Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tuolumne County No. CV52018. James A. Boscoe, Judge.
Michael Weisberg for Defendant, Cross-complainant and Appellant.
Young, Ward and Scott Ward for Plaintiffs, Cross-defendants and Respondents.
OPINION
VARTABEDIAN, Acting P. J.
Appellant Clayton Rice (Rice) and respondents Mark and Tina Mather (collectively Mather) live in adjoining parcels on Pine Street in Tuolumne. Mather’s house includes an outdoor staircase leading to a second story deck, which provides the only access to the living quarters. The two properties previously consisted of a single parcel. When the properties were divided, Mather’s staircase and part of the deck were inadvertently located within the legal description to what later became the Rice property. Rice was aware of the situation when he bought his property, but filed complaints with the local planning department for the staircase and deck to be demolished for code violations.
Mather brought the instant action to quiet title and for either an implied or prescriptive easement for the continued use of the staircase and deck. Rice filed a cross-complaint and motion for summary adjudication on the disputed issues. Mather then sought a summary judgment. The trial court found an implied easement existed and granted Mather’s motion for summary judgment. On appeal, Rice principally claims Mather failed to prove the required elements of an implied easement. We affirm.
FACTS AND PROCEEDINGS
The Mather and Rice residences currently exist on adjoining but separate parcels. These two parcels previously consisted of a single parcel known as lot 44. The legal description for the Mather house is the “[t]he North 42 feet of Lot 44,” whereas the legal description for the Rice house is “Lot 44 . . . Excepting Therefrom the North 42 feet.” The following facts are undisputed as to the history of the single parcel described as lot 44, and its subsequent development and division.
The single parcel described as “Lot 44 in Block 6” was created by a map/plat for the Townsite of Carter, and recorded in the Tuolumne County Recorder’s Office in 1899. In 1947, Frances Warren purchased lot 44. In about 1950, Warren built a two-story house (hereinafter referred to as the Mather house) on the northern corner of lot 44, and left the rest of the property undeveloped. The configuration of that house has remained the same from the time of construction to the instant dispute. The first floor consists of the garage and support beams for the second floor. There is an outdoor staircase leading to the second floor, which consists of an outdoor deck and interior living area. The parties herein agree the only living area is on the second floor, and the outdoor staircase and deck provide the only access to the second floor interior living area.
The Division of the Property
In 1984, Dante Perano and Billie McDaniel were the owners of the entirety of lot 44, consisting of both the Mather house and the undeveloped portion of the land. At that time, they transferred to Jeffrey Lawrence the “NORTH 42 feet of LOT 44,” consisting of the Mather house. Perano and McDaniel retained title to the undeveloped portion of the property, described as “Lot 44 . . . Excepting therefrom the North 42 feet.” When the property was divided, however, the outdoor staircase and part of the outdoor deck of the Mather house was on the other side of the boundary line, such that it was within the legal description of the undeveloped portion of Lot 44. It is undisputed that the parties who held title to these parcels were unaware of the boundary error.
After the division, the two parcels passed through various owners. In November 1990, Mather purchased the property and house on the “North 42 feet of Lot 44” from its then-owners. Based on conversations with the sellers, Mather determined the two-story house had been in the same configuration for decades--the garage was on the first floor, with the outdoor staircase leading to the second floor deck and interior living area. He did not know the location of the boundary line but believed the staircase and deck were on his property. The adjoining parcel was still vacant and undeveloped.
The adjoining undeveloped parcel went through more owners. In July 2002, Wayne and Lorraine Walker purchased the undeveloped property adjoining the Mather house. When they purchased the property, the Walkers were unaware that the staircase and part of the deck for the Mather house were on their side of the boundary line.
The Discovery of the Boundary Issue
In September 2002, the Walkers obtained a survey of their undeveloped property because they planned to build a house. They discovered Mather’s staircase and part of the deck were on their side of the boundary line and within the legal description for their property. It is undisputed that the Walkers were the first people to learn about the boundary issue. Wayne Walker advised Mather of the boundary issue and objected to the presence of the deck and staircase. He declares that even though he was aware that Mather’s deck and staircase were on his property, he decided that he would build around the deck and staircase in building a house on his property.
