Opinion
D069096
12-28-2016
KYLE RHODES et al., Plaintiffs and Appellants, v. IMPERIAL IRRIGATION DISTRICT, Defendant and Respondent.
Sutherland & Gerber and Lowell F. Sutherland for Plaintiffs and Appellants. Law Offices of Martin N. Buchanan and Martin N. Buchanan, Law Offices of Dennis L. Shields and Dennis L. Shields, Sandler, Lasry, Laube, Byer & Valdez and Thomas R. Laube, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. ECU07555) APPEAL from a judgment of the Superior Court of Imperial County, L. Brooks Anderholt, Judge. Affirmed. Sutherland & Gerber and Lowell F. Sutherland for Plaintiffs and Appellants. Law Offices of Martin N. Buchanan and Martin N. Buchanan, Law Offices of Dennis L. Shields and Dennis L. Shields, Sandler, Lasry, Laube, Byer & Valdez and Thomas R. Laube, for Defendant and Respondent.
Appellants Kyle Rhodes and Kathleen Wainwright appeal the trial court's judgment of dismissal of their first amended complaint following an order granting summary judgment in favor of respondent the Imperial Irrigation District (the District). Appellants contend: (1) the District is responsible for damage to their property caused by the District's canal designated as an "E drain," and the District's easement was not a public right-of-way; (2) the District had a duty to conduct itself in such a way as to not impose an unreasonable burden on appellants as owners of the servient tenement; (3) the fact appellants' damaged improvements were within the easement's boundaries did not relieve the District of its duty to act reasonably; (4) appellants, having used the surface of the easement with the District's acquiescence and consent, had acquired the right to continue using the easement for their structures; (5) the District's summary adjudication notice regarding the second through fifth causes of action was defective; (6) summary judgment was precluded by the existence of triable issues of material fact, including regarding the District's duty to use the easement reasonably to impose the least burden on the servient tenement; and (7) sufficient evidence supports each cause of action.
We affirm the judgment on the ground that appellants' property was subject to the District's right-of-way, which the District used for its intended purpose. We conclude the District is not subject to liability for damage to appellants' property located within the right-of-way, and for which they did not obtain an encroachment permit, or for damage caused to appellants' other property by a sewer pipe that appellants placed and maintained without an encroachment permit within the right-of-way. Accordingly, we need not consider appellants' other arguments.
FACTUAL AND PROCEDURAL BACKGROUND
" 'Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion.' " (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716-717; Elk Hills Power, LLC v. Board of Education (2013) 57 Cal.4th 593, 606.) We consider all the evidence in the moving and opposing papers except that to which objections were made and sustained, liberally construing plaintiffs' evidence and resolving any doubts in the evidence in their favor. (Wilson v. 21st Century Ins. Co., at p. 717; Code Civ. Proc., § 437c, subd. (c).)
In 1952, the District sold approximately ten acres of real property located along West Young Road, Calipatria, California to appellants' predecessors. The quit claim deed stated the District was "[r]eserving, however, a right[-]of[-]way 80 feet in width lying south of, adjacent to, parallel with and in addition to the existing right[-]of[-]way for the county road as now constructed across the north side of the N 1/2 of NE 1/4 NE 1/4 of said Section 17." The District further reserved "all easements and right[-]of[-]ways of record in the name of or heretofore used by Imperial Irrigation District for irrigation, waste or drainage canals, or power or telephone lines, and reserving the right to construct, operate and maintain power and telephone lines upon or over said right of way, together with a convenient means of ingress and egress thereto." (Some capitalization omitted.) The District had been operating the earthen E drain before the quit claim deed was recorded. Rhodes's uncle had constructed a metal "saddle" that acts as a cradle for the sewer line as it crossed the E drain and connected appellants' property to the Calipatria sewer. The sewer pipe was placed below the lip of the drain.
Appellants' property includes a main house, a small house that was converted from a garage in the 1960's, and a cistern. The small house, cistern, and the northern portion of the main house are located within the 80-foot right-of-way. In July 13, 2012, following a massive rain storm in the Imperial Valley, the water in the District's E drain rose approximately 15 feet higher than normal. It is undisputed the drain did not overflow its banks. The sewer pipe burst and water from it flowed onto appellants' property and main house, causing damage. Additionally, the rain storm caused the E drain's south bank to wash out, and the resulting flooding caused the foundation of Appellants' small house to drop several inches, and the cistern to tilt.
