Opinion
A127849
08-30-2011
KENNETH HILL et al., Plaintiffs, Cross-defendants and Respondents, v. HOWARD BUSBEE et al., Defendants, Cross-complainants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CVG07 50254)
Appellants Howard and Shirlee E. Busbee, Paul Hanssen and Angela Perry appeal from the trial court's judgment relating to whether they had prescriptive easements over respondents Kenneth and Sandra Hill's property. Appellants contend the trial court erred in: (1) finding that there was no prescriptive easement appurtenant to Hanssen and Perry's properties; (2) enjoining Hanssen and Perry from crossing the Busbees' property; and (3) "including an uncertain and ambiguous provision" in the judgment. We reject the contentions and affirm the judgment.
F ACTUAL AND P ROCEDURAL B ACKGROUND
In about 1978, Howard Busbee (Busbee) purchased 60 acres of an 80-acre parcel in Covelo, Mendocino County. He later purchased the remaining 20 acres. At the time he purchased the 60 acres, his real estate agent told him that Greenville Road "accessed all properties to the west clear to the ridge." Busbee described Greenville Road as a "dirt mountain road" that was approximately 12 feet wide in most places. Busbee moved to Covelo in 1985 and shortly thereafter purchased another 10-acre parcel from the heirs of a man named Jack Langland. The 10-acre parcel was on top of Poonkinney Ridge, located to the west of the 80-acre parcel. At the time he purchased the 10-acre parcel, Busbee was told that Greenville Road would also be used to access the parcel. He never requested or was granted permission from anyone to use Greenville Road. His wife, Shirlee Busbee, testified she always accessed the 10-acre parcel by way of Greenville Road. His nephew, Stuart Edwin Busbee, testified he visited the Busbees many times since the mid-1970's. He visited the 10-acre parcel "probably 2, 300 times" and accessed the property through Greenville Road.
Busbee's real estate agent testified that John Langland obtained the right to use a portion of Greenville Road to access his property after prevailing in a lawsuit that a man named Weldon Craig brought against him in an effort to deny him access to the road. The judgment Langland obtained did not cover the portion of Greenville Road that was in dispute in this case, i.e., the portion of the road that went through Kenneth and Sandra Hill's property.
In 1994, Busbee purchased an additional 375 acres from Audrey Rohrbough. He testified that before the purchase, he promised Audrey and her husband John Rohrbough that he would access the 375 acres through Greenville Road only and that deeded easements that existed for the 375 acres that went through the Rohrboughs' property would be removed. During his ownership of the 375 acres, Busbee always accessed the property through Greenville Road. Shirlee Busbee testified she accessed the property through the road that went through the Rohrboughs' property on one occasion when she was "hauling the horse trailer" because "it was easier than going up . . . Greenville Road."
In 2004, Busbee performed a boundary line adjustment, creating three parcels out of the combined 10 and 375-acre ownerships—two parcels of 160 acres each and one parcel of 65 acres. He sold one of the 160-acre parcels to Angela Perry, sold the other 160-acre parcel to Thomas Pipes and Paul Hanssen, and retained the remaining 65-acre parcel in joint ownership with his cousins Iain and Janet Westlund. While in the process of selling the 160-acre parcels, he discovered that the easements he promised the Rohrboughs he would remove had not been removed. Shirlee Busbee, who previously worked for a title company, testified she did not notice at the time she and her husband purchased the 375 acres that the easements going through the Rohrboughs' property were in the deed. Feeling "honor bound to at least give [the Rohrboughs] an option, before [he] sold it, whether they wanted [the easements] removed," Busbee spoke to Johnny Rohrbough, John and Audrey Rohrbough's son. Johnny Rohrbough, who testified he had not "expect[ed]" the Busbees to give him a quitclaim deed as to the easements that went through his property, nevertheless had his attorneys draft some papers and had the easements removed.
