Filed 12/30/19 Hale v. Cerro Pampa LLC CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

DONALD HALE, as Trustee, etc., et al,

Plaintiffs and Respondents,

v.

CERRO PAMPA LLC,

Defendant and Appellant.

A154602

(Marin County Super.

Ct. No. CIV 1600442)

Respondents, plaintiffs below, are the owners of an approximately 25-acre undeveloped, landlocked parcel in Marin County which we shall refer to as Parcel 36. In 1977, Parcel 36 was separated from a larger parcel, the remainder of which we shall refer to as Parcel 38. Parcel 38 is now owned by defendant and appellant Cerro Pampa, LLC (Cerro Pampa), which operates a polo club on it. In 2018, the trial court ruled after a bench trial that plaintiffs held an implied easement to travel from Parcel 36 across a portion of Parcel 38 in order to eventually reach San Antonio Road, a public road. Cerro Pampa appeals from this ruling.

We conclude the trial court erred in finding an implied easement for two reasons. A party seeking an implied easement must prove (1) the subject properties were separated, and at that time—in this case, 1977—(2) the prior existing use of the property encumbered by the easement (in this case, Parcel 38) was of a nature that the parties must have intended or believed the use would continue and (3) the easement was reasonably necessary for the use of the property benefitting from the easement (in this case, Parcel 36). (Thorstrom v. Thorstrom (2011) 196 Cal.App.4th 1406, 1420 (Thorstrom).) There is no substantial evidence supporting the second and third elements. Therefore, we reverse, and do not reach Cerro Pampa’s other arguments, including that reversal is required because it did not have notice of the claimed implied easement when it became the record owner of Parcel 38 in 2008.

BACKGROUND

I.

A Description of the Properties Involved

Because it is difficult to understand and discuss the issues addressed by this appeal without some ability to visualize the relevant properties, we will provide a brief description of them in conjunction with “Plaintiff’s Exhibit No. 11,” a “Google Earth” color map that was admitted at trial, a slightly reduced copy of which is attached as appendix A, post, page 21.

The public roads: There are two public roads on the map that are of significance in this case: first, San Antonio Road, which runs east-west and is labelled on the attached exhibit and second, the D Street Extension, which is not labelled but runs roughly north-south on the western side of the map and intersects with San Antonio Road in the upper left quadrant of the map.

The properties: A property owned by the Gilardi family (Gilardi Property) is on the left side of map and outlined in green lines. To the immediate east of the southern half of the Gilardi Property is Parcel 38, which is outlined in blue except for its western boundary by the Gilardi Property, which is outlined in green. Parcel 38 and the Gilardi Property together form a somewhat asymmetrical U-shape. Between the northern half of the Gilardi property and the northern part of Parcel 38 (in the cradle of the U) lies Parcel 36, which is partially tree-covered and partially open land, bounded by blue, green and orange lines. All three properties are bounded on the north by the San Antonio Creek (Creek), which flows under the line of trees that runs from northwest to southeast across the top half of the page.

Other features: On the northern part of Parcel 38 is a large rectangle. This is a polo field, and to its east is a smaller oval that is a track for exercising horses. A light-colored line bisects the southern part of Parcel 38 and continues eastward and then northward, skirting the track and polo field, crossing the Creek and eventually intersecting with San Antonio Road. This is a private road used to access Parcel 38. Another light-colored line bisects the Gilardi Property running north and west and extends beyond the Gilardi Property. This is a private road that has been in the past used to access points west, including the D Street Extension.

The issue in the case below was whether plaintiffs could access a public road from Parcel 36 via an easement of some type. As we will discuss, the record indicates that the D Street Extension (accessed from Parcel 36 by going just south of Parcel 36 westward over Parcel 38, the Gilardi Property and beyond) and San Antonio Road (accessed from Parcel 36 by going just south of Parcel 36 eastward and northward over Parcel 38 and beyond) were and are the only public roads reachable, if indirectly, from Parcel 36. As of 1977, the new owner of Parcel 36, who also was the long-time exclusive user of its acreage, Fred L. Zimmerman (Uncle Fred ), for more than three decades had almost always traveled to and from Parcel 36 by going west and over the Gilardi Property, which led to his home and dairy and to a public road, the D Street Extension. He continued to do so for almost three more decades after 1977. Less than once a month, Uncle Fred traveled east and north over what became Parcel 38 to collect gravel from the Creek. There is no substantial evidence that he used this latter route to come to and go from Parcel 36 via San Antonio Road in any appreciable way.

