Filed 10/29/19 Taylor v. Georgi CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

BRETT TAYLOR et al.,

Cross-complainants and Respondents,

v.

DAVID GEORGI et al., as Trustees, etc.,

Cross-defendants and Appellants.

F075566

(Super. Ct. No. VCU260191)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. David C. Mathias, Judge.

Coleman & Horowitt, David J. Weiland, and Gregory J. Norys for Cross-defendants and Appellants.

Law Offices of Michael J. Lampe and Michael P. Smith for Cross-complainants and Respondents Brett Taylor, Dolores Taylor, Dan Elrod, Shirley Elrod, Brian Van Derhyden and Paul Daley.

Owdom Law Firm and Matthew D. Owdom for Cross-complainants and Respondents Dennis Clark and Donnie Clark.

-ooOoo-

This appeal concerns the location of an easement created in 1969 over forested land in the mountain town of Badger. Deeds executed by the litigants’ predecessors in interest describe the easement’s location in terms of an “existing road.” The trial court found this language refers to a path at least 12 feet wide that meanders from west to east across an 18-acre parcel now owned by the family trust of David and Carol Georgi (appellants). The easement benefits parcels to the east, which are owned by the respondents, by providing access to a public road located parallel to the western border of appellants’ land.

Appellants’ theory of the case, which is convoluted and internally inconsistent, hinges on a factual dispute regarding the effective dates of certain grant deeds. The trial court’s findings are challenged on the ground of insufficient evidence. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 1964, D. C. Tidwell became the sole owner of approximately 160 acres of land legally described as “the Northwest Quarter of Section 1, Township 15 South, Range 27 East, Mount Diablo Base and Meridian, in the County of Tulare ….” In 1969, Tidwell divided the property into four parcels and sold each one to a different buyer. Joseph Gilbeau purchased the northwest quarter of the land, which today consists of five subdivided parcels (parcels 1–5). Kathleen Myers purchased the northeast quarter, which today consists of eight subdivided parcels (parcels 21–28). John and Marlene Ellis (Ellis) purchased the southwest quarter, and the southeast quarter was sold to Tom and Polly Lunsford (Lunsford).

Each of Tidwell’s grant deeds conveyed a “non-exclusive easement for ingress and egress and public utilities to be used in common with others, over and across the now existing road or any future roads to be created[,] together with the right to grant the same to others.” However, the deeds did not identify the servient tenements burdened by the easements. Reference to “the now existing road” was ambiguous because there were arguably several different “roads,” i.e., dirt paths, running through Tidwell’s 160 acres of land.

Collectively speaking, respondents’ chain of title traces back to the grant deed from Tidwell to Myers. Following Myers’s purchase from Tidwell, she sold five acres of the northwestern portion of her property (parcel 28) to Gilbeau. The grant deed from Myers to Gilbeau contained the same easement language found in the earlier Tidwell deeds. Soon afterwards, Gilbeau sold that parcel (parcel 28) along with approximately 18 acres of the northern half of the land he had purchased from Tidwell (parcel 1) to the California Eldership of the Churches of God in North America (the Church). Gilbeau also contemporaneously sold the southwestern portion of his property (parcels 2 & 4) to Horace and Emerine Crowley (Crowley).

To recapitulate, parcel 1 is the upper half of the roughly 40 acres of land previously owned by Gilbeau, who had purchased the northwest quarter of Tidwell’s 160-acre property. Myers purchased the northeast quarter of Tidwell’s land, which consisted of parcels 25 through 28 on the western side (with parcel 28 at the top and descending south in reverse chronological order) and 21 through 24 on the eastern side. Myers sold parcel 28 to Gilbeau, retaining possession of parcels 21 through 27. Gilbeau later sold parcels 1 and 28 to the Church. The Church eventually sold parcels 1 and 28 to appellants (see further discussion, post). Parcel 27, which is a key reference point, is located directly east of parcel 1 and south of parcel 28.

Directly south of parcel 1 on the western side are parcels 2 and 4, in that order, which Gilbeau sold to Crowley. Directly south of parcel 1 on the eastern side are parcels 3 and 5, in that order, which Gilbeau retained for himself. The land south of parcels 4 and 5 was owned by Ellis.

Hogback Road is a public road located parallel to the western border of parcels 1, 2, 4, and land south thereof. In Gilbeau’s grant deed to the Church, he reserved an easement for ingress and egress “across the [s]outh 15 feet” of parcel 1. In his grant deed to Crowley, he reserved “a [r]ight of [w]ay for ingress and egress … over the [n]orth 15 feet” of parcel 2. In other words, Gilbeau reserved the right to access Hogback Road from parcel 3 by traveling west along a 30-foot wide path located on the southern border of parcel 1 and the northern border of parcel 2. This reservation of rights by Gilbeau features prominently in appellants’ theory of the case.

Either before or after his sales of parcel 1 to the Church and parcels 2 and 4 to Crowley (the parties disagree on the timing), Gilbeau deeded to Myers a nonexclusive easement “for ingress and egress over and across the now existing road or any future roads to be created, … over and across the Northwest Quarter of the Northwest Quarter of Section 1, Township 15 South, Range 27 East, Mount Diablo Base and Meridian, in the County of Tulare ….” Gilbeau also executed a virtually identical deed in favor of Ellis. Given the specific reference to “the Northwest Quarter of the Northwest Quarter …,” these so-called easement grant deeds facially purport to convey an easement over and across the entire 40-acre parcel that Gilbeau purchased from Tidwell (parcels 1-5), located along a then “existing road.” However, according to appellants’ theory, Gilbeau no longer owned parcels 1, 2, and 4 when the easement deed to Myers was executed and delivered. Appellants claim the deed from Gilbeau to Myers conveyed only the 15-foot wide easements along the southern border of parcel 1 and the northern border of parcel 2 (and, by implication, the northern border of parcel 3, which Gilbeau still owned at the time). Appellants further allege this is the only easement Myers and her successors in interest have ever had vis-à-vis parcel 1.

