Save the Altadena Trails v. Traylor
Court of Appeal, Second District, Division 2, California
2006 WL 3735518
Dec. 20, 2006
Summary of Opinion
In this case plaintiffs, residents that shared a common driveway which had been used by the public since the 1800’s. Public use ranged from visits to the graves of John Brown and his brother to access to the Angles National Forest. Defendants claimed an implied-in-law use. The trial court upheld the use and this court agrees allowing non-motorized traffic including bicycles and horses.
Text of Opinion
Defendants and appellants Wayne and Mary Traylor, Jerome and Verna Cooper and John and Melody Mitchell (collectively appellants) appeal from the trial court's judgment in favor of plaintiffs and respondents Save the Altadena Trails, Shari Asplund, Scott Baggs and Evangeline Whitehead (collectively STAT) granting the public an implied-in-law easement over a portion of a road serving as a common driveway and prohibiting appellants from interfering with the public's use. Appellants contend that the trial court denied them their right to a jury trial and that the judgment is not supported by substantial evidence. Because appellants had no right to a jury trial in this action in equity and the evidence amply supported the judgment, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Location of the Common Driveway.
The roadway in dispute is located near the foothills of the San Gabriel Mountains at the northwestern edge of the unincorporated community of Altadena. The area--commonly referred to as "the Meadows"--consists of a plateau bounded by Millard Canyon to the east, Arroyo Seco Canyon to the south and El Prieto Canyon to the west. The Meadows divides into a large flat table in the southern part and, in the north, a ridge leading up to the lower slopes of Brown Mountain. The El Prieto Fire Road runs through the Meadows, beginning at Rising Hill Road at the south end and intersecting the Lower Brown Mountain Fire Road toward the north. The lower part of the El Prieto Fire Road was formally dedicated to the county in the 1950's and is now a graded, county-maintained roadway known as El Prieto Road. The upper part of the El Prieto Fire Road (Fire Road) provides access to the Angeles National Forest.
A 200-foot roadway (Common Driveway) marks the northern end of El Prieto Road and the southern end and beginning of the Fire Road. The northwest portion of the Common Driveway is part of the property owned by appellants Wayne and Mary Traylor and the southeast portion is part of the property owned by appellants Jerome and Verna Cooper and John and Melody Mitchell. Appellants' three residences form somewhat of a cul-de-sac adjacent to the Common Driveway.
Use of the Common Driveway.
Use before 1955.
The Fire Road has some historical significance. Owen and Jason Brown, two sons of abolitionist John Brown, moved to Pasadena in the early 1880's. Tourists and citizens were anxious to meet them and often visited them. The Brown brothers originally purchased a homestead at the western end of the Meadows and built a cabin there. In 1887, they built another cabin on a mesa overlooking the upper reaches of El Prieto Canyon.
When Owen Brown died in 1889, there was a large funeral in Pasadena which culminated in a procession of horse-drawn vehicles heading up to an area of the Meadows known as Little Round Top. In 1898, Owen Brown's grave marker was replaced with an inscribed Arroyo boulder at a ceremony attended by over 300 people. Then in 1900, individuals from Pasadena and Los Angeles made a pilgrimage to Owen Brown's grave to celebrate John Brown's 100th birthday. They picnicked that day at or near an abandoned homestead.
The road to Owen Brown's cabin and gravesite matches the Fire Road. There is no indication that the individuals who participated in these pilgrimages needed to obtain permission from anyone to use the road.
For many years hikers continued to make pilgrimages to Owen Brown's grave. Between 1890 and 1940, Edward Simmons voluntarily maintained Owen Brown's gravesite, traveling in his truck up a "narrow, winding road which Jason and Owen Brown built with pick, shovel and wheelbarrow 60 years ago.... It originally led to the Brown cabin on the south side of Echo Mountain." In the 1940's, the Southern California Edison Company used the same road to reach its power line.
Use between 1955 and 1972.
To allow for residential development of the area in 1955, El Prieto Road below the Common Driveway was relocated approximately 200 feet to the west. There is no indication that the Fire Road was similarly relocated.
