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Sharp v. City of San Diego

California Court of Appeals, Fourth District, First Division
Apr 28, 2009
No. D052315 (Cal. Ct. App. Apr. 28, 2009)

Opinion


TERI L. SHARP, Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant and Respondent. D052315 California Court of Appeal, Fourth District, First Division April 28, 2009

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. GIC862393, Luis R. Vargas, Judge. Affirmed.

McCONNELL, P. J.

Teri L. Sharp appeals a judgment in favor of the City of San Diego (the City) in her action to quiet title to a public easement over her property on the ground the City abandoned it through nonuse. As a matter of law, however, a public agency cannot abandon a public easement through nonuse. Rather, it may vacate a public easement only through adhering to statutory procedures, which it did not do here. Accordingly, we affirm the judgment.

BACKGROUND

In March 2004 Sharp purchased a home located on Argonne Street in San Diego. The home is part of a residential subdivision the City approved in 1966. The map for the subdivision granted the City an easement "with the right of ingress and egress for the construction and maintenance of drainage, sewer, and the walkway, and further grant the right of public usage of the walkway, all as shown on this map within this subdivision." The City formally accepted the easement, and the map contains a notation that the San Diego County Recorder accepted it for recordation on April 4, 1966. In August 1968, a notice of completion and acceptance of the subdivision was recorded.

Sharp's property abuts an open space canyon that is part of the Marian Bear Memorial Park. The public easement passes over a portion of Sharp's property and provides public access to the canyon and park. Before closing escrow she had notice of the easement.

In March 2006 Sharp sued the City to quiet title to the easement on the ground the City had abandoned it through nonuse. After a bench trial, the court found the City has neither abandoned the easement nor vacated it pursuant to the procedure set forth in Streets and Highways Code section 8300 et seq., and the "right of public usage of the easement area remains in full force and effect."

DISCUSSION

Sharp contends the trial court erred by not relying on Civil Code section 887.050 in determining whether the City has abandoned the public easement. Civil Code section 887.050, subdivision (a) provides that "an easement is abandoned if all of the following conditions are satisfied for a period of 20 years immediately preceding commencement of the action to establish abandonment of the easement: [¶] (1) The easement is not used at any time. [¶] (2) No separate property tax assessment is made of the easement or, if made, no taxes are paid on the assessment. [¶] (3) No instrument creating, reserving, transferring, or otherwise evidencing the easement is recorded."

Sharp asserts the evidence shows the easement was not used for the 20 years preceding the filing of her quiet title action. She also claims there is "no recorded instrument evidencing the easement with[in] 20 years of filing the claim for abandonment," and there was no separate tax bill on the property over which the easement runs. There is evidence, however, that the easement was duly recorded in 1966. Further, Sharp testified that she saw three persons in the easement after she purchased her property in 2004. A declaration the City submitted by a person who lived in Sharp's neighborhood stated he used the easement walkway and went "all the way to the bottom of the canyon about three years ago," although the "trail was overgrown with weeds." Sharp contends the use of the easement "should consist of regular crossings by the public," but she cites no supporting authority. The statute provides that the easement has not been used "at any time." (Civ. Code, § 887.050, subd. (a)(1).)

In any event, the evidentiary showing is immaterial. Civil Code section 887.050 is inapplicable because as a matter of law the City cannot abandon the easement through nonuse. "[M]any authorities hold that property once dedicated, set apart, or held for a public use cannot be acquired by a private owner by adverse possession, even while its public use may be discontinued. [Citations.] [¶] To effect an abandonment or an easement of public use of property acquired by grant to the public authorities, the intention to abandon must be clearly manifest. Mere nonuser of an easement acquired by grant does not amount to an abandonment." (Humboldt County v. Van Duzer (1920) 48 Cal.App. 640, 644, italics added; San Diego County v. California Water & Telephone Co. (1947) 30 Cal.2d 817, 823 ["The cases are apparently uniform to the effect that, if the Legislature has provided a method by which a county or city may abandon or vacate roads, that method is exclusive"]; City of Imperial Beach v. Algert (1962) 200 Cal.App.2d 48, 51 ["That a county or city will not lose its right to a duly dedicated public street by mere nonuser has been clearly established by constantly uniform authority"].) Sharp ignores this body of law.

Streets and Highways Code section 8311 et seq. sets forth the procedure through which a public agency may vacate a public easement, including notice and a public hearing. (Sts. & Hy. Code, §§ 8320, 8321.) Sharp produced no evidence the City has vacated the easement in question. She claims the court erred by citing this statutory scheme because Streets and Highways Code section 8311, subdivision (a) states the "procedures provided in this part are alternative procedures for vacating streets, highways, and public service easements. The authority granted in this part is an alternative to any other authority provided by law to public entities." She asserts Civil Code section 887.050 constitutes such other authority. As discussed, however, that provision is inapplicable because the City cannot abandon the public easement through nonuse. The trial court's ruling is correct.

DISPOSITION

The judgment is affirmed. The City is entitled to costs on appeal.

WE CONCUR: NARES, J. McINTYRE, J.


Summaries of

Sharp v. City of San Diego

California Court of Appeals, Fourth District, First Division
Apr 28, 2009
No. D052315 (Cal. Ct. App. Apr. 28, 2009)
Case details for

Sharp v. City of San Diego

Case Details

Full title:TERI L. SHARP, Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant…

Court:California Court of Appeals, Fourth District, First Division

Date published: Apr 28, 2009

Citations

No. D052315 (Cal. Ct. App. Apr. 28, 2009)