In 1972, the Church obtained a special use permit to operate an organized camp on parcel 1. The Church later erected structures on the western side of the property, which reportedly occurred in 1986. The eastern side of the property remains undeveloped, as does parcel 28. As described in appellants’ briefing and shown by evidence in the record, parcel 1 has a driveway (allegedly created in 1972) that connects to Hogback Road at the northwest corner of the property. The driveway runs in a southeasterly direction before circling around some of the aforementioned structures. In 2011, the Church sold parcels 1 and 28 to appellants.

Respondents are the current owners of parcels 23 through 27: Dennis and Donnie Clark (parcel 23), Brian Van Derhyden (parcel 24), Dan and Shirley Elrod (parcel 25), Paul Daley (parcel 26), and Brett and Delores Taylor (parcel 27). In relation to parcel 1, respondents’ properties are located to the east (parcel 27) and southeast (parcels 23–26). Put differently, parcels 23 through 26 are situated in the lower half of the land previously owned by Myers. Parcel 27, also previously owned by Myers, is directly north of parcel 26 and east of parcel 1. Respondents’ parcels are undeveloped and landlocked, i.e., they have no direct access to Hogback Road.

Historically, at least some of the respondents and their predecessors in interest, including a former owner of parcel 27, accessed their land by entering the driveway at the northwest corner of parcel 1 and continuing along a dirt path running eastward from the circular portion of the driveway. The path cuts through the middle of parcel 1 and eventually curves south and before turning east into the northwestern corner of parcel 27. Respondents allege the driveway and dirt path together constitute the “existing road” referenced in the original deed from Tidwell to Myers and the subsequent easement deed from Gilbeau to Myers.

Brett Taylor purchased parcel 27 in June 2011, just a few days after appellants’ purchase of parcels 1 and 28. Taylor contacted appellants about making arrangements to clear the alleged “existing road” on parcel 1, which had become overgrown with “brush, small trees and [m]anzanita bushes,” in order to utilize his easement. Appellants rebuffed him and placed a lock on the gate at the entrance to the driveway, effectively denying Taylor and other respondents access to their land. The parties retained legal counsel and attempted to resolve their dispute out of court, but negotiations reached an impasse.

In June 2012, respondents hired a third party to clear the path of the alleged “existing road” with a bulldozer. Appellants subsequently filed a complaint for damages against respondents for trespass to land, trespass to timber (see Code Civ. Proc., § 733; Civ. Code, § 3346), negligence, and intentional infliction of emotional distress. Respondents answered the complaint and cross-claimed for declaratory and injunctive relief with regard to their easement rights over parcel 1.

According to the record, “The parties stipulated to bifurcate the issues and proceed initially with a court trial on the cross-complaint as to the existence and location of the alleged easement. If necessary, the issues related to [appellants’] claimed damages set forth in their complaint would [have been] heard by way of jury trial at a later date.” The bench trial was held in July 2016.

Respondents’ Case

Respondents’ theory of the case is as follows. As between Gilbeau, Myers, Ellis, and Lunsford, the grant deed from Tidwell to Myers was first in time. Tidwell gave Myers a right-of-way easement located along a then “existing road” over and across land Tidwell subsequently deeded to Gilbeau, specifically what is now parcel 1. Gilbeau later executed a “stand alone easement deed” in favor of Myers, which was done to “clearly illustrate that Myers was intended to have access to Hogback [Road] over the Gilbeau parcel.” The easement deed from Gilbeau to Myers preceded Gilbeau’s grant deeds to Crowley and the Church, so those conveyances are outside of respondents’ chain of title. Thus, Gilbeau’s reservation of 15-foot wide easements in the Church and Crowley deeds has no bearing on respondents’ easement rights over parcel 1, as such rights are derived from the earlier deeds of Tidwell to Myers and Gilbeau to Myers. The “existing road” described in the deeds corresponds to the path respondents cleared with a bulldozer in 2012.

To prove the existence of their easement, respondents proffered the expert testimony of James Cordova. Cordova is a land title examiner who researched the chain of title to respondents’ parcels and appellants’ parcels dating back to the grant deeds from Tidwell to Myers and Tidwell to Gilbeau. In his opinion, the Tidwell deed to Myers conveyed a right-of-way easement over parcel 1 that has never been extinguished. He characterized the easement grant deed from Gilbeau to Myers as a “secondary deed.” Cordova further opined that respondents’ easement rights are unaffected by Gilbeau’s deeds to Crowley and the Church.