The trial court rejected plaintiffs’ claim that they were entitled to an easement that would enable them to travel from just south of Parcel 36 west and over the Gilardi Property to the D Street Extension, and the plaintiffs have not appealed from this (or any) part of the trial court’s judgment. However, the court found plaintiffs held an implied easement to permanently travel as Uncle Fred infrequently had traveled from just south of Parcel 36 east and north over Parcel 38. This would enable plaintiffs, and any successor owners of Parcel 36, to cross over the Creek and continue across a third-party’s property to San Antonio Road. The implied easement to travel over Parcel 38 is the subject of Cerro Pampa’s appeal.

II.

The Relevant Real Property Transactions and the Lawsuit

Parcel 36 and Parcel 38, before they were separated, were for many decades owned and used by members of the Zimmerman family. The family’s ownership began in 1918, when Fred J. Zimmerman and Lizzie S. Zimmerman, a married couple (collectively, Zimmermans), purchased 350 acres in Marin County. They established the Zimmerman Ranch (Ranch) on this acreage. After her husband’s death, Lizzie owned the Ranch until her passing in 1972. In 1977, Parcel 36 (now owned by plaintiffs) was divided from the rest of the Ranch, which became Parcel 38 (now owned by Cerro Pampa).

In 1941, the Zimmermans and one of their sons, Uncle Fred, moved to and began residing on another ranch west of the Gilardi Property, and a dairy of theirs was also located in that area. At that time, the Zimmermans allowed Uncle Fred to fence off 25 acres of the Ranch located in its northwest corner, which they sometimes called “Round Hill.” This acreage was to become Parcel 36 in 1977. Uncle Fred used these 25 acres exclusively for his cattle from 1941 until he passed away in 2006.

Prior to 1977, documents were recorded that reflect certain rights of way on or by the Ranch. First, a “Record of Survey of the Lands of Geddes and McGuire” (1965 Geddes Map), recorded by a third party in Sonoma County in 1965, shows a “right of way” running from the vicinity of the Ranch’s northern boundary over private property north of the Creek that leads to San Antonio Road.

Second, the Zimmermans’ grandson and Uncle Fred’s nephew, John E. Zimmerman (John), a plaintiff in this case, testified that he sought in 1967 to build a house on a small parcel that was “split off” from the rest of the Ranch. Although John never built the house, he obtained a “right of way” over a part of the Ranch in the area of this parcel from his grandmother, Lizzie, who then owned the Ranch. John testified the right of way was for the benefit of all the persons on the Ranch, including Uncle Fred. In 1967, John recorded a parcel map in Marin County (1967 Parcel Map) that shows this right of way. According to Ray C. Carlson, the expert surveyor who was called to testify by plaintiffs Zimmerman and Hadley (Carlson), the 1967 Parcel Map shows this right of way going “north northwesterly or northerly from along the—basically the southerly of San Anton Creek” and over to the right of way recorded in 1965 Geddes Map.

Both rights of way are referred to in other recorded documents that plaintiffs argue are in the chain of title leading to Cerro Pampa’s ownership of Parcel 38, including the following: The 1965 Geddes Map is referred to in a 2013 preliminary report regarding Parcel 38 that was prepared for Cerro Pampa. The right of way identified in the 1967 Parcel Map is indicated in two documents: a record of survey done by a predecessor in interest to Cerro Pampa that was recorded in Marin County in 1989 (which refers to the right of way as an “easement”) and, as conceded by the parties, a 1996 Parcel Map recorded by this same predecessor in interest in 1996 in Marin County (which map is not contained in the record given to this court). The 1967 Parcel Map is referred to in a property description contained in a road maintenance agreement between Cerro Pampa and neighboring property owners (but not plaintiffs) recorded in Marin County in 2003 regarding what has become a paved road on Parcel 38 east of, and not connecting to, Parcel 36.

