Opinion
A130661
01-26-2012
ELOISE TWINING, et al., Plaintiffs, Cross-defendants and Appellants, v. CASEY HARTLIP, et al., Defendants, Cross-complainants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 07-50081)
Plaintiffs and appellants Eloise Twining, Mary Bocchetti and Margery Mitchell filed suit to limit the scope of an easement running over their property, an easement defendants and respondents Casey Hartlip, Lynne Hartlip, Roland Wentzel and Barbara Wentzel use to access their own, nearby property. Following trial, the court entered judgment fixing the width of the easement at 50 feet, much wider than plaintiffs wanted. However, the court also stated defendants could use only that portion of the 50-foot width legally required for use of the easement as a residential access road, which the court thought was 20 feet. In addition, the court permitted defendants to replace manual gates across the easement access road with electric ones. We affirm the judgment as modified.
I. B ACKGROUND
In 1957, Howard and Olive Twining purchased four contiguous parcels of mountainous ranch land in Mendocino County. They lived on the property and accessed it two ways: first, by a narrow but public route called Mill Creek Road, which runs from the eastern side of the property down Mill Creek Canyon; second, by a route some 10 to 14 feet wide, now called Twining Road, which runs from the western side of the property over parcels then owned by others, down to River Road.
In 1964, the Twinings sold the eastern 1,760 acres of their land (subject property) to MacDonald Products Company (MacDonald) but retained the western portion (remaining portion). While negotiating the sale, the Twinings and MacDonald signed an agreement to "clarify" easement rights for accessing the subject property. This agreement, dated July 9, 1964, provided:
"2. The grant deed from Twining conveying fee title to MacDonald to the subject property shall contain a grant of perpetual easement along the roadway now existing from the westerly line of the subject property in section 36, through the remaining property to the River Road. Said easement shall be 50 feet in width, to be used for a roadway for ingress and egress of vehicles of all kinds, persons, and necessary utilities, and shall be granted for the benefit of and appurtenant to the subject property so conveyed.The agreement also stated MacDonald could "use the easement so granted in its present condition" so long as "few persons use [the main] gate [on the remaining property] and keep it locked at all times." Further, MacDonald was required, at its own cost, to make alterations and improvements to the easement route over the remaining property if it sold any of the subject property. Exhibit B to the agreement, a map, "defines the westerly remaining property and the easement rights granted thereon." It shows the "existing easement" as a black line snaking over the remaining property, from the subject property in the east to the main gate on the remaining property to the west.
"3. Twining warrants to MacDonald that the roadway from the most northwesterly boundary of the remaining property to the River Road is held by prescriptive right and shall inure to the benefit of and be appurtenant to the subject property."
The grant deed recorded October 2, 1964, conveyed the subject property, then divided into seven parcels, to MacDonald:
"TOGETHER WITH a perpetual easement 50 feet in width to be used for a roadway for ingress and egress of vehicles of all kinds, persons and necessary utilities, that now runs from the westerly boundary of Parcel Three, through
northerly portion of grantors [sic] remaining property in a northerly and westerly direction and extension of said easement out to River Road.
"Said easement is shown and designated as 'Exhibit B' and attached to Agreement dated July 9, 1964 . . . a copy of which is being recorded concurrently herewith."
In July 1973, the Twinings acquired additional land (added property) west of and adjacent to their remaining property. Twining Road also traverses this property as it wends its way west down the hillsides and toward River Road.
Three months later, in October 1973, the Twinings and MacDonald signed and recorded another agreement to "clarify[] and modify[]" the 1964 agreement concerning access to the subject property. In this 1973 agreement, the Twinings agreed to:
"sell, transfer, or otherwise convey, all of their right, title and interest in the prescriptive easement in that certain roadway from the north-westerly boundary of the remaining property (as that term is defined in the First Agreement [of 1964]) to the River Road; said prescriptive easement shall inure to the benefit of and be appurtenant to the subject property (as that term is defined in the First Agreement)."The agreement also adjusted the trigger for MacDonald's obligation to modify and improve the easement road over the remaining property. The obligation only would arise if MacDonald or a subsequent owner of the subject property conveyed less than all of it to a transferee. After signing the agreement, MacDonald promptly conveyed all of the subject property, still divided into seven parcels, to George and Marion Scharffenberger.
In 1975, the Twinings purchased a one-half undivided interest in a 40-foot-wide, one-third of a mile-long strip of land that runs from the added property further north and west alongside Twining Road. The strip "takes in the portion of" Twining Road as it runs westward to River Road. The parties refer to this strip of land as the "worm." Other individuals own the property between the worm and River Road. Thus, a portion of Twining Road, running westerly from the worm to River Road, traverses property owned by third parties.
