NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
LAWRENCE MCNUTT et al.,
Plaintiffs and Appellants,
NOAH MACKENROTH et al.,
Defendants and Respondents.
(Super. Ct. No. SCV0030548)
Plaintiffs Lawrence and Gia McNutt sued their neighbors, Noah and Nancy Mackenroth, claiming a prescriptive easement over a privately owned road that traverses the Mackenroths’ property in Newcastle, California.1 Following a bench trial, the trial court found the McNutts failed to prove the elements of a prescriptive easement by clear and convincing evidence, and entered judgment in the Mackenroths’ favor.
On appeal, the McNutts challenge the judgment as unsupported by substantial evidence. We conclude that substantial evidence supports the trial court’s determination that the McNutts failed to prove the elements of the asserted easement by clear and convincing evidence. Accordingly, we will affirm.
Where the losing party in the trial court challenges a judgment as lacking substantial evidence to support it, “ ‘we look only to the evidence supporting the prevailing party. [Citation.] We discard evidence unfavorable to the prevailing party as not having sufficient verity to be accepted by the trier of fact.’ ” (Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449 (Felgenhauer).) This standard of review affects our statement of the facts, and accordingly, “we recite the facts in the light most favorable to the prevailing party, giving that party the benefit of every reasonable inference, and resolving conflicts in support of the judgment.” (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 747.)
The Parties’ Properties and Chaparral Lane
Chaparral Lane is a privately owned, “dead-end” road in rural Newcastle. Chaparral Lane provides ingress and egress to several property owners, including the Mackenroths, who own the real property known as 7155 Chaparral Lane (Mackenroth Property). The Mackenroths have lived at the Mackenroth Property since 1997.2
The Mackenroth Property was the last home on Chaparral Lane until the late 1980s, when the road was extended eastward, beyond the Mackenroth Property and over a creek known as George’s Creek or George’s Ravine. Chaparral Lane now serves two homes to the east of the Mackenroths: The home of Jeffrey Wilson, who has lived on Chaparral Lane since 1994, and the former home of Peter Franks, who lived on Chaparral Lane from 2002 to 2012. Chaparral Lane was paved in 2002.
The McNutts live at 330 Floral Lane (the McNutt Property). The McNutt Property lies to the south of Chaparral Lane, and does not touch the road at any point. The closest the McNutt Property comes to Chaparral Lane is approximately 10 to 15 feet. The McNutts have lived at the McNutt Property since 1996.
George’s Ravine flows generally south to north through the McNutt Property, dividing the property into east and west sides. When the McNutts purchased the McNutt Property in 1996, they were unable to move tractors or heavy equipment from one side of George’s Ravine to the other without leaving the McNutt Property on one side, crossing over the creek on Chaparral Lane, and reentering the McNutt Property on the other side. In 2001 or 2002, the McNutts installed their own culverts in George’s Ravine, so they could move tractors and heavy equipment from one side of their property to the other without the necessity of using Chaparral Lane.
An unpaved trail runs across the McNutt Property, connecting with Chaparral Lane at the Mackenroth Property. An old image from Google Earth shows the trail connecting with an as yet unpaved Chaparral Lane, suggesting that the trail existed before Chaparral Lane was paved in 2002. However, no such trail was visible from Chaparral Lane. To the contrary, the northern boundary of the McNutt Property was overgrown with blackberry bushes and other vegetation until sometime in the mid-2000s.
The McNutt Property is served by a well. The well is situated in the northwest corner of the McNutt Property, near the point at which the trail connects with Chaparral Lane.
The McNutts’ Use of Chaparral Lane
Lawrence, the sole witness for the McNutts, testified that he had used Chaparral Lane consistently since 1996. Lawrence described four types of uses. First, Lawrence testified that he used Chaparral Lane to move his tractor from one side of the McNutt Property to the other. Second, Lawrence testified that he directed well service technicians to use Chaparral Lane to access the well on the McNutt Property. Third, Lawrence testified that he used Chaparral Lane to travel to and from work. Fourth, Lawrence testified that he used Chaparral Lane recreationally, for jogging, biking, and walking. We elaborate on each asserted use below.
