Opinion
B153846.
7-31-2003
PIERRE RIOUX et al., Plaintiffs and Appellants v. DALE J. SCHEFFLER et al., Defendants and Respondents.
Law Offices of Daniel J. Doonan, Inc., Daniel J. Doonan, Suzanne K. Shapiro and D. Scott Doonan for Plaintiffs and Appellants. Richard D. Marks Professional Corporation and Richard D. Marks; Gill & Baldwin, Dana R. Corey and John M. Carmack for Defendants and Respondents.
This litigation between neighbors involves a dispute over the existence of an easement. We reverse the judgment for defendants and remand for a partial new trial.
BACKGROUND
The two parcels involved in this litigation were originally owned, as a single undivided parcel, by Jay and Helen Lampman. In March 1921, the Lampmans subdivided their property, by deed, into two lots (lots 947 and 951), and conveyed lot 947 (947 N. Glendora Avenue) to Charles and Leila Keeler. In November 1922, the Lampmans conveyed lot 951 (951 N. Glendora Avenue) to James Ellis.
The parties in this appeal are plaintiffs and appellants Pierre and Rebecca Rioux, who acquired lot 947 in 1997, and defendants and respondents Dale and Cynthia Scheffler, who acquired lot 951 in 1999. The gist of their dispute is whether the Riouxes property (lot 947) is benefited by an express appurtenant easement over a driveway (also referred to as the "yellow road" or the "50 yard line") across the Schefflers property (lot 951). In May 2000, the Schefflers locked the gate across the yellow road at the boundary line, thereby denying the Riouxes access from North Glendora Avenue to lot 947 via the yellow road. As a result, the Riouxes sued the Schefflers for injunctive relief and damages (including damages for trespass, private nuisance, waste, intentional and negligent infliction of emotional distress, and unfair competition (Bus. & Prof. Code, § 17200 et seq.)).
The Riouxes contend the yellow road is the same driveway that was in existence when the Lampmans split their property in two and conveyed lot 947 to the Keelers in 1921. At that time, the Lampmans and the Keelers signed an agreement dated March 22, 1921 (the "Lampman-Keeler Agreement"), which the Riouxes contend granted the Keelers and their heirs and assigns an express appurtenant easement to use the yellow road to access lot 947 from North Glendora Avenue.
The Lampman-Keeler Agreement stated that the Keelers were to have, among other things, "easements for ingress and egress to and from said property." The Agreement stated, in relevant part, that the Lampmans (who then owned lot 951) "agreed to allow the Buyer [the Keelers] to cross said East half [lot 951] at the point where there is now a driveway thereon until such time as the Seller [the Lampmans] may dispose thereof or until such time as the Seller constructs at his expense a driveway around the North end of that portion of such East half which lies South of the canyon traversing such land, such driveway to be located or near the South bank of said canyon and to be so constructed that it will connect the lands sold to the Buyer with the roadway [North Glendora Avenue] which has been constructed by the Seller and which runs Northerly and Southerly through said East half, and when such conditions arise, the Seller agrees to convey a 20 foot easement for such purposes to the Buyer." The Lampman-Keeler Agreement further stated that "the buyer, in consideration of the foregoing hereby accepts such agreements and easements upon the terms and conditions therein stated. [P] The above obligations shall apply to, in[]ure and bind the heirs, executors, administrators and assigns of the parties hereto."
The Lampmans recorded the Lampman-Keeler Agreement on November 24, 1922, in conjunction with their conveyance of lot 951 to Ellis. The Lampman-Ellis grant deed stated that Ellis had acquired lot 951 subject to the conditions set forth in the Lampman-Keeler Agreement "filed for record concurrently herewith." In this litigation, the Riouxes contended the Lampman-Keeler Agreement, which was incorporated by reference in the Lampman-Ellis grant deed, created an express appurtenant easement along the yellow road in favor of lot 947 for purposes of ingress and egress.
