Opinion
E065217
04-06-2017
ANLEX ROCK & MINERALS, INC., Plaintiff and Respondent, v. BRUBAKER-MANN, INC., Defendant and Appellant.
Elbert W. Muncy, Jr. for Defendant and Appellant. Stanley W. Hodge for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVBS1100529) OPINION APPEAL from the Superior Court of San Bernardino County. Pamela P. King and Wilfred J. Schneider, Jr., Judges. Reversed in part and affirmed in part with directions. Elbert W. Muncy, Jr. for Defendant and Appellant. Stanley W. Hodge for Plaintiff and Respondent.
Judge King presided over the trial and Judge Schneider signed the judgment.
I. INTRODUCTION
Plaintiff and respondent, Anlex Rock & Minerals, Inc. (Anlex), sought an easement over land owned by defendant and appellant, Brubaker-Mann, Inc. (Brubaker- Mann). The two are mining companies and competitors. Anlex alleged causes of action for two types of easements: (1) a public easement acquired by implied dedication, and (2) a private easement acquired by prescription or principles of equity. After a bench trial, the trial court found an implied-in-fact dedication of a road across Brubaker-Mann's property, and as a member of the public, Anlex had a right to use the dedicated road.
The courts of this state have long recognized that "it is not a trivial thing to hold that private property has been dedicated to public use." (Hays v. Vanek (1989) 217 Cal.App.3d 271, 281; accord, Allen v. Railroad Commission (1918) 179 Cal. 68, 85.) A common law implied-in-fact dedication requires "sufficient evidence that the property owner either expressly or impliedly manifested an unequivocal intention to offer the property for a public purpose and . . . an acceptance of the offer by the public." (Cherokee Valley Farms, Inc. v. Summerville Elementary Sch. Dist. (1973) 30 Cal.App.3d 579, 584-85.) Many of Brubaker-Mann's various arguments amount to the claim that there was insufficient evidence of an implied dedication to the public. We agree. Even viewing the evidence in the light most favorable to Anlex, there was no substantial evidence manifesting an unequivocal intent to offer the property to the public, by either Brubaker-Mann or its predecessors in title. We therefore reverse the portion of the judgment finding an implied dedication.
As we shall discuss, this determination does not end the matter. The trial court did not rule on Anlex's causes of action for a private easement, presumably because it found this unnecessary in light of the implied dedication finding. On remand, the court should consider and resolve the causes of action for a private easement on the existing record.
We affirm the portion of the judgment finding Anlex did not prove a claim for money damages. Anlex did not cross-appeal on this issue, and we thus have no reason to disturb this portion of the judgment.
II. FACTS AND PROCEDURE
A. The Second Amended Complaint
The operative complaint, Anlex's second amended complaint (SAC), alleges as follows:
In March 1999, Anlex obtained a mining claim from H.M. Peterson for certain real property near Barstow, California. The property is legally described as "[a] parcel of land located in the north end of the southwest corner of the claim known as Haney Brown Rock, located in Section 2, Township 9 North, Range 1 West, SBBM . . . ." We will refer to the location of Anlex's mining claim as Section 2.
Section 2 is adjacent to and directly west of certain other real property, which we shall call Section 1. Section 1 contains "Parcel 03" and "Parcel 09." Parcel 09 makes up the western part of Section 1, and Parcel 03 makes up the eastern part. Brubaker-Mann currently owns Section 1. Since at least the 1940's, a dirt road crossing Parcels 03 and 09 (the Road) has provided access to and from Anlex's mining claim in Section 2. Based on the actual, open, notorious, exclusive, hostile, and adverse use of the Road by Anlex's predecessors in interest, Anlex owns an easement by prescription that burdens Parcels 03 and 09.
Additionally, in 1966, Brubaker-Mann granted an express easement to Anlex's predecessor in interest to use the Road across Parcel 09. This express easement did not extend to Parcel 03. Brubaker-Mann granted the easement to settle pending litigation between the parties. After granting the easement, Brubaker-Mann also obtained title to Parcel 03. It erected a padlocked gate across the Road on Parcel 03, preventing Anlex from accessing Section 2.
Various members of the public had also openly, notoriously, and adversely used the Road on Parcels 03 and 09 for at least five years prior to 1972. The members of the public used the Road believing they had the right to do so and without seeking permission from the owners. Accordingly, the Road also became a "public" road by implied-in-law dedication.
Use of the Road as it crosses Parcels 03 and 09 is necessary for Anlex to access its mining claim in Section 2. Without the Road, Anlex has no ready access to state highways to transport the products of its mining claim.
Anlex's SAC alleges several causes of action, including: quiet title to a public road by implied-in-law dedication; quiet title to an easement by prescription; equitable estoppel; quiet title to an equitable easement based on the balancing of hardships; declaratory relief; and injunctive relief. The SAC also sought money damages for loss of sales based on Anlex's inability to access Section 2. B. The Bench Trial
The bench trial occurred over the course of three days. The parties adduced the following pertinent evidence:
1. Chain of Title and Location of the Pertinent Land
Parcel 03 makes up the east half of Section 1, and Parcel 09 makes up the west half of Section 1. Until 1956, Parcels 03 and 09 had the same chain of title. The federal government originally transferred Section 1 to the Southern Pacific Land Company (the railroad). In 1929, the railroad granted the State of California a right-of-way across Section 1 for a state highway, which became U.S. Highway 91 and later, Interstate 15. The railroad's conveyance of a right-of-way for the highway was itself "subject to a right of way of lawful width for any and all existing and lawfully established county roads."