The Twinings' daughter, Eloise Twining, and the Twinings' trust now own undivided interests in the contiguous remaining property, added property, and worm. Since the 1980's, Eloise has managed the property, using it to raise horses and operate a boarding house, and leasing parts of it for livestock grazing. Eloise has maintained five manually-operated gates along the portion of Twining Road running through the remaining and added property. The gates are for livestock containment and, to some extent, security. Gate #1 is close to the western boundary of the added property, and Gate #5 is at the eastern end of the remaining property where it meets the subject property. The other gates are in between.
The Scharffenbergers kept the subject property until 2005. They then sold one portion, divided into six "tracts," to Roland and Barbara Wentzel and the remainder, divided into four "parcels," to Casey and Lynne Hartlip.
The instant dispute arose when plaintiffs learned of defendants' plans to widen and modernize portions of Twining Road over plaintiffs' property, despite the continued availability of Mill Creek Road. Defendants wanted to develop their parcels for residential use and, according to their testimony, they needed a wider road to comply with road-width requirements of California Department of Forestry Regulations and obtain final occupancy permits. Although contending they had a right to a 50-foot-wide easement all the way to River Road, what defendants really wanted was a road wide enough to lawfully accommodate use of their properties.
Plaintiffs feared widening the road would require cutting into unstable banks and felling of trees, and might increase the risk of landslides and other property damage. They also objected to the replacement of some of the manual gates along the road with electronic gates, which may be less effective at keeping cattle contained. They further believed defendants' right to use Twining Road once it leaves the remaining property— that is, over the added property and worm—is based exclusively upon a prescriptive easement. Because of this, plaintiffs have maintained defendants' use of that portion of the road is limited to the historical uses that created the prescriptive easement and defendants have no right to widen or modernize that portion of the road. Based on these concerns, plaintiffs filed a complaint on September 28, 2007, for injunctive and declaratory relief, asking the superior court to determine the parties' rights with respect to Twining Road.
By the time of trial, the parties had narrowed their dispute so it mainly concerned the scope of the easement over the added property and worm and the gates along Twining Road as it passes through plaintiffs' property.
On November 2, 2010, following a three-day bench trial, the court entered judgment in favor of defendants, declaring defendants enjoy a 50-foot-wide easement "from River Road to Defendants' parcels." The court concluded a 50-foot-wide easement over the remaining property arose from the express grant of an easement of that width in the 1964 deed. It concluded a 50-foot-wide easement over the added property and worm came about because of "the rationale, if not the technical application," of a doctrine called estoppel by deed. As an alternate basis for its conclusion, the trial court found the prescriptive easement across the added property and worm was capable of expanding in scope (to 50 feet) to accommodate reasonable and foreseeable development of the subject property for residential purposes. However, in its statement of decision, the court stated defendants can use only so much of the 50-foot width as is required for development of their parcels. For example, said the court, "if 20 feet is legally required for full development of the seven parcels [on the subject property], 20 feet should be allowed as the defined right of way." Finally, the court allowed defendants to replace the manual gates with electronic gates, but imposed restrictions on their operation to address plaintiffs' concerns about livestock control and security.
Plaintiffs filed a timely notice of appeal on December 17, 2010. On appeal, they contend the trial court erroneously expanded the easement across the added property and the worm, and erroneously allowed defendants to convert Gate #1 into an electronic gate.
II. DISCUSSION
Standard of Review
Generally, a trial court's interpretation of deeds and written agreements presents a legal question, we review de novo. (See City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 238; Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 974 [de novo review when decisive underlying facts uncontested].) We review a trial court's findings of fact for substantial evidence. (See Blackmore v. Powell (2007) 150 Cal.App.4th 1593, 1598, fn. 2.) If the existence, scope, and change in scope of a prescriptive easement hinges on findings of fact, rather than the interpretation of writings, we apply the substantial evidence standard of review. (See Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570; Cushman v. Davis (1978) 80 Cal.App.3d 731, 737.)
We do not, as defendants contend, apply the highly deferential abuse of discretion standard whenever declaratory relief is at issue. To be sure, a "trial court's decision to entertain an action for declaratory relief is reviewable for abuse of discretion." (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 433.) But no party challenges this aspect of the trial court proceedings. In reviewing the merits of a decision resolving a cause of action for declaratory relief, we, as usual, review conclusions of law de novo and findings of fact for substantial evidence. (See Coronado Cays Homeowners Assn. v. City of Coronado (2011) 193 Cal.App.4th 602, 607-608; Dolan-King v. Rancho Santa Fe Assn., supra, 81 Cal.App.4th 965, 974.)
