Opinion
B314483
02-14-2023
DONOCO INVESTMENTS LLC, Plaintiff and Appellant, v. TOWER GOAL LIMITED, Defendant and Respondent.
RJZ Law Group and Ryan E. Jackman, Benedon & Serlin, Judith E. Posner, Kelly Riordan Horwitz and Melinda W. Ebelhar for Plaintiff and Appellant. Troutman Pepper Hamilton Sanders, Peter N. Villar, Elizabeth Holt Andrews and Victoria H. Phan for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County . No. 19STCV19335, Armen Tamzarian, Judge. Affirmed.
RJZ Law Group and Ryan E. Jackman, Benedon & Serlin, Judith E. Posner, Kelly Riordan Horwitz and Melinda W. Ebelhar for Plaintiff and Appellant.
Troutman Pepper Hamilton Sanders, Peter N. Villar, Elizabeth Holt Andrews and Victoria H. Phan for Defendant and Respondent.
HOWARD, J. [*]
INTRODUCTION
This appeal arises from developer Donoco Investments LLC's quest to obtain access to an otherwise landlocked parcel of undeveloped real estate just north of the City of Beverly Hills. To gain that access, Donoco seeks an easement by necessity over an adjacent property owned by Tower Goal Limited. If granted, the easement would provide Donoco with vehicular access to the future extension of a nearby street, thereby unlocking the Donoco parcel.
Following a four-day bench trial at which the parties presented conflicting expert testimony from land surveyors, the trial court concluded Donoco had not carried its burden of showing its entitlement to the easement. The trial court denied Donoco's subsequent motion for a new trial. Because the evidence does not compel a finding in Donoco's favor as a matter of law, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The History of the Donoco and Tower Properties
In October 1960 Hutton Development Company acquired a large swath of vacant land located north of Beverly Hills proper but still within the storied 90210 zip code. The Hutton holdings included two adjacent, interior parcels, referred to for present purposes as the Donoco property and Tower property, adjoined along the eastern boundary of the former and the western border of the latter. Hutton began subdividing the undeveloped land into residential lots and recorded two tract maps in May 1962. The first map, Tract 22663, reflected the creation of seven lots (including Lot 33) with boundaries in common with the Donoco property. Tract 22663 also included Kirkland Drive, a street that ended at the Tower property. The second map, Tract 20593, showed the creation of an additional eight lots with boundaries along the Donoco property. In between the end of Kirkland Drive and the border of the Tower property Hutton placed Lot 47, a one-foot-wide strip of land designated as a future street but in reality intended to ensure no future extension of Kirkland Drive and, consequently, no further subdivisions beyond it, absent City approval.
In 1964 Hutton sold the residential lots in Tracts 22663 and 20593 to Rosswood Homes, Inc. Specifically, in a grant deed dated July 28, 1964, and notarized August 6, 1964 (Rosswood Deed I), which conveyed a number of the lots in Tract 22663, including Lot 33, Hutton reserved "unto the Grantor and its assigns . . . [a]n easement for ingress and egress and drainage over that portion of Lot 33, Tract 22663, as per map recorded in book 687 pages 34 to 39, inclusive of Maps, Official Records of Los Angeles County, described as follows: [¶] Beginning at the most southerly corner of said lot; thence along the southwest line of said lot a distance of 35', thence leaving said southwest line and continuing in a northeasterly direction along a straight line to a point on the east line of said lot said point being distant 70' from said most southerly corner; thence along said east line in a southerly direction to the point of beginning."
In a separate grant deed also dated July 28, 1964, and notarized August 6, 1964 (the Rosswood Deed II), Hutton again conveyed a number of the buildable lots to Rosswood, and also reserved an easement over Lot 11.
Hutton conveyed the Tower property to Harry Pattin through a quitclaim deed dated July 29, 1964, and notarized July 30, 1964 (the Pattin deed). Hutton then conveyed the Donoco property to Helen Heilman through a grant deed dated August 7, 1964, and recorded August 11, 1964.