Iain Westlund testified he had been to the 385 acres that Busbee originally owned on many occasions since 1998 and had always accessed the property through Greenville Road. Kenneth and Sandra Hill never told him to get off the road or that he did not have the right to be there. He did recall one confrontation he had with Kenneth Hill, who was upset because he thought Westlund was hunting on his property. Westlund assured him he was not.
Angela Perry (Perry) testified she purchased her 160-acre parcel in March 2006 and that she accessed the property through Greenville Road. She was building a cabin, and various workers and delivery companies had come to her property to work on the cabin. Her relatives and friends had also visited the property. Perry's mother testified she had visited her daughter once and that she accessed the property through Greenville Road.
Paul Hanssen (Hanssen) testified that he and Thomas Pipes purchased their 160-acre parcel in April 2007. He accessed his and Perry's 320 acres through Greenville Road. He recalled that Perry's real estate agent had her sign a disclosure acknowledging there was no deeded easement for her property. He did not recall Busbee giving him any assurances that a prescriptive easement existed to access his property. Hanssen and Perry were in the process of developing their properties by clearing the roadway system and building a cabin on Perry's parcel. Building supply delivery drivers and a few workers had come to their property to work on the cabin, and family and friends had also visited. He denied anyone had come over to engage in illegal activity, and when asked whether he was growing marijuana on his property, Hanssen asserted his right to remain silent under the Fifth Amendment. Perry also asserted her right to remain silent.
Hanssen testified that he and Perry are "in a relationship." According to the Busbees, Hanssen and Perry, Pipes conveyed his interest in the 160-acre parcel to Hanssen after the Hills filed this action, and is not a party to this appeal.
The disclosure provided in part: "At one time this property had a deeded easement [from] a County road to the south, Poonkinney Road. The Busbee's have since relinquished this easement and the property currently has no deeded easement." It further provided: "The Busbee's have represented to Summit Realty that they believe they have a prescriptive easement to the property. Summit Realty can neither verify or not verify the Busbee's claims. [¶] Prescriptive easement claims can be very complicated. We feel that it would be very prudent on your part to seek competent legal advice regarding this property, the lack of any deeded easement to and from the property, and what prescriptive rights may or may not be in particular."
Hanssen further testified that on one occasion, Kenneth Hill (Hill) called to tell him he had "put his whole life into the road and he'd spent lots of money on maintaining it." Hanssen offered to pay for some of the cost of running Hill's machinery, but Hill did not accept the offer. On another occasion, Hill called and was "extremely agitated" and "was angry that people were on the road." The two talked for about an hour, during which Hanssen tried to reassure Hill that he was not there to "rip him off." Hill said that "no one had ever traveled the road and it was dead empty until we got there." Hill said "his whole world was shattered" because people were on a road that he considered his own. During another telephone call, Hill told Hanssen that "delivery drivers and things like that[] were affecting his life." Hill said he wanted only four-wheel drive vehicles on the road and that someone had come down the hill "really, really fast," scaring some of his family members. One day, Hanssen found the Hills' dog dead on the road and the Hills were "very disturbed." Hanssen told Hill that one of the delivery drivers had possibly hit the dog. Hill said that he and his son had used the "whole entire mountain" to set traps and hunt and that he was disturbed that Hanssen was trespassing on his property.
Hill testified he lived on Poonkinney Ridge in the Covelo area. His family acquired property in Covelo in 1954, and although he was born and raised in Santa Rosa, his parents were from Covelo, and he spent almost all of his free time there as a child, including summers and holidays. He helped build a cabin on his family's property between 1973 and 1976 and moved to Covelo in June 1976, after graduating from high school. He lived in the cabin with his wife until 1977, then moved into town in Covelo, and returned to their property in 2000. He was told that Greenville Road, which he knew as Yankee Gate Road, had been in existence since 1958. He was aware of a judgment John Langland had obtained allowing him to use the road, but Hill's grandfather had told him the judgment did not affect their property and that there were no easements going through their property. Greenville Road was not used much in 1968. Hill never saw John or Audrey Rohrbough on the road and saw Johnny Rohrbough there just "occasionally." In 1976, Hill began maintaining Greenville Road and all of the other roads in the area by rocking and grading them after his grandfather told him it was his "turn" and showed him how it was done. There was never any traffic on Greenville Road so he was able to grade it once and it would be "good for the summer." Hill was always aware of who had gone through Greenville Road because "it was so seldom." Hill estimated that between 1986 and 2006 Busbee was on Greenville Road, on average, three times a year, and that there was a two-year period around 2000 during which Busbee "didn't come up at all."