Scope of the Easement
The Written Agreements
As the parties do, we start by examining the written documents—the July 1964 easement agreement between Howard and Olive Twining and MacDonald, the October 1964 deed conveying the subject property from the Twinings to MacDonald, and the October 1973 easement agreement between the Twinings and MacDonald.
The July 1964 agreement, which clarifies easement rights appurtenant to the subject property defendants now own, referenced two distinct easements: one by express grant, one prescriptive. First, in paragraph 2, the Twinings agreed to "grant [a] perpetual easement along [Twining Road] . . . through the remaining property to the River Road" and agreed "[s]aid easement shall be 50 feet in width" for "ingress and egress of vehicles of all kinds, persons, and necessary utilities." Exhibit B to the agreement, a map, "defines the westerly remaining property and the easement rights granted thereon." (Italics added.) Second, in paragraph 3, the Twinings "warrant[ed] to MacDonald that the roadway from the most north-westerly boundary of the remaining property to the River Road is held by prescriptive right and shall inure to the benefit of and be appurtenant to the subject property." Paragraph 3 thus described an easement over the added property, worm, and other property between the remaining property and River Ranch Road, none of which belonged to the Twinings in 1964.
The October 1964 deed, incorporating the easement agreement by reference, conveyed "a perpetual easement 50 feet in width" running "through northerly portion of grantors [sic] remaining property in a northerly and westerly direction and extension of said easement out to River Road."
Although the July 1964 agreement refers to a granted easement over the remaining property "to the River Road" and the October 1964 deed purports to grant an "extension of said easement out to River Road," these documents cannot be read as conveying an express, granted easement 50 feet in width all the way to River Road. Read in its entirety, the easement agreement contemplates an express, granted easement only "through the remaining property" (which the Twinings owned) and a prescriptive easement "from the . . . boundary of the remaining property to the River Road" (over property then owned by third parties). Thus, we construe the phrase "to River Road" in paragraph 2 of the agreement, providing for a granted easement, as communicating directional information, as in "towards River Road." We likewise construe the October 1964 deed, which explicitly incorporates the agreement, as conveying an express, granted easement over the remaining property that the Twinings owned and acknowledging the prescriptive rights the Twinings had acquired west of their property line out to River Road.
To read the easement agreement and deed otherwise would violate the well-established principle that a grantor cannot convey greater property rights than the grantor owns merely by reciting them in a deed's legal description. (See Claudino v. Pereira (2008) 165 Cal.App.4th 1282, 1289; Qualls v. Lake Berryessa Enterprises, Inc. (1999) 76 Cal.App.4th 1277, 1284; Stanley v. Shierry (1958) 158 Cal.App.2d 373, 376; cf. Thomson v. Dypvik (1985) 174 Cal.App.3d 329, 334, 341-342 ["wild" deed erroneously conveying a 60-foot-wide easement did not govern width of a easement actually obtained by prescription; the "color of title" doctrine did not apply to such easements].) It would also render paragraph 3 of the 1964 agreement, warranting the existence of a prescriptive easement, "surplusage," a result that "should be avoided." (National City Police Officers' Assn. v. City of National City (2001) 87 Cal.App.4th 1274, 1279; Civ. Code, § 1641.)
Defendants contend if the 1964 documents acknowledged only a prescriptive easement over the added property and worm, the 1973 agreement converted that easement into an expressly granted one.
In the 1973 agreement, the Twinings agreed to:
"sell, transfer, or otherwise convey, all of their right, title and interest in the prescriptive easement in that certain roadway from the north-westerly boundary of the remaining property (as that term is defined in the First Agreement [of 1964]) to the River Road; said prescriptive easement shall inure to the benefit of and be appurtenant to the subject property (as that term is defined in the First Agreement)."The plain language makes it clear the Twinings did not convey an easement by express grant, but set out to convey all of their "right, title and interest in the prescriptive easement" (italics added) they had acquired over the added property, worm, and other properties out to River Road as a result of their own use of Twining Road. Further, the 1973 agreement could not expressly grant an easement over the worm, as the Twinings did not own it at the time.
We need not, and do not, address whether prescriptive rights appurtenant to one property can be "sold, transferred, or conveyed" to the owner of another property in the way the 1973 agreement contemplates, or whether such rights arise only by the action of owners and users of the dominant tenement(s). (Cf. Rest.3d Property, Servitudes (2000) § 2.17, p. 260 ["Periods of prescriptive use may be tacked together to make up the prescriptive period if there is a transfer between the prescriptive users . . . ."]; Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 432; 6 Miller & Starr, Cal. Real Estate (3d ed. 2011) § 15:34, p. 15-129 [discussing easements arising from multiple users].)
