California Court of Appeals, Second District, First Division
FRIENDS OF THE HASTAIN TRAIL et al., Plaintiffs and Respondents,
COLDWATER DEVELOPMENT LLC et al., Defendants and Appellants; MOUNTAINS RECREATION AND CONSERVATION AUTHORITY, Intervener and Respondent
APPEALS from a judgment and order of the Superior Court of
Los Angeles County, No. BC469573, Yvette M. Palazuelos,
Reversed with directions.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Brisbois Bisgaard & Smith, Roy G. Weatherup, Sheldon H.
Sloan, Wesley G. Beverlin and Raymond R. Barrera for
Defendants and Appellants.
Lyman & Prince and Stephen L. Jones for Plaintiffs and
Rome; Finestone & Richter; Law Offices of Eric F. Edmunds,
Jr., and Eric F. Edmunds, Jr., for Intervener and Respondent.
by Chaney, J., with Rothschild, P. J., and Chaney, J.,
concurring. Johnson, J., Dissenting.
Cal.Rptr.3d 274] CHANEY, J.
Defendants Lydda Lud, LLC (Lydda Lud), and Coldwater
Development LLC (Coldwater) appeal from a judgment declaring
a public trail easement was established by public dedication
through defendants' property for hiking, jogging, and dog
walking. Defendants contend the trial court erred in finding
a public dedication of such an easement. We conclude no
substantial evidence supports the court's finding that
the public acquired an easement through defendants'
property by implied dedication as provided for under Gion
v. City of Santa Cruz (1970) 2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29');">2 Cal.3d 29 [84 Cal.Rptr.
162, 465 P.2d 50] ( Gion ) (consolidated with
Dietz v. King ). We therefore reverse the judgment
and the subsequent award of attorney fees to plaintiffs.
AND PROCEDURAL SUMMARY
The Peak Trail
early part of the last century, the Beverly Hills and Los
Angeles fire departments constructed and maintained fire
roads in the cities' wilderness areas to facilitate
prevention and suppression of wildfires. In mountainous
areas the fire roads were originally situated atop
ridgelines, but by 1940 new roads had been constructed at
lower elevations for ease of use and to mitigate erosion. The
new fire roads ran near to and roughly parallel with the
ridgelines, and the original roads were abandoned.
litigation involves two parallel fire roads, an older one and
its newer replacement. The older road climbed to and ran
along an approximately 400-foot-long ridgeline running
roughly north and south in a steep, narrow, canyon-type area
of chaparral and oakwood in Los Angeles, approximately half a
mile west of Coldwater Canyon Drive and a mile east of Lake
Drive. By 1940, this road had been abandoned in favor of a
new fire road that ran immediately to the west of the
ridgeline and roughly parallel to it, but at a lesser
elevation. Some hikers continued to use the abandoned road,
and it came to be called the " Peak Trail" by some
because it led to a high point in the terrain that afforded a
360 degree view of Los Angeles. A permanent survey marker was
installed at the summit of the Peak Trail in 1952, becoming a
hiking destination. The Peak Trail was situated wholly on
The Hastain/Coldwater Trail
1940, the older fire road had been replaced by the "
Hastain Fire Road," which began at Coldwater Canyon
Drive and ran south southwest for a time before meandering
generally west to Lake Drive, like a backwards lazy L. The
northeastern half of the Hastain Fire Road ran through
undeveloped private property, some of it owned by
defendants' predecessors, and the southwestern half ran
through Franklin Canyon Park, which is public property.
Hastain Fire Road was used by hikers, bicyclists, equestrians
and dog walkers, some of whom called it the " Hastain
Trail" and some the " Coldwater Trail." These
users could access the road either [205 Cal.Rptr.3d 275] from
the northeast at Coldwater Canyon Drive or southwest at Lake
2004, a hiker on the Hastain Trail could transition to the
roughly parallel Peak Trail by climbing a moderately steep
embankment. In 2004, grading reduced this climb, making the
Peak Trail more accessible.
