L.A. County Metro. Transportation Auth. v. So. Cal. Gas Co. CA2/4 ( 2021 )

Filed 9/10/21 L.A. County Metro. Transportation Auth. v. So. Cal. Gas Co. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
LOS ANGELES COUNTY B288686
METROPOLITAN (Los Angeles County
TRANSPORTATION Super. Ct. No. BC658988)
AUTHORITY,
ORDER MODIFYING
Plaintiff and Appellant, OPINION AND DENYING
PETITION FOR
v. REHEARING
SOUTHERN CALIFORNIA NO CHANGE IN
GAS COMPANY, JUDGMENT
Defendant and Respondent.
THE COURT*:
The opinion filed August 13, 2021, in the above-entitled
matter is ordered MODIFIED as follows:
1. On page 38, the second full paragraph is modified to
strike the three sentences at lines eight through 11 beginning
with the sentence “Further, Metro’s argument treats its ROW as
a fee simple.”
2. On page 38, the second full paragraph is modified at
line 11 to insert the sentence “Metro stipulated that its ROW
were formerly held by ATSF.”
3. On pages 38 and 39, the last sentence of the second
full paragraph starting on page 38 and continuing to page 39 is
deleted.
4. On page 6, the second full paragraph is modified to
delete the words “an annual nominal” and replace them with “a
one-time.”
5. The number “30361” is changed to “30631” at the
following locations: page 11, the last line; page 21, the first line
of footnote 9; page 24, the last line of heading 3; page 25, the first
line of the first full paragraph and the fifth line of the first full
paragraph; page 27, the second line of footnote 11; and page 32,
the fifth line of the first full paragraph.
These modifications do not change the judgment.
The request for publication is DENIED.
The petition for rehearing is DENIED.
____________________________________________________________
MANELLA, P.J. COLLINS, J. CURREY, J.
2
Filed 8/13/21 L.A. County Metro. Transportation Auth. v. So. Cal. Gas Co. CA2/4
(unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
LOS ANGELES COUNTY B288686
METROPOLITAN
TRANSPORTATION (Los Angeles County
AUTHORITY, Super. Ct. No. BC658988)
Plaintiff and Appellant,
v.
SOUTHERN CALIFORNIA GAS
COMPANY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Richard E. Rico, Judge. Affirmed.
Miller Barondess, Louis R. Miller and Mira Hashmill and
Office of the County Counsel, Mary C. Wickham, Charles M.
Safer, Kathleen Dougherty for Plaintiff and Appellant.
Gibson, Dunn & Crutcher, David A. Battaglia, Jennifer K.
Bracht for Defendant and Respondent.
Best, Best & Kriegler, Scott W. Ditfurth, Thomas M.
O’Connell for Amicus Curiae Riverside County Transportation
Commission.
Hanson Bridgett, Adam W. Hofmann, Josephine M.
Petrick, David C. Casarrubias for Amici Curiae Southern
California Regional Rail Authority, Peninsula Corridor Joint
Powers Board, San Bernardino County Transportation Authority,
North County Transit District, Ventura County Transportation
Commission.
_________________________
Los Angeles County Metropolitan Transportation Authority
(Metro) and Southern California Gas Company (SoCalGas)
dispute which of them must pay SoCalGas’s pipeline relocation
costs occasioned by Metro’s 2013 construction of the
LAX/Crenshaw line. Metro asserts that licenses permitting
SoCalGas to maintain natural gas pipelines on Metro’s right of
way (ROW) obligate SoCalGas to pay for relocation of pipelines
located under two streets that intersect the ROW in the City of
Inglewood. SoCalGas counters that Public Utilities Code section
306311 obligates Metro to bear the expense.
This appeal presents two related issues: (1) Whether Metro
must reimburse SoCalGas under section 30631, or whether the
licenses control; and (2) whether SoCalGas is trespassing on
Metro’s ROW. According to the parties, we must sort through
many different and potentially conflicting sources of law to
answer these questions, including: section 30631; the parties’
Utility Cooperative Agreement and an amended version of that
1 All statutory references are to the Public Utilities Code
unless otherwise noted.
2
agreement; licenses between Metro and SoCalGas; easements;
and franchise agreements with the City of Inglewood.
In a written ruling, the trial court held that Metro is
required to reimburse SoCalGas, and that SoCalGas is not in
trespass on Metro’s ROW. It entered summary judgment in favor
of SoCalGas. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
1. The Parties.
(a) Metro.
The Legislature created Metro in 1993. Metro is the
combined successor to both the Southern California Rapid
Transit District (SCRTD) and the Los Angeles County
Transportation Commission (LACTC). (§ 130050.2.) Metro is a
public agency and a public corporation. It can make contracts,
acquire rights of way, construct rail lines, incur bonded
indebtedness, exercise eminent domain, and levy and collect
taxes. (See, e.g., §§ 30005, 30503, 30530, 30700, 30900, 30930.)
(b) SoCalGas.
SoCalGas is an investor-owned public utility providing
natural gas to over 21 million customers in Southern California.
It is regulated by the California Public Utilities Commission.
2. Construction of the LAX/Crenshaw Line.
Metro is responsible for the construction and operation of
commuter rail lines in Los Angeles County, including the Gold
(L), Blue (A), Red (B), Green (C), and Expo (E) lines.
To build these and future transit rail lines, Metro in some
cases acquired former ROW from private railroad companies. In
3
October 1992, Metro purchased the “Harbor Subdivision” (a
railway corridor) from the Atchison, Topeka and Santa Fe
Railway (ATSF) pursuant to a Grant Deed and Purchase
Agreement dated June 30, 1993. The Grant Deed provided that
Metro obtained its railway property from ATSF “subject only to
the following permitted exceptions[.]” One of the exceptions
provided that Metro took the property “subject to all applicable
laws, rules, regulations or orders of any municipality or other
governmental, statutory or public authority[.]”
In 2013, Metro commenced construction of the 8.5 mile
LAX/Crenshaw line, which extends from the intersection of
Crenshaw and Exposition Boulevards to LAX, and is located on
portions of the Harbor Subdivision. The route crosses many
streets, including Arbor Vitae Street and Redondo Boulevard in
the City of Inglewood. In 2015, Metro informed SoCalGas that its
pipelines underneath Arbor Vitae Street and Redondo
Boulevard—where those streets intersected with Metro’s new
route—conflicted with construction of the LAX/Crenshaw line
and must be relocated.
