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Arlyne Thorstrom v. Alan Thorstrom et al

June 29, 2011

ARLYNE THORSTROM, PLAINTIFF AND APPELLANT,
v.
ALAN THORSTROM ET AL., DEFENDANTS AND RESPONDENTS; WAYNE THORSTROM, INTERVENOR AND APPELLANT.



(Mendocino County Super. Ct. No. SCTM-CVG-05-94088) Honorable Jonathan Lehan

The opinion of the court was delivered by: Dondero, J.

CERTIFIED FOR PUBLICATION

Plaintiff and intervenor appeal from a judgment that granted defendants an implied easement for exclusive use of water from a well on plaintiff and intervenor's property. We agree with the trial court that an implied easement exists under these facts, but further conclude that the scope of the easement granted to defendants is excessive, and reverse the judgment.

STATEMENT OF FACTS

Intervenor Wayne Thorstrom and defendant Alan Thorstrom are brothers. This dispute between them is focused on the right to use water from a well constructed on property owned by their mother Evelyn Sallinen,*fn1 and which upon her death passed to Wayne according to trust and estate instruments.

The property owned by Evelyn before her death in February of 2003 was divided into two legal parcels situated in Fort Bragg, California: a larger parcel of 7.2 acres at 29601 Sherwood Road, on which was located the family home; and a smaller parcel of 1.37 acres at 29575 Sherwood Road, where Evelyn built a home in 1968, which she occupied with her husband Walter until her death.*fn2 Wayne and his wife Arlyne occupied the family home on the larger parcel (plaintiffs' parcel) continuously beginning in 1969. Alan moved away from the property and bought a house in Fort Bragg following his discharge from the Army in 1967. He thereafter visited his mother regularly but not frequently. After Evelyn died Alan and his wife Linda occupied the home on the smaller parcel (defendants' parcel).

Three wells were located on Evelyn's property. A very "old hand-dug well" about 12 to 15 feet deep and pump house on plaintiffs' parcel provided good water, but would often "go dry."*fn3 A well drilled on defendants' parcel in 1969 (the 1969 well) supplied Evelyn's water uses, which were exceedingly modest. Wayne and Arlyne were sometimes forced to use Evelyn's 1969 well for their source of water when their old well was dry. According to Wayne, he inspected the 1969 well pump regularly; it continued to function properly to provide Evelyn with water until her death.

In 1980, Evelyn paid for a larger well and pump placed on plaintiffs' parcel (the 1980 well), so they "would have water all the time." The housing for the 1980 well and "all the electronics" that controlled the well and pump remained on defendants' parcel, then occupied by Evelyn and Walter, to avoid additional costs associated with installation of entirely new equipment. A "faucet on the 1980 well" was connected by Wayne to an underground hose that ran to the old well, and from there to the plumbing for plaintiffs' house. The electrical system located at Evelyn's house was used to activate the faucet and underground line to pump water from the 1980 well to the old well. No lines or pipes connected the 1980 well to the 1969 well or to defendants' parcel. After the 1980 well was installed, Evelyn continued to use the 1969 well for her water needs. Wayne and Arlyne testified that before Evelyn's death the 1980 well was exclusively used to serve plaintiffs' parcel. Evelyn told Arlyne that both the old well and the 1980 well "belonged" to plaintiffs, and the 1969 well on defendants' parcel was "Alan's well."

On September 11, 1997, Evelyn created a revocable living trust (the Trust) into which the two parcels of property were transferred. According to the Trust provisions Wayne was granted plaintiffs' 7.2-acre parcel; Alan received defendants' 1.37-acre parcel.

A will executed by Evelyn on April 9, 2000, (the Will) provided for distribution of her real property in essentially the same terms as specified in the Trust. Wayne was appointed as executor of Evelyn's estate, with Alan named as successor executor.

Evelyn also signed a rather curious handwritten document entitled "Minutes Evelyn V. Sallinen Personal Trust" (Minutes), dated "Feb 21 - 20001" [sic], which referred to well numbers one and two, and stated that the "water well" located on plaintiffs' parcel "shall be used for emergency purposes in the case of drought or pump break down for the home" at 29601 Sherwood Road. In the Minutes Evelyn also devised her car to Wayne and her wedding ring to Arlyne.

Evelyn executed an Amendment to the Trust on April 9, 2001, to provide that upon her death a subdivided two-acre parcel was to be deleted by the trustee from plaintiffs' 7.2-acre parcel and transferred to Arlyne's son Rick Rial.*fn4 The balance of the 7.2-acre parcel was to be distributed to Wayne, and if he did not survive, to Arlyne. The 1.37-acre parcel was to be distributed to Alan, and if he did not survive, to Wayne.

After Evelyn's death in February of 2003, her estate was administered through the Trust. Plaintiffs and defendants received the deeds to their respective parcels. Defendants began to occupy the house on their parcel two weeks after Evelyn's death, and, pursuant to the Trust provisions executed the required roadway and public utility easements. Arlyne testified that defendants planted various gardens, numerous trees, and a lawn on their parcel that did not exist while Evelyn was alive. To water the gardens and wash their vehicles defendants had "water going at all times."

Without plaintiffs' permission, Alan removed the faucet on the 1980 well that served plaintiffs' parcel. And over plaintiffs' objection, in 2005 defendants employed plumber David Hautala to construct a 2,500-gallon water storage tank placed on defendants' parcel. Defendants diverted essentially all of the water from the 1980 well to the new storage tank for use on their parcel.

Plaintiffs thereafter received only a minute and entirely inadequate quantity of "orange and really dirty" water from the 1980 well for use on their parcel. On several occasions plaintiffs attempted to have plumbers determine the reason they "weren't getting any water" from the 1980 well, but, despite a restraining order against him obtained by plaintiffs, Alan harassed and threatened plaintiffs' workers until they left. Arlyne further testified that Alan harassed her through threatening telephone calls in which he swore and screamed at her, and on one occasion by blocking a road on the property.

Defendants presented expert testimony from David Hautala, the licensed plumber who drilled the 1969 well and installed the pump house and pump for it on defendants' parcel. He also constructed the 2,500-gallon water storage tank on their property in 2005. The new storage tank was designed to refill when the water level dropped by 100 to 150 gallons from the 2,500-gallon capacity. Underground pipes from the 1980 well on plaintiffs' parcel were connected to the pump house for the 1969 well on defendants' parcel. Hautala re-routed the pipes to ...


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