Appellants sued the District, alleging in their first amended complaint causes of action for inverse condemnation, nuisance, dangerous condition of public property, abatement of nuisance and trespass. Appellants alleged they were harmed by the flood damage: "The water which flooded [their] property, and the threat of future flooding from [District's] systems has caused recurring damage and insult [sic] to [their] residence, lands, and rights including but not limited to the washout of the south bank of the drain resulting in the loss of several feet of surface; the loss of both lateral and subsurface support of the ground supporting a house and cistern on [their property] as well as the washout of the sewer line connecting [their] house to the Calipatria sewer line. The flooding event has also lowered property values; and amounts to the taking and damaging of said property and interests without due process of law and just compensation, all in violation of [their] rights under the Constitution of the State of California and the Constitution of the United States."
The District answered the first amended complaint, generally alleging appellants had failed to state facts sufficient to constitute causes of action. The District also set forth the following affirmative defenses: Appellants' predecessor-in-interest had granted the District a right-of-way to operate its irrigation system over appellants' property; appellants did not obtain a required encroachment permit to maintain the sewer line across the E drain, which was lawfully operated pursuant to the right-of-way; and, appellants' damages resulted from their placement of that sewer line.
The District moved for summary judgment or alternatively summary adjudication, arguing that as a matter of law its recorded easement was a right-of-way that permitted it to operate the E drain without any duty to protect appellants' property from any effects of the drain's normal operations. The District further argued that because the E drain did not overflow, appellants could not establish that the District's actions caused their sewer to back up or that any of the "District's water" entered appellants' property or interfered with their use and enjoyment of their property. The District sought summary adjudication of each cause of action on grounds that its conduct was not a substantial factor in causing the flood damage; and the claim of damage from bank erosion lacked merit because the District operated the E drain pursuant to the recorded easement.
One of the District's experts stated in a supporting summary judgment declaration: "When the surface level in the drain rises above its normal elevation, the earthen banks will erode. This is a common and recurring event. In most irrigation districts, a major maintenance task is to continually inspect and grade the banks of the drains (and canals) to maintain their capacity and confine the water in the channel. Thus, bank erosion is not a sign of system failure but is a normal and regular occurrence with an irrigation system, especially following a major storm."
Appellants argued in opposition that the District's motion did not provide proper notice for summary adjudication of the second through fifth causes of action; triable issues of material facts precluded a grant of summary judgment or summary adjudication; the easement did not permit the District to damage the servient tenement; and, sufficient evidence supported each cause of action.
Appellants' expert stated in an opposing declaration that high water in the E drain caused the washout of appellants' sewer pipe and the south bank, and the damage to the small house and cistern. He concluded: "Undergrounding the E drain through a pipe drain or lining the south bank with rip rap would have prevented this damage."
The trial court granted summary judgment, finding the District had reserved a public right-of-way: "[T]he sewer line is the culprit and the question for the court is a legal one, that is, what are the rights of the holder of the right-of-way and what are the rights of the landowner in fee? [¶] The court reviewed the deed and the District did retain an 80-foot wide right-of-way, which under Civil Code section 801 determines that an easement is a whole bunch of different things[.] . . . In this case, it was the E drain, and it was not a private easement. It is a public easement. It is a public right-of-way. [¶] . . . And really, that is what it comes down to, either the plaintiffs were entitled to maintain that structure, notwithstanding the right-of-way, because the right-of-way was reserved after construction, clearly from the assessor's records, that the court is taking judicial notice of."
The trial court placed particular importance on a document provided by appellants showing that their small house was converted from a garage to a residence in the 1960's: "When people construct or improve the property on a public right-of-way, they do so at their own risk. Although [Bello v. ABA Energy Corp. (2004) 121 Cal.App.4th 301 (Bello)] is not about a canal or a ditch, it certainly is applicable in the closest cases that the court has to rely upon, and the entire 80 feet was reserved by the District for any use that it deemed appropriate, such as a drain, which was already in place when the reservation occurred with the understanding that the whole 80 feet might be necessary at some point for use; and if it floods, or the drain ditch overflows, as long as it doesn't go beyond the 80 feet, the District certainly has that right[.] . . . [¶] . . . It is also unrefuted based upon the pleadings that I have that the structures that were damaged that are in question here are encroachments on the right-of-way of the District, and there were no formal encroachment permits provided. At least the Court has not had them, and I assume that if they exist, that they certainly would have been presented to the Court."