During the trial, Lawrence testified that he regularly used Chaparral Lane to move his tractor when clearing brush or hauling wood on the McNutt Property. However, Lawrence acknowledged that no one had ever seen him operating his tractor on Chaparral Lane. Although Noah was generally aware that Lawrence had operated his tractor on Chaparral Lane, he never saw him do so, and understood that the use was occasional, rather than continuous.
Although neither saw Lawrence operating his tractor on Chaparral Lane, neighbors Wilson and Frank both recalled seeing tractor tracks on the newly paved road in 2002. Wilson testified that he saw tractor tracks several times, though “[n]ot on a consistent basis.” Frank testified that he saw tractor tracks “a handful of times.”
Wilson and Frank complained to Noah’s uncle, David Mackenroth. David, an attorney who also lives on Chaparral Lane, sent Lawrence a letter on November 7, 2002. The letter states in pertinent part: “Several of the owners of the private driveway called ‘Chaparral Lane’ have complained to me that apparently you are using heavy equipment to operate across Chaparral Lane to get around George’s Creek. The tire marks are obvious. As you may have observed, the owners of Chaparral Lane private driveway had it recently improved with asphalt and with a slurry finish all of which has now been marred in part by your equipment operating on Chaparral Lane.”
The letter continued: “It is my understanding you own land adjacent to our private driveway and have occasionally used it for your benefit in improving your property. We all want to be good neighbors, but unfortunately when people take advantage of using someone else’s property without first asking permission, it raises serious questions as to neighbor intent. Accordingly, so there is no misunderstanding as to your rights to use Chaparral Lane private driveway, this letter is to serve as formal notice that you are not authorized to use it for any purpose.”
During the trial, Lawrence acknowledged that he stopped using Chaparral Lane to move his tractor shortly after receiving David’s letter in 2002, but denied that the change had anything to do with David’s letter. Lawrence explained that he stopped using Chaparral Lane because he completed the installation of his own culverts, which allowed him to move his tractor over George’s Ravine without leaving the McNutt Property. According to Lawrence, he continued to use Chaparral Lane for a number of other things, in spite of David’s letter.
During the trial, Lawrence testified that service technicians used Chaparral Lane to access the well on the northwest corner of the McNutt Property. Lawrence explained that the trail running across the McNutt Property was too steep for larger service trucks. Consequently, Lawrence directed service technicians to use Chaparral Lane to access the well. Lawrence estimated that he directed service technicians to use Chaparral Lane to access the well on seven to 12 occasions since 1996. Neither of the Mackenroths had ever seen a well service truck access the McNutt Property from Chaparral Lane.
Lawrence addressed the use of Chaparral Lane by service technicians in a letter to David dated March 31, 2006.3 The stated purpose of the letter was to “make [Lawrence’s] family’s intention clear and to request that [David] do the same.” In the letter, Lawrence wrote: “As you are aware, Chaparral [L]ane was the only access to the portion of our property [e]ast of George’s Ravine and is currently the only access to our well when maintenance is required. While we are working to improve access to our well through Floral [L]ane we do not anticipate completing this improvement for another year or two as we work out easements with our neighbors to the [e]ast of us. Over the long term our interest in using Chaparral [L]ane is for emergency ingress and egress to our property when Floral [L]ane is blocked. This is the extent of our interest in Chaparral [L]ane.” The letter, which appears to have been precipitated by a disagreement with Frank, seeks David’s “approval to use Chaparral [L]ane for the purposes [Lawrence] outlined.” Lawrence did not receive a response.
During the trial, Lawrence testified that he regularly used Chaparral Lane to provide secondary access to the McNutt Property when commuting or delivering materials to the northern portion of the property. Lawrence estimated that he used Chaparral Lane as part of his commute approximately 20 percent of the time.
During the period from 1996 through 2010, Lawrence typically left for work at 4:00 a.m. and returned to the McNutt Property between 7:00 p.m. and 9:00 p.m. Lawrence testified that he installed a metal gate on the McNutt Property at the access point onto Chaparral Lane in August or September 2011.