SoCalGas objected to paying the costs of relocating its
pipelines. Metro refused to reimburse SoCalGas or accept
responsibility for SoCalGas’s relocation costs. It did agree,
however, to pay for relocation, subject to a reservation of rights,
pending resolution of the dispute over relocation costs.
Thereafter, SoCalGas relocated its pipelines.
The total cost to SoCalGas to relocate its pipelines at the
Redondo ROW was approximately $620,000 and the estimated
cost at the Arbor Vitae ROW was approximately $500,000.
4
3. Section 30631 and Utility Relocation.
In 1964, the Legislature enacted the Southern California
Rapid Transit District Law. (Sen. Bill No. 41 (1964 1st Ex. Sess,
§ 1.).) The current version of section 30631, subdivision (a) gives
Metro the right to acquire property interests, including rights of
way. Section 30631, subdivision (b) requires Metro to reimburse
the owner for actual relocation costs if pipelines beneath streets
are required to be relocated because of Metro’s projects.
Subdivision (b) of section 30631 provides, “[t]he use of the
streets, highways, freeways, and other public places by [Metro]
for any of the purposes permitted herein is presumed to be no
greater burden on adjoining properties than the uses existing as
of August 22, 1964. If facilities, other than state highways or
freeways referred to above, (including, but not limited to, streets,
highways, pipelines, sewers, water mains, storm drains, poles,
communications wires, and electric transmission wires) of
another public agency, of the state, or of a private owner are
necessarily required to be relocated, replaced, or altered in order
for [Metro] to construct or operate its system, or if the
construction or operation by [Metro] of its system makes
necessary the relocation, replacement, or alteration of any of
those facilities of another public agency, of the state, or of a
private owner in order to maintain the functioning of the
facilities at their previous level of service, the facilities shall be
relocated, replaced, or altered with reasonable promptness by the
respective public corporation, state, or private owner and [Metro]
shall, by prior agreement, reimburse the public corporation,
state, or private owner for the actual cost necessarily incurred in
the relocation, replacement, or alteration.”
5
In the past, when Metro or its predecessors engaged in
construction projects requiring the relocation of SoCalGas’s
pipelines, Metro routinely reimbursed SoCalGas’s costs. (See
Pasadena Metro Blue Line Construction Authority v. Pacific Bell
Telephone Co. (2006) 140 Cal.App.4th 658, 662 (Pasadena Metro)
[previously, Metro routinely agreed to pay costs of utility
relocations].)
4. The ROW at Arbor Vitae Street and Redondo
Boulevard.
The Arbor Vitae/ROW intersection and the Redondo/ROW2
intersection are subject to the following property interests:
(a) ATSF Pipeline Licenses.
Prior to Metro’s involvement, ATSF granted pipeline
licenses to SoCalGas permitting it to use ATSF’s right of way at
Arbor Vitae Street for an annual nominal fee. The licenses were
issued in 1975, 1965, and 1952 for various pipelines at the Arbor
Vitae intersection. They provided that they were given “upon the
express condition that the same may be terminated at any time
by either party upon ten (10) days’ notice in writing to be served
upon the other party, stating therein the date that such
termination shall take place, and that upon the termination of
this license in this or any other manner herein provided,
Licensee, upon demand of Licensor, shall abandon use of the
PIPE LINE and remove the same and restore the right of way
and tracks of Licensor to the same condition in which they were
2 The City of Inglewood vacated the street crossing at
Redondo. As a result, the original intersection no longer exists
and is now entirely devoted to railroad use.
6
prior to the placing of the PIPE LINE thereunder. In case
Licensee shall fail to restore Licensor’s premises as aforesaid
within ten (10) days after the effective date of termination,
Licensor may proceed with such work at the expense of
Licensee.”3 These licenses were assigned to Metro as part of its
purchase of the ROW.
On August 28, 2015, Metro informed SoCalGas that its
pipeline in the Redondo intersection, for which there was no
license, conflicted with the LAX/Crenshaw construction and must
be relocated. From November 2015 to February 2016, Metro
terminated the licenses with respect to the Arbor Vitae
intersection and notified SoCalGas that its pipelines conflicted
with the LAX/Crenshaw construction and must be relocated.
Metro rejected SoCalGas’s claim for relocation costs.
After receiving no response from SoCalGas regarding the
termination notices, on February 2, 2016, Metro advised
SoCalGas that “[a]t this point, Metro requests the immediate
removal of these facilities [at Arbor Vitae] from within Metro’s
[ROW] in accordance with the attached Termination Notices.
Please be aware that [SoCalGas’s] failure to timely respond to the
Notices of Termination is in direct violation of the terms of the
License Agreements . . . .” SoCalGas responded that where it had
existing facilities installed in the public ROW with no license, i.e.,
the Redondo/ROW intersection, Metro was responsible to
reimburse it under section 30631. Where there was a license, i.e.,
the Arbor Vitae/ROW intersection, the Metro licenses were
unenforceable for the areas within the public street where
SoCalGas had franchises.
3 The parties agree no licenses could be found that applied to
the Redondo Boulevard intersection.
7
(b) Street Easements.
In 1949, ATSF granted the City of Inglewood an easement
with respect to public streets across the ROW at Arbor Vitae
Street between Portal Avenue and Aviation Boulevard. In 1950,
ATSF granted an easement to extend Redondo Boulevard across
the ROW near Florence Avenue. The easements provide that
Metro’s predecessor ATSF could, at any time, construct railroad
tracks on and use the easements, and such use was “without
liability to [Inglewood] or to any one else for compensation or
damage . . . .”
(c) Franchises.
SoCalGas holds several franchises permitting it to use
Inglewood city streets for its pipelines pursuant to the Franchise
Act of 1937. The Franchise Act authorized cities and counties to
grant “the right to use, or lay and use, gas pipes and
appurtenances for the purpose of . . . distributing gas . . . for all
purposes, under, along, across, or upon public streets, ways,
alleys and places as they now or hereafter exist within the
municipality.” (§ 6265.) “[F]ranchises have been created when a
governmental agency authorizes private companies to set up
their infrastructures on public property in order to provide public
utilities to the public; i.e., when railroad, gas, water, telephone,
or electric companies set up tracks, pipes, poles, etc. across the
streets and other public ways of a city. [Citations.]” (Saathoff v.
City of San Diego (1995) 35 Cal.App.4th 697, 703-704.) Under
franchise agreements with Inglewood, SoCalGas has placed its
pipelines in the streets in exchange for franchise fees.
