IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Calaveras)
March 22, 2011
D.F.S., LLC, PLAINTIFF AND APPELLANT,
CALAVERAS MURPHY PROPERTIES, DEFENDANT AND RESPONDENT.
(Super. Ct. No. CV29548)
The opinion of the court was delivered by: Butz, J.
D.F.S. v. Calaveras Murphy Properties
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In this litigation between two rural property owners, the trial court rejected the claim of plaintiff and appellant D.F.S., LLC (DFS), to an appurtenant easement over the land of defendant and respondent Calaveras Murphy Properties.
DFS filed this appeal, disagreeing with the trial court's findings that it did not have an easement under any of the theories it tendered below. We find no reversible error and shall affirm the judgment.
Early History of the Rosella Mine and Surrounding Properties
Three contiguous properties are the subject of this action. We shall refer to them as the Murphy Ranch, the Watson Ranch and the Rosella Mine. (A fourth parcel known as the Pioneer Mine is not at issue here.) The easement in dispute is a road that begins at the eastern border of the Watson Ranch property, traverses over the Murphy Ranch property, and connects to a county road, which is now Highway 4.*fn1
Prior to 1900, all of the properties were owned by Richmond L. Gardner and his wife. Around that year, the Gardners and other individuals formed the Rosella Mining and Milling Company (the Rosella Mining Company). The Rosella Mining Company's board of directors then passed a resolution authorizing the purchase of the Rosella Mine, 29 acres of land just south of the Pioneer Mine, which was wholly surrounded by the Gardners's property.
The Gardners conveyed the Rosella Mine to themselves and the partners of the Rosella Mining Company. By deed recorded May 17, 1900, the grantees conveyed the Rosella Mine to the Rosella Mining Company. No easement is described in these deeds.
The 1915 Deeds
In 1915, two deeds were recorded, by which the Gardners sold their remaining property. These deeds, which appear at pages 309 and 312 of the Calaveras County Recorder's Book of Deeds, were referred to at trial as "the 309 deed" and "the 312 deed," respectively.
The 309 deed was executed on April 7, 1913. In it, the Gardners conveyed 1,281.33 acres of their property to Walter Murphy. This parcel became known as the Watson Ranch. The 309 deed excepted the previously conveyed Rosella Mine and also reserved a right-of-way for a 12-foot-wide "wagon road" from the Rosella Mine to the land owned by the Gardners to the east. An early map showed there was a road over the Gardners's property connecting with the County Highway. However, there is no indication there existed a wagon road between the Rosella Mine and the Gardners's property.
By virtue of the 312 deed, which was executed on August 9, 1915, two years after the 309 deed, the Gardners transferred to Walter Murphy their remaining property, now known as the Murphy Ranch.
Like the 309 deed, the 312 deed excepted the Rosella Mine. At the same time, the deed reserved to the Gardners and their "heirs and assigns," a 12-foot-wide right-of-way "as direct as convenient from said excepted premises[,] [the Rosella Mine,]" to the "[C]county [R]oad, lying easterly of said excepted premises."
Whether this last reserved easement was appurtenant to the Rosella Mine or "in gross" to the grantors was the key disputed issue at trial, with DFS's expert opining that it benefited the Rosella Mine and defendant's expert testifying that it was personal to the Gardners.
By 1995, William Murphy, in association with his limited partnership, Calaveras Murphy Properties (defendant herein), owned the Murphy Ranch, on which he ran cattle.
In January 1995, Gardner Monroe and Stella Monroe who then owned the Rosella Mine, conveyed it to Tony Ortiz and Pascual Hernandez. Hernandez and Ortiz tried to use the road that crossed over the Murphy Ranch (the Murphy Ranch Road) by cutting the chain off the gate between the Watson Ranch and the Murphy Ranch. When William Murphy discovered that his chain had been cut, he blocked the interlopers from using the road, by bolting the gate and by notifying the county sheriff, who warned the owners of the Rosella Mine that unless they could show proof they had a right to access the Murphy Ranch Road, he would consider them to be trespassers. After their encounter with the sheriff, Hernandez and Ortiz used a different route, the Watson Ranch Road, to reach the County Highway.
Dennis SanFilippo is the sole owner and manager of DFS. In 2003, he purchased Watson Ranch in his own name and the Rosella Mine in the name of DFS. He took title to the properties in different names on the instructions of his attorney. An addendum to the Rosella Mine sales agreement disclosed that the owners of Murphy Ranch did not allow the sellers (Hernandez and Ortiz) to access the County Highway by using the Murphy Ranch Road, but that such access was permitted through an alternate route over the Watson Ranch property.
