Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. EC039565, Michael S. Mink, Judge.
Gary L. Holmes for Plaintiff and Appellant.
James E. Nelson and Dan Hogue for Defendants and Respondents.
BIGELOW, J.
This appeal arises from Gregg Management’s (Gregg) action against Ernest Payne and Rosemary Sandoz-Payne (the Paynes) for declaratory relief, injunctive relief, and damages. Gregg’s operative complaint alleges that the Paynes are interfering with his use of an easement, which was created by grant deed in 1955, and which permits Gregg to travel across land owned by the Paynes –– “Parcel 2” –– to gain access to his property. The Paynes filed a cross-complaint seeking a determination that the easement over Parcel 2 has been extinguished by adverse possession. Following a court trial on equitable issues, the trial court ruled that Gregg enjoys a valid easement over Parcel 2, but has no easement rights over a different piece of land owned by the Paynes –– “Parcel 3.” The trial court’s ruling has real-life consequences for Gregg because Parcel 3 lies between Parcel 2 and the nearest public street, meaning Gregg has the ostensible right to travel across the easement which he enjoys over Parcel 2, but is then lawfully blocked from reaching the public street because he has no right to travel across Parcel 3. After the trial on equitable issues, the trial court granted the Paynes’ motion for summary judgment, ruling that Gregg cannot establish that he has suffered any damages caused by the Paynes’ alleged interference with Gregg’s easement over Parcel 2. Following entry of a final judgment incorporating the trial court’s ruling on equitable issues and summary judgment, Gregg filed that appeal that is before us today.
We affirm.
FACTS
A. The Original Lay of the Land
In 1907, Tu Junga Company (an Iowa corporation hereafter Tu Junga) recorded a subdivision map establishing the Hansen Heights tract in Los Angeles County. Today, Hansen Heights is part of Shadow Hills, a foothill community in the City of Los Angeles, roughly 20 miles northwest of downtown.
The current case involves four lots and a street shown on the 1907 subdivision map for the Hansen Heights tract. As drawn on the subdivision map, the northerly boundaries of “Lot 15” and “Lot 38” touched on a designated roadway identified as McBroom Street. Directly across the designated roadway, the southerly boundaries of “Lot 14” and “Lot 39” touched on McBroom Street. The easterly boundary of Lot 15 and the westerly boundary of Lot 38 were one and the same. The easterly boundary of Lot 38 touched on another roadway, which is now known as Wheatland Avenue.
In 1909, Tu Junga executed a grant deed conveying several lots in the Hansen Heights tract –– as established by the 1907 subdivision map –– to Eucalyptus Estates Company (a California corporation hereafter Eucalyptus), including Lots 15, 38, 14, and 39. The grant deed executed by Tu Junga expressly identified Lots 15, 38, 14, and 39 by reference to the 1907 subdivision map.
Under the language used in Tu Junga’s original grant deed, Eucalyptus acquired a fee title interest in Lots 15, 38, 14, and 39 to the center line of McBroom Street. (Civ. Code, § 1112; see also Moody v. Palmer (1875) 50 Cal. 31, 36-37.) In addition to Eucalyptus’s fee title interest in Lots 15, 38, 14, and 39 to the center line of the strip of land where McBroom Street was located, the common law at the time further recognized that Eucalyptus also “acquire[d] an easement in the street fronting [each] lot, for the purposes of ingress and egress, which attache[d] to [each] lot, and in which [Eucalyptus] ha[d] a right of property as fully as in the lot itself . . . .” (Eachus v. Los Angeles etc. Ry. Co. (1894) 103 Cal. 614, 617.)
In the years following 1909, Eucalyptus began executing grant deeds conveying its lots in the Hansen Heights tract to individual owners. In 1912, Eucalyptus deeded Lot 15 to Luke Houghton. The grant deed from Eucalyptus to Houghton expressly identified Lot 15 by reference to the 1907 subdivision map. In 1913, Eucalyptus deeded Lot 38 to Noboru Omura. The grant deed from Eucalyptus to Omura expressly identified Lot 38 by reference to the 1907 subdivision map.
During the 1920s, Southern California Edison Company (Edison) came calling on property owners in the Hansen Heights tract, seeking rights-of-way for the company’s “Big Creek Transmission Lines” to deliver hydroelectric power to the Los Angeles area. In 1926, Luke Houghton and his wife, Frances Houghton, executed a grant deed conveying a strip of land (150 feet wide) within the boundaries of Lot 15 to Edison for its transmission towers and lines. In 1928, Noboru Omura and his wife, Tauru Omura, executed a grant deed conveying a strip of land (150 feet wide) within the boundaries of Lot 38 to Edison for its transmission towers and lines.
Edison’s newly acquired land (and its power lines) ran east-west through Lot 15, and effectively sliced Lot 15 into two portions, one portion lying north of Edison’s land and still fronting on McBroom Street, and the other portion lying south of Edison’s land and no longer fronting on McBroom Street. In the same manner, Edison’s newly acquired land (and its power lines) ran east-west through Lot 38, and effectively sliced Lot 38 into two portions, one portion lying north of Edison’s land and still fronting on McBroom Street, and the other lying south of Edison’s land and no longer fronting on McBroom Street.
During the 1930s, the portion of Lot 38 lying north of Edison’s land, and still fronting on McBroom Street, came to be owned by Isabella Bright and her husband, Miller Bright (the Brights). The grant deeds in the chain of title expressly identified Lot 38 by reference to the 1907 subdivision map. The parties agree that the Brights also acquired the portion of Lot 38 lying south of Edison’s land, and no longer fronting on McBroom Street.
B. The Creation of Parcel 2
In 1944, Frances Houghton (then a widow) measured out a 60-foot wide strip of land in the northeasterly corner area of her Lot 15, fronting on McBroom Street and adjacent to Lot 38, and executed a grant deed conveying the strip of land to her next-door neighbors, the Brights, who then owned the adjacent Lot 38. The grant deed for the 60-foot wide strip of land carved out of Lot 15 by Houghton and conveyed to the Brights expressly stated that the land “lies north of the northerly line” of Edison’s land crossing Lot 15. The parties and trial court labeled this strip of land carved out of Lot 15 as “Parcel 2.”
