Town of Fairfax v. Berg
Filed 1/2/13 Town of Fairfax v. Berg CA1/4
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 FOUR
TOWN OF FAIRFAX,
Plaintiff and
Appellant,
v.
JOHN R. BERG et. al.,
Defendants and
Respondents.
A131225
(Marin County
Super. Ct. No. CIV086177)
This case concerns the rights of the
Town of Fairfax (Town) to easements over the property owned by respondents John
R. and Marlia Berg (the Bergs) located at 36 Meadow Way in the Town (the Berg
property). The Town appeals from a
judgment finding that the easements were private appurtenant easements that did
not allow public access, and that the public’s use of the easements created a
prohibited burden or surcharge on them.
The Town contends that the court:
(1) erred in its interpretation of the easements; (2) abused its
discretion in failing to grant an equitable
easement over the Berg property; and (3) failed to accord the Town’s
interpretation of the easements the deference to which it was entitled. We affirm.
In 1997, John Berg’s parents
purchased the Berg property with the intent of eventually gifting it to the
Bergs. At the time of purchase, the deed
to the Berg property reserved “a non-exclusive easement for ingress, egress and
utility purposes, over a strip of land 30 feet wide and 20 feet wide, lying over
a portion of the land†in favor of 70 Meadow Way, the property then owned by
Patricia Solter and Joseph Bragado, successor co-trustees of The Bragado
Trust. The easement was appurtenant to
70 Meadow Way. The easement encompassed
a dirt driveway across the Berg property from Meadow Way to the Bragado
property. At the time the Berg property
was purchased, there was a gate at the front of the driveway on Meadow Way
adjacent to the Berg property with a chain around the top that was
padlocked. There was also a no
trespassing sign posted on the gate. The
driveway was a gravel road comprised of drain rock and dirt, with grass growing
in the middle of it, that provided access from the Berg property to two other
privately owned parcels–40 Meadow Way and 70 Meadow Way. The gate was kept locked to maintain privacy
and to keep the public off the Berg property.
The deed to the Berg property also
reserved a second non-exclusive easement for ingress, egress and utility
purposes over a 30 feet wide strip of land to provide access for the properties
located at 35 Meadow Way, 40 Meadow Way and 70 Meadow Way. This easement was also appurtenant to the
Bragado property.
In 2001, John Berg’s parents
completed the transfer of the property to the Bergs and recorded the grant deed
in favor of the Bergs. In 2002, the
Bergs submitted plans for the design of a new house on the Berg property to the
County of Marin (County). The County
approved the plans pending public notification of the pending
construction. The Town objected to the
plans, and appealed the approval of the permit for the construction. The Town sought to require the Bergs to
install a sewer on the property rather than a septic system and to annex the
property into the Town’s limits. The
Planning Commission approved the permit on the condition that the Bergs install
a sewer connection to the public sewer.
The Town appealed the Planning Commission’s decision to the Board of
Supervisors. The Board of Supervisors
affirmed the Planning Commission’s decision to issue the construction permit.
The Bergs commenced construction in
May 2003. They, however, needed an
encroachment permit from the Town to connect their sewer to the public sewer on
Meadow Way. The Town delayed at least
four months in responding to the Berg’s application for an encroachment
permit. It thereafter sought to require
that the encroachment permit be conditioned on annexation to the Town.
The Bergs sued the Town. In a settlement conference, the court
directed the Town to hold a hearing on the permit application. The Town held the hearing which resulted in
the Town’s Council voting to give the encroachment permit to the Bergs.
As part of the construction on their
new home, the Bergs installed a new gate in June, 2005. They obtained a permit from the County to
build the new gate. The Bergs provided
the key code for the gate to the Town for use by the Town’s employees. The Town stipulated that it had the code to
the gate.
At around the same time that the
Bergs were seeking a construction permit for their new home, Mark and Debra
Melvin, who owned 70 Meadow Way, also applied for a permit to build on their
land. The Town denied the Melvins’s
application. The Melvins subsequently
sold 70 Meadow Way to the Town (the Town property).