With respect to appellants' other arguments, the court ruled: "[Appellants] cannot come in and say [t]hat 'we have maintained the structure here for 50 years and the District took no action.' Well no one can obtain prescriptive rights against the public easement as opposed to a private easement. So because the plaintiffs did not have a right to maintain the structures, as there is no doubt that the structure as a garage existed in [the] 1920's as was presented by plaintiff, the question is, do they have a right to maintain it. And once that right-of-way was reserved by the District, they did not have a right to maintain that structure on the 80-foot strip." The court likewise concluded that appellants had placed and utilized the sewer pipe over the District's canal at their own peril, and therefore the District was not responsible for any damage resulting from its rupture. The court denied as moot the District's alternative motion for summary adjudication.
Appellants moved for reconsideration on grounds the trial court had erroneously granted summary judgment by deciding a question of fact—whether the District's easement was a public right-of-way. The trial court denied the motion, finding dispositive that the District had used the easement according to its reserved rights.
DISCUSSION
I. Standard of Review
Code of Civil Procedure section 437c, subdivision (p)(2) provides: "A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto."
The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that it is entitled to a judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Defendants moving for summary judgment bear the burden of persuasion that one or more elements of the cause of action in question " 'cannot be established' " or that " 'there is a complete defense' thereto." (Ibid.) The moving defendant can make this prima facie showing either by presenting evidence that conclusively negates an element of a plaintiff's cause of action or by presenting evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. (Ibid.) If the moving defendant meets his initial burden, then the burden shifts to the plaintiff to show that a triable issue of material fact exists. (Ibid.)
" 'To determine whether triable issues of fact do exist, we independently review the record that was before the trial court when it ruled on defendants' motion.' " (Elk Hills Power, LLC v. Board of Equalization (2013) 57 Cal.4th 593, 605-606.) "Under California's traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334-335; see also Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1452 ["a more accurate statement of our review of a summary judgment is that we consider all the evidence set forth in the moving and opposition papers except that to which objections have been made and properly sustained"].)
II. The Inverse Condemnation Cause of Action
A. Applicable Law
Appellants contend the District presented no evidence that its easement was a public right-of-way, pointing out there was no highway or public road at issue here, and arguing that the general public did not have the right to use the easement. Appellants also argue that the District, as the easement owner, had a duty to "conduct itself in such a way so as not to impose an unreasonable burden on appellant as owner of the servient tenement." Specifically, appellants argue that before the flood, the District had not used its easement to damage the improvements to appellants' property; therefore, the District was capable of using the easement without burdening the servient tenement. Appellants further argue that their expert's declaration shows that if the District had used rip rap or undergrounded the E drain, its banks would not have washed out and damaged their property.
To recover for inverse condemnation, the private property owner must show his property was "taken" or "damaged" by the acts of a public agency. (Cal. Const., art. I, § 19.) "[T]here must be an invasion or appropriation of some valuable property right which the landowner possesses and the invasion or appropriation must directly and specially affect the landowner to his injury." (Marina Plaza v. California Coastal Zone Conservation Com. (1977) 73 Cal.App.3d 311, 325.) The state must compensate owners who suffer actual physical injury to their property proximately caused by a public improvement as deliberately designed, constructed, and operated. (Holtz v. Superior Court (1970) 3 Cal.3d 296, 303-304.) "The determination of whether an inverse taking has occurred is a nonjury question, even when there are factual questions involved." (Redevelopment Agency v. Tobriner (1984) 153 Cal.App.3d 367, 376.)
"An easement is a restricted right to specific, limited, definable use or activity upon another's property, which right must be less than the right of ownership." (Mesnick v. Caton (1986) 183 Cal.App.3d 1248, 1261.) "Grants are to be interpreted in like manner with contracts in general." (Civ. Code, § 1066.) "The interpretation of a written instrument, even though it involves what might properly be called questions of fact [citation], is essentially a judicial function to be exercised according to the generally accepted canons of interpretation so that the purposes of the instrument may be given effect." (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.)
"The task of the reviewing court has been described as placing itself in the position of the contracting parties in order to ascertain their intent at the time of the grant. [Citation.] If the intent of the parties can be derived from the plain meaning of the words used in the deed, the court need not, and should not, resort to technical rules of construction." (Machado v. Southern Pacific Transportation Co. (1991) 233 Cal.App.3d 347, 352-353.) Similarly, "[i]f 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." (Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702.)
