Opinion
Certified for Partial Publication
Pursuant to rules 976(b) and 976.1 of the California Rules of Court, all parts of this opinion are certified for publication except Part II of the discussion.
As Modified on Denial of Rehearing March 27, 1989.
Review Granted May 18, 1989.
Previously published at 208 Cal.App.3d 691
Wade R. Thompson, Sacramento, and William M. Lyons, for plaintiffs and appellants.
Mackenroth, Seley & Anwyl, Robert Shannon and Robert Cutbirth, Sacramento, for defendants and respondents.
SPARKS, Acting Presiding Justice.
Civil Code section 846 generally immunizes real property owners from liability arising from the recreational use of their property. Under its terms, the statute protects the "owner of any estate or any other interest in real property, whether possessory or nonpossessory." The central question in this case is whether the holder of a grazing permit issued by the federal Forest Service on land in a national forest has an "interest in real property" within meaning of the statute. We hold that the permit holder has no real property interest in federal forest lands and consequently is not statutorily entitled to immunity against a recreational user.
Plaintiffs Wayne and Karen Hubbard appeal from a judgment of dismissal entered in favor of defendant Ben Brown, Jr., after the trial court granted defendant's motion
Plaintiff's appeal takes two tacks. First, he claims that the record demonstrates a dispute over the location of the accident, an argument we reject in the unpublished portion of this decision. Second, he argues that defendant's grazing permit is not an "interest in real property" for purposes of section 846's immunity. We agree with plaintiff's second contention. Because the controlling federal statute and regulations unequivocally provide that the issuance of a grazing permit on federal forest lands conveys no interest in those lands, the defendant permit holder did not obtain an interest in real property as required by the statute. We shall therefore reverse the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The parties agree upon the essential facts of the case. Defendant occupies land in the El Dorado National Forest under a United States Forest Service grazing permit. Defendant's permit covered three separate areas. The area where the accident occurred started at Kyburz and ended at Caples Lakes. It contained some 40,000 acres. Under the permit, defendant was authorized to graze 250 pair of cattle and 100 head of dry cows in exchange for the payment of a grazing fee. Although the permit itself is not part of the record, we are told by the parties that the permit was effective for nearly 10 years. Under its terms, defendant was required to pay for his proportionate share of cooperative improvements. It is further asserted that the permit gave defendant priority on renewal.
The undisputed facts show that defendant kept the grazing area open to persons for recreational purposes "including but not limited to motorcycle riding." He has never received any consideration for granting permission to use the grazing site recreationally.
In July 1984, plaintiff rode his off-road motorcycle on an undeveloped forest service road in the vicinity of defendant's permitted grazing area. Plaintiff sustained injuries when he struck an unmarked barbed wire gate which ran across the roadway. Defendant had erected the barbed wire fence and gate to control movement of his cattle on the land.
Plaintiff and his wife sued defendant for negligence and loss of consortium. Defendant eventually moved for summary judgment. He claimed that the accident occurred on property he occupied under his grazing permit. According to defendant, he had erected the barbed wire fence and gate solely to control the movement of cattle on the road and not to mark the boundaries of his grazing acreage. He argued that Civil Code section 846 immunized him from any liability for plaintiff's injuries.
In opposition to the motion, plaintiff disputed the location of the barbed wire fence and gate in relation to defendant's grazing use area. His unspoken premise is that if defendant erected the barbed wire on property in which he did not have any interest, the immunity of an owner under section 846 could not protect him. Plaintiff further argued that even if the fence had been properly located within the grazing area, defendant's grazing permit, characterized as a mere license, was not an "interest in real property" within the meaning of section 846.
The trial court granted defendant's motion, ruling that defendant's grazing permit "does constitute an interest in land for DISCUSSION
I
As always, we begin with the statute. Section 846 provides in pertinent part: "An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purpose, except as provided in this section." The statute then defines "recreational purpose," amplifies the extent of the immunity, and excepts certain conduct from the immunity.
Section 846 reads in its entirety: "An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purpose, except as provided in this section. [p] A 'recreational purpose,' as used in this section, includes such activities as fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites. [p] An owner of any estate or any other interest in real property, whether possessory or nonpossessory, who gives permission to another for entry or use for the above purpose upon the premises does not thereby (a) extend any assurance that the premises are safe for such purpose, or (b) constitute the person to whom permission has been granted the legal status of an invitee or licensee to whom a duty of care is owed, or (c) assume responsibility for or incur liability for any injury to person or property caused by any act of such person to whom permission has been granted except as provided in this section. [p] This section does not limit the liability which otherwise exists (a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner. [p] Nothing in this section creates a duty of care or ground of liability for injury to person or property."