Two years later, in 1966, the then-owners of Lot 33 expressly granted an easement to the then-owners of the Donoco property, described as "[a]n easement for ingress and egress and drainage and installation of water, gas, power, telephone utilities over that portion of Lot 33," with an identical legal description as that provided in the Rosswood Deed I. Attached to the recorded quit claim deed was the following illustration of the Lot 33 easement. The illustration depicts the Lot 33 easement as a triangular-shaped area connecting the Donoco property to Kirkland Street. The Donoco property is labeled as 4385-10-17 (a slightly truncated version of its Assessor Parcel Number) and sits immediately below Lot 33. The Tower property is labeled as 4386-11-17 (also a condensed version of its Assessor Parcel Number) and sits immediately below "Lot 47" and Lot 32:
At oral argument on appeal, counsel for Donoco posited that it was unknown whether the intersecting vertical dotted line on the map represented the borderline between the Donoco and Tower properties. However, that line, albeit in fine print, was labeled "N 0° 35' 20" E," and as Donoco noted in its objections to the trial court's statement of decision, "the dividing line location" between the two properties was at "0° 35' 20,"" as indicated in the Donoco property's legal description.
The illustration contains a disclaimer stating [all caps omitted], "The information on this plat is provided for your convenience as a guide to the general location of the subject property[.] The accuracy of this plat is not guaranteed, nor is it a part of any policy, report, or guarantee to which it may be attached."
(Image Omitted)
Houses sprouted up around the Donoco and Tower parcels on the tracts created by Hutton, but the Donoco and Tower properties remained undeveloped. Given their hilly terrain, developers used them as a location to dump fill and other detritus created in the process of grading and readying the surrounding parcels for sale as buildable home sites. As interior, remainder lots, aside from the Lot 33 easement, neither parcel had any direct access to any street.
In the mid-1990s, Lot 33's then-owners, Tommy and Delores Ray, sued the then-owners of the Donoco and Tower properties, and adjoining landowners, seeking to extinguish a portion of the original Lot 33 easement. The Rays claimed a prescriptive easement over the portion of the Lot 33 easement where, in 1977, a prior owner of Lot 33 built an in-ground swimming pool, a concrete block wall, a concrete and brick deck and other hardscape improvements. In 1996, a trial judge in the Los Angeles County Superior Court issued an order granting the Rays' motion for summary judgment, extinguishing a portion of the Lot 33 easement, and granting the prescriptive easement to the Rays. This 1996 order, issued long before Donoco took title, thus extinguished whatever access the original Lot 33 easement had provided to the Donoco property.
The Donoco and Tower properties then passed through various landowners over the years before their current, eponymous owners acquired them in 2018 and 2009, respectively.
B. The Complaint
On June 4, 2019, Donoco filed its complaint against Tower, seeking quiet title to an easement by necessity, an easement by implication, an equitable easement, and declaratory relief. In support of its claim for an easement by necessity, Donoco alleged that when Hutton, which previously owned both the Donoco and Tower properties, conveyed the Tower property in July 1964, it left the Donoco property landlocked, "with no access to any surrounding public or private street," thus creating an easement by necessity in favor of the Donoco property. Donoco sought a 42-foot-wide easement that would extend Kirkland Drive through the Tower property until it reached the Donoco property.
C. The Trial
After denying Donoco's motion for summary judgment, the court held a four-day bench trial in May 2021. Donoco and Tower each presented expert testimony from land surveyors, David Knell and Robert Wheeler, respectively. Donoco also presented expert testimony from Robert Sims, a civil engineer. All three experts concurred that, when plotted onto the tract map using the legal description of the Lot 33 easement as recorded in the deeds, the easement did not touch the Donoco property. Sims interpreted "for ingress and egress and drainage" in the easement to mean "it was for drainage and it's for access to maintain the drainage."
1. Sims's testimony
Sims testified that he supervised a draftsperson who plotted the legal description in the deed onto the tract maps using computer assisted drawing (CAD) software. In the resulting pictorial representation, the Lot 33 easement did not reach the Donoco parcel.
2. Knell's testimony
Knell testified that he used the website NavigateLA to pull up a copy of the tract map and then had a draftsperson interpose and plot the bearings and distances of the legal description of the Lot 33 easement using CAD software. Knell "made a pictorial representation of the written word in the deed and put that on the map of Lot 33," noting "it fits, coincidentally, into the southeasterly corner of Lot 33." He concluded that "there's no ambiguity as to where the easement is or was or how big it is or where it sits in the world." Knell found a gap between the Lot 33 easement and the Donoco parcel, which he "believe[d] to be somewhere between one and two feet." When asked how Knell determined the precise location of the boundary line between the Donoco and Tower properties, Knell explained he "pulled a lot of maps from NavigateLA" and that dividing line "is the inspection line . . . [t]hat is not a section line that is midsection line." He further explained that "this is an important line and it shows up on a lot of maps north of the Donoco property and south of the Donoco property. And this line was actually monumented on several maps from the later '60s. And so using the information from external or maps remote to this particular area, we were able to calc in exactly where this line is, the southwesterly line of Lot 33." Knell "looked at all the [survey] monuments that we found along this line, and they're not in the exact line. It's been 50, 60 years. So . . . you calculate the locations of all the found monuments and then you tend to do what's called a linear regression. You draw a straight line between them and you see which of these points fits the best and that's where you determine where the line is, and that's what we do here."