The Schefflers, on the other hand, contended that the Keelers had obtained, at most, a temporary license to cross lot 951 at some unspecified location where a driveway had existed in 1921. The Schefflers contended the Keelers license terminated in 1922 when the Lampmans sold lot 951 to Ellis. The Schefflers further contended any prescriptive easement or easement by necessity that might have arisen after 1922 was extinguished by disuse when Margaret Sherer, the Riouxes immediate predecessor in interest, ceased using the yellow road for more than five years after a new driveway was built for her private use in 1987. The Schefflers contended that by the time plaintiffs acquired lot 947 in 1997 from Sherers estate, any prescriptive easement or easement by necessity no longer existed due to Sherers abandonment of the yellow road in favor of the new driveway. Although the Riouxes used the yellow road after acquiring lot 947 in 1997, such usage was blocked by the Schefflers locking of the gate in 2000 and, thus, fell short of the five-year period for prescriptive easements. PAGE CONTAINED FOOTNOTES
The Schefflers contended, alternatively, that the Keelers had obtained an easement by necessity over the yellow road in 1921, when the Lampmans split their property in such a manner as to leave lot 947 landlocked. At trial, however, the Riouxes disagreed that lot 947 lot was landlocked after the lots were split. Accordingly, the Riouxes contended no easement by necessity could have arisen as a matter of law when the Lampmans sold lot 947 to the Keelers.
The record shows that in early 1987, David Teakell, who purchased lot 951 in 1975, asked Sherer, who then owned lot 947, "if she would like a new driveway to her home." Teakell offered to build the new driveway after Teakells dog had bitten Sherer, resulting in a claim against Teakells insurance policy. Teakell, who called the yellow road "Mrs. Sherers right of way," and "a fire department access road," testified that he had wanted to build Mrs. Sherer a new private driveway "because we wanted our own private road. We didnt want a [shared] road through our property."
On April 13, 1987, Teakell and Sherer signed an agreement for the new driveway for Sherer that would cut across lot 951 ("Driveway Agreement"). The Driveway Agreement stated in part that "a new driveway will be built for 947 N. Glendora in exchange for cancel[]ing the existing easement through 951 N. Glendora." The Driveway Agreement stated that "upon completion of the Teakells obligations the change of easement will be recorded." Teakells obligations under the Driveway Agreement included cutting, grading, and paving the new driveway, and securing the citys approval of the new driveways grading.
Teakell testified, however, that he never fulfilled his obligations under the Driveway Agreement and never recorded the change of easement. Teakell testified that after he had started grading the new driveway, he failed to obtain city approval of the grading due to the fire departments refusal to "approve the steepness of" the new driveway. Teakell stated the city had refused to approve the new driveway because "the grade of the new driveway was too great[.]" Teakell said that after doing the grading, he "backed out of [the] agreement with the Sherers[.]"
After Teakell abandoned the Driveway Agreement, Sherer paved the new driveway at her own expense and, according to Teakell, began using it instead of the yellow road. After Sherer paved the new driveway, Sherer moved her orange newspaper box, "Sherer Oaks" plaque and property address sign from the entrance to the yellow road to the bottom of her new driveway.
Teakell testified that after the new driveway was built, Sherers visitors and grandchildren continued using the yellow road, and Teakell never tried to stop them from doing so. Teakell also testified that after the Riouxes purchased lot 947 after Sherers death, the Riouxes used the yellow road "from time to time." Teakell stated he had once objected to the Riouxes use of the yellow road while Teakell was hosting "a barn party." During the barn party, a truck delivered a tractor to the Riouxes via the yellow road, and the truck had turned around in Teakells driveway where small children were present. Teakell had been angry about the timing of the delivery, the danger posed to the children on his property, and the Riouxes failure to have the tractor unloaded at the bottom of their new driveway.
Pierre Rioux testified that his new driveway is too steep to be a reliable alternative to the yellow road. According to Pierre, Teakell admitted "he deliberately made [the new driveway] steep to get back at Mrs. Sherer" because "she had sued him over a dog bite incident." Pierre testified that the new driveway is so steep that his two-wheel drive "Silverado cannot make it up the driveway if it is wet, unless [the back is] weighed down[.]" If the back is not weighed down when the driveway is wet, the car "will spin and slide backwards." Pierre further testified that when a utility fire truck came up his new driveway "for the fire inspections," the driver "lost control of his truck and rolled backwards" because it was too steep. Pierre testified that after the gate was locked, he had to move his horses because the new driveway is too steep for their horse trailer and the farriers truck.