Although the Hills referred to the road as Yankee Gate Road, we will refer to it as Greenville Road throughout this opinion for purposes of clarity and consistency.
A witness who leased the property between Busbee's 80 acres and the Hills' property for 18 years during Busbee's ownership testified he saw Busbee on the road only three or four times. A witness who used Greenville Road for two logging seasons in the mid 1990s never saw the Busbees on the road. A witness who used the road for three logging seasons never saw the Busbees on the road. Hill's family members who lived on or visited the property testified they saw the Busbees very infrequently.
Hill testified that use of Greenville Road changed "completely and totally and immeasurably" in 2006. He stated, "[i]nstead of the two to three trips per year, I at times met four vehicles in that two-mile stretch . . . in one trip . . . ." He became concerned for his safety, as there were "a lot of blind turns" and trucks were "flying by." His wife's dog was killed on the road. In June 2006, Hill began using his "game camera"—a motion activated camera that took digital images—to monitor the flow of traffic on Greenville Road. The camera recorded the date and time all photographs were taken. From June 2006 to May 2009, Hill viewed all of the photographs and retained the ones that depicted people passing through, including Busbee and people he did not recognize. He deleted photographs of himself using the road to go to and from work and photographs of his family members using the road. He also deleted photographs of other things that triggered the camera's motion sensor, including animals such as bears and branches blowing in the wind. Between June and August 12, 2006, there were 78 photographs of "new people" and no pictures of Busbee. From May 16, 2007, through November 2007, there were 496 photographs of "new people" and 26 photographs of Busbee. From May 24, 2008, through December 2008, there were 410 photographs of "new people" and 19 photographs of Busbee. From January 2009 through June 5, 2009, there were 33 photographs of "new people" and 8 photographs of Busbee and Westlund. Hill noted that Busbee's use of Greenville Road was much more frequent during these years than it had been in the past, as Busbee and Westlund were building and putting water lines in at the time. Hill did not leave the camera on during the winter because "traffic pretty much stops in the wintertime." There were a few other gaps because the camera battery sometimes died. The camera also took photographs only every five minutes so there could have been more people passing the road than the photographs showed.
Hill's wife, Sandra Hill, testified that use of Greenville Road changed after late 2005. The frequency of cars going by increased "incredibly," and she often had to stop and hold her dogs because there were cars going by. She stopped walking on the road after one of her dogs was run over by a car. She saw vehicles on the road and other vehicles coming onto her property. Sandra Hill further testified that she considered the Busbees their friends. Shirlee Busbee had visited her four or five times and Howard Busbee was at their property "a lot." Howard Busbee's sister Lilly lived in a mobile home next door and was "friendly" with Sandra Hill. Lilly's daughter spent four to five days a week at the Hills' house. The Busbees invited Sandra Hill over to their house three or four times a year. Shirlee Busbee testified she would not use the word "friendship" to describe her relationship with the Hills, although she was "perhaps [friends] with [Sandra Hill] for a period of time." The Busbees and the Hills were simply "part of this—this circle" that ended sometime in the 1980s.