43 United States Code section 315 et seq. One of the provisions of the Taylor Grazing Act is "creation of a grazing district or the issuance of a permit pursuant to the provisions of this chapter shall not create any right, title, interest, or estate in or to the lands." (43 U.S.C., § 315b.)
We recently considered section 846 in the context of a summary judgment motion in Charpentier v. Von Geldern (1987) 191 Cal.App.3d 101, 236 Cal.Rptr. 233. There we noted the section "establishes limited liability to a private landowner for injuries sustained by another from recreational use of the land. It is an exception to the general rule that a private landowner owes a duty of reasonable care to any person coming upon the land. Under section 846, the landowner's duty toward the nonpaying, uninvited recreational user is, in essence, no greater than that owed a trespasser under the common law as it was known prior to Rowland v. Christian, (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561. The recreational trespasser on private land assumes the risk of injury, ... absent willful or malicious misconduct by the landowner. The legislative purpose of that statute, by eliminating the threat to the landowner of gratuitous tort liability, is to encourage the landowner to keep the property accessible and open to the public for recreational use without charge." (Id., at pp. 106-108, 70 Cal.Rptr. 97, 443 P.2d 561, citations and fn. deleted.)
The summary judgment motion in this case squarely framed the issue of the defendant's entitlement to the limited immunity of section 846. Before reaching that question, however, we must first determine whether there are any triable issues of material fact with respect to the location of the accident which might negate the application of section 846. Concluding in the unpublished portion of this opinion that there are no such triable issues, we then consider whether the holder of a grazing permit in a national forest is an owner of an interest in real property under the statute. II
III
We come to the central dispute between the parties--the application of section 846. Plaintiff claims that defendant's grazing permit "can be construed as at the very most, a license. As such, a licensee is not entitled to the protection afforded by Civil Code Section 846." Defendant counters that under the facts of this case his grazing permit is more than a mere license, and suggests that it should be considered as an executed license, and thus the equivalent of an easement. Alternatively, defendant argues that even if the grazing permit constitutes a mere license, a license is an interest within section 846.
In order to determine the interest conveyed by the grazing permit, we first consider the nature of a right to graze cattle on land. We then examine the special character of a federal grazing permit on federal forest lands. Finally, we consider whether a such a federal grazing permit is an interest in real property within the meaning of the statute.
A. The Right of Pasture in California.
In California, the term "real property" is "defined by section 14, subdivision 2, Civil Code, as 'coextensive with lands, tenements, and hereditaments', to which Blackstone gives the appellation 'things real.' " (Callahan v. Martin (1935) 3 Cal.2d 110, 118, 43 P.2d 788; see also § 658.) By a residual definition, every kind of property that is not real is personal. ( § 663.)
As the Callahan court noted, the "common law included, in addition to lands and tenements, in the category of things real, hereditaments, corporeal and incorporeal, and section 14, subdivision 2 of the Civil Code, noted above, preserves this classification. A hereditament, as defined by Blackstone, included not only lands and tenements, but whatsoever passed to the heirs at law, rather than to personal representatives, 'be it corporeal or incorporeal.' Blackstone lists ten sorts of incorporeal hereditaments: advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities and rents.... Of the ancient incorporeal hereditaments listed by Blackstone, several either are not recognized at all in this country, or, if they do not involve rights in or to land, are not classed as things real. But a number of the common-law incorporeal hereditaments which involve rights connected with or pertaining to land persist, and are recognized generally as a species of interest in land, or estate in real property. [p] The incorporeal hereditament of common is defined by Blackstone as 'being a profit which a man hath in the land of another; as to feed his beasts, to catch fish, to dig turf, to cut wood, or the like.' These are the rights which are described as profits a prendre, ..." (Callahan, 3 Cal.2d at pp. 119-120, 43 P.2d 788.)
