Opinion
NOT TO BE PUBLISHED
Superior Court County No. 1242498 of Santa Barbara, James Brown, Judge.
The Law Offices of John Derrick and John Derrick, for Defendant and Appellant.
The Law Offices of E. Patrick Morris, E. Patrick Morris, for Plaintiffs and Respondents Gregg Welsh, Individually and Trustee, etc., and Laura Welsh, and Scott Zacky, as Trustee, etc.
COFFEE, J.
Haddon B. Dillon ("Dillon") appeals from a judgment quieting title in favor of, and granting other relief concerning reserved and prescriptive easements to Gregg Welsh, Individually and as Trustee of the Pearl Welsh Trust UTD, etc., and Laura Welsh (collectively "the Welshes"). We remand with directions for clarification concerning the precise terms of the judgment and otherwise affirm.
The Welshes sold the property involved in this litigation to the Zacky Trust in 2007. On November 1, 2010, Scott Zacky, as Trustee of the Robert D. Zacky and Lillian D. Zacky Trust dated July 1988, (Zacky) was substituted in as respondent. The text of our opinion refers to Gregg Welsh or the Welshes because of their involvement in relevant events and in the proceedings below.
FACTUAL AND PROCEDURAL BACKGROUND
At all relevant times, the Welshes and Dillon owned neighboring Montecito properties that once formed a larger property called Manana. Their dispute concerns a nonexclusive "driveway purposes" easement on Dillon's 1666 East Valley Road property (1666 EVR) in favor of the Welshes' 1676 East Valley Road property (1676 EVR). The Welshes filed this action in December 2006. The relevant history follows.
Manana's Owners Divide Manana into Two Parcels and Create the Easement
On April 9, 1969, Manana's owners, Robert Neustadt and Maria Neustadt Spalding, obtained approval to divide it into Parcels A and B. (Santa Barbara County, Parcel Map No. 10908, rec. April 9, 1969.) The grantors' elderly mother lived on Parcel A, 1.59 landlocked acres that later became 1676 EVR. Parcel B consisted of 1.017 acres that became 1666 EVR. The 1969 parcel map shows a 56-foot-wide by 148-foot-long driveway easement on the eastern side of 1666 EVR in favor of 1676 EVR, from its southernmost border to the center of East Valley Road. In 1969, Robert Neustadt and Maria Spalding deeded Parcel B to Rufus Spalding, but reserved an easement over 1666 EVR "for driveway purposes."
By 1972, Robert Neustadt, his sister, Maria Spalding, and Robert's wife, Candice Taylor Neustadt, held title to 1676 EVR and 1666 EVR. Later that year, after their mother died, Maria Spalding and Robert Neustadt, with Robert's wife, Candice, sold 1666 EVR and 1676 EVR. On April 24, 1972, they deeded 1666 EVR to John and Pamela Williams, but reserved the driveway purposes easement for the benefit of 1676 EVR (Williams deed). In June 1972, Alfred and Peggy Morgan agreed to purchase 1676 EVR. They could not close escrow until 1676 EVR was connected to the sewer. Before escrow closed, several parties signed documents relating to the Morganses' purchase of 1676 EVR.
John and Pamela Williams granted Robert Neustadt a utility purposes easement on the easterly 28 feet of 1666 EVR, in favor of 1676 EVR in a deed providing that "[a]s a condition of this conveyance [1676 EVR] shall upon the exercise of said easement restore and maintain the surface of said land to a condition as good or better than the present state of improvement. Also that [1676 EVR] recognizes that the "56 ft. driveway easement" is a common driveway with [1666 EVR], ... and agrees to maintain the surface in a condition equal to or better than the present condition." Robert Neustadt granted "[a]n easement for... sewer and... utility purposes over the [e]asterly 28 feet of... [1666 EVR] to Alfred and Peggy Morgan." Maria Spalding and Robert Neustadt transferred their interest in 1676 EVR, and "an easement for driveway purposes over the easterly 56 feet of 1666 EVR]" to the Morgans by a grant deed. Those documents were signed on July 6, 1972, and recorded on September 6, 1972.
