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Cletius Rogers et al v. Regents of the University of California


September 9, 2011


(Super. Ct. No. YCSCCVCV050000475)

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

Rogers v. Regents of the University of California



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 reversing the first summary judgment we found plaintiff Cletius Rogers's 26-year delay in reinstituting litigation to establish an easement over property owned by defendant Regents of the University of California (University) did not constitute laches as a matter of law. But his victory was short-lived. We affirm the second summary judgment because, while plaintiff dithered, the University extinguished any private, implied, or equitable easement by adverse possession, and plaintiff raises no triable issue of fact that the public had perfected a right-of-way in the late 18th or early 19th century.


Both parties provide an historical record of plaintiff's and defendant's properties going back to the 1850's, when the properties were used for mining. If, as the trial court found, the University has extinguished any easement by adverse possession, then most, if not all, of the historical data is irrelevant to this appeal. We will recite the facts in two parts as pertinent to the two issues before us: 1) the University's affirmative defense of adverse possession and 2) the existence of a public right-of-way. We point out that plaintiff does not raise any issue involving an easement by necessity. Although he asserted easement by necessity in his first cause of action, he has waived any argument to save an easement by necessity by failing to raise and support it on appeal.

Adverse Possession

In 1960 the University purchased over 5,000 acres in Yuba County for a research facility known as the Sierra Foothills Research and Extension Center (Center). The University conducts agriculture, forestry, and livestock experiments at the Center.

A road referred to variously as "the old county road," the Lower Ranch Road, a trail, and a path is in various states of repair and runs through the Center property to plaintiff's otherwise landlocked parcel. There is a gate at the intersection of this road with Scotts Forbes Road, a public roadway.

Plaintiff purchased land on the north and south banks of the Yuba River in 1972. He used the road for ingress and egress to his property for approximately two years. But in approximately 1975 the University locked the gates that had been installed in 1970 to prevent use of the road in order to protect sensitive crops.

In 1976 plaintiff filed a declaratory relief action requesting the court to protect his easement across the Center property. He abandoned the lawsuit, however.

The University has remained steadfast in its refusal to allow plaintiff to use the road. His requests for access across the Center property were consistently denied throughout the 1980's and 1990's, and plaintiff did nothing else to assert his easement until he filed this lawsuit in 2005. In his declaration in opposition to the motion for summary judgment, plaintiff concedes that the University has blocked his access to the Lower Ranch Road since 1975. He declared, "Without access over the Regents' Property, I am not able to use my property for any purpose . . . ."

Nevertheless, plaintiff asserts that others have used the road, and their use inures to his benefit in retaining the easement. He cites as evidence an excerpt from a deposition in which a University employee explained that the gates were locked to keep people from trying to access the path and that the main gate was left unlocked on occasion during daylight operating hours while someone was working. In order to enhance control and security over its research projects, the University has allowed only authorized guests to use the road for educational and recreational purposes. There is some evidence to suggest that people have trespassed on the Center property and across the road.

Plaintiff offers a multitude of allegations that are immaterial to the issues on appeal. We need not recite the allegations or the purported evidence of the University's complicity in traveling over the road onto plaintiff's property, encouraging others to do so, or consider the mysterious appearance of another road since these allegations and others are unrelated to his claim of an easement across the Center property. He has not alleged any causes of action pertaining to trespass or other violations of his property rights. This appeal relates exclusively to his claim of an easement over the Center property.

Public Right-of-Way

Plaintiff relies on what he characterizes as four undisputed pieces of evidence to support his claim of a "public easement[]." He asserts:

1. The federal government, and maybe the state and county, own an easement across the plaintiff's and the University's properties to allow access to the Yuba River for dredging and to control historic mining debris.