Consistent with this common law history, the right to graze animals on private land, typically called a right of pasture or the common of pasture, has traditionally been characterized as a profit a prendre. (See e.g., Platt v. Pietras (1980 Fla.App.) 382 So.2d 414, 417, fn. 1 [cattle]; Deseret Livestock Co. v. Sharp (1953) 123 Utah 353, 259 P.2d 607, 610 [sheep].) As we have seen, a profit a prendre, literally a profit to take, "is an incorporeal hereditament; it is a right to take something from the land of another." (Gerhard v. Stephens (1968) 68 Cal.2d 864, 878, fn. 7, 69 Cal.Rptr. 612, 442 P.2d 692; see also Lynch v. State Bd. of Equalization (1985) 164 Cal.App.3d 94, 102, fn. 4, 210 Cal.Rptr. 335; Sehle v. Producing Properties, Inc. (1964) 230 Cal.App.2d 430, 432-433, 41 Cal.Rptr. 136; Costa v. Fawcett (1962) 202 Cal.App.2d 695, 699-700, 21 Cal.Rptr. 143; see also 4 Witkin, Summary of Cal. Law (9th ed. 1987) Real Property, § 439, p. 620.) As Tiffany recounts it, "[t]he most important profit a prendre, historically considered, is that of pasturing cattle on another's land, usually referred to as 'common of pasture.' ... [p] Common of pasture involves the placing of cattle on the land to eat the herbage, in this differing from a right to take herbage from another's land by cutting and transporting At common law a profit a prendre was distinguished from an easement. "Taking," a California legal encyclopedia explains, "is the essence of a profit a prendre, and, under earlier cases, was held to distinguish it from an easement, under the rule that one of the features of an easement is the absence of all right to participate in the profits of the soil charged with the easement. However, the Civil Code provisions as to servitudes make no distinction between easements and profits, and in fact enumerate typical profits as easements." (28 Cal.Jur.3d, Easements and Licenses, § 4, pp. 85-86, fns. omitted.) Thus, under the code, the "following land burdens, or servitudes upon the land, may be attached to other land as incidents or appurtenances, and are then called easements: 1. The right of pasture; 2. The right of fishing; 3. The right of taking game; ... 5. The right of taking water, wood, minerals, and other things; ...." ( § 801, paragraphing deleted.)
It has been further noted that "[n]either the Civil Code nor the Restatement of Property distinguishes easements appurtenant from easements in gross. In fact, Civil Code Section 802 lists the 'right of taking water, wood, minerals, or other things' (i.e., a profit) as one of the 'land burdens' that may be granted and held, whether the burden is or is not appurtenant to land. The Restatement of Property notes that the law of the United States recognizes both easements in gross and profits in gross and that the rules with respect to easements and profits can be stated in identical terms. Accordingly, the Restatement includes profits under the general heading of easements and treats profits in all respects as a class of easement." (10 Hagman & Maxwell, California Real Estate Law & Practice (1988 rev.) Easements & Licenses, § 343.13, p. 343-20, fns. omitted; see Rest., Property, § 450, special note, pp. 2901-2902.) Thus, "Civil Code section 802 classifies profits and easements in gross, identically, as servitudes." (Gerhard v. Stephens, supra, 68 Cal.2d at p. 880, fn. 11, 69 Cal.Rptr. 612, 442 P.2d 692, emphasis in original.) Among the several listed profits in gross described as "land burdens, or servitudes upon land" which may be granted and held though not attached to land is the "right to pasture, and of fishing and taking game." ( § 802, subd. (1).)
Following the classification of the Civil Code and the analysis of the Restatement, the California Supreme Court has held that for the purpose of determining rights in real property "easements and profits a prendre are indistinguishable." (Gerhard v. Stephens, supra, 68 Cal.2d at p. 880, 69 Cal.Rptr. 612, 442 P.2d 692; see also Callahan v. Martin, supra, 3 Cal.2d at pp. 118-122, 43 P.2d 788.) "Following the common law this court has classified profits a prendre, together with easements, as incorporeal hereditaments." (Gerhard, 68 Cal.2d at p. 880, 69 Cal.Rptr. 612, 442 P.2d 692.) It follows from all of this that "[l]ike other easements, a profit is an incorporeal (i.e., nonpossessory) 'interest' in real property." (10 Hagman & Maxwell, op. cit. supra, at p. 343-20.) Thus, a right of pasture on private property in California constitutes an interest in real property.
