language of the deed itself. (Palo Verdes Corp. v. Housing Authority of Los Angeles County (1962) 202 Cal.App.2d 827, 835 [“The intention of the parties to a grant is to be gathered, if possible, from the instrument itself and is determined by a proper construction of the language used, rather than by resorting to extrinsic evidence [citation]” (Italics added)].) Our analysis of the deed that created the easement leads us to conclude that the trial court properly weighed extrinsic evidence in determining the nature and extent of the rights conveyed.
In Norris, the court noted “[n]o extrinsic evidence which would have any relevance to disclose the grantor’s intent was offered.” (Norris, supra, 261 Cal.App.2d at p. 45, fn. omitted.) Therefore the Norris court did not address the question of whether any such extrinsic evidence was properly considered.
We first review the rules of contract interpretation as to the admissibility of extrinsic evidence to construe a written instrument. As the California Supreme Court has explained: “The test of admissibility of extrinsic evidence to explain the meaning of a written instrument is not whether it appears to the court to be plain and unambiguous on its face, but whether the offered evidence is relevant to prove a meaning to which the language of the instrument is susceptible. [Citations.]” (Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 37). “Accordingly, rational interpretation requires at least a preliminary consideration of all credible evidence offered to prove the intention of the parties . . . [i]f the court decides, after considering this evidence, that the language of a contract, in the light of all the circumstances, is ‘fairly susceptible of either one of the two interpretations contended for’ . . . extrinsic evidence relevant to prove either of such meanings is admissible.’” (Id. at pp. 39-40, citations & fns. omitted.)
When interpreting a deed, the same general rules of contract interpretation apply as would be applied to any other contract. (City of Manhattan Beach v. Superior Court, supra, 13 Cal.4th at p. 238 [“‘[t]he primary object of all interpretation is to ascertain and carry out the intention of the parties’”].)
Here, the language of the original conveyance indicated that the easement was created “for ingress and egress.” Regardless of whether this language is unambiguous on its face, the court is required to consider extrinsic evidence relevant to prove a meaning to which the language is susceptible. We find that the language is susceptible to the interpretation that it created an easement of necessity, especially in light of the undisputed evidence that appellant’s property was inaccessible by any other means at the time the easement was created.
An easement of necessity grants limited rights, terminating upon expiration of the necessity. (Lichty v. Sickels (1983) 149 Cal.App.3d 696, 699; Smith v. Skrbek (1945) 71 Cal.App.2d 351, 360). Thus, the extrinsic evidence showing that the easement was necessary to access the property, created an uncertainty as to the nature and extent of the rights created. This allowed the court to “read the instrument in light of the situation of the property and the surrounding circumstances, to the end that the intention of the parties may be ascertained and given effect.” (Eastman v. Piper (1924) 68 Cal.App. 554, 560.)
Under these circumstances, the trial court properly considered extensive evidence concerning the nature and extent of the rights created by the 1947 deed. In light of “the testimony of all witnesses, the documentary and physical evidence received,” the court came to its conclusion that the easement was created of necessity and thus terminated when the necessity expired.
We have concluded that our review must incorporate the extrinsic evidence and factual findings made by the trial court. We therefore turn to the evidence supporting the trial court’s conclusion.
III. The Evidence Showed That the Easement Was an Easement of Necessity
“‘. . . An easement of necessity can exist when a landowner sells one of two or more parcels and the parcel sold is completely landlocked by the remaining property of the grantor, or partly by the land of the grantor and partly by the land of others.’” (Kellogg v. Garcia, supra, 102 Cal.App.4th at p. 802.) In order for an easement of necessity to arise, two elements must be satisfied: “‘(1) there is a strict necessity for the right-of-way, as when the claimant’s property is landlocked and (2) the dominant and servient tenements were under the same ownership at the time of the conveyance giving rise to the necessity.’ [Citations.]” (Id. at p. 803.)