Between 1955 and 1972, several previous and current residents of El Prieto Road used the Common Driveway for recreational purposes. Between 1960 and 1971, Roger Gray lived three or four houses from the Common Driveway and would frequently use it to walk to the Fire Road with his friends. James Bell began using the Common Driveway to access the Fire Road in 1956 and would usually see others on the Fire Road during his walks. Between 1956 and 1970, he used the Common Driveway at least two times per month and at least once a week after 1970.
Similarly, between 1962 and 1973, El Prieto Road resident Eichenbaum Gravenburg used to walk up the Common Driveway and Fire Road several times per month; he considered the area his playground. During the same time period, he regularly saw local residents and hikers from outside the neighborhood use the Common Driveway. After 1973, when he did not live in the area full time, he would continue to use the Common Driveway and Fire Road whenever he came to visit, and he saw that others continued to do so as well.
Evangeline Whitehead, who had lived on El Prieto Road since 1967, regularly walked up the Common Driveway and Fire Road with her family from the time she moved in and encountered numerous other individuals when on the Fire Road. Earline Dye, who had lived on El Prieto Road for 39 years, similarly observed that during the entire time she had lived on El Prieto Road individuals would walk across the Common Driveway and onto the Fire Road. Between 1965 and 1974, former El Prieto Road resident Artie Morris and her children often used to walk up the Common Driveway and Fire Road and would regularly encounter hikers when they did so.
The individuals who used the Common Driveway did not believe they needed anyone's permission to do so.
Use between 1972 and 1999.
Many of these individuals continued using the Common Driveway to access the Fire Road into the 1990's. James Bell continued to walk across the Common Driveway and hike up the Fire Road once a week between 1972 and 1986. Between 1972 and 1999, Evangeline Whitehead observed one to two people each day going across the Common Driveway to the Fire Road. After Raymond Bacces moved in with Ms. Whitehead, he hiked across the Common Driveway and up the Fire Road daily between 1992 and 1999. El Prieto Road resident Silvera Grant regularly used the Common Driveway to hike up the Fire Road between 1978 and 1983, and continued to do so occasionally between 1983 and 1999. He frequently encountered others on the Fire Road. George Kimble and his children continued to use the Common Driveway to access the Fire Road through the 1980's.
Between 1990 and 1999, El Prieto Road resident Scott Baggs would see at least two mountain bikers everyday coming down from the Fire Road across the Common Driveway. Although appellant Verna Cooper had observed members of the public using the Common Driveway during the 1970's and 1980's, she and appellants Wayne and Mary Traylor noticed that their use increased during the 1990's. Appellant Jerome Cooper similarly observed members of the public using the Common Driveway on a consistent basis throughout the 1980's and 1990's.
Access to the Common Driveway.
As of 1958 there was no gate across the Common Driveway. In the 1960's or 1970's, a yellow forestry gate (yellow gate) was erected at the start of the road, but it did not prevent pedestrian access to the Fire Road. In 1999, appellants contacted the Lincoln Avenue Water Company (Water Company) about installing a more effective gate. A contractor for the Water Company erected a black gate in place of the yellow gate, the difference being that the black gate prevented any pedestrian access.
In the 1960's and 1970's, residents surrounding the Common Driveway did not attempt to prevent others from using it. Appellants moved to El Prieto Road between 1976 and 1999. In the 1980's and 1990's, residents began periodically posting a "No Trespassing" sign near the yellow gate; the sign was regularly torn down or blown down by the wind.
Starting in 1998, one resident who lived adjacent to the Common Driveway began advising people they were on private property and asking them to leave. Over a six-year period, another resident advised several individuals not to use the Common Driveway.
In December 2002, STAT filed a verified complaint against appellants alleging causes of action for quiet title, declaratory relief and permanent injunction. The complaint sought a judgment that "the public is the owner of a non-exclusive easement, for public and recreational purposes, over the El Prieto Road Extension, and across the defendants' property" and an injunction prohibiting the defendants "from interfering with or obstructing the public's use of the said easement...." The complaint did not seek damages. Appellants filed a verified answer specifically denying the complaint's allegations and asserting several affirmative defenses. The answer did not contain a request for a jury trial.
Appellants filed a cross-complaint in February 2003. Two members of STAT, in their capacity as cross-defendants, filed a notice of posting jury fees in March 2004.