Section 1 passed from the railroad to various parties. In 1946, the railroad conveyed Section 1 to an individual subject to "any and all easements and rights of way." The next two deeds in the chain of title do not reference any easements or rights-of-way. In 1956, the owners of Section 1 deeded Parcel 03 subject to "[e]asements of record." In 1961, the owners of Parcel 03 conveyed it subject to "[r]ights, rights of way and easements for public utilities, water companies, alleys and streets; and covenants, conditions and restrictions; now of record." The two 1973 deeds next in the chain of title also conveyed Parcel 03 subject to "[r]ights, rights of way and easements for public utilities, water companies, alleys and streets; and covenants, conditions and restrictions; now of record." Finally, in 1987, Brubaker-Mann acquired title to Parcel 03. The remaining deeds in the chain of title for Parcel 03 between 1973 and 1987 do not mention easements or rights-of-way.
Also in 1961, the state acquired portions of the northern part of Section 1 through condemnation. The state intended to use the land for "freeway purposes." These condemned portions of Section 1 did not include Parcels 03 and 09, which remained in private hands. After this condemnation in 1961, the deeds in the chain of title for Section 1 expressly referenced the order of final condemnation by superior court case number and recordation date, and the deeds explained the condemned land was not part of the property being conveyed.
In 1964, Brubaker-Mann acquired title to Parcel 09. Brubaker-Mann granted an easement across Parcel 09 to Howard Peterson in 1966. The easement was nonexclusive and for road purposes only.
See part II.B.5, post, for further discussion of the events leading to the Peterson easement.
Section 2 is adjacent to and west of Section 1. The federal government owns Section 2. The government authorized a mining claim for the land. As of 1966, Peterson owned this mining claim. In 1998, a principal in Anlex acquired the mining claim, and he transferred it to Anlex in 1999. Anlex did not, however, engage in mining activity. It held the mining claim until 2008, when it transferred the claim to Rock Yard-Tri, Inc. (Rock Yard). Rock Yard transferred the mining claim back to Anlex in 2009, after Rock Yard defaulted on its obligations to Anlex.
Anlex does not own the land in Section 2 but has a possessory interest in the land pursuant to the mining claim. The mining claim gives Anlex the right to take minerals from the land, transport them off the property, and sell them.
A third section of land, "Section 3," is adjacent to and west of Section 2. The federal government owned Section 3 until 1999, when it sold the land to a private party. Since 2005, Lansing Industries Profit Sharing Plan (Lansing) has owned Section 3.
These three sections of land are near the Fort Irwin Road exit off Interstate 15.
2. The Road
The Road crosses Brubaker-Mann's property in Section 1 and runs westbound into Section 2, where Anlex's mine is located. The Road is an offshoot of Meridian Road. Meridian Road runs south from Interstate 15 at the Fort Irwin Road exit. Meridian Road is a "spite," or a paved road "that comes off the freeway and stops."
The Road appeared on a United States Geological Survey (USGS) map from 1953 (exh. 35), labeled as an "Access road" and "Haul road."
In or around 1962, the state relinquished to the County of San Bernardino (County) "'existing State highway rights of way or newly constructed frontage and local roads'" in this area. A map of the relinquished roads recorded by the state in 1961 showed the state relinquished one-tenth mile of Meridian Road just south of Interstate 15 to the County, but only that short portion and no more.
A California Department of Transportation (CalTrans) map, approved by the Federal Highway Administration in 1997 (exh. 66, p. 1), designated the Road a "local" road. Anlex's expert witness, Paul Jacobs, identified another map that assigned the Road a "proposed designation" of "public road" (exh. 66, p. 2). The map nowhere stated that it is a CalTrans map or another public agency's map, it is not dated, and Jacobs did not know who had prepared the map.
A map produced by the County Department of Public Works in 2014 designated the Road a "non-maintained road" and an unnamed access road. Access roads may be either public or private. Nonmaintained roads are not necessarily private roads. The County owns some roads that it simply chooses not to maintain. Jacobs concluded the Road is a County road, based on its inclusion on the Department of Public Works map.
Brubaker-Mann called an incident reconstruction specialist from the County Department of Public Works. He reviewed County maps as part of his job duties. He did not find any documents in the County records showing the County owned the Road, nor did he find any documentation showing the County worked on the Road.
3. Brubaker-Mann's Gate and Access to the Road in Section 1
Julie Clemmer is the president of Brubaker-Mann. Prior to Brubaker-Mann's acquisition of Parcel 03 in 1987, its trucks used the Road to drive through Parcel 03 on their way to Parcel 09. It had the permission of the owner of Parcel 03 to use the Road.
After Brubaker-Mann acquired Parcel 03, it erected the gate on the Road in the early 1990's. Clemmer saw an increase in trash being dumped on the property around this time, which was also when the County had started to impose dump fees. Brubaker-Mann's property was a convenient location to dump trash because it was right off the highway. A body was also dumped on the property around that time. Additionally, Brubaker-Mann was experiencing theft and vandalism to their equipment, and it had to control certain conditions on the Road to comply with environmental regulations. Thus, Brubaker-Mann erected the gate to control traffic and access to its land. It erected a second gate to deter thieves and vandals in or around 2000. Clemmer was aware of other people using the Road to engage in theft and dumping as early as 1978, when she joined the company.