After Lizzie died in 1972, her estate was distributed via a probate judgment filed in 1973. The probate judgment conveyed the Round Hill acreage to Uncle Fred, but described it with some imprecision according to Carlson. The rest of the Ranch was conveyed in divided interests among Uncle Fred’s sister and the children of Uncle Fred’s older brother, including John. The judgment did not refer to any easements. In 1977, John purchased all of the interests in what soon became Parcel 38 except for a one-sixth interest held by his brother.

Also in 1977, John executed a quitclaim deed (1977 quitclaim deed) that finalized Uncle Fred’s ownership of the property conveyed to him by the probate judgment, giving him the approximately 25 acres he had long used for his cattle. As indicated in a subsequent assessor’s map, this acreage was designated Parcel 36 and the remainder of the Ranch (about 325 acres), owned by John and his brother, was designated Parcel 38. The 1977 quitclaim deed did not refer to any easements in favor of Parcel 36 over any part of Parcel 38. When Parcel 38 was sold in 1988 to a third-party predecessor in interest to Cerro Pampa, no such easement was called out in any of the transaction’s documents either.

Cerro Pampa became the record owner of Parcel 38 in 2008. Although the record is unclear, one or more of Cerro Pampa’s members may have been a part of an earlier purchase of Parcel 38. Will Harris, one of Cerro Pampa’s managing members, testified that Parcel 38 was purchased in 1998 by four or five people whom he joined “shortly” thereafter, and that Parcel 38 was later “formalized in” Cerro Pampa after it was formed in 2002.

Uncle Fred continued to own and use Parcel 36 for his cattle until he passed away in 2006. From 1999 to 2006, he also leased some land on the Gilardi Property to the west of Parcel 36 for cattle grazing. In 2006, Uncle Fred died intestate and Parcel 36 was conveyed in divided interests to the estate of his sister, Imelda Borradori (one-half), John (one-quarter) and another of his sisters, Evelyn Hadley (one-quarter). The plaintiffs and respondents in this action are a family friend, Donald Hale, as the Trustee of the Evelyn Borradori Living Trust (Hale); John as the trustee of the John E. Zimmerman Trust; and Hadley. After Fred’s death, John renewed the lease of the Gilardi’s pasture land for one year, but the Gilardis would not renew the lease thereafter and also told John not to cross over their property anymore.

After plaintiffs became owners of Parcel 36, they tried, with an eye towards selling the parcel, to obtain documented easements over neighboring properties that provided a route from Parcel 36 to a public road, i.e., either the D Street Extension or San Antonio Road. In an effort to obtain a route from Parcel 36 to the D Street Extension, John sought two easements. He obtained one from the owners of what had been Uncle Fred’s property to the west of the Gilardi Property, which led to the D Street Extension. However, he could not obtain an easement over the Gilardi Property; Joyce Gilardi testified that she did not grant John an easement after he insisted but failed to convince her there was a provable historical easement in favor of Parcel 36 that encumbered the Gilardi Property.

In an effort to obtain a route from Parcel 36 to San Antonio Road, plaintiffs obtained easements from certain property owners, who were then dismissed from the suit. However, plaintiffs did not obtain an easement from Cerro Pampa, although to reach San Antonio Road from Parcel 36, they must travel on Parcel 38 just south of Parcel 36 eastward to the paved road on Parcel 38 and beyond. Cerro Pampa offered to grant plaintiffs an easement to cross over Parcel 38 in exchange for 25 percent of whatever was the eventual gross sale price of Parcel 36, but plaintiffs rejected this offer.

This lawsuit was filed in Marin County Superior Court in 2016 by Hale. Hale was a long-time friend of Uncle Fred and Uncle Fred’s sister, Imelda Borradori, who also died in 2006. Among other things, Hale sought a judicial declaration that the Imelda Borradori Living Trust, which holds a one-half interest in Parcel 36, held easements, be they of necessity, prescription, reservation or implied, in favor of Parcel 36 over adjoining and neighboring properties owned by others, including the Gilardis and Cerro Pampa. Hale also sued the Trust’s co-owners in Parcel 36, John, as Trustee of the John E. Zimmerman Trust, and Hadley, each of whom owned a one-quarter interest in Parcel 36, because they refused to join the action as plaintiffs. The three co-owners were also involved in a separate partition action, which was later consolidated with this case and then dismissed.

