Filed 7/14/20 Daniels v. Weir CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Nevada)

—-

KAREN DANIELS,

Plaintiff and Appellant,

v.

DORA C. WEIR,

Defendant and Respondent.

C083844

(Super. Ct. No. CU14-080539)

The dispute in this case concerns the extent of an easement along a private road. Karen Daniels owns a property with no direct access to a public road. Rather than having direct access to a public road, her property instead holds an easement for ingress and egress along a private road known as Clydesdale Road, which itself connects to two public roads: Mount Olive Road to the north and Taylor Crossing Road to the south. Daniels’s deed describes the easement this way: “an easement for ingress [and] egress, . . . the centerline of which is conterminous with the centerline of the existing road constructed in 1970 extending to Mount Olive Road.”

Daniels and the landowner immediately south of her, Dora C. Weir, dispute the meaning of this language in the deed. In particular, they dispute whether this language allows Daniels to use all or only part of Clydesdale Road—a disagreement that turns principally on the import of the phrase “extending to Mount Olive Road.” Do these words describe the extent of the easement—as in, from Daniels’s property to Mount Olive Road (Weir’s view)? Or do those words instead only identify the particular road covered by the easement—as in, Clydesdale Road, also known as the “existing road constructed in 1970 extending to Mount Olive Road” (Daniels’s view)? To resolve the issue, Daniels filed suit against Weir, seeking, among other things, to establish her right to use the portion of Clydesdale Road running through Weir’s property. According to Daniels’s complaint, she either possesses an express easement to use this portion of Clydesdale Road or a prescriptive easement based on the conduct of one of her predecessors. The trial court, however, found both claims meritless. It thus dismissed these claims following Weir’s motion for summary adjudication.

Daniels now appeals, contending the trial court wrongly found, as a matter of law, that her easement extended only to Mount Olive Road. Because we agree, we reverse the trial court’s grant of summary adjudication on this issue.

BACKGROUND

Daniels owns a property of about 50 acres in Nevada County. Weir owns a property of about 80 acres that lies immediately south of Daniels’s property. Because both properties lack direct access to a public road, both have express easements allowing use of a private road, Clydesdale Road, that runs through their properties (among others) and connects to two public roads: Mount Olive Road to the north and Taylor Crossing Road to the south.

Daniels’s easement along Clydesdale Road was first mentioned in a 1973 deed. At the start of that year, both the parties’ properties were under common ownership. But in late 1973, the then-owner, W-M Ltd., sold a part of its property that included Daniels’s property. As part of the transfer, W-M Ltd. reserved for itself, and also granted to the new owner, “an easement for ingress, egress and road and utility purposes 60.00 feet in width the centerline of which is conterminous with the centerline of the existing road constructed in 1970 extending to Mount Olive Road.” Forty years later, that same language appeared in Daniels’s deed. According to the deed, her property holds “an easement for ingress, egress, and road and utility purposes, 60.00 feet in width the centerline of which is conterminous with the centerline of the existing road constructed in 1970 extending to Mount Olive Road.” Both Weir and Daniels agree the referenced road is Clydesdale Road.

Relying on this language in the deed, which Daniels understood to refer to an easement along Clydesdale Road generally, Daniels regularly used Clydesdale Road to access Taylor Crossing Road to the south after she acquired her property in 2012. But in early 2014, Weir’s attorney informed Daniels that she could no longer pass through Weir’s property to reach Taylor Crossing Road. “Entry into her property without her authorization,” the attorney wrote, “would be considered a trespass.”

Daniels filed this suit in response. In her complaint, she sought, among other things, “to quiet title to the easement along Clydesdale Road.” In support, she contended she held an express easement for ingress and egress along Clydesdale Road. But even if she did not, she added, she at least held a prescriptive easement allowing her to use the road. Weir afterward filed her own cross-complaint against Daniels.

Following Weir’s filing of a motion for summary adjudication, the trial court dismissed Daniels’s claims concerning Clydesdale Road. In the court’s view, Daniels held neither an “express grant or reservation of easement over the [Weir] property” nor a prescriptive easement. After the parties dismissed their remaining claims against one another, the court entered judgment in favor of Weir.

Daniels timely appealed.

DISCUSSION

I

Standard of Review

A trial court may grant a motion for summary adjudication as to one or more causes of action if there is no triable issue of material fact and the moving party is entitled to a ruling in its favor as a matter of law. (Code Civ. Proc., § 437c, subds. (c), (f)(1); Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 924.) A triable issue of a material fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.)

We review an order granting summary adjudication de novo, and “ ‘liberally construe the evidence in support of the party opposing summary [adjudication] and resolve doubts concerning the evidence in favor of that party.’ [Citation.]” (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286.)

