Rusk v. Timm
Filed 2/16/07 Rusk v. Timm CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CaliforniaRules of Court, rule 977(a), prohibits courts and parties from citing orrelying on opinions not certified for publication or ordered published, exceptas specified by rule 977(b). This opinion has not been certified forpublication or ordered published for purposes of rule 977.
COURTOF APPEAL, FOURTH APPELLATE DISTRICT
DIVISIONONE
STATEOF CALIFORNIA
| JAMES F. RUSK,
Plaintiff and Appellant,
v.
RICK TIMM et al.,
Defendants and Respondents.
| D047840
(Super. Ct. No. GIN037322)
|
APPEAL from a judgment of the Superior Court of San DiegoCounty, Thomas P. Nugent, Judge. Affirmed.
James F. Rusk appeals a trial court's rulingthat the owners of an adjacent property did not violate his nonexclusive easement when they regradeda slope subject to the easement. We affirm.
FACTUAL AND PROCEDURALSUMMARY
In 1972, the previous owners of Rusk's property,Richard and Diana Robinson, purchased from Avco Community Developers, Inc. (Avco)the property recorded as "Lot 335 of VILLAGE PARK UNIT No. 8, according tomap thereof No. 7479 filed in the Office of the County Recorder of San Diego County, California on November 9, 1972." This property is commonlydescribed as "2156 Mountain Vista Drive, Encinitas, California." Avcoalso owned the adjacent property, recorded as "Lot 1 of VILLAGE PARK TRAILS,according to map thereof No. 8409 filed in the Office of the County Recorder of San Diego County, California on November 12, 1976." This property iscommonly described as "2162 Mountain Vista Drive, Encinitas, California."
The side of the Robinsons' property slopeddownward towards Lot 1. The Robinsons complained to AVCO that the eastern sideof their residence was only 5 feet from the property line. In 1979, Avcoresponded by granting Robinson and his successors in interest a nonexclusiveeasement to landscape that portion of lot 335 adjoining his property. Theeasement is described as follows: "That portion of Lot 1 of Village ParkTrails according to Map thereof no. 8409 filed in the office of the CountyRecorder of San Diego County, California, more particularly described as: [¶] 'The westerly 30.00 feet thereof, said 30.00 foot strip of land lying easterlyof the following described lot line: [¶] Beginning at the most southwesterlycorner of said Lot 1; thence North 16Ø›00'00" West, 123.88 feet.' "
The easement grant states in relevant part:
"The parties agree:
"1. Grant of Easement. Grantorgrants to Grantee a nonexclusive landscape easement appurtenant to Lot335 on, over and under that portion of Lot 1 . . .
"2. Use of Easement. Theeasement granted herein is for the purposes of installation, construction,operation, use, maintenance, repair, replacement and removal of landscaping andan irrigation system and for no other purpose.
"3. Obligations of Grantee. Grantee shall, at no cost to Grantor, (i) maintain the landscaping andirrigation system installed pursuant to this Easement Agreement in anattractive and neat appearance, and (ii) repair any damage caused to Lot 1 byreason of the use and maintenance of the easement, including any damage tolandscaping, irrigation systems or other improvements made to Lot 1 from timeto time by Grantor or Grantor's successors in interest." (Emphasisadded.)
From 1993 until the present, Rusk has owned Lot 335. The Timms, who currently own Lot 1, acquired it in 1996. In 2004, theyobtained permission from their homeowner's association and the City of Encinitas(City) to build a 750 square foot separate structure, referred to as a grannyflat, to house Richard Timm's aging parents.
City conditioned its grant of permission for theconstruction upon the Timms'
regrading a portion of the nonexclusive easement to aspecified gradient to create a flat surface large enough to build theaddition. Also, City required that the addition be set back 25 feet from therear lot line. Richard Timm, in response to Rusk's motion for a preliminaryinjunction, described the limited nature of the project in a declaration filedin the trial court: "No improvements will be constructed in the 30-footeasement area. The proposed grading will make a portion of the 30-foot areasteeper as reflected in the plans which have been approved. The completedgrading will still have a 30-foot area without improvements thereon, suitablefor landscaping along my property line with neighbor Rusk."
Richard Timm testified as follows regarding hisefforts to discuss his plans for the project with Rusk:
"My wife and I put together a letter to Mr.Rusk. My wife baked some cookies, took a plate of cookies up to the Rusk household,and said we'd like to invite you down to our house to discuss the grading we'regoing to be doing. At that time we gave them a set of plans, went over whatthe reason was for our grading, what we were going to do. And we offered atthat time, saying just let us know what kind of landscaping you want put inthere.
"Um, the irrigation system, I said we'd behappy to connect it to either your water supply or ours. We'll put it back inand make it look any way you want." He also testified Rusk did notrespond negatively to that encounter, but promised to get back to them. However,Rusk opposed the regrading of the slope, and in May 2004, he filed a complaintfor declaratory relief against the Timms, and sought a preliminary injunctionto halt the construction project. The court denied the preliminary injunction. Thereafter, the Timms completed the project and also built a fence on theproperty line.
On September 2, 2004, Rusk filed a first amended complaint. The Timmsfiled a demurrer, which was sustained in part.