By the time the bench trial began, as a result of repositioning and dismissals, Hale, John and Hadley were plaintiffs together who proceeded with easement claims against Cerro Pampa and the Gilardis. The trial was conducted to determine whether there was some kind of easement in favor of Parcel 36 over the Gilardi Property and/or over Parcel 38 that provided a route to a public road. This required a review of the use of these properties over time, evidence of which we will now summarize. The record also indicates that the court visited the properties during the trial.

III.

The Uses of Parcel 36, Parcel 38 and the Gilardi Property Over Time

John testified that he was born in 1936 and as a child lived on the Ranch, where his family operated a dairy. Later, in order to pay for veterinary school, he milked cows for Uncle Fred for about four months a year over four or five years. He stayed with the Zimmermans and Uncle Fred when he did this work. According to John, after Uncle Fred and the Zimmermans moved to their home west of the Gilardi Property in 1941 and Uncle Fred was given the exclusive use of what became Parcel 36 for his cattle, “most of the time” Uncle Fred went to and from what became Parcel 36 by driving over the Gilardi Property that was to the west of this acreage. The Zimmermans and others who worked at the dairy that was located on the Ranch went to and from the Ranch differently depending on the time of year. During dryer times of the year they drove north, across the Creek and the property just north of it and onto San Antonio Road. During wetter months, when the Creek waters rose too high to traverse the Creek, they traveled west on a “winter road” over the Gilardi Property to the D Street Extension.

John acknowledged at trial that his 1977 quitclaim deed separated the Ranch into Parcel 38 and Parcel 36 and recognized Uncle Fred’s ownership of the latter, but did not refer to any easement encumbering Parcel 38, even though John and his brother owned Parcel 38. John also testified that he did not discuss any access rights to Parcel 38 with Uncle Fred at the time he executed the quitclaim deed. John said that in 1977 he “didn’t give a thought” to an easement and was particularly busy with his veterinarian work. He further testified that at the time, Uncle Fred “primarily” went to and from Parcel 36 by going over the Gilardi Property to the west. Uncle Fred “[o]ccasionally” went eastward over Parcel 38 to haul gravel out of the Creek, doing so less than once a month. As we will discuss, the evidence indicates Uncle Fred used the gravel on his property west of the Gilardi Property and sold some to the Gilardis.

John testified that in 1978, he built a house on Parcel 38 just southeast of Parcel 36, which can be seen in its present-day form on the Google Earth map exhibit that is attached to this opinion. An unimproved “road” that went by the area where John was to build this house “had been [an] ongoing problem for decades,” so in 1977 and 1978, after he gave Uncle Fred the quitclaim deed, John “improved the road coming in and also going out.” In deposition testimony that was read at trial, John said he improved the “winter road up past the Round Hill,” meaning Parcel 36. He hired a contractor to improve the road with rock from a quarry on the Ranch and gravel Uncle Fred hauled out of the Creek. John estimated that the road “probably had a foot of rock on it, so it raised the road 12 inches.” He said the rock was still on the road when he sold Parcel 38 in 1988 and that “[s]ome” of the rock was still there at the time of trial. “It’s a good road,” he testified. John said Uncle Fred and everyone else on the Ranch used the road. Asked if he would have improved it if he did not think Uncle Fred was going to continue to use the road, John replied, “Probably not.”

Cerro Pampa introduced color photographs of dirt paths by a gate set into the fencing on the southern boundary of Parcel 36. The undated photographs were taken by Charles Theriot, who became a principal in Cerro Pampa in 2013 and held a 31 percent interest in it at the time of trial. One photograph shows a dirt path littered with low brush running by the Parcel 36 gate and extending further east on Parcel 38. The photograph shows pebble and rock strewn among the brush in the vicinity of Parcel 36’s fence.