"External" appears to mean Knell's use of the other maps and resources that he described here and elsewhere in his testimony.
Asked how he could plot the property lines and make those determinations without performing a physical survey, Knell opined that "[i]n this case there was such a body of good quality maps. After about 1960, and then moving on from there, the caliber of the survey equipment just got sophisticated, and, you know, today we're using G.P.S. and drones almost exclusively. . . . [I]n all of our calculations of all the maps, indeed in the area, we were not finding any major nonclosure. . . . We were not finding any anomalies in the calculations . . . so I had no reservations about any of the lines that I showed on my work." Knell further noted in this case "there's not a depiction or a drawing with the [legal description] plotted in it like this. Nowadays, when we do [legal descriptions], we almost always include Exhibit A is the legal description, Exhibit B is a sketch to accompany Exhibit A's written work."
As noted, this was true as to the original 1964 deed but not true as to the subsequent 1966 deed, which attached a sketch showing the Lot 33 easement as Exhibit A.
Knell estimated the margin of error to be roughly "half an inch, quarter of an inch."
When asked why one would create an easement that did not actually reach the dominant tenement, Knell stated, "I couldn't even fathom a guess. It makes no sense to me" but offered that sometimes "the people writing the legal descriptions don't know how to write them."
3. Wheeler's testimony
Tower's expert, Wheeler, agreed that the Lot 33 easement, when plotted using the provided legal description onto the recorded tract map, did not touch the Donoco property. However, Wheeler opined that only a physical survey, on the ground, could confirm whether the Lot 33 easement touched the Donoco property. Wheeler testified: "[T]o determine where that easement is, you're going to read the deed. You can plot it for the record, which is what most of the experts have done in this. But on the ground where it is, you have to survey the property. That's the only way to do it. That easement is only dependent on where the Lot 33 corners are, really, if they're there. And so retracing the survey of Lot 33 would be how you would determine where the easement is over it." He further opined that in order to determine whether the Lot 33 easement touches the Donoco property "because of how the Donoco property is, its property line, the easterly property line is created, is completely independent of the Lot 33 and the easement. So you would need to do a survey to be able to say whether or not they touch." Wheeler further explained "that property line is an old section line which, again, it's a lot line from an older map, basically. This map came along later, at a later time, and created new lots over those old lots. That old lot line . . . it came first. It's a senior line. . . . The history of this property is these are old quarter sections, which that's the public land system in basically the whole western United States, basically mile by-one mile by one mile square parcels. Then the government split that up into sections, so they chop it up in quarters. And essentially this parcel was two quarter sections. And so the line between [the Donoco and Tower properties] is a quarter section line."
About the senior line and quarter section line, Wheeler further explained that "Because the way-so when you create the easement over Lot 33, it's created but only in relation to Lot 33. Where that line is between Tower [and Donoco properties], it's not affected by it. It doesn't - we don't know where that is because they don't show it on here. If they did, we would have a dimension; it would be an open-and-shut case one way or another whether it touches. But because it's not shown on here, we have to retrace that line, and that line is a senior line. It gets retraced differently." (Emphasis added.) He further explained as to retracing a line, that "any time you do a-a boundary survey, . . . which is what we've all done, and we've set it up so we kind of know where generally where things are probably going to be. And out here, how I would retrace this is I would go look at all the corners of Lot 33 and see if I find corners there. And by 'corners,' I mean a physical monument, usually a one-inch iron pipe or two-inch iron pipe with a tag on it . . . . If that marker isn't there, which is more likely than not, if it's not there, then you have to look for other things that are kind of ancillary to that."
