Opinion
G054519
07-27-2018
TOBIE MAZZIE, JR., as Trustee, etc., Plaintiff and Appellant, v. PATRICK R. BOYD et al., Defendants and Respondents.
Grant, Genovese & Baratta, David C. Grant and Ronald V. Larson for Plaintiff and Appellant. Raines Feldman and John S. Cha for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2011-00524359) OPINION Appeal from a judgment of the Superior Court of Orange County, Craig L. Griffin, Judge. Affirmed. Grant, Genovese & Baratta, David C. Grant and Ronald V. Larson for Plaintiff and Appellant. Raines Feldman and John S. Cha for Defendant and Respondent.
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INTRODUCTION
Good fences make good neighbors. Good fences that encroach on easements, however, make litigious neighbors.
Tobie Mazzie, Jr., the trustee of the Tobie Mazzie, Jr., Living Trust (Mazzie), owns a parcel of real property, as well as an easement on the adjoining parcel for access to his own parcel for purposes of building maintenance and planting. Patrick Boyd, the owner of the adjoining parcel on which the easement lies, developed his property in a way that obstructs Mazzie's easement. After a bench trial, the court found that the easement still existed, but had been relocated. The trial court's judgment also sets forth certain terms, conditions, and guidelines on the use of the easement. On appeal, Mazzie argues the trial court erred in adding these terms, conditions, and guidelines to the easement.
Lot 17 is owned by both Patrick Boyd and Kamaryn Tanner. For ease of reference, we will refer to Boyd and Tanner collectively as Boyd, as did the parties in their appellate briefs.
We conclude the doctrine of invited error precludes Mazzie from challenging the judgment's terms, conditions, and guidelines because the proposed judgment that Mazzie submitted to the trial court included the terms which he now claims the trial court erred by including in the judgment.
Even if Mazzie's claims on appeal were not barred by the doctrine of invited error, we would find no error in the terms, conditions, and guidelines on the easement included in the judgment. These terms set forth existing law regarding the rule of reasonableness in the use of easements.
Therefore, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Mazzie and Boyd own adjoining parcels of real property in Laguna Beach, California. Mazzie's property is referred to as Lot 16, and Boyd's property is referred to as Lot 17. Mazzie purchased Lot 16 in 2009; the grant deed includes an appurtenant easement over the westerly two feet of Lot 17 "for ingress and egress only for the maintenance of building structure and planting on Lot 16." Mazzie then discovered that his access to the easement on Lot 17 was obstructed by improvements constructed by Boyd. Boyd contended that he had obtained the express oral consent of the previous property owner, Gilbert Brown, before constructing the improvements. There was no evidence, however, that Brown intended to be permanently barred from entering onto Lot 17 to use the easement.
In full, the language of the easement in the grant deeds reads as follows: "A non-exclusive easement for ingress and egress over and across the following described portions of Lot 17, as shown on a licensed surveyor's map of a portion of Lot 5, Section 5, Township 8 South, Range 8 West, San Bernardino Base and Meridian, Book 4, page 7, of record of surveys of said Orange County; [¶] (a) The westerly 2 feet of the Northerly 80 feet of said lot for ingress and egress only for the maintenance of building structure and planting on Lot 16 of said licensed surveyor's map. [¶] (b) A 3 foot wide easement over the Southerly 15 feet of said lot for purposes of ingress and egress to and from Lot 16 and Lot C and the Pacific Ocean, as shown on said licensed surveyor's map."
Mazzie sued Boyd to quiet title, for ejectment, and for injunctive and declaratory relief, all in connection with his right to use of the easement. Boyd filed a cross-complaint against Mazzie to quiet title, for ejectment, and for injunctive and declaratory relief, claiming that the structure on Lot 16 encroached on Lot 17.
A one-day bench trial was held. A title officer testified that, based on the chain of title on Lot 16, Lot 17 was burdened by an easement owned by the owner of Lot 16. The title officer also testified that he understood an easement to be a nonpossessory interest in the property of another person. A property surveyor testified that improvements on Lot 17 made Lot 16's easement on Lot 17 inaccessible and/or unusable. Mazzie testified he was unable to use the easement for its express purpose, and maintenance workers and equipment were therefore required to come through his house. Mazzie had asked Boyd to remove the improvements that impaired the easement, but Boyd refused to do so. Boyd testified he never knew about the easement. The easement did not appear on the chain of title for Lot 17. Brown had never mentioned it to Boyd. Brown had verbally consented to the improvements on Boyd's property, Lot 17.