John further testified that he lived in the house he built on Parcel 38 from 1978 to 1983. When he was at the house, which was infrequently because of his work, he could see when Uncle Fred drove along the road John had improved. Uncle Fred “[u]sually” drove along the road to haul gravel out of the Creek, and John did not know what route Uncle Fred took from the Creek after hauling the gravel. John further testified that during this time, Uncle Fred went to his own home from Parcel 36 by driving west over the Gilardi Property.

Hale also testified. After he became friends with Uncle Fred in the early 1980’s, he sometimes worked with him at Parcel 36. He said that Uncle Fred and he traveled “both routes over the Cerro Pampa property and Gilardi property” to access Parcel 36, but he did not elaborate how often or for what purposes they did so. His more specific recollections were that Uncle Fred almost always accessed Parcel 36 from the Gilardi Property. Hale said that during the time Uncle Fred leased land from the Gilardis for cattle grazing (which was from 1999 to 2006), Uncle Fred went through the Gilardi Property “99 percent” of the time to get to Parcel 36. In deposition testimony, Hale said he rode with Uncle Fred on a road that went by the Gilardi pasture to go to Parcel 36, and that from 1980 to 2006 Uncle Fred “commonly” rode through the Gilardi property to go to Parcel 36. In other deposition testimony read into the record, he said he helped Uncle Fred gravel and grade the road on the “Gilardi route” to Parcel 36 several times in the 1980’s and 1990’s and “probably” after 2000, and that Uncle Fred sold gravel to the Gilardis at cost. Hale said he never saw Uncle Fred do anything to improve the road on Parcel 38.

Carlson testified as an expert in land surveying and establishing boundaries and access to easements. Among other things, he testified about a 1952 aerial photograph of the Ranch, in which the area that became Parcel 36 is fenced off and visible. Carlson said there was an indication on the map where vehicles traveled on the Ranch. He determined this based on “a route that’s worn” in the photograph that was a little southwest of the right of way indicated on the 1967 Parcel Map. He “would assume that would be a route that an automobile would be able to go. There’s tracks across there that’s worn wider than a cattle path.” Although his testimony is not entirely clear, he appears to have indicated the photograph shows this route going eastward and then northward across Parcel 38 from a tree that was just south of the western corner of what became Parcel 36, crossing the Creek and continuing beyond to San Antonio Road.

There were other improvements over time that are relevant. As we have indicated, at some point (that is also unclear from the record) some or all of the right of way on Parcel 38 east of Parcel 36 that was indicated on the 1967 parcel map was paved over. The paving did not extend to the portion of the road John improved in 1977 and 1978 that went along the southern boundary of Parcel 36.

In 1988, a roadway and utility easement was recorded for the benefit of the then-owners of Parcel 38 to travel over property north of the Creek and Parcel 38 and out to San Antonio Road. Sometime thereafter, a bridge was constructed over the Creek, possibly around 1995, making it possible to travel during wetter months north from Parcel 38, across the Creek and beyond to San Antonio Road.

After Uncle Fred died in 2006 and the Gilardis did not renew the grazing lease with John, John removed the cattle from Parcel 36. After that, he had no reason to go to Parcel 36 other than to take care of a “thistle problem” once a year. He went to Parcel 36 less than once a month just to see if it was there.

As we have discussed, at the time of trial, Cerro Pampa operated a polo club on Parcel 38, boarding horses and providing grounds to play polo and to pasture and exercise the horses. To the east of Parcel 36, it maintained a polo field and an exercise track for horses. Directly south of Parcel 36, it maintained a horse pasture. The strip of Cerro Pampa property on which plaintiffs sought an easement running east and west just south of Parcel 36 included the only direct means of moving horses between the pasture and the polo field. Cerro Pampa contended that, because it would bisect the horse path between this pasture and the polo field and exercise track, granting plaintiffs an easement over this strip of Parcel 38 would expose the horses to the dangers of a roadway; the only alternative was to take the horses over “steep and dangerous ground,” which could have ruinous consequences if a horse were injured; the implied easement would impair one of Cerro Pampa’s rental properties; and the implied easement would result in a road traversing land that became a wetland during the rainy season, raising a question about whether the county would approve any road improvement there.

