Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. M68766.
Duffy, J.
This dispute concerns the status of a rural roadway located in Aromas that the parties have called the Corey Road Extension (Extension). The Extension runs to the south of Corey Road, which connects with San Juan Road to the north. All parties rely on Corey Road and the Extension to access their respective properties. Plaintiff and respondent Oetiker Partners owns four parcels, and plaintiffs and respondents Jens Oetiker and Karen Oetiker Pesko own three parcels; plaintiffs’ collective seven parcels are undeveloped and may be generally regarded as located at the southern end of the Extension. Defendants and appellants are the owners of nine parcels that may be generally regarded as located along the Extension between Corey Road and plaintiffs’ parcels. In 2006, plaintiffs sued defendants for an adjudication that the Extension was a “County public road.” After a three-day trial, the court announced from the bench its intended decision in favor of plaintiffs, and judgment was thereafter entered in their favor.
Oetiker Partners, Jens Oetiker and Karen Oetiker Pesko are herein referred to collectively as plaintiffs.
Defendants and appellants are Benito J. Mendoza and Andrea A. Mendoza, husband and wife (the Mendozas); Ronald G. Borba and Cynthia R. Borba, husband and wife (the Borbas); Michael Chojnacki and Maureen Chojnacki, husband and wife (the Chojnackis); Robert L. Smith and Patricia J. Smith, husband and wife (the Smiths); Jerome F. Politzer, Sr., and Beverly R. Politzer, Trustees of the Jerome F. Politzer, Sr., Family Trust dated April 2, 1991 (the Politzers); Michael Theron MacLafferty and Margaret Elaine MacLafferty, husband and wife (the MacLaffertys); and Joseph Salvidar Rodriguez and Delores Kathryn Rodriguez, as Trustees of the Joseph S. and Delores K. Rodriguez 1996 Trust dated March 28, 1996 (the Rodriguezes). Ray Roeder was also named as a defendant; before trial, plaintiffs filed a dismissal with prejudice of the action as against Roeder and as against the Borbas.
Defendants contend that the court erred. They argue that there was no substantial evidence to support the trial court’s conclusion that the Extension was a county road under the theory of implied-in-fact dedication. They assert further that the Extension was not a county road because the County of Monterey (County) never formally accepted it as such. Lastly, defendants contend that the judgment contains an improper description of the Extension because it is not limited to the paved surface of the roadway.
We conclude that there was no error and will therefore affirm.
“We recite the essential relevant facts ‘in the manner most favorable to the judgment, resolving all conflicts and drawing all inferences in favor of respondent. [Citation.]’ [Citation.]” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1233, fn. 2.)
I. Plaintiffs’ Evidence
A. Kurt Oetiker
Kurt Oetiker began acquiring property at the end of the Extension in or about 1972. When he acquired the property, he believed that the Extension was a county road. During his visits to the property over the years, he spoke with his neighbors, the Rodriguezes and the Tripps. The Rodriguezes never told him that they thought the Extension was a private road. No one ever objected to Oetiker’s use of the Extension. It was only after the County Planning Commission approved his application for a subdivision that Oetiker became aware—through the Rodriguezes’ appeal—that they claimed that the Extension was a private road.
B. Karen Oetiker Pesko
Karen Oetiker Pesko, one of the plaintiffs, testified that her father acquired approximately 120 acres of undeveloped property at the end of the Extension in or about 1972. The property consists of seven lots, is zoned residential, and has a minimum lot size of 10 acres. Since about the time of its purchase, the property has been leased out for cattle grazing.
In 1997, Pesko’s family sought County approval for a lot line adjustment to allow for a total of 10 lots. That application was opposed by the Rodriguezes; one of the issues raised in connection with the application was whether the Extension was a county road. Prior to the submission of her family’s application in 1997, Pesko had not heard that there was any issue concerning the status of the Extension.
In a resolution of the County Board of Supervisors (Board) dated July 31, 2001, the Board noted that the County would defer consideration of plaintiffs’ application until an environmental impact report had been completed and plaintiffs had “attempt[ed] to resolve any outstanding disputes with regard to [their] asserted right to use Corey Road to access [their] property, by court action, by appropriate agreements with neighboring and/or affected property owners and legally interested parties, or by any other appropriate legal means.”