According to Albert Martin, a retired title officer who worked on the Williams deed, the term "driveway purposes" in an easement means "ingress" and "egress." He conceded that driveway "fee owners" use driveways for washing cars, parking cars, repairing cars, recreation of all sorts, garage sales and installing gates.
Appearance, Condition and Use of Easement
In 1972, before the Morgans purchased 1676 EVR, a long driveway at its southernmost boundary connected it to East Valley Road. The surface of the driveway consisted of central paving, with unpaved soil or worn groundcover on each side. Near the southern shoulder of East Valley Road, short stone walls etched with "Manana" flanked the driveway. The walls continued north and met continuous hedges with embedded fences that extended to 1676 EVR. The non-easement portion of 1666 EVR was separated from the driveway by a continuous overgrown hedge with an embedded fence.
By the time that the Morgans closed escrow on 1676 EVR, a break in the continuous hedge and fence accommodated a smaller driveway between the driveway easement and the remainder of 1666 EVR. The 1666 EVR driveway installation required the removal of two or three feet from the stone wall.
The Morgans owned 1676 EVR for nearly 30 years, until they sold it to Terry and Lori Creighton in 2001. The Creightons sold it to the Welshes in 2004.
The Williams and subsequent owners occupied 1666 EVR from 1972 until 1996, when Gulf Horizons, Limited, a company owned by Dillon's husband, Herbert Dillon, acquired it. Dillon moved into 1666 EVR with her husband in 1996. She acquired a partial interest upon or immediately after her husband's 2003 death. In 2007, she acquired the remaining interest, and became its sole record owner.
During their lengthy ownership of 1676 EVR, the Morgans improved and maintained the driveway easement, its hardscape and landscaping, without seeking permission to do so from the 1666 EVR owners. Water from 1676 EVR irrigated the driveway easement landscaping. Subsequent owners of 1676 EVR also were responsible for, controlled and maintained the easement, its hardscape and landscaping. The Morgans allowed guests of the Williams family to park in the driveway easement a few times.
The Morgans considered placing a gate on the easement, about "halfway down, " toward East Valley Road. They decided against doing that in order to avoid aggravating the neighbors too much. Instead, they installed a gate on 1676 EVR to keep their children from skateboarding down the steep driveway to the road. They also added paving stones along the exterior edges of the central paving and outlined the circular driveway on 1676 EVR with matching paving stones.
During the Williamses' ownership of 1666 EVR, Mrs. Williams seemed upset that the Morganses' easement was on 1666 EVR. Soon after the Morgans installed the new 1676 EVR gate, Mrs. Williams painted "NO PARKING" just south of the gate, on the freshly resurfaced black driveway in large white letters that were perhaps four feet high. Mr. Morgan covered the large white letters with black paint.
While the Creightons owned 1676 EVR, they planted lavender that Dillon did not like. She testified that she considered their planting the lavender to be aggressive conduct but also stated that her husband gave them permission to plant it. The Creightons denied Dillon's requests that they remove the lavender and trim the hedge along the easement to reduce its height. They did not permit her guests to park in the driveway easement.
Like his predecessors, Gregg Welsh ("Welsh") landscaped and maintained the driveway easement without seeking permission to do so from the 1666 EVR owners. He believed that he had the responsibility and the right to do so, as well as the right to control, improve, or modify the hardscape and landscape in the driveway easement.
Welsh declined Dillon's request to have her guests park in the driveway easement during her parties. He instead offered the use of the 1676 EVR circular driveway.
While the Welshes occupied 1676 EVR, Dillon asked Welsh to trim the driveway hedge to a lower height and to remove the lavender. He refused to remove the lavender. Welsh initially agreed to trim the hedge lower but decided to let it grow taller after noticing that a lower hedge provided a less favorable view from 1676 EVR. He later found Dillon's workers on 1676 EVR, with a ladder, trimming the hedge.
In 2005, during a heavy rain season, water drained across 1676 EVR onto 1666 EVR and caused substantial damage. Dillon obtained Welsh's permission to place a dumpster in the driveway easement, and to remove some of the hedge and fence to provide workers more direct access to the damaged section of 1666 EVR. Welsh understood that after the work on that section was complete, Dillon would have the hedge and fence restored to their former condition. The dumpster remained on the easement for a lengthy period and damaged some landscaping and paving stones.