In March, 2005, Rusk filed a second amendedcomplaint, the operative pleading, alleging causes of action for declaratory relief, damages for interferencewith easement, and quiet title.
The court explained to Rusk, who was notrepresented by counsel during the trial, "I have read this easement, and Idon't find anything that confuses me about it. You do have a nonexclusiveright to landscape it. And then we have to figure out how that plays in withthese facts. But whether it should have been written differently, whethersomebody expected it to mean something other than what it clearly means, Ithink is irrelevant." In Rusk's opening statement, he agreed with thecourt that the easement was not ambiguous, but "very clear cut."
The court's January 6, 2005 judgment states:
"1. The easement in question is [nonexclusive].
"2. Defendants have and retain feesimple title to the easement area which includes every incident of ownershipnot inconsistent with the easement and the enjoyment of the same is reserved tothe owner of the servient estate, the Defendants.
3. Defendants were within their legalrights to [regrade] the slope in the subject easement area. The action bydefendants Timms relating to the [regrading] of the subject easement was properand shall remain.
"4. Plaintiff James Rusk does nothave the right to [refill] any portion of the easement slope, or to alter thegrading of the slope in the easement.
"5. The fence that was installed byDefendants is to be removed.[1]
"6. Judgment is entered in favor ofdefendants as to the second cause of action of the Second Amended Complaint forDamages for Enforcement of or Interference with Easement. Plaintiff is notawarded any money damages in this action."
DISCUSSION
I.
Rusk contends the trial court erred in findingthat the Timms had the right to strip the landscape and regrade the slope. Therewas no error.
In the trial court, both parties relied on Scrubyv. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, which summarizes the relevantlegal principles, including the standard of review: " 'An easement is arestricted right to specific, limited, definable use or activity upon another'sproperty, which right must be less than the right of ownership.' [Citation.] In construing an instrument conveying an easement, the rules applicable to theconstruction of deeds generally apply. If the language is clear and explicitin the conveyance, there is no occasion for the use of parol evidence to showthe nature and extent of the rights acquired. [Citations.] . . . [¶] Theowner of the dominant tenement must use his or her easements and rights in sucha way as to impose as slight a burden as possible on the servient tenement. [Citation.] Every incident of ownership not inconsistent with the easement and theenjoyment of the same is reserved to the owner of the servient estate. [Citations.] The owner of the servient estate may make continued use of the area theeasement covers so long as the use does not 'interfere unreasonably' with the easement'spurpose. [Citations.] Whether a particular use by the servient owner of landsubject to an easement is an unreasonable interference with the rights of thedominant owner is a question of fact for the trier of fact, and its findingsbased on conflicting evidence are binding on appeal. [Citation.] [¶] . . . Whenthe easement is 'nonexclusive' the common users 'have to accommodate eachother.' " (Scruby v. Vintage Grapevine, Inc., supra, at pp.702-703.)
The trial court applied these principles to thiscase and found that the Timms, as the servient owners of the property subjectto the nonexclusive easement, were entitled to regrade the slope. Moreover, theregrading of the slope did not unreasonably interfere with Rusk's nonexclusiveeasement, which is limited to purposes related to landscaping and irrigation, "andfor no other purpose." The trial court's factual findings are supportedby substantial evidence. Rusk, by opposing the regrading, sought toimpermissibly burden the Timms' ownership interest in the servient estate byclaiming a right not included in his easement.
Rusk relies on Whalen v. Ruiz (1953) 40Cal.2d 294, 302 for the contention that
he had "the right to insist that the easement remainsubstantially the same as it was when
the right accrued." That case does not compel adifferent result, because it supports the elementary principle that the termsof an easement grant are binding. (Id., at pp. 297-298; accord, Civ.Code, § 806 ["The extent of a servitude is determined by the terms of thegrant, or the nature of the enjoyment by which it was acquired"].) Ruskstill possesses the rights enumerated in the easement grant, but the right todetermine the gradient of the slope was never included therein.
II.
Rusk asks us toresolve this question, "[I]f Rusk and Timm cannot agree upon the landscapedesign, who has the superior right to specify the landscape?" To theextent that Rusk challenges the trial court's ruling the Timms were entitled toregrade the slope, we reiterate there was no error. To the extent Rusk seeksour ruling on a hypothetical future dispute, we decline to issue an advisoryopinion. " 'It is well settled that an appellate court will decide onlyactual controversies. . . . [T]he appellate court cannot render opinions" '. . . upon moot questions or abstract propositions, or to declareprinciples or rules of law which cannot affect the matter in issue in the casebefore it.' " ' " (Giles v. Horn (2002) 100 Cal.App.4th 206,226-227.)
III.
Rusk also contends, "If the court reversesthe judgment, then Rusk is entitled to damages for Timm's unreasonableinterference with [Rusk's] easement rights." The point is moot because wedo not reverse the judgment. At any rate, as the trial court ruled from thebench, "I did not hear any evidence at all sufficient to make an award ofmoney damages, and I don't." That finding is supported by substantial evidence; accordingly,we reject Rusk's claim for damages.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
HUFFMAN,Acting P. J.
AARON,J.
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