8
5. Utility Cooperative Agreement.
In 1984, Metro’s predecessor SCRTD entered into a Utility
Cooperative Agreement (UCA) with SoCalGas to regulate the
design and construction of SoCalGas facilities in exchange for
SCRTD’s payment of relocation costs. With respect to
reimbursement, Article 8 of the UCA provides that Metro will
reimburse SoCalGas for any work required by Metro’s
rearrangement of SoCalGas’s facilities.4 The UCA also provided
that if SoCalGas moved its facilities on account of Metro’s
rearrangement, Metro would grant SoCalGas a replacement
license at no cost to SoCalGas.5
An amendment to the UCA (Amended UCA) made in May
2005 between Metro (as SCRTD’s successor) and SoCalGas left
section 8.1 of the original UCA intact, stating that “[t]his
Amendment shall not negate or modify the terms and conditions
of” the original UCA. It also reaffirmed the SoCalGas/ATSF
licenses.
4 Paragraph 8.1 of the UCA provides in relevant part: “The
issuance of a Work Order shall obligate [Metro] to reimburse
[SoCalGas] for any activity or work performed or materials
acquired for each Rearrangement, in accordance with the terms
of this Agreement; and such reimbursement shall be for the
actual direct costs and indirect costs incurred by [SoCalGas] for
such activities or work performed or materials acquired under
the terms of this agreement . . . .”
5 Paragraph 4.3 provides that if a rearrangement required
the siting of a utility facility in Metro’s ROW, “[Metro] shall grant
to [SoCalGas] [a] replacement utility easement to accommodate
such Replacement Facility. Such replacement utility easement
shall be granted at no cost to [SoCalGas].”
9
6. Metro’s Complaint and SoCalGas’s Cross-
Complaint.
Metro’s complaint, filed April 25, 2017, asserted claims for
(1) declaratory relief, (2) specific performance of license,
(3) breach of license, (4) contractual indemnity, (5) trespass, and
(6) unjust enrichment. Metro principally sought a declaration
that the licenses governed SoCalGas’s rights and obligations with
respect to its pipelines in the ROW, and pursuant to those
licenses, SoCalGas was required to move its pipelines at its own
expense. Metro asserted that SoCalGas’s pipelines were in
trespass, and sought an injunction enjoining SoCalGas from
occupying Metro’s ROW.
SoCalGas’s cross-complaint, filed June 9, 2017, asserted
claims for (1) declaratory relief, (2) reimbursement of utility
relocation costs under section 30631 at both disputed
intersections, and (3) breach of contract. SoCalGas sought
reimbursement for its costs of relocation and a declaration that it
had independent property rights in the public streets, it did not
require Metro’s consent to place its pipelines, and these rights
were not circumscribed by the licenses.
7. Cross-Motions for Summary Judgment.
The parties filed cross-motions for summary judgment on
stipulated undisputed facts. Metro principally argued that
(1) SoCalGas was trespassing and the licenses mandated
SoCalGas pay for its own relocation costs; (2) the city franchises
did not give SoCalGas the right to use Metro’s ROW where they
intersected Inglewood’s city streets; and (3) section 30631 did not
govern because (a) its payment provision did not apply to private
ROWs, (b) under the UCA, the parties agreed the licenses
10
governed, (c) SoCalGas’s argument was precluded by state and
federal contract clauses, and (d) Pasadena Metro did not support
SoCalGas’s arguments.
SoCalGas’s motion argued that (1) section 30631, the UCA,
and the common law mandated payment of its relocation costs by
Metro; and (2) no claim of trespass could be stated because a
property holder must yield to the use of the public streets by a
utility, the cities and counties granted SoCalGas the right to
construct and maintain its pipelines in the public streets, and
Metro obtained its property rights from ATSF in the Grant Deed
which provided its interest was subject to all state laws,
including section 30631.
8. Trial Court Ruling.
The trial court granted summary judgment in favor of
SoCalGas, finding Metro obligated to reimburse SoCalGas’s
relocation costs based upon the court’s reading of section 30631,
and the policies set forth in Pasadena Metro, and the UCA. First,
the trial court rejected Metro’s contention that section 30631
applied only to public streets and did not apply to its ROW, which
Metro characterized as a private property interest. Rather, “[t]he
plain meaning of [section 30631, subdivision (b)] requires Metro’s
reimbursement without qualification based on public streets or
private real property ownership. . . . Metro fails to explain how
Metro’s specific land ownership or property interest alters the
public policy considerations or basic fairness that the statute
seeks to impose. . . . But for Metro’s construction, there would be
no need to relocate the pipelines.” In other words, as the party
altering the status quo, Metro should bear the financial burden of
relocating utilities. The trial court observed that although
11
Pasadena Metro did not address the specific question of liability
for relocation costs, Pasadena Metro’s policy guidance favored the
trial court’s interpretation: section 30361 required Metro to pay
for utility relocation because “a new and additional burden on
such facilities [was] created” by Metro’s new rail project.
(Pasadena Metro, supra, 140 Cal.App.4th at p. 665.) The trial
court further found that “Metro fails to identify a compelling
reason to place the burden back on the utility company and
neither is one apparent within the statute.”
Second, the trial court found “no doubt” that the original
UCA dating from 1984 required Metro to pay relocation expenses
under sections 4.1 and 8.1. “Metro has reaffirmed the [UCA]
through multiple amendments. Although other terms were
amended, the reimbursement provisions have never been
modified since 1984 ([Stipulated Fact] 47).” The trial court
rejected Metro’s claims that the ATSF licenses’ payment
provisions trumped the UCA: “Metro fails to articulate how the
ATSF licenses undermine the specific obligations under the
[UCA]. Metro remains subject to [section] 30631 and Metro’s
procurement of property rights from ATSF does not alter the
analysis. Indeed, the ATSF licenses do not mention relocating
pipelines in any manner and the ATSF Grant Deed confirms that
Metro takes subject to “all applicable laws, rules, regulations or
orders of any municipality or other governmental, statutory or
public agency. ([Stipulated Fact] 21)[.]”
In so holding, the trial court rejected Metro’s trespass
claim. Relying on Bello v. ABA Energy Corp (2004) 121
Cal.App.4th 301 (Bello), which adopted a broad view of the uses
of public rights-of-way and construed them “to accommodate
technological advancement in the conveyance of goods and
12
people” (id. at p. 314), the trial court noted that “Bello makes
clear that the public’s right in municipal streets exist as a matter
of common law and are not dependent on specific language of
creation.”