Anlex's investigator visited the gate approximately a dozen times over the course of a year. Although there was a sign posted that read "Keep Out," the gate was always open, and there was nothing preventing him from accessing the Road. He drove several miles past the gate on the Road. He also saw others using the Road; on a few occasions, he saw CalTrans trucks parked inside the gate, and he saw various off-road vehicles and pickup trucks on the Road, some as far as a mile down the Road. In contrast, Jacobs had visited the gate four times, and it was locked every time.
Clemmer visited Parcels 03 and 09 once a week or once every other week, and she had never seen any off-road vehicles on the property. It was not unusual for the gate to be open during business hours if employees were hauling product out of the property.
People continued to trespass on the Road even after Brubaker-Mann erected the gate. If a Brubaker-Mann driver saw someone on the Road who did not belong there, he or she contacted the office, and a foreperson drove out to confront the individual. The foreperson would explain the individual was on private property and ask him or her to leave. This had been Brubaker-Mann's practice since at least 1978. The trucks Anlex's investigator saw on the property may have been County trucks. The County had Brubaker-Mann's permission to access the Road and had a key to the gate.
Brubaker-Mann had expressly permitted others to use the Road at various times. Around 1997, Clemmer permitted one of Anlex's predecessors in interest to use the Road. In 2003, Clemmer permitted another party who had an adjacent mining claim to use the Road. After Anlex first obtained its mining claim, in 2000, Clemmer offered Anlex's agent permission to use the Road, subject to certain conditions. Anlex's agent thanked her but did not indicate whether he or Anlex would comply with the conditions. Between that time and 2008, Clemmer had no further contact with Anlex. When she drove by Anlex's mine during that period, she never observed any mining activity, and she never observed any trucks there or traffic to and from the location.
In 2008, when Anlex transferred its mining claim to Rock Yard for a short period, Clemmer offered Rock Yard access to the Road, subject to certain conditions. She had her attorney draft a written agreement for Rock Yard's use of the Road. Rock Yard declined the offer and filed suit against Brubaker-Mann. The parties never resolved the issue and Brubaker-Mann never permitted Rock Yard to use the Road on Parcels 03 and 09.
Clemmer did not object to Anlex using the Road to cross Parcel 09 because it had an easement there, by virtue of the express easement granted to Peterson in 1966. She objected to Anlex crossing Parcel 03, however, and recognized it had to cross Parcel 03 to access its easement in Parcel 09.
4. Access to the Road in Section 3
There was another way to access Anlex's mine in Section 2, aside from traveling through Brubaker-Mann's property in Section 1. West of Section 2, one could access the Road from Soap Mine Road, and take the Road eastbound through Lansing's property in Section 3. Adam Han is the vice president of Anlex. According to Han, after Anlex took the mining claim back from Rock Yard, Anlex asked for Lansing's permission to use the Road through Section 3. Lansing denied permission.
But Clemmer had observed trucks and mining equipment access Anlex's mine through Soap Mine Road and Section 3. Since 1978, the operators of Brubaker-Mann's mining equipment had sometimes taken this route to access Brubaker-Mann's property in Section 1. Two truck drivers employed by other companies testified they had taken the Road across Section 3 to access Anlex's mine.
Anlex received an offer from a Chinese company to buy the mining claim for $6.5 million in 2010. The Chinese company withdrew the offer several months later after investigating the site and discovering the "access route" to it had been blocked.
5. The 1965 Action By Brubaker-Mann Against Peterson, Anlex's Predecessor in Interest
Anlex submitted a series of exhibits (exhs. 42-49) from the San Bernardino County Superior Court file concerning an action instituted by Brubaker-Mann against Peterson in 1965 (Brubaker-Mann, Inc. v. H. M. Peterson, San Bernardino County Superior Court case No. 127262) (the Peterson Action). The complaint alleged Peterson repeatedly and frequently crossed Brubaker-Mann's property in Parcel 09 without its consent. Brubaker-Mann had allegedly put a chain across the Road to prevent his crossing, but Peterson tore the chain down and expressed his intent to continue doing so. The complaint prayed for a temporary restraining order and preliminary and permanent injunction to prevent Peterson and his agents from crossing Parcel 09.
Peterson filed a cross-complaint against Brubaker-Mann alleging he and his prior partners and predecessors in interest had operated a mine on Section 2 since 1954. The cross-complaint alleged the portion of the Road on Parcel 09 had existed and been open to the public for more than 10 years, and Peterson, as well as the public generally, had a prescriptive easement to use the Road. It further alleged Peterson and his predecessors in interest had been notoriously, adversely, and openly using the Road across Parcel 09 for more than 10 years. The cross-complaint prayed for injunctive and declaratory relief. Peterson also filed affidavits of his mining foreman and predecessor in interest.
The superior court records disclose that the court denied Brubaker-Mann's requests for a temporary restraining order and preliminary injunction, but granted both to Peterson. In 1966, the parties filed a stipulation for dismissal and dissolution of the preliminary injunction. On the same date the parties signed the stipulation, Brubaker-Mann granted Peterson the express easement across Parcel 09. C. The Court's Ruling After the Bench Trial
The court held as follows in its written ruling. Anlex had the right to use the Road extending from Meridian Road over Parcel 03 pursuant to "a common law dedication." Brubaker-Mann's predecessor dedicated the Road "by acquiescence and acknowledgement in deed." The Road was accepted by public use, and the Road had "consistently been depicted on maps as a public, non-maintained [C]ounty road." The Road was a public road.