At the conclusion of the trial, Mazzie's counsel requested a statement of decision. The court issued a tentative ruling and proposed statement of decision. The court's statement of decision found: (1) Mazzie's easement on Lot 17 had not been extinguished, but was relocated due to Boyd's construction of improvements on the easement with the consent of the former owner of Lot 16; (2) the parties must agree on guidelines that would allow Mazzie to use the easement for its intended purpose without interfering with Boyd's right to privacy and use of Lot 17; and (3) the encroachment of the Lot 16 structure on Lot 17 was "minuscule," and balancing of the respective harms required the court to deny Boyd's request for injunctive relief and grant Lot 16 an equitable easement over Lot 17.
Mazzie submitted a proposed judgment, to which Boyd filed objections. The trial court thereafter entered a final judgment, reading in relevant part as follows:
"4. On the operative Second Amended Complaint filed on or about August 7, 2014, by Mazzie against Boyd and Tanner, the 'two foot ingress and egress easement for building and planting maintenance purposes' in favor of Lot 16 and against Lot 17 is not extinguished but is relocated to 'the stairways and walkways constructed' between Lot 16 and Lot 17, which is legally described and depicted in Exhibit 'A' and 'B' attached hereto.
"5. Use of the relocated easement described in paragraph 4 above shall be on the following terms and conditions:
"A. Use of the easement shall be in a manner so as to impose as slight a burden on Lot 17 as possible;
"B. Mazzie and/or his agents will be responsible for any damage, litter, or any other harm to any part of Lot 17 caused by their use of the easement;
"C. Boyd and Tanner will install a gate at the lower part of the easement such that Mazzie, his gardener, contractor, their agents and/or such other persons consistent with the purpose of the easement, has access to Lot 16 to use the easement consistent with the purpose of the easement;
"D. With regard to the use of any locking device on any gate to be constructed, Boyd and Tanner, including any tenant of Lot 17, shall arrange for an employee to unlock and close up on a regular schedule as agreed or in the future install electronic locks that allow access as agreed;
"E. Use of the easement shall be subject to reasonable guidelines, the purpose and intent of which are to ensure that the easement is utilized and accessed in a manner that does not interfere with the privacy and enjoyment of Lot 17's occupants. These guidelines include, but are not limited to, the following:
"a. Boyd and Tanner will provide weekly access to Mazzie's gardener on a date and time reasonably proposed by Mazzie on 7 days' notice by email to Boyd, to start no earlier than 10:00 a.m. and finish no later than 4:45 p.m. Mazzie may request changes to the regularly scheduled access as necessary to accommodate a new gardener's regular schedule on 7 days' notice by email to Boyd; and
"b. Mazzie will provide 7 days' email notice for proposed unscheduled gardener or contractor access during weekday hours."
The judgment provided that Boyd should take nothing on the cross-complaint, the request for an injunction seeking the removal of the encroaching portion of the structure on Lot 17 was denied, Lot 16 was granted an equitable easement on Lot 17, and Boyd was awarded no damages for the encroachment. There is no challenge on appeal to this portion of the judgment.
Mazzie filed a notice of appeal. On appeal, Mazzie does not challenge the finding that the easement was relocated and not extinguished; Mazzie only appeals from the trial court's addition of new terms, conditions, and guidelines to the easement.
DISCUSSION
1. Creation of the Easement
"'An easement is an interest in the land of another, which entitles the owner of the easement to a limited use or enjoyment of the other's land. [Citations.] [¶] An easement creates a nonpossessory right to enter and use land in another's possession and obligates the possessor not to interfere with the uses authorized by the easement. [Citation.]' [Citation.] . . . [¶] . . . [¶] An easement for a particular purpose does not include any other uses. [Citation.] 'Where the easement is founded upon a grant, as here, only those interests expressed in the grant and those necessarily incident thereto pass from the owner of the fee. The general rule is clearly established that, despite the granting of an easement, the owner of the servient tenement may make any use of the land that does not interfere unreasonably with the easement. [Citations.] It is not necessary for him to make any reservation to protect his interests in the land, for what he does not convey, he still retains. [Citation.] Furthermore, since he retains the right to use the land reasonably himself, he retains also the power to transfer these rights to third persons. [Citations.]'" (Main Street Plaza v. Cartwright & Main, LLC (2011) 194 Cal.App.4th 1044, 1053-1055.)