DISCUSSION
Metro principally argues that (1) section 30631 by its terms
does not apply to Metro’s ROW because section 30631 expressly
addresses only public streets; (2) the ATSF licenses, as well as
the amended UCA, which confirmed the licenses, require
SoCalGas to pay its relocation costs; and (3) Bello does not deny
Metro a remedy for SoCalGas’s trespass. SoCalGas argues that
section 30631, the UCA, and the common law require Metro to
reimburse it for the relocation of its pipelines, and that Metro’s
property interests must yield to public utilities. Amici6 argue the
licenses mandate payment; the trial court’s ruling will impair
transportation agencies’ ability to control costs, manage their
budgets, and ensure safety; and the trial court’s reading of Bello
results in the grant of a prescriptive easement to SoCalGas. We
agree with SoCalGas, and affirm.
I. STANDARD OF REVIEW
“[T]he party moving for summary judgment bears the
burden of persuasion that there is no triable issue of material fact
6 Riverside County Transportation Commission (Riverside
County), Southern California Regional Rail Authority, Peninsula
Corridor Joint Powers Board, San Bernardino County
Transportation Authority, North County Transit, and Ventura
County Transportation Commission (collectively, “Rail Transit”)
filed amicus briefs in this case in support of Metro.
13
and that [they] are entitled to judgment as a matter of law.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn.
omitted.) Where, as here, the factual issues are not subject to
reasonable dispute, we review legal issues de novo on a grant of
summary judgment. (Husman v. Toyota Motor Credit Co. (2017)
12 Cal.App.5th 1168, 1179; Yu v. Liberty Surplus Corp. (2018) 30
Cal.App.5th 1024, 1030.) “We affirm the trial court’s decision if it
is correct on any ground [that] the parties had an adequate
opportunity to address in the trial court, regardless of the
reasons the trial court gave. [Citations.]” (Jameson v. Pacific Gas
& Electric (2017) 16 Cal.App.5th 901, 909.)
II. METRO MUST PAY SOCALGAS’S RELOCATION
COSTS UNDER SECTION 30631
Where, as here, there are multiple sources providing a
possible rule of decision—the statute, the UCA/Amended UCA,
and the licenses—but dictating different results, we must choose
the authority that best resolves the compensation issue. We
conclude the statute, as an express departure from the common
law rule, sets forth a plain, unequivocal directive that Metro
“shall” reimburse utilities for relocations occasioned by Metro’s
construction. Metro’s arguments to the contrary, based primarily
on the Amended UCA/UCA and the licenses, do not persuade us
to ignore the statute.
We begin with a review of the various property interests,
before turning to the statute.
14
A. The Property Interests.
1. ROW
The nature of the property interest embodied in railroad
rights of way traces back to the mid- to late 1800s, when
Congress passed the General Right-of-Way Act of 1875, which
provided railroad companies with rights of way through public
lands for the construction of railroads. (43 U.S.C. § 934, et seq.)
The railroad companies did not have a fee interest;7 instead, the
interest the federal government granted the railroads was a
“mere easement” over the land on which the railroads could lay
tracks and run trains. (Brandt Trust v. United States (2014) 572
U.S. 93, 103 [134 S.Ct. 1257, 188 L.Ed.2d 272].) An easement is
not a type of ownership, but rather is an incorporeal interest in
land “‘which confers a right upon the owner thereof to some
profit, benefit, dominion, or lawful use out of or over the estate of
another.’ [Citations.]” (Hansen v. Sandridge Partners L.P. (2018)
22 Cal.App.5th 1020, 1032, italics omitted.) Easements are
covenants that run with the land. (Gamerberg v. 3000 East 11th
Street LLC (2020) 44 Cal.App.5th 424, 429 (Gamerberg).)
Courts have long recognized, however, that a right-of-way
is more than an easement. (Union Pacific Railroad Co. v. Santa
Fe Pacific Pipelines, Inc. (2014) 231 Cal.App.4th 134, 162 (Union
Pacific).) Instead, “[i]t is an “‘interest in the land, special and
7 A “fee” is the “highest, most exclusive estate in real
property.” (3 Miller & Starr, Cal. Real Estate (4th ed.) § 9.2.) A
fee simple is an estate of indefinite duration, is “the largest
interest that can exist in land,” and is an “inheritable estate
which the holder has the power to transfer by deed or by will.” (3
Miller & Starr, Cal. Real Estate, (4th ed.) § 12.3; Pacific
Southwest Realty Co. v. County of Los Angeles (1991) 1 Cal.4th
155, 163 [fee estate is of indeterminate duration].)
15
exclusive in its nature.’” [Citation.]” (Ibid.) Union Pacific
observed that an easement at common law was “considered a
nonpossessory and incorporeal interest in property[,]” but a
“railroad right-of-way was an easement” with attributes of a fee,
namely, perpetuity, exclusive use and possession, and remedies
available to a fee interest. (Ibid.) Like a fee, it was “‘corporeal, not
incorporeal, property.’ [Citation.]” (Ibid.)
A public ROW differs from a private ROW. As explained by
our Supreme Court, “Public ways, as applied to ways by land, are
usually termed ‘highways’ or ‘public roads,’ and are such ways as
every citizen has a right to use. [Citation.] [¶] A private way
relates to that class of easements in which a particular person, or
a particular description or class of persons, [has or] have an
interest or right as distinguished from the general public.” (Kripp
v. Curtis (1886) 71 Cal. 62, 64.)
As further explained in Bello, “The late 19th century saw a
dramatic change in the judicially recognized scope of public
rights-of-way in California. Before the widespread adoption of
railroads, electricity, and the telephone, the term ‘right-of-way’
was given its literal meaning—a public right to construct,
maintain, and use a road over private land. Any other use
required the landowner’s consent. [Citations.] Shortly before the
turn of the century, however, the Supreme Court recognized that
urbanization was placing a much greater demand on public
resources than could be accommodated by this literal view of
public rights.” (Bello, supra, 121 Cal.App.4th at p. 308.)
Furthermore, during this period of change, our Supreme Court
approved of the principle that “‘[t]he establishment of a public
highway practically divests the owner of a fee to the land upon
which it is laid out. . . .” (Montgomery v. Santa Ana W.R. Co.