Cordova’s testimony addressed the significance, or lack thereof, of multiple dates appearing on the various deeds. Each deed has what the trial court called a “typed date,” which is the date located next to the grantor’s signature. There are also acknowledgement dates showing when the grantor’s signature was acknowledged by a notary public, and dates confirming when the deed was recorded at the county recorder’s office (the “recording date”). For example, the original deeds from Tidwell to Gilbeau, Myers, Ellis, and Lunsford all have a typed date of September 23, 1969. The Gilbeau, Myers, and Lunsford deeds were acknowledged on September 29, 1969, but the Ellis deed was not acknowledged until October 3, 1969. The Myers deed was recorded first, on October 21, 1969, followed by the Ellis deed on October 23, 1969, the Lunsford deed on October 30, 1969, and, lastly, the Gilbeau deed on November 5, 1969.

For title examination purposes, Cordova found the typed dates and acknowledgment dates to be irrelevant since most real estate transactions involve an escrow process. He explained: “Documents are usually prepared by the escrow officer the day someone comes in and requests an escrow be opened.… [¶] … [¶] The documents and instructions and various other documents sit there until the terms and conditions of the escrow have been fulfilled.” Escrow does not close until all of the terms and conditions are satisfied, e.g., the tendering of required payments. The closing of escrow typically coincides with the recording of the deed, hence the significance of the recording date.

To prove the location of the easement, respondents relied on the expert testimony of Don Stivers and Philip Gershkovich. Stivers is a land surveyor and general contractor with a background in forestry and experience in building mountain roads. Gershkovich is a photogrammetrist; he describes his area of expertise as the “science of using aerial photos or remotely sensed data to [interpolate] and make maps, [i.e.,] planimetric or aerial survey mapping.” In simpler terms, photogrammetry involves “making measurements from photographs, especially for recovering the exact positions of surface points.”

In August 2011, appellants hired Stivers to survey parcel 1 and locate along its southern border the 15-foot easement reserved by Gilbeau in his deed to the Church. Stivers surveyed the boundaries of parcel 1 and noted the existence of a road along the southern border between Hogback Road and the northwest corner of parcel 3. However, this road does not extend farther east to parcels 26 or 27.

In June 2012, after respondents had bulldozed through the middle of parcel 1, Stivers e-mailed appellants to advise he had discovered 11 aerial photographs dating back to 1987 showing “a clearly defined road that runs through the ‘Church’ property [i.e., parcel 1].” He explained the road had become less visible over time and said, “It may be that existing road that appears in the photos is the one the [respondents] are clearing.”

In February 2016, respondents hired Stivers to inspect and survey the bulldozed path through parcel 1. He did so and concluded the path had been cleared within the boundaries of a preexisting road. Stiver’s opinion was based on seeing what he recognized as old road cuts, slow-growing vegetation protruding from those cuts, and the presence of windrows “just below the toe of the old cut.”

Stivers’s survey data was given to the photogrammetrist, Gershkovich, who used it to analyze aerial photographs dating back to September 1970. When superimposed over the photos, the survey points aligned with a visible path across parcel 1 and into parcel 27. Accordingly, Gershkovich opined “‘it is clear there is a road in the center of [parcel 1],’” which in the 1970 photo “appears to be pretty wide and well defined” as compared to images from later years.

Gershkovich summarized his findings:

“‘[I]t appears the road in question has been present since at least 1970. The road on the eastern [side] of the property takes a different trajectory between 1970 and today, but the majority of the road takes the same path for each of the data sets I was able to find. I found that the road widens and narrows between the years. It appears there was a major clearing just prior to the 1970 photo and prior to the 2014 photo.’ [¶] … [¶] … As a photogrammetrist, I would map [the path] as a dirt road.”

The bulldozer operator, Charles Fry, testified to clearing brush and small trees from what appeared to him to be an existing road. He had used a 12-foot wide dozer blade and claimed to have stayed within the preexisting road cuts. Other percipient witnesses included Craig Miller, who owned parcel 27 from January 1976 to June 2011. Miller claimed to have accessed his property using the disputed dirt road across the middle of parcel 1, which he said was wide enough to accommodate his pickup truck and “VW Bug.” He maintained the road by clearing and trimming the brush until sometime “in the later ’80s” when he stopped visiting the property. Additional witnesses testified to their historical use of the road, apparently to preempt any argument of the easement being extinguished by abandonment.

Appellants’ Case

Appellants’ theory of the case was outlined in their trial brief. Beginning with the assumption all deeds took effect on their “typed date,” appellants argued Gilbeau, Myers, Ellis, and Lunsford acquired ownership of their respective properties from Tidwell on the same day, i.e., September 23, 1969. However, since Gilbeau later executed separate easement deeds in favor of Ellis and Myers, appellants hypothesized “that Gilbeau received his deed first,” meaning Tidwell no longer owned parcels 1–5 when he sold the remainder of his land to Myers, Ellis, and Lunsford. Therefore, Tidwell’s deed to Myers did not give her easement rights over parcel 1 because he had no ability to grant such rights. The argument continues: “Based on the failure of Myers and Ellis to obtain an easement from Tidwell across Gilbeau’s property, Gilbeau granted a general floating easement to Ellis on October 8, 1969, over the northwest quarter he owned.” (Italics added.)

As we explain in our Discussion, the term “floating easement” is used when a grantor fails to specify the location of a right-of-way easement. In that scenario, the owner of the servient tenement has the first right to select the location. If no selection is made, the location is chosen by the easement holder and/or becomes fixed by actual use.