Following a bench trial, the court entered judgment for the Schefflers. The trial court construed the Lampman-Keeler Agreement as having granted the Keelers a temporary license to cross lot 951, which terminated when the Lampmans sold lot 951 to Ellis in 1922. The court based its decision on the fact that the Lampman-Keeler Agreement permitted the Keelers "to cross at the point where there is now a driveway thereon until such time as the Seller may dispose thereof . . . ." (Emphasis added.) The court interpreted the phrase "until such time as the Seller may dispose thereof" to mean that the license expired when the Lampmans sold lot 951 to Ellis. "Therefore," reasoned the trial court in its statement of decision, "the license given by Lampman to Keeler to cross the Lampman property terminated, as a matter of law, upon the conveyance of the Lampman estate to James H. Ellis on December 9, 1922."
Given that the Keelers and successive owners of lot 947 continued using the yellow road for more than five years after the temporary license was (in the courts view) extinguished by the sale of lot 951 to Ellis, the court concluded that, due to the consistent use of the yellow road by the owners of lot 947, a prescriptive easement had arisen in favor of lot 947. That prescriptive easement terminated, however, in 1992, the court ruled, after Sherer had abandoned the yellow road for more than five years in favor of the new driveway built for her private use in 1987. The court concluded the Riouxes use of the yellow road between September 1997, when they purchased lot 947 after Sherers death, and 2000, when the Schefflers locked the gate, fell short of the requisite five-year prescriptive period and failed to give rise to a new prescriptive easement. Accordingly, the court found the Riouxes have neither a license nor an express, implied, or prescriptive easement to use the yellow road.
The record contains undisputed evidence, however, that Sherers family and friends continued using the yellow road even after the new driveway was built.
Finding that the Riouxes claims for trespass, private nuisance, waste, and emotional distress were dependent upon the existence of an entitlement to cross the yellow road, the court rejected those claims as a matter of law. As for the unfair competition claim, the court found that plaintiffs had "failed to set forth any proof of an unfair business practice or an unfair competitive practice pursuant to Business and Professions Code [section] 17200 et seq. There was no business practice or unfair business competition involved in the dispute. A homeowner making improvements to his property cannot be deemed a business practice or unfair business competition with another homeowner. Therefore, this cause of action is without merit." (Emphasis omitted.)
The court entered judgment for the Schefflers and the Riouxes have appealed.
DISCUSSION
I
The Lampman-Keeler Agreement Created an Easement
The Riouxes contend the court erred, as a matter of law, in concluding the Lampman-Keeler Agreement created a temporary license as opposed to an express appurtenant easement.
"An appurtenant easement creates a right to use . . . the servient tenement for the use and benefit of real property owned by the owner of the easement. The property benefited is called the dominant tenement." (6 Miller & Starr, Cal. Real Estate (3d ed. 2000) Easements, § 15:6, p. 21.) A right of way is one type of appurtenant easement. (Civ. Code, § 801.)
While express easements are usually created by deed, they may also be created by a contract between property owners. (6 Miller & Starr, supra, $ S 15:14, p. 59.)
The parties agree that the interpretation of the Lampman-Keeler Agreement presents a question of law. We exercise our independent review. (Lloyds Underwriters v. Craig & Rush, Inc. (1994) 26 Cal.App.4th 1194, 1196, fn. 1.)
The Lampman-Keeler Agreement set forth, among other things, the parties "mutual arrangements regarding . . . easements for ingress and egress to and from" lot 947. The Agreement specifically gave the Keelers the right "to cross [lot 951] at the point where there is now a driveway thereon until such time as [the Lampmans] may dispose thereof or until such time as the [Lampmans] construct[] at [their] expense a driveway [at a stated location] that [] will connect the lands sold to the [Keelers] with [North Glendora Avenue] . . ., and when such conditions arise, the [Lampmans] agree[] to convey a 20 foot easement for such purposes to the [Keelers]." The Agreement further stated that the obligations imposed by the Agreement "shall apply to, in[]ure and bind the heirs, executors, administrators and assigns of the parties hereto."