For approximately 10 years after her father acquired the property, Pesko and her father visited it every year to fish; the visits would range from a few days to a week. She has visited the property approximately 20 times in toto. Most of the motorists Pesko has observed over the years driving on the Extension were owners of property along the road. Because the Extension was a dead-end road, others using the Extension were either visitors of those property owners or people who were lost.
Pesko has always considered the Extension to be a county road. She became aware through her father that the County maintained the Extension, including the shoulders of the road, and that her father never paid for any such maintenance work.
C. Rita Tripp
Property located near the end of the Extension has been owned by Rita Tripp’s family since 1971. She has always considered the Extension to be a county road. At the time that she and her husband obtained permits to build their home, the maps and permits indicated that the Extension was a county road. Tripp testified that the County maintained the Extension by cutting weeds, removing downed trees, and sealing the road on multiple occasions. She is unaware of anyone ever requesting permission to drive over the Extension.
D. Nancy Tripp Edgin
Since 1995, Nancy Tripp Edgin has lived on property at the end of the Extension next to her sister-in-law, Rita Tripp. Edgin has had a connection with the property since 1971, when her parents purchased it. She has always regarded the Extension as a county road; the County has always maintained it, and she has relied on the County to maintain it.
E. Ron Schalapia
Ron Schalapia, born in 1943, is the grandson of Ralph Corey, the person after whom Corey Road was named. Schalapia lived on property served by Corey Road on and off until 1959. After that he visited the property until the early 1970’s.
When Schalapia first lived in Aromas, the Extension had not yet been built. (The area where the Extension was later built was simply a horse or wagon trail.) Between roughly 1952 and 1954, Ralph Corey made efforts to have the County construct the Extension. The County would not accept a 40-foot right-of-way for the Extension unless all the property owners along it agreed to give a certain amount of their property to widen the road. Property owners “had to move their springs and tanks back... because the road was so narrow.... So there [were] springs along there that had to be dug out, moved back, tanks, water tanks and that was all done,... [¶]... [¶]... The property owners had to... basically put everything back and give the [C]ounty the width of the road.” Shortly after March 1952, the County began building the Extension from the bridge (where Corey Road ended) to the cul-de-sac where a set of brick pillars had been constructed. It was a significant endeavor that involved bulldozing and cutting the banks back, and enlarging and filling the road.
By 1954, the Extension was completed as a gravel road. About two years later, the County chip-sealed the road. The County maintained the Extension, and after it was built, Schalapia always regarded it as being a county road. He never heard any complaints from any property owners about the County maintaining the Extension; it benefited all of the owners.
F. James Riotto
James Riotto, a licensed land surveyor, was employed for approximately 30 years in the County’s Public Works Department, commencing in 1957. He was responsible for maintaining the “vault”—the room that housed the records of the Public Works Department and County surveyor. One of the projects Riotto oversaw was the microfilming of all maps, a project that took nearly eight years to complete. The mapping system includes the “county maintained mileage maps” that reflect all of the county roads maintained by the County.
Riotto was retained by plaintiffs to conduct research of all County records pertaining to Corey Road. One such record Riotto found was a county maintained mileage map from November 1955; that map included Corey Road and the Extension. He also located a map prepared by the County in May 1955 that showed a 60-foot right-of-way for the Extension. Riotto opined that the County would not have prepared such a map for a road that was not a county road.
Riotto identified similar county maintained mileage maps from 1961 and 1989; both maps included Corey Road and the Extension.
Riotto also identified a February 1955 document that made reference to a petition to make Corey Road a part of the County road system and noted that the petition would have been referred to the County road commissioner for preparation of deeds for execution by property owners. He noted that it was his belief that the referenced petition was one submitted by the owners of property in the affected area to have the Extension be made a part of the County road system. It was Riotto’s understanding that the County had accepted the petition because (1) the right of way map would otherwise not have been prepared, and (2) the County either commenced maintaining or continued to maintain the Extension after such acceptance.
Riotto testified that he was unable to locate in the County files either the petition or any signed deeds relative to the Extension; he did locate an original unsigned deed for a 60-foot right-of-way. He noted that it was not uncommon to have unsigned deeds be among County records or to be unable to locate deeds for roads that the County maintains.
Based upon his experience and the records he reviewed, Riotto concluded that the County treated the Extension as a county road and maintained it as such since some time prior to June 1954. He testified further that—based upon various repair logs and other documents generated by the County—the County had been continuing to maintain the Extension up to the present time.
Included among the documents on which Riotto based his opinion was a June 1962 memorandum from the County Road Department indicating, among other things, that the County’s design engineer had noted that the County had been maintaining the Extension for “sometime [sic] prior to 1955.”