Appellants argued Gilbeau gave Ellis a floating easement over parcels 1 through 5, which “created a cloud on [the] title” to Gilbeau’s property. Gilbeau supposedly chose the location of the Ellis easement by reserving the 15-foot wide easements along the southern border of parcel 1 and the northern border of parcel 2 in his deeds to Crowley and the Church. As a result, “the cloud lifted from the entire 40 acre northwest parcel.” Next, according to appellants’ timeline, Gilbeau executed an easement deed in favor of Myers. Since Gilbeau had already sold parcels 1, 2, and 4, his deed to Myers conferred easement rights only along the southern 15 feet of parcel 1, the northern 15 feet of parcel 2, and the entirety of parcels 3 and 5, which Gilbeau still owned. The trial brief states: “This was the first easement that Myers received over Gilbeau’s property and the operative easement at issue in this litigation.”

The above theory is complicated but relatively concrete. However, appellants contradict themselves at pages 11 and 12 of the trial brief by alleging Tidwell’s four original grantees received “reciprocal general easements burdening the entire 160 acre parcel.” The same contradiction is repeated at pages 22 and 23 of the trial brief, wherein appellants discuss easements burdening “the original 160 acre parcel,” refer to Gilbeau as “one of the [s]ervient [t]enement owners,” and contend Gilbeau exercised his right to “select the location of the [Tidwell to Myers] easement along the southern boundary [of parcel 1].” Appellants indiscriminately rely on both theories in their briefing on appeal, often inserting verbatim passages from the trial brief. Consequently, their arguments can be difficult to follow.

Both theories assume Gilbeau sold part of his land to Crowley and the Church before executing and delivering the easement deed in favor of Myers. The dates from which the actual timeline can be established are identified in this table:

Grantor/Grantee Typed Date Acknowledgement Date Recording Date
Gilbeau to Crowley (Parcels 2 & 4) 10/22/69 10/29/69 12/31/69
Gilbeau to Church (Parcels 1 & 28) 10/27/69 10/29/69 12/31/69
Gilbeau to Myers (Easement) 11/12/69 10/18/69 11/20/69
As noted by respondents (below and again on appeal), the acknowledgment date for the Gilbeau to Myers deed precedes its typed date by almost a month. On each deed, the acknowledgment date indicates when the grantors appeared before the notary to acknowledge they had executed the instrument. Absent time traveling abilities, Gilbeau could not have acknowledged, on October 18, 1969, having signed the deed on a date several weeks in the future. Therefore, assuming the Gilbeau to Myers deed was signed no later than the acknowledgment date, it was recorded and executed prior to the deeds to Crowley and the Church. Appellants argued the date discrepancy should be ignored.

At trial, appellants’ opening statement focused on tangential issues and only vaguely referenced the theory of respondents’ easement being located along the southern border of parcel 1. Appellants’ percipient witnesses consisted of David Georgi and two people who had visited parcel 1 during the years 2005 through 2012. The testimony of those witnesses is of minimal relevance to the issues on appeal and warrants no further summary. Appellants’ case-in-chief also included expert testimony by a civil engineer and land surveyor named David Horn.

Horn expressed opinions regarding the average width of the disputed road at different points in time. In addition, over respondents’ objections, he was permitted to testify regarding the effective dates of certain deeds. Horn believed all deeds take effect as soon as they are signed, meaning ownership of the subject property is transferred from grantor to grantee on the date the deed is executed. He equated the “typed date” on the deeds with the date of execution. However, as noted in the trial court’s statement of decision, Horn’s testimony demonstrated a lack of familiarity with the legal requirement of delivery to transfer title to property (see further discussion, post).

Trial Court’s Findings and Conclusions

On December 16, 2016, the trial court issued an 11-page statement of decision. Regarding the operative dates of the deeds, the trial court concluded “[t]he vast weight of the evidence … supports a finding that the recording date represents the consummation of delivery and acceptance.” This finding was made as to the deeds from Tidwell to Gilbeau and Myers, two related deeds of trust executed by Gilbeau and Myers in favor of Tidwell, and the easement grant deed from Gilbeau to Myers. By implication, the latter deed was found to have taken effect prior to Gilbeau’s sale of parcel 1 to the Church and parcels 2 and 4 to Crowley. Gilbeau’s reservation of 15-foot wide easements in the Crowley and Church deeds was found to be “outside the chain of title to [respondents’] property” and thus irrelevant. Based on Cordova’s chain of title testimony, Myers’s easement rights were found to have transferred to her successors in interest, including respondents.

The trial court found Tidwell had intended to provide Myers with an easement for ingress and egress between her property (parcels 21–28) and Hogback Road. The deed from Gilbeau to Myers was found to have the same intent and legal effect, which implied the trial court’s acceptance of respondents’ argument that Gilbeau meant to acknowledge and confirm the existence of an easement located along a then “existing road” over his land. Appellants’ floating easement theory was expressly rejected. The “existing road” referenced in the deeds was found to be the path through the middle of parcel 1 visible in numerous aerial photographs admitted into evidence at trial. A slight variance between two of Don Stivers’s survey points at the eastern end of parcel 1 and the path depicted in the 1970 photograph was deemed “inconsequential.”

The judgment was entered on March 13, 2017. It states, in relevant part:

“[Respondents] and their successors in interest own and hold nonexclusive easements for ingress and egress over and across [parcel 1], which constitutes a servient tenement. The easements are appurtenant to the properties owned by [respondents], which constitute the dominant tenements. With respect to the western, developed portion of [parcel 1] above the brush and tree line, [respondents] and their successors in interest shall use the least intrusive reasonable means to ingress and egress, which includes, but is not limited to, use of existing gravel and/or paved vehicle pathways. With respect to the eastern, undeveloped portion of [parcel 1] below the brush or tree line, the easement … shall be defined as being within the pre-existing road cuts (further defined as at a minimum the width of a 12 foot dozer blade, and not to exceed the existing road cuts).”