The court found the deeds in the chain of title for Parcel 03 refer to County road easements and the state highway rights-of-way, and the only roads on Parcel 03 are the highway and the Road at issue here. Brubaker-Mann had notice of the public use of the Road by 1965 because of the Peterson Action, and Clemmer testified she had knowledge of the public's use of the Road dating back to 1978. The 1953 USGS map (exh. 35) depicted the Road over Parcel 03, and the 1961 map of the roads the state relinquished to the County (exh. 73) shows Meridian Road extending over Parcel 03. The 1997 CalTrans map (exh. 66) depicted the Road as a local public road, and the 2014 Department of Public Works map (exh. 70) depicted the Road as a nonmaintained County road.
On its own motion, the court took judicial notice of the Peterson Action, noting that Peterson's cross-complaint had alleged the Road was a public roadway, and Brubaker-Mann had granted Peterson an easement when the parties dismissed the action. The assertion in the Peterson Action that the Road was a public roadway was consistent with the Road's depiction on the 1953 USGS map and the 1961 map of roads relinquished to the County.
As to Anlex's claim for money damages, the court rejected it. It held the claimed damages arising out of the unsuccessful sale to the Chinese buyers were too speculative and the proof therefore insufficient.
The court entered a judgment for Anlex finding it had the right to use the Road over Parcel 03 of Section 1, pursuant to common law dedication by acquiescence and acknowledgement in deed. Brubaker-Mann filed a timely notice of appeal.
III. DISCUSSION
Brubaker-Mann raises a number of claims. Several of them amount to the argument that there was insufficient evidence of a common law dedication of the Road to the public. We agree and reverse on this ground. As we shall explain, we need not address most of Brubaker-Mann's remaining arguments. But we begin with Brubaker-Mann's contention that the court improperly relied on the file from the Peterson Action, since it contributes to our view that substantial evidence was lacking. After discussing common law dedications and the lack of evidence, we conclude the trial court must dispose of Anlex's unresolved causes of action for a private easement on remand. A. Judicial Notice of the File in the Peterson Action Was Proper for a Limited Purpose, But the Court Could Not Consider the Statements in the Documents as True
Brubaker-Mann asserts the court erred when it considered the pleadings and affidavits from the Peterson Action for the truth of the matters asserted in them, in violation of the hearsay rule. To the extent the court considered the statements in the documents as true, we agree this was error.
At the outset, we reject Anlex's assertion that Brubaker-Mann forfeited this argument. The record reveals Brubaker-Mann stipulated to the authenticity of exhibits constituting "government documents" so the parties would not have to obtain certified copies of them, and the court could admit them without further foundation being laid. Authenticity—that is, the notion that a written document is what it purports to be—is a preliminary or foundational fact distinct from other principles of evidence. (Evid. Code, §§ 403, subd. (a)(3), 1400.) And in this case, Brubaker-Mann expressly reserved the right to object to the government documents based on relevance and other grounds. Although the documents from the Peterson Action were on the exhibit list, no witnesses testified about them, and the court did not admit them into evidence during the trial. It was not until the court took judicial notice of them in its written ruling that the parties knew the court was relying on them. Given that Brubaker-Mann reserved the right to object on other grounds, and it was not made aware the court was admitting the documents until after trial, we decline to find a forfeiture of the hearsay objection.
Moving to the merits, the hearsay argument is well taken. California courts may take judicial notice of the records of other California courts. (Evid. Code, § 452, subd. (d); Mack v. State Bar (2001) 92 Cal.App.4th 957, 961.) But "[t]aking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning." (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.) While the court may take judicial notice of the existence of documents in court files (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22), the court may not treat allegations in pleadings and affidavits as true simply because they are part of the court file (Day v. Sharp (1975) 50 Cal.App.3d 904, 914). "The hearsay rule applies to statements contained in judicially noticed documents, and precludes consideration of those statements for their truth unless an independent hearsay exception exists." (North Beverly Park Homeowners Assn. v. Bisno (2007) 147 Cal.App.4th 762, 778.)
Here, it appears the trial court relied on the documents in the Peterson Action for their truth. In particular, the court found it significant that the Peterson Action "placed [Brubaker-Mann] on notice of the historical public use" of the Road. Any allegations in the pleadings and affidavits that Peterson and others used the Road were not admissible for their truth and could not constitute evidence of public use. To the extent the court considered the pleadings and affidavits as evidence of public use, that was error, as we shall discuss in part III.B., post. B. No Substantial Evidence Supported an Implied Dedication of the Road to the Public
The trial court ruled Anlex had a right to use the Road across Parcel 03 because of an implied dedication to the public through "acquiescence and acknowledgement in deed." We agree with Brubaker-Mann that there was insufficient evidence of an implied dedication.
Roadway easements "have been recognized since the very beginning of California statehood." (Bello v. ABA Energy Corp. (2004) 121 Cal.App.4th 301, 317; see also Civ. Code, § 801, cl. (4).) "An easement is a restricted right to specific, limited, defineable use or activity upon another's property, which right must be less than the right of ownership." (Mesnick v. Caton (1986) 183 Cal.App.3d 1248, 1261, italics omitted.) An analysis of a right-of-way dispute must begin with the easement's method of creation.