"Long ago our Supreme Court made clear the difference between public and private rights of way: 'Public ways, as applied to ways by land, are usually termed "highways" or "public roads," and are such ways as every citizen has a right to use. . . . A private way relates to that class of easements in which a particular person, or particular description or class of persons, have an interest or right as distinguished from the general public.' " (County of Sacramento v. Pacific Gas & Elec. Co. (1987) 193 Cal.App.3d 300, 313 [holding that public utility easements are private easements].) "A private easement ordinarily vests those use rights in the owner of a particular parcel of neighboring property, the 'dominant tenement.' [Citation.] Unlike a private easement, the use rights of a public right-of-way are vested equally in each and every member of the public. [Citation.] The city or county government ordinarily administers use of the right-of-way." (Bello, supra, 121 Cal.App.4th at p. 308.)
As the Bello court explained: "The late 19th century saw a dramatic change in the judicially recognized scope of public rights-of-way in California. Before the widespread adoption of railroads, electricity, and the telephone, the term 'right-of-way' was given its literal meaning—a public right to construct, maintain, and use a road over private land. Any other use required the landowner's consent. [Citations.] Shortly before the turn of the century, however, the Supreme Court recognized that urbanization was placing a much greater demand on public resources than could be accommodated by this literal view of public rights." (Bello, supra, 121 Cal.App.4th at p. 308.) The Bello court summarized several cases and explained: "The Courts of Appeal have also consistently adopted a broad and flexible interpretation of the scope of public rights-of-way." (Id. at p. 311.)
B. The District Reserved to Itself a Public Right-of-Way
The starting point for our analysis is the plain language of the quit claim deed, in which the District reserved to itself an 80-foot wide right-of-way over appellants' property for, among other things, "irrigation, waste or drainage canals." In reversing a trial court's judgment permitting the defendant to line a long-standing earthen ditch with a concrete-like substance, a Court of Appeal stated: "The California courts have consistently held the scope of the easement to be fixed by the location, character and use in existence at the time the land became subject to the easement." (Krieger v. Pacific Gas & Electric Co. (1981) 119 Cal.App.3d 137, 143 (Krieger).)
Here, under the plain meaning of the quit claim deed and the reasoning of Bello and the cases cited in it, we conclude the easement is a public right-of-way. In Schmidt v. Bank of America, N. A. (2014) 223 Cal.App.4th 1489, 1501, we distinguished a private easement from a public one by pointing out in that case, there was no evidence that the public at large had any rights to the reserved easement or that the use of the easement was regulated by any governmental entity as a public right-of-way. By contrast, here, the District regulates the easement's use. "Where a corporation is composed exclusively of officers of the government, having no personal interest in it, or with its concerns, and only acting as organs of the state in effecting a great public improvement, it is a public corporation." [Citation.] "A municipal corporation proper is created mainly for the interest, advantage, and convenience of the locality and of its people." (In re Madera Irrigation District (1891) 92 Cal. 296, 323.) It is undisputed that on the day of the flood, the E drain functioned as designed, carrying water for the benefit of all landowners in the surrounding area.
Appellants' argument ignores Bello and the cases cited therein. The District is a government public agency that operates and maintains the E drain for the public purposes of irrigation, waste or drainage for the benefit of all residents of Imperial County. Appellants failed to raise a triable issue of material fact or cite to relevant law to support their claim that the canal is a private right-of-way as opposed to a public one. Accordingly, the trial court did not err in concluding the E drain was a public right-of-way. C. The District Was Not Required to Use Rip Rap or Extend a Pipe Drain
Appellants also argue on appeal that the parties' respective experts had raised a triable issue of material fact as to whether the District could prevent erosion of the E drain's banks: "[T]he erosion on [a]ppellants' property which caused the loss of surface area as well as the loss of lateral support resulting in damage to the 'little house' and the cistern could have been prevented by extending the pipe drain under Lylerly Road or installing a rip rap." However, in light of the fact there is no conflicting evidence here, we independently interpret the scope of the easement. (Beyer v. Tahoe Sands Resort (2005) 129 Cal.App.4th 1458, 1470.)
When the District quitclaimed the property to appellants' predecessor in interest, the E drain was an earthen canal, and it has so remained during the ensuing years. However, if the District had chosen to line the E drain with rip rap or extend the pipe under Lylerly Road, the easement would be "substantially altered." (Krieger, supra, 119 Cal.App.3d at p. 145.) "[B]oth parties have the right to insist that so long as the easement is enjoyed it shall remain substantially the same as it was at the time the right accrued, entirely regardless of the question as to the relative benefit and damage that would ensue to the parties by reason of a change in the mode and manner of its enjoyment." (Allen v. San Jose Land & Water Co. (1891) 92 Cal. 138, 141.) The District is under no obligation to change the character of the easement in the manner proposed by appellants. D. Appellants' Improvements Are Unpermitted Encroachments
We reject Appellants' contention that their "use of the surface of the easement with the acquiescence and consent of [the District] fixes their right to continue to use the surface for their structures." Although it is unclear what appellants mean by "fixes their right," we point out that the trial court correctly concluded appellants could not acquire a prescriptive easement against a public entity. (Civ. Code, § 1007.)