John (Johnny) Rohrbough testified he had lived in Covelo "all [his] life" and that his family had been there since the "1870s or so." His parents, John and Audrey Rohrbough, owned a ranch in the mountains to the west of Covelo along Poonkinney Ridge, and at the time his grandfather was alive, they owned about 14,000 or 15,000 acres. His parents sold 375 acres of the ranch to the Busbees in 1994. He testified that Greenville Road was built by a timber company in the late 1950s as a logging road and that he used the road from time to time. He testified that when Hill purchased his property, he put in a gate on the road at his boundary line and occasionally locked it. Hill gave Rohrbough a key or the combination to the lock. When asked whether he would stop using Greenville Road if Hill told him to stop using it, Rohrbough responded: "Probably would. We have other right-of-way." Rohrbough acknowledged signing a declaration in which he stated, "I am familiar with the road that crosses the current ownership of Ken and [Sandra] Hill, which the Hills refer to as the Yankee Gate Road. The property was owned by Ken's father, grandfather and great grandmother before him. That road leads up to the top of the ridge. I have used that road on occasion over the years, with permission of the Hill family, who have from time to time given me the combination or a key to the gate." Referring to the use of the word "permission" in his declaration, Rohrbough testified he did not recall anyone ever saying he could or could not use the road. He did not believe he had a deeded right-of-way to Greenville Road and said: "We've been using it. I don't know what that constitutes."
On October 26, 2007, the Hills filed a complaint against the Busbees, the Westlunds, Perry, Hanssen and Pipes seeking judgment quieting title against any claims of easement or other rights over Greenville Road. The Busbees, the Westlunds, Perry, Hanssen and Pipes cross-complained, claiming they had an easement over Greenville Road. The Hills filed an amended answer to the cross-complaint as well as an amended complaint, further alleging that if a prescriptive easement based upon use by the Busbees was found, the use of that easement had been overburdened and should be extinguished.
After a bench trial at which 25 witnesses testified, the trial court issued a tentative decision. In response to appellants' request for a Statement of Decision and objections to a proposed Statement of Decision, the trial court filed a Final Statement of Decision on October 9, 2009. In its Final Statement of Decision, the trial court found the Busbees established an easement by prescription over Greenville Road that was appurtenant to their 10-acre parcel and that the easement to the 10-acre parcel could be used by the Busbees and the Westlunds to access the newly formed 65-acre parcel, which included the former 10-acre parcel. The trial court found, however, that appellants had not proven the use of Greenville Road to benefit the 375 acre parcel was open and adverse. The evidence thus did not establish an easement appurtenant to the 375-acre parcel by clear and convincing evidence.
The trial court found that the Rohrboughs' use of Greenville Road before 1994— the year the Busbees purchased the 375 acres—did not create a prescriptive easement appurtenant to the 375 acres. It noted that Johnny Rohrbough's testimony at trial was "equivocal on the issue of permission" but that he had declared in a prior declaration, under penalty of perjury, that his use of Greenville Road was with the Hills' "permission." The trial court also noted that when Audrey Rohrbough conveyed the 375 acres to Busbee, she included a conveyance of easements that allowed the Busbees to access the 375 acres through other roads.
The trial court found that the Busbees' use of Greenville Road also did not create a prescriptive easement appurtenant to the 375 acres. The Busbees' use of the road to access their 385 acres "did not change much from the limited use of the road that they and their predecessors made of the road from 1958 to 1994 to access the 10-acre parcel." Because their use of the road to access the new 375 acres after 1994 was "indistinguishable from their use since 1986 when they owned only the 10-acre parcel," the use "did not impart any notice to [the Hills] other than reflecting their continued limited use of the road. Busbee offered no other evidence to establish the requisite adversity. Further, no presumption of adversity arose from that use whether viewed as long, unrestricted use or not. [Citation.]."
The trial court found that Pipes, Hanssen and Perry "held title to portions of the 375 acres for a very short period of time before this suit was filed," and that their claims failed "because their predecessors failed to establish a prescriptive easement appurtenant to the 375 acres." The trial court further found that use of Greenville Road "greatly intensified in 2006" and that the Busbees failed to show that the increased use was the result of " 'the normal evolution of the use of the dominant tenement and [wa]s reasonably foreseeable and consistent with the pattern formed by the prescriptive use that created the easement.' [Citation.]" The trial court found it was foreseeable that the use of Greenville Road "would increase a bit if the Busbees developed the 10-acre parcel or simply decided to use it more, as the Hills had done with their property . . . . [I]t was not foreseeable, however, that the Busbees' prescriptive use to access the 10 acres, followed by the same limited scope of use from 1994 to 2006 to access the combined 375 acres, would blossom into a right-of-way to access three separate ownerships of 160 acres, 160 acres, and 65 acres with a greatly increased intensity of use. A prescriptive easement is no broader than the use which created it."