The trial court asked Wheeler why one cannot tell "where Lot 33 is with respect to the sectional line by simply looking at the maps." Wheeler explained, "Because unfortunately the way these things are surveyed is you own a piece of property, you go out there and survey that property first. So those are the senior lines that create that property. And then when you subdivide part of it, you're creating new lot lines on there. And back when this was made, this-you can tell it was all hand-drafted. I mean, the thickness of some of those lines is a foot thick. So, I mean, . . . you're drafting everything by hand and . . . the accuracy isn't super great. So one of the edicts, I would say, of land surveying is that original monuments hold over what the maps show, and that's because when they go out there and survey them, it's-they're actually putting them in the ground and the accuracy is different. You know, they're going by the dimensions that are on here and the calculations they make in the field, but back then, they were using basically a tape measure and a theodolite." The following colloquy then transpired between the trial court and Wheeler:
A theodolite is a "surveyer's instrument for measuring horizontal and usually also vertical angles." (Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/theodolite. Last accessed 13 Jan. 2023.)
"Court: [T]he map says 74.5 feet. Was that 74.5 feet calculated by a theodolite or by a chain?
"[Wheeler]: That was calculated in the office from the drafting table.
"Court: Somebody didn't take a chain out there?
"[Wheeler]: No, they do-they do it-when you do subdivisions, you're taking, again, the senior lines, the original lines that you surveyed, which if you look at the previous sheet, you'll see the section lines on- on here.
"Right there, that area where it says "not to scale," that's the-the sectional survey. So this is the original property that they surveyed as part of this, and then from this, they just draw a bunch of lines on there wherever they're going to put their new-new lots and new streets."
Wheeler then explained that when parcels and tract maps are created, surveys "are done for the original parcel, and then those lines are drawn in the office, and then they do a survey afterwards to set final monumentation sometimes."
On cross-examination, Wheeler emphasized the necessity of a survey: "[T]he whole point of that is to take these lines which are on paper, this paper record, and put those lines in the real world. I often tell people that what I do for my profession is, as a land surveyor, I-I really am dealing with imaginary lines that, you know, you don't go out there and see your property line. These are imaginary lines that nobody cares about until you end up in court."
As for the margin of error, Wheeler testified that "[i]t depends on the situation, and unfortunately it's hard to tell before you go out there and survey the site." He recalled an instance where the section line specifically had been off 250 feet from what's shown on the record, but the general expectation is "within a couple inches, but until you survey it, you just don't know." Wheeler opined in most cases it should be within a foot.
No expert (or anyone else) conducted any physical surveys of the disputed properties.
D. Statement of Decision
On May 10, 2021, the trial court issued its tentative statement of decision. The court found that "Donoco did not meet its burden of proving by a preponderance of evidence that it is entitled to an easement by necessity." The court further stated: "Lot 33 and the Lot 33 Easement are contiguous to Kirkland Drive. Donoco contends the Lot 33 Easement does not touch the Donoco property; it falls a few feet short. Tower contends the Lot 33 Easement runs from Kirkland Drive to the Donoco property. The parties called competing expert land surveyors to testify about this issue. Although it was a close call, the court finds that Donoco did not meet its burden on this issue. Prior to the 1996 order, the Donoco property had access to Kirkland Drive through the Lot 33 Easement."
Donoco filed objections, arguing in part that the tentative statement of decision "fails to address how DONOCO did not meet its burden on establishing that the Lot 33 easement did not touch as there was no evidence presented by TOWER that it did touch the DONOCO PROPERTY."
Tower responded that Donoco's purported objections were a procedurally defective vehicle by which to "attempt to re-argue and re-litigate the merits of the case."
On June 2, 2021, the court issued its statement of decision and entered judgment in favor of Tower on all four causes of action.
E. Donoco's Unsuccessful Motion for a New Trial and Its Appeal
On June 28, 2021, Donoco filed a motion for a new trial. In it, Donoco argued (as to the first cause of action for an easement by necessity), that the trial court's decision was contrary to law and unsupported by sufficient evidence, and that certain legal errors transpired at trial. In arguments similar to those it makes now on appeal, Donoco contended Wheeler's opinion that only a survey could determine the exact location of the Lot 33 easement "does not amount to substantial evidence sufficient to raise a legally cognizable dispute" as to the location of the easement in relation to the Donoco property.
In its order denying Donoco's motion the court made clear that "[w]hen the court issued its statement of decision, it found Wheeler's testimony more persuasive than Knell's, and thus concluded that Donoco did not meet its burden of proof. After reweighing the evidence, the court concludes Donoco did not show that the court clearly should have reached a different decision. Indeed, the court arrives at the same conclusion as it did in its statement of decision."