In mid-2004, the Walkers completed construction of their house (hereinafter referred to as the Rice house). The Walkers built the Rice house right up to the edge of Mather’s staircase and deck. The back of the Rice house faced Mather’s deck, and there were no doors or windows on that side of the Rice house. Mr. Walker declares that he repeatedly objected to the existence of Mather’s staircase and deck on the Walkers’ property, asked Mather to dismantle and remove the structure, and they failed to do so.
In August 2004, a complaint was filed with the Tuolumne County Community Development Department regarding the boundary dispute, presumably by the Walkers. The complaint alleged Mather’s existing staircase and deck violated the building code. In September 2004, Mather was advised by the Walkers’ attorney that the Tuolumne County Building Department was going to demand the immediate removal of the “illegal deck” which “encroache[d]” on the Walkers’ property, because Mather did not obtain the required permit when the deck was constructed. The Walkers’ attorney also warned Mather that their failure to immediately remove the deck would interfere with “the Walkers’ pending contract to sell their property,” and cause them “direct financial damage because of your illegal deck’s impact on the value and marketability of the Walkers’ property.”
As Mather later pointed out, the staircase and deck were constructed decades before they purchased the property so that they never committed any violations of the building code.
In October 2004, Rice purchased from the Walkers the house and property described as “Lot 44 . . . Excepting Therefrom the North 42 feet.” Rice declares that prior to the close of his transaction with the Walkers, he obtained a survey and determined the location of the property line, and thus knew the deck and staircase “encroached” on the property. Rice had “no reason to doubt” that the Mather staircase and deck had been constructed by a previous owner and existed for at least 20 years, and that Mather believed the staircase and deck were on their property. Rice further declares: “I went ahead with the purchase, however, because I was advised by the sellers’ realtor, by my own realtor, and by . . . [Tuolumne County] that the Deck Structure was the subject of pending administrative review proceedings initiated by the Department and ‘would be coming down.’”
Rice made this statement in his declaration in support of his motion for summary judgment. Mather objected to this statement and argued it was irrelevant and inadmissible opinion evidence regarding the parties’ legal rights. The court noted that Rice did not file a reply to Mather’s objections, and excluded Rice’s statement.
After Rice purchased his property, he repeatedly demanded the removal of Mather’s deck structure. Mather declined to remove the staircase and deck. Tuolumne County continued to investigate the complaint that the staircase and deck violated the building code.
In November 2005, Tuolumne County advised Mather that the staircase and deck violated the building code and setback rules, and the violations could be abated if Mather obtained a prescriptive easement. Thereafter, Mather notified Tuolumne County that they were going to offer to purchase the disputed strip of land, but if that were not possible, they would file a quiet title action. Rice declined to sell the disputed property, and the quiet title action ensued.
The Litigation
On April 6, 2006, Mather filed a complaint in the Superior Court of Tuolumne County against Rice, to quiet title and for a prescriptive easement to the property that contained the staircase and the deck. Rice filed an answer and a cross-complaint to quiet title to all portions of his property. He also sought injunctive relief for an order to remove the existing staircase and deck, and prohibit Mather from rebuilding any structure that extended onto his property. Rice alleged the staircase and deck were in “extremely dilapidated condition and apparently near collapse,” and Mather used the area under the deck “essentially as a garbage dump.”
Thereafter, Rice filed a motion for summary adjudication on the quiet title cause of action in Mather’s complaint, and the quiet title and injunctive relief request in his own cross-complaint. Rice argued there was no legal basis for Mather to claim an “exclusive prescriptive easement” on the land that contained the staircase and deck. (Italics in original.)
Mather filed a first amended complaint to quiet title, and argued that either an implied or prescriptive easement existed to permit the continued use of the staircase and deck. Mather then filed a motion for summary judgment on the first amended complaint. Mather argued that, in addition to earlier arguments about a prescriptive easement, an implied easement also existed pursuant to Civil Code section 1104, since the two properties were a single parcel when the Mather house, the staircase, and the deck were constructed. Mather declared that regardless of the instant litigation, they intended to rebuild the staircase and deck, and acknowledged they would have to obtain a building permit. While they asserted the right to an easement “the size of the existing Stairs and Deck,” they recognized that as a practical and regulatory matter, the new stairs and deck would be “significantly smaller.”
On April 6, 2007, the court heard argument on Rice’s motion for summary adjudication and Mather’s motion for summary judgment.