In addition, appellants were permanently enjoined from interfering with respondents’ peaceful use of the easement.

Appellate Proceedings

Appellants filed a timely notice of appeal. We have already mentioned inconsistent positions asserted in the opening brief. The reply brief contains additional contradictions, which prompted respondents to file a motion to dismiss the appeal and a request for monetary sanctions on grounds of frivolousness and bad faith. The moving papers suggest appellants are “just making things up as they go along in the hope of delaying proceedings as long as possible.” Although respondents’ criticism of the briefing is justified, we deny the motion and sanctions request for the reasons provided in the final section of this opinion.

DISCUSSION

1. Standard of Review

“In general, in reviewing a judgment based upon a statement of decision following a bench trial, ‘any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision. [Citations].’” (Estate of Young (2008) 160 Cal.App.4th 62, 75–76.) “Moreover, findings of fact are liberally construed to support the judgment.” (Id. at p. 76.) Questions of law are reviewed de novo. (American Nurses Assn. v. Torlakson (2013) 57 Cal.4th 570, 575.)

The interpretation of a written instrument ordinarily involves a question of law. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865–866.) However, if the writing is ambiguous and conflicting extrinsic evidence was admitted to aid in its interpretation, any reasonable construction of the document supported by substantial evidence will be affirmed. (In re Marriage of Fonstein (1976) 17 Cal.3d 738, 746–747; WYDA Associates v. Merner (1996) 42 Cal.App.4th 1702, 1710.) The grant of an easement by deed is “interpreted in like manner with contracts in general” and subject to the same standards of review. (Civ. Code, § 1066; accord, City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 238; Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 521–522.)

“The trial court’s determination of whether an ambiguity exists is a question of law, subject to independent review on appeal.” (WYDA Associates v. Merner, supra, 42 Cal.App.4th at p. 1710.) We agree with the parties that the controlling deeds are ambiguous and, therefore, the trial court’s findings are reviewable for substantial evidence. To the extent some of appellants’ arguments raise questions of law, we analyze the legal issues de novo.

2. Applicable Law re: Easements

An easement is defined as “a burden or servitude upon land, whether or not attached to other land as an incident or appurtenance, that allows the holder of the burden or servitude to do acts upon the land.” (Civ. Code, § 887.010.) In essence, the easement holder has a right to use someone else’s land for a specified purpose. (Kazi v. State Farm Fire & Casualty Co. (2001) 24 Cal.4th 871, 880.) The property burdened by the easement is known as the servient tenement. (Civ. Code § 803.) Where applicable, “[t]he land to which an easement is attached is called the dominant tenement.” (Ibid.)

This case involves an easement for a right-of-way, meaning “‘the privilege which one person, or particular description of persons, may have of passing over the land of another in some particular line.’” (Ballard v. Titus (1910) 157 Cal. 673, 681 (Ballard).) Right-of-way easements can be appurtenant or in gross. (Civ. Code, §§ 801, subd. 4, 802.) An appurtenant easement requires two tenements: “a dominant one in favor of which the obligation exists, and a servient one upon which the obligation rests.” (Wright v. Best (1942) 19 Cal.2d 368, 381.) “The principal distinction between an easement appurtenant and an easement in gross is that in the first there is a dominant tenement and in the second there is not.” (Balestra v. Button (1942) 54 Cal.App.2d 192, 197.) “An easement in gross exists independently of the ownership or possession of any specific land, and constitutes a personal right to use the land of another.” (Redevelopment Agency v. Tobriner (1984) 153 Cal.App.3d 367, 375, fn. 1, italics omitted.)

Appellants claim the trial court “was operating under a fundamental misunderstanding of an express easement appurtenant versus a general floating easement.” They continue: “Had the court operated under a correct understanding of the law …, it would have held that the 1969 Tidwell Deeds created a floating easement over and across what is now [parcel 1] as opposed to an express easement.” Appellants ask us to review de novo “the issue of whether the Tidwell deeds created an express easement appurtenant.”

We have found no cases, published or unpublished, wherein the phrase “general floating easement” is used. The term “general easement” occasionally appears where “‘a grant of an easement is general as to the extent of the burden to be imposed on the servient tenement.’” (Zissler v. Saville (2018) 29 Cal.App.5th 630, 639, quoting Winslow v. City of Vallejo (1906) 148 Cal. 723, 725.) In those situations, the scope of the easement is established by its historical use. (Ibid.) The easements granted to Myers by Tidwell and Gilbeau were for “ingress and egress,” which indicates a specific purpose. (See Zissler, at pp. 639–640.) Ingress means the act of entering or the right to enter, and egress means the act of exiting or the ability to exit. (Black’s Law Dict. (11th ed. 2019) pp. 935, 652.)