A private easement by prescription, which was one theory Anlex advanced in its SAC, requires a party's "use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years." (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570.)
But the trial court relied on common law dedication, another theory advanced by Anlex. Dedications are one way of creating public roadway easements. Dedications are uncompensated transfers of an interest in private property to the public. (Rohn v. City of Visalia (1989) 214 Cal.App.3d 1463, 1470.) They may arise under statute or the common law. (Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810, 820 (Friends of the Trails).) A common law dedication "'partakes both of a nature of a grant and a gift, and is governed by the fundamental principles which control such transactions.'" (Union Transp. Co. v. Sacramento County (1954) 42 Cal.2d 235, 240 (Union Transp.), superseded on another ground by Sts. & Hy Code, §§ 941, 1806.) The dedication requires an offer by the owner of the land to dedicate the land to a public use. (Ibid.) The owner's words or acts must clearly and unequivocally indicate the offer. (Ibid.)
Common law dedications may be implied-in-fact or implied-in-law. (Friends of the Trails, supra, 78 Cal.App.4th at p. 821.) Implied-in-law dedications arise "when the public use is adverse and exceeds the period for prescription." (Ibid., italics omitted; Simpson Redwood Co. v. State of California (1987) 196 Cal.App.3d 1192, 1202-1203, fn. 4.) In such cases, the public's continuous, adverse use for five years or more establishes against the owner a conclusive presumption of knowledge and acquiescence and, thus, dedication. (Union Transp., supra, 42 Cal.2d at p. 241.) Implied-in-fact dedications arise "when the period of public use is less than the period for prescription and the acts or omissions of the owner afford an implication of actual consent or acquiescence to dedication." (Friends of the Trails, supra, at p. 821.) Accordingly, the public's intent and activities are the focus when seeking to prove an implied-in-law dedication, while the owner's intent and activities are the focus when seeking to prove an implied-in-fact dedication. (Gion v. City of Santa Cruz (1970) 2 Cal.3d 29, 38, superseded by statute on another ground as recognized in Friends of the Trails, supra, at pp. 822-823.)
An owner's intent to dedicate property to the public "may be established in every conceivable way in which such intention may be manifested." (Smith v. Kraintz (1962) 201 Cal.App.2d 696, 700.) But "it is not a trivial thing to hold that private property has been dedicated to public use. [Citations.] If a landowner's intent to dedicate property to public use is to be implied, that purpose must clearly appear from the surrounding circumstances." (Hays v. Vanek, supra, 217 Cal.App.3d at p. 281.)
In addition to an offer to dedicate, an implied-in-fact dedication requires the public to accept the dedication. (Union Transp., supra, 42 Cal.2d at p. 240; Hays v. Vanek, supra, 217 Cal.App.3d at p. 281.) A dedication is not complete until there has been an acceptance, and the owner may revoke the offer of dedication at any time before acceptance. (Baldwin v. City of Los Angeles (1999) 70 Cal.App.4th 819, 837.) Upon acceptance, the rights of the public in the dedicated property immediately vest. (Union Transp., supra, at p. 241.) The public may accept a dedication through a formal acceptance by a public entity; actions by a public entity indicating assumption of control over the property, such as maintenance or repair work; or public use of the property. (Baldwin v. City of Los Angeles, supra, at p. 837; Smith v. Kraintz, supra, 201 Cal.App.2d at p. 701.)
In the present case, the trial court found the Road "extending westward across Parcel 03 . . . was dedicated for public use by acquiescence of the owner, as opposed to by prescription." Additionally, the court found the "implied public dedication was accepted by public use." Thus, the type of dedication with which we are concerned is an implied-in-fact dedication.
Brubaker-Mann contends there was insufficient evidence of both an offer to dedicate the Road—which it calls "actual consent" to the dedication—and acceptance by the public. The existence of an implied-in-fact dedication is a question of fact that we review for substantial evidence. (Hays v. Vanek, supra, 217 Cal.App.3d at p. 282; Cherokee Valley Farms, Inc. v. Summerville Elementary Sch. Dist., supra, 30 Cal.App.3d at pp. 585-586.) We "'accept as true all evidence tending to establish the correctness of the finding as made, taking into account, as well, all inferences which might reasonably have been thought by the trial court to lead to the same conclusion.'" (Hanshaw v. Long Valley Road Assn. (2004) 116 Cal.App.4th 471, 481.) We resolve conflicts in the evidence in favor of the finding. (Ibid.) Even under this deferential standard of review, however, there was no substantial evidence of an implied-in-fact dedication.
We begin with Brubaker-Mann's period of ownership over Parcel 03 commencing in 1987. Its conduct does not support an implied offer to dedicate the Road to the public. Brubaker-Mann restricted access to the Road by erecting the gate in the early 1990's. Between 1987 and that time, Clemmer was aware of people coming onto the property to commit theft or dump trash, but if Brubaker-Mann employees saw someone on the property, they would inform the person he or she was on private property and ask the person to leave. After it erected the gate, it expressly granted various parties permission to use the Road subject to certain conditions. One cannot reasonably infer from Brubaker-Mann's restricting and controlling access to the Road that it intended to offer the Road to the public. (See City of Los Angeles v. White (1945) 68 Cal.App.2d 192, 195-196 [the owner's attempt to barricade a road and close it to traffic showed the owner did not intend to dedicate the land to a public use].) It does not "clearly appear from the surrounding circumstances" that Brubaker-Mann intended to dedicate the Road. (Hays v. Vanek, supra, 217 Cal.App.3d at p. 281.)
