Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
San Luis Obispo County Super. Ct. No. CV 040422 Barry T. LaBarbera, Judge
Best Best & Krieger LLP, Howard B. Golds, Cynthia M. Germano for Plaintiff and Appellant.
Adamski Moroski Madden & Green LLP, Thomas D. Green, Carol A. Kingery for Defendant and Respondent.
PERREN, J.
Appellant City of Atascadero (City) contends respondent Pacific Gas and Electric (PG&E) breached its franchise agreement with City by refusing to pay to relocate its poles and lines required by street improvement projects on two City streets. PG&E asserts the franchise agreement does not apply because it has an easement in those streets that it obtained prior to the franchise agreement. The trial court denied relief on City's complaint for damages for breach of contract and declaratory relief and granted declaratory relief to PG&E. We affirm.
FACTUAL AND PROCEDURAL HISTORY
The case was tried on stipulated facts. City was incorporated in 1979. City's boundaries include a portion of a private community, the Atascadero Colony (Colony). The Colony subdivision map was approved by the County of San Luis Obispo Board of Supervisors (County) in 1914. The map created lots, streets and other community features. The map reserved all streets within the Colony, except the "El Camino Real," in private ownership. The right to dedicate the streets to pubic use was reserved exclusively to Colony owners. In 1964, the Colony's trustee granted an easement to PG&E allowing it to construct and maintain poles and utility lines in the Colony's streets.
In 1980, after City incorporated, it granted PG&E a franchise pursuant to the Public Franchise Act of 1937, Public Utilities Code section 6001 et seq., to place its poles and lines on City streets. The franchise agreement contained a provision, pursuant to Public Utilities Code section 6297, requiring PG&E to relocate its lines at its sole expense when required for legitimate public purposes.
A contract between a governmental body and a private party which creates a franchise "ordinarily refers to such services and functions as government itself is obligated to furnish to its citizens and usually concerns such matters of vital public interest as water, gas, electricity or telephone services, and the right to use the public streets and ways to bring them to the general public." (Copt-Air v. City of San Diego (1971) 15 Cal.App.3d 984, 988-989.)
Public Utilities Code section 6297 states: "The grantee shall remove or relocate without expense to the municipality any facilities installed, used, and maintained under the franchise if and when made necessary by any lawful change of grade, alignment, or width of any public street, way, alley, or place, including the construction of any subway or viaduct, by the municipality."
In 1993, the Colony's trustee offered the Colony streets for public dedication. This offer applied both to Colony streets within the City and those that were not included within the City's boundaries. Shortly after the offer of dedication was made, the County accepted the offer as to those streets outside the City's boundaries. City declined to accept the offer of dedication at that time and did not do so until 2005.
In 2001 and 2002, City requested PG&E to relocate utility lines on Santa Cruz Road and Santa Ysabel Avenue, streets within the Colony. PG&E agreed to relocate the lines but objected to bearing the cost. It asserted that it was not required to pay the cost of relocation because its right to maintain its equipment in Colony streets was granted by the 1964 easement, not the franchise agreement.
City filed this action to recover $60,956, the amount it paid to relocate the PG&E facilities in those streets. The trial court denied relief finding that PG&E did not relinquish its easement in the Colony streets when it entered into the franchise agreement. It granted declaratory relief to PG&E "to the extent that the cost of future relocation projects which are requested by City upon streets which were private in 1964 will be borne by City."
DISCUSSION
City's primary argument is that PG&E relinquished any right in the 1964 easement by entering into the franchise agreement. Whether an easement has been abandoned is a question of fact for the trial court which will not be disturbed on appeal if the determination is supported by substantial evidence. (Tract Development Services, Inc. v. Kepler (1988) 199 Cal.App.3d 1374, 1385.) Abandonment of an easement hinges upon the intent of the owner, and there must be conduct that is so decisive and conclusive as to indicate a clear intent to abandon. (Ibid.)
The record does not support City's argument that PG&E abandoned its easement rights in Colony streets. The franchise agreement is a standard agreement based on the 1937 Public Franchise Act. (See County of Sacramento v. Pacific Gas & Elec. Co. (1987) 193 Cal.App.3d 300, 305 ["a franchisee may only accept a franchise on the terms dictated by the Legislature"].) Nothing in the agreement expressly or impliedly shows an intent by PG&E to give up its property right in the easement. As the trial court observed: "City has provided no authority for [its] argument that the easement for use of Colony private property was abandoned or lost when PG&E accepted the 1980 Franchise agreement for public roads . . . ."
City's argument that PG&E relinquished its easement rights by paying to relocate its facilities in other streets also is without merit. As the trial court stated: "[T]here is no authority cited for the proposition that the utility's practice of paying for what appear to be minor relocation requirements . . . would somehow morph into a waiver of a real property right . . . ."
City next argues that Colony streets always have been used by the public and that City has maintained these streets. The trial court disagreed: "City has provided no authority for their argument that the easement for use of Colony private property was abandoned or lost when PG&E accepted the 1980 Franchise agreement for public roads, or that it was lost later because the roads were, in effect, transformed at a later time into public roads either by public use and maintenance or by the private owners' offer to dedicate them to the public. PG&E had a real property right and they did not take any action to alter the character of the streets at issue between 1980 and the dates of the construction costs claimed in this action." Again, the trial court is correct.
A common law dedication may arise, even though there is no formal acceptance of an offer of dedication, by public user. (Hanshaw v. Long Valley Road Assn. (2004) 116 Cal.App.4th 471, 482.) City is correct that all roads over which the public has a right to travel are "public" roads. "Public" roads, however, are not "city" roads until accepted by the City by appropriate resolution of the City council. (Id. at p. 480.) Even if the public's use of Colony streets did constitute an implied dedication, that dedication does not affect PG&E's property interest in the easement. (Maywood Mut. Water Co. No. 2 v. City of Maywood (1972) 23 Cal.App.3d 266, 273-274.) If it did, then, as PG&E points out, a taking without just compensation would have occurred. (See, e.g., Southern Cal. Gas Co. v. Los Angeles County Flood Control Dist. (1959) 169 Cal.App.2d 840, 847 ["The Gas Companies having been required by appellant District to move and reconstruct their pipeline in and along their own private easement . . ., appellant District and not the Gas Companies should pay the cost of such removal. Appellant District . . . has the power to require obedience to its demands in its exercise of its right of eminent domain. That power, however, does not relieve said District of its obligation to pay for all property taken or damages caused by its construction of public works"]; see also Wofford Heights Associates v. Kern County (1963) 219 Cal.App.2d 34, 42 ["The taking or damaging of an easement by a public body requires the payment of just compensation"].) We conclude with the trial court's cogent observation: "[T]here is no authority for the proposition that a government entity can grant to a private entity an interest in private property absent an action in eminent domain to first acquire the property for public use."
The judgment is affirmed. Respondent shall recover costs.
We concur:
GILBERT, P.J., YEGAN, J.