Interpreting the July 1964 agreement, the October 1964 deed, and October 1973 agreement, de novo, we conclude they expressly grant an easement 50 feet in width over the remaining property and acknowledge a prescriptive easement over the added property and worm. Accordingly, the judgment declaring that a 50-foot-wide easement exists over the latter parcels cannot be sustained on the basis of the written documents, alone.
No conflicting extrinsic evidence was offered as to the meaning of the documents. (See City of Manhattan Beach v. Superior Court, supra, 13 Cal.4th at p. 238 [it is " 'solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence' "].)
After-Acquired Title
The trial court declared that the added property and worm are subject to a 50-foot-wide easement on the basis of a doctrine variously called "estoppel by deed" or "after-acquired title."
The doctrine of estoppel by deed or after-acquired title works as follows: "[I]f a grantor purports to convey an interest in land which the grantor does not own, but afterwards acquires, the interest passes to the grantee at the time the grantor obtains it. 'The general rule is that if the grantor in a conveyance of real property has no title, a defective title, or an estate less than that which he assumed to grant, but subsequently he acquires the title or estate he purported to convey or perfects his title, the after-acquired or perfected title will inure to the grantee or his successors by way of estoppel, i.e., the grantor is estopped to deny that the after-acquired title passed by his conveyance.' [Citation.] The effect 'is the same as if it were written upon the face [of the instrument] that the grantor conveyed all the estate which he then possessed or which he might at any time thereafter acquire. [Citations.]' [Citations.]" (Noronha v. Stewart (1988) 199 Cal.App.3d 485, 489, italics omitted (Noronha).)
"This doctrine of 'after-acquired title' is recognized in California and has been partially codified into Civil Code section 1106, which provides: 'Where a person purports by proper instrument to grant real property in fee simple, and subsequently acquires any title, or claim of title thereto, the same passes by operation of law to the grantee, or his successors.' " (Noronha, supra, 199 Cal.App.3d at p. 489.)
Courts use both "estoppel by deed" and "after-acquired title" to refer to the doctrine Civil Code section 1106 codifies and represents, and the doctrine we consider here on this appeal. For example, in Schwenn v. Kaye (1984) 155 Cal.App.3d 949, 951953, the court stated section 1106 "codifies" the "after-acquired title" doctrine but also explained the section "has as its genesis the common law doctrine of estoppel by deed." One treatise's discussion of estoppel by deed defines the concept in terms of after-acquired title. (12 Witkin, Summary of Cal. Law (2005) Real Property, § 334, pp. 392393.) We note the cases defendants cite do not disclose any separate estoppel theory (other than the estoppel by deed/after-acquired title theory) that might apply here to burden the later-acquired properties with the express grant easement found in the 1964 easement agreement and deed.
"This statutory rule is limited to grants of fee simple and is therefore not applicable to the case at hand[, which involves an easement]. The common law rule, however, survived the enactment of the statute [citation], and is considerably broader: '[T]he common-law rule of after-acquired title is based upon the doctrine of estoppel, that is, that the grantor has led the grantee to believe that a certain estate or title was being conveyed. When the grantor subsequently acquires the title or estate he purported to transfer, he is estopped to deny its passage to the grantee. Therefore, the common-law rule is not limited to fee simple conveyances but applies to the transfer of any estate when the grantee initially receives a lesser interest than he was induced to believe he had received.' (2 Miller & Starr, Current Law of Cal. Real Estate (1977) Deeds, § 14:56, p. 588, fn. omitted.)" (Noronha, supra, 199 Cal.App.3d at pp. 489-490, italics omitted.)
The doctrine of estoppel by deed is to be distinguished from the concept of an "equitable easement." "In appropriate cases in which the requirements for traditional easements are not present, California courts have exercised their equity powers to fashion protective interests in land belonging to another, sometimes referring to such an interest as an 'equitable easement.' " (Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1008.) "To create an equitable easement, 'three factors must be present. First, the defendant must be innocent. That is, his or her encroachment must not be willful or negligent. . . . Second, unless the rights of the public would be harmed, the court should grant the injunction if the plaintiff "will suffer irreparable injury . . . regardless of the injury to defendant." Third, the hardship to the defendant from granting the injunction "must be greatly disproportionate to the hardship caused plaintiff by the continuance of the encroachment and this fact must clearly appear in the evidence and must be proved by the defendant. . . ." [Citation.]' [Citation.]" (Id. at p. 1009.) Defendants have not sought an equitable easement in this case.