SanFilippo testified that when he was shown the Rosella Mine property by his realtor, they accessed it through the "Shirley Road" entrance to Highway 4 on the "Stockton [or west] side" of the Watson Ranch. He acknowledged that he spoke with the Murphy brothers, Tom and Chester, at the gate, who told him he did not have an easement across their property via the Murphy Ranch Road. After SanFilippo purchased the Rosella Mine and the Watson Ranch, the Murphy Ranch owners repeatedly blocked his attempts to use the Murphy Ranch Road to cross their property, precipitating this litigation.
In 2003, the predecessors in interest to the owners of the Calaveras Murphy Properties (Erna M. Murphy, Erna Murphy and Chester Murphy, as Trustees of the Erna Murphy Marital Trust) filed a complaint against SanFilippo and others seeking a judicial declaration that no defendant owned an easement over their property. This complaint was ultimately consolidated with the present action, in which DFS sought to quiet title to an easement in favor of the Rosella Mine over the Murphy Ranch Road.
DFS proceeded to trial under three theories of relief: (1) the 312 deed expressly created an appurtenant easement in favor of the Rosella Mine; (2) it has an easement by implication through the doctrine of necessity; and (3) it is entitled to an easement by prescription.
In a written statement of decision, the trial court rejected all three theories. Judgment was entered in favor of defendant, and DFS appeals.
After a lengthy, overly detailed and ponderous recitation of the evidence, DFS criticizes the trial court for rejecting its claim of easement under each of its alternate legal theories. However, instead of demonstrating how the trial court erred under the proper standard of appellate review, DFS proceeds as if it is trying the case de novo in the Court of Appeal. Argument of this nature in an appellant's opening brief ordinarily results in a forfeiture of all claims. "When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1120; Jimmy Swaggart Ministries v. State Bd. of Equalization (1988) 204 Cal.App.3d 1269, 1294.)" (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)
Nevertheless, giving DFS the benefit of the doubt, we shall address each of its three primary contentions.
I. Easement by Express Grant
DFS's primary theory of relief was that it was entitled to an easement under an express grant in the 312 deed. The trial court disagreed finding, consistent with the testimony of the defense expert, that the easement created in that deed was "in gross" rather than appurtenant to the Rosella Mine.
"'An easement is a restricted right to specific, limited, definable use or activity upon another's property, which right must be less than the right of ownership.'" (Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702 (Scruby).) "'An easement is appurtenant when it is attached to the land of the owner of the easement, and benefits him as the owner or possessor of that land. The land to which it is attached is called the dominant tenement, and the land which bears the burden, i.e., the land of another which is used or enjoyed, is called the servient tenement. . . . An easement in gross is not attached to any particular land as dominant tenement, but belongs to a person individually.' [Citation.] [¶] Because an easement in gross is personal, it may be conveyed independent of land. [Citation.] To the contrary, an easement appurtenant cannot be transferred to a third party or severed from the land." (City of Anaheim v. Metropolitan Water Dist. of Southern Cal. (1978) 82 Cal.App.3d 763, 767-768 (City of Anaheim).) Because an easement in gross is a personal right to use the land of another, there is no dominant tenement. (County Sanitation Dist. v. Watson Land Co. (1993) 17 Cal.App.4th 1268, 1279.)
The evidence showed that the Gardners, through two separate transactions, conveyed the Rosella Mine to the Rosella Mining Company, of which Mr. Gardner was one of the incorporators. Although the Rosella Mine was completely surrounded by the Gardners's holdings, no easement was reserved in those transactions.
Both experts agreed and the trial court found that the 309 deed, by which the Gardners conveyed the Watson Ranch to Walter Murphy, reserved an easement appurtenant to the Murphy Ranch property, which the Gardners still owned.
This lawsuit focused on whether the 312 deed, through which the Gardners fully relinquished their land holdings in the area, created an easement in gross to them or appurtenant to the Rosella Mine. The subject language reads:
"[T]here is also reserved to the parties of the first part[,] [the Gardners,] their heirs and assigns . . . a right of way for a wagon road easterly from the said excepted premises last aforesaid[,] [the Rosella Mine], across the said lands described in said deed of April 7th 1913[,] [the Watson Ranch,] and across the lands conveyed by this deed[,] [the Murphy Ranch], to the [C]county [R]oad, said right of way to be twelve feet in width and shall be as direct as convenient from said excepted premises[,] [the Rosella Mine,] to the said [C]county Road, lying easterly of said excepted premises[,] [the Rosella Mine]; the said right of way to be the property of the parties of the first part[,] [the Gardners], their heirs and assigns and may be used in connection with said excepted portions of said premises[,] [the Rosella Mine,] or in any other manner that may be desired by the said parties of the first part[,] [the Gardners], their heirs and assigns." (Italics added.)
