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Kelly C. Wooster v. Department of Fish and Game et al

November 26, 2012

KELLY C. WOOSTER, PLAINTIFF AND APPELLANT,
v.
DEPARTMENT OF FISH AND GAME ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. No. 10CV36388)

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

Wooster v. Dept. of Fish and Game 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 this quiet title action, plaintiff Kelly C. Wooster sought to establish that property he owns in Calaveras County is free and clear of a conservation easement recorded on the property over 30 years ago either because the Department of Fish and Game (the department) failed to post no hunting and no trespassing signs on the property as required by the conservation easement deed and agreement or because the grant of hunting rights to the department was void from the outset. The trial court sustained the department's demurrer without leave to amend and dismissed the action.

On Wooster's appeal, we agree with the trial court that Wooster is not entitled to the relief he seeks. Even if the department failed to comply with its obligation to post signs on the property, that failure did not extinguish the conservation easement or give Wooster a basis for rescinding the easement. Furthermore, the grant of hunting rights to the department, so that the department could prohibit all hunting on the property, was entirely legal and consistent with the statutes governing conservation easements. Accordingly, we will affirm the judgment of dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

Taking the factual allegations in Wooster's second amended and supplemental complaint as true, Wooster owns approximately 4,535 acres of real property in Calaveras County, consisting of the Ranch Mine and the Stackpole (jointly the property). In 1981, the prior owners of the property and the department executed and recorded a conservation easement deed and agreement (the deed) with respect to the property. The declarations in the deed specified that the owners and the department "desire[d] to preserve and protect [the property], for wildlife conservation purposes . . . and to prevent, in accordance with the terms contained [in the deed], said property from degradation of fish and wildlife habitat due to residential, industrial or other uses detrimental to such purposes." The declarations further specified that the owners would be able to continue using the land for grazing livestock, which was compatible with wildlife preservation, and would be able to develop the mineral rights on the property in the future.

Following these declarations, the deed granted to the department "full development and hunting rights in the form of a conservation easement over the . . . property subject to [certain] conditions" thereafter set forth. Five paragraphs then described rights retained by the owners. The sixth and seventh paragraphs described rights to access and to make improvements that were granted to the department. The eighth paragraph clarified that the department's access rights did not include "the right of access for the general public over any portion of the . . . property." The ninth paragraph then specified that the department "shall post the property at all points of entry to inform the public that said property is a State wildlife area and that no trespassing or hunting is allowed."*fn1 The 10th paragraph made clear that the department was under no obligation to make any improvements or repairs or perform any maintenance "other than signing as noted in Clause 9 of this agreement." Finally, the 11th paragraph dealt with indemnity.

The department did not keep the property posted as required by the deed. In the absence of the required signs, people trespassed on the Ranch Mine, and it appeared that a marijuana growing operation was set up there.

In May 2009, Wooster acquired the Ranch Mine portion of the property. In January 2010, Wooster commenced this action against the department by filing a complaint to quiet title, for rescission and cancellation, and for declaratory relief. Wooster sought to rescind the deed because the department did not comply with the posting requirement. Wooster also claimed the department was "not authorized to accept a grant of 'full hunting rights' " and such a grant was "inconsistent with the purposes of a conservation easement."

The department demurred. The trial court sustained the demurrer with leave to amend as to the cause of action for rescission and cancellation of the deed on the ground there were "insufficient allegations of fraud or undue influence to support [such] a cause of action."

The parties subsequently agreed Wooster could file a supplemental complaint alleging that Wooster had, since the filing of the original complaint, acquired the Stackpole portion of the property. Thereafter, in June 2010, Wooster filed a first amended and supplemental complaint. Again, the department demurred. This time, the trial court sustained the demurrer as to all causes of action with leave to amend.

In October 2010, Wooster filed his second amended and supplemental complaint. The department demurred again. The department also filed a motion to strike each of the causes of action in the complaint. This time, the trial court sustained the demurrer without leave to amend as to the first five causes of action. On the cause of action for nonperformance of a condition, the trial court concluded Wooster had failed to allege sufficient facts to show that the posting requirement was a condition subsequent to requiring forfeiture of the department's interest in the property. On the illegal contract cause of action, the court concluded Wooster had failed to allege sufficient facts to demonstrate that the conveyance of full development and hunting rights to the department was an illegal conveyance. On the two rescission causes of action, the trial court concluded Wooster had failed to sufficiently allege undue influence, fraud, or illegality in the creation of the conservation easement. Finally, the court concluded the quiet title cause of action failed because it was "solely dependent upon [Wooster] establishing the preceding four causes of action." As to the remaining cause of action for declaratory relief, the trial court ruled the action could proceed on that cause of action because a "request for a declaration as to the respective rights of the parties under the conservations easement is appropriate." The court also denied the motion to strike.

In February 2011, the department moved to strike the cause of action for declaratory relief on the ground that the only controversies alleged involved the same contentions asserted in the causes of action as to which the court had sustained the department's demurrer without leave to amend. Wooster opposed the motion to strike but acknowledged that, depending on the basis for the court's ruling as to the illegal contract cause of action, the motion might be well taken. Noting that the time for a motion for reconsideration had passed, the trial court denied the motion to strike.

In April 2011, the department tried again, filing a motion for reconsideration or, in the alternative, a renewed motion to strike. This time, in an attempt to clarify its original ruling overruling the demurrer on the declaratory relief cause of action, the trial court granted the motion to strike that cause of action in part, striking certain portions of the cause of action so that all that remained was the allegation that "[a] judicial determination and declaration is appropriate and necessary in order that the parties may ascertain their respective rights and duties with respect to the Property."

Recognizing that the trial court's ruling had gutted the sole remaining cause of action,*fn2 the department prepared a formal order that acknowledged that the court's ruling left "no remaining controversy alleged in the sixth cause of action . . . that would support the rendering of a declaratory judgment" and which provided that the declaratory relief cause of action was "stricken in its entirety." Wooster's attorney approved the order, and the court signed it.

Thereafter, in June 2011, the trial court entered a judgment of dismissal. Wooster timely appealed.

DISCUSSION

I

Conservation Easements

"Conservation easements are negative easements that impose specific restrictions on the use of the property" they cover. (Johnston v. Sonoma County Agricultural Preservation & Open Space Dist. (2002) 100 Cal.App.4th 973, 976.) By statute, a conservation easement is "any limitation in a deed, will, or other instrument in the form of an easement, restriction, covenant, or condition, which is or has been executed by or on behalf of the owner of the land subject to such easement and is binding upon successive owners of such land, and the purpose of which is to retain land predominately in its natural, scenic, historical, agricultural, forested, or open-space condition." (Civ. Code, § 815.1.) "A conservation easement is an interest in real property voluntarily created and freely transferable in whole or in part for the purposes stated in Section 815.1 by any lawful method for the transfer of interests in real property in this state." (Id., § 815.2, subd. (a).) "A conservation easement shall be perpetual in duration" (id., subd. (b)) and "shall not be deemed personal in nature and shall constitute an interest in real property notwithstanding the fact that it may be negative in character" (id., subd. (c)). "The particular characteristics of a conservation easement shall be those granted or specified in the instrument creating or transferring the easement." (Id., subd. (d).)

A state agency may acquire a conservation easement "if otherwise authorized to acquire and hold title to real property and if the conservation easement is voluntarily ...


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