II

Express Easement

Daniels first contends the trial court wrongly “conclud[ed], as a matter of law, that there was no grant or reservation of an easement along Clydesdale Road in Weir’s title history.” We agree.

Daniels’s deed includes several references to easements for ingress and egress. One of those references is to “an easement for ingress, egress, and road and utility purposes, 60.00 feet in width the centerline of which is conterminous with the centerline of the existing road constructed in 1970 extending to Mount Olive Road”—an easement that Weir’s predecessor, W-M Ltd., granted to Daniels’s predecessor in 1973. According to Daniels, although this language refers to “the existing road . . . extending to Mount Olive Road,” that doesn’t mean the easement is limited only to the portion of that road “extending to Mount Olive Road.” The phrase “extending to Mount Olive Road,” Daniels maintains, only serves to identify the relevant road (i.e., Clydesdale Road); it does not serve to limit the portion of that road that she may use. In other words, Daniels contends, “the existing road constructed in 1970 extending to Mount Olive Road” means nothing more than the road known as “Clydesdale Road.”

To support this reading, Daniels offered at the trial level the testimony of several witnesses who described Clydesdale Road as a through road from Taylor Crossing Road to Mount Olive Road since at least the 1970s (around the time when Daniels’s easement was created), a 1990 map showing Clydesdale Road connecting to Taylor Crossing Road at its south end and Mount Olive Road at its north end, and the testimony of her predecessor, Moire Donald, who owned the Daniels property from 1988 to 2012. According to Donald’s testimony, she rode her horse over the portion of Clydesdale Road on the Weir property during much of this period, and neither Weir nor any of her predecessors, it appears, ever objected that her use exceeded that allowed by the easement. This historic use of the easement, Daniels told the trial court, tended to support her reading of the deed. Weir, in turn, offered her own competing extrinsic evidence to support her contrary view. Weir’s predecessor, for example, testified that Clydesdale Road was not in fact a through road from Taylor Crossing Road to Mount Olive Road since the 1970s. Her predecessor owned the Weir property from late 1975 to 1982, and throughout this period, he stated, Clydesdale Road ran only from the northern end of the Weir property to Mount Olive Road; “[i]t did not extend through the [Weir] property at all.”

Considering the deed’s language and the parties’ conflicting extrinsic evidence, we agree that triable issues of material fact remain concerning Daniels’s claim. The disputed sentence in Daniels’s deed includes two clauses. The first states that the Daniels property holds “an easement for ingress, egress, and road and utility purposes, 60.00 feet in width.” The second adds that “the centerline of [that easement] is conterminous with the centerline of the existing road constructed in 1970 extending to Mount Olive Road.” Our focus is on the second clause. According to the trial court (and Weir), the only permissible reading of this language is that it describes an easement “extending to Mount Olive Road”—that is, it describes an easement running from the Daniels property to Mount Olive Road. But we are not so sure.

Resolution of this issue turns principally on the import of the words “extending to Mount Olive Road.” Do these words serve to describe a certain portion of a road—as in, the portion of Clydesdale Road “extending to Mount Olive Road”? Accepting that view, we might say “the centerline of [the easement] is conterminous with the centerline of the existing road constructed in 1970 [(i.e., Clydesdale Road)] [starting at the northern end of the Daniels property and] extending to Mount Olive Road.” Alternatively, do the words “extending to Mount Olive Road” serve only to identify a particular road—as in, Clydesdale Road, also known as “the existing road constructed in 1970 extending to Mount Olive Road”? Understood that way, we would instead say “the centerline of [the easement] is conterminous with the centerline of the existing road constructed in 1970 extending to Mount Olive Road [(i.e., Clydesdale Road)].” Although we need not decide which of these two readings is better, we at least find the latter interpretation is a potentially reasonable one considering the deed’s language and the offered extrinsic evidence. No rule of grammar, as far as we are aware, forecloses that reading. And although using the words “the existing road constructed in 1970 extending to Mount Olive Road” to identify Clydesdale Road is perhaps a bit wordy, the original drafters might have found a reference to “the existing road constructed in 1970” too vague in itself to do the job.

The trial court, however, found differently. It found Daniels’s reading of her deed wrong as a matter of law and, for that reason, granted Weir’s request for summary adjudication. Because we find a reasonable factfinder could reach a different conclusion after reviewing all the evidence, however, we conclude the trial court should not have granted Weir’s requested summary adjudication on this issue. We thus reverse the trial court’s dismissal of Daniels’s first cause of action. (See Lynch v. Spilman (1967) 67 Cal.2d 251, 267 [finding summary judgment inappropriate in contract dispute in light of unresolved ambiguities]; Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 361 [same].)