The evidence at trial showed that the easement was created in 1947 under precisely these circumstances. When the Brazeltons divided their property and sold what is now Fellows to the Hipolitos, the parcel was completely landlocked with no access to any public roads. The parties stipulated that “[a]t the time the easement was created, [Fellows] was not accessible from any other roads until Fellows Avenue was constructed in the late 1950s.” This fact strongly supported the trial court’s conclusion that the easement was created as a way of necessity. There can be no question that the easement was indispensable to the Hipolitos’ use and enjoyment of their property.
The history of the two properties since the original transaction in 1947, and the fact that the easement fell almost entirely into disuse by the subsequent owners of appellant’s property, also supports the trial court’s determination that the easement was one of necessity. While Michael Orozco Sr. testified that he used the easement in the early 1980’s to clear some trees off the land, there was no other testimony from any resident on either property that the easement had been used since. While both Mr. Orozco Sr. and Mr. Orozco Jr. testified that they had intended to use the easement, the trial court found their testimony to be “self-serving” and therefore not credible. In fact, residents on both properties testified that a gate on the property line of the purported easement was locked for nearly a quarter century. This supports the natural conclusion that, once Fellows Avenue provided public access to Fellows, use of the easement ceased.
A right-of-way of necessity ceases when the owner of the way acquires a new means of access to his estate – for example, where “‘“a public way is laid out which affords access to his premises.”’” (Kellogg v. Garcia, supra, 102 Cal.App.4th at p. 805.) Here, both stipulated facts and documentary evidence showed that Fellows Avenue was constructed in the late 1950’s, giving the various subsequent owners of what is now Fellows access to the land. As respondents point out, at the time the widowed Ruby Brazelton sold Glenoaks to respondents in 1986, 29 years had passed since the dedication of Fellows Avenue had made the easement unnecessary, and the lot had remained vacant for that entire time. Because the easement had not been used for so many years, it is not surprising that neither Mrs. Brazelton nor the title reports revealed the existence of the easement. This evidence bolsters the conclusion that the easement had expired by operation of law when Fellows Avenue was created.
We find that the language of the deed, the stipulated facts, and all evidence presented at trial lead to the conclusion that the easement was created by operation of law in 1947 when the Brazeltons sold the landlocked parcel which is now appellant’s property to the Hipolitos. We further agree with the trial court’s conclusion that the easement of necessity expired in the late 1950’s when Fellows Avenue was created.
The parties disagree as to whether the trial court made a secondary finding that the easement was abandoned. Because we have determined that the easement was an easement of necessity that has expired by operation of law, we need not address this question. We further refrain from addressing respondents’ arguments that, in the event the easement was not an easement of necessity, it was extinguished by “disuse” of more than five years per Civil Code section 811, subdivision (4) or by respondents’ adverse possession for more than the required five-year period. Because of its finding that the easement was created out of necessity and thus expired by operation of law in the late 1950’s, the trial court did not address the requirements of these theories or the question of whether the evidence supported these theories.
IV. Appellant Has Failed to Show That an Easement of Necessity May Not be Recorded as a Matter of Law
The basis for appellant’s contention that the easement was not an easement of necessity is the fact that the easement was recorded. Appellant advances the position that any easement that is recorded may not, as a matter of law, be considered an easement of necessity. According to appellant, an easement of necessity “cannot be founded on an express grant,” but may only arise by implication where the circumstances require it.
We find that appellant has failed to cite any authority for the proposition that an easement of necessity may not be expressly recorded. As support for its contention that “an easement by necessity cannot be founded on an express grant,” appellant cites 28A Corpus Juris Secundum, Easements, section 91 (CJS). Preliminarily, we note that the trial court found, as do we, that the easement arose from necessity. In other words, it would have existed whether or not the parties chose to record it. Under those circumstances, a way of necessity was created under the “‘“sound public policy that lands should not be rendered unfit for occupancy or successful cultivation,”’” and the presumption that “‘“whenever a party conveys property, he conveys whatever is necessary for the beneficial use of that property.”’” (Kellogg v. Garcia, supra, 102 Cal.App.4th at p. 803.) Thus, the Hipolitos’ right-of-way did arise by implication – however, the parties also recorded it in the Hipolitos’ deed.