Indeed, the court's findings suggest it relied on a prior owner's conduct to imply an offer of dedication. It found "the predecessor in title dedicated [the Road] by acquiescence and acknowledgement in deed, . . . and the [R]oad was accepted by public use." (Italics added.) But the specific predecessor in title to which the court refers is not set forth in the ruling. The record contains very little information regarding the conduct of prior owners. What does appear in the record does not support an implied offer of dedication by them.
First, any statements in the pleadings and affidavits from the Peterson Action suggesting prior owners permitted the public to use the Road were not admissible for their truth. As we discussed in part III.A., ante, the court could take judicial notice of the existence of these documents, but it could not treat the statements in the documents as true, particularly mere allegations in pleadings and affidavits. The statements were hearsay, and Anlex has not identified any hearsay exception that would apply. (North Beverly Park Homeowners Assn. v. Bisno, supra, 147 Cal.App.4th at p. 778.)
Second, the deeds executed by prior owners do not support a clear and unequivocal offer of dedication. Some of the deeds in the chain of title conveyed Parcel 03 subject to "any and all easements and rights of way" (1946 deed), "[e]asements of record" (1956 deed), or "[r]ights, rights of way and easements for public utilities, water companies, alleys and streets . . . now of record" (1961 and 1973 deeds). But there is no evidence to connect these vague references to "easements" to the Road, such that the trier of fact could reasonably infer the owners (1) meant to reference the Road, and (2) meant to reserve the Road for the public, as opposed to reserving a private easement.
As we have discussed, one other deed in the chain of title referred to a right-of-way, although the deed did not effect a conveyance of Parcel 03. That is the 1929 deed granting the state a right-of-way for the highway, "subject to a right of way of lawful width for any and all existing and lawfully established county roads." There is no evidence in the record that the Road existed as early as 1929, much less that it was a "county road" then. None of the maps in the record date to 1929. The earliest appearance of the Road on a map in the record is in the 1953 USGS map.
The failure of proof becomes all the more evident when we compare this case with those in which courts have implied an offer of dedication from deeds and their surrounding circumstances. For instance, in Santa Ana v. Santa Ana Vall. Irr. Co. (1912) 163 Cal. 211, the Supreme Court found sufficient evidence of an implied offer to dedicate a public easement where a prior owner reserved 25-foot wide strips of land for "'road purposes'" in the deeds conveying his property to his successors in interest. (Id. at pp. 215-217.) The deeds did not refer specifically to an existing highway, but there was evidence that, at the time of the conveyances, an open road or highway actually existed on the property and the public traveled on it "without objection or hindrance" from the owner. (Id. at pp. 217-218.) The owner knew of the public's use. (Id. at p. 218.) The language reserving land for road purposes, in combination with the existing highway and public use of it, evidenced an intent to dedicate a public easement for the existing highway. (Id. at p. 217.) In contrast, here, there is no evidence that the public was actually traveling over the Road between 1946 and 1973 (the period during which the pertinent deeds were executed), or that the prior owners who executed the deeds during that period knew of such use and allowed it.
Along the same lines, in Smith v. Kraintz, supra, 201 Cal.App.2d at pages 699 to 700, the owner's deed and conduct evinced a clear intent to dedicate a roadway to the public. The first owner's deed to his successor in interest reserved a "'non-exclusive right of way for road purposes and public utilities,'" and although a road did not exist at the time, the deed described a portion of the property where a road and ramp were constructed that same year or the following year. (Id. at p. 699.) The first owner, along with neighboring property owners and Contra Costa County, supplied materials or funds for the construction. (Ibid.) From the time of the ramp's construction, "'anyone, or everyone'" used it without asking the second owner's permission. (Ibid.) Thus, the owner unequivocally indicated his intent to dedicate a public roadway by reserving the right-of-way in the deed to his successor, specifically describing the area where the right-of-way would exist, and then contributing to the construction of that right-of-way in conjunction with the public. The facts before us—general references in deeds to easements or rights-of-way—are in no way analogous.
If prior owners did not offer to dedicate the Road, it follows that any acts of acceptance by the public were immaterial. Implied-in-fact "[d]edication is the joint effect of an offer by the owner to dedicate land and an acceptance of such offer. There can be no dedication without the participation of both." (County of Inyo v. Given (1920) 183 Cal. 415, 419; accord, City of Santa Clara v. Ivancovich (1941) 47 Cal.App.2d 502, 511 ["'Of course, there can be no acceptance of an offer of dedication before it is made or which has never been made. . . .'"].) Thus, we are not persuaded that individuals using the Road as early as 1978 to dump trash and commit theft effected an acceptance, even assuming such activities could be considered "public use." Nor are we persuaded by Anlex's argument that the Road's appearance on public agency maps implied an acceptance. Anlex maintains the Road's depiction on such maps showed public officials assuming control over the Road. But the public could not accept something the owners never offered. (See City of Santa Clara v. Ivancovich, supra, at pp. 511-512 [holding that formal and official acts of acceptance by a public entity did not result in a completed dedication when there was no valid offer of dedication].)