So, by the mid-1940s, the Brights owned the portion of Lot 38 lying north of Edison’s land, and fronting on McBroom Street on the north, and fronting on Wheatland Avenue on the east. At the same time, the Brights owned the portion of Lot 38 lying south of Edison’s land, no longer fronting on McBroom Street, and fronting on Wheatland Avenue on the east. And, during this same time frame, the Brights also owned Parcel 2, the 60-foot wide piece of land carved out of Lot 15, lying north of Edison’s land, in the area of the common boundary between Lot 15 and Lot 38, fronting on McBroom Street.
C. The Creation of the Easement over Parcel 2
On December 20, 1955, Isabella Bright (then a widow) executed a grant deed con-veying the portion of her Lot 38 lying south of Edison’s land to Eugene and Marguerite Dodd (the Dodds). By the same 1955 grant deed, Bright also conveyed to the Dodds a 20-foot wide easement over Parcel 2 “for ingress and egress . . . over [Parcel 2].”
So, from the mid-1950s and onward, the Dodds were able to access their portion of Lot 38 lying south of Edison’s land from two directions: (1) from Wheatland Avenue on the east, or (2) from McBroom Street on the north, by traversing the easement over Parcel 2, and by then also crossing Edison’s land, and then entering the Dodds’ portion of Lot 38 lying south of Edison’s land.
D. The Relocation of McBroom Street
At some point in time, the City of Los Angeles (the City) constructed street improvements in the area of McBroom Street and Wheatland Avenue. A copy of a map on file at the Los Angeles County Department of Public Works shows that the City obtained judgments condemning real property for the street improvement project during the 1940s. The record, however, is murky as to the dates upon which the City actually started and completed the road construction work. The trial court found that the City relocated McBroom Street “[s]ometime prior to 1955.” Regardless of the date, the City’s street improvement project –– in general terms –– relocated McBroom Street northward in the area where Lot 15 and Lot 38 shared their common boundary.
The relocation of McBroom Street northward placed the roadway onto parts of Lot 14 and Lot 39, which, as noted above, were located directly opposite Lot 15 and Lot 38, on the other side of the original location of the roadway as shown on the 1907 sub-division map. After the relocation of McBroom Street northward, small “remnants” of Lot 14 and Lot 39 were left “stranded” south of the new location of McBroom Street. In other words, a small piece of Lot 14 and a small piece of Lot 39, which had once been located on the north side of the original location of McBroom Street, were then on the south side of the relocated McBroom Street, on the same side of the roadway as Lots 15 and 38. In 1968, the City adopted an ordinance approving a street vacation map for the original location of McBroom Street. The City recorded the street vacation map in 1971.
Meanwhile, between November 1967 and February 1968, Isabella Bright acquired the small remnants of Lot 14 and Lot 39, which had been “stranded” on the south side of present-day McBroom Street. During the same time frame, Bright also acquired the area of land on the northerly front of her Lot 38 upon which McBroom Street had once been located, and she also acquired the area of land on the northerly front of Parcel 2 upon which McBroom Street had once been located. The parties and trial court labeled the land cobbled together by Bright during the late 1960s, after McBroom Street had been relocated northward, as “Parcel 3.” The land comprising Parcel 3 fronts on the present-day location of McBroom Street.
So, in summary, by the late 1960s, Isabella Bright owned the portion of Lot 38 lying north of Edison’s land, and owned Parcel 2 – the 60-foot wide piece of land carved out of Lot 15 roughly two decades earlier, and owned Parcel 3 –– the area of land, which she had then recently cobbled together, fronting on the relocated McBroom Street. During this same time frame, the Dodds continued to own the portion of Lot 38 lying south of Edison’s land, and the easement over Parcel 2 granted by Bright in 1955.
E. The Current Land Owners
Through a series of conveyances between the late 1970s and 2001, the portion of Lot 38 lying south of Edison’s land, along with the easement over Parcel 2 created by Isabella Bright’s 1955 grant deed, was conveyed to a series of owners until it came to be owned by Michael Farhadi. In 2002, Farhadi executed a grant deeded conveying the portion of Lot 38 lying south of Edison’s land, along with the easement enjoyed over Parcel 2, to Gregg. The grant deeds in the chain of title expressly identified this southerly portion of Lot 38 by reference to the 1907 subdivision map.
Meanwhile, Bright’s property lying north of Edison’s land, and fronting on the present-day location of McBroom Street was further subdivided and also changed hands several times. In 1999, the Paynes acquired by grant deed a part of the property, which had once been owned by Bright. The Paynes’ property includes Parcel 2 and Parcel 3. The grant deeds in the chain of title expressly identified this northerly portion of Lot 38 by reference to the 1907 subdivision map.
F. The Current Litigation over Easement Rights
In April 2004, the Paynes began parking a large horse-trailer on their Parcel 2. This mischief effectively blocked Gregg from enjoying the use of the recorded easement over Parcel 2 to gain access to his property south of Edison’s land and power lines from the relocated McBroom Street to the north.
In October 2004, Gregg filed the current action against the Paynes, alleging that, by virtue of Bright’s 1955 grant deed to Gregg’s predecessors-in-interest, Gregg enjoyed an easement over Parcel 2 for “ingress and egress” to gain access to his property from present-day McBroom Street. Gregg’s operative first amended complaint against the Paynes alleged five causes of action: (1) willful trespass; (2) nuisance; (3) quiet title; (4) injunctive relief; and (5) declaratory relief. All of Gregg’s causes of action were premised on its allegation that, by virtue of Isabella Bright’s 1955 grant deed, Gregg enjoys an easement to access its property from present-day McBroom Street over the Paynes’ Parcel 2.
In November 2004, the Paynes’ answered Gregg’s first amended complaint, and filed a cross-complaint in which they sought a determination that the recorded easement over their Parcel 2 had been extinguished by adverse possession. According to their cross-complaint, the Paynes fenced all of their property, closing off access from McBroom Street, including Parcel 2 and Parcel 3, in the spring of 1999.
In early 2006, the equitable issues were tried to the trial court, and taken under submission. The court subsequently requested further briefing on the issue of whether former Civil Code section 812 (hereafter section 812) had any affect on the parties’ dispute. In February and March 2006, Gregg and the Paynes submitted supplemental trial briefs. On March 15, 2006, the trial court signed and entered a memorandum of decision setting forth its determination that Gregg enjoys an easement over Parcel 2, but that the easement “does not cross Parcel 3 to the relocated McBroom Street.”