Concurrent with its respondent's brief, Tower sought judicial notice of complaints Donoco filed, after the trial court's judgment, in two separate actions against two other adjacent parcel owners seeking easements for the same parcel at issue here. Because these filings were not part of the record before the trial court and do not assist us in resolving the relatively narrow question presented on appeal, we decline to take judicial notice of the complaints. (See Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2 ["'[r]eviewing courts generally do not take judicial notice of evidence not presented to the trial court' absent exceptional circumstances"]; see also Jenni Rivera Enterprises, LLC v. Latin World Entertainment Holdings, Inc. (2019) 36 Cal.App.5th 766, 775, fn. 4 [denying motion for judicial notice of court filings "not relevant to resolving" the appeal].)
DISCUSSION
A. Standard of Review
To the extent interpretation of an express easement "'does not depend upon conflicting extrinsic evidence'" it presents a question of law, to which we apply our independent review. (Southern California Edison Co. v. Severns (2019) 39 Cal.App.5th 815, 822 (Southern California Edison); accord, Hamilton Court, LLC v. East Olympic, L.P. (2013) 215 Cal.App.4th 501, 505; Beyer v. Tahoe Sands Resort (2005) 129 Cal.App.4th 1458, 1470.) Where "resolution of the appeal turns on the trial court's factual findings," we generally would "review such findings under the substantial evidence standard." (Southern California Edison, at p. 822; accord, Beyer, at p. 1471; accord, Williamson v. Brooks (2017) 7 Cal.App.5th 1294, 1299.)
However, as Donoco acknowledges, "'where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.'" (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.) Instead, we assess whether "'"the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'"'" (Patricia A. Murray Dental Corp. v. Dentsply Internat., Inc. (2018) 19 Cal.App.5th 258, 270 (Patricia A. Murray Dental Corp.); accord, Sonic Manufacturing Technologies, at p. 466.) Indeed, "'[w]here, as here, the judgment is against the party who has the burden of proof, it is almost impossible for [that party] to prevail on appeal by arguing the evidence compels a judgment in [that party's] favor. That is because unless the trial court makes specific findings of fact in favor of the losing plaintiff, we presume the trial court found the plaintiff's evidence lacks sufficient weight and credibility to carry the burden of proof. [Citations.] We have no power on appeal to judge the credibility of witnesses or to reweigh the evidence.'" (Patricia A. Murray Dental Corp., at p. 270; see Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1067.) "It is not our role to reweigh the evidence or reassess the strength of the experts' opinions." (City of San Buenaventura v. United Water Conservation District (2022) 79 Cal.App.5th 110, 121 (City of San Buenaventura).) The trier of fact exclusively judges evidence of credibility. (Oldenburg v. Sears, Roebuck & Co. (1957) 152 Cal.App.2d 733, 742.) In making its assessment, the trial court may reject the testimony of any witness (even if that witness offers uncontradicted testimony). (Hicks v. Reis (1943) 21 Cal.2d 654, 659-660.)
B. The Evidence Does Not Compel a Finding That Donoco
Met the Requisite Elements for an Easement by Necessity An easement is "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.)
Although Donoco sought an easement by implication and/or equity in the trial court, on appeal Donoco only pursues its claim for an easement by necessity and related declaratory relief.
Easements by necessity are creatures of common law, born from "'"the application of the presumption that whenever a party conveys property, [that person] conveys whatever is necessary for the beneficial use of that property and retains whatever is necessary for the beneficial use of land [that person] still possesses."'" (Murphy v. Burch (2009) 46 Cal.4th 157, 163.) As a matter of public policy underlying easements by necessity, "property should not be rendered unfit for occupancy or successful cultivation because access to the property is lacking." (Ibid.) In other words, "'"the legal basis of a way of necessity is the presumption of a grant arising from the circumstances of the case. This presumption of a grant, however, is one of fact, and whether a grant should be implied depends upon the terms of the deed and the facts in each particular case."' [Citation.] [¶] Hence, the law '"never imposes . . . an easement by necessity contrary to the express intent of the parties'" since it is based on an inferred intent arising from the strict necessity of access for the conveyed property." (Kellogg v. Garcia (2002) 102 Cal.App.4th 796, 803-804, italics omitted; see Murphy, at pp. 163-164 ["[t]he implication will not be made, however, where it is shown to be contrary to the parties' intentions"].) In sum, "the common law doctrine does not exist to ensure a right of access to any and all landlocked property;" rather, the doctrine applies only when the circumstances establish that the parties intended an access easement when the common owner conveyed the property. (Murphy, at p. 164.)