16
(1894) 104 Cal. 186, 193.) “By contrast, the interpretation of
easements held by private parties has not undergone the
dramatic changes seen in public right-of-way cases.” (Schmidt v.
Bank of America, N.A. (2014) 223 Cal.App.4th 1489, 1505.)
2. Franchises
“A franchise to use public streets or rights-of-way is a form
of property” interest; the “franchise fee is the purchase price of
the franchise. [Citation.]” (Jacks v. City of Santa Barbara (2017)
3 Cal.5th 248, 262.) “‘A franchise is a privilege conferred upon an
individual or a corporation for use of a sovereign body’s property.
[Citation.]’ [Citation.]” (Riverside County Transportation Com. v.
Southern California Gas Co. (2020) 54 Cal.App.5th 823, 856
(Riverside Transportation).) “[S]ection 6202 authorizes a
municipality to ‘grant a franchise to any person, firm, or
corporation . . . to use, or to lay and use, pipes and appurtenances
for transmitting and distributing gas . . . under, along, across, or
upon the public streets, ways, alleys, and places within the
municipality . . . .’ [Citation.]” (Ibid.) Franchises are created when
a government agency authorizes private companies to locate
infrastructure on public property to provide public utilities to the
public, such as gas, water, telephone, or electricity across the
streets and other public ways of a city. (Saathoff v. City of San
Diego, supra, 35 Cal.App.4th at pp. 703-704.)
A private utility’s franchise in a public street is a property
interest created by contract, i.e., the franchise agreement.
(Southern Cal. Gas Co. v. City of Vernon (1995) 41 Cal.App.4th
209, 218.)
17
3. Licenses
In contrast to an easement, a license is an interest that
does not run with the land. When a landowner allows someone
else to use their land, the owner grants a license. (Shoen v.
Zacarias (2019) 33 Cal.App.5th 1112, 1119.) Unlike covenants
that run with the land, a license is a personal right and confers
no interest in land: “‘it merely makes lawful an act that otherwise
would constitute a trespass.’ [Citations.]” (Gamerberg, supra, 44
Cal.App.5th at p. 429.) A license is a contract. (Qualls v. Lake
Berryessa Enters. (1999) 76 Cal.App.4th 1277, 1283.)
B. Section 30631 Abrogates the Common Law Rule
and Requires Metro to Pay for Utility Relocations.
As noted above, subdivision (b) of section 30631 provides, in
relevant part: “The use of the streets, highways, freeways, and
other public places by [Metro as successor to the Southern
California Rapid Transit District8] for any of the purposes
permitted herein is presumed to be no greater burden on
adjoining properties than the uses existing as of August 22, 1964.
If facilities, other than state highways or freeways . . . (including,
but not limited to, streets, highways, pipelines, sewers, water
mains, storm drains, poles, communications wires, and electric
transmission wires) of another public agency, of the state, or of a
private owner are necessarily required to be relocated, replaced,
8 “Section 30631 actually refers to ‘the district,’ meaning the
former Southern California Rapid Transit District ([SC]RTD).
(See § 30001.) However, [Metro] is the statutory successor to the
[SC]RTD (§ 130050.2) and assumed all of the [SC]RTD’s powers,
duties, and obligations. (§ 130051.13.) Any statutory reference to
the [SC]RTD is deemed to apply to [Metro]. (§ 130051.14.)”
(Pasadena Metro, supra, 140 Cal.App.4th at p. 664, fn.4.)
18
or altered in order for [Metro] to construct or operate its system,
or if the construction or operation by [Metro] of its system makes
necessary the relocation, replacement, or alteration of any of
those facilities of another public agency, of the state, or of a
private owner in order to maintain the functioning of the
facilities at their previous level of service, the facilities shall be
relocated, replaced, or altered with reasonable promptness by the
respective public corporation, state, or private owner and the
district shall, by prior agreement, reimburse the public
corporation, state, or private owner for the actual cost necessarily
incurred in the relocation, replacement, or alteration.”
1. Principles of Statutory Construction.
In interpreting a statute, our fundamental task is to
ascertain the intent of the lawmakers to effectuate the purpose of
the statute. (Lincoln Unified School Dist. v. Superior Court (2020)
45 Cal.App.5th 1079, 1090; Coker v. JPMorgan Chase Bank, N.A.
(2016) 62 Cal.4th 667, 674.) We examine the statutory language,
giving the words their usual and ordinary meaning, and “consider
the language in the context of the entire statute and the
statutory scheme of which it is a part [citation], harmonizing
provisions relating to the same subject matter, to the extent
possible.” (Satele v. Superior Court (2019) 7 Cal.5th 852, 858-
859.)
A statute is ambiguous if there is more than one reasonable
interpretation of its language. (Joannou v. City of Rancho Palos
Verdes (2013) 219 Cal.App.4th 746, 752.) If so, we turn to
secondary rules of construction, including maxims of
construction, the legislative history, and the wider historical
circumstances of a statute’s enactment. (Ibid.) We may look to
19
the ostensible objects to be achieved, the evils to be remedied,
public policy, and contemporaneous administrative construction.
(Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles
(2012) 55 Cal.4th 783, 803.) If the meaning of the language is
uncertain, courts should consider the consequences that will flow
from a particular interpretation of the statute. (Weatherford v.
City of San Rafael (2017) 2 Cal.5th 1241, 1252.) These
consequences include how well the proffered interpretation can
be harmonized with other provisions in the statutory scheme
relating to the same subject matter. (See Lungren v. Deukmejian
(1988) 45 Cal.3d 727, 735.)
Because common law provisions governing utility
relocation exist, we must determine whether the statute
displaces them. “In deciding whether a statutory scheme alters or
displaces the common law, we begin with a presumption that the
Legislature did not so intend. [Citations] To the extent possible,
we construe statutory enactments as consonant with existing
common law and reconcile the two bodies of law. [Citation.] Only
‘where there is no rational basis for harmonizing’ a statute with
the common law will we conclude that settled common law
principles must yield. [Citation.].” (McMillin Albany LLC v.
Superior Court (2018) 4 Cal.5th 241, 249.) Further, although the
presumption against displacement of the common law is strong,
abrogation of the common law does not require an express
declaration in the statute. It is sufficient that the language or
evident purpose of the statute manifest a legislative intent to
override the common law rule. (Ibid.)
Statutory construction is a question of law on which we
exercise our independent judgment. (California Disability
Services Assn. v. Bargmann (2020) 52 Cal.App.5th 911, 916.)