B. Federal Forest Service Grazing Permit
But this does not end the question because the right to graze in this case does not involve private property. Instead it involves federal property and emanated from a permit issued by the federal Forest Service. The question then is whether a grazing permit in a national forest is different from a right of pasture on private property. We conclude it is. The controlling federal statute, 16 United States Code, section 580l provides: "The Secretary of Agriculture in regulating grazing on the national forests and other lands administered by him in connection therewith is authorized, upon such terms and conditions as he may deem proper, to issue permits for the grazing of livestock for periods not exceeding ten years and renewals thereof: Provided, That nothing herein shall be construed as limiting or restricting any right, title, or interest of the United States in any In addition to this conveyancing limitation, the regulations set forth other conditions governing grazing permits on federal forest lands. They require, for example, the payment of grazing fees for all livestock grazing on National Forest system lands. The fee is "charged for each head month of livestock grazing or use." (36 C.F.R. § 222.51(c).) The regulations further provide that "[g]razing permits with priority for renewal may be issued as follows: On National Forests in the 16 contiguous western States [which include California] 10-year term permits will be issued unless the land is pending disposal, or will be devoted to other uses prior to the end of ten years, or it will be in the best interest of sound land management to specify a shorter term." (36 C.F.R. § 222.3(c)(1).) In the event of cancellation the only compensation authorized by the regulations is for permanent improvements. "Whenever a term permit for grazing livestock on National Forest land in the 16 contiguous western States is canceled in whole or in part to devote the lands covered by the permit to another public purpose, including disposal, the permittee shall receive from the United States a reasonable compensation for the adjusted value of his interest in authorized permanent improvements placed or constructed by him on the lands covered by the canceled permit." (36 C.F.R. § 222.6(a).)
We had occasion to consider the nature of such a grazing permit on a national forest in Placer County Water Agency v. Jonas (1969) 275 Cal.App.2d 691, 80 Cal.Rptr. 252. There the water agency brought an eminent domain proceeding seeking to condemn all private claims in certain governmental lands in the Tahoe National Forest. The issue in the case was whether the defendant, who held United States Forest Service livestock grazing permits issued under 16 United States Code section 580l, had any compensable rights. We held that he did not. We characterized the permits as "mere licenses." (Id., at p. 697, 80 Cal.Rptr. 252.) Concluding that such revocable licenses created no estate or interest in the forest property, we ruled that the defendant permit holder had no right to severance damages. (Id., at p. 698, 80 Cal.Rptr. 252.) In the course of our opinion we rejected defendant's claim that his grazing permits should be characterized as profits a prendre. "Authorities cited by [defendant] on his contention that grazing permits constitute profits a prendre, and hence an interest in the land, are not in point as none of them deal[s] with federal grazing permits or licenses." (Id., at p. 697, 80 Cal.Rptr. 252.) Finally, we found the fact that the state administrative code classified grazing rights on publicly owned land as a "taxable possessory interest" for purpose of state tax assessment to be of no consequence. "The concept of 'property interests' for taxation purposes is entirely different from that of compensable interests in eminent domain." (Id., at p. 698, 80 Cal.Rptr. 252.)
It may well be that most licenses are properly considered to be interests in real property for purposes of section 846. (See e.g., Colvin v. Southern Cal. Edison Co. (1987) 194 Cal.App.3d 1306, 1313-1314, 240 Cal.Rptr. 142; O'Shea v. Claude C. Wood Co. (1979) 97 Cal.App.3d 903, 911, 159 Cal.Rptr. 125; see generally, 4 Witkin, Summary of Cal. Law, supra, § 481, p. 659.) Indeed, the legislative history of 1980 amendment to the statute clearly reveals that nonpossessory interests in real property, including licenses, were intended to come within the expanded statutory definition. As originally enacted in 1963, the statute immunized only "[a]n owner of any estate in real property." (Stats. 1963, ch. 1759, § 1, p. 3511.) In 1980, the Legislature amended section 846 to its present form. (Stats. 1980, ch. 408, § 1.) The amendment inserted the words "or any other interest" and "whether possessory or nonpossessory" into the section's first paragraph. Two 1979 opinions from this court sparked these amendments to section 846. In Darr v. Lone Star Industries, Inc. (1979) 94 Cal.App.3d 895, 157 Cal.Rptr. 90, we held that section 846 did not immunize an easement holder. Over a vigorous dissent, the majority ruled that an easement was merely a nonpossessory interest in real property. (Id., at p. 901, 157 Cal.Rptr. 90.) Citing longstanding law that only interests that were or might become possessory could be classified as an "estate" in land, we concluded that a right-of-way easement "could not have constituted an estate in real property." (Ibid.)