The Court’s Ruling
On June 26, 2007, the court granted Mather’s motion for summary judgment and denied Rice’s motion for summary adjudication. The court noted the history of lot 44, the construction and configuration of the Mather house, and the subsequent division of lot 44 into two parcels. The court further noted that it was undisputed by the parties that “at the time Lot 44 was divided into two parcels, the stairs and deck of what is now the MATHER house encroached onto what is now the RICE property. At all times since the house was built, the stairs and deck have been used as the sole means of access to the interior of the house.”
The court found an implied statutory easement existed pursuant to Civil Code section 1104 and case law.
“At the time that Lot 44 was divided, the MATHER house, including the encroaching stairs and deck, had been in use for many years. In order to use the MATHER property, use of the RICE property was required as well. The persons splitting Lot 44 retained the unimproved parcel for themselves.”
The court found that lot 44 was one parcel when the Mather house was built, the owners transferred the house to another party and retained the vacant portion of the land, the encroachment of the Mather house onto the Rice property existed when the two parcels were created, the stairs and deck existed when the property was split and was obviously and apparently permanent to all the parties at that time, and an easement for the use of the stairs and deck was reasonably necessary for the use and benefit of Mather’s property. The court noted Mather intended to rebuild the staircase and deck, and the new structure would fit a smaller footprint than the existing structure.
The court thus found an implied easement existed in favor of Mather for continued use of the staircase and deck. The court rejected Rice’s arguments against an implied easement because he relied on cases involving prescriptive easements. The court declined to determine whether a prescriptive easement also existed, and found the issue of a prescriptive easement was moot.
On December 24, 2007, the judgment in favor of Mather was filed, along with a legal description of the implied easement. On December 31, 2007, Rice filed a timely notice of appeal.
DISCUSSION
A. Standard of Review
On appeal, Rice contends the trial court erroneously granted Mather’s motion for summary judgment and ruled, as a matter of law, that Mather had an implied easement. We begin with the well-settled standard of review of a summary judgment motion. “Summary judgment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. [Citation.] We review de novo the trial court's decision to grant summary judgment. [Citation.] ‘In reviewing a motion for summary judgment, we accept as undisputed fact only those portions of the moving party's evidence that are uncontradicted by the opposing party. In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn therefrom are accepted as true.’ [Citation.] Summary judgment is a drastic remedy that is to be used sparingly, and any doubts about the propriety of summary judgment are to be resolved in favor of the opposing party. [Citations.]” (Walrath v. Sprinkel (2002) 99 Cal.App.4th 1237, 1240, disapproved on other grounds by Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173-1174.) When an appellate court reviews a motion for summary judgment, “the relevant facts are limited to those set forth in the parties' statements of undisputed facts, supported by affidavits and declarations, filed in support of and opposition to the motion in the present case, to the extent those facts have evidentiary support. [Citations.] Facts not contained in the separate statements do not exist. [Citation.]” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 112, disapproved on other grounds in Kaufman & Broad Communities, Inc. v. Performance Plastering Inc. (2005) 133 Cal.App.4th 26, 41-42.)
We note that the relevant and material facts regarding the Mather and Rice properties, the development and division of lot 44, and the exact configuration of the Mather house, are undisputed by the parties. The trial court herein found that based on the undisputed facts, Mather had an implied easement on the strip of Rice’s property which contained Mather staircase and part of their deck. We thus conduct a de novo review of the legal basis for that ruling.
B. Implied Easement
An easement is an interest in land which is not an estate. The holder of an easement merely has a right to use certain property he does not own. (Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 35.) An implied easement can benefit the property conveyed even though it is not mentioned in the deed. (Kytasty v. Godwin (1980) 102 Cal.App.3d 762, 770 (Kytasty).) “It is a rule of real property that when an owner of the entire estate sells a portion of it, the purchaser takes the portion sold with all the benefits and with all the burdens that appear at the time of the sale to belong to it as between it and the property which the grantor retains. [Citations.] . . . ‘Where the owner of one heritage consisting of several parts has so adapted them that one derives a benefit from the other, when he sells one of them without making mention of the incidental burdens of one in respect to the other, an implied understanding arises that the burdens and correlative advantages shall continue as before the separation of the title.’” (Dixon v. Eastown Realty Co. (1951) 105 Cal.App.2d 260, 263.)
The elements of an implied easement have been codified in Civil Code section 1104, which states:
“A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.”
