Opinion
A149170
04-30-2018
JOSEPH A. JOLSON et al., as Trustees, etc., et al., Plaintiffs and Appellants, v. MARK B. PASTERNAK et al., as Trustees, etc., et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. CIV 1300887)
Joseph A. Jolson and Kathleen Rohan Jolson as trustees of The Jolson 1996 Trust (the Jolsons) filed a lawsuit against Mark B. Pasternak and Myriam Kaplan Pasternak, individually and as trustees of The Mark B. Pasternak and Myriam Kaplan Pasternak 2005 Trust (the Pasternaks) challenging the scope of the Pasternaks' use of an easement. The court determined the Pasternaks have a right to utilize their easement over the Road to Ranches (Road) for all current uses except the Outstanding in the Field events or third party events. The court also required the Pasternaks to maintain the Road "in the condition which it has been maintained heretofore."
On appeal, the Jolsons argue the Pasternaks' use of the Road is beyond the scope of the easement and overburdens their property. The Jolsons further assert the trial court erred by only requiring the Pasternaks to maintain the Road in its current condition, and the judgment is too uncertain to be enforceable. We hold substantial evidence supports the trial court's findings, the court correctly applied the law of easements, and the judgment is enforceable. We affirm.
I. BACKGROUND
A. The Properties
The Jolsons and the Pasternaks own adjacent agricultural, residential planned properties in Nicasio, California. In 1866, the Jolsons' predecessor deeded to the Pasternaks' predecessor "a right of way out over the graded road now finished, which runs in an [sic] Northerly direction towards what is known as the Taft gate and private road and thence following said road in an easterly direction to the main Road." The parties do not contest this description refers to the Road. The Road crosses the Jolsons' property and serves as a driveway from the Nicasio town square to the Pasternaks' property and another adjacent ranch.
At the time the easement was deeded, the Pasternaks' property hosted a dairy farm and residence, along with a barn with quarters for ranch hands. At the time the Pasternaks purchased their property in 1971, they did not use it as a dairy but maintained its agricultural purpose by raising hogs and cattle, maintaining a garden, and keeping horses. The farm subsequently began raising pigs, rabbits, sheep, and chickens, and growing wine grapes, and the barn quarters were converted into two residential apartments and storage space.
The Jolsons purchased their property in 1996. When they purchased their property, the Jolsons understood the Pasternaks used the Road to access their house and ranch. The Jolsons subsequently agreed the Road could be used for a summer day camp on the Pasternaks' property. B. The Present Dispute
In 2009, the Pasternaks applied for a permit to allow overnight camping on their property. The Jolsons opposed the requested permit. The Marin County Deputy Zoning Administrator conducted a public hearing and subsequently granted conditional approval for the permit. The Jolsons appealed the deputy zoning administrator's conditional approval to the Marin County Planning Commission (Planning Commission), based in part on the argument that "the approved project is excessive in its scope and is therefore incompatible with the community character," "the project would result in impacts to traffic circulation and parking availability," and "the project does not have adequate or safe ingress and egress."
The Planning Commission also held a public hearing and denied in part and sustained in part the appeal. Specifically, the Planning Commission deleted the overnight camp, the four large special events, and 12 of the 24 educational tours/open houses from the proposed project description. The Planning Commission allowed the year-round day camp, the remaining 12 educational tours/open houses, and four special events with an 80-person maximum. The Planning Commission's conditional approval was then appealed by both the Jolsons and the Pasternaks to the Marin County Board of Supervisors (Board of Supervisors).
Following that appeal, the Board of Supervisors issued a final permit in 2010. This permit allowed a year-round day camp, 12 educational tours and open houses per year, and two special events per year. The permit also required parking for the day camp, educational tours, open houses, and special events to be off-site and the participants shuttled to the Pasternaks' property over the Road.
In 2011, the Marin County Community Development Agency (Agency) conducted a review of the Pasternaks' activities and found them in compliance with the permit. Notably, the Agency found the Pasternaks' parking and transportation plan satisfied those conditions in the permit. However, the Agency noted the question of whether the Pasternaks' activities overburden the Road and the adequacy of the Road's maintenance was a private, civil matter. C. The Present Action
In 2013, the Jolsons filed a complaint against the Pasternaks. The complaint sought to quiet title, as well as declaratory and injunctive relief regarding the Pasternaks' use of the easement. The court subsequently conducted a six-day bench trial.