It appears the trial court, in essence, found that even if there was a prescriptive easement appurtenant to the 375 acres, such easement was overburdened by the increased use.
After settlement of the Statement of Decision, the trial court held a hearing to consider arguments of counsel over the form of the judgment. After extensive discussion with counsel, the trial court issued a judgment enjoining the Busbees and Westlunds "and their family members, agents, employees, heirs or successors . . . from inviting [Pipes, Hanssen or Perry] or their friends, invitees, agents, employees, family members, heirs or successors, to use the subject road for vehicular, pedestrian, or equestrian access to the properties . . . under the pretense of visiting [the Busbees and/or the Westlunds] or their families, invitees, agents, employees, successors or heirs on the [Busbee/Westlund] property." The trial court also enjoined Pipes, Hanssen and Perry "or their family, friends, invitees, employees, agents, heirs or successors . . ." from "crossing the [Busbee/Westlund] parcel, by horse, foot, vehicle, or other means, to gain access to the [Pipes/Hanssen] or [Perry] properties . . . ." The trial court reserved jurisdiction to enforce the judgment.
DISCUSSION
1. Prescriptive Easement Appurtenant to Hanssen and Perry's Properties
Appellants contend the trial court erred in finding there was no prescriptive easement appurtenant to Hanssen and Perry's properties. We disagree.
"An easement is an interest in the land of another, which entitles the owner of the easement to a limited use or enjoyment of the other's land. [Citations.] [¶] An easement creates a nonpossessory right to enter and use land in another's possession and obligates the possessor not to interfere with the uses authorized by the easement. [Citation.]" (12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 382, p. 446.) "An easement may be created by (1) an express grant, (2) an express reservation, (3) an implied grant, (4) an implied reservation, (5) necessity, (6) prescription, (7) a recorded covenant, (8) dedication, (9) condemnation, (10) estoppel, or (11) a court decision . . . ." (6 Miller & Starr, Cal. Real Estate (3d ed. 2006) § 15:13, p. 15-61.)
"To establish the elements of a prescriptive easement, the claimant must prove use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right. [Citations.] To establish adverse possession, the claimant must prove: (1) possession under claim of right or color of title; (2) actual, open, and notorious occupation of the premises constituting reasonable notice to the true owner; (3) possession which is adverse and hostile to the true owner; (4) continuous possession for at least five years; and (5) payment of all taxes assessed against the property during the five-year period. [Citation.] [¶] . . . [¶] Proof of the elements required for adverse possession . . . gives a successful claimant title to property. A successful claimant of a prescriptive easement, by contrast, gains not title but the right to make a specific use of someone else's property. [Citation.]" (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1305.) The party seeking to establish a prescriptive easement has the burden of proof of doing so by clear and convincing evidence. (Brewer v. Murphy (2008) 161 Cal.App.4th 928, 938.) "The higher standard of proof demonstrates there is no policy favoring the establishment of prescriptive easements." (Grant v. Ratliff (2008) 164 Cal.App.4th 1304, 1310.)
"Each of the elements necessary to create an easement, whether the use of the property is adverse or permissive, whether the owner of the servient tenement has notice of the adversity and the user's claim of right, and whether the use has been continuous for the required period of time, are questions of fact." (6 Miller & Starr, Cal. Real Estate, supra, § 15.32, p. 15-20, citing, e.g., Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570.) The extent to which the use of an easement can be altered, whether the use is excessive and amounts to a surcharge on the servient tenement, and whether the alteration will cause an unreasonable increase in the burden on the servient tenement are also questions of fact. (Miller & Starr, supra, §§ 15.54 & 15.55, pp. 15-176, 15-177, 15180.) Thus, we will not disturb the trial court's findings on these issues unless there is no substantial evidence to support them. (Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d at p. 570.)