Witkin defines a license as "a personal, revocable, and nonassignable permission or authority to do an act or acts on land of another...." (4 Witkin, Summary of Cal. Law, supra, § 481, at p. 659 (emphasis in original).) The Restatement of Property describes a license as a residuary interest: "[License] comprehends the residue of those privileges of use of the land ... which are not included within the definition of easements." (Rest., Property, Servitudes (1944), Introductory Note to chapter 43, at p. 3113.) It then defines a license as "an interest in land in the possession of another which (a) entitles the owner of the interest to use of the land, and (b) arises from the consent of the one whose interest in the land used is affected thereby, and (c) is not incident to an estate in the land, and (d) is not an easement." (Rest., Property, § 512, at p. 3115.)
"... That nothing herein shall be construed as limiting or restricting any right, title, or interest of the United States in any land or resources." (16 U.S.C., § 580l.)
Scarcely three months later, this court decided O'Shea v. Claude C. Wood Co., supra, 97 Cal.App.3d 903, 159 Cal.Rptr. 125. There we held that section 846 immunized a licensee only if it held "a possessory interest, which includes the right to exclusive occupation as against the injured user." (Id., at p. 911, 159 Cal.Rptr. 125.) Citing an earlier edition of Witkin, we had no difficulty in determining that a license was an "interest in land": " 'Considering what may be done under a license, it is, like an easement, an interest in land, despite its revocable nature.' " (Id., at p. 910, 159 Cal.Rptr. 125, quoting 3 Witkin, Summary of Cal. Law, (8th ed. 1973) § 381, pp. 2074-2075 (emphasis in Witkin).) Nevertheless, we went on to state, merely determining that the tortfeasor had a license was not itself sufficient entitle him to immunity under the statute. Noting the Legislature's intent to keep lands open for recreation by granting immunity, we concluded: "Pursuant to ... section 846, defendant, although a licensee, owed no duty to plaintiff for simple negligence if it had the right to possession of the property in question as against plaintiff and other third persons." (O'Shea, supra, 97 Cal.App.3d at p. 911, 159 Cal.Rptr. 125.)
Just three months after the rendition of O'Shea, Assembly Bill No. 1966 was introduced. Both the Assembly and Senate Judiciary Committees held hearings on the bill which was later enacted into law. The reports prepared by both committees indicated that the bill was intended to negate the limitations upon section 846 placed by Darr and O'Shea. Thus, the legislative As we have recounted, although the O'Shea court concluded that a license was an "interest in land," it had further held that a licensee deserved immunization under section 846 only if the licensee held exclusive possession against the plaintiff. By the 1980 amendments, the Legislature indisputably intended to nullify that portion of O'Shea that required a licensee to have possessory rights. By removing O'Shea's limitation, the Legislature implicitly approved immunization of any owner of a license in real property regardless of whether the license includes the right of exclusive possession.
Legislative committee reports may properly be used to determine the Legislature's intent. (Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal.3d 456, 465, fn. 7, 253 Cal.Rptr. 236, 763 P.2d 1326.)
A grazing permit "convey[s] no right, title, or interest held by the United States in any lands or resources." (36 C.F.R., § 222.3(b).)
But whatever may be the case with licenses which constitute interests in real property, it is indisputable that a grazing permit on federal forest lands "convey[s] no right, title, or interest held by the United States in any lands or resources." (36 C.F.R. § 222.3(b).) As construed by the federal courts, such a permit is a revocable privilege which does not create a property interest in the federal land. "The license to graze on public lands has always been a revocable privilege. 'It is safe to say that it has always been the intention and policy of the government to regard the use of its public lands for stock grazing, either under the original tacit consent or, as to national forests, under regulation through the permit system, as a privilege which is withdrawable at any time for any use by the sovereign without the payment of compensation.' The rights of the ... permittees in their grazing permits flow from three sources: 16 U.S.C. § 5801; Permit, Part 2, § 8(b); and 36 C.F.R. §§ 222.4(a)(1), (6). None of these sources supports their assertion of a property interest in the permits." (Swim v. Bergland (9th Cir.1983) 696 F.2d 712, 719, paragraphing deleted.) Since the grazing permit does not create any interest in the federal forest lands, defendant's claim that he is an owner of an "interest in real property" within the meaning of section 846 must fail.