On June 28, 2006, following further written objections and argument, the trial court signed and entered a written statement of decision. As relevant to this appeal, the trial court found that the easement created by Isabella Bright’s 1955 grant deed “ends where Parcel 2 ends and does not extend across Parcel 3 to the relocated McBroom Street.” The trial court’s decision effectively means that, unless Gregg acquires easement rights from the Paynes over Parcel 3, he will be unable to access his easement over Parcel 2, and will be unable to access his property by way of present-day McBroom Street on the north. As noted above, Gregg still has access to his property from Wheatland Avenue.
Following the trial court’s decision on equitable issues, the Paynes filed a motion for summary judgment, arguing that Gregg could not prevail on his causes of action for trespass and nuisance because he could not establish that he had suffered damages by any act by the Paynes. In other words, the Paynes argued that, since he is effectively stopped from enjoying his easement over Parcel 2 (because he cannot cross over Parcel 3), he has not and will not suffer any damages. On December 22, 2006, the trial court granted the Paynes’ motion for summary judgment.
On February 28, 2007, the trial court entered a final judgment incorporating its ruling on equitable issues and its ruling on summary judgment.
Gregg filed a timely notice of appeal.
DISCUSSION
I. The Trial Court Properly Determined Gregg had an Easement Only Over Parcel 2
The trial court’s ruling that Gregg enjoys a valid easement over Parcel 2, but has no easement rights over Parcel 3 was based, in part, on the court’s interpretation and application of former section 812 to the dispute between Gregg and the Paynes. On appeal, Gregg contends the trial court erred by applying section 812 “to extinguish [his] easement over Parcel 3 reaching to present-day McBroom Street.” We disagree.
Section 812 is now recodified in Streets and Highways Code section 8353. This change does not affect our opinion.
A. Private Easements over Streets
In 1894, the Supreme Court explained the concept which is known in short-hand vernacular as the rule of “abutter’s rights.” Here is the Court’s explanation of the rule: “When [a property owner] subdivides a tract of land . . . into [lots] and streets, and sells the same, . . . the purchaser of one of those lots acquires an easement in the street fronting upon his lot, for the purposes of ingress and egress, which attaches to the lot, and in which he has a right of property as fully as in the lot itself . . . .” (Eachus v. Los Angeles etc. Ry. Co., supra, 103 Cal. at p. 617, italics added.)
In 1907, the California Supreme Court further expounded on this concept: “Every lot fronting upon a street has, as appurtenances thereto, certain private easements in the street, in front of and adjacent to the lot, which easements are a part of the lot, and are private property as fully as the lot itself, though exercised in the street and extending into and over the street. Any obstruction to the use of the street which impairs or destroys these easements is a private injury, special and peculiar to the owner of the lot, and different and distinct from the injury to the general public and from that which such owner suffers as a part of the general public. . . . As an abutting owner, he has the right to the private easements in question, and for an injury thereto he may sue for damages or to enjoin the continuance of the injury, regardless of the fact that the same obstruction also constitutes an injury to his public right of travel, and regardless of the number of persons who may suffer a similar injury to similar private easements appurtenant to other lots fronting on the street.” (Williams v. Los Angeles Ry. Co. (1907) 150 Cal. 592, 594, citing Eachus v. Los Angeles etc. Ry. Co., supra, 103 Cal. at p. 617, italics added.)
In 1910, the California Supreme Court again nuanced the rule of abutter’s rights: “[W]hen one lays out a tract of land into lots and streets and sells the lots by reference to a map which exhibits lots and streets as they lie in relation to each other, the purchasers of such lots have a private easement in the streets opposite their respective lots, for ingress and egress and for any other use proper to a private way, . . . and is a private appurtenance to the lots . . . .” (Danielson v. Sykes (1910) 157 Cal. 686, 689, citing Williams v. Los Angeles Ry. Co., supra, 150 Cal. at p. 594 and Eachus v. Los Angeles etc. Ry. Co., supra, 103 Cal. at p. 617, italics added.) At the same time, the California Supreme Court took the opportunity to explain the “true foundation” for this rule: “When a lot conveyed by a deed is described by reference to a map, such map becomes a part of the deed. If the map exhibits streets and alleys it necessarily implies or expresses a design that such passage-way shall be used in connection with the lots and for the convenience of the owners in going from each lot to any and all the other lots in the tract so laid off. The making and filing of such a plat duly signed and acknowledged by the owner . . . is equivalent to a declaration that such right is attached to each lot as an appurtenance. A subsequent deed for one of the lots, referring to the map for the description, carries such appurtenance as incident to the lot.” (Danielson v. Sykes, supra,157 Cal. at p. 690, italics added.)
Over the past 100 years, the California Supreme Court and our Courts of Appeal have, with some regularity, revisited the issue of “abutter’s rights,” most commonly in the context of condemnation or inverse condemnation claims. (See, e.g., Bacich v. Board of Control (1943) 23 Cal.2d 343; People v. Russell (1957) 48 Cal.2d 189.) As Division Seven of our court stated in Brumer v. Los Angeles County Metropolitan Transportation Authority (1995) 36 Cal.App.4th 1738, 1745: “California [has] long recognized a property owner enjoys property rights in the street upon which his or her land abuts.” (Italics added.)
What all of this means, as we noted above, is that Lot 38 –– as originally drawn on the 1907 subdivision map –– had private easements over McBroom Street, in front of and adjacent to Lot 38, which easements were part of Lot 38, and which were private property as fully as Lot 38 itself, though exercised in the street and extending into and over the street. It is Gregg’s position that each subsequent conveyance of Lot 38, as well as each subsequent conveyance of any portion of Lot 38, transferred Lot 38’s appurtenant private easements over the original location of McBroom Street. In other words, Gregg essentially maintains that, assuming Lot 38 was divided into 10 portions, all 10 portions, regardless of whether or not they still “fronted on” or “abutted” McBroom Street, had private easements over McBroom Street. We have more to say on this position below.
We understand Gregg’s position to include the assertion that Lot 15 (as shown on the 1907 subdivision map) also had a private easement over McBroom Street, in front of and adjacent to Lot 15 which easements were part of Lot 15, and were private property as fully as Lot 15 itself, though exercised in the street and extending into and over the street, and that each subsequent conveyance of Lot 15, as well as each subsequent conveyance of any portion of Lot 15 (including Parcel 2), transferred Lot 15’s appurtenant private easements over the original location of McBroom Street.
