Defendants appeal from a judgment for plaintiffs on a complaint to quiet title to an easement over a road on defendants property. The trial court granted summary judgment to plaintiffs, concluding that a prescriptive easement had been established by long-term use and that defendants failed to present evidence the use was by permission. We reverse the judgment.
FACTS AND PROCEDURAL HISTORY
On review of an order granting summary judgment, we construe the evidence in the light most favorable to the opposing party. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal. Rptr. 122, 762 P.2d 46.)
This dispute involves two adjacent parcels of real property in Amador County. Defendants, William and Donna Deavers, own the property commonly known as 14082 Red Corral Road, Pioneer, California (hereafter the Williams property), which they acquired on December 23, 1962, from Donna Deaverss father, Edgar Williams. Plaintiffs, Judith Cole, Susan Heijmen and Charles Carroll, own property adjacent to the Williams property that was part of a larger parcel commonly known as Ide Upper Ranch. Ide Upper Ranch had previously been owned by Lee Ide. A road (hereafter Deavers Road) crosses the Williams property at its western-most edge and leads to Ide Upper Ranch.
Lee Ide and Edgar Williams were friends. Originally, Lee Ide accessed to Ide Upper Ranch over a road called Hidden Lane. However, sometime before 1962, Hidden Lane "washed out" and Ide began using Deavers Road. When the Williams property was transferred to defendants, Hidden Lane had still not been repaired. Ide, and later his successors, continued to use Deavers Road without objection. Defendants never spoke to Ide about using the road. Contractors and social guests to Ide Upper Ranch also used Deavers Road.
Defendant William Deavers performed maintenance on Deavers Road from time to time. He never saw Lee Ide or his successors do maintenance work on the road. Donna Deavers never saw Lee Ide grade Deavers Road. In 1978 or 1979, Lee Ide asked William Deavers for permission to move a gate across Deavers Road from its location near their common boundary to a location on the Williams property. Permission was given. However, the gate was put in the wrong place and was later moved by defendants.
In 1997, plaintiffs submitted a request to Amador County to rezone their property. The request contained a declaration that plaintiffs had a legal right to use Deavers Road. Defendants thereafter posted a sign reading: "Private Road: Right to pass by permission, and subject to control: Section 1008 Civil Code."
On August 3, 2000, plaintiffs initiated this action to quiet title to an easement over Deavers Road. The complaint contained two causes of action: (1) prescriptive easement, and (2) express easement. The trial court granted defendants motion for summary adjudication of the express easement claim. Plaintiffs amended their complaint to allege three new causes of action: (3) estoppel, (4) irrevocable license, and (5) quiet title to the common boundary.
Plaintiffs moved for summary adjudication on the first, fourth and fifth causes of action. Defendants filed opposition, except as to the fifth cause of action. The court announced its intention to grant the motion as to the first and fifth causes of action. The parties thereafter entered into a stipulation dismissing the remaining claims but reserving those claims in the event the grant of summary adjudication is reversed on appeal.
On April 26, 2002, the court entered an order granting the motion for summary adjudication on the first and fifth causes of action and dismissing the fourth cause of action. The court thereafter entered a decree quieting title in plaintiffs to an easement over Deavers Road and establishing the common boundary. Defendants appeal that portion of the judgment granting plaintiffs an easement over Deavers Road.
"The elements necessary to establish a prescriptive easement are well settled. The party claiming such an easement must show use of the property which has been open, notorious and adverse for an uninterrupted period of five years. [Citations.] Whether the elements of prescription are established is a question of fact for the trial court [citation], and the findings of the court will not be disturbed where there is substantial evidence to support them." (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570, 199 Cal. Rptr. 773, 676 P.2d 584.) In this matter, the only element in dispute is whether the use by plaintiffs and their predecessor was under a claim of right rather than permissive.
The trial court concluded that evidence of long-term use without objection or interference "established a prima facie title to the easement by prescription." In particular, the court indicated this evidence raised a presumption that the use was not permissive.
Over the years, our state Supreme Court has vacillated on the question whether a claim of right may be presumed from evidence of long-term use without objection. In Clarke v. Clarke (1901) 133 Cal. 667, 66 P. 10, the court stated: "It is not sufficient that the claim of right exist only in the mind of the person claiming it. It must in some way be asserted in such manner that the owner may know of the claim. The fact that the owner knew of the travel and occasional use of the property does not even raise a presumption that such use was hostile or under a claim of right. If any party who is allowed by silent permission to pass over the lands of another, nothing being said as to any right being claimed, after five years, without showing that he ever communicated such claim in any way to the owner, can thus gain title by prescription, it would be a blot upon the law." (Id. at p. 670.)
Nevertheless, a mere five years later, in Fleming v. Howard (1906) 150 Cal. 28, at page 30, 87 P. 908, the court said: "The fact is clearly established that there was an open, visible, continuous, and unmolested use of the way for more than thirty years prior to the beginning of the action. Under these circumstances it will be presumed that the use was under a claim of right and adverse, and a prima facie title by prescription is thereby established." However, in that case, in addition to long-term use, there was evidence that for at least 27 of the 30 years of use, gates had been maintained at both ends of the right-of-way by the party claiming the easement. (Id. at p. 29.) Thus, the court was not required to rely on a presumption of a claim of right.