G. Ronald Lundquist
Ronald Lundquist is the director of Public Works for the County and has worked for that department since 1973. Public Works is responsible for maintaining all county roads. For as long as Lundquist has been aware, the County has treated the Extension as a county road. The County has continuously maintained the Extension up to two pillars, and has attended to the shoulders of the roadway and drainage pertaining to the road. This maintenance has included the installation of an 18-inch culvert underneath the Extension in 1981. Lundquist also identified several requests for maintenance and repair of the Extension between 1965 and 1998 from residents (including some of the defendants) to which the County responded with some corrective action. He testified that he was unaware of any objection over the years made by any residents to the County’s maintenance of the Extension. Moreover, the County was prohibited from using public funds to maintain private roadways. The County required a minimum of 40 lateral feet to maintain a roadway such as the Extension that was 16 feet wide.
Although the record is not completely clear, it appears that the two pillars described by Lundquist are the remnants of the gate Joseph Rodriguez described in his testimony (recited, post) that he built in approximately 1975, which was situated about 50 to 75 yards to the north of the south end of the Extension.
There were requests to the County for work to be performed on the Extension by defendants Patricia Smith (1991 and 1996), Jerome Politzer (1998), and Maureen Chojnacki (1992).
In 1981, the Board approved a minor subdivision of the Rodriguezes’ parcel, based upon their application that included a map that designated that their access to the property was from “Corey Rd, a county road.” In order to obtain approval of their application, the Rodriguezes were required to show that they had such access to the lot that was the subject of the proposed subdivision. In 1992, the County issued an encroachment permit to the Rodriguezes, allowing them to construct a standard driveway within the Extension to access their property. Such a permit is required whenever a party “wants to build something within the [C]ounty right of way....” In addition, in 1980, the County obtained a surface water drainage release from the Smiths with reference to drainage work to be performed on the Extension. “Any time [the County] change[s] or modif[ies] the drainage on the public right of way, [it has] traditionally required drainage releases from the adjacent property owner where that water is discharged....”
Joseph Rodriguez testified that in his subdivision application, he did not intend to concede that the Extension was a county road.
II. Defendants’ Evidence
A. Joseph Rodriguez
Joseph Rodriguez has lived on property adjacent to the Extension since 1970. In approximately 1975, he, Paul Tripp, and another person installed a gate approximately 50 to 75 yards before the end of the Extension. They installed it because of a concern about strangers driving to the end of the road, the wear and tear that this had on the road, and because Helen Tripp had been burglarized. The gate stayed in place until Helen Tripp’s death in 1995. The County never objected to this gate. Rodriguez testified that the County has chip-sealed the Extension once, filled some potholes, scraped the pavement, and trimmed brush that hung over the blacktop. It did not perform any maintenance of the Extension past the gate.
Corey Road and the Extension have been used primarily by those who live there and by persons who provide service to those residents (e.g., postal workers, propane suppliers, etc.). The roadways have also been used by plaintiffs’ tenant, who uses the Oetiker property for cattle grazing. Rodriguez contends that the Extension is a private road and that he owns that road as it passes over his property. He has told a number of people, including County representatives, that he owns a portion of the Extension; he has indicated to some of the people using it (including plaintiffs’ tenant) that the Extension is a private road and that he was granting them permission to use it. Rodriguez has performed his own maintenance of the Extension, including filling potholes and trimming weeds.
Rodriguez has no written easement or other document giving him permission to access his property by traveling over the Extension from where it commences after the bridge to his property. He has never asked for permission from anyone to use that portion of the Extension.
B. Benito Mendoza
Benito Mendoza has lived on property next to the Extension since 1982. The County’s maintenance of the Extension has been “[v]ery limited.” He had observed the County doing maintenance only twice. The maintenance of the Extension by the County has never extended past the gate by the Tripp property. On one occasion, Mendoza asked County workers not to scrape the side of the embankment next to the Extension on his property, but they continued to do the work. He has done his own maintenance, including the removal of trees blocking the roadway.
Mendoza has never asked for permission to drive over the Extension from where it connects with Corey Road to his property, and no one has ever objected to him driving over that portion of the Extension. He has not objected to people who live to the south of him (i.e., the Tripps, the Politzers, and the Oetikers) using the Extension adjacent to his property to access their properties.