The doctrine of estoppel by deed or after-acquired title does not apply " '[w]hen the grantee has knowledge or notice that his grantor does not have full title to the land conveyed' " because " 'he is not misled to his prejudice . . . .' " (Noronha, supra, 199 Cal.App.3d at p. 491.) It is this principle that makes the doctrine of estoppel by deed or after-acquired title inapplicable here.
It is true the Twinings ultimately obtained title to the added property and the worm. However, there is no evidence that in 1964 the Twinings misrepresented their ownership or anyone mistakenly believed the Twinings owned those parcels or relied on such a mistaken belief. Rather, the evidence indicates MacDonald was well aware the Twinings owned only the subject property they sold and the remaining property they kept. The trial court even stated it was "hesitant to apply the doctrine of after acquired title since there is no evidence that in 1964 the plaintiffs' predecessors [Howard and Olive Twining] claimed or contemplated an interest in the added properties."
Nevertheless, the trial court, despite its hesitancy about applying the doctrine, appears to have "found" representation and reliance not from any testimony at trial, but from the mere existence of the easement agreements and deed, which it viewed as assuring a "significant right-of-way" all the way to River Road. However, as we have discussed, the July 1964 easement agreement provided for an expressly granted easement only over the remaining property (which the Twinings owned) and acknowledged that the easement rights over property west of the remaining property (owned at the time by third parties) were prescriptive—thus, giving clear notice of the Twinings' limited ownership interest. The October 1964 deed and the October 1973 easement agreement were entirely consistent with this dichotomy. (See Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 355 [recording a document affecting the title to real property provides constructive notice of the document's contents to subsequent purchasers].)
Although defendants assert "there was reliance, not only on the part of [Defendants'] predecessors, but [Defendants] as well," they cite no record evidence to support this contention. Accordingly, they have waived this point. (See Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 [" 'It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations.' [Citations.] If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived."].) Nor, in our review of the entire record, have we seen any evidence of any misrepresentation by Howard and Olive Twining or any reliance thereon by MacDonald, let alone defendants.
Accordingly, the judgment declaring a 50-foot-wide easement exists over the added property and worm cannot be sustained on the basis of the doctrine of estoppel by deed or after-acquired title.
Foreseeable Change and Reasonable Use
The trial court alternatively grounded its determination the easement through the added property and worm is 50 feet in width on the principle that reasonably foreseeable changes to a dominant tenement may modify the scope of a prescriptive easement.
A prescriptive easement's scope "is determined by . . . the nature of the enjoyment by which it was acquired." (Civ. Code, § 806.) "Nevertheless, the rule that the use of a prescriptive easement is fixed and determined by the manner of use in which it originated and cannot be extended or increased has been modified to allow such increased use if the change is one of degree, not kind. Furthermore, in ascertaining whether a particular use is permissible under an easement created by prescription, the needs which result from a normal evolution in the use of the dominant tenement and the extent to which the satisfaction of those needs increases the burden on the servient tenement must be considered. The increase must be a normal development, reasonably foretold, and consistent with the pattern formed by the adverse use by which the prescriptive easement was created." (Applegate v. Ota (1983) 146 Cal.App.3d 702, 711 (Appelgate).)
"The ultimate criterion determining the scope of a prescriptive easement is that of avoiding increased burdens on the servient tenement while allowing some flexibility in the use of the dominant tenement." (Applegate, supra, 146 Cal.App.3d at p. 711.) This recognizes that "use of all land is subject to constant change because of natural forces and human activities and that the extent of an easement created by prescription can never be exactly measured by the condition of the dominant tenement during the period of prescription, although any future use is, to some degree, limited thereby." (Hill v. Allan (1968) 259 Cal.App.2d 470, 484 (Hill).) Thus, it is "error to define the prescriptive easement exclusively in terms of the use to which the dominant estate was put during the prescriptive period 'provided that the nature, scope and extent of the use does not substantially increase the burden placed upon the servient tenement as it existed during the period that the prescriptive easement was acquired.' " (Applegate, at p. 711.)
