Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Mendocino County Super. Ct. No. SCUK CVG 0696241
SIMONS, J.
Plaintiff and Cross-Defendant Lynn Helen Archambault (Archambault) appeals from a judgment after court trial that she has no right or interest in the real property of defendants and cross-complainants Brian Padilla and Diana Davenport-Padilla, as Trustees of the Padilla 2004 Revocable Trust (Padilla), or the real property of defendants and cross-complainants Albert E. Rather, Fred Borges, and Joann M. Borges (hereafter, collectively, Prather), and no right to any water on the property of Padilla or Rather. Archambault contends the court erred in concluding (1) she had not established a prescriptive easement to use water on the Prather property, (2) she had not established an equitable easement or irrevocable license to use water on the Prather property, and (3) she had not established a prescriptive easement to lay and maintain pipes, tanks, and other water system infrastructure across the Prather property.
BACKGROUND
In 1910, Calvin J. and M.K. Ruddock (Ruddock) conveyed to C.O. and Louise C. Edwards (Edwards) and “her heirs and assigns forever the right to take water as required from any creek or other water supply” on certain described property belonging to Ruddock in Mendocino County (Prather property). The deed also conveyed to Edwards the right to install, access, and maintain a water pumping facility and water pipeline on the Prather property. Prather is the successor to Ruddock. Padilla is the successor to Edwards.
Sometime in the 1940’s, a member of the Edwards family installed a water system on the Prather property consisting of a holding tank (main tank) fed by springs and a small creek (Edwards system). A water line attached to an outlet at the bottom of the main tank supplied water to property then owned by the Edwards family (Padilla property).
In 1971, Archambault purchased property in Mendocino County. After she acquired the property, she learned that her water came from a source on the Prather property. When Archambault first examined the Edwards system, she saw that the line supplying water to her property was connected to an outlet at the bottom of the main tank, and a second line supplying water to the Padilla property was connected to an outlet 12 to 18 inches above her line. Within a year or two of moving to the property, she again examined the Edwards system and noticed that the two lines had been switched; Edwards’sline was now connected at the bottom of the tank, while Archambault’s line was connected 12 to 18 inches above it.
At trial, respondents disputed that Archambault’s line was ever connected to an outlet at the bottom of the tank below Edwards’s line. However, this dispute is not relevant to our analysis.
Archambault was displeased that her line had been switched with Edwards’s line, and found she received less water than before and sometimes ran out of water during the summer. Archambault does not have a well on her property. On a few occasions, Archambault told Helen Edwards, who then owned the Padilla property, that she was out of water; Helen Edwards responded that she would turn her sprinklers off. However, Archambault did not take any action to switch her line back to the lower position on the main tank. The Edwards and Archambault lines remained in the same positions from 1972 to 2002. From 1971 through 2004, no member of the Edwards family ever told Archambault that she had permission to use the water.
In addition to the Edwards and Archambault lines, a third line attached to an outlet at the top of the main tank conveyed water to a smaller, secondary tank. A line attached to the secondary tank supplied water to another neighbor, Linda Crispin-Hulbert.
Crispin-Hulbert is not a party to this action.
Over the years, beginning in the 1980’s, Archambault performed some maintenance on the Edwards system. In 1998 or 1999, Greg Krouse, who resides with Archambault, began repairing and maintaining the system. In 1999 or 2000, Krouse discovered another spring on the Prather property that had once been connected to the Edwards system, but the pipe had broken and the spring was plugged. He repaired the pipe and unplugged the spring, connecting the spring to the system. Helen Edwards’ nephew, James Edwards, owned the water system then and was aware of these repairs and agreed to reimburse Archambault, if she provided him with receipts. In 2002, Krouse installed a new tank next to the main tank and rerouted the water past the main tank to the new tank. Krouse then disconnected the Edwards and Archambault lines from the main tank and connected them to outlets at the bottom of the new tank, at equal heights. In 2004, Padilla purchased the Padilla property, along with the water rights conveyed to Edwards in the 1910 deed. Sometime thereafter, Padilla removed the main tank from the Prather property.
Krause’s modifications to the water system in 2002 occurred less than five years prior to the initiation of Archambault’s action in January 2006.
In January 2006, Archambault filed a complaint against Padilla and Prather, seeking to perfect an easement to use the water located on the Prather property and to access and maintain the Edwards system, and to recover monetary damages for trespass. Archambault sought an easement on two different theories: easement by prescription and easement by equity. Prather and Padilla filed a cross-complaint seeking to quiet title against Archambault’s water claim and for related injunctive relief.
Following a bench trial, the trial court concluded that Archambault had no interest in the real property of Padilla or Prather, and no right to any water on the property of Padilla or Prather. The court issued a judgment in favor of Padilla and Prather on both Archambault’s complaint and Padilla and Prather’s cross-complaint. Archambault filed this timely appeal from the judgment.