III

Prescriptive Easement

Daniels also contends the court wrongly found, as a matter of law, that she did not hold a prescriptive easement across Weir’s property. We agree here too.

Daniels’s prescriptive-easement claim relies principally on the conduct of the prior owner of her property, Donald, who, again, owned the Daniels property from 1988 to 2012. Donald testified that, for much of this period, she rode her horse along the portion of Clydesdale Road over Weir’s property, though the precise years she rode are not entirely clear from the record. In her words, she would “go down through Clydesdale and down to Taylor Crossing and then down to the river and then cross the river and go to Colfax and ride all over the hills there.” Based on this conduct, Daniels contends she at least holds a prescriptive easement over Weir’s property, even if she does not hold an express easement. That is so, she asserts, because Donald’s use of Clydesdale Road over Weir’s property was open, notorious, continuous, and adverse for an uninterrupted period of over five years. (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570 [to establish a prescriptive easement, a party must show use of the property was “open, notorious, continuous and adverse for an uninterrupted period of [at least] five years”].)

The trial court, however, found Daniels’s claim failed as a matter of law for two reasons. But we find neither of those reasons warranted summary adjudication.

First, the court found Daniels’s claim failed because Donald only used Clydesdale Road for recreational purposes, not for ingress and egress. But although Donald used Clydesdale Road during her recreational rides, that does not mean she did not use the road for ingress and egress. Donald, after all, testified that she used Clydesdale Road to reach Taylor Crossing Road from her property “[a]ll the time.” She would then, from Taylor Crossing Road, ride “down to the river and then cross the river and go to Colfax and ride all over the hills there.” And after finishing her rides, she would generally use Clydesdale Road to return back to her property. Liberally construing the evidence in the light most favorable to Daniels, as we must at this stage, we cannot agree that Donald never used Clydesdale Road for ingress and egress.

The court also found Daniels’s prescriptive claim failed because, it concluded, Donald’s use of Clydesdale Road was consensual and thus non-adverse. The court based this conclusion on the following exchange between Weir’s attorney and Donald:

“Q: So your understanding was it was just a neighborly accommodation that they were letting you go on their property and enjoy riding your horse there at that time?

“A: I guess.”

But we find that brief exchange insufficient to conclude, as a matter of law, that Donald’s use of Clydesdale Road was consensual. First, it is unclear whether the offered quote even concerned Donald’s use of Clydesdale Road. Shortly before that quote, Donald mentioned she formerly rode her horse “through Clydesdale and down to Taylor Crossing.” She added that “sometimes” she also “would ride . . . around the back of [Weir’s] property” rather than use Clydesdale Road. Weir’s attorney afterward asked Donald about her “[u]sing the property in that manner” and whether “it was just a neighborly accommodation”—which led to Donald’s “I guess” response. But did Weir’s questions—which involved Donald’s “[u]sing the property in that manner”—concern Donald’s riding “around the back of [Weir’s] property” (the last use that Donald mentioned) or her riding “around the back of [Weir’s] property” and down Clydesdale Road (the two uses that Donald mentioned)? It is not entirely clear.

In any event, even if the offered quote did concern Donald’s use of Clydesdale Road, that would not mean that Donald’s use was necessarily non-adverse. “ ‘Adverse use’ means only that the claimant’s use of the property was made without the explicit or implicit permission of the landowner.” (Aaron v. Dunham (2006) 137 Cal.App.4th 1244, 1252.) To show that Donald’s use was non-adverse, then, Weir needed to show that Donald had some sort of permission to use the Weir property. But construing the evidence in the light most favorable to Daniels, we cannot say that Weir ever made that showing. To start, Weir never showed that Donald had anyone’s explicit permission to use the property. The only person who spoke on this point, it appears, was Donald. And according to Donald, she never “really” discussed her use of the Weir property with any of the property’s owners. Weir also never sufficiently showed that Donald had anyone’s implicit permission to use the property. Donald, to be sure, said “I guess” when questioned whether the Weirs let her on their property as a “neighborly accommodation.” But the context of that response matters. Weir’s attorney characterized Donald’s use of the Weir property as “a neighborly accommodation” because the Weirs said hi to Donald and engaged in “chit-chat [with her] like neighbors do” when, “[e]very couple weeks or so,” they saw her cross their property. But we question whether these occasional friendly interactions can be said, as a matter of law, to show that Donald had permission to use the Weir property.

Even if these occasional interactions showed Donald had the Weir’s permission, moreover, that still would not be enough to support summary adjudication here. Donald, it appears, rode through the Weir property for about eight years before the Weirs even acquired their property in 1996. So even if Donald had the Weirs’ implicit permission to ride through their property from 1996 onward, that says nothing about the preceding eight years—a period long enough in itself to establish a prescriptive easement.