Insofar as we understand from the cases cited by the parties, the private easement enjoyed by a property owner over an adjacent street is an appurtenance to the fee title ownership of the lot itself. We see nothing in the cases to suggest that the owner of a lesser property interest, such as a grant of easement over such a lot, by virtue of the granted easement enjoys the same private easement in the street as the underlying fee title owner. We see nothing in Gregg’s arguments that he has abutter’s rights by virtue of his ownership of the granted easement over Parcel 2; Gregg’s claim is that, as the fee owner of a portion of Lot 38, he enjoys a private easement over the land area where McBroom Street was located originally. It further appears that any right to ingress and egress to a street conferred by means of abutters’ rights are only owned by one whose land actually lies directly next to the road. (See, e.g., People v. Ayon (1960) 54 Cal.2d 217, 223 [recognizing an easement to access a road directly next to the property owned]; Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th 507, 517 [indicating that recognition of abutters right “derives from the perceived expectations of those who own or purchase property alongside a public street, to the effect that the land enjoys certain benefits associated with its location next to the road” (Italics added.)].)
In 1946, the Third District Court of Appeal held that the private easements over an adjacent street, which were appurtenant to a lot, survived the abandonment of the roadway by the local board of supervisors. (Severo v. Pacheco (1946) 75 Cal.App.2d 30, 33-34 (Severo).) In other words, a private easement over the area of adjacent street continued to exist even though the street itself was no longer being used as a street.
B. Section 812
In 1949, the Legislature enacted section 812 and thereby established a statutory scheme governing street vacations and private easements. (See Stats. 1949, ch. 996, § 1, p. 1827.) Section 812 provides: “The vacation [of a street] shall extinguish all private easements [over the street] claimed by reason of the purchase of any lot by reference to a map . . . upon which [the street is] shown, other than a private easement necessary for the purpose of ingress and egress to any such lot from or to a public street . . . .” We under-stand section 812 to embody three principles. First, it implicitly codified the common law rule that the owner of a lot fronting on a street shown on a subdivision map enjoys a private easement over the street. Second, it effectively repealed the common law rule articulated in Severo, supra, 75 Cal.App.2d 30, that a private easement survives a street vacation, and replaced the common law rule with a statutory rule to this effect: a private easement over a street is extinguished when the street is vacated. Third, it provides that a private easement over a street is not extinguished by the vacation of the street when the easement is reasonably necessary for an owner of a lot to have ingress and egress to and from his or her lot.
A private easement is “[a]n easement whose enjoyment is restricted to one specific person or a few specific people.” (Black’s Law Dict. (8th ed. 2004) p. 550.)
Apart from preserving a private easement over a vacated street based on the element of necessity, section 812 also provides that an owner of a lot in a tract created by a subdivision map may preserve his or her private easement over a vacated street by recording a claim to such an easement with the county recorder. More specifically, section 812 provides that the vacation of a street extinguishes the private easement recognized in the section, “except as to any person claiming such easement who, within two years from the effective date of [a street] vacation . . . shall have recorded in the office of the recorder of the county in which such vacated [street is] located a verified notice of his [or her] claim to such easement over all or part of any such street . . . which is particularly described in such notice.”
C. Section 812’s Affect on the Private Easements over Vacated Old McBroom Street
We agree with the trial court that, under the plain language of section 812, Gregg does not have a private easement over the area where McBroom Street was once located, i.e., Parcel 3, to reach the present-day McBroom Street. In reaching this conclusion, we assume without deciding that each and every one of the historic owners of Lot 38, or any part of Lot 38, including Gregg’s property, enjoyed a private easement over the land area where McBroom Street had once been located. This predicate, however, does not mean that Gregg continues to enjoy an easement over the land area where McBroom Street had once been located. That private easement was extinguished by section 812 at some point in time during the 1970s, after the City recorded its vacation map for the former location of McBroom Street. In other words, by the time Gregg acquired his property in the 2000s, any private easement over the land area upon which McBroom Street had once been located, and which had been appurtenant to that property in the past, had long since vanished into the legal ether.
Neither of section 812’s two exceptions to the extinguishment of the private easement over the former location of McBroom Street is satisfied in Gregg’s current case. First, it is undisputed that it was not necessary for any of the historic owners of Gregg’s property, including Gregg himself, to enjoy a private easement over the land where McBroom Street was once located, i.e., Parcel 3, in order to gain access to the Gregg property. Gregg and his predecessors-in-interest all have all been able to access the Gregg property from Wheatland Avenue. Second, it is undisputed that neither Gregg nor any of his predecessors-in-interest ever recorded a notice of claim of a private easement over the former location of McBroom Street.
D. Neff v. Ernst
To avoid this result, Gregg cites Neff v. Ernst (1957) 48 Cal.2d 628 (Neff). We disagree with Gregg that Neff compels a different result.
Neff involved land in Hermosa Beach, which was subdivided originally by Benjamin Hiss. Included within the land subdivided by Hiss was a parcel bounded by Pier Avenue on the south, Bard Street to the west, Oak Street to the north, and Railroad Drive to the east. Bard Street and Oak Street terminated at their common intersection. In 1926, there was a vacation of Oak Street and the northerly portion of Bard Street. The next year (1927), Hiss constructed a building on the parcel, in the area adjoining vacated portion of Bard Street on the west, and adjoining the vacated Oak Street on the north. The building had three garage doors that opened on vacated Bard Street, and a loading dock on vacated Oak Street. In 1932, California Bank acquired title to the parcel and also acquired the land surrounding the parcel on the west and north. In 1938, California Bank conveyed the parcel and building to Dennis Neff. After Neff acquired the parcel and building, “it was necessary for [him] to use these vacated streets, but principally Bard Street, for access to [his] property. . . .” (Neff, supra, 48 Cal.2d at pp. 631-632.)