On April 5, 2004, the trial court bifurcated the equitable issue of an implied-in-law public dedication and denied appellants' request for a jury trial on that issue. To streamline the proceedings, the trial court further ordered the parties to prepare separate pleadings summarizing their trial evidence, to exchange the pleadings and to highlight any evidence which would be objected to or disputed. After the parties prepared the pleadings as directed, the trial court admitted them into evidence as exhibits.
During a two-day bench trial in May 2004, the trial court heard expert testimony from a historian as well as testimony from several individuals who resided near and used the Common Driveway for many years. The trial court filed its statement of decision on July 28, 2004. It found that "[t]he historic evidence establishes that the road was used by the general public to visit the Browns, attend the funeral of Owen Brown, and maintain and visit Owen's grave site atop a knoll above defendants' property, called Little Roundtop, in sufficient number and frequency for the public to acquire an easement for passage and recreational purposes." It further found that although the level of and reason for pedestrian traffic on the road changed over time, the evidence established that "there was always public access of some sort from what is now the end of El Prieto Road." With respect to the period between 1955 and 1972, the trial court found continual public use of the Common Driveway, characterizing as "significant the fact that no effort was made to obstruct access to that road." The trial court summarized: "In conclusion, based upon uncontradicted testimony of members of the public, and the historical and contemporary evidence presented at trial, the court finds that the public, without having asked or received permission, made continuous and uninterrupted use of the 200 feet of common driveway at the end of El Prieto Road, for a period of time in excess of five years preceding March 4, 1972, for public recreation purposes, and that there was no persuasive evidence of non-use of the access presented for the period 1972-1999 ."
The trial court ruled that this evidence was sufficient for the establishment of an implied-in-law public dedication. It concluded that evidence of the public's use prior to 1972 "was substantial, diverse and sufficient to convey to the owner notice that the public was using the passage as if it had a right so to do." It further found that the appellants did not meet their burden to show either evidence of non-use for a five-year period or that there was a bona fide attempt to prevent public use before 1999.
On the basis of these findings, the trial court ordered: "The public shall recover an implied-in-law easement for non-motorized recreational purposes over the common driveway of the defendants for access into the Angeles National Forest and defendants shall be restrained from interfering therewith." Also on July 28, 2004, it entered judgment as follows: "There exists in favor of the public and the court hereby quiets title to, an easement for public right-of-way and recreational purposes across the property presently owned by defendants...." After providing the legal description of the property, the trial court identified the physical scope of the easement, limited its use to non-motorized access and recreational purposes, and permanently enjoined appellants from interfering with the public's use of the easement, which included directing them to remove the western six feet of any barriers erected since 1999.
In September 2004, the trial court denied appellants' motion for a new trial. Thereafter, in April 2005, appellants dismissed their cross-complaint with prejudice and STAT subsequently filed a notice of entry of judgment. In June 2005, appellants filed a notice of appeal from the judgment.
Appellants challenge the judgment on two independent grounds. First, they contend that the trial court erred in denying their request for a jury trial. Second, they contend that the judgment is not supported by substantial evidence. We reject both contentions.
I.Appellants Were Not Entitled to a Jury Trial.
At a pretrial hearing, the trial court bifurcated the trial on the complaint and cross-complaint and denied appellants' request for a jury trial on the complaint. Having reviewed a number of cases involving court trials of claims for an implied-in-law public dedication, the trial court concluded that appellants were not entitled to a jury trial on STAT's complaint. We independently review the trial court's denial of appellants' request for a jury trial, as "[d]enial of the right to trial by jury is an act in excess of the court's jurisdiction and is reversible error per se. [Citations.]" (Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819, 863.)
The California Constitution guarantees the right to a jury trial in a civil action at law but not in an action in equity. (Cal. Const., art. I, 16; C K Engineering Contractors v. Amber Steel Co . (1978) 23 Cal.3d 1, 8; Martin v. County of Los Angeles (1996) 51 Cal.App.4th 688, 694.) "Where a case involves both equitable and legal causes of action, the trial court may bifurcate the case to try the equitable issues first, because resolution of the equitable issues may eliminate the need for a trial of the legal causes of action. [Citations.]" (Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 50.)