During the trial, the Mackenroths and several of their neighbors testified that, prior to the litigation, they never saw Lawrence or Gia driving on Chaparral Lane. The Mackenroths explained that their home sits atop a steep hill, offering a clear view of Chaparral Lane. As a result, Noah said, “we have an excellent vantage point of people coming and going. And we hear them gearing up well before they even get to us.” The Mackenroths added that they are very aware of traffic on Chaparral Lane, as they have few neighbors and an inquisitive dog, which had a tendency to chase cars and trucks. The Mackenroths also explained that they have each kept irregular hours over the years, such that they would have been awake and aware of people coming and going on Chaparral Lane in the early morning hours. Even so, they had never seen Lawrence or Gia driving on Chaparral Lane.
Wilson, who lives next door to the Mackenroths and knows the McNutts socially, testified that he also enjoys a commanding view of Chaparral Lane from his living room, and can see cars coming and going, day or night. “And being in the country,” Wilson added, “you’re always aware of cars, particularly at night . . . .” Even so, Wilson said, he had never seen Lawrence or Gia driving on Chaparral Lane.
Longtime resident Victoria Croall, who has walked along Chaparral Lane for exercise since 1987, testified that the access point onto the McNutt Property was overgrown with blackberries and impassable to vehicular traffic until 2007 or 2008. Although the area was eventually cleared, and the metal gate installed, Croall never saw anything to suggest that vehicles regularly accessed Chaparral Lane from the McNutt Property. Croall testified that she saw Lawrence driving along Chaparral Lane once, approximately five weeks before the trial. Otherwise, she had never seen Lawrence or Gia on Chaparral Lane.
Other residents similarly testified that the access point appeared impassable to vehicular traffic and, in any case, they never saw Lawrence or Gia driving along Chaparral Lane. Even Lawrence admitted that he only drove on Chaparral Lane “a couple of times” in his March 31, 2006, letter to David. There, he wrote: “During a several week period I had also driven home on Chaparral [L]ane a couple of times. My intentions were as innocent as playing a game with my kids. We had seen a fox on Chaparral [L]ane one night so often when we are driving home after dark our boys ask us to drive on the wild animal road (Chaparral [L]ane). I understand this is not a valid reason to drive on Chaparral [L]ane and will no longer drive on the road when not absolutely necessary.”
Finally, Lawrence testified that he regularly jogs or bikes on Chaparral Lane in the early morning hours, typically before 6:00 a.m. However, the Mackenroths and several of their neighbors testified that they never saw Lawrence biking or jogging on Chaparral Lane. Some witnesses, including Noah and Nancy, testified that they were frequently awake in the early morning hours. For example, Nancy testified that she routinely drove her developmentally disabled uncle along Chaparral Lane between 5:30 a.m. and 6:00 a.m. over a period of approximately three years beginning in December 2008. Even so, no one ever saw Lawrence biking or jogging on Chaparral Lane. Lawrence, for his part, testified that in all the time he allegedly used Chaparral Lane, he never stopped and talked to anyone, except on one occasion, and he could not remember who that person was, or where he or she lived.
The Metal Gate
As noted, Lawrence installed a metal gate on the McNutt Property at the access point with Chaparral Lane in August or September 2011. Shortly thereafter, Noah telephoned Lawrence and learned, for the first time, that Lawrence believed he had a right to use Chaparral Lane.
On September 14, 2011, Noah sent Lawrence a letter stating, in pertinent part: “Regarding access to or from your property across our property, you mentioned the possible need to do so in an emergency, such as a fire. If you or your family are (sic) ever faced with a threat to life or limb, and need to escape across our property, please do so! Regarding access across our property in other situations, feel free to contact us; we may choose to grant you access, or we may not, the decision being entirely at our discretion. But please understand: You have no right to enter/access/use our property without our permission.”
A short time later, the Mackenroths erected an earthen berm with large boulders on the disputed area of Chaparral Lane, thereby preventing egress and ingress to the McNutt Property. The McNutts brought suit shortly thereafter.