This statute “creates an implied easement as an exception to the general rule that interests in real property can only be created by an express writing or by prescription [citations].” (Kytasty, supra, 102 Cal.App.3d at pp. 768-769.) “The implied easement or quasi-easement authorized by Civil Code section 1104 is reciprocal; hence, if a burden has been imposed upon a parcel of land sold, the purchaser, provided the marks of this burden are open and visible, takes the property with the servitude on it [citations].” (Kytasty, supra, 102 Cal.App.3d at p. 770.)
The elements required to create an implied easement are well established: “An easement will be implied when, at the time of conveyance of property, the following conditions exist: 1) the owner of property conveys or transfers a portion of that property to another; 2) the owner's prior existing use of the property was of a nature that the parties must have intended or believed that the use would continue; meaning that the existing use must either have been known to the grantor and the grantee, or have been so obviously and apparently permanent that the parties should have known of the use; and 3) the easement is reasonably necessary to the use and benefit of the quasi-dominant tenement.” (Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 141 (Tusher).)
“The purpose of the doctrine of implied easements is to give effect to the actual intent of the parties as shown by all the facts and circumstances.” (Orr v. Kirk (1950) 100 Cal.App.2d 678, 681.) Thus, “[w]hether an easement arises by implication on a conveyance of real estate depends on the intent of the parties, which must clearly appear in order to sustain an easement by implication. In order to determine the intent, the court will take into consideration the circumstances attending the transaction, the particular situation of the parties, and the state of the thing granted. [Citation.] ... [In other words,] [t]he extent of an easement created by implication is to be inferred from the circumstances which exist at the time of the conveyance and give rise to the implication. Among these circumstances is the use which is being made of the dominant tenement at that time.” (Ibid.) Generally, “[t]he law does not favor the implication of easements. Such implication can only be made in connection with a conveyance, and in view of the rule that a conveyance is to be construed against the grantor, the court will imply an easement in favor of the grantee more easily than it will imply an easement in favor of a grantor.” (Ibid.; see also Kytasty, supra, 102 Cal.App.3d at p. 769.)
“An easement by implication will not be found absent clear evidence that it was intended by the parties. [Citation.]” (Tusher, supra, 68 Cal.App.4th at pp. 141-142.) Despite this language, however, the party claiming an implied easement has the burden of proving each element by a preponderance of the evidence, rather than by clear and convincing evidence. (Id. at p. 142, fn. 13 & p. 145.)
As will be discussed, Rice makes a brief assertion in his brief that there are factual issues concerning reasonable necessity that require trial; but his declaration below concedes otherwise. Accordingly, there are no disputed issues of fact. We must determine whether as a matter of law, the elements of an implied easement have been established.
1. Transfer by the Grantor
The first question is whether there was a transfer by the grantor. (Tusher, supra, 68 Cal.App.4th at p. 141.) “An easement is ‘a charge or burden on one estate, the servient, for the benefit of another, the dominant.’ [Citation.] ‘Although a person cannot have an easement on his or her own property, an owner may use one portion of land for the use and benefit of another portion.... In such cases ... the portion of the parcel that is being used is called the “quasi-servient tenement,” and the portion or parcel benefited by the use is called the “quasi-dominant tenement.”’ [Citation.]” (Larsson v. Grabach (2004) 121 Cal.App.4th 1147, 1152, fn. 1.)
Generally speaking, an easement by implication will not arise unless the owner of both the parcel that benefits from the easement (the “quasi-dominant tenement”) and the parcel that is burdened by the easement (the “quasi-servient tenement”) transfers a portion of the property to another. (E.g., Kytasty, supra, 102 Cal.App.3d at pp. 770-771.) Prior to a transfer, i.e., while all the land is owned by the grantor, strictly speaking, there can be no true easement, i.e., a right in the land of another. (See George v. Goshgarian (1983) 139 Cal.App.3d 856, 859-860 & fn. 3.) But “ [w]hen the owner of lands divides his property into two parts, granting away one of them, he is taken by implication to include in his grant all such easements in the remaining part as are necessary for the reasonable enjoyment of the part which he grants, in the form which it assumes at the time he transfers it. The purchaser is entitled to the benefit of the easement without any express grant or reservation.’” (A. Hamburger & Sons v. Lemboeck (1937) 20 Cal.App.2d 565, 569 (Lemboeck).)
The requirement of a transfer for the creation of an implied easement may be satisfied by a deed of trust. (Lemboeck, supra, 20 Cal.App.2d at p. 569.) Thus, a deed of trust may carry with it an easement by implication, so that the purchaser of the “quasi-dominant” tenement at a subsequent trustee sale acquires the easement. (Id., at pp. 570-571; see also Kytasty, supra, 102 Cal.App.3d at p. 773.)