Anlex also claims the Peterson Action put Brubaker-Mann "on notice" that the Road was a public roadway, and Brubaker-Mann granted Peterson an express easement across Parcel 09 because it recognized the public status of the Road. This argument also fails to persuade. The Peterson Action merely put Brubaker-Mann on notice that Peterson was alleging the Road was public. If anything, Brubaker-Mann's granting Peterson an easement suggests it was denying the public's right to the Road. If the Road were public, there would have been no need for Peterson to have a private easement. He would have been within his rights to use the Road as a member of the public. Moreover, Brubaker-Mann's express grant of a private easement to Peterson on Parcel 09 cannot reasonably be construed as implying a public easement on the adjacent Parcel 03, which an entirely different party owned at the time.
Furthermore, the cases cited in the ruling below do not convince us there was substantial evidence of an implied dedication. While each found an implied dedication, each is distinguished easily based on the quality and quantity of evidence in the case. In Union Transp., for many years, ranchers in the area and their friends had used the roadway at issue to provide access to a highway. (Union Transp., supra, 42 Cal.2d at p. 238.) But various members of the public had also traveled over it approximately once a week and sometimes as many as 20 times in a day. (Ibid.) The roadway was graded twice a year, and county-owned equipment was used. (Ibid.) In addition, someone other than the owners had done maintenance and repair work on the property, and the owners did not object to or interfere with the users. (Id. at p. 241.) The court held the "evidence clearly support[ed] the determination that the [property] had been used by the public for a period of at least 12 years and that such use was known by the owners of the land." (Ibid.) In view of the substantial adverse public use of the property for more than five years without objection or interference by the owners, there was an implied dedication. (Ibid.) There is no analogous evidence in this case of the public using the Road so frequently and without interference, nor is there evidence a public entity maintained or repaired the Road.
Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278 is even further afield. That case concerned a roadway dedicated "principally by a federal statute." (Id. at p. 292.) The federal statute in issue was "the federal act of July 26, 1866 (14 Stat. 251, 253)," known popularly as "R.S. 2477." (Id. at pp. 294-295.) R.S. 2477 granted a right-of-way for construction of highways over federal lands. (Ibid.) It was, in effect, an offer of dedication to the public by the federal government, and the public could accept it according to state law principles governing dedications. (Id. at p. 296.) When the federal government later conveyed its land, the grants were subject to any R.S. 2477 highways that already existed on the land. (Ibid.) In Western Aggregates, Inc., ample evidence showed the roadway at issue existed in 1866 when the federal government enacted R.S. 2477. (Id. at pp. 285-286.) The court concluded the United States Congress made an actual offer of dedication via R.S. 2477, and the public accepted the offer of statutory dedication by public use after 1866, depiction of the roadway on official maps thereafter, and public repair of the roadway. (Id. at p. 298.) In contrast, the instant case presents no evidence whatsoever that the Road was the product of an R.S. 2477 offer of dedication. There is no evidence the Road existed in 1866 or soon after, or that the public accepted it before Section 1 fell into private hands.
The third case the ruling cites is equally inapposite on the facts. In Hays, the roadway in issue ran through a subdivision of homes in rural Alpine. (Hays v. Vanek, supra, 217 Cal.App.3d. at pp. 276-277.) The court was "struck by the broad commercial realities of the situation," in that the roadway "bisected the subdivision and, as such, its designation as a public road seems an almost necessary step for a developer." (Id. at p. 282.) Beyond this broader view, the deeds in the chain of title provided evidence of the owner's intent. The owner created a map of the subdivision showing the roadway and then conveyed parcels within the subdivision that could only be accessed by the roadway. (Ibid.) His deeds did not reserve easements for use of the roadway, but they reserved lateral easements from the roadway that were necessary to access parcels not abutting the roadway. (Ibid.) The court concluded it made no sense to create the lateral easements from the roadway unless the owner understood and intended the roadway itself to be a public way. (Ibid.) The language in one deed in particular supported this view of an implied offer of public dedication. This deed described a parcel that overlapped the roadway in two spots, but then subtracted from the description "'that portion which is dedicated for road.'" (Ibid., fn. omitted.) The court found it "highly unlikely" the owner would have used the term "dedicated," a legal term of art, had he not intended the roadway to be a public road. (Ibid.) Thus, the owner's implied offer of dedication arose from the subdivision layout he created, his deeds reserving lateral easements from the main roadway, and his use of the term "dedicated." We are not in any way dealing with similarly clear indicators of an owner's intent.
Finally, we note that the court declined to find an implied-in-law dedication for good reason. The type of public use required to accept an implied offer of dedication based on the owner's conduct is different than the type of public use required to imply both an offer of dedication and an acceptance. "[W]here an intent to dedicate is implied as a legal fiction from the nature of public usage, the caselaw [sic] requires a high standard of usage, lest private property rights be too easily diminished." (Hanshaw v. Long Valley Road Assn., supra, 116 Cal.App.4th at p. 482.) In addition to the use persisting continuously for at least five years, "'[t]he 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.'" (Ibid.) The public must have also used the property without asking or receiving permission and without objection or interference. (Gion v. City of Santa Cruz, supra, 2 Cal.3d at p. 38.) Assuming we could characterize entering the property to commit crimes or wrongdoings as substantial, diverse, and continuous use for five years, we know Brubaker-Mann objected to this use and interfered with it when employees saw unauthorized persons on the property. The record does not support the high standard of public usage required to form an implied-in-law dedication. C. On Remand, the Court Should Rule on the Remaining Causes of Action Alleging a Private Easement
Although Anlex failed to prove an implied dedication to the public, it alleged several other causes of action on which the trial court did not rule. These include (1) a private easement by prescription, and (2) an equitable easement based on a balancing of hardships between the parties. These issues present questions of fact and judicial discretion on which the trial court should rule first. (Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d at p. 570 [whether the elements of a prescriptive private easement have been established is a question of fact for the trial court]; Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1008 [the trial court exercises its equity powers in fashioning an equitable easement, and the appellate court reviews the ruling for abuse of discretion].)