Before the Welshes purchased 1676 EVR, there was no gate on the easement. The only gate was on 1676 EVR, where it met the easement. In February 2005, during or after an architectural review board meeting, Welsh's architect mentioned placing a gate on the easement, closer to East Valley Road, and north of the 1666 driveway. Dillon objected to the suggested location for the new gate because it would be near her bedroom window, and its noise would disturb her. The architect said that the new gate would be quieter than the existing gate. Dillon sent Welsh a letter expressing her objection to placing a gate on the easement. Because her letter showed a carbon copy to an attorney, Welsh sent it to his attorney.
In May 2006, the Welshes' agents started constructing a gate on the driveway easement, north of the 1666 EVR driveway. As designed, the new gate would have a large stone or stone-façade pillar and pedestrian gate on either side.
On May 12, 2006, an attorney acting on behalf of the 1666 EVR owner, sent the Welshes a letter demanding that they stop constructing any improvements on the easement, including gates, and asserting that they could use the easement only for "driveway purposes, i.e., ingress and egress." At various times in 2006, Dillon complained to the sheriff that Welsh was trespassing upon and vandalizing her property.
On December, 11, 2006, the Welshes filed this action against Dillon (the occupant and purported owner of 1666 DVR) and Gulf Horizons, Limited, the property's record owner, seeking to quiet title in their rights under the easement, and obtain damages and other relief. The court dismissed Gulf Horizons, Limited, from the action after it settled damages claims and transferred its interest in 1666 EVR to Dillon.
After hearing evidence, the court issued judgment in favor of the Welshes, quieted their interests in the reserved, recorded and reformed easement, as of December 11, 2006, and in a prescriptive easement, as of the date of entry of judgment. It also enjoined Dillon from engaging in certain activities.
DISCUSSION
The Trial Court Properly Considered Extrinsic Evidence and Concluded that the Reserved Easement Included Broader Rights than Ingress and Egress
The trial court quieted the Welshes' title in the reserved easement "for driveway purposes" in favor of the 1676 EVR property and ruled that the easement included all such rights as are commonly allowed for a nonexclusive 56-foot-wide grand entrance driveway use in "Montecito, including but not limited to ingress and egress, parking, washing of cars, recreation, installation of gates, paving and curbing, and all rights which they acquired from the after reformed reservation of easement, provided that reasonable access for driveway purposes is allowed to the servient tenement [1666 EVR], including access through any installed gates, so long as such use does not damage or unreasonably interfere with the grand entrance of the dominant tenement [1676 EVR]." The court based its ruling on the evidence, including the following language in the Williams deed: "Reserving unto the grantors [owners of 1676 EVR] an easement for driveway purposes over that portion of Parcel One [1666 EVR] shown as '56 foot driveway easement' on said Parcel Map."
Dillon argues that the trial court erred by considering extrinsic evidence and concluding that the driveway purposes easement permits the Welshes to use it for purposes other than "ingress and egress." She makes related arguments that the language reserving the easement was unambiguous and that controlling authority establishes "that a 'driveway purposes' easement is to be narrowly construed for the purposes of ingress and egress only." We disagree.
A trial court's threshold determination as to whether there is an ambiguity permitting the admission of parol evidence is a question of law subject to our independent review. (Appleton v. Waessil (1994) 27 Cal.App.4th 551, 554-555; see also Hillman v. Leland E. Burns, Inc. (1989) 209 Cal.App.3d 860, 866.) "When there is any ambiguity or uncertainty about the scope of an easement grant, the surrounding circumstances, including the physical conditions and character of the servient tenement and the requirements of the grantee, play a significant role in the determination of the controlling intent. [Citations.]... '[I]n determining the scope of an easement, extrinsic evidence may be used as an aid to interpretation unless such evidence imparts a meaning to which the instrument creating the easement is not reasonably susceptible.' [Citation.]" (Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 705.) If a trial court resolves a conflict in extrinsic evidence, we review its finding on the issue for substantial evidence. (See Fischer v. First Internat. Bank (2003) 109 Cal.App.4th 1443; Mayer v. C.W. Driver (2002) 98 Cal.App.4th 48, 57.)