In 1943, Daniel Ernst acquired title to the land surrounding the parcel on the west and north. In 1953, Ernst began constructing a building to the west of Neff’s parcel and building. In other words, Ernst began constructing a building, which occupied an area on vacated Bard Street. When Ernst rebuffed Neff’s objections that Ernst’s building inter-fered with Neff’s access to the garage doors on his building on vacated Bard Street and to his loading dock on vacated Oak Street, Neff filed an action for injunctive relief and declaratory relief. The trial court entered a judgment declaring that Neff had a private right of way and easement to and across the vacated part of Bard Street adjoining his property; the trial court subsequently entered a modified judgment which further declared that Neff owned a fee title interest in one-half of the vacated Bard Street –– to its center line –– which was adjacent to his property. In other words, the trial court essentially found that Ernst’s building encroached on land owned by Neff, i.e., part of vacated Bard Street, and that Ernst’s building interfered with a private easement enjoyed by Neff over vacated Bard Street.
The California Supreme Court affirmed the judgment. The court’s opinion is basically in two parts. First, the court affirmed that Neff owned a fee title interest in one-half of vacated Bard Street (to its center line) adjacent to his property. The court then turned to the issue of whether section 812 applied to extinguish Neff’s right to a private easement over vacated Bard Street. We reproduce the court’s full discussion of section 812:
“It is not disputed that [Neff] did not file a verified claim to a private easement in either vacated Bard Street or vacated Oak Street. The [trial] court concluded, insofar as [Neff’s] easement in vacated Bard Street was concerned, that it came within the exception stated in section 812 but also concluded that if the section were given retroactive effect and be deemed applicable to any easement theretofore vested in the plaintiffs it was void in contravention of a vested right and an impairment of a contract right as prohibited by . . . the state Constitution.
“The rule has always been that although the public use ceases on the vacation of a public street, rights acquired by grant or otherwise by an abutting owner to a private easement in such streets are not affected. [Citations.] No relinquishment of the private easements in these streets by [Neff] or their grantor was shown, and the private rights of these parties therefore continued. Section 812 obviously is not designed nor could it be applied to divest [Neff] of [his] fee title to one-half of vacated Bard Street or to one-half of vacated Oak Street. The easements enjoyed by [Neff] in the one-half of these vacated streets owned by [Ernst] are not only necessary to their use of their property, and so come within the exception stated in section 812, they are also private easements appurtenant to their property of which they could not be divested except by purchase or agreement or by compensation from the sovereign. The trial court properly refused to hold that the noncompliance by [Neff] with the recording provisions of section 812 divested [him] of [his] rights in these vacated streets and the section is not applicable to [him] under the circumstances here shown.” (Neff, supra, 48 Cal.2d at pp. 636-637.)
E. Section 812 after Neff v. Ernst
The California Supreme Court’s Neff opinion did not declare section 812 to be invalid on its face. On the contrary, the court’s discussion of section 812 in Neff explained that section 812 could not be applied under the particular circumstances presented in that case. First, section 812 did not and could not divest Neff of his fee title to one-half of the vacated Bard Street or to one-half of the vacated Oak Street. (Neff, supra,48 Cal.2d at p. 637.) Second, the private easements enjoyed by Neff in the vacated streets were necessary to access his property, and thus came within the exception stated in section 812. Third, Neff acquired his property and the appurtenant private easements in 1938, long before the enactment of section 812 in 1949, and, thus, any attempt to apply the section to divest him of his previously existing easement rights appurtenant to his property would have amounted to a government taking, which required compensation. (Neff, supra,48 Cal.2d at p. 637.)
None of the factors which supported the nonapplication of section 812 in Neff are present to support the nonapplication of section 812 in Gregg’s case. First, neither Gregg nor any of his predecessors-in-interest have ever owned a fee title interest in the land where McBroom Street was once located, i.e., Parcel 3. The Dodds and then others and then Gregg purchased the portion of Lot 38 lying south of Edison’s land. Second, Neither Gregg nor any of his predecessors-in-interest have ever needed an easement over the land where McBroom Street was once located, i.e., Parcel 3, to gain access to the portion of Lot 38 lying south of Edison’s land. Gregg and his predecessors-in-interest have been able at all times to access the portion of Lot 38 lying south of Edison’s land directly from Wheatland Avenue. Finally, Gregg acquired the portion of Lot 38 lying south of Edison’s land long after the 1949 enactment of section 812, and long after section 812 had already extinguished any private easement that may once have existed over the land where McBroom Street had once been located. In short, we see no problem with a potential constitutional “taking” in applying section 812 in Gregg’s current case.
F. It is Immaterial Whether Gregg’s Predecessors-in-Interest Conveyed a Private Easement over the Land Where McBroom Street was Once Located
Gregg next contends the private easement over the land where McBroom Street was once located, which was appurtenant to Lot 38 before the lot was further divided, remained appurtenant to all of the parts which were later carved out of Lot 38. In other words, Gregg maintains that the portion of Lot 38 lying south of Edison’s land –– from the 1920s to the present day –– enjoyed a private easement over then McBroom Street, even though the portion of Lot 38 lying south of Edison’s land did not actually front on McBroom Street.
We disagree with Gregg’s position, as noted, see footnote 3, ante. But even if we once again assume without deciding that Gregg is correct, his contention still fails. His position, however, begs the question of whether the private easement, which once existed over the former location of McBroom Street, and which was appurtenant to the portion of Lot 38 lying south of Edison’s land, was extinguished during the 1970s under section 812. For the reasons above, we agree with the trial court that the easement was extinguished.
II. Any “Abutter” Rights Were Extinguished
In a variation on his fundamental theme, Gregg contends the trial court’s rulings on equitable issues must be reversed because his “common law abutter’s rights” to an easement over the former location of McBroom Street, and, hence, over Parcel 3, were “never affected” by section 812. Once again, we disagree.
A. California Common Law Regarding Streets and Private Easements
As we discussed above, California common law recognized that an owner of property abutting upon a public street had a property right in the nature of an easement in the street, and that the easement was appurtenant to his or her abutting property, and that the easement was a private right, as distinguished from his or her right as a member of the public, and that the right was described as an easement of ingress and egress to and from his property. (See, e.g., Bacich v. Board of Control, supra, 23 Cal.2d at pp. 349-350.) In other words, California courts “declared and enforced the abutting property owner’s right of way to a free and convenient use of and access to the highway on which his [or her] property abut[ted].” (People v. Ricciardi (1943) 23 Cal.2d 390, 397.) And, as noted, the common law also recognized that the right of an abutting property owner to a private easement over land area where the street was located was “not affected” by the vacation of the street. (Severo, supra, 75 Cal.App.2d at pp. 33-34.)