The trial court ruled that the above language created a temporary license that was personal to the Keelers and was not transferable to subsequent purchasers of lot 947. We conclude the court erred as a matter of law and find that the Lampman-Keeler Agreement created an express appurtenant easement for the benefit of future owners of lot 947 (the dominant tenement), including the Riouxes.
"An appurtenant easement is a part of, and cannot be transferred separate from, the dominant tenement." (6 Miller & Starr, supra, § 15:6, p. 25.) Unless excepted from the deed, appurtenant easements are transferred automatically with the dominant tenement as a matter of law, even when the grant deed conveying the dominant tenement fails to describe the appurtenant easement, or the easement is not in use at the time of the conveyance (id. at p. 24).
"A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed." (Civ. Code, § 1104.) "The transfer of a thing transfers also all its incidents, unless expressly excepted . . . ." (Civ. Code, § 1084.)
"The distinction between a license and an easement is often subtle and difficult to discern. The former is defined as personal, revocable, and unassignable permission or authority to do one or more acts on the land of another without possessing any interest therein." (Eastman v. Piper (1924) 68 Cal.App. 554, 560, 229 P. 1002.) "A license gives authority to a licensee to perform an act or acts on the property of another pursuant to the express or implied permission of the owner. The user has a personal privilege but does not possess either an interest in the land or any estate in the property. . . . [P] . . . The privilege conferred by a license is personal to the licensee and cannot be inherited, conveyed, or assigned. Any attempted transfer or assignment terminates the license. [P] . . . A licensor generally can revoke a license at any time without excuse or without consideration to the licensee. In addition, a conveyance of the property burdened with a license revokes the license, and the destruction of the servient tenement automatically revokes the license." (6 Miller & Starr, supra,$ S 15:2, pp. 8-9, fns. omitted.)
The trial courts determination that the Lampman-Keeler Agreement created a non-transferable license which expired upon the sale of lot 951 to Ellis flies in the face of the Agreements express language that the Agreements obligations shall be binding on the parties "heirs, executors, administrators and assigns." The Lampman-Keeler Agreement, on its face, expressed the parties clear intention to burden subsequent owners of lot 951 (the servient tenement) with an appurtenant easement in favor of lot 947 (the dominant tenement). Consistent with that stated intention, the Lampmans recorded the Lampman-Keeler Agreement in conjunction with the sale of lot 951 to Ellis, and incorporated the Agreement by reference in Ellis grant deed.
In Eastman v. Piper, supra, 68 Cal.App. 554, the appellate court construed an instrument signed by Anita Piper, who owned the west half of lot G, which granted her neighbor, Samuel F. Moffit, who owned the east half of lot G, "the privilege of a temporary roadway 10 feet wide along the south boundary of the east 12 of lot G, block 12, Monrovia Tract, in the City of Monrovia, Los Angeles County, to Samuel F. Moffit, his heirs or assigns, until such time as the extension of Alta Vista St. is completed past the west 12 of said lot G, block 12, Monrovia Tract." (Id. at p. 559.) When Piper threatened to block the roadway with a fence before Alta Vista Street was completed, Moffits successor in interest, Stanley Eastman, sued to quiet title to an easement in the roadway over Pipers land. Piper appealed from the judgment in favor of Eastman, contending that the instrument by which she had granted the privilege of a roadway to Moffit and his heirs or assigns had created only a revocable license and not an easement. The appellate court rejected this argument, stating: "The grant of the privilege of a roadway to Moffit, his heirs or assigns, was an express recognition that the privilege was to be inheritable and assignable. But as the qualities of inheritability and assignability are inconsistent with a license, we must conclude that something more than a license was intended to be granted; that it was intended to create an inheritable interest in a servient estate - in short, an easement." (Id. at p. 562.)