Maureen Chojnacki offered testimony similar to that given by Rodriguez and Mendoza. She testified that she believes the Extension to be a private road, and that during the 24 years that she has lived in Aromas, the County has maintained the Extension only up to the location of the old gate described by Rodriguez. All of Chojnacki’s neighbors to the south have to pass by her property on the Extension; none has asked for permission to drive across her property, and she has never objected to them passing over her property to access their homes to the south.
PROCEDURAL HISTORY
On February 18, 2004, plaintiffs filed an action against defendants for declaratory and injunctive relief, or, in the alternative, to quiet title. Eight of the defendants answered the complaint on May 5, 2004, alleging, among other things, that they were the “owners of the underlying fee title in the [Extension] which claim is adverse to plaintiff[s]. Corey Road is not a public road.” At the same time, those eight defendants cross-complained against plaintiffs and against the County of Monterey (County), alleging, inter alia, that they contended that the Extension was not a county road, while plaintiffs contended that it was a county road and they had the right to use it for purposes of accessing their property. It was alleged further in the cross-complaint that the County contended that the Extension was a public road. On May 26, 2004, the Borbas and Chojnackis filed an answer and cross-complaint similar to the pleadings previously filed by eight of the defendants. The Politzers answered the complaint on December 12, 2005.
In the County’s answer, it admitted that it contended that the Extension was a county road of an uncertain width that was at a minimum of 40 feet wide.
After a three-day court trial that concluded on July 12, 2007, the court announced from the bench its decision in favor of plaintiffs. The court held that there had been an implied dedication of the Extension to the County before 1955, and that therefore the Extension was a county road with a width of 40 feet. Defendants requested a statement of decision. The court entered its statement of decision on October 26, 2007. In it, the court found, inter alia, that the Extension was a county road through implied-in-fact dedication “with a [40-]foot wide road prism.” Judgment was entered on January 28, 2008. Defendants filed a timely notice of appeal from the judgment.
Defendants indicated in their notice of appeal that they challenged both the judgment and the court’s postjudgment order denying their motion to strike and tax costs. Defendants, however, do not address the postjudgment order in their briefs. Accordingly, we deem any challenge to the order forfeited. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4.)
DISCUSSION
I. Issues on Appeal
1. Whether the court erred in concluding that the Extension was a county road.
2. Whether the judgment contains a proper description of the Extension.
II. Whether the Corey Road Extension is a County Road
A. Contentions and Standard of Review
Defendants’ overall position is that the court erred in concluding that the Extension was a county road. They assert that the law does not permit a finding that there was an implied-in-fact dedication as found by the court and that the only way that the Extension could have become a county road was if the County had formally accepted it into the county road system pursuant to section 941 of the Streets and Highways Code. Since no such formal acceptance occurred, defendants argue that the “Extension is not a county road as a matter of law.” Defendants contend further that, even if the court properly found the Extension to be a county road, the judgment contains a description of it that is overly broad in that rather than describing the actual dimensions of the roadway used (approximately 16 feet wide), it uses a 40-foot width.
All statutory references are to the Streets and Highways Code unless otherwise specified.
Plaintiffs respond that there was sufficient evidence supporting the court’s finding that the Extension was a county road by implied-in-fact dedication. They urge that the requirement that an entity formally accept a road into its county road system as provided in section 941 is not applicable here, because that requirement came about through an amendment of that statute effective 1956; the Extension became a county road before that time. Lastly, plaintiffs argue that the form of judgment was proper and that defendants are attempting to “unduly restrict the Extension to simply the paved area.”
Plaintiffs argue that our review of the court’s determination that the Extension was a county road is governed by the substantial evidence standard. It is unclear from defendants’ brief whether they agree with this assertion. Defendants seemingly contend that the court’s decision should be reviewed de novo, arguing that the question of whether the Extension could have become a county road by implied-in-fact dedication is one of law. However, defendants’ opening brief also contains a recitation of general principles concerning the substantial evidence standard; it does not explain how that standard applies to our review of the judgment here.
As we explain, post, whether section 941 required the County’s formal acceptance of the Extension as a county road necessarily involves consideration of the potential retroactive effect to be given to the amendment to that statute. We examine this retroactivity question de novo. (In re Marriage of Fellows (2006) 39 Cal.4th 179, 183: “We review the retroactive application of the statute de novo”].)