In particular "[a]n easement by necessity requires a unity of ownership of the dominant and servient parcels at the time of a conveyance and strict necessity for a right of way because the conveyance left the dominant parcel landlocked." (Hinrichs v. Melton (2017) 11 Cal.App.5th 516, 529.)
In applying the foregoing criteria for an easement by necessity in the present case, two crucial factual issues emerged on which the parties presented conflicting evidence.
First, the parties contested whether Hutton's original conveyance of the Tower parcel left the Donoco property landlocked and whether it remained so. This determination depended, in turn, on whether the Lot 33 easement actually touched the Donoco property such that it provided ingress and egress-at least up until the 1996 partial extinguishment by summary judgment. If the Lot 33 easement did touch the Donoco property, Hutton's conveyance of the Tower property did not leave it landlocked and neither the original grantee at the time could, nor can Donoco, claim entitlement to an easement by necessity.
Second, the parties contested the effective dates of Hutton's conveyances of the Tower parcel and the surrounding lots identified in the Rosswood Deeds I and II. If the notarization date controls, as Tower asserts, Hutton's severance of the Tower and Donoco parcels would not have been the transfer that left the Donoco parcel landlocked because the Tower parcel would not have been conveyed until after Hutton transferred the properties in the Rosswood Deeds I and II (which, when still owned by Hutton, provided the Donoco parcel with access to nearby roads). Because we resolve the first question against Donoco, we need not and do not reach the latter.
Donoco also contends the trial court erred in not permitting easement 92 feet in width, Donoco to amend its complaint at the close of trial to seek an easement 92 feet in width, rather than the 42 feet initially pleaded. Our conclusion that the trial court did not err in denying Donoco an easement moots this issue.
1. The evidence does not compel a finding in Donoco's favor as a matter of law
Donoco had the burden, as plaintiff, to affirmatively prove each element of its claim. Accordingly, it fell to Donoco to prove that Hutton's conveyance of the Tower property left the Donoco parcel, as the dominant tenement, landlocked as a result of its severance from the servient tenement. The duly-recorded Rosswood Deed I, however, suggests the contrary, indicating Hutton expressly reserved an easement for "ingress and egress and drainage" over Lot 33. Indeed, the then-owners of Lot 33 granted the same easement to the owners of the Donoco property two years later, by way of a recorded quit claim deed and illustration indicating the Lot 33 easement did in fact connect Donoco to Kirkland Drive. If nothing else, these facts meant that Donoco's evidence that the Pattin deed left its parcel landlocked was not "uncontradicted and unimpeached." While Donoco presented credible evidence in the form of testimony from an expert surveyor and a civil engineer that the express easement did not reach its property, the court had no obligation to credit that evidence over the opposing evidence Tower presented in the form of the Rosswood Deed I language and the testimony of Wheeler, its expert surveyor. Wheeler offered credible testimony to explain the necessity of a survey. He provided sound reasons for his conclusion that the legal description in the deeds alone, as plotted onto the tract map using CAD software, could not accurately determine the Lot 33 easement location. In particular, Wheeler explained the self-referential nature of the Lot 33 easement's legal description in the deed, laying out its parameters only in relation to itself and Lot 33, independent of the Donoco property. And Wheeler opined as to why the tract map alone was insufficient, given that it did not include (as Knell agreed) the senior, border line delineating the Donoco and Tower properties. True, key aspects of this testimony conflicted with Knell's and Sims's opinions. But the trial court resolves this type of conflicting testimony in the first instance where solid, credible testimony lands on both sides of a disputed factual issue.
Donoco asserted at trial, and again at oral argument on appeal, that Hutton intended the Lot 33 easement solely for drainage and drainage maintenance, notwithstanding Hutton's express articulation of three distinct rights in the easement-"for ingress and egress and drainage." Donoco's interpretation of the easement ignores its express language and would render the words "ingress and egress"-separated from "drainage" by the conjunction "and"-meaningless. As did the trial court, we reject Donoco's invitation to read this crucial language out of the deed. (See Southern California Edison, supra, 39 Cal.App.5th at pp. 823-824 ["recorded conveyances 'must be interpreted as a whole, with each clause aiding the interpretation in the attempt to give purpose to every part, and the interpretation should, where possible, give effect to every part so that no clause is redundant'"]; see also Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1507 ["we strive to interpret the parties' agreement to give effect to all of a contract's terms, and to avoid interpretations that render any portion superfluous, void or inexplicable"]; see generally Southern California Edison, at p. 822 ["'[g]rants are to be interpreted in like manner with contracts in general'"].)
