Berger v. BNSF Railway

Filed 1/13/10 Berger v. BNSF Railway CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Maureen Duffy-Lewis, Judge. Affirmed.

Palarz & Williams and Herman S. Palarz for Plaintiffs and Appellants.

Hill, Farrer & Burrill, Dean E. Dennis and Stephen J. Tomasulo for Defendant and Respondent.

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SUMMARY

The plaintiffs sued the defendant railroad company to quiet title to an easement for railroad purposes along the back of their industrial property. The plaintiffs alleged the railway company was no longer using the easement for any railroad purpose and had abandoned the easement. After a bench trial, the trial court determined the plaintiffs had failed to prove the easement had been abandoned and entered judgment in the railroads favor. Plaintiffs appeal. We affirm.

FACTUAL AND PROCEDURAL SYNOPSIS

In a 1951 grant deed, a developer (Hayden-Lee Development Company) conveyed a 20-foot wide strip of land to the Atchison, Topeka and Santa Fe Railroad (Santa Fe), predecessor-in-interest of the BNSF Railway Company (BNSF), subject to every easement and/or right of way for tracks and roadbed for freight and transportation as may have been and may hereafter be granted and recorded of record [as well as such rights of way and easements granted for underground utilities serving abutting property]. The strip ran behind and between lots facing 104th Street and 102nd Street from Glasgow Place almost to Aviation Boulevard.

In a 1951 grant deed of the same date, the developer conveyed to Santa Fe a perpetual easement for railroad purposes over, upon, under, through and across certain property including but not limited to two strips, each 14 feet wide, on either side of the 20-foot wide strip, TO HAVE AND TO HOLD the [easement described in the deed] unto Santa Fe, its successors and assigns, for the aforesaid purposes, forever. Like the 20-foot strip, the perpetual easement was subject to every easement and/or right of way for tracks and roadbed for freight and transportation as may have been and may hereafter be granted and recorded of record [as well as such rights of way and easements granted for underground utilities serving abutting property].

In 2004, Jamie Berger and Paul S. Berger, as co-trustees of the Berger Family Trust and E. Steven Solton (hereinafter Berger) became the owners of 5450 West 102nd Street in Los Angeles, one of the properties burdened by BNSFs easement along the rear 14 feet of that property.

In 2005, BNSF sold a portion of the 20-foot strip to a stone supply company, after having ceased operation of the branch line and removing track in the area years before.

In 2006, Berger wrote to BNSFs real estate agent (the Staubach Company) demanding release of the easement. I am an attorney, having practiced real estate law with Berger, Kahn, a California law firm, and am quite familiar with the applicable law . . . . If no release was provided, Berger said, he would file an action, joining other affected landowners, to quiet title and for slander of title, seeking substantial damages, including punitive damages.

BNSFs agent responded that he would begin the process to request that the railroad release whatever interest it had in the property, noting [t]his is not an overnight process and took, on average 45 to 90 days from request to processing or denial by the railroad. Relative to the easement interest, the BNSF tries to work with the underlying fee owner of the property in releasing their interest in that easement when the railroad has determined [it] may no longer require that property for railroad purposes. He enclosed a standard release, requesting two signed copies along with $32,340 covering the railroads book investment in the property to relieve them of taking a loss on the release of any property interests plus a $1,000 administrative fee. Upon receipt, he said, he would present the package to the railroad for their review and approval.

Berger responded that if he did not receive the release of the abandoned easement within 7 days, his next communication to BNSF would be his summons and complaint seeking damages for this blatant attempted extortion of money from us for a release we are entitled to under the facts and settled law of the state.

BNSFs agent forwarded Bergers communication to BNSF, recommending against giv[ing] the easement away, noting the market value of the property and indicating steps he was taking to gather additional information in this regard. The easement is for railroad purposes, not maintenance of a track. The property was previously leased and the lease was terminated in 2005. This may reduce his effort to claim adverse possession. He requested BNSFs further instructions.

Berger filed an action against BNSF and Staubach, asserting causes of action for declaratory relief, to quiet title, unfair business practices, slander of title and accounting. (He named other defendants who are not parties to this appeal.) In the operative pleading (Bergers verified first amended complaint), Berger alleged on information and belief that BNSF had not used the easement for 30 years and had abandoned the easement many years before 2005 as manifested when: (1) it conveyed a portion of the 20-foot strip to an entity not engaged in any railroad business; (2) over the years and before 2006, it conveyed substantial portions of the easement to third party owners who were not conducting railroad business; (3) a binding judgment was entered and a judicial admission was made in a case entitled Margaret Silverman v. Santa Fe, Los Angeles Superior Court Case No. C692256; and (4) it offered to sell the easement to Berger who is not engaged in any railroad business. Because BNSF no longer owned the portion of the 20-foot strip it sold in 2005 and railroad tracks in the corridor had been substantially removed in the late 1980s or early 1990s, Berger alleged, the easement over his property was rendered useless for railroad purposes.