B. Section 812’s Affect on the Common Law
We simply cannot accept Gregg’s argument that section 812 “never affected” his “common law abutter’s rights” to a private easement over the land where McBroom Street was once located (and, hence, over Parcel 3). In our view, the plain language of section 812 is, in-and-of-itself, inimical to Gregg’s position. We see no rational way to harmonize the common law rule that right of an abutting property owner to a private easement in the street is “not affected” by vacation, and section 812’s specific statutory scheme extinguishing all private easements in a vacated street except those which are necessary for ingress and egress. For this reason, section 812 must be viewed for what it is –– an expression of the Legislature’s intent to repeal the former common law rules governing street vacations and private easements, and replace those rules with specific statutory scheme governing the same matters. (California Assn. of Health Facilities v. Department of Health Services (1997) 16 Cal.4th 284, 297.)
Gregg’s reliance on Neff, supra, 48 Cal.2d 628, is, again, misplaced. Neff does not support Gregg’s proposition that section 812 has “no affect” on the common law rules governing street vacations and private easements. Had the California Supreme Court intended such a sweeping repudiation of section 812 in Neff, the opinion would say so. Instead, the court’s discussion of section 812 in Neff carefully explained that the section could not be applied under the particular circumstances presented in Neff, none of which are present in Gregg’s current case.
III. The Private Easement Over Parcel 3 Was Extinguished When the Roadway Was Vacated
Gregg contends two California Supreme Court cases “at least” hold that his private easement over the land where McBroom Street was originally located, i.e., Parcel 3, was not lost when the roadway was vacated. The two cases cited by Gregg are Neff, supra, 48 Cal.2d 628 and Harman v. City and County of San Francisco (1972) 7 Cal.3d 150 (Harman). We have already explained why Neff does not help Gregg. We now dispatch with Gregg’s reliance on Harman.
In Harman, a taxpayer filed a complaint alleging that San Francisco’s method of appraising the value of vacated streets, which were to be sold to abutting property owners did not result in a rationally determined market value for the public property offered for sale. In other words, the taxpayer alleged that San Francisco’s appraisal methodology undervalued its vacated streets which were to be sold, and that the ensuing transactions, therefore, were “contrary to the best interests” of San Francisco and its taxpayers, and constituted a “gift of public funds” to the purchasers of the vacated streets. In the context a demurrer, the California Supreme Court ruled that the taxpayer’s complaint alleged sufficient facts to state a cause of action for unlawful activity against which the taxpayer was entitled to relief. (Harman, supra, 7 Cal.3d at pp. 155-169.) Harman had nothing to do with the issue of whether or not a landowner’s private easement over the area of a vacated street is preserved after the vacation.
Although the California Supreme Court made a brief reference in Harman –– in a single paragraph within its 13-page opinion –– to the common law rules that (1) a private easement burdens all public streets in favor of the abutting parcel, and that (2) this easement continues even though the city by vacation terminates the public’s right of access to the street (Harman, supra,7 Cal.3d at p. 167), the court’s reference to these common law rules in Harman was not essential to its conclusion that the taxpayer’s complaint in Harman alleged sufficient facts to state a cause of action. More importantly, Harman did not address, discuss or even acknowledge section 812. For these reasons, Harman does not support Gregg’s argument that his private easement over the former location of McBroom Street, i.e., Parcel 3, was not lost when the roadway was vacated. (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [“Language used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered”].)
IV. Gregg Never Plead or Proved a Prescriptive Easement
Gregg contends the trial court’s ruling on equitable issues must be reversed because section 812 cannot be applied to extinguish his easement by prescription over Parcel 3. We disagree for two reasons. First, Gregg’s argument is predicated on his assumption that he has, in fact and law, acquired an easement by prescription over Parcel 3. Second, the record simply does not support Gregg’s predicate.
As a preliminary matter, Gregg’s operative first amended complaint simply cannot be interpreted reasonably to include a claim that he has acquired easement by prescription over Parcel 3. This, alone, defeat his contention on appeal that section 812 did not extinguish such an easement. There is more, pleading-wise. Gregg’s verified answer to the Paynes’ cross-complaint belies any possibility that he intended to press a claim in his current case that he has acquired an easement by prescription over Parcel 3. Paragraph 5 of Gregg’s answer to the Paynes’ cross-complaint alleged that the pathway, which he used for years to cross over Parcel 3, was “obvious, permanent and long established with the mutual permission and consent of [the Paynes], their predecessors in interest and [Gregg]’s predecessors in interests.” (Italics added.) There can be no prescriptive acquisition of a property interest when use of the subject property is with “permission and consent;” prescriptive rights arise from a “hostile” use of property.
In addition to Gregg’s insurmountable pleading problems, the evidence presented at the trial of equitable issues does not support his claim that he has acquired an easement by prescription over Parcel 3. The trial court’s comments in May 2006, in addressing Gregg’s objections to the court’s memorandum of statement of decision, fairly summarize the trial: “There was no testimony at all that [Gregg has] an easement by prescription nor was it urged at any time [during trial]. . . . [Gregg] obviously made a tactical choice not to [advance a theory of] prescriptive easement because [he] just didn’t have the evidence to prove it . . . .”
The bottom line is that Gregg’s argument regarding section 812 –– that it cannot be applied to extinguish an easement by prescription –– is a nonsequitur because he did not claim nor prove that he has acquired an easement by prescription over Parcel 3. In other words, we are willing to assume that section 812 does not extinguish an easement by prescription, but this rule, standing alone, does not help Gregg because he does not have an easement by prescription over Parcel 3.
V. There Was No Unconstitutional “Taking”
We summarily reject Gregg’s contention that the application of section 812 to extinguish his private easement over the land where McBroom Street was originally located amounts to an unconstitutional “taking” of property without just compensation. Assuming that the application of section 812 –– during the 1970s –– to extinguish the private easements over the land where McBroom Street was originally located resulted in a compensable “taking” suffered by Gregg’s predecessors-in-interest, the remedy would be a claim for compensation against the City.