People v. Henderson (1948) 85 Cal.App.2d 653 is instructive. There, the State of California owned an easement for a public highway, but the defendant constructed, and shortly afterwards removed, a temporary shed "20 feet away from the paved portion of the highway and 15 feet from the outer edge of the shoulder." (Id. at p. 655.) The shed did not constitute an obstruction to the uses that were then being made of the easement, nor perceptibly interfere with the view of users of the highway. (Ibid.) The trial court perpetually enjoined defendant from erecting or placing an encroachment in, under or over any portion of the highway. (Ibid.) The Court of Appeal affirmed, ruling that "it would be in clear violation of the rights and interests of the public to follow a general policy of permitting structures and obstructions of various types to be maintained upon public rights of way. The reasons for this are so clearly apparent that they need not be stated." (Id. at p. 658.)
Here, as in Henderson appellants' buildings and improvements may be regarded as encroachments: "It is a well-settled principle of common law, which has frequently been embodied in statutory form, that a structure maintained upon a public roadway is unlawful . . . and is a nuisance per se, subject to abatement at the instance of proper authority." (Henderson, supra, 85 Cal.App.2d 653, 656.) The Henderson court concluded it would be no defense to a nuisance cause of action that the offending "structure is off the traveled part of the highway or that sufficient areas remain to allow public use of the right of way in the accustomed manner." (Ibid.) It is undisputed the sewer pipe crossed the E drain perpendicularly, and the sewer pipe, small house and cistern are located squarely within the right-of-way reserved to the District.
Appellants knew of the right-of-way's existence, but elected to convert the garage to a small house. The trial court found it undisputed that appellants failed to obtain an encroachment permit to continue using the improvements located in the right-of-way. Appellants have not pointed to evidence in the record rebutting this finding that they lacked permission to continue to maintain their improvements on the property. In fact, at oral argument before us, counsel for Rhodes acknowledged that appellants obtained no encroachment permit, but he implied that none was needed since the District had sold the property to appellants' predecessor in interest.
The fact that Henderson involved a highway but this case involves an irrigation canal is not dispositive. As in Henderson, this case involves a public entity that holds an easement entitling it to a public right-of-way over the servient tenement. Appellants' continued use of the improvements after the District reserved the right-of-way was unpermitted and encroached the public's rights and interests. In Henderson, the remedy was to order the encroaching building removed. Here, as a matter of law, the District has no liability for damage caused to appellants' buildings in light of the fact District was appropriately using the right-of-way it had acquired in the quitclaim deed, and appellants lacked permission to continue maintaining their improvements on the property. This same analysis applies to the flooding damage caused to appellants' main house by appellants' ruptured sewer pipe, for which they had obtained no encroachment permit.
III.
As to all causes of action alleged in appellants' first amended complaint, there is no triable issue of fact as to causation. " '[I]n order to establish a causal connection between the public improvement and the plaintiff's damages, there must be a showing of " 'a substantial cause-and-effect relationship excluding the probability that other forces alone produced the injury.' " ' " (Gutierrez v. County of San Bernardino (2011) 198 Cal.App.4th 831, 843.) If appellants had not installed and maintained the unpermitted sewer pipe across the E drain, their main house would not have been damaged by water because the E drain did not overflow its banks. Moreover, as noted, the subsidence to the small house and cistern and the damage to the main house were caused by appellants maintaining their property within a public easement without obtaining encroachment permits. (Ramsey v. City of Lake Elsinore (1990) 220 Cal.App.3d 1530, 1537 [setting forth elements for a dangerous condition cause of action; CACI No. 2000 [setting forth elements of a common law trespass cause of action]; Civ. Code, § 3479; CACI No. 2021 [setting forth elements of a nuisance cause of action].)
Accordingly, we conclude the District met its summary judgment burden of showing it had a complete defense to all of appellants' causes of action. Appellants subsequently failed to show the existence of triable issues of material fact as to the different causes of action. Consequently, the court did not err by granting summary judgment as to all causes of action. Our resolution of this matter moots appellants' other contentions on appeal.
DISPOSITION
The judgment is affirmed. The Imperial Irrigation District is entitled to its costs on appeal.
O'ROURKE, J. I CONCUR: McCONNELL, P. J. I CONCUR IN THE RESULT: IRION, J.