At trial, the Pasternaks presented evidence regarding their use of the easement. The Pasternaks estimated there were 41 round trips per day to and from their property, plus one additional round trip per day during the summer when the day camp operated. Of these trips, the Pasternaks estimated 30 were conducted by residents living on the property, five related to the livestock businesses, five related to the vineyard, and one trip was connected to the asparagus and fruit production. Mark Pasternak testified the new permit resulted in approximately 208 additional round trips per year, consisting of 90 per year for day camps, 24 per year for special events, 16 per year for the open houses, six per year for educational tours, five per year for on-site retail sales, and 67 per year for the private parties and events. Mr. Pasternak also testified he has primary responsibility for maintaining the Road, which he manages by grading it and applying a dust-minimizing product.
The Jolsons presented testimony from a neighbor, who noted a 90 percent increase in traffic since the 1970's. She attributed this increase in traffic to the vineyard, rental units, and expanded hog business. Another neighbor also testified he had observed a "slow and steady" increase in traffic on the Road.
Additionally, the Jolsons presented testimony from a traffic and safety expert, Kimberly Nystrom. Nystrom testified the Road does not meet minimum standards for a recreational road pursuant to those established by either the American Association of State Highway and Transportation Officials or Marin County. She opined the Pasternaks' additional uses would result in over 100 trips per day, which would overburden the Road. Nystrom concluded the Road should be limited to no more than 100 total trips per day of only passenger cars or those with a 36-foot turning radius, and turnouts, physical road delineators, guardrails, erosion controls, and speed limit signs should be added to the Road. The Pasternaks did not present any competing expert on this issue. D. The Trial Court's Decision
Following posttrial briefing, the court issued its proposed statement of decision. The court concluded the deed granted an easement permitting the Pasternaks reasonable use of the Road, and found the issue of a prescriptive easement moot. The court further concluded it would be unreasonable to limit the Pasternaks' use of the Road to those uses of either the Road or their property from 1866. Instead, the court noted it carefully examined the current uses of the easement and concluded use for agricultural purposes, ranch access for the Pasternaks and their tenants, day camps, small parties or receptions by the Pasternaks or their tenants, educational tours, and open houses did not overburden the easement. The court did, however, conclude the Outstanding in the Field events and any use of the Road for third party weddings or other events were not reasonable. Finally, the court held the Jolsons could not enforce the 1976 easement agreement (1976 Agreement) governing use and maintenance of the Road because the Jolsons were not signatories to that agreement.
The Jolsons objected to the proposed statement of decision as ambiguous because it failed to adequately define reasonable use, explain the acceptability of certain uses, or consider the historical and intended uses of the Road. The Jolsons also objected that the court ignored the 1976 Agreement as evidence the Pasternaks intended and agreed to limited use of the Road, and failed to address the Pasternaks' duties and responsibilities with respect to the easement.
The court subsequently issued its statement of decision, which affirmed the holdings in its proposed statement of decision with two modifications. First, the court found the Pasternaks demonstrated they had a prescriptive easement to use the Road. Second, the court held the Pasternaks were required to maintain the Road "in the condition which it has been maintained heretofore." The court entered judgment in favor of the Pasternaks on the first cause of action to quiet title and the third cause of action for injunctive relief. The court entered judgment in favor of the Jolsons on the second cause of action for declaratory relief, and declared the Pasternaks were "able to continue reasonable use of their easement over the [Road] for all current uses except the Outstanding in the Field events. As the primary beneficiaries of the easement, the [Pasternaks] are required to maintain the [Road] in the condition which it has been maintained heretofore."
The Pasternaks subsequently moved to modify the judgment or vacate the judgment and enter a different judgment. The Pasternaks argued the court's finding of a prescriptive easement entitled them to use the Road for their Outstanding in the Field events, which had been occurring since 2006. The Jolsons also moved to vacate the judgment and enter a different judgment or, alternatively, for a new trial. The Jolsons asserted the judgment was not supported by the evidence and was based on erroneous legal analyses.
The trial court denied both motions, holding in part that its rulings on the reasonableness of existing events provided sufficient guidance to allow the parties "to discern what qualifies as a permissible 'current use.' " The court also noted the Pasternaks could not be compelled to contribute to the cost of major improvements to the Road. The Jolsons timely appealed.