DISCUSSION
I. Prescriptive Easement Against Padilla to Use Water
Archambault contends the court erred in concluding she had not established a prescriptive easement against Padilla for use of water from the Edwards system. Prather and Padilla contend that Archambault has not established the quantity of water to which she is entitled, and cannot make such a showing. We agree, and conclude this is fatal to Archambault’s claim.
Archambault does not respond to this contention in her reply brief.
We affirm the trial court’s ruling as to the prescriptive easement claim on a ground not articulated by the court in its statement of decision. (Marriage of Burgess (1996) 13 Cal.4th 25, 32 [“[w]e are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked”].) Therefore we do not address the correctness of the trial court’s reasoning on the prescriptive easement issue.
“ ‘The facts or elements which are necessary to the existence of a prescriptive water right have been set forth in a veritable forest of cases. To perfect such right, the use of the water must be: (1) actual, (2) open and notorious, (3) hostile and adverse to the original owner’s title, (4) continuous and uninterrupted for the statutory period, and (5) under a claim of title in the claimant, and not by virtue of another right. [Citation.] The burden is upon the party who claims title by prescription to clearly prove by competent evidence all the elements essential to such title.’ ” (Pleasant Valley Canal Co. v. Borror (1998) 61 Cal.App.4th 742, 784.)
“The measure of a prescriptive right is the extent and manner of its use at the time it accrued.” (Elliott v. Bertsch (1943) 59 Cal.App.2d 543, 547 (Elliott); 62 Cal.Jur.3d (2005) Water, § 216, p. 277.) Thus, “ ‘[t]he right to the use of waters of a stream may be acquired, as against others entitled thereto, by taking and beneficially using the same adversely and continuously under a claim of right for a period of five years. But in such a case the right, with respect to the quantity of water therein, extends only to the quantity actually put to a beneficial use . . . . In order to gain a right to the water the diverter must actually use it and the quantity used measures the extent of his right.’ ” (Moore v. Cal. Oregon Power Co. (1943) 22 Cal. 2d 725, 737 (Moore).) Once a prescriptive water right has been established, that right is limited by the extent of the use that conferred the title, and cannot be changed or expanded where such change would interfere with the rights of others. (Id. at pp. 736-737.)
A party may establish a prescriptive right even though he or she has shared a water source with another party during the statutory period; “exclusive user of the entire water right is not required to perfect a prescriptive title, as long as the claimant claims the exclusive right to a definite quantity of water.” (Lindsay v. King (1956) 138 Cal.App.2d 333, 343-344 (Lindsay), italics added.) A prescriptive water right may be gained to use water for certain periods of time, or for certain amounts of water measured by volume or by flow. (Armstrong v. Payne (1922) 188 Cal. 585, 600.) The party claiming a prescriptive water right has the burden of proving the quantity of water actually used. (Pabst v. Finmand (1922) 190 Cal. 124, 133; Elliott, supra, 59 Cal.App.2d at p. 547; 62 Cal.Jur.3d (2005) Waters, § 223, at p. 285.) The claimant also must prove the beneficial purposes and reasonable necessity of the use. (Elliott, at p. 547.) This proof of the quantity of water beneficially and reasonably used is “essential to [the claimant’s] case.” (Ibid.)
In Elliott, the plaintiffs claimed a prescriptive right to use water on their property; the water rights had, however, been deeded to the defendant prior to the plaintiffs’ purchase. (Elliott, supra, 59 Cal.App.2d at pp. 545-546.) The court concluded the plaintiffs had failed to establish a prescriptive right to the water. “It must be admitted that no one should be deprived of [their] property upon a plea of adverse possession unless such plea is sustained by the clearest and most satisfactory proof. That burden was upon the plaintiffs to prove all of the elements necessary to establish adverse possession in the manner and for the time prescribed by law. . . . No showing was made as to the amount of water used, nor the beneficial purposes and the reasonable necessity therefor, if any, for which it was used, nor if the use was continuous or seasonal, all of which was essential to [their] case. The measure of a prescriptive right is the extent and manner of its use at the time it accrued.” (Id. at p. 547.)
In Lindsay, the plaintiffs, owners of the Emery Ranch, sought a prescriptive easement to one-half the flow of water from a spring located on a neighboring ranch. (Lindsay, supra, 138 Cal.App.2d at p. 335.) The court concluded the plaintiffs had established a prescriptive right, and rejected the defendants’ argument that the plaintiffs failed to establish any definite amount of water beneficially used for the statutory period. The court noted that while the extent of the use must be shown by the claimant, “the nature of the proof of user varies according to the circumstances.” (Id. at p. 345.) In Lindsay, the plaintiffs had demonstrated “that the spring was the only source of water used by the Emery Ranch for domestic and agricultural uses for many years; that the water was diverted from the spring through [a] one or 1¼-inch pipe; that the available water was shared equally by the Sears Ranch and the Emery Ranch, who also shared the cost of maintenance and upkeep.” (Ibid.) The court found this evidence sufficient to show a “definite beneficial use” by the plaintiffs. (Ibid.)