20
2. Section 30631 Requires Metro to Pay for
Utility Relocation.
The common law rule of utility relocation is codified in
section 6297, and requires a utility using city streets pursuant to
a franchise to shoulder relocation costs when necessary to make
way for governmental use. (See § 6297; Riverside Transportation,
supra, 54 Cal.App.5th at p. 856; Southern California Gas Co. v.
Los Angeles (1958) 50 Cal.2d 713, 716.)9 That “obligation arises
9 Both section 30361 and section 6297 abrogate the common
law rule in different ways. Section 6297 provides: “The grantee
[of a franchise] shall remove or relocate without expense to the
municipality any facilities installed, used, and maintained under
the franchise if and when made necessary by any lawful change
of grade, alignment, or width of any public street, way, alley, or
place, including the construction of any subway or viaduct, by the
municipality.” Section 6297 differs from the common law rule in
several respects. In particular, it requires the utility to pay for a
relocation only “‘when made necessary by any lawful change of
grade, alignment, or width of any public street, way, alley, or
place, including the construction of any subway or viaduct, by the
municipality . . . .’ [Citation.]” (Riverside Transportation, supra,
54 Cal.App.5th at p. 858). “By contrast, the common law rule
applies when a relocation is necessary for any ‘proper
governmental purpose.’” (Ibid.) “Also, as discussed, it applies
when the relocation is requested by any public entity, not just a
municipality, and not just the original grantor of the franchise.”
(Ibid.) Because section 30631 controls, we need not consider
SoCalGas’s assertion that the common law requires
reimbursement based upon the categorization of Metro’s
construction of the LAX/Crenshaw line as a proprietary, as
opposed to governmental, function of government. (See, e.g.,
Postal Telegraph-Cable Co. v. San Francisco (1921) 53 Cal.App.
21from the paramount right of the people as a whole to use public
thoroughfares. [Citation.]” (Pasadena Metro, supra, 140
Cal.App.4th at p. 664.) To give a utility the right to compensation
for relocation, the Legislature must do so specifically, which it did
in enacting section 30631. (Ibid.)
Pasadena Metro involved utility relocations occasioned by
construction of the Gold line. (Pasadena Metro, supra, 140
Cal.App.4th at pp. 661-662.) Metro had begun the project. (Id. at
p. 660.) But after cost overruns and legal problems, Metro created
a new entity, the Pasadena Metro Blue Line Construction
Authority (Authority), to complete it. (Id. at. p. 661.) Although
Metro had routinely paid utility relocation costs, and the
Authority had budgeted funds for such relocations, the Authority
later refused to pay. (Ibid.) Instead, it paid utility relocation costs
under protest, indicating it would seek reimbursement. (Ibid.)
The Authority later sued to recover the relocation expenses,
contending that section 30631 did not apply to it because it was a
separate entity from Metro. (Ibid.) Division Eight of this court
held the statute indeed applied to the successor entity, and that
it required reimbursement of the utilities for their relocation
expenses. (Id. at pp. 664-666.)
Pasadena Metro articulated the legislative policy animating
section 30631. (Pasadena Metro, supra, 140 Cal.App.4th at pp.
664-665.) “In short, if utilities must be moved or relocated in
order to construct or operate a [Metro] transit system, a new and
additional burden on such facilities is created and [Metro] must
pay the relocation costs.” (Id. at p. 665.) “In doing so, the
188, 191-194 [operation of municipal street railway system
strictly within the exercise of city’s proprietary function thereby
requiring it to reimburse for utility relocation costs].)
22
Legislature must have determined that it would be unfair to force
utilities to pay to relocate their own facilities when the need to do
so arose only because [Metro] was constructing a mass transit
project.” (Id. at p. 666.) The court rejected “the notion that the
Legislature intended to place that burden back on the utility
companies simply because another entity stepped in to finish the
project for [Metro]. . . . To hold otherwise leads to both mischief
and an absurd result by allowing [Metro] to escape its obligations
under section 30631 for no other reason than the fact that the
Authority stepped in to complete the Gold Line for [Metro] with
[Metro] funds.” (Ibid.)
The plain language and purpose of section 30631 require
Metro to reimburse SoCalGas. Section 30631, subdivision (b)
expressly provides that Metro “shall” reimburse SoCalGas if it
requires the utility to move its facilities. As our colleagues noted
in Pasadena Metro, “the Legislature must have determined that
it would be unfair to force utilities to pay to relocate their own
facilities when the need to do so arose only because [Metro] was
constructing a mass transit project.” (Pasadena, Metro, supra,
140 Cal.App.4th at p. 666.) This statutory language displaces the
common law and fulfills the statute’s policy to reduce the burden
on utilities when Metro constructs projects.10
10 Riverside Transportation, supra, 54 Cal.App.5th 823, held
the Riverside County Transportation Commission, operator of
Metrolink, had the authority to demand that SoCalGas relocate
its pipeline operations at its own cost. (Id. at p. 875.) Both parties
filed letters acknowledging the filing of Riverside Transportation,
observing that it had no bearing on the section 30631 question
because Riverside County is not subject to section 30631. As
discussed post, however, Riverside Transportation does offer some
insight on the trespass question.
23
We note another reason, not stated in Pasadena Metro, that
the Legislature would require Metro to shoulder relocation costs
is to ensure Metro appropriately considered and paid for all direct
costs of building new public transit facilities. Otherwise, the true
costs would be understated, and significant portions would be
borne by utilities and their ratepayers, at least some of whom
reside outside of Metro’s service area. This could lead to skewed
cost-benefit analyses and unfair burdens being imposed on
utilities and non-residents.
For these reasons, we reject Amici’s arguments that section
30631 would create problems for public transit systems to budget
and/or plan for safe utility relocation. Nothing prevents transit
authorities from consulting with utilities concerning utility
relocation costs and/or safety considerations when planning new
construction. The statute is limited in scope to Los Angeles
County and provides notice that in Los Angeles County, utilities’
reimbursement costs are mandated. Metro is therefore required
to take these expenses into account when estimating the cost of
new projects or modifications of its system.
3. The Clauses of the Licenses Requiring
SoCalGas to Pay For Relocation Are Void as Contrary to
The Public Policy Embodied in Section 30361.