The McNutts filed their complaint on January 26, 2012. The complaint asserts a prescriptive easement over the portion of Chaparral Lane that traverses the Mackenroth Property. The complaint also seeks declaratory relief.
The matter was tried over two days beginning on October 22, 2013. On November 26, 2013, the trial court filed a statement of decision and judgment finding that a prescriptive easement was not proven. The statement of decision explains: “From the evidence presented at trial, the Court finds that although the plaintiffs may have, on occasion, driven up or down Chaparral Lane to access their property, that use was infrequent and irregular. Further, the Court found incredible the plaintiff’s claim that he regularly walked, jogged or rode his bike on Chaparral Lane, under cover of darkness and up to three times a week. Persuasive to the Court was the credible testimony of the defendants and other residents of Chaparral Lane, many of whom did regularly walk or use the road, that they had never seen the plaintiffs on the road.”
The McNutts filed a timely notice of appeal.
Governing Law and Standard of Review
“An easement is an interest in the land of another, which entitles the owner of the easement to a limited use or enjoyment of the other’s land. [Citations.] [¶] An easement creates a nonpossessory right to enter and use land in another’s possession and obligates the possessor not to interfere with the uses authorized by the easement. [Citation.]” (12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 382, p. 446.) “An easement may be created by (1) an express grant, (2) an express reservation, (3) an implied grant, (4) an implied reservation, (5) necessity, (6) prescription, (7) a recorded covenant, (8) dedication, (9) condemnation, (10) estoppel, or (11) a court decision . . . .” (6 Miller & Starr, Cal. Real Estate (4th ed. 2015) § 15:13, p. 15-64.)
“The elements necessary to establish a prescriptive easement are well settled. The party claiming such an easement must show use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years. [Citations.] Whether the elements of prescription are established is a question of fact for the trial court [citation], and the findings of the court will not be disturbed where there is substantial evidence to support them.” (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570 (Warsaw).)
In the trial court, the elements of a prescriptive easement must be established by clear and convincing evidence, and “ ‘if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.’ ” (Connolly v. Trabue (2012) 204 Cal.App.4th 1154, 1162, quoting Applegate v. Ota (1983) 146 Cal.App.3d 702, 708.) In this court, “[t]he usual rule of conflicting evidence is applied, giving full effect to respondents’ evidence, however slight, and disregarding appellant’s evidence, however strong.” (Ibid.) “ ‘Where the trial court . . . has drawn reasonable inferences from the evidence, we have no power to draw different inferences, even though different inferences may also be reasonable. [Citation.] The trier of fact is not required to believe even uncontradicted testimony. [Citation.]’ ” (Felgenhauer, supra, 121 Cal.App.4th at p. 449.) The same substantial evidence standard of review applies where, as here, the trial court’s findings of fact are embodied in a statement of decision. (Brewer v. Murphy (2008) 161 Cal.App.4th 928, 935.)
B. Substantial Evidence Supports the Trial Court’s Determination That the McNutts Failed to Sustain Their Burden of Proving a Prescriptive Easement by Clear and Convincing Evidence
The McNutts contend the trial court erred in finding there was no prescriptive easement appurtenant to the McNutt Property.4 We are not persuaded.
The trial court’s finding that the McNutts failed to sustain their burden of proof was supported by evidence that they rarely used Chaparral Lane. Although Lawrence used Chaparral Lane “a handful of times” to move his tractor, he acknowledged that he stopped using the road for this purpose when he installed his own culverts on the McNutt Property. Similarly, though Lawrence may have directed service technicians to use Chaparral Lane to access his well, he estimated having done so no more than 12 times in the space of 17 years, or once every 1.4 years. Thus, Lawrence’s own testimony supports the trial court’s determination that the McNutts’ use of Chaparral Lane was “infrequent and irregular.”