Appellants set forth facts from the record that are favorable to them and assert this court should review the trial court's judgment de novo because "it is undisputed and indisputable" that the Busbees and their predecessors used Greenville Road openly, notoriously, adversely and continuously to access all 385 acres. However, one of the key issues in this case, on which the trial court made a factual finding, was whether the use of the road by the Busbees and their predecessors was open, notorious, adverse and continuous. Our role is to determine whether such factual findings were supported by substantial evidence.
Here, Hanssen, Pipes and Perry had just acquired their properties at the time the Hills commenced their action. Thus, the trial court properly focused on the use of Greenville Road by Hanssen, Pipes and Perry's predecessors. (See Mehdizadeh v. Mincer, supra, 46 Cal.App.4th at p. 1305 [claimant must prove use for a minimum period of five years].) The trial court's finding that the Rohrboughs' use of Greenville Road did not establish a prescriptive easement was supported by Johnny Rohrbough's admission in his declaration that the use was permissive and his testimony that he would stop using the road if Hill told him to do so.
The trial court's finding that the Busbees' use of the road did not establish a prescriptive easement as to the 375 acres was supported by evidence that their use did not change after they acquired the 375 acres. Busbee could not estimate the frequency of his use of the road during his ownership of the 10-acre parcel or the 385 acres, and he provided no evidence in opposition to Hill's testimony that Busbee used the road only an average of three times per year from 1986 to 2006. The testimony of Hill family members and other witnesses also supported a finding that the Busbees rarely used the road. Further, when Audrey Rohrbough conveyed the 375 acres to the Busbees, she included a conveyance of easements that allowed the Busbees to access the 375 acres through other roads, including a road that Shirlee Busbee testified provided "easier" access to the 375 acres than did Greenville Road. Thus, the Hills could have reasonably believed the Busbees were using the deeded easement—not Greenville Road—to access their 375 acres. Appellants correctly point out that the Hills were aware the Busbees had purchased the 375 acres, but in light of the Busbees' limited use that did not change after their purchase of the 375 acres, the trial court reasonably found the Hills had "no way of knowing that they needed to take action to prevent [the Busbees] from obtaining a prescriptive easement in favor of substantial additional properties [the 375 acres] that could support multiple dwellings and substantially increased uses." (See Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 431 ["The elements necessary to establish a prescriptive easement are designed to insure that the owner of the real property which is being encroached upon has actual or constructive notice of the adverse use and to provide sufficient time to take necessary action to prevent that adverse use from ripening into a prescriptive easement"].)
Appellants also assert the Hills knew the Busbees were using Greenville Road to access the entire 385 acres. However, the testimony to which they cite does not support that assertion.
Moreover, even assuming the Busbees established by clear and convincing evidence that a prescriptive easement existed appurtenant to the 375 acres, we conclude that substantial evidence supports the trial court's alternative finding that the easement was overburdened by the significant increased use after the Busbees subdivided the property and sold two 160-acre parcels to Hanssen and Perry. The scope of a prescriptive easement is defined by the use that created it (O'Banion v. Borba (1948) 32 Cal.2d 145, 155), and cannot be changed in a way that unreasonably increases the burden of the easement (Jordan v. Worthen (1977) 68 Cal.App.3d 310, 327). The test is whether the increased use resulted from "the normal evolution in the use of the dominant tenement" and was reasonably foreseeable and consistent with the pattern found by the prescriptive use that created the easement. (Applegate v. Ota (1983) 146 Cal.App.3d 702, 711.)