We do not suggest that any property owner has a cognizable claim against the City; we hold only that, if any claim for a “taking” exists, then such a claim would not implicate any of the other owners along McBroom Street. At oral argument, it was suggested that the City’s failure to give notice to Gregg’s predecessor’s-in-interest any notice of the vacation of the former location of McBroom Street may have implications vis-à-vis for the applicability of section 812. This does not appear to have been raised in any meaningful way in the trial court, and, in any event, we view this issue as a problem only for the question of whether the City may still be liable for a “taking,” not whether the easement was, in fact and law, extinguished. In other words, assuming the City did something wrong in extinguishing the easement, it does not follow that the easement was not extinguished.
VI. Denial of the Request to Amend Was Not an Abuse of Discretion
After the trial court issued its memorandum of decision, Gregg filed a motion to amend his first amended complaint to conform to proof. More specifically, Gregg moved to include a claim that he has acquired an easement by prescription over Parcel 3. Before it issued its statement of decision, the trial court denied Gregg’s motion to amend his complaint. On appeal, Gregg contends the trial court abused its discretion when it denied his motion to amend his complaint to conform to proof. We disagree.
This single sentence is Gregg’s entire argument in support of his assertion that the trial court should have permitted him to amend his complaint to conform to proof: “If the trial court disagreed that Gregg Management adequately alleged prescription, the court should have granted Gregg Management’s motion to amend its first amended complaint to conform to proof. (Kittredge Sports Co. v. Superior Court [(1989) 213 Cal.App.3d 1045,] 1048 . . . .)” That’s it.
Gregg’s argument lacks the substance needed to sustain his burden on appeal of showing that the trial court abused its discretion when it denied his posttrial motion to amend his first amended complaint. The test for abuse of discretion by the trial court is whether the court’s decision “exceeds the bounds of reason by being arbitrary, capricious or patently absurd.” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) Inasmuch as Gregg’s argument fails to provide any factual, substantive or procedural context for his assertion that the trial court abused its discretion, his assignment of error must be rejected.
Apart from the inadequacy of Gregg’s argument on appeal, our review of the record satisfies us that the trial court properly denied Gregg’s motion to amend his first amended complaint to conform to proof because, as we noted above, Gregg’s evidence did not prove that he has acquired an easement by prescription over Parcel 3.
VII. Parcel 2 Was Not Enlarged to Include an Easement Over Parcel 3
At the trial of equitable issues, Gregg argued that (1) California law recognizes the principle that an easement may be enlarged or realigned by consent of the parties, and (2) this rule could be applied to enlarge his easement over Parcel 2 to include an easement over Parcel 3 to reach the location of present-day McBroom Street. The trial court rejected Gregg’s argument. On appeal, Gregg contends the trial court’s ruling on equitable issues must be reversed because the court erred by declining to apply his “extension theory.” Although we consider this argument to be Gregg’s most interesting, we disagree with his conclusion that the trial court erred by ruling that his easement over Parcel 2 had not been “enlarged” to include an easement over Parcel 3.
A. Agreements to Modify Easements
We agree with Gregg that two parties may change the location or alignment of an easement by mutual consent, and that such consent may be established by evidence showing an express agreement or may be implied by evidence showing regular use of the relocated or realigned easement and acquiescence to that use. (See Kosich v. Braz (1967) 247 Cal.App.2d 737, 739-740 (Kosich).) The trial court recognized and discussed this rule in its statement of decision, but concluded that the rule could not be applied to the facts involved in the dispute between Gregg and the Paynes. Gregg’s arguments on appeal do not convince us that the trial court erred when it declined to apply this rule to enlarge Gregg’s easement over Parcel 2 to include an easement over Parcel 3.
Kosich involved two adjoining lots originally owned by Sullivan. In 1956, Sullivan executed a deed conveying one of the lots to Braz. Sullivan’s deed reserved a 12-foot wide strip of land as an easement for a road so that he could continue access the lot that he retained. At one point along the easement across Braz’s lot, the easement came to a “right-angle turn” around which it was impossible to drive a vehicle without driving outside the confines of the easement and “cut[ting] the corner a little bit.” Kosich purchased Sullivan’s remaining lot in 1961. In 1962, Braz placed a steel post at the corner of the right-angle turn in the easement, preventing Kosich from cutting the corner to make the turn, and effectively blocking Kosich’s use of the easement. Kosich then filed an action for an injunction to restrain Braz from interfering with Kosich’s use the area where it was necessary for him to cut the corner of the easement. Braz defended the action by pointing to the confines of the easement. The trial court ruled that Kosich was “entitled to an enlargement of the easement in conforming to the original intent of the parties” that the easement could be used for access to Kosich’s lot.
Division Three of the First District Court of Appeal affirmed the judgment for the following reasons:
“The admitted intention of the parties at the time of the creation of the easement was to use the easement for a roadway to facilitate ingress and egress to [Sullivan]’s property. To now adhere strictly to the 12-foot limitation would frustrate the intent expressed by [Sullivan] in the conveyance. There is substantial evidence to disclose that [Braz] impliedly consented to a change or to relocate the easement.
“There is ample authority for the proposition that parties may by mutual consent, either express or implied, relocate an easement. . . . [¶] . . . [H]ere, it [was] reasonable for the trial court to have concluded that [Braz] would have consented to an enlargement of the easement at the right-angle turn when [he] originally acquired the property [from Sullivan] in order that the easement would have the meaning intended. The very purpose was to avoid the hazards attendant with the only other means of entrance and exit. [¶] [Braz] had actual knowledge of the use of the enlargement of the easement for a number of years . . . . [Braz] impliedly consented to the relocation of the easement at the point of the right-angle turn.” (Kosich, supra, 247 Cal.App.2d at pp. 739-740.)
B. There Was No Implied Agreement to Create an Easement in the Current Case
We agree with the trial court that Kosich is distinguishable from Gregg’s current case. Kosich does not support the proposition that an easement may be created over a piece of land which was not previously burdened by an easement. The rule in Kosich is that, where an easement exists over a piece of land, the strict confines of the easement may be adjusted to fulfill the purpose of the easement. In Gregg’s current case, no owner of Parcel 3 ever granted anyone, including Gregg and his predecessors-in-interest, an easement over Parcel 3.
Given this factual context, Gregg’s argument must be viewed for what it actually advocates –– Gregg is not claiming that he has a right to an “enlarged” or “relocated” easement over Parcel 2, he is actually claiming that he has a right to claim an easement over Parcel 3. The trial court correctly ruled that Kosich does not support such a claim, and we agree with the trial court’s understanding of Kosich.