An instrument creating an easement is subject to the same rules of construction applicable to deeds and the law of contracts generally. (6 Miller & Starr, Cal. Real Estate (3d ed. 2006) Easements, § 15:16, p. 15-67 (Miller & Starr); Civ. Code, § 1066.) If the meaning of the words is clear and unambiguous, the issue is one of law and subject to de novo review. (See ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266-1267; Broffman v. Newman (1989) 213 Cal.App.3d 252, 257.) However, if the grant of easement is ambiguous, the court considers not only the language of the grant, but evidence of the surrounding circumstances and the relationship between the parties and their respective properties. (6 Miller & Starr, Cal. Real Estate, supra, Easements, § 15:16, p. 15-69.) As DFS fails to acknowledge, where the interpretation of an instrument depends on consideration of conflicting extrinsic evidence, any reasonable construction adopted by the trial court supported by substantial evidence will be upheld. (In re Marriage of Fonstein (1976) 17 Cal.3d 738, 746-747; Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912-913.)
We find the language of the easement described in the 312 deed to be ambiguous on whether it is appurtenant or in gross. The grant identifies the easement's starting point as the Rosella Mine, yet it also describes the easement as the property of the Gardners, their heirs and assigns. Furthermore, the property that was the starting point of the easement--the Rosella Mine--was excluded from the deed, bringing into question the grantors' true purpose. Finally, where the deed does not use the words "in gross" or "appurtenant," courts are advised to look to evidence outside the four corners of the instrument to ascertain the intent of the grantor. (City of Anaheim, supra, 82 Cal.App.3d at p. 768.)
Considering both the language of the grant and extrinsic evidence of surrounding circumstances, the trial court's construction of the deed was reasonable, for several reasons.
Initially, at the time of the grant, it was the law that the reservation of an easement must be made to the grantor or the grantor's property and could not be made to a stranger to the deed. (See 26 Cal.Jur.3d (2010) Deeds, § 199; Elliott v. McCombs (1941) 17 Cal.2d 23, 28; Smith v. Kraintz (1962) 201 Cal.App.2d 696, 700.) Although the rule has since been abolished (Willard v. First Church of Christ, Scientist (1972) 7 Cal.3d 473, 477-478), departure from it is warranted only where extrinsic evidence clearly shows a contrary intent (Cushman v. Davis (1978) 80 Cal.App.3d 731, 735). When the 312 deed was executed, the Rosella Mine was not owned by the grantors of the Watson Ranch--it was owned by the Rosella Mining Company.
DFS does not even address this point until its reply brief, and then only to state that the Gardners owned shares in the Rosella Mining Company. They fail to cite any evidence in the record clearly showing an intent by the Gardners to vest title to the easement in a stranger.
Several additional factors support the trial court's finding that the easement benefited only the Gardners, not the Rosella Mine. Unlike the 309 deed, which reserved the right-of-way across "lands owned by the parties of the first part[,] [the Gardners]," the 312 deed describes the right-of-way as "the property of the parties of the first part," to be used in connection with the Rosella Mine "or in other manner that may be desired by the said parties of the first part, their heirs and assigns." (Italics added.) This language is difficult to reconcile with the idea that the grantors intended to convey an appurtenant easement rather than one personal to themselves.
Moreover, the 312 deed conveyed the last of the Gardners's property holdings in the Murphy Ranch/Watson Ranch area, suggesting they were interested only in an easement that could be used by themselves, their heirs and assigns. (See LeDeit v. Ehlert (1962) 205 Cal.App.2d 154, 166 ["an easement in gross is both assignable and inheritable unless restricted by proper language to certain individuals"].)
Finally, had the Gardners wanted to create an easement to benefit the Rosella Mine property, they could easily have done so by appropriate language in the original conveyance to the Rosella Mining Company. They did not. Having failed to create an appurtenant easement in favor of the Rosella Mine in 1900, there is no compelling reason why the Gardners wanted to create one in 1915, when they were abandoning the last of their real property holdings in the Murphy-Watson tract. On the contrary, it is reasonable to infer that the Gardners believed they had no authority to reserve an easement to property they no longer owned (which was the law in 1915), but wanted to retain an easement for themselves, so they could continue uninterrupted access to the corporate property through the Murphy Ranch Road.
Where the court's construction of an easement "'appears to be consistent with the true intent of the parties an appellate court will not substitute another although it may seem equally tenable.'" (Scruby, supra, 37 Cal.App.4th at p. 706.) We conclude the court's finding that the 312 deed conveyed an easement in gross may not be disturbed.