Determining whether an action is one to which the constitutional jury trial right attaches involves a historical inquiry as to whether the right existed in 1850, when the California Constitution was first adopted. (C K Engineering Contractors v. Amber Steel Co ., supra, 23 Cal.3d at p. 8.) " ' "If the action has to deal with ordinary common-law rights cognizable in courts of law, it is to that extent an action at law. In determining whether the action was one triable by a jury at common law, the court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case--the gist of the action. A jury trial must be granted where the gist of the action is legal, where the action is in reality cognizable at law." ' [Citation.] On the other hand, if the action is essentially one in equity and the relief sought 'depends upon the application of equitable doctrines,' the parties are not entitled to a jury trial. [Citations.]" (Id. at p. 9.)
Here, STAT sought to establish an implied-in-law public dedication of the Common Driveway. Sherwood v. Ahart (1917) 35 Cal.App. 84 (Sherwood ) appears to be the only California case to directly address the issue of whether a claim for an implied-in-law public dedication is legal or equitable. In Sherwood, the plaintiffs sought to establish that a wagon road commonly known as Brewer's road was a public highway and to prevent the defendant from interfering with their use and repair of the road. (Id. at pp. 84-85.) Following a bench trial, the trial court ruled that Brewer's road was a public highway which the plaintiffs had the right to enter and repair. (Id. at pp. 86-87.)
Addressing challenges to the judgment similar to those made here, the appellate court first found that substantial evidence supported the finding that Brewer's road was a public highway. Reciting specific testimony regarding various individuals' use of Brewer's road, the Sherwood court concluded: "The manner in which it [Brewer's road] became a public highway was through a dedication by the owner and acceptance by the public. Such dedication is implied from the long and continuous use of the said road with full knowledge of the land owners interested, without asking or receiving any permission, and without objection from anyone for a period of time beyond that required by law to bar the right of action. Under the authorities, it must be held that such long-continued use without objection, and with the acquiescence of the owners, raised the implication of dedication for such public purpose. [Citations.]" (Sherwood v. Ahart, supra, 35 Cal.App. at p. 85 .)
With respect to the defendant's claim that the trial court erred in denying his request for a jury trial, Sherwood held: "Neither was there any error on the part of the court in denying defendant's request for a jury to try the cause. This is not an action at law but one in equity, and, therefore, as to this question, the rule laid down in Meek v. De Latour [ (1905) ] 2 Cal . App. 261 [83 Pac. 300], and Loftus v. Fischer [ (1896) ] 113 Cal. 286 [45 Pac. 328], applies." (Sherwood, supra, 35 Cal.App. at p. 87.) The cases on which the Sherwood court relied more generally address the principle that there is no right to a jury trial in an action in equity. (See Loftus v. Fischer (1896) 113 Cal. 286, 288 [no right to a jury trial in a proceeding in equity to reform a contract]; Meek v. De Latour (1905) 2 Cal.App. 261, 263 [no right to a jury trial in an action in equity to abate a nuisance], disapproved on another point in Robinson v. Puls (1948) 28 Cal.2d 664, 666.)
Appellants have not directed us to any authority--nor have we located any-- abrogating the rule set forth in Sherwood that an action seeking an implied-in-law public dedication sounds in equity and does not trigger the constitutional right to a jury trial. Rather, this rule is supported by multiple out-of-state cases finding that the gist of an action for an implied-in-law public dedication is equitable. (See Agnew v. Haskell (Or.App.1984) 692 P.2d 650 [71 Or.App. 357, 359] [claim that a road was a public way by implied dedication is equitable in nature]; Lindner v. Hill (Tex.App. 4 Dist.1984) 673 S.W.2d 611, 616 ["the theory of implied dedication is based on the doctrine of equitable estoppel"]; Connell v. Baker (Mo.App.1970) 458 S.W.2d 573, 578 [implied or common-law dedication--the means by which a disputed way became a public road--is a doctrine premised on equitable estoppel or estoppel in pais]; Hackert v. Edwards (Conn.Sup.1961) 175 A.2d 381, 383 [22 Conn.Sup. 499, 504] ["An implied dedication, which arises by operation of law from the conduct of the owner of property, rests upon the broad common-law principle of equitable estoppel"]; Roundtree v. Hutchinson (Wash.1910) 107 P. 345, 346 [57 Wash. 414] ["An implied common-law dedication arises from some act or course of conduct from which the law will imply an intention, on the part of the owner of the property, to dedicate it to the public use.... 'It is not founded on a grant, nor does it necessarily presuppose one, but it is founded on the doctrine of equitable estoppel' "]; Schettler v. Lynch (Utah 1901) 64 P. 955, 956 [23 Utah 305] ["An implied dedication is founded on the doctrine of equitable estoppel"].)