Here, there was ample evidence that the use of Greenville Road increased dramatically in 2006. Hill testified that the use changed "[c]ompletely and totally and immeasurably." He began seeing four vehicles in a two-mile stretch, compared to the two or three vehicles per year he had previously seen. Trucks were "flying by" this "dirt mountain road" that was narrow, steep, and not built for passenger use. His wife's dog was killed on the road, and his wife, who said the frequency of cars going by increased "incredibly," stopped walking on the road due to safety concerns. Hill's motion sensor camera took hundreds of photographs of "new people" using the road beginning in 2006. The trial court listed the following seven factors—all of which were supported by the evidence—in support of its finding that the increased use was not a "normal evolution" of the use of the road and was not reasonably foreseeable: (1) the present use had no relationship to the prior pattern of use; (2) the 375 acres was in an agricultural preserve; (3) the Busbees had acquired easements from Rohrbough that allowed them to access the 375 acres through other roads; (4) there were no subdivisions in the area; (5) the Rohrboughs did not make regular use of the portion of Greenville Road that goes through the Hills' property; (6) Greenville Road was not designed for frequent passenger use because it was "extremely steep," there were many grades that exceeded standard requirements for a rural driveway, and it lacked the requisite width and turnouts; and (7) Greenville Road goes through Bureau of Land Management (BLM) property before it reaches the 10-acre parcel or the 375 acres, which "bears upon what is contemplated and reasonably foreseeable because one cannot acquire a prescriptive easement against a governmental entity. [Citation.]"
A map of the area shows that the BLM property is between the Busbees' and the Westlunds' 65-acre parcel and the Hills' property. Greenville Road goes through all three properties.
Appellants do not specifically challenge any of the seven factors on which the trial court relied in finding the increased use was not foreseeable. Instead, they present new "facts" in support of their position that the increased use was a normal evolution, and therefore foreseeable. For example, they state: "With the economic boons of the dot.com era and the stock market in the mid and late 20th Century, as well as the rising price of real estate in urban areas, the influx of individuals seeking to purchase land outside the urban areas for development as second homes, retreats, getaways, and the like increased. . . . The properties at issue were not immune from these influences, albeit to a lesser degree." They assert that Hanssen and Perry's development of their parcels as residences "represent[s] the highest and best use of the lands from an economic and social sense. This evolution certainly meets the test of reasonable foreseeability. To hold otherwise renders one blind to the realities of 21st century life." We decline to consider these "facts," which were not presented to the trial court. We also disagree with appellants' assertion that these are matters of such "common knowledge" that we should take judicial notice of them.
Appellants also discuss the case of Jordan v. Worthen, supra, 68 Cal.App.3d 310, at length and point out that the Court of Appeal in that case affirmed the trial court's finding that an increase in the use of a road was reasonably foreseeable. However, because this case involves its own unique facts, what may have been foreseeable to the parties in Jordan v. Worthen is not instructive in our determination of what was foreseeable to the Busbees and the Hills.
Appellants alternatively assert, without much argument or citation to authority, that "equity warrants awarding easements in favor of Hanssen and Perry" because "[t]here is a long-standing . . . public policy that land should not be cut off from occupancy." (Citing Daywalt v. Walker (1963) 217 Cal.App.2d 669, 672-673 [involving an easement by necessity].) Appellants acknowledge they did not raise this argument below but assert they are entitled to a decision on the matter because "[t]he concept of equity is inherent in quiet title actions" and the parties have already had the opportunity to litigate all disputed facts that would be relevant in determining whether Hanssen and Perry are entitled to an equitable easement. However, a court must make various factual findings in determining whether an easement by necessity exists, including "the inferred intent of the parties to the property conveyance, as determined from the terms of the relevant instrument and the circumstances surrounding the transaction." (See Murphy v. Burch (2009) 46 Cal.4th 157, 163.) The court must also look at whether there was a "strict-necessity" because "[n]o easement will be implied where there is another possible means of access, even if that access is shown to be inconvenient, difficult, or costly." (Id. at p. 164.) The court must also find whether the dominant and servient tenements were under common ownership at the time of the conveyance and whether a conveyance by the common owner gave rise to the necessity for a right-of-way. (Ibid.) The trial court in this case did not make any of these findings, and we decline to do so for the first time on appeal.