Where there is an ambiguity in the language creating an easement, a reservation of rights in the grant of an easement is interpreted in favor of the grantor. (Civ. Code, § 1069; City of Los Angeles v. Howard (1966) 244 Cal.App.2d 538, 542-543.) "'[E]very incident of ownership not inconsistent with the easement and the enjoyment of the same, is reserved to the grantor.' [Citation.]" (City of Los Angeles, supra, at p. 543; Dierssen v. McCormack (1938) 28 Cal.App.2d 164, 170.)
As did the trial court, we conclude that the language of the easement is ambiguous. In Scruby, the reviewing court concluded that a 52-foot-wide easement for "roadway and utility purposes" was ambiguous "concerning the matter of the physical area over which [the dominant tenement had] roadway use" where the "language of the easement [did] not specifically describe the intended roadway as 52 feet in width... for road and utility purposes." (Scruby v. Vintage Grapevine, Inc., supra, 37 Cal.App.4th at p. 705.) Here, the language of the "driveway purposes" easement did not specify whether it included any purpose other than ingress and egress. "[D]riveways are commonly used for multifarious additional purposes, including... general maintenance and access functions...." (Dolske v. Gormley (1969) 58 Cal.2d 513, 519.) The trial court properly considered extrinsic evidence to interpret the scope of the easement. (Scruby, supra, at p. 705.)
Relying on Dolske, Dillon claims that a "driveway purposes" easement must be construed for purposes of ingress and egress only. Dolske is inapposite. The Dolske easement consisted of a 10-foot-wide strip for "a driveway, " that was created in favor of a 25-foot-wide empty lot. Decades after someone built a home on the dominant tenement, the servient tenement's owner built a structure on the easement. The new structure interfered with the dominant tenement's use of part of the easement. In that context, the court interpreted the easement for a driveway to mean ingress and egress only. (Dolske, supra, 58 Cal.2d at pp. 515-519.) Here, in contrast, long after the reservation of the disputed driveway easement, 1676 EVR's owners used it, and controlled and maintained its landscaping and hardscape.
The trial court found that "in Montecito, driveways are commonly used for washing cars, parking cars, repairing cars, recreation of all sorts, garage sales and installing gates." Substantial evidence supports that finding. Martin testified that fee simple driveway owners use driveways for such purposes.
The Prescriptive Easement
Dillon argues that substantial evidence does not support the finding that the Welshes possessed a prescriptive easement. We disagree.
The elements necessary to establish an easement by prescription are open and notorious use of another's land, which use is continuous and uninterrupted for five years and adverse to the land's owner. (Civ. Code, § 1007; Code Civ. Proc., § 321; Grant v. Ratliff (2008) 164 Cal.App.4th 1304, 1308.) The burden of proof as to every element of a prescriptive easement is on the claimant. (Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 431.) Whether the use of property is adverse and under a claim of right or a "'... mere matter of neighborly accommodation...'" is a question of fact to be determined in the light of all of the circumstances disclosed by the evidence. (O'Banion v. Borba (1948) 32 Cal.2d 145, 150.) In determining whether the elements of a prescriptive easement have been established, we apply the substantial evidence standard. (Aaron v. Dunham (2006) 137 Cal.App.4th 1244, 1250.)
Here Dillon challenges the finding of adverse use without challenging the evidence to support the findings as to any other elements of the prescriptive easement. She claims the use of the easement by 1676 EVR was not hostile or adverse, because under "Welsh's own theory of the case--the use was permissive." The record belies her claim. Welsh never sought or obtained permission to modify or maintain the landscaping on the easement. He testified that he had the right to do so. His predecessors-in-interest exercised similar rights in maintaining the easement, its hardscape and landscaping, without seeking permission from the 1666 EVR owners. Dillon considered the planting of lavender on the easement by the Creightons to be an aggressive act. She removed the lavender without Welsh's permission. Dillon's workers entered 1676 EVR and trimmed the hedge, without Welsh's permission.