VIII. The Motion for New Trial Was Properly Denied
After the trial court entered judgment, Gregg filed a timely motion for new trial. Gregg’s motion argued that the Paynes had not raised the issue of section 812 until they filed their trial brief on the first day of the trial on equitable issues, and that this late presentation of section 812 resulted in “surprise” justifying a new trial. The record before us on appeal does not show the outcome of Gregg’s motion for new trial, and we presume his motion was denied by operation of law. On appeal, Gregg contends the trial court abused its discretion when it denied his motion for new trial. We disagree.
Gregg’s arguments on appeal do not persuade us that the insertion of section 812 into the trial mix resulted in an unfair trial. Insofar as we can see, the examination of the impact of section 812 did not require production of any additional evidence, but rather, merely required consideration of “new” law in light of the existing trial evidence. Moreover, the trial court provided the parties an ample opportunity to present their arguments regarding the implications of section 812 before the court issued its statement of decision. Apart from this grounding, Gregg’s arguments on appeal do not explain how he would have presented his case differently had he been apprised of section 812 sooner, or how he was prevented from addressing section 812 prior to the court’s statement of decision. Under these circumstances, we decline to an abuse of discretion. (Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal.3d 442, 452 [a trial court’s decision to deny a motion for new trial is a matter for the court’s discretion, and will not be disturbed on appeal abuse a showing of an abuse of discretion]; see also Blackman v. Burrows (1987) 193 Cal.App.3d 889, 893 [a trial court abuses its discretion when its decision is arbitrary, or capricious, or without basis in reason].)
IX. The Trial Court Properly Granted the Paynes’ Motion for Summary Judgment
Gregg contends the trial court should not have granted the Paynes’ motion for summary judgment because he presented sufficient evidence to create a triable issue of fact regarding damages. We disagree.
A. The Motion
The starting point for examining Gregg’s arguments on appeal is his complaint. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342 [a motion for summary judgment must be directed to the issues raised by the pleadings].) Gregg’s claim for damages was founded on his first cause of action for willful trespass and his second cause of action for nuisance, both of which were founded on his allegation that the Paynes had caused him damages by blocking his use of the “ingress and egress” easement, which he enjoyed over Parcel 2.
The Paynes’ motion for summary judgment essentially argued that Gregg could not prove that they had caused him any damages because, no matter what they had done vis-à-vis the easement over Parcel 2, Gregg could not lawfully access McBroom Street in any event. In opposition to the Paynes’ motion for summary judgment, Gregg submitted a declaration from a real estate appraiser who offered his opinion that damages could be calculated for the Paynes’ interference with the easement over Parcel 2. This was the theory advanced by Gregg’s expert: (1) the Paynes parked a trailer on the easement over Parcel 2; (2) the trailer encroached on an “area” of Gregg’s easement that measured “approximately 120 square feet;” and (3) “the reasonable value of the use of such area of land is $1.00 per square foot per day.” The trial court ruled that Gregg could not prove that the Paynes’ conduct of restricting his use of his easement over Parcel 2 had caused him any cognizable harm or recoverable damages because the easement did not extend to McBroom Street.
B. There Is No Triable Issue as to Damages in this Context
On appeal, Gregg argues his expert’s testimony was “uncontradicted,” and that this means there remains a triable issue of fact regarding damages. As they did in the trial court, the Paynes maintain that Gregg is presently unable to enjoy his easement over Parcel 2 because it is now isolated by Parcel 3, and that this necessarily means that the value of the “ingress and egress” easement that Gregg enjoys over Parcel 2 must be measured at zero.
We find the Paynes’ argument more persuasive. Although Gregg is abstractly correct that, so long as there remains some potential for the enjoyment of an easement, the easement has an intrinsic value, his legal authorities are inapposite to the claim for damages which he alleged in his complaint. In other words, although an easement with potential for use may have a measurable value in the context of a condemnation claim (see, e.g., Beals v. City of Los Angeles (1943) 23 Cal.2d 381, 388), the same cannot be said where the claim for damages is based on actual loss of use for access to McBroom Street, not the intrinsic value of the property interest. In the current case, Gregg’s right to use his easement over Parcel 2 has no measurable value because such use would accomplish nothing -- he still cannot access McBroom Street.
The pleadings are not amenable to a presentation of any issue regarding alternate valuation methodologies for the easement over Parcel 2. For example, if a buyer was willing to pay an added premium for Gregg’s property because it enjoys an easement over Parcel 2, then the easement may have some measurable value; or, if the Paynes were willing to buy-out Gregg’s easement over Parcel 2, then the easement may have some measurable value, or, if Gregg purchases easement rights over Parcel 3, then the joined easements over Parcel 2 and Parcel 3 may have some measurable value. Regardless of the possible scenarios, however, we are satisfied that the trial court correctly found that Gregg’s isolated easement interest over Parcel 2 has no value in the context of his claim for loss of use of that easement. The valuation placed on the easement by Gregg’s expert did not create a triable issue of fact because the expert’s opinion rested both inherently and necessarily on the assumption that Gregg could use the easement for ingress and egress to his property. In short, Gregg’s ingress and egress easement cannot be worth $1.00 per square foot if it provides ingress and egress to nowhere.
As things now stand, the trial court’s rulings and final judgment mean that Gregg may exit his property, and use his easement to traverse Parcel 2, but is then legally halted short of the relocated McBroom Street because he cannot lawfully cross over Parcel 3. At the same time, Gregg may also stand on the relocated McBroom Street, and look longingly across Parcel 3 at his valid easement over Parcel 2, but he cannot access and enjoy the use of his easement because he cannot lawfully cross over Parcel 3. From either direction, Gregg cannot come and go from his property by way of the relocated McBroom Street. The trial court recognized that its ruling has the practical effect of making Gregg’s easement over Parcel 2 “of no use whatsoever” for reaching the relocated McBroom Street. We agree with the trial court’s assessment, but conclude that Gregg’s circumstances do not support his claim to easement rights over Parcel 3.
DISPOSITION
The judgment is affirmed. Respondents are to recover their costs on appeal.
We concur: RUBIN, Acting P. J., FLIER, J.