Similarly, in this case, we must conclude that something more than a license was intended to be granted. The Lampman-Keeler Agreement, like the instrument in Eastman v. Piper, supra, 68 Cal. App. 554, specifically stated that the obligations created thereby were binding on the parties and their heirs or assigns. Given that the qualities of inheritability and assignability are inconsistent with a license, we conclude, like the court in Eastman, that the Lampman-Keeler Agreement "was intended to create an inheritable interest in a servient estate - in short, an easement." (68 Cal.App. at p. 562.)
On this record, there can be no doubt that Ellis acquired lot 951 with express notice of the appurtenant easement created by the Lampman-Keeler Agreement in favor of lot 947. That the Keelers and their successors continued crossing the yellow road without objection from the owners of lot 951 until the Schefflers locked the gate in 2000, is consistent with our determination that the Lampman-Keeler Agreement created an express appurtenant easement, and not a temporary license that expired with Ellis acquisition of lot 951 in 1922.
The trial court relied heavily on language in the Lampman-Keeler Agreement limiting the use of the driveway "until such time as [the Lampmans] may dispose thereof or until such time as the Lampmansconstruct[] at [their] expense a driveway . . . ." This limitation does not, in our view, support the trial courts determination that the Lampman-Keeler Agreement created a license and not an easement. Limiting the right to use the driveway until the occurrence of the stated conditions (disposing of the existing driveway or building the new driveway) is not inconsistent with the creation of a valid easement. "An easement, as any other interest in real property, can be limited in duration either as an interest for a specific term or as an interest terminating on the occurrence of a condition." (6 Miller & Starr, supra,$ S 15:5, p. 17, fn. omitted.)
In Eastman v. Piper, supra, 68 Cal.App. 554, the court rejected Pipers contention that because the instrument granted only a "temporary roadway" across her property, the instrument was "inconsistent with an intent to create an easement." (Id. at p. 563.) Viewing the instrument as a whole, the court concluded the term "temporary roadway" was not inconsistent with the grant of an easement, because "paramount force is to be given to the clause which declares that the roadway privilege shall continue until Alta Vista Street is extended." (Id. at p. 565.) Similarly, in this case the limitation stated in the Agreement is not inconsistent with the grant of an easement.
We conclude, as a matter of law, that the Keelers right to cross the yellow road did not terminate upon Ellis purchase of lot 951 in 1922. While the Agreement limited the Keelers right to cross the driveway "until such time as [the Lampmans] may dispose thereof," the words "dispose thereof" referred not to the sale of lot 951, but to the destruction of the driveway. No other construction is plausible given the context of the surrounding paragraph.
We conclude the court erred as a matter of law in determining that "the license given by Lampman to Keeler to cross the Lampman property terminated, as a matter of law, upon the conveyance of the Lampman estate to James H. Ellis on December 9, 1922."
II
A Legal Description of the Yellow Roads Location Is Unnecessary
Without citing any legal authority to support their position, the Schefflers apparently contend the Lampman-Keeler Agreement failed to create an easement because it neglected to "describe with any particularity whatsoever the location of the 50 yard line" or "set forth a legal description of the 50 yard line."
The Riouxes, as the proponents of the easement, have the burden of establishing its exact location. (See 6 Miller & Starr, supra, § 15:49, p. 157.) That does not mean, however, that the Lampman-Keeler Agreement is deficient because it failed to give the legal description of the yellow road or 50 yard line. "In contrast to a grant of fee title, a grant or reservation of an easement is enforceable even though the instrument creating it fails to specify a definite location or route. The court will interpret the intentions of the parties by reviewing the terms of the instrument and all of the circumstances surrounding the transaction." (Id. at § 15:50, pp. 159-160, fns. omitted.) "The selection of an easements location need not be made in any formal manner. The use of the easement in a particular course without objection by the owner of the servient tenement establishes the easement along the route used. Thereafter, the easements location cannot be changed without the consent of both parties." (Id. at p. 161, fns. omitted. )
In this case, it was undisputed that from 1921 to 2000, the owners and/or visitors of lot 947 had used the yellow road to go to and from North Glendora Avenue. Accordingly, the fact that the Lampman-Keeler Agreement failed to give a specific description of the easements location is unimportant. (See 6 Miller & Starr, supra, at § 15:50, pp. 159-161.)