Dillon also asserts that use of the easement by 1676 EVR owners, including the Welshes, was permissive rather than adverse or hostile because they derived their rights of use from a "written 'driveway purposes' easement." The argument erroneously suggests that courts never grant prescriptive rights where substantially similar rights arise under a written easement. (See, e.g., Miller v. Johnston (1969) 270 Cal.App.2d 289, 293-294 [Where holder of easement granted by deed erroneously paved outside the boundaries of granted (written) easement, court properly granted him prescriptive easement despite his mistaken belief that the paving was within the granted easement area].)
Moreover, even if the court had erred by granting a prescriptive easement where the Welshes derived rights from a reserved, written easement, the error, if any, would not be prejudicial. The rights granted to the Welshes by the prescriptive easement largely mirror or clarify rights that they received under other rulings that we uphold.
Reformation
Dillon argues that the court lacked proper grounds to reform the deed(s) creating and modifying the easement. She further argues that assuming there were any such basis, the scope of reformation was excessive. We disagree.
Civil Code section 3399 authorizes the revision of a written contract when "through... a mutual mistake of the parties, ... [the] contract does not truly express the intention of the parties...." Pursuant to that authority, a court may reform a deed based upon the parties' mutual mistake. (Vecki v. Sorensen (1954) 127 Cal.App.2d 407, 413.)
The trial court relied on Civil Code section 3399 in reforming the 1972 Williams deed. It found that the parties' predecessors-in-interest created, modified and clarified the driveway purposes easement in the 1972 Williams deed, with the mutual and mistaken belief "that doing so would accomplish the long understood agreement that the easement area would continue to appear as a contiguous grand entrance of... 1676 [EVR]." The court further found that the parties had the same understanding when they "permitted the additional installation of utilities (and created an easement therefor) over the easterly 28 feet of that easement in favor of 1676; and recited therein that not only would 1676 have to restore and then maintain the utility easement area upon its use, but required that 1676 acknowledge that the '56 foot driveway easement' area would, in addition to being used by 1676 'for driveway purposes, ' be in its entirety maintained by the 1676 parcel[;] [and] [t]hat maintenance obligation authorized 1676 to keep the entire area in a 'condition equal to or better than' the conditions as they existed in 1972, to the exclusion of such rights for 1666. They were mutually mistaken that this was sufficient to expand the meaning of the term 'for driveway purposes' in the deed of reservation."
Substantial evidence supports the trial court's findings. The multiple documents signed in 1972, including the Williams deed, were part of several related and essentially contemporaneous transactions involving the driveway purposes easement, including placement of the smaller 1666 driveway, and a utility easement that addressed maintenance of the driveway purposes easement. Candice McClung visited and lived at Manana before the creation of the easement. As the wife of a grantor of the Williams deed that created the easement, and a resident of Manana, she was familiar with the easement and its history. McClung explained that the easement was created from and upon property that was always part of the Manana estate, with the intention that the owners of the Manana house (1676 EVR) would continue to use and maintain its grand entrance, or make it "fancier." In subdividing Manana, its owners included the driveway in the 1666 EVR parcel because it would not otherwise comply with a Montecito minimum parcel size requirement. McClung also testified that the Manana estate did not have a gate when she resided there but that "putting up a gate would [not] matter one way or another as long as everyone had gate keys or [passes]."
Further, substantial evidence supports the trial court's finding that mutual mistake necessitated reformation of the 1972 Williams deed. (See Ramirez v. Mookini (1962) 207 Cal.App.2d 42, 50-51.) Based upon its findings, the court properly exercised its equitable powers and reformed that deed to reflect "that the 56 foot wide 'driveway' easement described therein carries with it all rights as are commonly allowed for a non-exclusive 56 foot wide grand entrance driveway purposes in Montecito, including ingress and egress, parking, washing of cars, recreation, installation of gates, paving and curbing and that the rights thereto in favor of [1676 EVR] include having the 'driveway' easement area fenced off from the house at 1666 [EVR], the construction and maintenance of the walls announcing the entrance to Manana, planting, pruning and maintaining mature and tall plantings at the east and west edges of the 56 foot wide entrance, whether located within the 'driveway' easement boundaries or immediately adjacent thereto, provided only that reasonable access for ingress and egress and access purposes is allowed to the servient tenement, including access through any gates subsequently installed."