Development Along the Trails
early 1990's, residential construction began where the
Hastain Fire Road started at Coldwater Canyon Drive and moved
southward, roughly following the road. By the time of trial,
approximately 17 private residences existed in a gated
community along the road, and that portion of it taken over
by the development was rededicated as Beverly Ridge Terrace,
a private road. This development also eliminated the Peak
Trail north of its summit, such that by the time of trial
both the Hastain Fire Road and Peak Trail were roughly half
their original lengths, their northern halves having been
either rededicated or eliminated. Both now began
independently at the southern border of the Beverly Ridge
community, proceeded in parallel roughly southwestward, and
" joined" (via an embankment) after roughly 230
feet, after which the Hastain Fire Road continued generally
southwestward to Franklin Canyon Park and on to Lake Drive.
next four lots running south from the Beverly Ridge community
were purchased by Coldwater in 2011, and the two south from
those were purchased by Lydda Lud in 2006. Franklin Canyon
Park begins after the southernmost of these six lots, which
remain undeveloped except for the previously mentioned 2004
grading. The Hastain Fire Road runs through these lots and
through Franklin Canyon Park to Lake Drive, with a momentary
emergence from the park into a noncontiguous lot owned by
Lydda Lud. Mohamed Hadid, the managing member of both
Coldwater and Lydda Lud, planned to build large homes on the
parcels, believing this development too would result in
relocation and rededication of a portion of the Hastain Fire
Road. Hadid obtained the required permits and, in 2011,
Ellen Scott, who often used the Hastain Trail, observed the
2011 grading activity on defendants' property and
organized six or seven fellow users into an association
called the " Friends of the Hastain Trail," the
purpose of which was to prove the trail had been dedicated to
the public by operation of law as a result of its use by the
public for a prescriptive period of at least five continuous
years prior to March 1972. Scott created a Web site and sent
e-mails and distributed fliers seeking " legacy
hikers," i.e., those who had hiked the trail prior to
September 2011, Scott and the Friends of the Hastain Trail
filed a complaint to quiet title to a public recreational
trail easement through defendants' property. They alleged
the Hastain Trail had been impliedly dedicated to the public
as a result of 50 years of public use, including five years
of open and continuous use immediately prior to March 1972.
Plaintiffs sought injunctive relief preventing defendants
from blocking or eliminating the trail.
April 2012, the Mountains Recreation and Conservation
Authority (the MRCA), a partnership between the Santa Monica
and two park districts, joined the litigation by filing a
complaint [205 Cal.Rptr.3d 276] in intervention. We will
refer to Scott, the Friends of the Hastain Trail and the MRCA
as " plaintiffs."
answered the complaints and asserted affirmative defenses,
including laches, unclean hands, waiver, and the " Lack
of a Basis for Injunctive Relief." According to
defendants, the Hastain Trail was actually a fire road of the
sort that is routinely relocated or rededicated to
accommodate land development. Defendants disputed the
existence of the Peak Trail entirely, and alleged the
easement plaintiffs sought would render their property "
undevelopable" and " utterly useless."
trial took place over eight days, at the outset of which the
trial judge, counsel for both sides, Hadid, and two park
rangers walked and drove the length of the trail from
Franklin Canyon Park to the survey marker at the summit of
the Peak Trail.
showed the area surrounding the Hastain and Peak Trails is
unimproved and scenic, and has long been used by hikers and
others. At trial, Brian Bradshaw, plaintiffs' expert on
aerial photography, testified aerial photos taken from 1960
to 1971 showed the trails to be well established. Bradshaw
testified, " the main trail is the Hastain Trail which
has also been referred to as a fire road." Paul Edelman,
who worked for MRCA, testified MRCA patrolled and maintained
the resources inside Franklin Canyon Park, which he described
as " world-class." He characterized the Hastain
Trail as one of the park's main trails. Although the
summit (with its survey marker) was on private land (and not
on the park map), Edelman believed it was a key resource
because it allowed for a longer hike to a higher elevation
with a good view. MRCA's rangers patrolled the trails,
and MRCA felt obligated to protect the summit, which hikers
had long visited. Edelman had been on all parts of the trails
at various times, including in the fall of 1972, and
remembered yellow posts at the Hastain Trail trailhead
connected by a chain or cable to keep cars out. He thought
the barrier had been installed by the fire department and
indicated the trail was a public fire road. In 2011, he
became aware that Hadid had fenced off the trail.