Archambault failed to introduce evidence of the quantity of water she used from 1972 to 2002 as measured by volume or flow, by historical usage during certain times of the day or year, or by any other measure. From at least 1972 through 2002, Archambault shared the Edwards system with both Edwards and Crispin-Hulbert. She drew water from the same main tank as Edwards and Crispin-Hulbert, from a line attached to an outlet above Edwards’ line and below Crispin-Hulbert’s line. There is no evidence of how this shared water was distributed among the parties during the relevant period, or what portion of the water was used by Archambault as opposed to Edwards and Crispin-Hulbert. As Archambault admits in her briefing, any water in the main tank above her outlet was shared between her and Edwards, and it is not possible to separate out which water was used by which person.
In her opening brief, Archambault refers only once to the quantity of water she used: “Ms. Archambault testified that she uses the water for household purposes.” Even if we believed that this comment established the quantity used with sufficient definiteness, Archambault provides no record citation for it, justifying our refusal to consider it. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) Further, our review of her testimony failed to locate any such statement.
As the party claiming a prescriptive water right, Archambault had the burden of proving the quantity of water used and the beneficial purposes and reasonable necessity of the use. (Elliott, supra, 59 Cal.App.2d at p. 547.) This proof is essential to Archambault’s claim, as the extent and nature of the use dictates the scope of the prescriptive right. (Moore, supra, 22 Cal. 2d at p. 737.) Archambault makes no effort to identify the quantity of water she seeks a right to, but instead appears to seek entitlement to some undefined quantity of water. Her failure to establish the extent of her water use is fatal to her claim of a prescriptive right.
II. Equitable Relief Against Padilla to Use Water
A. Irrevocable License
Archambault contends she has established an irrevocable license for use of water in the Edwards water system. We disagree.
“A license gives authority to a licensee to perform an act or acts on the property of another pursuant to the express or implied permission of the owner. The licensee has a personal privilege but does not possess either an interest or right in the land or any estate in the property.” (6 Miller & Starr, Cal. Real Estate (3d. ed. 2006) § 15.2 [fns. omitted]; see Jenson v. Kenneth I. Mullen Inc. (1989) 211 Cal.App.3d 653, 657.) Although a license is ordinarily revocable, it may become irrevocable when a licensee expends time and money improving the licensed area under a justifiable belief that the licensor will not revoke the license. (6 Miller & Starr, supra, § 15:45; Cooke v. Ramponi (1952) 38 Cal.2d 282, 286.)
Here, the trial court found that Archambault had not established an irrevocable license because “Archambault offered no evidence of any permissive use, whether by Edwards or Padilla. She contended that her use of the water and water system was hostile from its inception in 1971. She did not offer evidence of any statement made by any member or representative of the Edwards family which caused her to believe Edwards consented to her use of the water. Conceivably she could argue that she was led by the failure over 25 or 30 years of Edwards to object to her water use that Edwards consented to that use. However, her clear classification of her use as hostile and prescriptive belies any good faith reliance on permissive use.”
Substantial evidence supports the court’s finding. Archambault testified at trial that from 1971 through 2004, no member of the Edwards family ever told her that she was using the water by permission. There is evidence from which one might imply permission. For example, at some point someone switched the positions of the Archambault and Edwards lines on the tank. Whoever made the switch impliedly accepted Archambault’s use of the water. There is no evidence, however, that it was a member of the Edwards family who altered the position of the lines, and the trial court was entitled to reject that conclusion. In addition, Archambault testified Helen Edwards responded affirmatively to Archambault’s requests that Edwards reduce her water usage so Archambault would have additional water. But under the substantial evidence rule, we resolve conflicts in the evidence in favor of the verdict. (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) In any event, Archambault does not appear to dispute the trial court’s finding, conceding that there is no evidence of permission granted to her to use the water by either Edwards or Prather.
B. Equitable Easement
Archambault also appears to argue she has established an equitable easement against Padilla to the use of water from the Edwards water system. Again, we disagree.
In certain circumstances, “[a] court may create an easement on equitable grounds even though the user is not entitled to an easement on one of the more traditional grounds. When (1) a party has used and improved an easement for a long period of time with an innocent belief that he or she had a right to use the easement, (2) there would be irreparable harm if the party could not continue to use the easement, and (3) the servient tenement would suffer little harm from the further use of the easement, a court can exercise its equitable jurisdiction and issue a permanent injunction against interference with future use.” (6 Miller & Starr, Cal. Real Estate, supra, § 15:46, fns. omitted.)