Accordingly, we will remand for the trial court to rule on the remaining causes of action for a private easement alleged in the SAC and pursued at trial. (See In re Marriage of Fonstein (1976) 17 Cal.3d 738, 751 [finding reversible error and remanding for the trial court to make new factual determinations on the existing record and enter a new judgment]; England v. Christensen (1966) 243 Cal.App.2d 413, 435-436 [reversing and remanding for the trial court to make new findings of fact and conclusions of law and enter a new judgment].) We are not suggesting the court should conduct a new trial. After considering the evidence in the existing record, the court should make findings of fact and conclusions of law on the remaining causes of action and enter a corresponding judgment.
Brubaker-Mann asserts in a summary manner that, assuming we reverse the judgment, "there was no evidence that Anlex could prevail on any other Cause of Action," and it urges us to direct a judgment in its favor on all causes of action. Such a "conclusory presentation, without pertinent argument or an attempt to apply the law to the circumstances of this case, is inadequate." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) The trial court should consider the other causes of action on remand, as explained. D. While Some of Brubaker-Mann's Remaining Arguments Are Moot, Others Are Not and May Be Considered on Remand
In light of our conclusion that there was no substantial evidence of an implied dedication to the public, we need not address several additional arguments that Brubaker-Mann advances on appeal.
For instance, Brubaker-Mann argues the Legislature abolished implied dedications with the enactment of Civil Code section 1009 in 1972. Civil Code section 1009, subdivisions (b), (d), and (e), provides "public use of private real property after [the] effective date shall never ripen to confer vested rights to continue such use under the implied dedication doctrine unless (1) a government entity expended public funds to improve or maintain the land for public use or (2) the land lies within 1,000 yards of coastal waters." (Friends of the Trails, supra, 78 Cal.App.4th at p. 823.) Neither condition applies here. The Road does not lie within 1,000 yards of the coast, and a government entity did not expend funds to maintain or repair the Road. Anlex responds that Civil Code section 1009 abolished implied dedications only when the public uses private property for recreational purposes, but when it uses the property for nonrecreational purposes, an implied dedication may still result. (Hanshaw v. Long Valley Road Assn., supra, 116 Cal.App.4th at pp. 484-485 [holding Civ. Code, § 1009 does not abolish implied dedications arising from public nonrecreational use].) We need not resolve whether Civil Code section 1009 abolished implied dedications arising from nonrecreational public use because, either way, there was insufficient evidence of an implied dedication to the public.
Brubaker-Mann also contends Anlex had no standing to bring a cause of action for implied dedication to the public because Anlex was asserting its private property rights to use the Road, not those of the public at large. Additionally, Brubaker-Mann contends the court violated its due process rights by finding the Road to be public in a manner not pleaded by Anlex. The SAC pleaded a cause of action for implied-in-law dedication, not implied-in-fact dedication. These arguments are also moot, given that the evidence was insufficient to find an implied dedication.
Brubaker-Mann's statute of limitations and extinguishment arguments, however, are not moot. As discussed, Anlex has asserted causes of action for a private easement that the trial court must resolve on remand. Brubaker-Mann contends this action was untimely, regardless of whether the theory is an implied dedication or a private easement. It lastly contends Anlex's nonuse of the Road extinguished any prescriptive easement on Parcel 03. (Civ. Code, § 811, cl. (4) [providing that a servitude acquired by prescription may be extinguished by disuse of the servitude for the same prescriptive period].) These arguments follow even when the easement is a private one.
Brubaker-Mann has preserved both of these arguments by raising them in its answer, trial brief, and posttrial briefs. Both arguments also require the resolution of factual issues on which the trial court should rule as the trier of fact. (Cleveland v. Internet Specialties West, Inc. (2009) 171 Cal.App.4th 24, 31 ["'Resolution of the statute of limitations issue is normally a question of fact.'"]; McCarty v. Walton (1963) 212 Cal.App.2d 39, 45 [observing that whether a party's acts extinguished an easement presented a question of fact for the trial court].) Because we are remanding for the court to rule on the private easement causes of action, the court may also consider these fact-based defenses as they relate to the private easement causes of action.
IV. DISPOSITION
The portion of the judgment holding Anlex has a right-of-way over Parcel 03 pursuant to a common law dedication is reversed. The portion of the judgment holding Anlex failed to prove a claim for money damages is affirmed. On remand, the trial court shall resolve Anlex's causes of action alleging a private easement by prescription and an equitable easement. The court shall then enter an amended judgment (1) against Anlex on the cause of action for an implied dedication to the public, (2) against Anlex on its claim for money damages, and (3) setting forth its determination as to the remaining causes of action. Brubaker-Mann shall recover its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. SLOUGH
J.