The Town thereafter granted an open
space easement to the Marin County Open Space District, prohibiting all
development and restricting use of the Town property to passive open space
uses. Because the Town property was now
to be used as public space, in February 2005, the Bergs notified the Town that
it objected to use of the driveway easement from its property to the Town
property as a public easement, noting that the easement was established as one
for access only to privately owned property.
On April 12, 2005, the Bergs
recorded a Notice of Consent to Use Land pursuant to Civil Code section 813,
providing that the right of the public to make any use of the property was by
permission and subject to the Bergs’s control.
In 2005, few people used the easement
on the Berg property to access the Town property. Public use of the easement, however,
intensified over the years, and in 2008, people were regularly using the
easement to walk their dogs, ride bikes, and to play with their children. In April 2008, an incident occurred in which
the Bergs’s two dogs allegedly injured a dog that was with a neighbor who was
walking across the easement toward the Town property. The neighbor later presented a veterinarian’s
bill to the Bergs and demanded payment.
The Bergs resolved the dispute with the neighbor, and two days after the
incident, installed a fence across the easement between their house and the
Town property. They posted a sign
reading, “ ‘No dog walking–No Cycling–You are entering private property at
your own risk. Please proceed along
driveway to your destination.’ â€
The sign was intended to prevent people from loitering and using the
Berg property as a public park.
The Town objected to the new fence,
asserting that it prevented access to the Town property and infringed on the
Town’s rights under the easements. The
parties were unable to resolve the dispute.
In December 2008, the Town filed a
complaint to quiet title to the easements.
The Bergs cross-complained for quiet title and declaratory relief,
seeking a declaration that they owned the Berg property free and clear of a
public access easement and to declare that the existing gate on the property
was permissible. Following a court
trial,
the court found in favor of the Bergs, ruling that the easements created in the
deed are private appurtenant easements that do not allow public access.
The interpretation of an easement is
a question of law. (City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232,
238; Parsons v. Bristol Development Co. (1965)
62 Cal.2d 861, 865-866.) We review the
court’s determination of the issue de novo.
(Ibid.)
“ ‘It is fundamental that the
language of a grant of an easement determines the scope of the easement.’ [Citation] . . . . ‘In
construing an instrument conveying an easement, the rules applicable to the
construction of deeds generally apply.
If the language is clear and explicit in the conveyance, there is no
occasion for the use of parol evidence to show the nature and extent of the
rights acquired.’ [Citations.]†(
Cal.App.4th 345, 349; Scruby v. Vintage
Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702.) If the existence or scope of the easement
hinges on findings of fact, rather than the interpretation of a writing, we
apply the substantial evidence standard of review. (See Warsaw
v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570.)
The Town contends that the court
erred in its interpretation of the easement and that it should have exercised
its equitable discretion to allow public ingress and egress across the easement
to its property. We conclude that the
trial court properly determined the scope of the easement.
The extent of an easement is
“determined by the terms of the grant, or the nature of the enjoyment by which
it was acquired.†(Civ. Code,
§ 806.) “The land to which an
easement is attached is called the dominant tenement; the land upon which a burden
or servitude is laid is called the servient tenement.†(Civ. Code, § 803.) The owner of the dominant tenement may not
unreasonably burden the servient tenement.
(Reichardt v. Hoffman (1997)
52 Cal.App.4th 754, 767.)
Here, the Town, as owner of the
dominant tenement, asserts that Bragado, the original grantor of the easement,
contemplated further subdivision of his property which would have increased the
burden on the easement over the Berg property.
The Town relies on language in the deed describing the easement. The deed set forth the easement as
follows: “Said easement to be
appurtenant to and for the benefit of the Lands of Joseph Bragado as described
in that certain Deed recorded September 5, 1984 as Instrument No. 84 42899,
Marin County Records, and any future
subdivision thereof.â€
name="_ftnref2" title="">[2] (Italics added.) As the trial court found, however, there was
no evidence presented as to Bragado’s intent in creating the easements over the
property other than the language in the deed.
“The mere insertion of the phrase ‘any future subdivision’ in the [deed]
did not convert [the easement] to a public easement or establish an intent to
allow unfettered ingress and egress by the general public. ‘Deeds are to be construed like any other
contract and the intent of the parties arrived at by a consideration of the
whole instrument and not of detached clauses.’