In this case, the easement was created by deed. The deed provides that the easement is "for ingress and egress only for the maintenance of building structure and planting on Lot 16." "'It is fundamental that the language of a grant of an easement determines the scope of the easement.' [Citation.] [¶] 'Grants are to be interpreted in like manner with contracts in general . . . .' [Citation.] 'The interpretation of a written instrument, even though it involves what might properly be called questions of fact [citation], is essentially a judicial function to be exercised according to the generally accepted canons of interpretation so that the purposes of the instrument may be given effect.' [Citation.] 'Accordingly, "[a]n appellate court is not bound by a construction of the contract based solely upon the terms of the written instrument without the aid of evidence [citations], where there is no conflict in the evidence [citations], or a determination has been made upon incompetent evidence . . . ."' [Citation.] [¶] 'The task of the reviewing court has been described as placing itself in the position of the contracting parties in order to ascertain their intent at the time of the grant. [Citation.] If the intent of the parties can be derived from the plain meaning of the words used in the deed, the court need not, and should not, resort to technical rules of construction.' [Citation.] Similarly, '[i]f the language is clear and explicit in the conveyance, there is no occasion for the use of parol evidence to show the nature and extent of the rights acquired.'" (Schmidt v. Bank of America, N.A. (2014) 223 Cal.App.4th 1489, 1499-1500.)
2. Relocation of the Easement
"Parties may change the location of an easement by mutual consent, which may be implied from use and acquiescence. [Citations.] When the parties consent to relocation, their 'rights are not affected by the change, but attach to the new location. [Citation.]' [Citation.] Whether parties have impliedly consented to relocate an easement is a question of fact." (Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 352.)
Here, there is no dispute that Boyd and Brown consented to the relocation of the easement. The easement now lies over "the stairways and walkways constructed between Lot 16 and Lot 17."
3. Use of the Easement
"'The rights and duties between the owner of an easement and the owner of the servient tenement . . . are correlative. Each is required to respect the rights of the other. Neither party can conduct activities or place obstructions on the property that unreasonably interfere with the other party's use of the property. In this respect, there are no absolute rules of conduct. The responsibility of each party to the other and the "reasonableness" of use of the property depends on the nature of the easement, its method of creation, and the facts and circumstances surrounding the transaction.'" (Dolnikov v. Ekizian (2013) 222 Cal.App.4th 419, 428-429.) In this case, therefore, Boyd cannot take any action that would unreasonably affect Mazzie's ability to use the easement, and Mazzie cannot use the easement in such a way as to unreasonably interfere with Boyd's use of his own property.
"[O]wners of the servient tenement may not use their property in a way that obstructs the normal use of the easement. Any use of the servient estate that results in an unreasonable interference with the easement's purpose is prohibited. (28 Cal.Jur.3d (2018) Easements & Licenses in Real Property, § 58, pp. 216-217, fns. omitted.) "'Whether a particular use by the servient owner of land subject to an easement is an unreasonable interference with the rights of the dominant owner is a question of fact for the trier of fact,' whose findings are binding upon the appellate court if properly supported by the evidence." (Blackmore v. Powell (2007) 150 Cal.App.4th 1593, 1599.)
In determining the reasonableness of Mazzie's use of the easement, and of Boyd's restrictions on Mazzie's use of the easement, we must take into account the following facts specific to this case. Mazzie's easement runs over residential real property, and, in fact, is adjacent to Boyd's residence for much of its length. The rule of reasonableness requires limits on when the easement can be used in order to protect Boyd's privacy and enjoyment of his own property. Further, Lots 16 and 17 (and thus the easement on Lot 17) are located in an urban/suburban area that is a popular tourist destination. The safety and security of Lots 16 and 17, and the persons residing thereon, are of paramount importance to all parties, and the easement cannot be used in a way that would compromise that safety and security. While an easement over land in a different setting might include the right to use the easement at any time of the day or night, or might prevent the servient tenement holder from erecting any type of locking gate or fence, the rule of reasonableness requires a different result here.
4. The Terms, Conditions, and Guidelines of the Easement and the Doctrine of Invited Error.
Mazzie contends on appeal that the trial court did not have the authority to add terms, conditions, and guidelines to the use of the easement. If the trial court erred by adding terms, conditions, and guidelines to the easement, the error was invited by Mazzie. "The invited error doctrine is an application of the estoppel principle that where a party by his or her conduct induces the commission of error, he or she is estopped from asserting it as a ground for reversal on appeal." (Pioneer Construction, Inc. v. Global Investment Corp. (2011) 202 Cal.App.4th 161, 169; see Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212-213.) The purpose of the invited error doctrine is to "prevent a party from misleading the trial court and then profiting therefrom in the appellate court." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.)
After the bench trial, the trial court ordered Mazzie to prepare the judgment. In doing so, Mazzie did not object to the inclusion of terms, conditions, and guidelines in the judgment that would affect the easement. To the contrary, the majority of the terms, conditions, and guidelines applicable to the easement in the judgment were proposed by Mazzie. Only term 5.B., regarding Mazzie's responsibility for damage, litter, or harm to Lot 17 caused by the use of the easement by Mazzie or his agents, is a term Mazzie did not propose in some form. (As explained post, that term is proper.)