2. Enjoining Hanssen and Perry from Crossing the Busbees' Property
Appellants contend, again without much argument or citation to authority, that the provision in the judgment enjoining Hanssen and Perry from crossing the Busbees' property in order to access their 160-acre parcels is void because "[t]he impact of this provision is to unreasonably restrain the Busbees from transferring or otherwise alienating their real property to whomsoever they shall choose, including Hanssen and Perry." It appears their argument is that the Busbees would not be able to sell their 65-acre parcel to Hanssen and Perry because Hanssen and Perry, as the new owners of the 65-acre parcel, would still be prohibited by the judgment from crossing the 65-acre parcel to reach their 160-acre parcels.
Nothing in the judgment, however, prohibits the Busbees from selling their 65-acre parcel to Hanssen and Perry. Further, none of the parties have addressed the various issues that may arise relating to the prescriptive easement the Busbees obtained in this litigation if Hanssen and Perry were to purchase the 65-acre parcel at some time in the future. "A controversy is not deemed ripe for adjudication unless it arises from a genuine present clash of interests and the operative facts are sufficiently definite to permit a particularistic determination rather than a broad pronouncement rooted in abstractions." (O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1451.) This is because "[i]f the competing considerations are not adequately explored and presented, the court may reach a less-than-circumspect result, potentially sending the law down a wrong precedential trail. The rule also reflects an aversion to the needless burden that courts and the public would assume if judicial resources could be diverted to resolving academic or inconsequential controversies." (Ibid.) The ripeness doctrine also reflects the "fundamental recognition . . . that human judgment is fallible and that the risk of error increases with the level of abstraction at which a legal question is considered." (Ibid.) Because this hypothetical controversy is not ripe for consideration, we decline to address it at this time.
We also note that appellants cite Civil Code section 711, which provides in full: "Conditions restraining alienation, when repugnant to the interest created, are void." The statute, however, is not absolute in its application and only prohibits restraints that are unreasonable, i.e., "not necessary to protect a security or prevent it from being impaired." (Superior Motels, Inc. v. Rinn Motor Hotels, Inc. (1987) 195 Cal.App.3d 1032, 1059.) "Reasonableness is determined by comparing the justification for a particular restraint on alienation with the quantum of restraint actually imposed by it. '[The] greater the quantum of restraint that results from enforcement of a given clause, the greater must be the justification for that enforcement.' [Citation.]" (Kendall v. Ernest Pestana, Inc. (1985) 40 Cal.3d 488, 498.) Here, the trial court's judgment reasonably prohibits Hanssen and Perry from crossing the Busbees' property, because to allow them to access their 160-acre parcels through the Busbees' property—which would necessarily require them to use Greenville Road—would render meaningless the order denying them a prescriptive easement appurtenant to their properties. The statute does not support appellants' position that the judgment provision is void.
3. "Uncertain and Ambiguous Provision" in the Judgment
Appellants contend the provision in the judgment prohibiting the Busbees and the Westlunds from inviting Hanssen and Perry to use Greenville Road under the pretense of visiting the Busbee/Westlund property should be stricken because it is "uncertain and ambiguous" and "does not allow appellants to determine from its terms what [they] may and may not do." We disagree. There is nothing uncertain or ambiguous about what the Busbees or the Westlunds "may and may not do." The provision makes clear the Busbees and the Westlunds may not invite Hanssen and Perry onto their property in order to allow them to reach their 160-acre parcels "under the pretense" of having them over as visitors to their 65-acre parcel. The purpose of this provision, of course, is to prevent the parties from circumventing the order denying Hanssen and Perry a prescriptive easement over the Hills' property. The trial court in this case included this provision, as well as the provision enjoining Hanssen and Perry from crossing the 65-acre parcel to get to their 160-acre parcels, as an alternative to extinguishing the easement altogether. Although, as the Hills pointed out below, the provision could be difficult to enforce because it could involve a determination of the Busbees' and the Westlunds' subjective intent in inviting Hanssen and Perry onto their property, this does not render the provision itself inherently uncertain or ambiguous.
DISPOSITION
The judgment is affirmed. Respondents Kenneth and Sandra Hill shall recover their costs on appeal.
McGuiness, P.J.
We concur:
Pollak, J.
Siggins, J.