It is plain, however, that our review of the court’s finding that the Extension was a county road based upon implied-in-fact dedication is governed by the substantial evidence standard. (Cherokee Valley Farms, Inc. v. Summerville Elementary Sch. Dist. (1973) 30 Cal.App.3d 579, 585 (Cherokee Valley Farms) [existence of “dedication is a question of fact”]; see also id. at p. 586 [substantial evidence to support court’s finding of implied dedication].) As one court has eloquently summarized the substantial evidence standard of review: “ ‘Substantial evidence’ is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value. [Citations.] ‘Substantial evidence... is not synonymous with “any” evidence.’ Instead, it is ‘ “ ‘substantial’ proof of the essentials which the law requires.” ’ [Citations.] The focus is on the quality, rather than the quantity, of the evidence. ‘Very little solid evidence may be “substantial,” while a lot of extremely weak evidence might be “insubstantial.” ’ [Citation.] Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence. [Citations.]... [¶] The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record. [Citation.] ‘A formulation of the substantial evidence rule which stresses the importance of isolated evidence supporting the judgment,... risks misleading the court into abdicating its duty to appraise the whole record.... [Citations.]’ [¶] Substantial evidence is therefore not merely an appellate incantation designed to conjure up an affirmance. To the contrary, it is essential to the integrity of the judicial process that a judgment be supported by evidence that is at least substantial. An appellate court need not ‘blindly seize any evidence... in order to affirm the judgment. The Court of Appeal “was not created... merely to echo the determinations of the trial court. A decision supported by a mere scintilla of evidence need not be affirmed on review.” ’ ” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651-652.)
Although the record must be reviewed in its entirety, “all of the evidence must be examined, but it is not weighed. All of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity, to be accepted by the trier of fact. If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed.” (In re Teel’s Estate (1944) 25 Cal.2d 520, 527.) It is the appellant’s burden to establish that the judgment is not supported by substantial evidence. (In re Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1011.)
B. Applicable Law
The Third District Court of Appeal has presented a summary of the law of dedication useful to us here: “Dedications may occur pursuant to statute or the common law.... [¶] ‘Dedication has been defined as an appropriation of land for some public use, made by the fee owner, and accepted by the public. By virtue of this offer which the fee owner has made, he is precluded from reasserting an exclusive right over the land now used for public purposes. American courts have freely applied this common law doctrine, not only to streets, parks, squares, and commons, but to other places subject to public use. California has been no exception to the general approach of wide application of the doctrine.’ [Citation.] [¶] A common law dedication may be express or implied. Express dedication arises where the owner’s intent to dedicate is manifested in the overt acts of the owner, e.g., by execution of a deed. An implied dedication arises when the evidence supports an attribution of intent to dedicate without the presence of such acts. [Citations.] A dedication is implied in fact when the period of public use is less than the period for prescription and the acts or omissions of the owner afford an implication of actual consent or acquiescence to dedication. [Citation.] A dedication is implied by law when the public use is adverse and exceeds the period for prescription.” (Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810, 820-821, see also Brumbaugh v. County of Imperial (1982) 134 Cal.App.3d 556, 562.)
We are concerned here with implied-in-fact dedication. There are no requisite formalities for implied-in-fact dedication. (Cherokee Valley Farms, supra, 30 Cal.App.3d at p. 584.) “All that is necessary is sufficient evidence that the property owner either expressly or impliedly manifested an unequivocal intention to offer the property for a public purpose and that there was an acceptance of the offer by the public. [Citations.] In each instance the question of whether there has been a dedication is a question of fact [citations], and that intent may be demonstrated in any conceivable way that a person's intention can be shown [citation]. Oftentimes a common law dedication has elements of an estoppel against the property owner in favor of the public arising out of the owner's failure to object to acts or events which indicate his implied intent to dedicate his property. [Citations.] The intention to dedicate need not be evidenced by express words or documents; it can be manifested by the acts or conduct of the property owner, including his knowing acquiescence in the long and open public use of the property, from which conduct or acquiescence the court can presume that he intended to offer his property for dedication.” (Id. at pp. 584-585.)
Plaintiffs expressly abandoned at trial their claim that the Extension became a county road through implied-in-law dedication. Although plaintiffs argued at trial that there was an express dedication, they do not repeat that argument here.