As we have seen, the phrase an "interest in real property, whether possessory or nonpossessory" is a technical one which comes freighted with much legal history. As such it must be construed in its technical sense. "[T]echnical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, ... are to be construed according to such peculiar and appropriate meaning or definition." ( § 13.) Obviously, the Legislature did not intend to immunize tortfeasors who have no interest in the real property where the tort occurred. Rather, it intended to immunize only those who own "any estate or any other interest in real property" and defendant simply does not own any such interest in the federal forest lands. Instead, defendant obtained a personal, contractual right to graze his cattle on the forest service lands. The immunity provided by section 846 is anchored to ownerships of interests in real property and hence does not extend to rights in personalty. Moreover, given the facts of this case, our construction of the statute reinforces its underlying purpose. "The purpose of section 846," the California Supreme Court has noted, "is to encourage property owners 'to allow the general public to recreate free of charge on privately owned property.' This purpose is achieved by a basic declaration that owners owe 'no duty of care to keep the premises safe' for certain specific recreational purposes." (Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707-708, 190 Cal.Rptr. 494, 660 P.2d 1168; emphasis in original and citation omitted.) "In other words, the statutory goal is to constrain the growing tendency of private landowners to bar their land to the public for recreational uses because of the threat of gratuitous tort liability." (Pacific Gas & Electric Co. v. Superior Court (1983) 145 Cal.App.3d 253, 256, 193 Cal.Rptr. 336; emphasis added.) That purpose would not be advanced by applying the statute when the land in question is publicly owned and is already open to the public for recreational purposes.
There is an even more compelling reason for including defendant within the immunity of section 846. The principal rationale of the majority in concluding the holder of a grazing right is not within section 846 is that defendant has no "interest in real property." But the same is true under California law as to all licensees. (People ex rel. Dept. Public Works v. Giumarra Vineyards Corp. (1966) 245 Cal.App.2d 309, 314, 53 Cal.Rptr. 902; People ex rel. Dept. Pub. Wks. v. Lundy (1965) 238 Cal.App.2d 354, 358, 47 Cal.Rptr. 694; Fisher v. General Petroleum Corp. (1954) 123 Cal.App.2d 770, 776, 267 P.2d 841, Eastman v. Piper (1924) 68 Cal.App. 554, 560, 229 P. 1002. See Belmont County Water Dist. v. State of California (1976) 65 Cal.App.3d 13, 17, 135 Cal.Rptr. 163.) The conclusion that defendant, because of the statutory and regulatory language of federal law, gained no interest in real property placed him in a position no different than the holder of any revocable license. Since section 846 was amended, as conceded by the majority, to provide tort immunity to holders of revocable, nonpossessory licenses, it would be anomalous indeed to frustrate that purpose by holding that the immunity of section 846 includes holders of those licenses only when they have an interest in real property, which is never.
"The dissent argues that the nature of the grazing rights plays no useful part in determining whether those rights fall within the immunity of the statute. This argument ignores the controlling language of the statute and thus seriously distorts its meaning. By its terms, the statute only protects the 'owners of any estate or other interest in real property, whether possessory or nonpossessory.' ( § 846.) No doubt the Legislature sought to expand the scope of the immunity by including nonpossessory interests in land. But one irreducible requirement remains: whatever the nature of the right, it must still constitute under the law creating it an ' "interest in real property." ' The federal government obviously has the paramount right to determine and classify the nature of rights created in its lands. Since it has decreed that a grazing right creates no interest in federal real property, we cannot hold otherwise. Consequently, the predicate for immunity under the statute never comes into play. The Legislature could have granted immunity to anyone who possesses a right of any kind to use land. Instead, it chose to grant the immunity only to those who own an estate or interest in realty. We are not free to ignore that choice by rewriting the statute."
In O'Shea v. Claude C. Wood Co. (1979) 97 Cal.App.3d 903, at p. 910, 159 Cal.Rptr. 125, this court stated, "The question of whether defendant had an interest in the land upon which it stored the dirt is not answered by the determination that it stored the dirt under a license. 'Considering what may be done under a license, it is, like an easement, an interest in land, despite its revocable nature.' (Italics in original.) (3 Witkin, Summary of Cal. Law (8th ed. 1973) § 381, pp. 2074-2075.)"