IV.

The Trial Court’s Statement of Decision

The parties submitted post-trial briefs, the trial court issued a statement of decision, the parties filed objections to it and the court issued an amended and restated statement of decision in May 2018. The court found that an easement was reasonably necessary for plaintiffs’ enjoyment of Parcel 36 and that “[t]he question becomes what type of easement and over which property.” The court rejected plaintiffs’ contention that they had an easement over the Gilardi Property.

Regarding Cerro Pampa’s Parcel 38, the court concluded there was no evidence of an easement by necessity, a prescriptive easement or an equitable easement. The court found that “[f]rom the time [Uncle Fred] was deeded Round Hill in 1977 (i.e., when it ceased being part of Parcel 38) until his death in 2006, there was evidence that he continued to use the easement across Parcel 38 for access to San Antonio Road.” While this use was significantly longer than the five years required for a prescriptive easement, it was “not an adverse use for most of that period.” The court continued, “A more natural conclusion in this case is that an easement by implication was created in 1977. John Zimmerman’s testimony was clear that such an easement was the intent of the parties at that time.” The court continued, “It is also important to consider that every other party to the easement to San Antonio Road with the exception of [Cerro Pampa] has agreed to Plaintiffs’ use of it for ingress and egress.” The court further asserted that the “winter road” of the Gilardi Property was not the “preferred route” and that, although Cerro Pampa was understandably reluctant to consent to this easement, “reasonable cooperation between adjoining landowners in order that all parties may enjoy their land is important. The hardships to [Cerro Pampa] are considerably less than the hardships Round Hill presently suffers as a landlocked, unusable parcel.”

The trial court entered a judgment in favor of plaintiffs, ruling they were the legal and equitable owners of an appurtenant easement by implication for ingress, egress, and utilities over Parcel 38, including as indicated in a drawing (prepared by Ray C. Carlson) that is attached to the statement of decision.

Cerro Pampa filed a timely notice of appeal.

DISCUSSION

Cerro Pampa argues the trial court erred in finding an implied easement for a variety of legal and factual reasons. We focus on two of its arguments: (1) there is insufficient evidence that in 1977, when the Ranch was split into Parcel 36 and Parcel 38, Uncle Fred and John intended that Uncle Fred would permanently use Parcel 38 to go to San Antonio Road; and (2) there is insufficient evidence that in 1977 such a use of Parcel 38 was a reasonable necessity for Uncle Fred’s use and enjoyment of Parcel 36.

I.

Relevant Legal Standards

“ ‘Where findings of fact are challenged on a civil appeal, we are bound by the “elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the findings below.’ ” (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) “Substantial” refers to the quality, not the quantity, of evidence. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) The evidence must be of ponderable legal significance rather than just “any” evidence (ibid.) and must be reasonable in nature, credible, and of solid value. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) “We do not reweigh the evidence on appeal, but rather determine whether, after resolving all conflicts favorably to the prevailing party [citations], and according prevailing parties the benefit of all reasonable inferences [citation], there is substantial evidence to support the judgment.” (Hassan v. Ford Motor Co. (1977) 19 Cal.3d 530, 544.)

Civil Code section 1104 governs implied easements. It provides, “A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.”

The courts have further developed the law of implied easements. An easement will be implied if at the time the relevant property is conveyed (in this case, in 1977, when Uncle Fred’s ownership of Parcel 36 was finalized), three conditions are met. Specifically, “an ‘easement will be implied when, at the time of conveyance of property, the following conditions exist: 1) the owner of property conveys or transfers a portion of that property to another; 2) the owner’s prior existing use of the property was of a nature that the parties must have intended or believed that the use would continue; meaning that the existing use must either have been known to the grantor and the grantee, or have been so obviously and apparently permanent that the parties should have known of the use; and 3) the easement is reasonably necessary to the use and benefit of the quasi-dominant tenement.” (Thorstrom, supra, 196 Cal.App.4th at p. 1420.) Easements by implication allow the intended use of the encumbered property, but only “ ‘in the same manner and to the same extent as such property was obviously and permanently used’ ” at the time the properties were separated. (Fristoe v. Drapeau (1950) 35 Cal.2d 5, 8 (Fristoe).)