Floating easements are rarely discussed in the case law. The term refers to a right-of-way easement that “is not limited to any specific area on the servient tenement” at the time of its creation. (City of Los Angeles v. Howard (1966) 244 Cal.App.2d 538, 541, fn. 1.) In Ballard, the California Supreme Court held “that where an unlocated right of way is granted or reserved, the owner of the servient estate may in the first instance designate a reasonable way, and if he fails to do so, the owner of the dominant estate may designate it.” (Ballard, supra, 157 Cal. at p. 683.) If the parties cannot agree, a reasonable location may be fixed by judicial decree. (See id. at pp. 683–685.) However, “[t]he use of the easement in a particular course without objection by the owner of the servient tenement establishes the easement along the route used.” (6 Miller & Starr, Cal. Real Estate (4th ed. 2018) § 15:51, pp. 15–185 to 15–186; accord, Southern California Edison Co. v. Severns (2019) 39 Cal.App.5th 815, 823.)

In Ballard, the plaintiff deeded away 13 acres of the “‘front portion’” of a 40-acre tract of land and reserved for herself a 30-foot wide easement “beginning at a point on the parcel conveyed where the same touched a public road and leading thence to the ‘rear portion,’” of her land. (Ballard, supra, 157 Cal. at p. 676.) Although the opinion does not use the term, Ballard provides an example of a floating easement. The plaintiff had neglected to specify in her grant deed the location of the route to be used from the dominant tenement over and across the servient tenement. (Id. at pp. 678–679.) Here, both Tidwell and Gilbeau identified the location of Myers’s easement by referencing “the now existing road.” Therefore, appellants are incorrect in arguing the easement was “not limited to any specific area on the servient tenement.” (City of Los Angeles v. Howard, supra, 244 Cal.App.2d at p. 541, fn. 1.) The right of ingress and egress was limited to the route of the then “existing road.”

As a matter of law, Tidwell and Gilbeau both granted Myers an express easement appurtenant to her land. First, the deeds expressly convey a nonexclusive easement for ingress and egress. “An easement may be created by (1) an express grant, (2) an express reservation, (3) an implied grant, (4) an implied reservation, (5) necessity, (6) prescription, (7) a recorded covenant, (8) dedication, (9) condemnation, (10) estoppel, or (11) a court decision …. There are no other recognized methods for creating an easement on the land of another.” (6 Miller & Starr, Cal. Real Estate, supra, § 15:13, p. 15–64.)

Second, easements are presumed appurtenant “unless there is clear evidence to the contrary.” (Cushman v. Davis (1978) 80 Cal.App.3d 731, 735.) An easement is either in gross or appurtenant to land; “it is never construed as personal [in gross] when it may fairly be construed as appurtenant to some other estate.” (Elliott v. McCombs (1941) 17 Cal.2d 23, 29.) The deeds in question clearly contemplate an easement appurtenant to the land Myers owned at the time, which was the dominant tenement. Appellants do not actually contend the easement was in gross, but we discuss these principles in light of how they have phrased their assertions of error.

Appellants seem to believe an express easement requires an unambiguous deed, which is not accurate. “Interpretation of the instruments of conveyance is the greatest single problem and cause for litigation involving expressly created easements. An ambiguous or otherwise deficient instrument may create issues as to … the location of the easement.” (6 Miller & Starr, Cal. Real Estate, supra, § 15:15, p. 15–69, fn. omitted.) As discussed, the trial court’s interpretation of the deeds required certain factual determinations. Having disposed of appellants’ only claim of legal error, we now apply the substantial evidence test.

3. Sufficiency of the Evidence

The grant of an express easement is interpreted to give effect to the mutual intent of the parties. (Civ. Code, § 1636; Christian v. Flora (2008) 164 Cal.App.4th 539, 550.) Such intent may be ascertained by the “surrounding circumstances and the relationship of the parties and the properties involved.” (Christian, at p. 550.) At trial, it was respondents’ burden to prove the existence and location of the easement by a preponderance of the evidence. (Tucker v. Watkins (1967) 251 Cal.App.2d 327, 332; see Evid. Code, § 115 [“Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence”].) Since the relevant deeds contain ambiguities, the trial court permissibly considered extrinsic evidence to resolve the issues. (Baker v. Ramirez (1987) 190 Cal.App.3d 1123, 1132–1133.) “When extrinsic evidence is properly admitted to interpret a deed, the trial court’s finding must be sustained on appeal if there is any evidence, either direct or indirect, contradicted or uncontradicted, which supports that finding.” (Id. at p. 1133.)

It is appellants’ burden to affirmatively demonstrate any insufficiency of the evidence. (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 415.) “The substantial evidence standard of review is generally considered the most difficult standard of review to meet, as it should be, because it is not the function of the reviewing court to determine the facts.” (In re Michael G. (2012) 203 Cal.App.4th 580, 589.) Substantial evidence refers to “evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof.” (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.) “[T]he focus is on the quality, not the quantity of the evidence. Very little solid evidence may be ‘substantial,’ while a lot of extremely weak evidence might be ‘insubstantial.’” (Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 871.) The testimony of a single witness may alone constitute substantial evidence. (Evid. Code, § 411; In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)

Our analysis begins with the effective dates of the deeds. A grant deed “takes effect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor.” (Civ. Code, § 1054.) “A valid delivery is accomplished when the conduct and acts of a grantor manifest a present intent to dispose of the title conveyed by the deed. There is no particular form necessary, but any act or thing which manifests such an intent is sufficient to establish it. It is always a question of fact, and must be determined by the circumstances surrounding each particular transaction.” (Kenniff v. Caulfield (1903) 140 Cal. 34, 40.)

Appellants rely on Civil Code section 1055: “A grant duly executed is presumed to have been delivered at its date.” However, this presumption is rebuttable. (Blackburn v. Drake (1963) 211 Cal.App.2d 806, 813.) “[I]n the face of contrary evidence,” the date of delivery becomes a question of fact for the trial court to determine. (Ibid.)