Both Hill and Applegate demonstrate the above stated principles. In Hill, users of the dominant tenement obtained a prescriptive easement for access over land between it and a public highway. In 1912, at the beginning of the first period of prescriptive use, the sole owner of the dominant tenement used the access road for agricultural purposes. Over successive prescriptive periods, use of the dominant tenement evolved from agricultural to residential, and subdivision for the latter use "was reasonably to be anticipated" given land use changes in that part of California and the rental of homes on the servient tenement. (Hill, supra, 259 Cal.App.2d at pp. 485-486.) Subdivision and sale of the dominant tenement occurred, the owners of the servient tenement insisted the access road could only be used by one residence (not the 24 contemplated), and the new owners of the dominant tenement sued to establish their rights to use the road for multiple residences. (Id. at pp. 483, 485-486.) The Court of Appeal affirmed the trial court's determination that enlarged use of the easement road for the 24 contemplated residences was foreseeable, and also concluded substantial evidence supported the trial court's finding this foreseeable use would not overburden the servient land. (Id. at pp. 487-488.)
In Applegate, "[a]ppellants argue[d] that the trial court erred in granting a 20-foot[-]wide easement when the paved road [was then] only 10 feet wide." (Applegate, supra, 146 Cal.App.3d at p. 711.) The road at issue, used for residential access, was paved 10 feet wide but had dirt areas or shoulders to facilitate passing. (Id. at pp. 707-709.) The Court of Appeal, citing Hill, affirmed—the trial court's judgment "was fashioned to allow maximum necessary use by respondents which would not impose a greater burden on the servient tenement." (Appelgate, at p. 711.) Indeed, the trial court had expressly found users actually used a 20 foot width, not merely 10, during the prescriptive period because they needed five feet on either side of the road for passing. (Id. at p. 712 ["[a] prescriptive easement over a road can exceed the width of a paved road surface where evidence exists that vehicles have passed each other along the road"]; see also Gaut v. Farmer (1963) 215 Cal.App.2d 278, 282 [affirming easement 30 feet in width where existing road was 20 feet wide; although there was no "clear" explanation for the extra 10 feet in width, it was "essentially necessary" for enjoyment of the road].)
The record here shows the following about the use of Twining Road: Before 1964, Howard and Olive Twining lived on the subject property and used the road to access their home. Woodcutters also sporadically used the road. While in 1957 both the subject property and remaining property together consisted of four parcels, by the time of the sale to MacDonald in 1964, the subject property alone had been subdivided into seven parcels. After they sold the subdivided property to MacDonald, the Twinings moved into a new home on the remaining property. They continued to use Twining Road to access this home, as did some "tenants." In 1973, the Scharffenbergers bought the subject property from MacDonald and began to use the road. In 2005, the Scharffenbergers sold six tracts of the subject property to the Wentzels and the rest, four parcels, to the Hartlips. The following year, the Hartlips built a house on one of their parcels and there was increased use of road in connection with the construction of their home. The Hartlips also use the road occasionally to truck grapes off their property. At the time of trial, the road was graveled, and somewhere between 10 and 14 feet wide, with numerous turnouts of unspecified size.
There is no additional information in the record about these tenants.
As we have discussed, the relevant documentary evidence—the July 1964 easement agreement, the October 1964 deed, and the October 1973 agreement—provided for an express, granted easement over the remaining property 50 feet in width. In addition, the judge who tried the case viewed Twining Road in connection with a preliminary injunction motion before trial, and the parties implicitly acknowledged this viewing was a proper matter for the judge to consider in deciding the case. (See Applegate, supra, 146 Cal.App.3d at p. 712 ["The trier of fact's view of an area is independent evidence which can be considered . . . in arriving at [a] conclusion and is substantial evidence in support of findings consonant therewith."].)
During the trial proceedings, defendants' attorney asked if the judge would make another site visit to determine whether there had been erosion related to recently improved portions of Twining Road on the remaining property. The judge declined, but offered "[i]f there is some other reason for a site visit, you know, I'll hear that . . . ." The court ultimately did not take another look.
This evidence, and the inferences it permits, is sufficient to support the trial court's conclusion the foreseeable use principle applies. (See In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 301 [" 'Where different inferences may reasonably be drawn from undisputed evidence, the conclusion of the jury or trial judge must be accepted by the appellate court.' "].) Specifically, the trial court found "there were at least 7 parcels [on the subject property] when plaintiffs' predecessors sold it" and "[d]evelopment of those parcels" and the concomitant development of Twining Road to provide access to those parcels for residential and agricultural use "was foreseeable then, and it is foreseeable now."
Although the court did not make an express finding, as the court did in Applegate, that such increased use of Twining Road would not significantly overburden the added property and worm, we assume the trial court made all necessary findings to support its judgment. There is also substantial evidence supporting an implicit finding the additional use will not be an undue burden on the added property and worm. (See SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 462 (SFPP) [implied facts doctrine "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"]; Federal Home Loan Mortgage Corp. v. La Conchita Ranch Co. (1998) 68 Cal.App.4th 856, 860 ["the usual practice on appeal, is to imply findings in support of the order"]; see also Code Civ. Proc., § 634.)