Wheeler never contended a survey was always necessary or that plotting the legal description on a recorded map was never sufficient. As he explained, if the recorded tract map had included Tower's boundary line "we would have a dimension; it would be an open-and-shut case one way or another whether it touches."
As the trial court made clear in its order denying Donoco's motion for a new trial, "[w]hen the court issued its statement of decision, it found Wheeler's testimony more persuasive than Knell's, and thus concluded that Donoco did not meet its burden of proof." We do not "reweigh the evidence or reassess the strength of the experts' opinions." (City of San Buenaventura, supra, 79 Cal.App.5th at p. 121; see Patricia A. Murray Dental Corp., supra, 19 Cal.App.5th at p. 270 [almost impossible for party with burden of proof appealing from adverse judgment to prevail by arguing evidence compel a favorable judgment].) We defer to the trial court's credibility determinations. (See Huang v. L.A. Haute (2003) 106 Cal.App.4th 284, 291 ["[t]he question . . . of witness credibility . . . is entirely within the province of the trial court"]; Southern California Edison, supra, 39 Cal.App.5th at p. 826 ["credibility determinations are the province of the trial court"].)
2. Donoco is mistaken that the location of the Lot 33 easement can be definitively ascertained from the recorded information alone in this instance
Donoco asserts that the legal description on the face of a deed must control. We agree. Donoco makes much of the fact that the three experts concurred in their assessment that, as plotted and interpolated onto the tract map, the metes and bounds legal description of the Lot 33 easement resulted in a small gap of a foot or two between it and the Donoco property. We agree with that too. However, the experts diverged on the crucial point of just how much credence they could give to the computer drawings that resulted from plotting the legal description. Wheeler explained that he could not tell just from the original deed description whether the Lot 33 easement touched the Donoco parcel. He explained that he could make that determination only with a survey, in part because the deed failed to include all of the necessary information needed to conclusively plot the easement. Donoco's expert, Knell, effectively corroborated this aspect of Wheeler's testimony when he conceded that he also could not plot the easement based on the legal description in the deed alone. Indeed, Knell also found it necessary to look beyond the four corners of the grant deed and tract map. Thus, contrary to what Donoco asserts, Donoco does not rely entirely on the legal description in the deed. Instead, Donoco plotted the easement using CAD software in combination with interpolating the section line boundary through linear regression of surrounding known monuments and ancillary maps that appear nowhere on or in the legal description Donoco claims to control. Donoco's (at least implicit) concession that the legal description does not suffice to establish the precise location of the Lot 33 easement undermines its argument that the only the language of the deed should control. The trial court properly weighed the extrinsic evidence presented by both sides and decided which evidence (and which expert) to credit the most.
The cases on which Donoco relies do not dictate a different result. Donoco relies on Pulliam v. Bennett (1880) 55 Cal. 368, 371, which simply reiterates that, if possible, a grantor's intent should be discerned from the language of the deed rather than through external evidence. As discussed, however, here the four corners of the grant deed did not disclose whether the Lot 33 easement actually reached the Donoco parcel. In addition, the recorded tract map did not disclose whether the Lot 33 easement touched the Donoco parcel, as Wheeler explained in detail. Knell admitted as much, explaining such plotting here necessitated interposing the legal description of the Lot 33 easement on to the tract map using CAD software and then using linear regression to locate the senior section line between the Tower and Donoco properties.
Donoco also cites Armitage v. Decker (1990) 218 Cal.App.3d 887 and Bryant v. Blevins (1994) 9 Cal.4th 47, which discuss the agreed-upon boundary line doctrine, a narrow exception to giving precedence to parties' long-standing agreement in lieu of the legal description. We fail to see how this doctrine applies; it does not address whether or not a physical survey alone can establish the location of the Lot 33 easement.