Respondents rely on Civil Code section 1057: “A grant may be deposited by the grantor with a third person, to be delivered on performance of a condition, and, on delivery by the depositary, it will take effect. While in the possession of the third person, and subject to condition, it is called an escrow.” As explained in Blumenthal v. Liebman (1952) 109 Cal.App.2d 374, “[W]hen a deed is placed in escrow, it takes effect as a conveyance upon performance of the prescribed conditions and delivery by the depositary. [Citation.] Where ‘all of the conditions of the escrow have been performed and the grantee is entitled to possession of the deed, it may be deemed that the title has passed.’ [Citation.]” (Id. at pp. 379–380; accord, Vierneisel v. Rhode Island Ins. Co. (1946) 77 Cal.App.2d 229, 231 [“It is the general rule that where conditions fixed for delivery of a deed are not such as are certain to happen, merely depositing the deed with an escrow holder does not pass title to the grantee”].) Delivery upon the conclusion of escrow “does not sanction relation back to an earlier date, such as the date of execution of the deed or of commencement of the escrow. [Citation.] The doctrine of relation back is recognized as an exception to the general rule, and only when the circumstances are appropriate to its application.” (Blumenthal v. Liebman, supra, at p. 380.)

Tidwell’s deeds to the four original grantees each have an escrow number typed in the upper left corner of the instrument. Therefore, the trial court reasonably inferred all of the deeds were placed in escrow. Respondents’ expert testified escrow does not close until all related terms and conditions are fulfilled, which is consistent with the cited authorities. Based on the law, the expert testimony, the surrounding circumstances, and plain common sense, the trial court further inferred Tidwell did not intend to deliver the deeds, i.e., transfer ownership of his parcels, until all conditions of escrow were satisfied. Respondents’ expert also testified that the close of escrow ordinarily coincides with the recording of the deed. We thus conclude there is substantial evidence of the deeds taking effect on the date they were recorded.

Appellants say construing the recording dates as the dates of delivery is legally problematic. To illustrate their point, they note the deed from Tidwell to Gilbeau was recorded November 5, 1969, but Gilbeau’s easement deed to Ellis was recorded a day earlier, on November 4, 1969. Appellants allege: “If the recording date was used as the effective date of the deed, as [the] trial court held, Gilbeau did not own the property prior to granting the Ellis Easement, thus making the Ellis Easement void and/or meaningless.”

Appellants’ reasoning is flawed. “It has long been recognized … that if a grantor purports to convey an interest in land which the grantor does not own, but afterwards acquires, the interest passes to the grantee at the time the grantor obtains it.” (Noronha v. Stewart (1988) 199 Cal.App.3d 485, 489.) “This doctrine of ‘after-acquired title’ is recognized in California and has been partially codified into Civil Code section 1106, which provides: ‘Where a person purports by proper instrument to grant real property in fee simple, and subsequently acquires any title, or claim of title thereto, the same passes by operation of law to the grantee, or his successors.’” (Ibid.)

The Noronha opinion goes on to explain that while the statutory rule “is limited to grants of fee simple,” the common law rule “survived the enactment of the statute,” is “considerably broader,” and specifically applies to the grant of an easement. (Noronha v. Stewart, supra, 199 Cal.App.3d at pp. 489–490.) As applied to the example involving Gilbeau and Ellis, it cannot be assumed the easement deed would have been “void and/or meaningless.” On the contrary, Gilbeau was presumably estopped from denying Ellis’s easement rights as soon as he (Gilbeau) acquired ownership of the servient tenement from Tidwell.

Notwithstanding the operative dates of the Tidwell deeds, appellants’ theory of the case is vitiated by the date discrepancy on the easement deed from Gilbeau to Myers. As discussed, the deed was acknowledged on October 18, 1969, but is dated November 12, 1969. Respondents rely on Citizens Nat. T. & S. Bk. v. Brown (1942) 54 Cal.App.2d 688, wherein the acknowledgement date of a tax deed was deemed controlling because it preceded the date on the face of the instrument by 28 days. (Id. at pp. 691–692.) Even without this persuasive authority, the facts and circumstances clearly support the implied finding that Gilbeau executed the deed no later than October 18, 1969. Since Gilbeau’s grant deeds to Crowley and the Church were both executed and recorded at subsequent points in time, substantial evidence also supports the finding of the latter conveyances being outside respondents’ chain of title.

Following the trial court’s timeline, which is supported by the evidence, Myers was the first of Tidwell’s grantees to acquire ownership of property in “the Northwest quarter of Section 1 ….” Tidwell’s deed to Myers is deficient in its failure to identify a servient tenement burdened by the easement granted therein. However, “[i]t is not necessary to its validity that the conveyance of an express easement identify the servient tenement.” (Camp Meeker Water System, Inc. v. Public Utilities Com. (1990) 51 Cal.3d 845, 866; see 6 Miller & Starr, Cal. Real Estate, supra, § 15:14, p. 15–68 [“where a grantor owns two parcels of adjacent property, on a conveyance of one parcel that fails to identify the servient tenement, the court may infer that the easement burdened the property retained by the grantor”].)