The defendant here made no showing that the forest service road on which plaintiff was riding was not open to the public. To succeed on a motion for summary judgment, "the defendant must conclusively negate a necessary element of the plaintiff's case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial." (Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) In the absence of such a showing, we may presume that plaintiff was lawfully using the forest service roadway. As we explained in another case involving the use of a public right of way, there a public waterway, "we eschew an interpretation of Civil Code section 846 which would discourage the public from exercising its constitutionally protected free and unimpeded use of navigable waterways." (Pacific Gas & Electric Co. v. Superior Court, supra, 145 Cal.App.3d at p. 259, 193 Cal.Rptr. 336.) Consequently, we held that "the owner of an interest in real property underlying or adjacent to navigable waters is not entitled to the protection of section 846 as against persons injured while using those waters." (Ibid.) By a parity of reasoning, the immunity of section 846 should not apply in favor of grazing licensee against a member of public lawfully using a forest service road open for recreational purposes.
In any event, defendant did not own any interest in real property by virtue of his grazing permit and hence did not come within the terms of the immunity statute.
DISPOSITION
The judgment is reversed and cause remanded to the trial court with directions to set aside its order granting defendant's motion for summary judgment and to enter a new and different order denying the motion.
SIMS, J., concurs
MARLER, Associate Justice, dissenting.
I dissent.
The historical review of the majority is a most erudite recitation of the law concerning the nature of grazing rights. However, it is not particularly useful in determining the issue at bar, i.e., whether or not the holder of a grazing permit on national forest land falls within the immunity of
1After tracing the history of section 846, the majority comes to the inescapable conclusion, as do I, that the Legislature, in amending section 846 in 1980, intended to include the holder of a nonpossessory license within the protection afforded by the statute. To put it another way, the Legislature intended to protect a person holding the exact property rights of the defendant here. However, according to the majority, that intent fails because (1) the underlying fee is held by a governmental body, and (2) the enabling legislation and permit itself declares that the permit conveys no right, title or interest to the permittee, hence he has no "interest in real property" and thus is outside the protection of section 846.
As to the first point, the majority argues that the purpose of the statute is to open up privately held lands and the land here is public land, hence outside the purpose of the statute. However, the 1980 amendment to section 846 creating immunity to the holder of an interest which was non-exclusive certainly opened no recreational land. Further, the interest of the defendant here is a private interest in public land. Were defendant a lessee of federal land he surely would be within section 846.
As to the second point, that defendant has no interest in the land, the majority puts too narrow a construction on the statute. After admitting the Legislature was trying to protect licensees in section 846, the majority says it failed for "technical reasons," in that no "interest in real property" passed to defendant, hence he has no standing under section 846.
It has been indicated that the holder of a federal grazing permit is the holder of a "license," even though he gains no interest or estate in the land. (Placer County Water Agency v. Jonas (1969) 275 Cal.App.2d 691, 80 Cal.Rptr. 252.) Case law uniformly holds that the holder of a grazing permit has no interest in the land. (See Osborne v. United States (9th Cir.1944) 145 F.2d 892; Tidwell v. State ex rel. Herman (1973) 21 Ariz.App. 3, 514 P.2d 1260.) The same result is found in cases involving the Taylor Grazing Act. 2 (Acton v. United States (9th Cir.1968) 401 F.2d 896; United States v. Cox (10th Cir.1951) 190 F.2d 293.)
However, in each instance the issue before the court was whether the holder of the permit had an interest which was compensable in an eminent domain action. In United States v. Fuller (1973) 409 U.S. 488, 494, 93 S.Ct. 801, 805, 35 L.Ed.2d 16, 22 Justice Rehnquist, speaking for the Court, said, "The provisions of the Taylor Grazing Act ... make clear the congressional intent that no compensable property right be created in the permit lands themselves as a result of the issuance of the permit." (See fn. 2, ante.)