Plaintiffs objected to the trial court's statement of decision, taking issue with the court's conclusion, under Hill, that use of the subject property by seven residences was foreseeable and asking the court to "describe" the increased burden to the added property and worm from such use. Plaintiffs did not object, however, to the court's application of the foreseeable use principle under Hill on the ground the increase in burden to the added property and worm would be too great. Nor did they request a finding that the increased burden foreclosed application of the foreseeable use principle. Therefore, to the extent we must imply a trial court finding that any increased burden was not undue, we may do so. (See SFPP, supra, 121 Cal.App.4th at p. 462 [implied facts doctrine "applies unless the omissions and ambiguities in the statement of decision are brought to the attention of the superior court in a timely manner"].)
While stating the width of the easement over the added property and worm "shall be 50 feet"—echoing the width of the express, granted easement provided for by the 1964 easement agreement and deed—the trial court further stated defendants can use only so much of this width as required for development and use of their parcels. Thus, said the court in its statement of decision, "if 20 feet is legally required for full development of the seven parcels [on the subject property], 20 feet should be allowed as the defined right of way."
Casey Hartlip testified in this regard to the need to comply with California Department of Forestry Regulations to obtain an occupancy permit for their house, and the court, during a hearing on the statement of decision, specifically noted this concern. We need not, and do not, determine whether these regulations, or any other statutory and regulatory provisions are, in fact, applicable to Twinning Road. Rather, Hartlip's testimony indicates there may well be applicable statutory and regulatory controls pertaining to use of the easement for residential access—supporting the propriety of the court's view of the width of the prescriptive easement.
For example, Department of Forestry regulations, though not applicable to all roads, do apply to some private roads and state: "[a]ll roads shall be constructed to provide a minimum of two nine-foot traffic lanes providing two-way traffic flow, unless other standards are provided in this article, or additional requirements are mandated by local jurisdictions or local subdivision requirements." (Cal. Code Regs., tit. 14, § 1273.01; see id. § 1270.02 [defining scope of regulations as not covering all roads, including existing roads].) Mendocino County, where the property at issue is located, has an ordinance governing access to parcels in "minor subdivisions" that adopts the Department of Forestry regulation: "If the private road easement [for property access] serves four or less parcels or lots, adequate width of easement shall be that required to build and maintain an eighteen (18) foot wide road within the easement with a minimum easement width of forty (40) feet. If the private road easement serves more than four (4) parcels or has a potential to serve more than four (4) parcels, adequate width of the easement shall be that required to conform with the provisions of this Chapter pertaining to street requirements for subdivisions or parcel divisions." (Mendocino County Code of Ordinances, § 17-48.5, subd. (A)(1)(e)(i).) Mendocino's Department of Transportation publishes road standards, and its standard A10H for a private minor subdivision road serving, or potentially serving, more than four parcels requires a road 22 feet wide sitting on an easement 60 feet wide. (Mendocino County Road & Development Standards, Std. A10H (approved Mar. 19, 2008) p. A-8.) Streets and Highways Code section 1805 requires that all "private highways and by-roads" must be at least 20 feet wide. (Streets & Hwy. Code, § 1805.)
Given the record in this case, we conclude substantial evidence supports the trial court's determination defendants have a prescriptive easement along Twinning Road over the added property and worm that allows lawful access for permissible residential and agricultural uses of the subject property. The evidence likewise supports the trial court's ruling the useable width of this easement is that which is legally required for such residential and agricultural uses.
However, the trial court's specified 50 foot width of the prescriptive easement is not supported by substantial evidence. Indeed, this fixed width is inconsistent with the trial court's statement defendants may use only so much of it as is legally required to access the parcels of the subject property for residential and agricultural purposes. As we have discussed, in Applegate, supra, 146 Cal.App.3d at pages 711-712, the Court of Appeal affirmed a judgment declaring an easement 10 feet wider than the existing 10-foot roadway to accommodate vehicle passing. Similarly, in Gaut v. Farmer, supra, 215 Cal.App.2d at page 282, the Court of Appeal affirmed a judgment declaring an easement 10 feet wider than the existing 20-foot roadway, because the additional width was "essentially necessary" for enjoyment of the road given the unusual, flood-prone terrain it traversed. Here, in contrast, the trial court declared the easement over the added property and the worm to be 30 to 40 feet wider than the actual 10- to 14-foot graveled roadway, and 30 feet wider than the 20 foot width the court indicated was legally required for residential and agricultural use of the subject property. No evidence supports a discrepancy of this magnitude between the declared width of the prescriptive easement and the actual and reasonably foreseeable use thereof.