Hastain Trail Legacy Hikers
identified the prescriptive time frame as March 1967 to March
1972, during which the Hastain Trail was used by seven legacy
testified at trial: James Goller, Larry Harrow, Joan Carl,
Frederic Harris, Carole Hemingway, Cynthia Foran, and Richard
testified he hiked the Hastain Trail on Sundays approximately
40 times per year from 1967 (and prior), when he was 10 years
old, to 1972 (and beyond), at first with his father, then six
times with his 12-member Cub Scout den, and later, as a
teenager, with friends.
hiked the trail from approximately 1963 to recently. During
the prescriptive period, he hiked the trail approximately
every other weekend in 1967 and 1968, and from 1970 to 1972,
sometimes with friends and sometimes by himself.
sculptor, testified she hiked the trail with her dog in the
mornings or late afternoons from October to April beginning
[205 Cal.Rptr.3d 277] in 1968. She would start from Coldwater
Canyon Drive and hike southward, usually turning around after
passing the peak, using the trail " [s]ometimes twice a
week, sometimes twice a month. Sometimes maybe not at
all." She eschewed hiking from May to September to avoid
heat and rattlesnakes. Carl believed the trail was public
property because it was " totally open," with a
garbage can for dog waste. Until shortly before trial she
thought it was called the " Coldwater Trail."
and Hemingway hiked the trail together four or five times a
week in the late afternoon or early evening during the
summers of 1970 and 1971, plus an occasional Thanksgiving or
Christmas holiday during those years. Harris would park
his car at the trailhead on Lake Drive (west of
defendants' property) and hike a circuit of the trail in
two different directions. He testified the Hastain Trail
" dumped out" on Coldwater Canyon Drive (north and
east of defendants' property). An average hike lasted
from one to two hours.
hiked the trail six or seven times in 1971, when she was 11
years old, half the time with an older brother and the other
half with some friends.
hiked the trail once in 1971, alone.
legacy hikers saw others on the Hastain Trail. Goller
testified he saw eight to 20 people over the course of each
of his hikes. Harrow saw between two and 12 people on the
trail every time he was on it. Carl occasionally saw
others in one's and two's, sometimes in groups of two
to four, including equestrians and dog walkers. Harris and
Hemingway always saw six to 12 cars parked at the trailhead
on Lake Drive, and between six and 20 people on the trail
during their hikes. Foran would see one or two other hikers
during each of her seven hikes. Saul saw no one else during
his one time on the trail.
estimated the trail took about two hours to hike. Assuming a
hiking day is six hours long (because most people do not hike
in the midday sun), plaintiffs calculated that approximately
12 people used the trail per day, which amounted to
approximately 4,000 per year.
Peak Trail Legacy Hikers
Goller, Harris, Hemingway and Foran testified they used the
Peak Trail during the relevant time period. Goller used it
approximately 40 Sundays a year from 1967 to 1972 (and before
and after that time), Harris and Hemingway used the trail
once or twice a week in the summers of 1970 and 1971, and
Foran used it seven times in 1971.
testified the Peak Trail was " really steep,"
" very narrow," " arduous," and a "
challenge." Harris testified the trail was " pretty
treacherous," and Hemingway said it was " steep,
had cliffs on both sides," and Harris had to "
push" her to climb it. Foran testified the Peak Trail
could not be reached on a minibike because the embankment
between it and the Hastain Trail was too steep.
testified to seeing anyone else specifically on the Peak
Trail. Harris testified he saw people " all over the
trail," which could mean both the Hastain and Peak
Trails, but the context indicates he meant the "
trail" from Lake Drive to Coldwater Canyon, which is the
Hastain Trail. He testified about the Peak Trail separately,
and never said he saw anyone on it.
Cal.Rptr.3d 278] Only Harris testified to using either of the
trails on any weekday, always accompanied by Hemingway.
the legacy hikers testified they almost always saw others on
the Hastain Trail, from two to possibly a dozen or more each
time, the trial court inferred many more must also have used
both the Hastain and Peak Trails. " The average was
about three to four other hikers," the court found,
which " [w]hen extrapolated over the hours of the day
and days of the year [amounted] to thousands of hikers over
the relevant period."
defense, Robert Pope, an expert on aerial photography,
testified he had examined three-dimensional photographs
depicting the Hastain Fire Road and its surrounding area
beginning in the mid-1920's, but found no definitive
evidence the Peak Trail ever existed. He did not dispute,
however, that a variety of people could have hiked to the
peak between 1967 and 1972. Frank Haselton, a viewshed
analysis expert, testified the Hastain Trail was visible from
some public vantage points but not from others. Ken Shank, a
surveying and grading expert who had prepared defendants'
building plans, testified homes could not be constructed on
defendants' lots if the requested public easement was
established, but it might be possible to reroute the Hastain
Trail to make room for the construction. He testified
defendants' building plans called for relocation of the
Hastain Fire Road.
testified he had been a global real estate developer for 40
years. He first visited the subject property in 2001 or 2002
and was aware that a fire road passed through it but believed
it could be relocated and rededicated. Before buying the
property, Hadid inspected the land and performed a title
check to discover if any easement or right-of-way existed,
finding none. If there had been an easement or restriction he
would not have purchased the property.