Additional substantial evidence supports the trial court’s determination that the McNutts’ use of Chaparral Lane was “infrequent and irregular.” Although Lawrence testified that he regularly used Chaparral Lane for commuting, neither the Mackenroths nor any of the half dozen neighbors who testified on their behalf had ever seen him driving by. Similarly, though Lawrence testified that he continuously used Chaparral Lane for bicycling and jogging in the early morning hours, no one had ever seen him do so. The trial court, as the exclusive judge of credibility, was free to reject Lawrence’s testimony in favor of the many other witnesses, all longtime residents of Chaparral Lane, who testified that they had never seen the McNutts use Chaparral Lane before. (See Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028 [the trier of fact is not required to believe even uncontradicted testimony].)
The McNutts perceive a tension between the defense testimony that no one had ever seen the McNutts on Chaparral Lane, and the testimony of many witnesses that they did not meet the McNutts until after the litigation commenced. Under these circumstances, we see no issue with the witnesses’ identification of the McNutts as people they had never seen on Chaparral Lane, even though many of these witnesses were able to identify the McNutts in this fashion while maintaining the McNutts were unknown to them during the relevant time period. As noted, Chaparral Lane runs through a rural neighborhood, inhabited by longtime residents. The Mackenroths and most of the witnesses who testified on their behalf have lived on Chaparral Lane for decades. Noah testified that he sees unfamiliar cars on Chaparral Lane approximately once or twice a year. A number of witnesses testified that they are very aware of people coming and going on Chaparral Lane. Under the circumstances, we have no reason to doubt the veracity of the defense testimony that no one had ever seen the McNutts on Chaparral Lane, despite the fact that many of these same witnesses never met the McNutts or met them after the litigation began. In any case, the trial court was in the best position to assess the credibility of the defense witnesses. We decline the McNutts’ invitation to reweigh the evidence.
The McNutts observe that the Mackenroths were aware of Lawrence’s occasional use of Chaparral Lane in 2001 and 2002. They note that Noah’s brother, Joshua, wrote a letter dated March 19, 2001, with a copy to Noah, stating that Lawrence was not to use Chaparral Lane “without [their] prior express permission.” They also note that Noah was copied on David’s letter of November 7, 2002, which purported to “serve as formal notice that [plaintiffs were] not authorized to use [Chaparral Lane] for any purpose.” They also note that Frank testified to having seen Lawrence’s tractor tire tracks on Chaparral Lane “a handful of times” in 2002. However, the foregoing evidence only establishes that Lawrence used Chaparral Lane occasionally or intermittently for a brief period of time. The trial court could reasonably conclude, on this record, that such “infrequent and irregular use” was insufficient to establish a prescriptive easement. (See Warsaw, supra, 35 Cal.3d at p. 570 [whether the elements of a prescriptive easement—including the element of continuous use—have been established is a question of fact for the trial court].)5
The McNutts also argue the trial court erred in relying on Lawrence’s March 31, 2006, letter. In the letter, Lawrence wrote that Chaparral Lane “is currently the only access to our well when maintenance is required. While we are working to improve access to our well through Floral [L]ane,” Lawrence continued, “we do not anticipate completing this improvement for another year or two as we work out easements with our neighbors to the [e]ast of us.” According to the McNutts, the preceding sentence should have put the Mackenroths on notice that the McNutts claimed an adverse interest in Chaparral Lane. However, the very next sentence specifically disclaims any such interest: “Over the long term our interest in using Chaparral [L]ane is for emergency ingress and egress to our property when Floral [L]ane is blocked. This is the extent of our interest in Chaparral [L]ane.” Although Lawrence’s letter can be understood as signaling an adverse intention to use Chaparral Lane for periodic well maintenance for “another year or two,” the trial court could reasonably conclude that any such use would also be “infrequent and irregular,” particularly inasmuch as Lawrence testified that service technicians only used Chaparral Lane to access the well on seven to 12 occasions since 1996. Furthermore, the trial court could reasonably conclude that the letter affirmatively disclaimed any assertion of an adverse claim of right. We therefore reject the McNutts’ contention that the trial court erred in relying on the letter.6
The McNutts fault the trial court for failing to give due consideration to the Google Earth image showing the McNutts’ trail connecting with Chaparral Lane. The trial court, as the trier of fact, was in the best position to evaluate such evidence. We note, however, that the Google Earth image only shows an aerial view of the access point between the McNutt Property and Chaparral Lane. The Google Earth image does not inform the viewer of conditions on the ground, and does not necessarily contradict the testimony of the numerous residents who said that the access point was overgrown with blackberries and impassable to vehicles. Moreover, and more important, the image only captures a moment in time: The image does not, without more, establish the elements of a prescriptive easement. In any case, we decline the McNutts’ invitation to reweigh the evidence.