The CJS citation provides no authority for the proposition that an easement of necessity may not, under any circumstances, be recorded. The CJS citation provided by appellant explains: “An easement of necessity is not a creature of contract, and cannot be founded on an express grant, but is dependent on an implied grant or reservation. Thus, omissions in a deed will not negate the existence of a right of way by necessity.” (28A C.J.S. (1996) Easements, § 91, p. 272.) As set forth above, the easement arose out of necessity. The CJS does not indicate that such an easement may not be recorded – only that the fact that it is not recorded does not negate its existence. Indeed, the same section of CJS further reports, under the heading “Express grant not necessary”: “Even without express grant of easement, law would imply ‘way of necessity’ to afford landowner means of access to public thoroughfare over another’s property.” (Ibid.) Again, while the recording of the easement is not necessary, it is also not precluded.
Appellant’s citations to Miller & Starr, 6 California Real Estate (3d Ed. 2006) section 15:27 for the proposition that “easements by necessity arise by implication,” also does not support the contention that easements by necessity may never be recorded. That treatise provides, “the majority of decisions have held that the creation of an easement by necessity depends on the presumed intent of the parties as determined from the physical condition of the respective parcels of property, the agreements between the parties, the contracts and instruments of conveyance, and all of the surrounding facts and circumstances.” (§ 15:27, p. 15-105.) In this case, all of those factors led to the conclusion that this easement arose out of necessity.
In addition to these treatises, appellant cites three California cases, none of which prevent a finding that the easement in question here was an easement of necessity. First, appellant cites Daywalt, supra, 217 Cal.App.2d at page 669. Daywalt involved an action by a landowner to establish a right-of-way across his neighbors’ land. The Court of Appeal upheld the trial court’s determination that a right-of-way by necessity did not exist because the parties to the transaction by which plaintiff became owner of his land “never contemplated or intended that there should be a right-of-way by necessity or otherwise over the land,” and there was no access to a public road over the defendants’ property. (Id. at p. 676.) Nowhere within this case can we find any language indicating that an easement by necessity may not be recorded, nor does appellant cite any such language.
Appellant also cites San Joaquin Valley Bank v. Dodge (1899) 125 Cal. 77, 80, which reiterates the accepted rule that “[a] way of necessity arises when one grants a parcel of land surrounded by his other land, or where the grantee has no access to it except over the other land of the grantor or as an alternative by passing over the land of a stranger. In such cases the grantor impliedly grants a right of way over his land as incident to the purchaser’s occupation and the enjoyment of the premises granted.” Again, there is no language indicating that such a grant may not be recorded.
Finally, appellant cites Bates v. Terry (1961) 194 Cal.App.2d 137 for the proposition that “an easement of necessity will not arise by implication where a right of way has been expressly granted.” In Bates, it was found that the owner of the servient property had actual knowledge of the easement prior to acquiring title to her lot, and that “the road was plainly visible and in use across the land in question at the time of her purchase,” thus she was put on inquiry of the possible existence of the servitude. (Id. at p. 144.) The easement at issue was found to be created by express grant from a common grantor, thus the court found it “unnecessary under the circumstances to consider seriously whether there was an easement by prescription, or of necessity, or by implication.” (Ibid.) The circumstances before us are different. The easement at issue had fallen out of use, undoubtedly due to expiration of the necessity which created it. Thus, the owners of the servient property were not on notice of the existence of the easement, and consideration of all of the surrounding circumstances leading to the creation of the easement was appropriate.
The easement at issue arose, by operation of law, when the Brazeltons divided their property and sold the landlocked portion. Because it expired by operation of law upon the creation of Fellows Avenue in 1957, subsequent deeds purporting to transfer the easement failed to do so.
Because we affirm the trial court’s conclusion that the easement at issue was an easement of necessity which no longer existed after the creation of an alternate means of access to appellant’s property, we affirm without discussion the trial court’s denial of appellant’s request for injunctive relief seeking that the court enjoin respondents from interfering with appellant’s use of the purported easement.
DISPOSITION
The judgment is affirmed. Appellant shall pay the costs of appeal.
We concur: BOREN, P. J., DOI TODD, J.