2. The road was improved in the 1930's as part of the federal and state debris removal process.

3. The federal government also owns property along a portion of the road.

4. At least one person referred to the road as the "old county road" before the University bought the property.

The University, on the other hand, points out that no records show a public road through the Center to plaintiff's property. In 1937 the two-mile private road was built. When the University purchased the property in 1960, no right-of-way for the benefit of plaintiff's property was reserved in the grant deed. Indeed, plaintiff's predecessor wrote to the University requesting permission to use the "old county road" for access. The University's predecessor denied that there was a right-of-way and the University never gave the requested permission.

DISCUSSION I Standard of Review

On appeal, we review de novo an order granting summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) "The pleadings define the issues to be considered on a motion for summary judgment. [Citation.] As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065.) 'There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' (Aguilar[, supra,] 25 Cal.4th [at p.] 850 [].)" (Sturgeon v. Bratton (2009) 174 Cal.App.4th 1407, 1417-1418.)

"The trial court must grant a summary judgment motion when the evidence shows that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar, at p. 843.) In making this determination, courts view the evidence, including all reasonable inferences supported by that evidence, in the light most favorable to the nonmoving party. [Citations.] A defendant moving for summary judgment has the burden of producing evidence showing that one or more elements of the plaintiff's cause of action cannot be established, or that there is a complete defense to that cause of action. [Citations.] The burden then shifts to the plaintiff to produce specific facts showing a triable issue as to the cause of action or the defense." (Garcia v. W & W Community Development, Inc. (2010) 186 Cal.App.4th 1038, 1041.)

II Adverse Possession

An easement can be extinguished by adverse possession. (Glatts v. Henson (1948) 31 Cal.2d 368, 370.) The University raised adverse possession as an affirmative defense and the trial court granted summary judgment, finding the University had established each of the requisite elements. The trial court is correct.

"'To establish title by adverse possession, the claimant must establish five elements in connection with his occupancy of the property. [Citations.] (1) Possession must be by actual occupation under such circumstances as to constitute reasonable notice to the owner. [Citations.] (2) Possession must be hostile to the owner's title. [Citations.] (3) The holder must claim the property as his own, either under color of title, or claim of right. [Citations.] (4) Possession must be continuous and uninterrupted for five years. [Citations.] (5) The possessor must pay all of the taxes levied and assessed upon the property during the period. [Citations.] Unless each one of these elements is established by the evidence, the plaintiff has not acquired title by adverse possession.'" (Newman v. Cornelius (1970) 3 Cal.App.3d 279, 288.)

It is true, as plaintiff suggests, that the requirements to establish adverse possession are "rigid, precise and must be construed in favor of the person sought to be dispossessed." (Finley v. Yuba County Water Dist. (1979) 99 Cal.App.3d 691, 700.) Erecting a mere gate or fence may not be sufficient. (Hibberd v. McCosker (1921) 55 Cal.App. 568.)

Relying on inapposite authority, plaintiff argues all the requirements to establish an easement were not satisfied because the University did not exclusively possess the easement on its property that it sought to extinguish. Plaintiff maintains there is at least a triable issue of fact whether the federal government owns property along the road and an easement across the road. Moreover, because the gate was left open, plaintiff asserts the public used the road. Public use, therefore, negated exclusive possession.

We begin with the sole case plaintiff cites in support of his proposition that the owner of the servient tenement must exclusively possess the easement on its property. Myran v. Smith (1931) 117 Cal.App. 355, 360 (Myran) did not involve a road, an easement, or the efforts of the owner of the servient tenement to extinguish the actuality or possibility of an easement running across his property. Rather, Myran involved a wife's effort to prove title by adverse possession or prescriptive use by her husband based on meager evidence that he paid back taxes and built a partial fence and a garage on the property. While he went onto the property only occasionally, a neighbor used it frequently. On this evidence, the court held that a claim of adverse possession was "far too indefinite to support a claim of hostile, exclusive and continuous possession." (Id. at p. 360.)