Donoco cites Hoffman v. Van Duzee (1937) 19 Cal.App.2d 517, 519, for the proposition that "California law defers to such 'plotting' in the absence of clear evidence that the description is wrong." In Hoffman, the court recognized it was proper to assume a recorded map was "correct" and that "[d]imensions shown on recorded maps used and referred to in conveyances for the purpose of description express the understandings and agreements of the parties with reference to the location and boundaries of the land conveyed." (Ibid.) However, in Hoffman the court could determine the relative lengths and locations of the parcels in question by looking just at the recorded map. Indeed, as Wheeler testified, had the Lot 33 tract map included that preexisting senior line then "we would have a dimension; it would be an open-and-shut case one way or another whether it touches." Knell resorted to a linear regression of the survey monuments to locate the senior line and interpolate it onto the Lot 33 map using unspecified maps of the surrounding area apparently culled from the internet. Accordingly, the facts here differ substantially from those in Hoffman.
White v. State of California (1971) 21 Cal.App.3d 738, does not help Donoco. There, in the context of deciding title to tidelands pursuant to Civil Code section 830, the court considered the application of the parol evidence rule to determine what intention the parties expressed through the language of a deed. The court restated the general rule that "'[w]here there is nothing ambiguous or uncertain in the terms of a deed it speaks for itself and the inquiry should be limited to what the words of the deed express without regard to any intention independent of those words.'" (White, at p. 757.) Thus, where the deed reflects neither ambiguity nor uncertainty, its terms must control over "'the surrounding facts and circumstances'" rendering parol evidence "'not admissible to add to, detract from, or vary the terms of a deed'" or augment the "'operation of a deed'" or its effect different "'from that apparent on its face.'" (Ibid.)
Here, as explained, the legal description of the easement in the relevant deed contains both ambiguity and uncertainty. First, neither party can determine the location of the easement in relation to the Donoco property merely by referencing the words of the deed. As Wheeler testified in relation to the crucial senior line omitted from the legal description in the deed, "we don't know where that is because they don't show it on here." Knell, while maintaining the location of the easement was not ambiguous, nevertheless conceded to "using the information from external or maps remote to this particular area" to determine its location. Thus, both parties' experts resorted to extrinsic evidence to interpret the deed, reaching different conclusions in doing so. Second, the deed itself reflected an intention to grant an easement over Lot 33 for "ingress and egress," which appeared to evidence an intent to "unlock" the Donoco parcel using access through Lot 33 to reach Kirkland Drive. When considering the application for an easement by necessity, even when presented with an unambiguous deed, we look to the circumstances to determine party intent. (Murphy v. Burch, supra, 46 Cal.4th at p. 164 ["[T]he doctrine is properly applied only when the circumstances establish that an access easement was intended at the time of the common owner's conveyance."].) What better evidence of the parties' intent than the inclusion of an actual, express easement? Even Knell admitted that he "couldn't even fathom a guess" as to what purpose Hutton would have for including the original Lot 33 easement if it did not touch the Donoco property; "It makes no sense to me."
As a corollary to the rule that a legal description must be "certain and definite and sufficient in itself to identify the land" the Supreme Court clarified that principle "does not exclude evidence for the purpose of applying the description to the surface of the earth, and thus identifying it with the tract in controversy." (Best v. Wohlford (1904) 144 Cal. 733, 737; accord, Edwards v. City of Santa Paula (1956) 138 Cal.App.2d 375, 380 ["[p]arol evidence is always admissible in aid of application of the description to its subject matter"].) This reasoning is instructive. While we must rely on, and not deviate from, the boundaries provided by the legal description, Donoco nevertheless shoulders the burden to establish precisely where those boundaries lie on the surface of the earth.
Donoco relies on a settled precept that the law defers to legal descriptions, a truism that no one refutes. However, neither Tower nor Wheeler sought to invalidate or contravene the legal description of the Lot 33 easement. Instead, they sought to establish definitively where the easement lies on the land. While Donoco's expert disputed the necessity of a survey, Tower put forth credible expert testimony to the contrary. The trial court found that testimony more credible than Donoco's competing testimony. We do not reweigh or reassess the strength of the expert testimony here. (City of San Buenaventura, supra, 79 Cal.App.5th at p. 121.) Given Wheeler's testimony, corroborated by the language of the deed itself, Knell's concessions, and the circumstantial evidence, we cannot say Donoco's evidence was "uncontradicted or unimpeached," or "left no room for a judicial determination that it was insufficient to support a finding." (Patricia A. Murray Dental Corp., supra, 19 Cal.App.5th at p. 270.) Accordingly, the evidence does not compel a finding in Donoco's favor as a matter of law.
DISPOSITION
The judgment is affirmed. Tower Goal Limited shall recover its costs on appeal.
We concur: SEGAL, Acting P. J., FEUER, J.
[*] Judge of the Marin County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.