Forty-two years later, in OBanion v. Borba (1948) 32 Cal.2d 145, 195 P.2d 10, the court expressly eschewed the use of presumptions in establishing a prescriptive easement: "There has been considerable confusion in the cases involving the acquisition of easements by prescription, concerning the presence or absence of a presumption that the use is under a claim of right adverse to the owner of the servient tenement, and of which he has constructive notice, upon the showing of an open, continuous, notorious and peaceable use for the prescriptive period. Some cases hold that from that showing a presumption arises that the use is under a claim of right adverse to the owner. [Citations.] It has been intimated that the presumption does not arise when the easement is over unenclosed and unimproved property. [Citation.] Other cases hold that there must be specific direct evidence of an adverse claim of right, and in its absence, a presumption of permissive use is indulged. [Citations.] The preferable view is to treat the case the same as any other, that is, the issue is ordinarily one of fact, giving consideration to all the circumstances and the inferences that may be drawn therefrom. The use may be such that the trier of fact is justified in inferring an adverse claim and user and imputing constructive knowledge thereof to the owner. There seems to be no apparent reason for discussing the matter from the standpoint of presumptions. For the trial court the question is whether the circumstances proven do or do not justify an inference showing the required elements." (Id. at pp. 148-149.) In that case, the court concluded that an inference of a claim of right may reasonably be drawn from evidence that the plaintiffs "have openly maintained, used and kept both easements in condition for their use." (Id. at p. 148.)
Despite the logic of the foregoing decision, the state high court returned to the use of presumptions in Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d 564. There, the court said: "The issue as to which party has the burden of proving adverse or permissive use has been the subject of much debate. However,  [we agree with the view, supported by numerous authorities,] that continuous use of an easement over a long period of time without the landowners interference is presumptive evidence of its existence and in the absence of evidence of mere permissive use it will be sufficient to sustain a judgment." (Id. at pp. 571-572.) However, in that case, as in Fleming v. Howard, a presumption was unnecessary because there was evidence suggesting adverse use. At one time, the plaintiffs had unsuccessfully sought an express easement yet continued to use the easement for approximately seven years thereafter. (Id. at p. 572.) According to the court, "defendants adamant refusal to negotiate on the issue [of an express easement] is evidence that no permission was given or contemplated." (Ibid.)
In the present matter, unlike Fleming v. Howard, OBanion v. Borba and Warsaw v. Chicago Metallic Ceilings, Inc., there was no evidence to suggest that the use by plaintiffs or their predecessor was under a claim of right. But assuming a presumption of a claim of right may arise from continuous use alone, defendants presented sufficient evidence to rebut that presumption.
In finding that a prescriptive easement had been established, the trial court ignored the period before defendants acquired the Williamss property, when the dominant and servient estates were owned by Lee Ide and Edgar Williams, respectively. The court concluded that Deavers Road had been used by plaintiffs and their predecessor for more than five years without objection by defendants.
While it is certainly appropriate to select any five-year period of continuous, open and adverse use to establish a prescriptive easement, that does not mean use of the easement prior to that period may be ignored. Such prior use may go a long way toward explaining the parties conduct thereafter.
In opposition to plaintiffs motion for summary adjudication of the prescriptive easement claim, defendants presented evidence that Edgar Williams told them he had given Lee Ide permission to use Deavers Road after Hidden Lane washed out. This evidence was not submitted to prove the truth of the matter stated, i.e., that such permission had been given, a use excluded by the hearsay rule. It was instead introduced to explain the failure of defendants to object to continued use of the road by Lee Ide and plaintiffs.
The trial court excluded the proffered evidence, explaining: "[Defendants] reaction to their predecessors statement is not relevant to the issue of whether [defendants] themselves ever gave [plaintiffs] (or their predecessor) consent to use the road. Their deposition admissions are that they never discussed use of the road with Lee Ide nor did they have any agreement with anyone on the Ide Ranch regarding use of the road. [Citation.] Therefore, [defendants] admittedly never gave express permission to [plaintiffs] or their predecessor to use the road whether [defendants] intended to do so or not." The court also excluded statements by defendants that they agreed to permit plaintiffs and their predecessor to continue using the road "to maintain a good, neighborly relationship . . . ." According to the court, an agreement between defendants themselves is not relevant to whether there was an agreement with plaintiffs.
"No evidence is admissible except relevant evidence." (Evid. Code, § 350.) "The issue of the relevance of evidence is left to the sound discretion of the trial court, and the exercise of that discretion will not be reversed absent a showing of abuse." (People v. DeJesus (1995) 38 Cal.App.4th 1, 32.) However, an abuse of discretion may be established where the trial court demonstrates a misunderstanding of the relevant issues, and its exercise of discretion is based on this misunderstanding.