Weir, for her part, offers several additional arguments in support of the court’s decision. First, relying on Clarke v. Clarke (1901) 133 Cal. 667 (Clarke), she contends Daniels needed to show that Donald communicated her adverse claim involving the Weir property; and because she did not, Weir maintains, the law requires us to presume that Donald’s use of the property was with the landowners’ permission. We agree Clarke provides some support for that proposition. The court there found a party claiming a prescriptive easement must show she communicated her adverse claim of right to the property owner; otherwise, “[t]he law will presume that . . . the use was by permission or silent acquiescence.” (Id. at p. 670.) But, unfortunately for Weir, the California Supreme Court has also said the opposite. In Fleming v. Howard (1906) 150 Cal. 28 (Fleming), for example, the court reversed the presumption in Clarke. Although the Clarke court found a party claiming a prescriptive easement must supply evidence to overcome the “presum[ption] that . . . the use was by permission” (Clarke, at p. 670), the Fleming court instead found the party opposing the prescriptive-easement claim must supply evidence to overcome the presumption that the use was not by permission (see Fleming, at p. 30 [if a party uses another’s property for the prescriptive period, “the burden is upon the party alleging that the use has been by virtue of a license or permission, to prove that fact by affirmative evidence”]).

So which approach should we follow—should we presume Donald’s use was by permission (Clarke) or should we presume it was not (Fleming)? We should do neither, it turns out. The high court long ago acknowledged these inconsistent decisions and offered a “preferable” third approach: rather than presume the use of another’s property was with or without permission, courts should “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.” (O’Banion v. Borba (1948) 32 Cal.2d 145, 149; see also Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 571-572.) Because, in reaching that decision, the California Supreme Court explicitly rejected the presumption discussed in Clarke, we decline to follow Clarke here. (O’Banion, at p. 149.)

Weir next contends no easement could exist across her property in the absence of an express written irrevocable offer to dedicate the property to public use. Weir bases her argument on Civil Code section 1009, which, among other things, “provides that ‘no use’ of private noncoastal property after the statute’s 1972 effective date ordinarily may give rise to ‘a vested right’ in the public to continue using the property permanently, unless the property owner makes an express, irrevocable offer to dedicate the property to public use.” (Scher v. Burke (2017) 3 Cal.5th 136, 139 (Scher), citing Civ. Code., § 1009, subd. (b).) But Civil Code section 1009 is concerned with the law of implied dedication for public use, not the law of private prescriptive easements. (See Scher, at p. 139.) It thus does not govern here. (See Pulido v. Pereira (2015) 234 Cal.App.4th 1246, 1252 [Civ. Code, § 1009 does not apply in cases involving “private prescriptive easement[s] between neighboring landowners”], disapproved of on other grounds in Scher, at p. 150, fn. 5.)

Weir’s one cited case on this topic—Bustillos v. Murphy (2002) 96 Cal.App.4th 1277, disapproved of in part in Scher, supra, 3 Cal.5th at page 150, footnote 5—does hold otherwise. The court there considered whether someone who had hiked around an undeveloped property for a number of years, along with various members of the public, had acquired a private prescriptive easement. (Bustillos, at p. 1281.) The court held he did not, reasoning that “[t]here [wa]s nothing ‘private’ about” the easement sought; rather, the hiker only possessed an interest, and only used the property in a manner, that was indistinguishable from the public generally. (Ibid.) But the same cannot be said here. Donald’s use of Clydesdale Road was not, as in Bustillos, indistinguishable from the public at large. She used Clydesdale Road, not simply as a member of the public generally, but as one of the few landowners abutting that private road on her way to and from her property. We thus decline to find Civil Code section 1009 applicable to the facts here. (See Ditzian v. Unger (2019) 31 Cal.App.5th 738, 745 [plaintiffs who sought an easement over their neighbor’s “property to gain access to a public recreational area” possessed an interest distinguishable from the public generally]; Pulido v. Pereira (2015) 234 Cal.App.4th at pp. 1252-1253 [plaintiffs who sought “a right-of-way easement to access their own property” possessed an “interest distinguishable from the interest of the public at large”].)

For all the reasons stated, we find triable issues of fact remain as to Daniels’s prescriptive-easement claim. We thus reverse the trial court’s dismissal of Daniels’s second cause of action.

DISPOSITION

The trial court’s summary adjudication of Daniels’s first and second causes of action is reversed. Daniels is entitled to recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

/s/

BLEASE, Acting P. J.

We concur:

/s/

MAURO, J.

/s/

BUTZ, J.