Applying these principles to the facts of this case, the requirement of a transfer by the grantor is met. In 1947, Francis Warren purchased lot 44. Around 1950, Warren built the two-story Mather house on the northern corner of lot 44, which consisted of the first floor garage, and the outside staircase leading to the second floor deck and interior living space. The configuration of that house has remained the same since construction, such that the outside staircase and deck provide the only access to the living quarters.
In 1984, the then-owners of lot 44, Perano and McDaniel, transferred that portion of the parcel which contained the Mather house to Lawrence, and divided lot 44. The parcel with the Mather house was described as the “NORTH 42 feet of LOT 44.” Perano and McDaniel retained title to the rest of the undeveloped parcel, which was described as “Lot 44 . . . Excepting therefrom the North 42 feet.” As we have explained, when the property was divided, the outdoor staircase and part of the outdoor deck of the Mather house was inadvertently within the legal description of the undeveloped portion of lot 44, but the parties were unaware of this mistake.
The first element of an implied easement is satisfied since Perano and McDaniel owned the entirety of lot 44 when they divided the property. The Mather house was the quasi-dominant tenement, i.e., the parcel which benefited from the easement, and the Rice property was the quasi-servient tenement, i.e., the parcel burdened by the easement. Perano and McDaniel transferred a portion of lot 44—the quasi-dominant tenement—to Lawrence, and they retained the quasi-servient tenement. The owner of the parcel thus divided the property into two parts, and granted away one of the parcels, such that “‘he is taken by implication to include in his grant all such easements in the remaining part as are necessary for the reasonable enjoyment of the part which he grants, in the form which it assumes at the time he transfers it. The purchaser is entitled to the benefit of the easement without any express grant or reservation.’” (Lemboeck, supra, 20 Cal.App.2d at p. 569.)
2. Existing Known Use of the Easement
The second element is that the grantor's prior existing use of the property be such that the parties must have intended or believed that the use would continue. (Tusher, supra, 68 Cal.App.4th at p. 141.) To determine whether this element is met, the court must ask whether the easement and its use were actually known to the parties, or whether the easement was so obviously and apparently permanent that the parties should have known of its use. (Ibid.; Kytasty, supra, 102 Cal.App.3d at pp. 769-771.)
For example, in Kytasty, the court rejected the plaintiff's attempt to prevent the defendants from continuing to use a road easement over her property after plaintiff purchased her lot. (Kytasty, supra, 102 Cal.App.3d at pp. 765-767.) Instead, the court found the defendants had an implied easement over plaintiff's property, in part because the plaintiff “was well aware of the existence of the road” having used it herself when she visited the property, and “[w]hile she did not travel its full length, she knew it was passable and was thus put on notice an easement existed as a servitude on the property she was buying.” (Id. at p. 771.)
The undisputed facts herein establish that the existence of the Mather house’s outdoor staircase and deck was well known by all relevant parties when the owners of lot 44 divided the parcel, and it was known by all subsequent title holders to the two adjoining parcels. The Mather house was constructed around 1950, the configuration never changed, and the staircase and deck provided the only access to the second floor living quarters. When the Walkers purchased the adjoining property, they discovered the boundary issue and that the staircase and deck were on their property; they decided to construct their house anyway, and admittedly built around Mather’s staircase and deck. When Rice was about to purchase the property from the Walkers, he also learned about the boundary issue: that a visual inspection of the properties showed Mather’s staircase and deck to a part of the Mather property based on occupancy by the Mathers, but the legal description of “Lot 44 . . . . Excepting Therefrom the North 42 feet” inadvertently had placed Mather’s staircase and deck within the legal description of the retained portion of Lot 44. Nonetheless, Rice went ahead with the transaction and purchased the house and property. It is thus undisputed that Rice had actual knowledge of the existence of the Mathers’ staircase and deck over the boundary line, and that the structure provided the only access to the living quarters, when he purchased the property.