Nor are we persuaded that STAT's claim was equivalent to one for a prescriptive easement--a claim for which there is a right to a jury trial. (See Arciero Ranches v. Meza (1993) 17 Cal.App.4th 114, 124-125 [concluding that establishment of a prescriptive easement would have been classified as an action at law in 1850, even though any injunction to enforce that right would have been classified as equitable relief]; Frahm v. Briggs (1970) 12 Cal.App.3d 441, 445 [same].) In Gion v. City of Santa Cruz (consolidated with Dietz v. King ) (1970) 2 Cal.3d 29 (Gion-Dietz ), the court explained that the elements required for a prescriptive easement and those required for an implied-in-law dedication are not coterminous. It cautioned: "In determining the adverse use necessary to raise a conclusive presumption of dedication, analogies from the law of adverse possession and easement by prescriptive rights can be misleading. An adverse possessor or a person gaining a personal easement by prescription is acting to gain a property right in himself and the test in those situations is whether the person acted as if he actually claimed a personal legal right in the property. [Citation.] Such a personal claim of right need not be shown to establish a dedication because it is a public right that is being claimed. What must be shown is that persons used the property believing the public had a right to such use. This public use may not be 'adverse' to the interests of the owner in the sense that the word is used in adverse possession cases." (Id. at p. 39; see also Applegate v. Ota (1983) 146 Cal.App.3d 702, 710 [a prescriptive easement must be based on one's individual use of the property rather than use as a member of the public].)
The same caution applies to comparing prescriptive easements and implied-in-law public dedications for the purpose of determining the right to a jury trial. The personal property right one seeks to gain through an action at law involving a prescriptive easement is different than the public right conferred by an implied-in-law public dedication. (Cf. Hanshaw v. Long Valley Road Assn. (2004) 116 Cal.App.4th 471, 481-482 [finding public dedication of road but not prescriptive easement].) Appreciating this distinction, Sherwood, supra, 35 Cal.App. at page 87 held that a claim for an implied-in-law public dedication is an equitable one for which there is no right to a jury trial. Consistent with Sherwood, cases over time involving claims for an implied-in-law public dedication have been tried to the court. (E.g., Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810, 819 (Blasius ); Bess v. County of Humboldt (1992) 3 Cal.App.4th 1544, 1547; Taper v. City of Long Beach (1982) 129 Cal.App.3d 590, 595; City of Long Beach v. Daugherty (1977) 75 Cal.App.3d 972, 979.)
We see no basis to depart from long-standing authority holding that there is no right to a jury trial on a claim for an implied-in-law public dedication. The trial court properly denied appellants' request for a jury trial on STAT's complaint.
II.Substantial Evidence Supported the Judgment.
Appellants contend that the evidence was insufficient to establish an implied-in-law public dedication of the Common Driveway. "A common law dedication may be express or implied. Express dedication arises where the owner's intent to dedicate is manifested in the overt acts of the owner, e.g., by execution of a deed. An implied dedication arises when the evidence supports an attribution of intent to dedicate without the presence of such acts. [Citations .].... A dedication is implied by law when the public use is adverse and exceeds the period for prescription." (Blasius, supra, 78 Cal.App.4th at p. 821.)
The specific requirements for dedications implied in law were set forth in Gion-Dietz, supra, 2 Cal.3d at page 39. These rules were abrogated by statute in 1972, but only prospectively. (Burch v. Gombos (2000) 82 Cal.App.4th 352, 356; Blasius, supra, 78 Cal.App.4th at pp. 822-823; see Civ.Code, § § 813, 1009.)
Effective March 4, 1972, the Legislature amended Civil Code section 813 to provide that a landowner's recording a notice of consent to public use for a described purpose constituted conclusive evidence that subsequent use of the land was permissive, and enacted Civil Code section 1009, providing that public use of private real property after the effective date of the statute would not confer vested rights under the implied dedication doctrine unless a government entity expended public funds to improve or maintain the land for public use or the land lay within 1,000 yards of coastal waters. (Blasius, supra, 78 Cal.App.4th at pp. 822-823.)