We therefore modify the judgment to delete the determination that the prescriptive easement over the added property and worm is a fixed, 50 feet in width. As modified, we affirm the court's determination that the foreseeable use doctrine applies, and that the defendants' prescriptive easement over the added property and worm allows access to each of the parcels on the subject property for residential and agricultural uses and is as wide as local ordinances or regulations, or state laws or regulations, legally require for such uses.
The Gate
The trial court also allowed defendants to install electric gates on Twinning Road, but, mindful of plaintiffs' concerns about containing livestock and security, imposed numerous conditions. For example, the court specified a "gate shall also have the option to be opened and closed manually," users shall operate a gate manually if animals are "within 20 yards of the gate," users shall be aware of the safety of animals on the servient tenement, defendants must maintain the gates, and finally, the court may alter these conditions for good cause. On appeal, plaintiffs challenge only the motorization of Gate #1, the westernmost gate on the added property that marks the entrance to plaintiffs' ranch lands. The court erred, say plaintiffs, because a motorized Gate #1 would impermissibly impair the use of the land to raise livestock, impermissibly expand defendants' prescriptive easement over the added land beyond its historic use, and be contrary to the 1964 easement agreement.
"Whether a particular use by the servient owner of land subject to an easement is an unreasonable interference with the rights of the dominant owner is a question of fact for the trier of fact, and its findings based on conflicting evidence are binding on appeal." (Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 703; see also Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d at p. 572 ["a court of equity may, in a proper case, issue a mandatory injunction for protection and preservation of an easement" and "[t]he determination as to whether such remedy is appropriate is within the sound discretion of the trial court"]; Russell v. Palos Verdes Properties (1963) 218 Cal.App.2d 754, 771 ["Whether plaintiffs' proposed use of the road easements is unreasonable is a question of fact . . . ."].)
Here, Gate #1, as a manual gate, has existed for decades. The trial court heard from plaintiffs how electric gates might complicate livestock control. The trial court also heard from defendants how delays from unlocking and opening manual gates had nearly caused, and might yet cause, serious harm during medical and other emergencies. The trial court weighed the testimony from plaintiffs and defendants and fashioned an equitable compromise based on substantial evidence.
As we have already discussed, while prescriptive easements are generally "limited to the uses which were made of the easements during the prescriptive period," (O'Banion v. Borba (1948) 32 Cal.2d 145, 155), some changes in use are allowed if they do not materially increase the burden on the servient tenement. (See Cushman v. Davis, supra, 80 Cal.App.3d at p. 736 [change in use "of degree, not kind" is allowed].) Further, " ' "[i]n ascertaining whether a particular use is permissible under an easement created by prescription there must be considered . . . the needs which result from a normal evolution in the use of the dominant tenement and the extent to which the satisfaction of those needs increases the burden on the servient tenement." ' " (Ibid., quoting Rest. Property, Servitudes (1944) § 479; Hill, supra, 259 Cal.App.2d at p. 484.) Allowable changes include those to accommodate new technologies. (See 6 Miller & Starr, Cal. Real Estate supra, § 15:55, p. 15-183.) The trial court concluded "[g]ates are something of a necessity on ranch property, but modern technology has the potential to limit the inconvenience of getting in and out of vehicles repeatedly to manipulate gates manually." In short, the court balanced the parties' conflicting interests and issued an order that minimized disruption to the servient tenement.
The 1964 agreement has no bearing the mechanization of Gate #1. While the agreement references a "main locked gate" on the "remaining property," it nowhere references what has since become Gate #1 on the added property, property the Twinings did not own in 1964. In any case, the agreement makes no mention of electric gates and does not forbid them. Moreover, it contemplates some degree of change by permitting MacDonald, in paragraph 5(e), to remove what was then the main gate and replace it with a 16-foot cattle guard under certain circumstances. Accordingly, the 1964 agreement is of no assistance to plaintiffs in connection with the mechanization of Gate #1.
III. CONCLUSION
The trial court's judgment as to the scope and width of the easement along Twinning Road over the added property and worm is affirmed as modified: Defendants have a prescriptive easement over such property, along Twinning Road, that allows access to the subject property for residential and agricultural uses and is as wide as local ordinances or regulations, or state laws or regulations, legally require for such uses of said parcels. The trial court's judgment as to Gate #1, allowing defendants to install an electric gate in place of the current manual gate, is affirmed. The parties are to bear their own costs on appeal.
__________
Banke, J.
We concur:
____________
Marchiano, P. J.
__________
Margulies, J.