BNSF answered, and the parties conducted discovery. BNSF filed a motion for summary adjudication of Bergers causes of action for slander of title and unfair business practices. Over Bergers opposition, BNSFs motion was granted. The parties proceeded to trial on the declaratory relief and quiet title causes of action.

Regarding abandonment of the easement, there was evidence that the tracks along the 20-foot strip had been removed by the early 1990s. There were encroachments by other property owners on portions of BNSFs easement, and Berger had built a fence on the easement without seeking BNSFs permission. In the quiet title action by another property owner identified in Bergers complaint, BNSF had disclaimed its interest in that property owners portion of the easement.

BNSFs Land Revenue Manager (David Schneider) testified that, from BNSFs perspective, abandonment had two different uses. Although BNSF might abandon rail freight service, it did not abandon the property if it was useful or viable for railroad purposes. BNSF had sold off some property along the corridor, but it retained portions of its easement over other properties in addition to Bergers.

BNSFs Director of Telecommunications Engineering (John Hicks) testified that railroad telecommunicationsboth voice and dataare vital to the safe and orderly operation of trains along the railroad network. He oversaw projects including the installation of fiber optic networks and fiber optic microwave radio communication. He evaluated sites to determine which were appropriate for railroad telecommunications. BNSF regularly locate[s] base station radios off site or away from operating tracks. He would look for the optimal positioning for base station radios to be able to communicate with multi-wayside devices at the track site. BNSF has 3500 base station radios and growing.^[1] About half of these are not directly adjacent to track.

Hicks had inspected the site of the easement on Bergers property and confirmed the property was suitable for placement of the necessary antenna and supporting structure. He identified its proximity to the active operating BNSF track running along Aviation Boulevard as reflected in an aerial photograph of the area (Exhibit 105).^[2] He explained the site was desirable for railroad telecommunications for a number of reasons: (1) its proximity to the active rail line along Aviation Boulevard; (2) its location in an area where it is difficult to gain access to land, especially to raise a tower or supporting an antenna structure; (3) its further distance from the airport (LAX) because height restrictions posed a problem closer in. In an area like this, he said, we try to move off, away from the active runways as much as possible, to communicate trackside to location[s] like this.

Hicks testified the communication poles could be as high as the telephone poles already in place in the area, and he said several initiatives were underway drawing demand for new bases, new wayside communications. As one example, he cited a program under testing with the Federal Railway Administration called electronic train management system (ETMS) which is a combination of telecommunications services that [are] being provided by satellite global positioning and a mixture of 44 megahertz base station radios. The computer system will monitor the speed and location of trains moving along the tracks and determine whether a train is moving too fast to stop at a red light ahead. If so, the computer system will apply braking and could shut down the train if necessary. The project is so large in scope, he testified, there will be thousands of them. In light of the viability of the easement for railroad purposes, Schneider said BNSF would never abandon the property.

The parties submitted further briefing, and after taking the matter under submission, noting the viability of the easement for railroad telecommunications, the trial court ruled Berger had failed to demonstrate by clear and convincing evidence BNSF intended to abandon the easement, and subsequently entered judgment in favor of BNSF.^[3]

Bergers motion for new trial was denied.

Berger appeals.

DISCUSSION

Bergers Argument that the 2005 Sale of a Portion of the 20-Foot Strip Divested BNSF of any Interest in the Easment Fails.

In this appeal, Berger asserts it is undisputed that the railroad purpose easement was appurtenant to the 20-foot strip of land BNSFs predecessor-in-interest received in fee concurrently with the grant of the easement. [A]s a matter of law, he says, whatever interest BNSF had in the railroad-purpose easement in 2005 was transferred to its grantee. He says he raised this interpretation of the railroad-purpose easement and the application of the legal principles applied in the transfer of the dominant tenement . . . as grounds for a new trial, but the trial court rejected this argument.

As BNSF argues, Berger failed to pursue this theory at trial (and it is not framed by his pleadings). Moreover, we reject Bergers characterization of the issue as a matter of law. [A]n appellate court may allow an appellant to assert a new theory of the case on appeal where the facts were clearly put at issue at trial and are undisputed on appeal. [Citation.] However, if the new theory contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at trial[,] the opposing party should not be required to defend against it on appeal. (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 879.)