Injunctive Relief
Dillon also challenges the judgment provision for the following injunctive relief: "[T]he court permanently orders that [Dillon] and all her agents... are permanently enjoined from altering in any way any plants, shrubs, trees, improvements, paving pipes or structures in that certain 56 foot wide 'driveway easement and prescriptive easement, and from impeding or impairing [the Welshes'] access to that 'easement'... and from entering onto 1676 [EVR]."
Dillon claims that the court erred by granting such relief because it thereby created an exclusive easement for respondent. She makes the related argument that the language "non-exclusive easement" throughout the judgment is meaningless, in view of the "injunctive relief preventing [her] from doing things that the 1676 owners [the Welshes] are allowed to do." We disagree.
Civil Code section 3422 provides that "a final injunction may be granted to prevent the breach of an obligation... [w]here the restraint is necessary to prevent a multiplicity of judicial proceedings...." Here, the trial court heard evidence to support findings that the 1676 EVR owners had exclusive control over, and responsibility for maintaining the easement, its landscaping and hardscape. It also found that during Dillon's occupation and ownership of 1666 EVR, she interfered with such rights by removing plants from the driveway easement, and (through her agents) entering 1676 EVR and trimming a hedge, and otherwise interfering with their maintenance and modification of the easement, its hardscape and landscaping. Having found that Dillon interfered with the Welshes' use of the easement, the court reasonably granted the challenged injunctive relief to prevent a multiplicity of judicial proceedings.
The Judgment Requires Clarification
Dillon claims that the judgment must be reversed because it was "hopelessly inconsistent, " and that it provided inconsistent remedies resting on inconsistent findings. We reject those claims.
Dillon argues that while the judgment purports to grant the Welshes rights under nonexclusive easements, in effect it grants them exclusive rights and removes Dillon's rights to use the easement property. It appears that the trial court intended that the easements be nonexclusive, with limited exceptions providing the Welshes with exclusive control over the easement landscaping and hardscape, including the fences separating it from 1666 EVR. The judgment provided that Dillon (as owner of 1666 EVR) could continue to use the easement for "driveway purposes." If the easements are nonexclusive, 1666 EVR should have the right to do many of the same things as 1676 EVR in the driveway (e.g., washing cars, and recreation) provided it does not interfere with the right of 1676 EVR to maintain its "grand entrance." We direct the trial court to revise the judgment to clarify the nature of 1666 EVR's use of the easement for driveway purposes and specify which activities can be exercised exclusively by 1666 EVR or 1676 EVR, respectively, and which activities can be exercised nonexclusively by both 1666 EVR and 1676 EVR.
In addition, the judgment requires clarification concerning any gates that may be installed. The record suggests that any installed gate would be quiet, and that Dillon would be provided the means to enter the gate. However, the judgment is less specific than the record in this regard. It simply grants the Welshes the right to install gates, with the proviso "that reasonable access for driveway purposes is allowed to [1666 EVR], including access through any installed gates, so long as such use does not damage or unreasonably interfere with the grand entrance of [1676 EVR]."
In view of the history of the driveway easement, which has been open to 1666 EVR owners (who own and pay taxes on the property), the judgment should provide that any installed gate be remotely accessible by 1666 EVR, and that 1676 EVR maintain any installed gate or gates and provide a means for its immediate repair. In addition, the judgment should require any installed gate or gates to operate quietly, as the Welshes' architect described in the record, and hold 1676 EVR responsible for maintaining its continued quiet operation. We direct the trial court to revise the judgment upon remand to clarify these issues.
DISPOSITION
We remand this matter to the trial court for revision and clarification. In all other respects, the judgment is affirmed.
Each party shall bear its own costs.
We concur: GILBERT, P.J., PERREN, J.