California law provides that parties may not contract out of
statutory obligations, and a contract that contravenes the public
policy of a statute is unenforceable. (Civ. Code § 3513 [“law
established for a public purpose cannot be contravened by private
agreement”]; McGill v. Citibank, N.A. (2017) 2 Cal.5th 945, 961.)
Metro was created in 1964 to address the Los Angeles
area’s growing transportation problems.” (Sen. Bill No. 41 (1964
24
1st Ex. Sess, § 1, ch. 1).) In the legislation, the Legislature
declared its intention to create a transit agency with “sufficient
power and authority to solve the transportation problems in the
southern California area and to provide the needed
comprehensive mass rapid transit system.” (§ 30001, subd. (c).)
SB 41 provided “this legislation is needed and useful; we believe
that it is constructive legislation which will continue a major step
toward the solution of Southern California’s pressing traffic and
public transportation problem.” The law was to “be liberally
construed to carry out the objects and purposes” of this transit
policy. (§ 30002; Rapid Transit Advocates, Inc. v. Southern Cal.
Rapid Transit Dist. (1986) 185 Cal.App.3d 996, 1000.)
The legislative history establishes that section 30361
promotes the purpose of the statute by facilitating Metro’s power
to acquire property and construct new transit projects. Such
activity necessarily entails the relocation of utility lines, as
recognized by section 30361, subdivisions (a) and (b). As
discussed above, section 30631, subdivision (b) embodies the
policy that when utilities are relocated because of Metro’s
construction, the utility should not be required to bear the cost.
As also discussed above, the licenses are contracts
permitting SoCalGas to occupy Metro’s ROW. Where, as here, the
contracts contain unlawful provisions, those provisions may be
severed from the contract if the purpose of the contract as a
whole is not unlawful. (Civ. Code, § 1599; Marathon
Entertainment, Inc. v. Blast (2008) 42 Cal.4th 974, 996.) Thus,
while the requirement for SoCalGas to shoulder relocation
expenses is unenforceable, the remainder of the licenses remain
valid.
25
C. We Are Unpersuaded by Metro’s Contrary
Arguments.
1. Metro’s “Public” vs. “Private” Reading of
Section 30631 Runs Contrary to the Statute’s Plain
Language and Policy.
Metro argues section 30631 only applies to public property,
not its “private” ROW. Metro highlights the statute’s reference to
“public” property: subdivision (a) states Metro’s ability to
“develop, own, [and] use . . . [transit] facilities . . . under, upon or
over public street[s], highways, bridges, or other public ways or
waterways . . . . ” (Emphasis added.) In turn, subdivision (b)
addresses Metro’s use of the “streets, highways, freeways, and
other public places” and triggers Metro’s payment obligation
when its “use of the streets . . . and other public places . . . makes
necessary the relocation . . . of facilities," including pipelines.
Finally, subdivision (c) provides for coordination of construction
in the “street or highway involved.” Metro contends section 30631
applies only to public, non-Metro owned property because if the
Legislature had meant for Metro to pay for utility relocations no
matter their location, it could have eliminated the language
regarding “public” streets and other byways.
We disagree with Metro’s conclusions for several reasons.
First, Metro’s ROW is not “private.” It is owned by a public entity
(Metro) and the ROW serves the interests of the general public by
providing a route for public transit and other infrastructure
serving the public. We need not decide, however, whether and to
what extent Metro’s ROW is a “public right of way,” which under
common law must be made available for public use, because the
statute also refers to Metro’s use of “other public places.” (See
Schmidt v. Bank of America, N.A., supra, 223 Cal.App.4th at p.
26
1501 [“‘Unlike a private easement, the use rights of a public
right-of-way are vested equally in each and every member of the
public. [Citation.]’”].) Moreover, this case involves relocation of
utilities located under streets, which are themselves public rights
of way. (See Bello, supra, 121 Cal.App.4th at pp. 314-315 [the
owner of property intersecting with a public street must yield to
its public use by “every member of the public,” including the
placement of utility pipelines beneath the street].) Metro’s ROW
is a public place because it is public property and the places
where it intersects streets are open to public use. Thus, the
statute applies.
Finally, to the extent Metro argues the reference in section
30631, subdivision (a) to public streets, highways, etc. limits
subdivision (b)’s reimbursement obligation solely to streets and
other public byways, we disagree. We instead find subdivision
(b)’s first two sentences address distinct topics. The first sentence
states a presumption that Metro’s use of streets, highways, etc. is
“no greater burden than” that existing at the time of the statute’s
enactment in 1964. (§ 30631, subd. (b).) The second sentence
addresses the relocation of facilities, public or private, occasioned
by Metro’s construction or operation of its systems; this sentence
is not limited to public spaces. (Ibid.) Instead, the focus is upon
the facilities that must be relocated because of Metro’s
operations, not the location of those facilities. (Ibid.)11
11 Given that we conclude Metro must reimburse SoCalGas
under section 30361, we need not address Metro’s contentions
that the trial court erred in ruling that the Grant Deed language
(“subject to all applicable laws”) mandated reimbursement.
27
2. The UCA Requires Metro to Pay Relocation
Costs and Overrides the Payment Provisions of the
Licenses.
The UCA at section 8.1 specifically provides that Metro’s
predecessor (SCRTD) would reimburse SoCalGas for pipeline
relocation: “The issuance of a Work Order shall obligate . . .
[Metro] to reimburse [SoCalGas] for any activity or work
performed or materials acquired for each Rearrangement,[12] in
accordance with the terms of this Agreement; and such
reimbursement shall be for the actual direct costs and indirect
costs incurred by [SoCalGas] for such activities or work
performed or materials acquired under the terms of this
agreement . . . .”
While admitting that the original UCA allotted most
relocation expenses to SCRTD, Metro attempts to demonstrate
that in spite of the express provisions of the UCA and Amended
UCA, the licenses’ payment provisions still govern, as follows:
First, Metro asserts section 1.1.1. of the Amended UCA
retains the licenses in their entirety by providing that “[t]his
Amendment shall not negate or modify the terms and conditions
of (a) any legally binding easements or other use and/or
occupancy agreements between [SoCalGas] and [Metro] with
respect to the occupancy by [SoCalGas] Facilities of, or any
interest of [SoCalGas] in, real property owned by or under the
12 “Rearrangement” is defined as “the removal, replacement,
alteration, reconstruction, or relocation of a Conflicting Facility
or portion thereof for the purpose of construction and operating
the Project or portion thereof, . . . .” (UCA, § 1.2(i).) A “Conflicting
Facility” is defined as “that existing Facility that is so situated as
to require Rearrangement because of interference with the
Project.” (UCA, § 1.2 (c).)