II. DISCUSSION
The Jolsons raise three issues on appeal: (1) the Pasternaks' right to an easement for their expanded commercial enterprise; (2) the trial court's holding that the Pasternaks must only maintain the Road's current condition; and (3) whether the judgment is sufficiently certain to be enforceable. We address each argument in turn. A. Standard of Review
Whether a particular improvement or use unreasonably interferes with an easement is a question of fact, and we review the trial court's findings for substantial evidence. (Pacific Gas & Elec. Co. v. Hacienda Mobile Home Park (1975) 45 Cal.App.3d 519, 528.) "When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.) So long as there is substantial evidence to support a trial court's factual findings, an appellate court must affirm the resulting judgment, even if the trial court could have reached a contrary conclusion had it relied on other evidence and reasonable inferences. (Id. at p. 874.) An appellate court is "not in a position to weigh any conflicts or disputes in the evidence. Even if different inferences can reasonably be drawn from the evidence, [an appellate court] may not substitute [its] own inferences or deductions for those of the trial court. . . . Therefore, we must consider all of the evidence in the light most favorable to the prevailing party, giving that party the benefit of every reasonable inference from the evidence tending to establish the correctness of the trial court's decision, and resolving conflicts in support of the trial court's decision." (Estate of Beard (1999) 71 Cal.App.4th 753, 778-779.)
"Substantial" evidence, however, is not synonymous with "any" evidence. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) "Substantial" evidence is evidence of " 'ponderable legal significance' "; it must be " 'reasonable . . . , credible, and of solid value.' " (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) "Thus, the focus is on the quality, not the quantity of the evidence. Very little solid evidence may be 'substantial,' while a lot of extremely weak evidence might be 'insubstantial.' " (Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 871.) Indeed, the testimony of a single witness may constitute substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) B. The Deeded Easement
The Jolsons do not contest the trial court's finding that the deed provides an express easement to the Pasternaks for use of the Road. Instead, they argue the Pasternaks' expanded use is beyond the scope of the easement and overburdens their property. We disagree.
1. Scope of the Deeded Easement
The Jolsons first assert the Pasternaks failed to present any evidence to demonstrate the easement could be used to support expanded commercial activities on the Pasternaks' property. They argue the easement at the time it was granted was only intended to provide access to one homestead and dairy farm, and the additional uses are an impermissible expansion. The trial court concluded it would be "absurd" to define the reasonableness of the Pasternaks' use based on how the easement was used in 1866. The trial court emphasized it must look beyond the mere historical use. We agree.
The grant deed at issue expressly conveyed an easement for "a right of way out over the graded [Road]." " 'It is fundamental that the language of a grant of an easement determines the scope of the easement.' " (Van Klompenburg v. Berghold (2005) 126 Cal.App.4th 345, 349, quoting County of Sacramento v. Pacific Gas & Elec. Co. (1987) 193 Cal.App.3d 300, 313.) "The conveyance of an easement limited to roadway use grants a right of ingress and egress and a right of unobstructed passage to the holder of the easement. A roadway easement does not include the right to use the easement for any other purpose." (Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 703.)
Whether a use is within the scope of a grant "depends primarily upon the terms of each grant construed in the light of circumstances surrounding its execution." (Wall v. Rudolph (1961) 198 Cal.App.2d 684, 692 (Wall).) Where, such as here, the grant is made in broad terms, "such phrasing creates ' "a general right of way capable of use in connection with the dominant tenement for all reasonable purposes." ' " (Ibid.) Courts have uniformly held that such a right is " 'limited only by the requirement that it be reasonably necessary and consistent with the purposes for which the easement was granted.' [Citations.] This reasonable contemplation presumptively includes normal future development within the scope of the basic purpose [citations], but not an abnormal development, one which actually increases the burden upon the servient tenement [citation]." (Ibid., italics added; see People ex rel. Dept. of Transportation v. Southern Pac. Transportation Co. (1978) 84 Cal.App.3d 315, 322 ["As civilization advances . . . any use of the right-of-way which is in aid of and within the right-of-way's general purposes may be permitted, and does not entitle the owner of the subservient estate to be compensated anew for every improvement or compensated for every change of the use of the land made imperative by advances of technology and transportation improvements."].)
The Jolsons overlook this authority when critiquing the trial court's reliance on Laux v. Freed (1960) 53 Cal.2d 512. While the Jolsons are correct that Laux merely enforced the parties' understanding of the easement's scope at the time it was created and the easement's historical use, other authorities expressly discuss the import of allowing "normal future development." (See, e.g., Wall, supra, 198 Cal.App.2d at p. 692.)