City of Manhattan Beach
240.â€
Further, the evidence at trial
demonstrated that the language in the deed did not create a public easement,
but rather an easement benefitting only a particular parcel of land. John Keating, an expert in title matters,
testified that the creation of a public easement would require either an offer
of dedication or a grant by deed. There
was no offer of dedication or grant of a public easement over the Berg
property.
The Town asserts that Bragado
included the language “any further subdivision thereof†because he anticipated
increased vehicular traffic. It argues
that the court abused its equitable powers by not balancing the burdens and
benefits of the easement to the parties and not granting to the Town a public
easement over the Berg property. The
Town, however, fails to cite to any evidence in the record in support of its
arguments. Because its factual
assertions are devoid of any citations to the reporter’s transcript (see Cal.
Rules of Court, rule 8.204) it has therefore waived this challenge to the
court’s judgment. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849,
856.) [“If a party fails to support an
argument with the necessary citations to the record, that portion of the brief
may be stricken and the argument deemed to have been waived.â€] It is
not our duty to comb the record to determine whether there was substantial
evidence to support the judgment. (
877, 887-888.) In the interests of
justice, we have nonetheless independently reviewed the record and can find no
support for the Town’s assertions that its contemplated use of the easements
was within the intent of the grantor. The
deed granted an appurtenant easement for the benefit of the lands of Bragado
and any further subdivision of that land.
As explained by Keating, Bragado was reserving the easement over the
Berg property for the benefit of his property and also, in the event that he
sold a portion of it to a third party.
“Any actual separate ownership within that property would have to be
appurtenant to the easement.†Hence,
contrary to the Town’s argument, there is no relevant or admissible evidence in
the record suggesting that the easement was intended for the
use of the easement to access the Town property did not overburden the
easement. To the contrary, the Bergs
showed that the public’s use of the easement had escalated over the years, that
people had come onto the Berg property to walk their dogs, play with their
children, and ride their bikes. Because
the deed expressly provided that the easement was one for the benefit of the
property owners, the public’s use thereof was in excess of the terms of the
easement.
v. Vintage Grapevine, Inc., supra,
37 Cal.App.4th at p. 702 [owner of dominant tenement must use easements
and rights to impose as slight a burden as possible on the servient
tenement].)
The Town further contends that its
interpretation of the easement is entitled to deference because its actions
were taken in accordance with open space policies. While a public agency’s interpretation of a
statute within its administrative
expertise is accorded deference by the courts (Jim Beam Brands Co. v. Franchise Tax Bd. (2005) 133 Cal.App.4th
514, 521), this rule has no bearing on the interpretation of an easement which,
as we have explained, is determined by the terms of the grant. (Civ. Code, § 806.) In addition, as the Bergs point out,
regardless of the Town’s intent to use the Town property for open space, its
intended use had no bearing on the scope of the easements created many years
prior to its purchase of the property.
Finally, the Town argues that its
the Bergs’ proposed statement of decision and judgment are not in the court’s
file, indicating that the court may have entered judgment without considering
these documents. The Town is
mistaken. The court had before it the
Town’s Request for Further Statement of Decision (Request), filed on October
27, 2010, which included the Town’s closing brief as an attachment. The Town’s objection to the Berg’s proposed
statement of decision, filed November 24, 2010, a day after the judgment was
entered, simply adopts the Request as its objection. We fail to discern how the Town could have been
prejudiced if the court did not review the objection since the same information
was included in its Request which the court had before it prior to entering the
judgment. No error appears. (See Heaps
v. Heaps (2004) 124 Cal.App.4th 286, 292 [“the premature signing of a
proposed statement of decision does not constitute reversible error unless
actual prejudice is shownâ€].)
In sum, on the record before us, the trial court properly found that the easements
were private appurtenant easements that did not permit public access.
DISPOSITION
The judgment is
affirmed.
_________________________
RIVERA,
J.
We concur:
_________________________
RUVOLO, P.J.
_________________________
BASKIN, J.*
*
Judge of the Contra Costa County Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
name="_ftn1" title="">[1] Pursuant to a stipulation, the court visited the Berg and Town
properties.
name="_ftn2" title="">[2] Both easements at issue contain the identical language referring to
any future subdivision.