The trial court appears to have been unduly concerned with the lack of express permission or an agreement between defendants and plaintiffs or their predecessor for use of the easement. Evidence of express permission would have been sufficient alone to defeat plaintiffs claim. However, that does not mean the lack of express permission proves the claim. "Where the use of a way by a neighbor is by the express or implied permission of the owner, the continued use is not adverse and cannot ripen into a prescriptive right." (Jones v. Tierney-Sinclair (1945) 71 Cal. App. 2d 366, 370, 162 P.2d 669, italics added.) In a case such as this, where there is no express permission, the issue is whether circumstantial evidence establishes implied permission.
As to the absence of an agreement, that would defeat a claim for an express easement. However, a prescriptive easement depends on whether the use was pursuant to an adverse claim of right or was permissive. The trial court relied on the lack of objection by defendants to prove a claim of right and lack of permission. To the extent the absence of objection is relevant in this regard, evidence that Edgar Williams informed defendants he had given Lee Ide permission to use the road and that defendants desired to maintain neighborly relations is relevant to explain defendants failure to object was not due to their recognition of an adverse claim of right but their implied permission to use the road.
The trial court also relied on Evidence Code section 1252 as a basis for disregarding testimony about what Edgar Williams told defendants. That section reads: "Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness." The court explained: "The Deavers statements regarding their predecessors purported statement are self serving and otherwise uncorroborated. Statements made under such circumstances are not trustworthy and the court finds them to be so in this case."
The trial court misapplied Evidence Code section 1252. That section concerns the trustworthiness of statements made by the out-of-court declarant, not the in-court witness. (People v. Spencer (1969) 71 Cal.2d 933, 946, 80 Cal. Rptr. 99, 458 P.2d 43.) The trial court considered whether the self-serving testimony of defendants was trustworthy. However, that is a matter for the jury. Evidence Code section 1252 is concerned with the trustworthiness of the statement made by Edgar Williams that he gave permission to Lee Ide.
Furthermore, Evidence Code section 1252 applies only to statements falling within article 5, chapter 2, division 10 of the Evidence Code relating to statements made concerning the declarants state of mind (Evid. Code, §§ 1250, 1251) or statements made for purposes of medical diagnosis or treatment (Evid. Code, § 1253). The statement by Edgar Williams that he gave Lee Ide permission to use Deavers Road does not qualify.
Defendants did not rely solely on evidence suggesting they failed to object to the use of Deavers Road because Williams had informed them he gave Lee Ide permission and they wanted to maintain good neighborly relations. There was also evidence that Lee Ide and Edgar Williams were friends and that Lee Ide did not begin using the road until the alternate route to Ide Upper Ranch washed out. From this evidence alone, a reasonable jury could infer both that Williams gave his friend Ide permission to use the road and that Ide would not have used the road of his friend without Williamss permission. On a motion for summary judgment, the trial court must consider any inferences a jury may reasonably draw from the evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)
Of course, the question here is not whether Edgar Williams gave Lee Ide permission to use Deavers Road but whether defendants gave such permission. Nevertheless, if use of the road while Williams owned the servient estate was permissive, this would have a bearing on the subsequent use. (See Kaler v. Brown (1951) 101 Cal. App. 2d 716, 719-720, 226 P.2d 66 [judgment for defendants affirmed where evidence showed use of a driveway over defendants property by plaintiffs predecessor was by permission from defendants predecessor and such use was continued by plaintiffs until shortly before suit was filed].) Defendants presented evidence suggesting that when they assumed ownership of the servient estate, the status quo was permissive use of the road. Under such circumstance, the burden was on the owners of the dominant estate to do something to declare their intention to change the status quo and to use the road under a claim of right. There is no evidence that plaintiffs or their predecessor did anything more than continue to use the road as before.
Defendants also relied on evidence that neither Lee Ide nor his successors in interest did any maintenance on the road. Although plaintiffs presented contrary evidence, this evidence merely created an issue of fact for the jury.
Finally, defendants relied on the movement of a gate on Deavers Road in 1978 or 1979. They claim Lee Ide acknowledged his lack of a claim of right in Deavers Road by asking William Deavers for permission "to place a gate upon" the road. This is incorrect. According to William Deaverss declaration, Ide asked permission "to move the gate located on Deavers Road from its location at or near [their] respective property lines onto [the Williams property]." (Italics added.) In other words, the gate already existed. Even if Ide claimed a right to use the road, he had no right to relocate a gate across the road onto the Williams property. Thus, as the trial court correctly concluded, this evidence was not relevant to the question whether use of the road was under a claim of right or was permissive.
Nevertheless, in our view, the other evidence presented by defendants created an issue of fact regarding the nature of the use of Deavers Road by plaintiffs and their predecessor during defendants ownership of the Williams property. Thus, the trial court erred in granting summary adjudication to plaintiffs on their prescriptive easement claim.
The judgment is reversed. The matter is remanded to the trial court with directions to vacate its April 26, 2002, order granting, in part, plaintiffs motion for summary adjudication and to enter a new order consistent with this opinion. The appellants shall recover their costs on appeal.
We concur: BLEASE, Acting P.J., KOLKEY, J.