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

September 9, 2011

CLETIUS ROGERS ET AL., PLAINTIFFS AND APPELLANTS,
v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA, DEFENDANT AND RESPONDENT.



(Super. Ct. No. YCSCCVCV050000475)

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

Rogers v. Regents of the University of California

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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.

FACTS

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 ...


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