Here, substantial evidence supports the trial court's holding that the Pasternaks' current uses—apart from the Outstanding in the Field events and third party events—were within the "reasonable purpose" of the easement. First, the Jolsons cannot reasonably dispute the Pasternaks are entitled to use the easement for agriculture-related purposes. The Jolsons sent a letter to the Pasternaks, which acknowledged the easement "is for the ingress and egress for activities related to agricultural and husbandry uses of your land." (Italics added.)
Second, the Planning Commission and Board of Supervisors concluded the expanded uses in the permit application directly related to the primary agricultural use of the Pasternaks' property. Specifically, the Planning Commission and Board of Supervisors found the project: (1) "complies with the AG2 . . . Land Use Designation as it would authorize activities that are accessory and incidental to the primary agricultural land uses existing at the property"; (2) "will raise the level of public awareness and understanding of Marin County agriculture"; (3) "will . . . complement[] traditional agriculture uses, thereby helping to ensure the continued economic viability of the county agricultural industry"; (4) "is consistent with the Marin Countywide Plan and the Development and Design Guidelines for the Nicasio Planning Area"; (5) "will provide the community with a service that educates individuals of Marin County about the importance of agriculture and agricultural operations"; and (6) "would be accessory to, and in support of, the primary agricultural land uses currently occurring at the [Pasternaks' property]." The Planning Commission and Board of Supervisors also found "[t]he operating characteristics of the day camp, special events, and educational tours/open houses are compatible with existing and future land uses in the vicinity." The Planning Commission explained its findings by noting, "Agricultural operations throughout Marin County are known to have occasional events at their ranches and farms to promote their goods and educate the public about agricultural resources present in Marin County." Accordingly, the Planning Commission's and Board of Supervisors' resolutions support the conclusion that the Pasternaks' expanded uses are reasonably related to their past and current agricultural uses.
The Jolsons argue the trial court erred in relying on the Planning Commission findings because they constitute inadmissible hearsay. However, "[t]o obtain reversal based on the erroneous admission of evidence, the record must show a timely objection making clear that specific ground." (Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 726.) In Duronslet, the court held a party's failure to timely interject a hearsay objection in the trial court "forfeited her claim that the court erred by admitting this evidence." (Ibid.) A failure to object to hearsay evidence at trial allows the hearsay to become competent evidence and constitutes a waiver of the right to contest the admissibility of the evidence on appeal. (In re Marriage of Kerry (1984) 158 Cal.App.3d 456, 466.) Here, both the Planning Commission resolution and the Board of Supervisors resolution were admitted into evidence without objection. Accordingly, the trial court properly considered these documents in reaching its decision.
The Jolsons also argue the court improperly disregarded the 1976 Agreement, which limited use of the Road for " 'low density access in conjunction with residential and agricultural uses common to the area.' " However, the trial court concluded none "of the uses that the [Pasternaks] have made of the easement, with the exception of the Outstanding in the Field events, appear to violate that agreement." In light of the Planning Commission's finding that the expanded uses are related to "the primary agricultural land uses existing at the property," and would result in minimal traffic increases, the 1976 Agreement does not undermine the court's holding as to the scope of the easement.
The court properly considered whether the expanded uses were consistent with both the normal future development and the purposes for which the easement was granted. It concluded they were, and substantial evidence supports the trial court's holding.
Both in their brief and at oral argument, the Jolsons contend Mr. Pasternak's trial testimony regarding the prior use of his property contradicted his past statements acknowledging that, prior to March 2010, he did not have a use permit to host certain events. But this argument addresses whether the Pasternaks can establish a prescriptive easement. Because we conclude the Pasternaks' expanded uses fall within the scope of the deeded easement, we need not address whether the Pasternaks can establish an easement through prescription. As we note above, substantial evidence supports the trial court's holding that the current activities—even if new—are consistent with the property's agricultural purpose and the easement's grant of access for such purposes.
2. The Burden on the Jolsons' Property
The Jolsons next argue the permitted activities overburden their property. On this point, the trial court concluded the impact of the expanded uses (apart from the Outstanding in the Field events and events hosted for third parties) were "relatively small" and "did not appear to overburden the easement." The Jolsons contend the court erred because the expanded use of the Road resulted in increased traffic "by at least fifty percent," created "privacy and security risks," prevented the Jolsons from using their property for hiking and riding horses, and created a noise nuisance.