C. Finding that Extension was County Road
1. Applicability of section 941
In Union Transp. Co. v. Sacramento County (1954) 42 Cal.2d 235, the Supreme Court addressed a claim for property damage by a trucking company and cattle owners that arose out of the collapse of a bridge located near the boundary line between two counties. It was uncertain who constructed the bridge, but the road leading up to it had been used by neighboring ranchers and the public in general, and the road had been maintained and improved with county-owned equipment. (Id. at p. 238.) In reversing the trial court’s granting of the counties’ nonsuit motions, the high court concluded that the evidence supported a determination of both implied-in-fact and implied-in-law dedication of the road and bridge. (Id. at p. 241.) And the court held that “no formal act of acceptance [by the county] is necessary. Any action of the responsible public officials showing an assumption of control over the road is a sufficient recognition of the road as a public highway. [Citation.] In the present case, there is evidence that [the County of] El Dorado’s superintendent of roads dispatched road equipment to that section of the road with instructions to the operator to make repairs on it. Although the records shows [sic] that no repairs were made, the action of the superintendent in assuming control of the road reasonably supports an inference that the county impliedly had accepted the dedication.” (Id. at p. 244.)
This holding of Union Transp. Co. v. Sacramento County, supra, 42 Cal.2d 235, was “nullified by 1955 legislation” that amended section 941. (Benitez v. City and County of San Francisco (1978) 77 Cal.App.3d 918, 921 (Benitez); see Stats. 1955, ch. 1219, p. 2232, § 2.) “At the time Union Transportation was decided, section 941 read as follows: ‘Boards of supervisors shall by proper order cause those highways which are necessary to public convenience to be established, recorded, constructed, and maintained in the manner provided in this division.’ During the next legislative session, in 1955, the Legislature amended section 941 to add a second paragraph which reads: ‘No public or private road shall become a county highway until and unless the board of supervisors, by appropriate resolution, has caused said road to be accepted into the county road system; nor shall any county be held liable for failure to maintain any road unless and until it has been accepted into the county road system by resolution of the board of supervisors.’ ” (Benitez, supra, at p. 921.) Substantially the same language appears today in subdivision (b) of section 941.
“No public or private road shall become a county highway until and unless the board of supervisors, or its designee, by appropriate action, has caused the road to be accepted into the county road system. No county shall be held liable for failure to maintain any road unless and until it has been accepted into the county road system by action of the board of supervisors or its designee.” (§ 941, subd. (b).)
As we discuss, post, there was substantial evidence to support a finding that the Extension became a county road prior to the September 7, 1955 effective date of the amendment to section 941. (See stats. 1955, ch. 1219, § 2, pp. 2231-2232.) Thus, in order for us to conclude that the Extension as a matter of law did not become a county road through implied-in-fact dedication, we would be required to find that the 1955 amendment to section 941 applied retroactively, an argument advanced by defendants in their reply brief.
Our high court has explained principles of retroactivity in statutory construction as follows: “Generally, statutes operate prospectively only. In the words of section 3 of California’s Civil Code: ‘No part of [this code] is retroactive, unless expressly so declared.’ (Italics added.)... We explained in Evangelatos [v. Superior Court (1988) 44 Cal.3d [1188, 1207]: ‘ “ ‘[T]he first rule of [statutory] construction is that legislation must be considered as addressed to the future, not to the past.... The rule has been expressed in varying degrees of strength but always of one import, that a retrospective operation will not be given to a statute which interferes with antecedent rights... unless such be “the unequivocal and inflexible import of the terms, and the manifest intention of the legislature.” ’ ” ’ [Citations.] In the words of the United States Supreme Court, ‘the “principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.” ’ [Citations.]” (Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 840-841.) And “ ‘a statute that is ambiguous with respect to retroactive application is construed... to be unambiguously prospective.’ [Citations.]” (Id. at p. 841.)
Here, defendants point to nothing in the 1955 amendment to the statute or in the legislative history that suggests that the amendment was intended to take retroactive effect. Therefore, based upon the principles cited above strongly favoring prospective application of statutes—namely, the rule that “in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application” (Evangelatos, supra, 44 Cal.3d at p. 1209)—we hold that the 1955 amendment to section 941 operated prospectively only. Therefore, if the Extension became a county road through implied-in-fact dedication prior to the 1955 amendment becoming effective, that amendment, contrary to defendants’ assertions, has no application here. (See Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 298 (Western Aggregates) [enactment of 1955 amendment to section 941 to abrogate in part Union Transp. Co. v. Sacramento County, supra, 42 Cal.2d 235 “did not invalidate existing roads”]; cf. Burch v. Gombos (2000) 82 Cal.App.4th 352, 361, fn. 12 [enactment of Civ. Code, § 1009 and amendment to Civ. Code, § 813 to largely abrogate holding of Gion v. City of Santa Cruz (1970) 2 Cal.3d 29 concerning criteria for implied dedication operated prospectively].)