Thus, STAT was required to demonstrate that it established the elements of an implied dedication before 1972.
Under Gion-Dietz, " 'What must be shown is that persons used the property believing the public had a right to such use. This public use may not be "adverse" to the interests of the owner in the sense that the word is used in adverse possession cases. If a trial court finds that the public has used land without objection or interference for more than five years, it need not make a separate finding of "adversity" to support a decision of implied dedication . Litigants, therefore, seeking to show that land has been dedicated to the public need only produce evidence that persons have used the land as they would have used public land.... If a road is involved, the litigants must show that it was used as if it were a public road.' " (Blasius, supra, 78 Cal.App.4th at p. 821, quoting Gion-Dietz, supra, 2 Cal.3d at p. 39.) "Litigants seeking to establish dedication to the public must also show that various groups of persons have used the land[,]" rather than "a limited and definable number of persons." (Gion-Dietz, supra, 2 Cal.3d at p. 39.) "The use must be substantial, diverse, and sufficient, considering all the circumstances, to convey to the owner notice that the public is using the passage as if it had a right so to do." (Blasius, supra, at p. 826, fn. 7.) Seasonal fluctuation in use of the land, however, "does not negate evidence of adverse user." (Gion-Dietz, supra, at p. 40.)
An implied dedication will not be found where the owner has granted a license to use the land. " 'The question whether public use of privately owned lands is under a license of the owner is ordinarily one of fact.... For a fee owner to negate a finding of intent to dedicate based on uninterrupted public use for more than five years, therefore, he must either affirmatively prove that he has granted the public a license to use his property or demonstrate that he has made a bona fide attempt to prevent public use.' [Citation.]" (Blasius, supra, 78 Cal.App.4th at p. 822.) The adequacy of an owner's efforts to halt public use depends on the relationship between the means used on the one hand and the character of the property and the extent of public use on the other. (Gion-Dietz, supra, 2 Cal.3d at p. 41.)
Once an implied dedication is established, it cannot be retracted. For example, in Gion-Dietz, despite the current property owners making clear their objections to public use of the property, the court stated: "Previous owners, however, by ignoring the wide-spread public use of the land for more than five years have impliedly dedicated the property to the public. Nothing can be done by the present owners to take back that which was previously given away." (Gion-Dietz, supra, 2 Cal.3d at p. 44; see also Bess v. County of Humboldt, supra, 3 Cal.App.4th at pp. 1548, 1550 [court found implied dedication on the basis of public use of the property in the 1930's, to which no objection was made until the mid-1980's].)
Here, appellants contend that the evidence was insufficient to show substantial and diverse use of the Common Driveway. They further assert that there was evidence of a bona fide attempt to prevent public use sufficient to defeat an implied dedication. Finally, they also contend that even if the evidence established an implied dedication, the scope of the easement ordered by the trial court exceeded the scope of previous public use.
" 'When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.' [Citations.]" (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) We must resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge in all legitimate and reasonable inferences to uphold the finding of the trial court. (Estate of Teel (1944) 25 Cal.2d 520, 527; Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874; accord, In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 358.) The trial court's ruling "is entitled to great deference because the trial judge, having been present at trial, necessarily is more familiar with the evidence and is bound by the more demanding test of weighing conflicting evidence rather than our standard of review under the substantial evidence rule. [Citations.]" (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078.)
Substantial evidence supported each of the trial court's challenged findings. (See, e.g., Escamilla v. California Dept. of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 514 [" ' "Substantial evidence" is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value' "].) With respect to the nature of the use of the Common Driveway, undisputed evidence supported the trial court's conclusion that there was substantial and diverse use of the Common Driveway for multiple five-year periods before 1972. Relying on the testimony of a qualified expert historian, as well as newspaper articles and photographs from the relevant time periods, the trial court found the historic evidence showed that between approximately 1880 and 1940 members of the general public used the Common Driveway and Fire Road to visit the Brown brothers, attend Owen Brown's funeral, and maintain and visit Owen Brown's gravesite "in sufficient number and frequency for the public to acquire an easement for passage and recreational purposes."