A grant deed is construed in favor of the grantee (Civ. Code, § 1069), so it is reasonable to infer the servient tenement was the one most ideally situated for purposes of ingress and egress. Among other evidence, the 1970 photograph supports the conclusion Tidwell intended the servient tenement to be the land now consisting of parcels 1–5. In any event, Myers was granted the same rights in the easement deed from Gilbeau, which identifies the servient tenement as “the Northwest Quarter of the Northwest Quarter.”

The trial court’s interpretation of the words “now existing road” is supported by the aerial photographs and expert witness testimony. The 1970 photograph arguably shows three direct routes to Hogback Road from Myers’s land (parcels 21–27) across Gilbeau’s land (parcels 1–5), and the path in question is fairly described as the clearest of the three. The trial court aptly characterized it as “well developed and established.”

Appellants argue it is too speculative to assume the road depicted in the 1970 photograph existed 10 or 11 months earlier when Myers acquired her easement rights. First, as respondents point out, reference to a “now existing road” in both deeds necessarily implies the existence of a road during the relevant time period. Second, respondents’ photogrammetry expert opined there had been a “major clearing” of the path before the 1970 photograph was taken. The trial court reasonably concluded the clearest path over parcel 1 visible in the 1970 photograph was the “existing road” described in the deeds. Witness testimony supports the additional finding of the easement being at least 12 feet wide. (See Cummins v. Levy (1953) 116 Cal.App.2d 610, 613 [if width not specified in grant of roadway easement, “‘the width is to be that which is suitable and convenient for the ordinary uses of free passage [citations]’”]; 6 Miller & Starr, Cal. Real Estate, supra, § 15:56, pp. 15–205 to 15–206 [same; “as wide as is reasonably necessary for convenient travel”].)

Having determined the sufficiency of the evidence, we need not further discuss appellants’ subjective interpretations of the record. (See Shelden v. Marin County Employees’ Retirement Assn. (2010) 189 Cal.App.4th 458, 464 [“If a ruling is supported by substantial evidence, it is irrelevant that the record also includes substantial evidence that would have supported a different conclusion”].) However, given its relevance to respondents’ frivolousness argument, we briefly note a third variation of the floating easement theory presented in the reply brief. Appellants submit the timing of Gilbeau’s deed to Myers is unimportant because even if it occurred before his transactions with Crowley and the Church, his reservation of 15-foot easements along the southern border of parcel 1 and northern border of parcel 2 was somehow intended to fix the location of Myers’s easement over parcel 1.

One of many problems with appellants’ third theory is the fact Gilbeau’s deed to Myers references a then “existing road.” By all accounts, there has never been a road along the southern border of parcel 1 that extends to respondents’ parcels. Witness testimony indicates there is a 20-foot ravine and other physical obstacles at the eastern end of parcel 1 that would make building such a road impracticable. Nevertheless, appellants suggest Gilbeau’s reference to the “now existing road” was meaningless and he actually intended to provide “enough space for Myers … to build a road to access [her land].” The theory is not at all persuasive.

Finally, we note the “transfer of real property passes all easements attached thereto” (Civ. Code, § 1104) “unless expressly excepted” by the terms of the conveyance (id., § 1084; see Conaway v. Toogood (1916) 172 Cal. 706, 712). The testimony of title expert James Cordova confirmed respondents possess whatever easement rights were granted to Myers in the deeds from Tidwell and Gilbeau. This finding and all others not challenged on appeal are presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; see TME Enterprises, Inc. v. Norwest Corp. (2004) 124 Cal.App.4th 1021, 1038 [scope of appellate review limited to issues raised and substantively addressed in appellant’s opening brief].)

4. Motion to Dismiss/Request For Sanctions

Appellants filed their reply brief on July 12, 2018. Twelve days later, respondents moved for dismissal and requested nearly $40,000 in sanctions against appellants for filing an allegedly frivolous appeal. The moving papers highlight glaring contradictions in the reply brief vis-à-vis positions asserted in the opening brief.

Two examples are illustrative: (1) In the opening brief, appellants contend the trial court erred by finding the deeds from Gilbeau to Crowley and the Church fell outside respondents’ chain of title. In the reply brief appellants state, “The fact that the Church and Crowley deeds are outside of Respondents’ chain of title is of no consequence.” (2) In the opening brief, appellants repeatedly allege Myers was granted a floating easement, either by Tidwell, Gilbeau, or both, and contend its location was “selected and located by the Crowley and Church deeds.” However, the reply brief declares, “Appellants’ position has never been that the Church and Crowley deeds are the deeds that set the location of the floating easement.”

“[A]n appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts attention from the already burdensome volume of work at the appellate courts. Thus, an appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) Respondents seek relief on both grounds.

We conclude the allegation of subjective bad faith has not been proven. The objective “reasonable attorney” standard presents a closer issue, but an appeal devoid of merit is not necessarily frivolous. (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1296.) This case has a complicated fact pattern that is “not amenable to easy analysis in terms of existing law,” and such matters “should not be penalized as frivolous.” (Ibid; see Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2018) ¶ 5:37, p. 5–19 [“dismissal for a frivolous appeal is most likely to occur only in those rare cases where the court will not have to expend significant effort in deciding the merits of the motion”].)

Furthermore, respondents’ sanctions request was not filed within 10 days of appellants’ reply brief and is thus untimely. (Cal. Rules of Court, rule 8.276(b)(1).) Aside from this procedural defect, the type of “egregious conduct” for which sanctions are reserved has not been established. Accordingly, the motion is denied.

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal.

PEÑA, J.

WE CONCUR:

HILL, P.J.

MEEHAN, J.