2. Evidence supporting judgment
There was testimony, principally from two witnesses (Schalapia and Riotto), supporting plaintiffs’ claim that there was an implied-in-fact dedication of the Extension prior to the effective date of the 1955 amendment to section 941. Schalapia—the grandson of the person after whom Corey Road was named and the only witness at trial who resided in Aromas in the 1940’s and 1950’s—testified that Ralph Corey attempted to have the County build the Extension in the early 1950’s. The County required that the owners give up portions of their property in order to widen the road. Schalapia testified that construction of the Extension commenced shortly after March 1952, and that a gravel road was completed by 1954. Schalapia described this construction as a significant endeavor that required bulldozing and cutting the banks back, and enlarging and filling the road. It necessitated the property owners’ relocation of their springs and tanks to accommodate the width of the road. Schalapia testified that the County maintained the Extension, and after it was built, he always regarded it as being a county road. (See 10 Cal. Real Estate Law & Practice (2009) Dedication, § 361.13[3], p. 361-32 [informal acceptance of dedication usually shown by entity’s “maintenance and repair work”].) It benefited all of the owners, and he was unaware of any complaints from property owners about the County maintaining the Extension. (Cf. Gion v. City of Santa Cruz, supra, 2 Cal.3d at p. 39 [reliance by users on entity to maintain land significant factor in finding implied dedication].)
Riotto—a licensed land surveyor and a former County employee with 30 years of experience in dealing with Public Works Department records, including maps of county roads—testified that the Extension was included in county maintained mileage maps as early as 1955. Although the map prepared by the state was dated November 1955 (slightly after the effective date of the amendment to section 941), it was based upon County information that included a May 1955 Board of Supervisors’ resolution identifying the mileage of roads the County maintained. Riotto also identified a map prepared by the County in May 1955 that showed a 60-foot right-of-way for the Extension. It was his opinion that the County would not have prepared such a map for a road that was not a county road. From his review of the records, Riotto concluded that the County treated the Extension as a county road and maintained it as such since some time prior to June 1954 to the present.
In addition to the above evidence supporting the court’s conclusion that there was an implied-in-fact dedication of the Extension, there was other testimony concerning an attempted express dedication. Riotto identified a February 1955 document referring to a petition to make Corey Road a part of the county road system. He testified that he believed the petition had been submitted by the owners of property in the affected area to have the Extension be made a part of the county road system. Although there was some evidence that the owners failed to sign a deed formalizing the dedication, this evidence of an imperfect express dedication may nonetheless be considered here. It has long been the law that evidence, although insufficient to serve as a basis for a finding of express dedication, may serve as a foundation for an implied dedication finding. (People v. County of Marin (1894) 103 Cal. 223, 229.) “The rule is that ‘an incomplete or defective statutory dedication, or an ineffectual attempt to make a statutory dedication, will, when accepted by the public... operate as a common law dedication.’ [Citation.] The California Supreme Court has applied this rule. [Citations.]” (Hanshaw v. Long Valley Road Assn. (2004) 116 Cal.App.4th 471, 477.)
There was thus evidence of the owners’ intention to dedicate, including Ralph Corey’s efforts to convince the County to build the Extension; the owners’ ceding property to the County necessary to widen the road; the owners’ efforts to move tanks and springs to facilitate the County’s construction of the Extension; the owners’ petition to the County to have the Extension be made a part of the county road system; and acceptance of the benefits of, and acquiescence in, the County’s expenditure of time and money to construct and maintain the Extension. Likewise, there was evidence of an acceptance of this offer to dedicate property, including the County’s expenditure of funds to construct the Extension; periodic maintenance and repair of the roadway; and inclusion of the Extension in the county maintained mileage maps. (See Western Aggregates, supra, 101 Cal.App.4th at p. 298 [dedication inferred from entity’s repair of road and its depiction on official maps]; Cherokee Valley Farms, supra, 30 Cal.App.3d at p. 586 [implied dedication found where reasonable inference was that public funds would not have been invested unless entity owned property upon which improvement was built]; Washington Blvd. Beach Co. v. City of Los Angeles (1940) 38 Cal.App.2d 135 [implied dedication found from owner’s acceptance of benefits, mapping of area as public park, and expenditure of public funds to develop and maintain area].)