The trial court concluded Archambault was not entitled to an equitable easement, finding that she “failed to prove that only ‘little harm’ would be done to Padilla if her claim was successful.” Again, the court’s finding is supported by substantial evidence. As discussed above, Archambault does not identify the amount of water she has used and claims entitlement to, but instead appears to seek an equitable easement to an unlimited amount of water in the Edwards system. She has made no showing that granting her such an easement would cause “little harm” to Padilla. She notes Padilla has an alternative water source on his property for domestic use, and uses water from the Edwards system only to irrigate his property. However, there is no evidence that Padilla’s alternative water source is sufficient to satisfy all of his water needs. Therefore, the magnitude of the harm that would result to Padilla from granting Archambault an equitable easement cannot be assessed.
III. Prescriptive Easement Against Prather to Use Water System Infrastructure
Finally, Archambault argues that even if she has not acquired a right to use water in the Edwards system, she has established a prescriptive easement to lay and maintain pipes, tanks, and other water system infrastructure on the Prather property. In its statement of decision, the trial court concluded Archambault had not established a prescriptive or equitable easement to use water from the Edwards system, but made no mention of a separate easement to use pipes, tanks, and other water system infrastructure on the Prather property. Archambault did not bring this omission in the statement of decision to the trial court’s attention. In the absence of such an objection, we must “infer the trial court made implied factual findings favorable to the prevailing party on all issues necessary to support the judgment, including the omitted or ambiguously resolved issues.” (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59-60.) We then review those implied findings under the substantial evidence standard. (Id. at p. 60.)
There is no dispute that Archambault, and those working on her behalf (collectively Archambault), repaired the pipes and otherwise maintained the Edwards system. This work was done with the knowledge of James Edwards, who expressed a willingness to reimburse Archambault for her efforts. From this evidence, we infer the court made implied factual findings that Edwards permitted the work to occur, and these findings are supported by substantial evidence. These findings are fatal to Archambault’s claim for a prescriptive easement to use the pipes and infrastructure in the Edwards system. (Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 450; 6 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 15.35, p. 15-133.)
Finding that James Edwards permitted Archambault to maintain the infrastructure is not inconsistent with a finding that he did not license her to consume water carried by that system. To the contrary, the trial court could reasonably find that his intent to pay her for her work reflected his view that she was not receiving any other form of remuneration, like the water, for it.
Further, an implied finding contrary to Archambault’s claim of an easement to enter Prather’s land to lay and maintain pipes is supported by the evidence. The evidence establishes that Archambault was among the individuals who entered Prather’s land to maintain the Edwards’ system. In addition, the Edwards and Hulbert families did so. Krouse testified that he clears air from the pipes one to three times per year, and on two or perhaps three occasions replaced smaller pipe in the system with larger pipe. No other evidence quantified the frequency with which Archambault entered Prather’s land to maintain or lay pipe related to the Edwards system during the relevant time period, though she testified that at the time of trial in 2007, Krouse was doing so four or five times per year. No evidence that Prather knew of these entries on to his land, or should have been aware of them, was produced and no testimony that he permitted or disapproved of them was introduced.
The law places on Archambault the burden of proving, among other things, that her entries were open, notorious, and continuous. An implied finding that she failed to carry this burden is supported by substantial evidence, even if we were to assume that she could establish an easement to enter Prather’s land to lay new pipe based on her entries to repair the pipe in the Edwards system.
Archambault did prove that in the early 1990’s she placed a tank below the Edwards system on Prather’s property (the white tank). She used that tank to store water taken from the Edwards system and that water was then delivered by a gravity feed to her home. The tank did not replace any part of the Edwards system. Prather testified he did not permit her to install the white tank.
This undisputed evidence proves Archambault had an easement to use and maintain the white tank and the pipes connecting it to the Edwards system and to her home for water storage and delivery. She is also entitled to an easement for ingress and egress onto the Prather property to accomplish this. No evidence supports a contrary finding that we could imply. We remand for the sole purpose of permitting the trial court to set out the precise limits of this easement in the declaration sought by Archambault in her complaint.
We recognize that our ruling in parts I. and II., above, deprives Archambault of her current source of water for storage in the white tank. Obtaining water from a source located on a neighbor’s property, and transporting that water to the white tank, located on Prather’s land, will in all likelihood require the permission of Padilla or Prather or both.
DISPOSITION
We reverse the judgment in part and remand so that the trial court may define the easement described in the opinion. In all other respects, the judgment is affirmed. Each party shall bear their own costs on appeal.
We concur. JONES, P.J., REARDON, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.