II. Easement by Prescription
In a one-paragraph argument DFS asserts, "the [Murphy Ranch] [R]oad was prescriptively used by all." Because this perfunctory presentation is unaccompanied by any citation to legal authority or the record, it is forfeited. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)*fn2
In any event, an easement by prescription can only be established by use that is open, notorious, hostile and clearly visible to the owner. (6 Miller & Starr, Cal. Real Estate, supra, Easements, § 15:29, p. 15-111.) Whether the use of the easement is adverse and under a claim of right and whether the nature of the use is sufficient to put the owner on notice, are questions of fact and, if there is any substantial evidence to support the judgment, it must be affirmed. (Guerra v. Packard (1965) 236 Cal.App.2d 272, 288.) The trial court found there was no evidence of such use by the owners of the Rosella Mine between 1900 and 1995. When Hernandez and Ortiz purchased the Rosella Mine in 1995, their attempts to use the road were repeatedly blocked by the Murphy Ranch owners. Finally, as the court noted, since DFS only acquired title in 2003, it did not own the property long enough to establish adverse use for the required five-year period. These unchallenged findings conclusively rebut any claim that a prescriptive easement had been established.
III. Easement by Implication Through Necessity
DFS contends that the evidence established an easement in favor of the Rosella Mine by implication through the doctrine of necessity. The gist of the claim is that when the Gardners transferred title to the Rosella Mine to themselves and the other incorporators of the Rosella Mining Company in 1900, they intended to create an appurtenant easement, because there was no other access to the County Highway and "California really doesn't like land-locking properties."
"Generally, an easement by necessity arises from an implied grant or implied reservation in certain circumstances when a property owner (the grantor) conveys to another (the grantee) one out of two or more adjoining parcels of the grantor's property. When there is no express provision for access, and the parcel conveyed is either landlocked entirely by the parcels retained by the grantor, or landlocked partly by the grantor's retained land and partly by the land of others, the grantee may claim an implied grant of a right-of-way of necessity over the land retained by the grantor. [Citation.] Conversely, when the grantor conveys adjoining property without an express agreement for access to a retained parcel left landlocked, the grantor [or its successors] may seek an implied reservation of a right-of-way of necessity over the conveyed property for the retained parcel's benefit." (Murphy v. Burch (2009) 46 Cal.4th 157, 162-163.)
As the California Supreme Court has made clear, however, landlocking is, by itself, an insufficient basis to establish an easement by implication. "[T]he common law doctrine does not exist to ensure a right of access to any and all landlocked property; rather, the doctrine is properly applied only when the circumstances establish that an access easement was intended at the time of the common owner's conveyance." (Murphy v. Burch, supra, 46 Cal.4th at p. 164, italics added.)
Here, the only circumstance that is apparent at the time of the grant is that the Gardners and their fellow incorporators conveyed the Rosella Mine to the Rosella Mining Company without simultaneously conveying a right of access. The fact that the deed landlocked the property, however, cuts both ways. It could mean the grantors did not want to convey an access route that would run with the land, or it could mean they inadvertently forgot to include one.
It was therefore incumbent upon DFS, who had the burden of proof (Evid. Code, § 500), to come forward with evidence that the grantors intended to reserve an easement appurtenant to the Rosella Mine. DFS adduced no such evidence. Where no evidence is introduced upon an issue, the finding thereon must be against the party who has the burden of proof. (See Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1205.) DFS loses on this ground alone.
As an alternative ground for our affirmance, it is well established that the doctrine of implied easement by necessity will be made only in cases of strict necessity to the dominant tenement and continues only so long as the need for it exists. (Murphy v. Burch, supra, 46 Cal.4th at pp. 163-164; 6 Miller & Starr, Cal. Real Estate, supra, Easements, § 15:28, p. 15-110.)
There was abundant evidence that DFS had a means of accessing the County Road other than through the claimed easement over the Murphy Ranch Road. SanFilippo testified that he and his realtor accessed the Rosella Mine through the west (Stockton) side of the Watson Ranch property via the Shirley Road. After the Murphy Ranch owners blocked their access to the Murphy Ranch Road, DFS's predecessors in interest, Hernandez and Ortiz, accessed the County Highway through the Watson parcel to the south. The parcel map admitted into evidence clearly shows a road running south to the County Road through the Watson Ranch property. Indeed, the trial court found that (1) "the Watson Ranch [Road] was a more direct and shorter route to Highway 4 than the Murphy [Ranch] Road," and (2) "[s]ince [DFS's] purchase of the Rosella Mine in 2003, Mr. SanFilippo has had the ability to convey to his company [of which he has absolute control] a recorded easement across the Watson Ranch which he owns." Since it was shown without contradiction that alternative routes to the County Highway are available to it, DFS no longer has any claim of easement by necessity.
The judgment is affirmed. Respondent Calaveras Murphy Properties shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
We concur: RAYE, P. J. NICHOLSON, J.