The Jolsons' reliance on Bartholomew v. Staheli (1948) 86 Cal.App.2d 844, Connolly v. McDermott (1984) 162 Cal.App.3d 973, and Cushman v. Davis (1978) 80 Cal.App.3d 731 is misplaced. Those cases did not involve deeded easements but rather prescriptive easements, the scope of which " 'is determined by the use through which it is acquired. A person using the land of another for the prescriptive period may acquire the right to continue such use, but does not acquire the right to make other uses of it.' " (Connolly v. McDermott, at p. 977.) Accordingly, the courts in these three cases properly rejected any change in use. A deeded easement, on the other hand, is determined by the terms of the grant and allows use for all reasonable purposes. We thus are not limited purely by historical use. (See part II.B.1., ante.) --------
At trial, the court heard conflicting evidence regarding the impact of the Pasternaks' expanded uses of their property. Joseph Jolson testified he has seen a "noticeable increase" in traffic. With respect to that increase, he testified he felt uncomfortable with regular use of the Road due to safety issues and could no longer hike or ride horses on the Road. He also testified the additional traffic raised privacy and personal safety issues because their house could be easily viewed from the Road and occasionally people trespassed onto their property. Two neighbors also testified regarding the increase in traffic on the Road.
In response, Mark Pasternak testified there were approximately 41 daily round trips to his property apart from the day camp and expanded uses. He further testified the day camp, which he has run since 2004, added another 90 round trips annually, and the other expanded uses constituted 118 round trips annually. Combined, these additional trips amount to, on average, less than one additional round trip per day. In addition, the Planning Commission resolution specifically addressed a complaint that the expanded uses would increase the number of vehicles travelling along the Road. The Planning Commission acknowledged traffic levels would increase, but concluded "the amounts of traffic will not result in extended periods of congestion that would require additional studies or traffic mitigation measures." The Planning Commission further noted there currently are "insignificant traffic levels" and "DPW [(Department of Public Works)] staff found that overall level of traffic in this area does not rise to a level of significance that would require [a traffic] study."
Where, as here, there is a broad grant of a general right-of-way, the question of whether the Pasternaks' use of the Road imposes an unreasonable burden on the Jolsons is a question of fact. (See Jordan v. Worthen (1977) 68 Cal.App.3d 310, 327.) While another court may have found the additional uses to increase the burden on the servient tenement, we cannot conclude the trial court erred in concluding otherwise. (Estate of Beard, supra, 71 Cal.App.4th at pp. 778-779 ["Even if different inferences can reasonably be drawn from the evidence, [an appellate court] may not substitute [its] own inferences or deductions for those of the trial court."].) The Planning Commission resolution and Mark Pasternak's testimony provide substantial evidence to support the trial court's holding that the minimal increase in traffic associated with the expanded uses does not overburden the easement. C. The Pasternaks' Obligation to Repair the Road
The trial court held the Pasternaks, "as the primary beneficiaries of the easement, . . . are required to maintain the Road to Ranches in the condition which it has been maintained heretofore." The Jolsons contend the trial court improperly disregarded their expert, Kimberly Nystrom's, opinion regarding the scope of improvements needed to maintain the road's safety, which it was bound to accept as uncontradicted. We conclude otherwise.
The Jolsons base their argument on Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, in which an architect was accused of failing to adhere to accepted professional standards established by expert testimony. In that case, the court held: "[W]hen the matter in issue is within the knowledge of experts only and not within common knowledge, expert evidence is conclusive and cannot be disregarded." (Id. at p. 313.) The Jolsons read Huber too broadly and misstate the law. As explained in Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632, this "exceptional principle requiring a fact finder to accept uncontradicted expert testimony as conclusive applies only in professional negligence cases where the standard of care must be established by expert testimony." This is the " 'single exception' to the general rule that 'expert testimony, like any other, may be rejected by the trier of fact, so long as the rejection is not arbitrary.' [Citation.] Thus, '[a]s a general rule, "[p]rovided the trier of fact does not act arbitrarily, he [or she] may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.]" [Citation.] This rule is applied equally to expert witnesses.' " (Ibid.) As in Howard, this case does not present any issues of professional negligence or medical malpractice. The trial court thus was not required to accept as conclusive the testimony of the Jolsons' expert provided its basis for doing so was not arbitrary. (See id. at pp. 632-633.)
The record here reveals the trial court's decision to disregard Nystrom's testimony was not, in fact, arbitrary. Not only did the Planning Commission provide a contradictory assessment of the road, but Nystrom's testimony revealed a number of flaws with her analysis.