Here, Berger did not establish whether the easement was in gross or appurtenant. More importantly, even assuming the easement was an easement appurtenant, Berger did not establish the easement was appurtenant only to the portion of land BNSF sold in 2005. (See, e.g., Continental Baking Co. v. Katz (1968) 68 Cal.2d 512.) Particularly where the 1951 deeds themselves contain language referencing railroad purpose easements already in existence (and given the general proposition that the deed is to be construed in favor of the grantee) as well as the evidence in the record that an active rail line operates along Aviation Boulevard, in very close proximity to Bergers property, we cannot conclude as a matter of law that Berger is entitled to prevail on his theory that the 2005 sale of part of the 20-foot strip divested BNSF of any interest in its easement. (Ibid.)

Substantial Evidence Supports the Trial Courts Determination BNSF Did Not Abandon the Easement.

[A]bandonment hinges upon the intent of the owner to forego all future conforming uses of his property, and the trier of fact must find the conduct demonstrating the intent so decisive and conclusive as to indicate a clear intent to abandon . . . . (Gerhard v. Stephens (1968) 68 Cal.2d 864, 889, italics added [noting no distinction between cases discussing abandonment of perpetual easements created by grant and profits a prendre].) Abandonment may not be found without the concurrence of two elements--nonuse and intent to abandon. (Ibid.) The trier of fact, before decreeing an abandonment, must find that the [easement] owners conduct clearly and convincingly demonstrates the necessary intent.^[4] (Id. at p. 890.)

As Berger concedes, notwithstanding the clear and convincing standard in the trial court, we review the trial courts determination for substantial evidence in support of its decision. His assertion that he presented substantial and clear and convincing evidence of abandonment ignores the standard of review. Further, his reliance on out-of-state cases is misplaced in light of California Supreme Court authority contrary to his position. For example, he quotes the decision in Seventy-Ninth Street Improvement Corp. v. Ashley (1974) 509 S.W.2d 121: Such easement for right of way [for railroad purposes] is extinguished when the railroad ceases to run trains over the land . . . . Under California law, however, a railroad may use its right of way for many commercial purposes unless specifically prevented from doing so. (City of Long Beach v. Pacific Electric Railway Co. (1955) 44 Cal.2d 599, 603.)

As a review of the record establishes, substantial evidence supports the trial courts determination BNSF did not abandon the easement, and Berger has failed to demonstrate prejudicial error.^[5]

As Berger concedes, in light of our resolution of the preceding issues, we need not address his arguments relating to the summary adjudication of the other causes of action in the complaint as they are moot.

DISPOSITION

The judgment is affirmed. BNSF is entitled to its costs on appeal.

WOODS, Acting P. J.

We concur:

ZELON, J.

JACKSON, J.

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^[1] BNSF operates in 28 states and in Canada.

^[2] Where access to an easement is an issue, he explained, the real estate department would negotiate an easement for such a purpose; BNSF also had the power of eminent domain to gain access if necessary.

^[3] No statement of decision was requested or prepared. The trial courts tentative decision tracked a four-question special verdict form submitted by BNSF (but did not address a special verdict form submitted by Berger).

^[4] Berger says the trial court committed prejudicial error by referencingin addition to California case law--Evidence Code section 662 (title presumption may be rebutted only by clear and convincing proof). Even assuming he is correct, he can show no prejudice as California law requires clear and convincing evidence of the intent to abandon, as we note in the text.

^[5] In 1985, the Legislature enacted Civil Code section 887.010 et seq. relating to affirmative easements that allow the holder of the burden or servitude to do acts upon the land. Pursuant to section 887.050, subdivision (a), an easement is abandoned if all of the following conditions are satisfied for a period of 20 years immediately preceding commencement of the action to establish abandonment of the easement: (1) the easement is not used at any time; (2) no separate property tax assessment is made of the easement or, if made, no taxes are paid on the assessment; and (3) no instrument creating, reserving, transferring, or otherwise evidencing the easement is recorded. This section applies notwithstanding any provision to the contrary in the instrument creating, reserving, transferring, or otherwise evidencing the easement or in another recorded document, unless the instrument or other document provides an earlier expiration date. (Civ. Code, 887.050, subd. (b).)

As stated in the Law Revision Commission Comment, This reverses prior law that an easement obtained by grant cannot be lost my mere nonuse. Section 887.060 provides the expiration period can be extended for up to 20 years at a time by recordation of a notice of intent to preserve the easement before the easement expires although such a notice does not necessarily preclude abandonment of the easement pursuant to general principles governing abandonment for nonuse upon a showing of intent to abandon. Berger did not proceed under a statutory abandonment theory and presented no evidence regarding property tax assessments and payments, if any.