Here the University owns the undisputed title to the property and has occupied the Center openly and continuously. Since at least 1975, the University has locked the gate unless someone was working and closely monitored who could use the road and when. Unlike the plaintiff in Myran, the University sought to extinguish any possible easement on the road or otherwise across the Center. Plaintiff's reliance on Myran, which bears no factual resemblance to the case before us, does not advance his argument.

Thus plaintiff offers no legal support for the argument that he raises for the first time on appeal that the University's possession of the road over its property must be exclusive. Having failed to argue his theory in the trial court, he waives it on appeal. (Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231, 251.) Moreover, in the absence of any authority to support the notion that an owner of a servient tenement cannot allow the permissive use of a road to a limited number of persons for a limited time without forfeiting its ability to extinguish a pre-existing easement, we will not entertain plaintiff's argument.

Plaintiff next asserts that his equitable easement withstands the University's adverse possession. To support this claim, he relies on evidence that the University and others have trespassed on his property and contends the trial court abused its discretion by disallowing photographs depicting the construction of a road while this litigation was pending.

The University points to a number of threshold impediments to the admissibility of the satellite photograph, including a lack of foundation, authenticity, clarity, and relevance, and any of which demonstrate the trial court did not abuse its discretion by granting the University's request to exclude it. We need not address the evidentiary obstacles because the photograph is immaterial to the pleadings before the trial court. Even if, as we mentioned above, the University was complicit in either building or facilitating the building of another road onto plaintiff's property, the conduct has no bearing on plaintiff's alleged easement over the Lower Ranch Road. Thus, the evidence it sought to admit was irrelevant to this lawsuit and plaintiff has made no effort to amend the pleadings to allege an entirely different cause of action.

Similarly, plaintiff tries to utilize the same conduct, in part, to support his entitlement to an equitable easement in conjunction with his argument that the University's use was not open, hostile, or continuous for the requisite five years. He also asserts that adverse possession cannot squelch an equitable easement. He is wrong on the facts and the law.

Plaintiff posits a misguided concept of an equitable easement. Rather than focusing on the specific facts involving his use of the road over the Center, he tries to weigh any and all equities he can conjure up. Thus begins his irrelevant recitation of the second road, the trespass onto his property, and the ongoing nature of these transgressions. Since he has not been allowed to use the road, he concludes: "It would therefore be manifestly unjust, and not an open and notorious act under the doctrine of adverse possession, to on the one hand prevent Appellants access to the Rogers' Property while at the same time trespassing and building new roads on the Rogers Property in stealth. This is exactly the situation from which an easement in equity arises. To allow this situation to continue would indeed result in a manifest injustice for the Appellants."

Plaintiff's premise is unsupported. He provides no authority to sustain his position that adverse possession does not apply to an easement in equity. As a result, even if plaintiff or his predecessors in title had established an equitable easement, the University could extinguish it, provided, of course, that it satisfied each of the elements of adverse possession.

Moreover, plaintiff misunderstands the requirements for an equitable easement. As the University explains, an equitable easement is a remedy invoked when a property owner seeks to enjoin innocent long-term encroachment or trespass. In those circumstances, a trial court may create an easement by invoking the doctrine of "balancing conveniences" or "relative hardship." (Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 265.) Although all doubts should be decided in favor of enjoining a trespass, the court has the discretion to consider whether the defendant is innocent, whether the plaintiff will suffer irreparable harm, and whether the hardship on the defendant is greatly disproportionate to hardship caused plaintiff by allowing continued trespass. (Ibid.)

Here the University is not seeking to enjoin plaintiff; indeed, plaintiff concedes he has not used the road for 35 years. If, in the mid-1970's plaintiff's use of the road could be considered as innocent, he was disabused of that notion by the open, hostile, and continuous refusal of the University to allow him to use the road. He initiated litigation to vindicate his right, but when he abandoned the lawsuit and failed to do anything else for over three decades, he not only lost his innocence, but he allowed the University to extinguish any equitable easement that might have been perfected up to that time.