“ ‘ “The purpose of the doctrine of implied easements is to give effect to the actual intent of the parties as shown by all the facts and circumstances.” [Citation.] An easement by implication will not be found absent clear evidence that it was intended by the parties.’ ” (Thorstrom, supra, 196 Cal.App.4th at p. 1420.) A court “ ‘take[s] into consideration the circumstances attending the transaction, the particular situation of the parties, and the state of the thing granted.’ ” (Kytasty v. Godwin (1980) 102 Cal.App.3d 762, 769 (Kytasty).)

Public policy favors the use and development of landlocked parcels. (Hewitt v. Meaney (1986) 181 Cal.App.3d 361, 366.) Nonetheless, courts have emphasized that “ ‘[t]he law does not favor the implication of easements.’ ” (Kytasty, supra, 102 Cal.App.3d at p. 769; Thorstrom, supra, 196 Cal.App.4th at p. 1420.) Thus, there must be “ ‘clear evidence’ ” of the parties’ intention. (Thorstrom, at p. 1420.) In other words, “the utilization of the easement must be ‘apparent and continuous’ at the time the dominant owner acquires his land.” (George v. Goshgarian (1983) 139 Cal.App.3d 856, 860, italics added.) Some courts, including this division, have instructed that “ ‘[t]o establish an easement by implication, there must be something upon the [encumbered property] which is either visible or in the nature of a permanent artificial structure.’ ” (People v. Bowers (1964) 226 Cal.App.2d 463, 466, quoting Swarzwald v. Cooley (1940) 39 Cal.App.2d 306, 325.)

II.

There Is No Substantial Evidence of an Implied Easement.

We now turn to the circumstances that existed in 1977 when John quitclaimed Parcel 36 to Uncle Fred to determine if there is substantial evidence to support the three essential elements for an implied easement. The first element was clearly established. The undisputed evidence indicates that in 1977, after a 1973 probate judgment had conveyed an imprecisely described parcel to Uncle Fred, John, as the majority owner of the Ranch, gave Uncle Fred a quitclaim deed that finalized Uncle Fred’s ownership of Parcel 36 while John and his brother retained ownership of Parcel 38.

However, contrary to the trial court’s conclusion, there is no substantial evidence supporting the second element, that as of 1977, the nature of Uncle Fred’s prior existing use was of a “manner” and an “extent” that he and John must have intended or believed he held a permanent easement to go from what became Parcel 36 over what became Parcel 38 in order to access San Antonio Road. (See Thorstrom, supra, 196 Cal.App.4th at p. 1420; Fristoe, supra, 35 Cal.2d at p. 8.) Regarding the “manner” of Uncle Fred’s use of Parcel 38, there is no evidence that Uncle Fred regularly drove east from Parcel 36 across Parcel 38 and past the Creek to access San Antonio Road. At best, the evidence shows only that Uncle Fred drove east over Parcel 38 as far as the Creek, for the limited purpose of collecting gravel. And as for the “extent” Uncle Fred drove over the eastern part of Parcel 38 to access San Antonio Road, the evidence (largely the testimony of John and Hale) indicates that both up to and after 1977, he very rarely did so, instead almost always travelling to and from Parcel 36 by crossing the Gilardi Property to the west and accessing the D Street Extension and his home and dairy. Further, Uncle Fred used the same route in reverse to get to Parcel 36 from his home and dairy. Both John and Hale vaguely referred to Uncle Fred going to and from Parcel 36 from both the east and west, but they did not elaborate about the frequency or purpose with which he traveled east over Parcel 38. The only specific recollection of Uncle Fred’s use of Parcel 38 east of Parcel 36 was John’s testimony that Uncle Fred would “occasionally,” meaning less than once a month, go to the Creek to collect gravel (not to access San Antonio Road). This evidence is insufficient to establish an implied easement: “ ‘The requirement that the [implied easement] must have been “permanent,” or “continuous” means only that the use involved shall not have been occasional, accidental or temporary, but shall have been of such a character as to enable the claimant to rely reasonably upon the continuance of such user . . . .’ ” (George v. Goshgarian, supra, 139 Cal.App.3d at p. 860, italics added.)