III
Sherer Did Not Abandon the Express Easement
The trial court found that after the Keelers license terminated upon the sale of lot 951 to Ellis in 1922, a prescriptive easement arose due to the continued use of the yellow road for more than five years. The court also found that Sherer abandoned the prescriptive easement by using the new driveway for more than five years after 1987.
Prescriptive easements, unlike express easements, may be extinguished by nonuse for five years. (6 Miller & Starr, supra,$ S 15:78, p. 243.)
Given our determination that Sherer owned an express appurtenant easement and not a prescriptive easement, her use of the new driveway was in itself insufficient to establish her intent to abandon the easement. "An easement created by express or implied grant or reservation is a vested interest in real property, and it cannot be lost or terminated by mere nonuse, however long it may continue." (6 Miller & Starr, supra, § 15:78, pp. 241-242, fns. omitted.) "The fact that the owner of an easement fails to maintain and repair it, or that he or she selects an alternative route, is by itself insufficient to establish his or her intent to abandon it." (Id. at p. 247, fns. omitted.)
Under common law, the trier of fact may determine that an express easement has been abandoned if it concludes "the owner [has] stopped using it with the intention of abandoning the right to use it in the future." (6 Miller & Starr, supra,$ S 15:79, p. 244, fn. omitted.) "The burden of proving the owners intent is on the person who claims that the easement has been terminated." (Id. at p. 246, fn. omitted.) "The evidence must show an intent to abandon all present and future use of the easement." (Id. at p. 245.)
While Teakell testified that Sherer no longer used the yellow road following the new driveways completion, such evidence alone failed to establish Sherers intention to abandon all present and future use of the easement. (See 6 Miller & Starr, supra, § 15:79, p. 247.) Moreover, Teakell also testified, without contradiction, that after the new driveway was built, Sherers visitors and grandchildren continued using the yellow road without objection from Teakell. Accordingly, the record fails to support a finding under common law principles that Sherer abandoned the express easement. Similarly, there is no evidence to support a finding of statutory abandonment.
Under Civil Code section 887.050, an express easement may be extinguished by virtue of statutory abandonment "when all of the following conditions occur: (1) the easement is not used at any time [during the 20 years immediately preceding commencement of the action to establish abandonment of the easement]; (2) there is no separate tax assessment for the easement or, if there is, the taxes are not paid; (3) no instrument creating, reserving, transferring, or otherwise evidencing the easement is recorded." (6 Miller & Starr, supra,$ S 15:79, pp. 248-249, fn. omitted.) "There is no statutory abandonment if (1) a notice of intent to preserve is recorded within the 20-year period immediately preceding any action to declare the easement abandoned, or (2) a notice of intent to preserve is recorded after the action has commenced and prior to judgment when (a) permitted by a court order as a condition to the dismissal of the action and (b) the claimant pays to the owner of the property all litigation expenses attributable to the action relating to the easement." (Id. at p. 249, fns. omitted; Civ. Code, §§ 887.060, 887.070.)
IV
The Judgment Must Be Reversed
Given our determination that (1) the Lampman-Keeler Agreement created a valid, express appurtenant easement in favor of the owners of lot 947, and (2) the easement was not abandoned, we conclude the Riouxes have a present right to cross the yellow road to and from North Glendora Avenue. Accordingly, the judgment for the Schefflers must be reversed and the cause remanded for a new trial on damages and any other remaining causes of action. We need not reach the remaining issues raised by the Riouxes that have been rendered moot by our ruling (the denial of a jury trial due to allegedly late posting of jury fees, the order of proof used at trial, the exclusion of certain evidence, and the exclusion of a witness).
DISPOSITION
We reverse the judgment and remand for a new trial on damages and any other remaining causes of action. Appellants are awarded costs.
We concur: SPENCER, P.J., MALLANO, J.