Statement of Decision and Judgment
October 2012, the trial court issued a tentative decision and
judgment in favor of plaintiffs. Plaintiffs thereafter filed
a proposed statement of decision, to which defendants
objected on the grounds, among others, that it failed to
address (1) " whether the court made an equitable
balancing of the hardship on the Property Owners that would
be imposed by granting the proposed implied easement on
Defendants' property" and (2) " whether the
court is required to or even attempted to fashion the
proposed easement as narrowly as possible to avoid prejudice
to the [Defendants] with regards to the scope and location of
the proposed easement on Defendants' property relative to
the Property Owner's ability to develop his property as
planned and to evaluate any hardship and/or balancing
hardships between the parties." In support of the
objections, Shank, the surveying and grading expert, proposed
that an alternative easement be created, one that allowed for
residential development of the area while preserving the
public's hiking experience.
April 17, 2013, the court overruled most of defendants'
objections and filed its judgment and amended statement of
judgment created an easement designated as the Hastain Trail
but which we will call the " Judgment Trail" to
distinguish it from the historical
Hastain Trail. The Judgment Trail is set out in three
segments. The first, tracking the Peak Trail, begins at the
summit and proceeds [205 Cal.Rptr.3d 279] southwestward for
233.72 feet, where it meets the Hastain Fire Road, and thence
atop the fire road for 620.86 feet to the border between
Coldwater Canyon's and Lydda Lud's parcels. The
easement is described in metes and bounds, as follows: "
COMMENCING AT THE NORTHWEST CORNER OF [LOT 1; defendants'
northernmost parcel], THENCE ALONG THE NORTHERLY LINE OF LOT
1, SOUTH 88° 22'30 EAST, 674.66 FEET TO THE POINT OF
BEGINNING, SAID POINT BEING THE CENTERLINE OF A 5.00 FOOT
WIDE TRAIL, KNOWN AS THE HASTAIN TRAIL, THENCE ALONG THE
HASTAIN TRAIL BEING 5.00 FEET WIDE AND LYING 2.50 FEET ON
EACH SIDE OF THE FOLLOWING DESCRIBED CENTERLINE THE FOLLOWING
1ST SOUTH 0.4° 53'25" WEST, 16.24 FEET THENCE;
2ND SOUTH 0.3° 15'56" EAST, 19.22 FEET THENCE;
3RD SOUTH 16° 29'43" WEST, 71.72 FEET THENCE;
4TH SOUTH 20° 21'13" WEST, 71.72 FEET THENCE;
5TH SOUTH 11° 45'02" WEST, 54.82 FEET TO A
POINT, SAID POINT HEREINAFTER REFERRED TO AS POINT
'A'. SAID POINT BEING THE TERMINATION OF THE 5.00
FOOT WIDE TRAIL AND THE BEGINNING OF THE 15.00 FOOT WIDE
THENCE, CONTINUING ALONG HASTAIN TRAIL BEING 15.00 FEET WIDE
AND LYING 7.50 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED
CENTERLINE THE FOLLOWING COURSES:
6TH SOUTH 1.5° 46'35" WEST, 138.25 FEET THENCE;
7TH SOUTH 31° 07'10" EAST, 99.68 FEET THENCE;
8TH SOUTH 38° 04'10" WEST, 98.16 FEET THENCE;
9TH SOUTH 46° 45'46" WEST, 92.28 FEET THENCE;
10TH SOUTH 49° 09'09" WEST, 15.98 FEET THENCE;
11TH SOUTH 18° 57'00" WEST, 15.45 FEET THENCE;
12TH SOUTH 08° 44'01" EAST, 59.10 FEET THENCE;
13TH SOUTH 03° 49'45" EAST, 95.96 FEET