Even if the doctrine of invited error did not apply here, the terms, conditions, and guidelines included in the judgment are not necessarily improper. As noted ante, the use of the easement by Mazzie must be reasonable, and any actions taken by Boyd that might affect the use of the easement must also be reasonable. We conclude that the terms, conditions, and guidelines included in the judgment are the trial court's findings of the reasonable uses of and unreasonable interferences with the easement, and review them to determine whether they are properly supported by the evidence. (Blackmore v. Powell, supra, 150 Cal.App.4th at p. 1599.)
On appeal, Mazzie challenges term 5.B., which provides: "Mazzie and/or his agents will be responsible for any damage, litter, or any other harm to any part of Lot 17 caused by their use of the easement." That term is consistent with the law that the owner of the dominant tenement must use the easement so as to cause as little impairment as possible to the servient tenement. (Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 356, fn. 17; North Fork Water Co. v. Edwards (1898) 121 Cal. 662, 666 ["The burden of the dominant tenement cannot be enlarged to the manifest injury of the servient estate by any alteration in the mode of enjoying the former. The owner cannot commit a trespass upon the servient tenement beyond the limits fixed by the grant or use"]; Baker v. Pierce (1950) 100 Cal.App.2d 224, 227 [easement owner cut down trees on the easement; servient tenement owner was entitled to damage to his entire property caused by loss of trees and shade].)
Mazzie also challenges term 5.D., regarding the use of a locking device on a gate between Lots 16 and 17: "With regard to the use of any locking device on any gate to be constructed, Boyd and Tanner, including any tenant of Lot 17, shall arrange for an employee to unlock and close up on a regular schedule as agreed or in the future install electronic locks that allow access as agreed." (We note that Mazzie does not object to term 5.C., requiring Boyd to install a gate between the properties.) We conclude term 5.D. does not create an unreasonable interference with Mazzie's use of the easement. Mazzie suggests that this term places his access to the easement "at the mercy of an employee of the current servient tenant." It would be unreasonable not to have some sort of security attached to the gates providing access to the easement. Mazzie expresses concern that he will be unable to use the easement "if the employee is late or does not show." Certainly, Boyd's failure to provide Mazzie with access to the easement would be a violation of the easement right entitling Mazzie to obtain damages and/or modification of the judgment.
As to the use of a locking device on the gate, Mazzie's proposed judgment provided: "With regard to the use of any locking device on any gate to be constructed, Boyd and Tanner, including any tenant of Lot 17, shall immediately provide Mazzie with the key, combination or other such means of unlocking the gate so that Mazzie, his gardener, contractor, their agents and/or such other persons consistent with the purpose of the easement, always has the ability to unlock any such locking device to gain reasonable access to Lot 16 to use the easement consistent with the purpose of the easement."
Mazzie also challenges term 5.E., which sets the times during which Mazzie and his agents may use the easement, namely: "a. Boyd and Tanner will provide weekly access to Mazzie's gardener on a date and time reasonably proposed by Mazzie on 7 days' notice by email to Boyd, to start no earlier than 10:00 a.m. and finish no later than 4:45 p.m. Mazzie may request changes to the regularly scheduled access as necessary to accommodate a new gardener's regular schedule on 7 days' notice by email to Boyd; and [¶] b. Mazzie will provide 7 days' email notice for proposed unscheduled gardener or contractor access during weekday hours." Mazzie claims these terms interfere with his use of the easement because a weekly restriction is unreasonable for most maintenance projects, and because Boyd might not respond to e-mail requests for access to the easement. The terms included in the trial court's judgment specifically grant weekly access for regular gardening services, and allow access for additional gardening or other contractor services with reasonable notice. While the judgment does not address the issue of emergency situations, the rule of reasonableness would require that Mazzie attempt to alert Boyd, and that Boyd provide access to the easement to Mazzie and his employees and contractors in the event of an emergency.
With regard to the times at which the easement may be used, Mazzie's proposed judgment provided: "a. Reasonable use of the easement shall be any day of the week between the hours of 7:30 a.m. and 6:00 p.m., and use of the easement beyond the hours set forth above shall be reasonable depending on the circumstances; [¶] b. In the event of an emergency and/or exigent circumstances, use of the easement shall be permitted upon giving notice within a reasonable time period via telephone, email or any reasonable means of communication." --------
The terms, conditions, and guidelines in the judgment are specifications of the rule of reasonableness that applies to the use of all easements owned by an individual over the property of another individual. They do not impermissibly restrict Mazzie's use of the easement.
DISPOSITION
The judgment is affirmed. Respondents to recover costs on appeal.
FYBEL, ACTING P. J. WE CONCUR: THOMPSON, J. GOETHALS, J.