In Acton v. United States, supra, the court said, "Grazing permits create no estate or interest in public lands, only a privilege which may be withdrawn. No property rights accrue to the licensee upon revocation which are compensable in condemnation." (401 F.2d at p. 899.) It appears from the above authorities that the holder of a grazing permit is a licensee without compensable property rights in eminent domain proceedings. The purpose of the language of 16 United States Code section 580l, 3 and 36 Code of Federal Regulations section 222.3(b), 4 is to insure that the holder of a grazing permit does not acquire rights in federal land which are compensable in a taking. Licenses do not fall within the meaning of private property under the Fifth Amendment to the United States Constitution. (United States ex rel. T.V.A. v. There is no logical requirement that a lack of an interest in real property to accomplish noncompensibility should also result in lack of such an interest for purposes of an immunity statute. "The concept of 'property interests' for taxation purposes is entirely different from that of compensable interests in eminent domain." (Placer County Water Agency v. Jonas, supra, 275 Cal.App.2d at p. 698, 80 Cal.Rptr. 252.) So is the concept of what is an interest in real property in immunity statutes different from compensability considerations.
It is true that the general rule of statutory construction of technical words, such as an "interest in real estate," is that they are to be construed according to such peculiar and appropriate meaning as they may have acquired. ( § 13.) However, such construction is not proper if its use would result in a frustration of the real intention of the law-making power. (In re Smith (1928) 88 Cal.App. 464, 467, 263 P. 555.) This is a necessary corollary of the rule that the end and aim of all statutory construction is the ascertainment of the intent of the Legislature. (Title Insurance and Trust Company v. County of Riverside (1989) 48 Cal.3d 84, 95, 255 Cal.Rptr. 670, 767 P.2d 1148; People v. Belton (1979) 23 Cal.3d 516, 526, 153 Cal.Rptr. 195, 591 P.2d 485; People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 40, 127 Cal.Rptr. 122, 544 P.2d 1322.) The Legislature here obviously intended a broader, non-technical meaning to the phrase "an interest in real property." To give effect to that intention plainly places the holder of a federal grazing permit within the coverage of section 846.
I would affirm.
** See footnote *, ante.
As one treatise argues, "[a]lthough licenses have been described as 'slight,' 'evanescent,' and even 'fleeting,' there is little doubt that they are 'interests' in real property, at least in the sense that the word 'interest' is used in the Restatement of Property. The Restatement uses the word to describe any of varying rights, privileges, powers, and immunities developed and recognized by courts of law or equity. Measured by that definition, there can be little doubt that a license is in fact an 'interest.' " (10 Hagman & Maxwell, op. cit. supra, at pp. 343-110-343-111, fns. omitted; see also Rest., Property, §§ 5, 6, 512, com. c.)
The report by the Assembly Committee on Judiciary stated in part: "Recent appellate court decisions from the Third District have held that the owner's immunity under Section 846 exists only if the owner has an estate, or possessory interest, in real property. Possessory interests are fee titles, life estates, or leaseholds, all of which are held with the intent to exclude others from occupation. In [Darr ], the court decided that the defendant could not invoke the immunity under Section 846 because the owner's right of entry or easement was a nonpossessory interest. Subsequently the court in [O'Shea ] determined that the owner of a license to conduct a particular activity on the land would come within the protection of Section 846 if it had the right to possession as against third persons.
"Proponents of AB 1966 contend that this measure is needed to restore the original legislative intent of Section 846. According to proponents, the term 'owner of any estate in real property' was probably thought to convey adequately the essential idea of limited liability and to include owners of all types of interest in land. Proponents claim that since the courts have given a narrow interpretation of 'estates in real property,' this bill is now necessary to immunize owners of all interest.
"Proponents argue that the distinction made between owners of possessory interests and owners of nonpossessory interests leads to anomalous results. They cite the situation in which the landowner avoids liability to a recreational user whereas an owner of an easement over the land cannot do so. Moreover, according to proponents, some easement or license owners would be liable to recreational users on land actually owned by another party even though such easement or license owners would not be liable in similar circumstances on their own land." (Bill Digest, AB 1966, Assembly Committee on Judiciary.)
The Senate Judiciary Committee's report also cited Darr and O'Shea as the impetus for the amendment. (Report, "Liability--Recreational Use of Land," AB 1966, Senate Committee on Judiciary, at pp. 1, 3.)
The petition for rehearing is denied.
In the same section 381, Mr. Witkin states "A license granted by a private person has been defined as a personal, revocable and nonassignable [original emphasis] permission or authority to do an act or acts on land of another, and is said not to be an interest in land [emphasis added]. [Citations.]" The California authorities support the latter statement above.