Finally, the McNutts challenge the trial court’s observation that, “even if the plaintiffs did occasionally walk, jog, ride a bike, or drive down the lane as a scenic route for their children, the use was more of neighborly accommodation, rather than hostile.” Specifically, the McNutts argue that their use of Chaparral Lane could not have been a matter of neighborly accommodation, as there was no evidence that the use was permissive. We agree with the McNutts that the record does not support the trial court’s characterization of their recreational use of Chaparral Lane as analogous to a neighborly accommodation. Even so, we perceive no reversible error.
To establish a prescriptive easement, the adverse user “ ‘ “must unfurl his flag on the land, and keep it flying, so that the owner may see, if he will, that an enemy has invaded his domains, and planted the standard of conquest.” ’ ” (Myran v. Smith (1931) 117 Cal.App. 355, 362, quoting Curtis v. La Grande Water Co. (S. Ct. Or. 1890) 23 P. 808, 810.) Here, Lawrence’s testimony, if believed, established that he used Chaparral Lane for exercise and recreation “under the cover of darkness,” when he was unlikely to be seen. Prescriptive rights do not arise if an adverse use was hidden, concealed, or clandestine. (Connolly v. McDermott (1984) 162 Cal.App.3d 973, 977; Costello v. Sharp (1924) 65 Cal.App. 152, 157.) On the record before us, the trial court’s observation that the asserted recreational use was “more of neighborly accommodation, rather than hostile,” though technically incorrect, was consistent with the conclusion that the McNutts failed to establish an open and notorious adverse use. As we have already established, the trial court’s determination that the McNutts failed to establish the elements of a prescriptive easement by clear and convincing evidence was supported by substantial evidence. The trial court’s inapt analogy to the concept of neighborly accommodation does not change our conclusion.
The judgment is affirmed. The Mackenroths shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
NICHOLSON, Acting P. J.
1 When referring to the parties individually, we will use their first names for clarity. To avoid confusion, we will also refer to Noah’s uncle and brother, who testified at the trial and share a last name, by their first names.
2 The Mackenroth Property was originally owned by Noah’s father. Noah previously lived at the Mackenroth Property from 1979 to 1984.
3 Although the letter is signed by Lawrence and Gia, Lawrence testified that he was the primary author.
4 As noted, the McNutts claim to have used Chaparral Lane continuously from 1996 through 2011. On appeal, the McNutts have divided this 15 year period into three five year intervals (1996 through 2001, 2001 through 2006, and 2006 through 2011). Although the statutory period for a prescriptive easement is five years (Civ. Code, § 1007; Code Civ. Proc., § 321), we do not believe that a temporal parsing of events into five year periods is helpful or necessary on the record before us. We therefore consider the evidence as a whole, not as five year segments.
5 The McNutts take the trial court to task for failing to specifically mention Lawrence’s tractor use in the statement of decision. The statement of decision implicitly refers to Lawrence’s tractor use when it says, “although the plaintiffs may have, on occasion, driven up or down Chaparral Lane to access their property, that use was infrequent and irregular.” That the trial court did not specifically use the word “tractor” is immaterial. (Code Civ. Proc., § 632 [a statement of decision must set out the legal and factual basis of each principal controverted issue]; Kuffel v. Seaside Oil Co. (1977) 69 Cal.App.3d 555, 565-566 [the court is not required to explain how it resolved subsidiary matters even if they are material to the ultimate issues].)
6 The McNutts also argue that the trial court erred in relying on the letter because they had already perfected their right to a prescriptive easement prior to the time they wrote the letter. As previously discussed, substantial evidence supports the trial court’s contrary determination.