In their reply brief, appellants for the first time contend that the trial court abused its discretion in admitting evidence of use before 1955. They did not object to the admission of this evidence in the trial court. Acquiescence to the admission of evidence or failure to object to evidence in the trial court waives any objection on appeal. (Evid.Code, 353.)
The trial court further observed that while the evidence showed the traffic to and from the gravesite varied over time as the area developed, "there was always public access of some sort from what is now the end of El Prieto Road."
For the time period between 1955 and 1972, the trial court relied on the photographs of the area and the testimony of several previous and current area residents who had observed continual public use of the Common Driveway for the entirety of the approximate 20-year period. Indeed, the trial court commented in the statement of decision that it was "noteworthy that plaintiffs were able to produce multiple live witnesses who could actually testify to their, and others,' use of the [Common Driveway] for periods prior to 1972." It characterized their testimony as supporting the conclusion that the Common Driveway did not serve simply a driveway for three homes, but rather, functioned as "public access to the national forest...."
In addition, the trial court evaluated the evidence of use between 1972 and 1999 to determine whether there was any evidence that the implied public dedication had been extinguished by nonuse. (See Smith v. Ricker (1964) 226 Cal.App.2d 96, 99-100 ["a public interest acquired by occupancy and use, without a formal grant, may be extinguished by nonuser, relocation or other evidence of an intent to abandon"].) It concluded that the witnesses' undisputed testimony established that public use of the Common Driveway continued through 1999 without any significant interference or objection by appellants.
Substantial evidence in the form of historical documents, pleadings containing stipulated evidence and live witness testimony supported the trial court's conclusion "that the public, without having asked or received permission, made continuous and uninterrupted use of the 200 foot common driveway at the end of El Prieto Road, for a period of time in excess of five years preceding March 4, 1972, for public recreation purposes, and that there was no persuasive evidence of non-use of the access presented for the period 1972-1999."
We reject appellants' contention that this evidence was insufficient according to County of Orange v. Chandler-Sherman Corp. (1976) 54 Cal.App.3d 561 (Chandler-Sherman ). There, the appellate court found that substantial evidence supported the trial court's finding that use of a private beach and its access were not sufficient to establish an implied dedication. (Id. at p. 566.) With respect to the beach use, the evidence showed that no more than 12 to 15 people used the 2,000-foot beach at any given time and it was often virtually deserted. Access to the beach was characterized as "casual, haphazard, diverse and the passageways ill-defined." (Ibid.) In view of this evidence, the Chandler-Sherman court concluded "there is substantial evidence that this beach was never used as a public recreational area or a public park" and found that "the trial court could well conclude, as it did, that the use of the beach was the casual use of a desolate, isolated beach which was hardly substantial enough to constitute use as a public recreational area to the extent that the owner dedicated the use of his property to the public." (Ibid.)
Unlike the evidence in Chandler-Sherman which failed to show that substantial and diverse members of the public used the private beach as a public recreational area, the evidence offered here established that substantial and diverse members of the public had consistently used the Common Driveway as a public road. (See Gion-Dietz, supra, 2 Cal.3d at p. 39 ["If the land involved is a beach or shoreline area, [litigants seeking to show an implied dedication] should show that the land was used as if it were a public recreation area. If a road is involved, the litigants must show that it was used as if it were a public road"].) Even if the evidence required to show an implied public dedication of a beach area could be analogized to that required for a road, the evidence in City of Long Beach v. Daugherty, supra, 75 Cal.App.3d 972 provides a more relevant comparison. In that case, substantial evidence establishing an implied public dedication consisted of testimony from a lifeguard captain who stated that members of the public used the beach for recreation for approximately 40 years; testimony from residents regarding public use of and access to the beach; and photographs showing many footprints in the sand indicating public use. (Id. at p. 979.)