From the evidence discussed above therefore, the court could have reasonably found that there was an intention on the part of the property owners to dedicate portions of their land necessary to construct the Extension and “an acceptance of the offer by the public [i.e., the County].” (Cherokee Valley Farms, supra, 30 Cal.App.3d at pp. 584-585.) There was sufficient evidence to support the court’s finding that the Extension was a county road through implied-in-fact dedication.
Defendants rely on Cushman v. Davis (1978) 80 Cal.App.3d 731 in support of their contention that there was no implied dedication, claiming that the case is “quite similar” to this one. In Cushman, the plaintiff attempted to subdivide his 16-acre parcel for residential purposes and claimed easement rights to a private road on his neighbor’s property in order to access a public street; that claim was based upon annual use of the road five times in February and five times in July solely for bringing in equipment to spray and harvest his apricot orchard. (Id. at p. 734.) The case concerned whether the easement rights urged by the plaintiff constituted an unreasonable burden upon the servient tenement (the defendants’ property). The trial court held that the plaintiff’s prescriptive easement rights were limited to those of his predecessor (ibid.), and the appellate court affirmed. The case involved prescriptive easement rights and did not involve issues of implied dedication. Moreover, unlike here, in Cushman, there was no governmental involvement in the private road in question. “Use by others was only occasional, improvement and maintenance was by [the defendants] and other private persons, no governmental activity was involved, and [the defendants] tried to control usage.” (Id. at p. 737.) Cushman therefore does not suggest a different result in the case before us.
D. Description of Extension in Judgment
Defendants object to what they describe as “the trial court [having] created” a county road with a 40-foot width, rather than describing in the judgment the actual width of the Extension—approximately 16 feet. Defendants also argue that it was improper for the court to utilize exhibits depicting the county road as attachments to the judgment, because those documents were never introduced at trial. We reject these challenges.
There was substantial evidence supporting the court’s description of the Extension as having a 40-foot width. This evidence included testimony that at the time Ralph Corey was attempting to persuade the County to develop the road in the early 1950’s, the County would not accept a right-of-way for the Extension at a dimension of 40 feet in width unless all of the owners agreed to give up a certain amount of their property to widen the road; the owners in fact moved their tanks and springs in order to accommodate the County’s development of the road; the County’s subsequent maintenance of the Extension was not limited to the roadway itself, but included the shoulders as well; and the maps prepared by the County designating the Extension as a county road were not limited to the 16-foot width of the roadway itself, but gave a dimension of the right-of-way of 40 feet or more.
Moreover, it is reasonable that the description of the county road in the judgment include a width greater than the 16-foot paved area itself. Lundquist testified that the County requires a minimum of 40 lateral feet to maintain a 16-foot wide roadway such as the Extension here. The rights inherent in the use of public roadways must necessarily include “ ‘the incidental right in the public to do all acts necessary to keep it in repair.’ [Citation.]” (Smith v. City of San Luis Obisbo (1892) 95 Cal. 463, 469.) Further, “the dedicator is presumed to have intended the property to be used in such way by the public as will be most convenient and comfortable, and according to not only the proprieties and usages known at the time of the dedication, but also to those justified by lapse of time and change of conditions.” (Wattson v. Eldridge (1929) 207 Cal. 314, 320; see also Hays v. Vanek (1989) 217 Cal.App.3d 271, 284-286 [holding that entire width of road was impliedly dedicated to public use, notwithstanding fact that a much narrower width was actually traveled on by public].)
Furthermore, we reject defendants’ claim of error based upon the fact that the exhibits to the judgment were not introduced at trial. Defendants’ do not specifically challenge the accuracy of the physical descriptions in the exhibits, beyond the simple assertion that the court should have limited the width of the county road to 16 feet. As noted, there was substantial evidence that the width of the Extension impliedly dedicated was 40 feet. It was therefore appropriate for the court to include a physical description of the county road in the judgment by reference to exhibits A and B.
Defendants quote at length from Western Aggregates, supra, 101 Cal.App.4th at pages 306-307 in support of their claim of error. There, the court held that a remand was necessary because of the trial court’s failure to specifically describe the metes and bounds of the subject roadway. (Id. at p. 306.) No such problem presents itself here, and we disagree with defendants that Western Aggregates suggests that the court erred here in its description of the Extension in the judgment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Mihara, Acting P.J., McAdams, J.