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Arthur E. King v. Zora M. Biagini

June 26, 2012

ARTHUR E. KING, PLAINTIFF, CROSS-DEFENDANT AND RESPONDENT,
v.
ZORA M. BIAGINI, DEFENDANT, CROSS-COMPLAINANT AND APPELLANT.



(Super. Ct. No. 73512)

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

King v. Biagini

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This case involves cross-actions to quiet title in an easement dispute between adjoining landowners -- plaintiff and cross-defendant Arthur E. King (owner of the alleged servient tenement)*fn1 versus defendant and cross-complainant Zora M. Biagini (owner of the alleged dominant tenement). In a bench trial, the trial court ruled the easement for ingress/egress was extinguished as a result of merger. Specifically, the court ruled that merger extinguished an adjoining easement across a contiguous parcel, which had connected the subject easement to the road. Thus, the subject easement no longer connected to anything.

Biagini, acting in propria persona, appeals, arguing merger was not pleaded and did not occur.*fn2 King did not cross-appeal from the trial court's rejection of his alternate theories that the easement was extinguished by abandonment or prescriptive nonuse.

We conclude Biagini fails to meet her burden as appellant to show reversible error, and therefore affirm the judgment.*fn3

FACTUAL AND PROCEDURAL BACKGROUND

In July 2008, King filed a pleading, a "FIRST AMENDED COMPLAINT TO ESTABLISH ABANDONMENT OF EASEMENT AND TERMINATION BY ADVERSE USE AND TO CLEAR RECORD TITLE."

In January 2009, Biagini filed a cross-complaint against King, alleging (1) breach of duty to maintain easement, (2) trespass (the placement of obstructions on the easement and the use of earth-moving equipment to obliterate part of the easement), (3) nuisance (the obstructions, etc.), (4) violation of the Nevada County Land Code by placing the obstructions and using the earth-moving equipment on and across the easement, and (5) entitlement to a preliminary and permanent injunction to prevent King from failing to maintain the easement and interfering with Biagini's use of the easement.

King filed an answer to the cross-complaint, denying that Biagini has an easement across his property and asserting that the easement was abandoned.

Evidence from the two-day bench trial*fn4 included the following:

In 1975, King and his wife bought property in Nevada County (hereafter County). (See Appendix A.) The northern portion was undeveloped. On the southern portion, King operated his business as a contractor of underground pipeline. Before buying the property, King operated his shop as a tenant of the previous owner. A chain of easements across other properties to the west gave King access to Allison Ranch Road.

In the mid-1970's, King and his wife wanted to split their property into two parcels and build a home. In 1977, they recorded a parcel map splitting their property into two parcels:

Parcel 1 -- the northern 10-acre portion, which Biagini now owns; and

Parcel 2 -- the southern five-acre portion which King owns.

To prevent Parcel 1 from becoming landlocked in the event of future sale, the County required the Kings to reserve access across Parcel 2, connecting Parcel 1 to the pre-existing chain of easements over the other properties out to Allison Ranch Road. Accordingly, the parcel map reserved for the benefit of Parcel 1 a "Proposed 40'[-wide] private driveway access"*fn5 (shaped like a fishhook or a horseshoe -- hereafter, horseshoe easement) for ingress and egress across Parcel 2, which connected to an easement for ingress/egress across a different owner's parcel to the west (that parcel is called "the Grover Cleveland" parcel and is labeled "Beckham" on Appendix A), which connected to another easement for ingress/egress across another property, all of which provided Parcel 1 with access to Allison Ranch Road.*fn6

Mrs. King did not want to use the uneven horseshoe easement through Parcel 2 and wanted a better paved access with fewer variations in elevation. Consequently, in 1978, the Kings purchased the adjoining Grover Cleveland parcel and built a paved road (King Way) running north and south over the Grover Cleveland parcel, connecting to the home on Parcel 1 and providing Parcel 1 with ingress and egress to Allison Ranch Road. The Kings took no action to extinguish the easement over Parcel 2 that benefited Parcel 1.

The Kings built their home on Parcel 1 in the late 1970's. A dispute thereafter arose between the Kings and their neighbor to the north, Theodore Swartz, over Swartz's claim that he had a right to use an easement reserved across Parcels 1 and 2 for access to his property. The Kings and Swartz resolved their dispute in an agreement granting Swartz use of King Way to access his property and requiring Swartz to remove improvements he had made to the easement across Parcels 1 and 2.

King and his wife divorced in 1996. As part of the property settlement in the marital settlement agreement (MSA), on July 2, 1996, they recorded inter-spousal grant deeds in which Mrs. King relinquished to Mr. King her interest in Parcel 2, and Mr. King relinquished to Mrs. King his interest in Parcel 1 and the Grover Cleveland parcel. The inter-spousal deed in favor of Mrs. King expressly included in the property description for the horseshoe easement: "Parcel No. 2: [¶] An easement 40 feet in width for ingress, egress and public utilities as shown upon the Parcel Map for Arthur King, filed in the office of the County Recorder of the County of Nevada, February 25, 1977, in Book 11 of Parcel Maps, at Page 64."*fn7

At trial, Mr. King testified they did not delete the horseshoe easement from the inter-spousal deed in favor of Mrs. King because no one used it, Mrs. King had no interest in using it, he thought it would be expensive to undo the easement, and it would be easier for Mrs. King to take care of it when she sold Parcel 1. The MSA said nothing about any such agreement for Mrs. King to do so. To the contrary, the MSA contained an integration clause that all agreements were set forth in the MSA.*fn8 Mrs. King did not testify at trial, but her deposition testimony was submitted, in which she denied any such agreement but said she thought the settlement with Swartz sufficed to terminate the easement.

On July 29, 1999, Mrs. King sold Parcel 1 to Ray and Angela Fackrell.*fn9 The deed's description of the property included the easements to use King Way across the Grover Cleveland parcel and points west to Allison Ranch Road but said nothing about the horseshoe easement over Parcel 2.*fn10 Ray Fackrell, called as a witness by Biagini, testified he knew about the listed easements but was never told that there were any other easements or that any easements were being deleted. When asked if he ever knew he had an easement over Parcel 2, he said "No, I did not know that."*fn11 When Fackrell subsequently sold Parcel 1 to Biagini in 2004, the area shown on the map as a 40-foot-wide horseshoe-shaped easement over Parcel 2 was overgrown with Manzanita and impassable.

Also on July 29, 1999, Mrs. King recorded a grant deed documenting Swartz's easement over King Way on the Grover Cleveland parcel and a quitclaim deed from the Kings as husband and wife to the Kings as unmarried persons for the easement over the Grover Cleveland parcel.

A 1999 title company order sheet contained a notation, "Take easement out and put new one in?! - Billi knows about." Title officer Billi Moniz testified she did not remember which easement the notation referenced. She thought the deed to Fackrell omitted the horseshoe easement because Mrs. King asked that it be omitted. Mrs. King submitted to the title company a request for "accommodation recording" of the deeds between herself and Swartz. Moniz testified the title company acts ...


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