Nor are we persuaded that the trial court's reference to a comment in Blasius, supra, 78 Cal.App.4th 810 extended the concept of substantial evidence supporting an implied public dedication beyond its previous limits. In cautioning that the trial court's comment that evidence of public use exceeded an occasional hiker traveling on isolated property should not be construed as meaning that anything beyond such evidence would suffice to show public use, the Blasius court stated: "The use must be substantial, diverse, and sufficient, considering all the circumstances, to convey to the owner notice that the public is using the passage as if it had a right so to do. Thus, e.g., a long history of continued passage by a diverse group of occasional hikers across a well defined privately owned trail segment leading to a network of trails, say on a pubic wilderness area, might suffice." (Id. at p. 826, fn. 7.) In connection with its conclusion that "the public's use [of the Common Driveway] was substantial, diverse and sufficient to convey to the owner notice that the public was using the passage as if it had a right to do so," the trial court quoted the latter part of the footnote. The trial court's findings regarding substantial and diverse use relied on well-established precedent requiring that litigants "seeking to show that land has been dedicated to the public need only produce evidence that persons have used the land as they would have used public land" and "that various groups of persons have used the land." (Gion-Dietz, supra, 2 Cal.3d at p. 39; see also Blasius, supra, at p. 825 ["testimony of the witnesses of their use and observation of others' use affords an inference that such use was far from rare; in the words of the trial court it was 'continuous, regular and open use' "].)
Substantial evidence likewise supported the trial court's finding that there was no bona fide attempt to prevent public use of the Common Driveway prior to 1999. (See Gion-Dietz, supra, 2 Cal.3d at p. 41 ["If the owner has not attempted to halt public use in any significant way, however, it will be held as a matter of law that he intended to dedicate the property or an easement therein to the public"].) The trial court carefully balanced the evidence that "No Trespassing" signs were periodically posted in the area against the evidence of continuous public use and found: "Once a dedication is established, only non-use can extinguish it; posting signs in and of itself, after the dedication is created, has no more effect than putting up a no trespassing sign on a freeway on-ramp. Since the dedication occurred prior to 1972, signs placed by defendants after that time were legally without force. Additionally, based on evidence presented at trial and the statements of uncontradicted evidence, the court finds that the posting of the signs was both sporadic and ineffective in halting public use." In conclusion, the trial court found no "bona fide attempt to prevent public use until the 1999 wrought iron gate was erected. Indeed, the erection of that gate belies a contention of non use."
Appellants do not point to evidence demonstrating a bona fide attempt to prevent public use other than that considered by the trial court. Rather, they argue that the fact there was evidence of some type of effort should lead the trial court to reach the opposite conclusion. They are incorrect. The question of whether an owner's efforts to exclude the public or discourage public use were sufficiently effective to put the public on notice that use of the property was not authorized "is ordinarily one of fact, to be determined in light of all of the circumstances." (County of Los Angeles v. Berk (1980) 26 Cal.3d 201, 216.) "If the fee owner proves that he has made more than minimal and ineffectual efforts to exclude the public, then the trier of fact must decide whether the owner's activities have been adequate." (Gion-Dietz, supra, 2 Cal.3d at p. 41.) Evidence of the minimal scope and belated timing of appellants' efforts to prevent public use supported the trial court's conclusion that appellants' did not meet their burden to show a bona fide attempt to prevent public use during any relevant five-year period. (See City of Long Beach v. Daugherty, supra, 75 Cal.App.3d at p. 978 [landowner's efforts to remove "rowdy" users from the land insufficient to negate public use required for an implied dedication].)
Finally, we reject appellant's contention that the trial court's requiring appellants to dismantle a six-foot portion of the black wrought iron gate was unsupported by evidence of public use. (Cf. Cushman v. Davis (1978) 80 Cal.App.3d 731, 737 [trial court's findings regarding the scope of an easement are reviewed for substantial evidence].) The scope of an implied-in-law public dedication is determined by the use that gave rise to it. (Burch v. Gombos, supra, 82 Cal.App.4th at p. 362.) The evidence showed that public use of the Common Driveway had included not only pedestrian access, but also horse-drawn wagons and carriages, bicycles and motorized vehicles. The judgment permitted only non-motorized access, providing: "The public's easement is for non-motorized right-of-way and recreational uses by the public, being walking, jogging, riding bicycles and horses." To accommodate these limited permitted uses, the trial court ordered that appellants provide a six-foot opening across the Common Driveway. Substantial evidence supported this order, as a six-foot opening in the gate would reasonably accommodate the permitted public access.
The judgment is affirmed. Respondents are awarded their costs on appeal.
We concur: BOREN, P.J., and SHMANN-GERST, J.
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