Fear Not Law Articles: Amari v. Mathai

Amari v. Mathai

Filed 7/26/06 Amari v. Mathai CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

EDDIE AMARI et al.,

Plaintiffs, Cross-defendants and Appellants,

JEREMIAH T. MATHAI et al.,

Defendants, Cross-complainants and Appellants.

B176575

(Los Angeles County

Super. Ct. No. YC044298)

APPEAL from a judgment of the Superior Court of Los Angeles County,

Jean E. Matusinka, Judge. Affirmed in part, vacated in part, and remanded.

Valerie F. Horn & Associates and Valerie F. Horn for Plaintiffs, Cross-defendants and Appellants.

Cunningham & Treadwell, James H. Treadwell and Ryan L. Arnett for Defendants, Cross-complainants and Appellants.

_________________________

Defendants, cross-complainants and appellants Jeremiah T. Mathai and Nancy G. Mathai, individually and as trustees of the Jeremiah T. Mathai and Nancy G. Mathai 1998 Family Trust (collectively, Mathai), appeal the portion of the judgment which is in favor of plaintiffs and cross-defendants Eddie Amari (Amari) and USS Cal Builders, Inc. (USS) (sometimes collectively referred to as Amari).

Amari and USS cross-appeal from the judgment, contending it fails to conform to the special verdict.

Amari sought access over a portion of Mathai's property to a vacant parcel that Amari purchased. The deed conveying the property to Amari included an express easement over Mathai's parcel. Amari contended, and the jury found, the express easement was relocated by implication to another part of the property. Mathai, in turn, contends there cannot be an implied easement where the parties' intentions are set forth in an express easement.

We conclude the express easement herein does not preclude recognition of an implied easement in an alternative location. Here, the original easement was relocated by the grantor once he determined the original location was not feasible. Therefore, we uphold the determination that Amari has an implied easement over and across the Mathai driveway and the dirt area next to the Mathai home for access to the Amari parcel.

With respect to the cross-appeal, because there is some question as to whether the judgment's legal description of the implied easement is correct, the matter is remanded for an evidentiary hearing to ensure the judgment conforms to the verdict.

FACTUAL AND PROCEDURAL BACKGROUND

1. The express easement and its relocation.

Delmer Beisell was the owner of a one-and-a-half acre parcel in Rancho Palos Verdes, located south of Colt Road. In1958, he decided to subdivide the property into three half-acre lots. Lot 1 abutted Colt Road. Lots 2 and 3 were to the south of Lot 1. To prevent Lots 2 and 3 from being landlocked, Beisell indicated an easement for ingress and egress on the topographical subdivision map. Said map showed the easement abutting the western boundary of the property. That easement became the express easement set forth in the grant deeds to Lots 2 and 3.^[1]

Beisell then learned such placement of the easement was impractical. It would cost $30,000 just to build a mandatory retaining wall to secure the easement's location at the top of the slope at the western edge of the property. Unable to afford that expense, and not being committed to locating the easement along the western boundary line, Beisell relocated the easement down the slope, some 20 feet east of the western boundary. Beisell then had a roadway graded from Colt Road all the way to the beginning of Lot 3.

The express easement shown on the 1958 topographical map was never built and never used for ingress or egress. In the center of the express easement, which is 10 feet wide, there is situated an electric pole, installed by the Edison Company.

2. Use of the relocated easement over the years; the dispute between Mathai and Amari.

The relocated easement has been used for access to Lots 2 and 3 since its construction in 1958. Beisell testified he observed Eleanor Stallings (Stallings), the longtime owner of Lot 3 and Amari's predecessor, driving on the easement over the years. Beisell also saw the fire department drive on the easement to gain access to Lot 3. The easement was also driven on by service people who cleared the brush on Lot 3. Amari also had driven over it on various occasions.

From the time the Mathais purchased Lot 2, they began parking their cars on the relocated easement, thereby blocking access to Lot 3. Beisell told them â€

Description	Plaintiffs and cross-defendants sought access over a portion of Cross-complainants and appellants's property to a vacant parcel that Plaintiffs and cross-defendants purchased. The deed conveying the property to Plaintiffs and cross-defendants included an express easement over Cross-complainants and appellants's parcel. Plaintiffs and cross-defendants contended and the jury found, the express easement was relocated by implication to another part of the property. Cross-complainants and appellants, in turn, contends there cannot be an implied easement where the parties' intentions are set forth in an express easement. The Court concluded the express easement herein does not preclude recognition of an implied easement in an alternative location. Here, the original easement was relocated by the grantor once he determined the original location was not feasible. Therefore, uphold the determination that Plaintiffs and cross-defendants has an implied easement over and across the Cross-complainants and appellants driveway and the dirt area next to the Cross-complainants and appellants home for access to the Plaintiffs and cross-defendants parcel.
Rating	0/5 1 2 3 4 5 0/5 based on 0 votes.