First, the Planning Commission reviewed the adequacy of the road in connection with the additional uses proposed by the Pasternaks. In connection with this review, it directly addressed the concern of inadequate or unsafe ingress and egress including "the stability of the roadway leading to the ranch." The Planning Commission concluded: "The Marin County Code establishes road width standards for the construction of new roads/driveways serving agricultural and residential land uses. . . . The existing road provides legal access to the ranch. The Department of Public Works has reviewed the project and found that the existing driveway serving the ranch meets Marin County Code requirements." The Planning Commission also noted, "Although traffic levels will increase in relation to the proposed activities at the ranch, the amounts of traffic will not result in extended periods of congestion" and the "overall level of traffic . . . does not rise to a level of significance that would require [a traffic] study" based on the information provided "regarding amounts of traffic travelling to and from the ranch as it pertains to regular ranch operations and special events at the ranch." The Planning Commission reached this conclusion in part based on the Pasternaks' proposed use of off-site pick-up and drop-off locations.
Second, Nystrom's analysis appears based in large part on her assumptions regarding the number and size of vehicles traveling along the road. However, she lacked information regarding how many additional trips would be required for open houses or day camps, was unclear what carpooling would occur, and did not consider how the flow of vehicles would vary, for example, between the work week and the weekend (e.g., agricultural work tends to occur during the week and special events occur on the weekend). Nystrom also conceded she did not conduct any measurements regarding the number of vehicles using the road, and was unaware of what size vehicles have historically used the road.
As a result, the trial court's rejection of her testimony was neither arbitrary nor unreasonable. The Planning Commission resolution provide substantial evidence in support of the trial court's holding regarding the Pasternak's road maintenance obligations. D. The Enforceability of the Trial Court's Judgment
Finally, the Jolsons argue the judgment is too uncertain to be enforceable due to the trial court's refusal to define "reasonable use" or "condition." Specifically, the Jolsons assert the court should have identified "the type, volume and number of vehicles necessary to support each use and the nature of allowable uses" in order to evaluate whether future events overburden the easement. The Jolsons also contend the judgment fails to clarify the Pasternaks' maintenance and repair obligations. We disagree.
The Jolsons do not assert the trial court failed to identify whether the current disputed uses are permitted under the terms of the easement. Rather, they ask the court to speculate and rule on potential future uses. Such speculation would be inappropriate. Whether possible future uses of an easement "go beyond the extent and scope of the easement is a matter for future determination of the court if and when the question is presented." (Pipkin v. Der Torosian (1973) 35 Cal.App.3d 722, 729; Sufficool v. Duncan (1960) 187 Cal.App.2d 544, 550 ["Whether acts of interference with easements or the uses thereof constitute a violation of the rights of the parties is a matter for future determination of a court when the particular acts are presented to it for determination."]; O'Banion v. Borba (1948) 32 Cal.2d 145, 155 [whether defendants could construct and maintain gates across easements was a matter for future determination if and when the question were presented].) Without knowing what types of additional uses, if any, may occur in the future, the court cannot rule on whether such uses—or any associated vehicular use of the Road in connection therewith—would fall within the reasonable scope of the easement.
Nor is the court's ruling on the Pasternaks' duty to "maintain the [Road] in the condition which it has been maintained heretofore" uncertain. The Jolsons' argument as to this point—i.e., that the judgment "does not address the evidence concerning the current condition of the Road"—is not one regarding uncertainty. Rather, it is a challenge to the sufficiency of the judgment and the weighing of evidence. As we address in part II.C., ante, the trial court properly evaluated this issue and was entitled to disregard Nystrom's opinion.
Moreover, the trial court's ruling is in accord with the requirements of Civil Code section 845, subdivision (a), which requires that "[t]he owner of any easement in the nature of a private right-of-way . . . shall maintain it in repair." The phrase "maintain it in repair" has been expressly interpreted as a requirement to " 'preserv[e] property in its original condition, and does not carry the connotation that a new thing should be made.' " (Holland v. Braun (1956) 139 Cal.App.2d 626, 632.) The trial court's reference to "condition which it has been maintained heretofore" is unambiguously a reference to the Road's original condition, and does not encompass the multitude of new modifications proposed by Nystrom. Accordingly, we conclude the judgment is sufficiently certain to permit its enforcement.
III. DISPOSITION
The judgement is affirmed. Defendants may recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.