Also, given that we are to consider “ ‘the particular situation of the parties’ ” involved in creating the claimed easement in determining their intent (Kytasty, supra, 102 Cal.App.3d at p. 769), John and Uncle Fred’s close relationship in 1977 and thereafter must be noted. John was Uncle Fred’s nephew, had worked for Uncle Fred and had stayed in his home for months at a time. It is safe to assume that this personal and familial relationship had something to do with John allowing Uncle Fred to continue to drive infrequently across Parcel 38 after 1977, and there is no evidence that the two intended that Uncle Fred’s access to Parcel 38 was permanent and would run with the land regardless of who owned Parcel 36 in the future.

John did testify that he had the “road” that went directly by Parcel 36’s southern boundary laid with rock and gravel, which arguably suggests his intention at the time that this road be apparent and continuously used. But John indicated that he did so after giving Uncle Fred the 1977 quitclaim deed. Moreover, John indicated in deposition testimony read at trial that his purpose was to improve the “winter road” that went past Parcel 36 to the Gilardi Property, used at the time by users of Parcel 38 to go west and access the D Street Extension when the Creek’s high waters prevented them from going north and accessing San Antonio Road. John said he “probably” would not have rocked the road that went by Parcel 36 if Uncle Fred was not going to use it, but he did not say why. In any event, this testimony does not suggest any intention to give Uncle Fred a permanent easement over portions of Parcel 38 east of Parcel 36, much less one for ingress and egress.

The testimony about a 1952 aerial photograph of the Ranch by the expert surveyor, Carlson, also does not provide substantial evidence of Uncle Fred’s use of the Ranch from what became Parcel 36. Carlson saw indications on the map of “a route that’s worn” in the photograph that he assumed “would be a route that an automobile would be able to go. There’s tracks across there that’s worn wider than a cattle path.” He indicated this route went eastward from a tree that was just south of the western corner of what would become Parcel 36, then north to the Creek and out to San Antonio Road. This is not substantial evidence of Uncle Fred’s use before or in 1977 for multiple reasons. The photograph was taken 25 years before the property was even divided and Parcel 36 came into existence. While Carlson assumed the route he saw in the photograph was used by automobiles because of the width of the tracks, he could not provide any pertinent information regarding the purpose or frequency of use of this route. For example, Carlson did not testify that Uncle Fred noticeably traveled along this route, as opposed to other people on the Ranch who could have traveled along it.

As for the third element, that at the time the Ranch was divided into Parcels 36 and 38, an easement was reasonably necessary to Uncle Fred’s use and enjoyment of Parcel 36, the trial court erred. The discussion of this element in the court’s final statement of decision is that “[w]ithout an agreement of the parties, Round Hill would remain absolutely useless without this Court’s intervention, thus, the court finds that an easement is reasonably necessary for the enjoyment of the land.” (Italics added.) However, a court is required to consider whether there was a reasonable necessity for the easement “ ‘at the time of conveyance of property’ ” (Thorstrom, supra, 196 Cal.App.4th at p. 1420; Larsson v. Grabach, supra, 121 Cal.App.4th at p. 1153; Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 141), i.e., in 1977. There is no substantial evidence that an easement to travel from Parcel 36 east over Parcel 38 in order to access San Antonio Road was reasonably necessary in 1977. Again, the overwhelming evidence, provided by plaintiffs themselves, is that Uncle Fred almost always drove west from Parcel 36 over the Gilardi Property, doing so to access a public road, i.e., the D Street Extension, and his home and dairy, and that he only occasionally, meaning less than once a month, went east over Parcel 38 and even then went only to the Creek for the limited purpose of collecting gravel and not to access San Antonio Road. This is another reason why the trial court should have rejected plaintiffs’ implied easement claim.

DISPOSITION

The judgment is reversed. Cerro Pampa is entitled to costs of appeal.

 

STEWART, J.

We concur.

RICHMAN, Acting P.J.

MILLER, J.

Hale v. Cerro Pampa LLC (A154602)

Appendix A