Plaintiff's attempt to foist the blame now on the University for the construction of a new road and trespass on his property may be fodder for yet another lawsuit, but it does not factor into the analysis of the easement he claims over the Center. His claim to an equitable assessment that withstood the University's adverse possession is unavailing.

III Public Right-of-Way

In Gion v. City of Santa Cruz (1970) 2 Cal.3d 29 (Gion),*fn1 elderly witnesses testified that for over a hundred years substantial numbers of people traveled over a road to a Santa Cruz beach to camp, picnic, collect and cut driftwood, fish, and decorate graves. The use expanded over time, and in addition to these activities, at times as many as 100 people were on the beach swimming, skin diving, hiking, and camping. Previous owners of the beach property had never objected to public use of the road accessing the beach.

More recently, "There was a considerable body of testimony from members of the public who used the canal side right-of-way that they did so in the belief the public had a right to do so" in Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810, 825 (Friends). The owner at the time conceded he was aware of the public use and believed the public had the right to use the trail. The trial court found the use was "continuous, regular, and open," sufficient to "afford unequivocal notice of public use to the owners of the land." (Ibid.)

In stark contrast, plaintiff offers one letter by a predecessor in title in which he refers to "an old county road." Ironically, this reference, which in itself is blatantly inadequate to establish public use, is contained in a letter in which the author is asking permission to use the road. Thus, the letter is an admission the author does not believe he has a right, as a member of the public, to use the road.

Otherwise, plaintiff relies entirely on the alleged federal, and possibly state and county, ownership of an easement and adjacent property for dredging mining debris and improvement of the easement in the 1930's as evidence of public use. He appears to confuse ownership by a governmental entity with the public use doctrine.

We need not determine whether or not the federal, state, or county government either owned or acquired a right-of-way for mining purposes because even if a governmental entity acquired an easement, plaintiff offers no authority for the expanded notion that ownership by a governmental entity for one purpose gives the public at large the right to use it for other purposes. Indeed, such a rule would undermine the law of easements and public use by burdening the servient tenement far beyond the scope of the easement.

While it is difficult to follow plaintiff's logic, it may be that he means that the federal easement merely precluded the University from extinguishing his easement by adverse possession because it could not foreclose all use, and therefore the existence of the federal easement assured the existence of his in perpetuity. We return to the landmark cases on public use with which we began for the primer on the legal principles necessary to establish a public right-of-way.

What must be shown to establish a public right-of-way "is that persons used the property believing the public had a right to such use." (Gion, supra, 2 Cal.3d at p. 39.) "The use must be substantial, diverse, and sufficient, considering all the circumstances, to convey to the owner notice that the public is using the passage as if it had a right so to do." (Friends, supra, 78 Cal.App.4th at p. 826, fn. 7.) An occasional trespasser, therefore, does not create a public right-of-way.

If, as in Gion and Friends, plaintiff had presented evidence of substantial, diverse, and continuous use, then the University's efforts to curtail the use by installing and locking gates across the road might have raised a triable issue of fact. But he did not present sufficient evidence to trigger a triable issue. One man's reference to a county road is hardly equivalent to the hundreds of members of the public who used the beach in Gion or the trail in Friends. While plaintiff made the unsupported allegation that members of the public used the road for access to the river for various educational and recreational purposes, he simply did not provide evidence to support the claim that such use was without the University's permission and was in sufficient number and continuity to provide notice that the public believed it had a right to use the road. Rather, the evidence was to the contrary.

In conclusion, plaintiff's attempt to establish a private easement fails because, as the trial court found, any implied or equitable easement was extinguished by adverse possession as a matter of law. His attempt to avoid the harsh results of adverse possession by asserting a public easement also fails because he has not provided sufficient evidence to demonstrate there is a material triable issue of fact. Thus the summary judgment was providently granted.


The judgment is affirmed. The University shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

We concur: HULL , J. ROBIE , J.

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