3. Reasonably Necessary
An easement can be implied in the sale or division of property only when it is “reasonably necessary” for the beneficial enjoyment of the quasi-dominant tenement, i.e., the property conveyed. (Tusher, supra, 68 Cal.App.4th at p. 141; Leonard v. Haydon (1980) 110 Cal.App.3d 263, 266 (Leonard).) In this context, “reasonably necessary” does not mean strict necessity. (Owsley v. Hamner (1951) 36 Cal.2d 710, 719; Leonard, supra, 110 Cal.App.3d at pp. 271-272.) Rather, “reasonably necessary” has been construed to mean that the easement sought to be implied is neither “‘absolutely necessary, nor merely convenient’” for the beneficial use of the dominant tenement. (Leonard, supra, 110 Cal.App.3d at p. 272, citing Fischer v. Hendler (1942) 49 Cal.App.2d 319, 322-323.) “‘Mere convenience is insufficient.... The degree of necessity is such merely as renders the easement necessary for the convenient and comfortable enjoyment of the property as it existed when the severance was made. The test of necessity is whether the party claiming the right can, at reasonable cost, create a substitute on his own estate.’” (Navarro v. Paulley (1944) 66 Cal.App.2d 827, 830.)
An implied easement for access to the Mather living quarters, by use of the staircase and deck, was reasonably necessary for the beneficial enjoyment of the Mather property because it is undisputed that the staircase and deck provided the only access to the Mather second floor interior living space. It is also undisputed that Mather intended to rebuild the structure on a smaller footprint than existed, but there is no evidence that they could reconfigure their residence to provide an alternate access to the second floor living space from another area of their property.
Rice asserts there are disputed factual issues as to the “reasonably necessary” issue, and complains that Mather simply offered conclusory, vague, and limited explanations for why the staircase and deck were necessary to the beneficial enjoyment of the land. In his declaration in support of his own motion for summary judgment, however, Rice conceded that he had “no reason to doubt” that “the Deck Structure . . . provides the only access” to the second floor living area” of the Mather house. Such an undisputed fact clearly satisfies the “reasonably necessary” element.
Rice also challenges the trial court’s legal basis for finding an implied easement, and asserts such a finding perverted the classical definition in real property law between ownership and use and excluded him from his own property. In support of this argument, Rice relies on the same cases he presented to the trial court: Harrison v. Welch (2004) 116 Cal.App.4th 1084, Silacci v. Abramson (1996) 45 Cal.App.4th 558, Mehdizaheh v. Mincer (1996) 46 Cal.App.4th 1296, and Raab v. Casper (1975) 51 Cal.App.3d 866. As noted by the trial court, however, these cases address the acquisition of an easement by prescription and are factually distinguishable. (See, e.g., Blackmore v. Powell (2007) 150 Cal.App.4th 1593, 1600-1601 (Blackmore), and cases discussed herein.)
In all the cases relied upon by Rice, “a party who had not demonstrated a title to property through adverse possession contended that he or she had, instead, an exclusive prescriptive easement. In each case, the court rejected the contention, reasoning that the party could not properly acquire what was—under the circumstances—the equivalent of fee ownership, without satisfying the requirements of adverse possession. (Harrison v. Welch, supra, 116 Cal.App.4th at pp. 1090-1094; Kapner v. Meadowlark Ranch Assn. [(2004) 116 Cal.App.4th 1182, 1186-1187]; Mehdizadeh v. Mincer, supra, 46 Cal.App.4th at pp. 1304-1308; Silacci v. Abramson, supra, 45 Cal.App.4th at pp. 562-564; Mesnick v. Caton [(1986) 183 Cal.App.3d 1248, 1260-1262]; Raab v. Casper, supra, 51 Cal.App.3d at pp. 876-878.)” (Blackmore, supra, 150 Cal.App.4th at p. 1601.) Those decisions concern the differences between a right of prescriptive easement and the establishment of fee ownership by proof of adverse possession.
While Mather’s amended complaint sought either an implied or prescriptive easement, the trial court specifically found that an implied easement existed, declined to reach the issue of a prescriptive easement, and held Mather’s alternative request for a prescriptive easement was moot given the existence of the implied easement. We have similarly found that, as a matter of law, an implied easement existed for the Mather’s continued access to the staircase and deck based upon the undisputed facts surrounding Lot 44, and its development and division. The cases relied upon by Rice are clearly inopposite to the implied easement analysis in this case, which has nothing to do with the differences between prescriptive rights and title by adverse possession.
We thus conclude the trial court properly granted Mather’s motion for summary judgment and an implied easement exists as a matter of law.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to Mather.
WE CONCUR: LEVY, J., CORNELL, J.