28
operating jurisdiction of [Metro], (b) any such easements or other
agreements between [SoCalGas] and any former owner of real
property now or hereafter owned by MTA, and to which [Metro]
has become or hereafter becomes a successor either by
assignment or by operation of law, or of (c) any such easements or
other agreements between [SoCalGas] and any other
governmental agency with respect to real property owned by or
under the operating jurisdiction of such governmental agency,
and in which [Metro] has a statutory or other right to install
Transit Project Facilities.” Metro interprets this to mean that the
specific terms of the Metro-SoCalGas licenses prevail over the
Amended UCA’s terms.
Second, Metro asserts the Amended UCA defined “Transit
Projects” and Transit Project ROW to mean “real property owned
by Metro” and the parties agreed at paragraphs 1.1.2 and 1.2.17
that the Amended UCA addressed all Transit Projects after the
amendment. Metro also interprets this to mean that the licenses
still govern the reimbursement question.
Finally, Metro asserts the licenses are covered by the
Amended UCA because they are “agreements” within section
1.1.1 and Metro is a successor to the licenses. Metro interprets
this to mean that the licenses still govern the reimbursement
question.
We conclude the UCA agreements, which the parties
entered into well after the licenses, govern. The fundamental goal
of contractual interpretation is “to give effect to the mutual
intention of the parties[.]” (Civ. Code, § 1636; Mountain Air
Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th
744, 752 (Mountain Air).) “‘We ascertain that intention solely
from the written contract, if possible, but also consider the
29
circumstances under which the contract was made and the
matter to which it relates. [Citations.]’” (Starlight Ridge South
Homeowners Assn v. Hunter-Bloor (2009) 177 Cal.App.4th 440,
447 (Starlight Ridge); Civ. Code, § 1647.) “When the contract is
clear and explicit, the parties’ intent is determined solely by
reference to the language of the agreement.” (Klein v. Chevron
U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1385; Civ. Code,
§ 1638.)
Under basic contract law, “several contracts relating to the
same matters” are to be construed together. (Civ. Code, § 1642;
Mountain Air, supra, 3 Cal.5th at p. 759.) Mountain Air
construed two conflicting agreements between the same parties
in order to determine that an attorneys’ fees provision in one
contract applied to the other contract. (Mountain Air at p. 759.) It
found one agreement superseded the other. (Id. at pp. 759-760.)
“‘Whether the new contract was intended as a substitute for the
old may be inferred where the terms of the new contract differ
widely from those of the old, especially where the two are entirely
inconsistent and cannot be operative at the same time.’
[Citation.]” (Id. at p. 760.)
Further, a contract may be modified by another contract.
(Civ. Code, § 1698, subd. (a) [“[a] contract in writing may be
modified by a contract in writing”].) A modification may be
implied by conduct or a writing modifying the original contract.
(Garrison v. Edward Brown & Sons (1944) 25 Cal.2d 473, 479
[modification found where conduct of parties inconsistent with
the written contract warrants conclusion parties intended to
modify the written contract]; (Thiele v. Merrill Lynch, Pierce,
Fenner & Smith (S.D. Cal. 1999) 59 F.Supp.2d 1060, 1064 [under
30
California law, subsequent writing could modify the terms of a
previous contract].)13
By entering into the Amended UCA, the parties evidenced
an intent to modify the licenses to the extent of their utility
relocation payment provisions, and they did so by section 8.1 of
the Amended UCA. A duty under a contract may be discharged
by a subsequent inconsistent contract between the same parties.
(29 Willison on Contracts (4th ed. 2021) Rescission by
Inconsistent Subsequent Contract § 73:17, fns. omitted.) “A
contract containing a term inconsistent with a term of an earlier
contract between the same parties is interpreted as including an
agreement to rescind the inconsistent term in the earlier
contract. . . . [¶] The parties may or may not at the same time
agree to rescind all the other provisions of the earlier contract.”
(Ibid.)
This is the case here. The Amended UCA superseded those
provisions of the licenses that required SoCalGas to pay for
removal and/or relocation of its facilities. (Morgan v. Western Ho,
Inc. (1962) 200 Cal.App.2d 890, 891-892.) Thus, Metro cannot
rely on the licenses to assert SoCalGas must pay for the
13 We conclude that a modification of the licenses, rather than
a novation, occurred. A novation would effect a complete
substitution of a new contract (obligation) in the place of the old
contract. (Civ. Code, §§ 1530, 1531; Wells Fargo Bank v. Bank of
America (1995) 32 Cal.App.4th 424, 431.) It must “‘clearly appear’
that the parties intended to extinguish rather than merely
modify the original agreement. [Citation.]” (Howard v. County of
Amador (1990) 220 Cal.App.3d 962, 977.) Because the licenses
had provisions relating to property use, which continued in force,
as well as relocation contingencies, the UCA/Amended UCA
would not completely extinguish the licenses.
31
relocation because the payment provisions of the licenses no
longer have any force or effect.
In any event, Metro was not and is not free to condition a
utility’s use of public streets or other public places on an
agreement that the utility must pay to relocate its equipment if a
new Metro project requires it. That would be contrary to section
30361, and the public policy embodied therein, and therefore
would be prohibited.
D. SoCalGas Cannot Be Held in Trespass.
Metro asserts SoCalGas is trespassing on its ROW and
seeks ejectment of SoCalGas’s facilities. SoCalGas counters that
under Bello, Metro’s ROW must yield to a public utility, while
Amici argue that the trial court’s reading of Bello operated to give
SoCalGas a prescriptive easement. We agree with SoCalGas.
Moreover, Metro’s efforts to force SoCalGas to pay for its utility
relocation costs by revoking SoCalGas’s license to use Metro’s
ROW, and then claiming SoCalGas is in trespass, are
inconsistent with section 30631’s mandate that Metro “shall” pay
for utility relocations necessary for Metro’s construction.
1. Bello.
In Bello, a county road that was a public ROW ran across
the plaintiffs’ property. (Bello, supra, 121 Cal.App.4th at p. 305.)
The county gave a private gas company an encroachment permit,
authorizing it to run its pipelines through the county’s ROW and
over the plaintiffs’ property. (Id at p. 306.) The plaintiffs sued the
gas company for trespass. (Ibid.) After a bench trial, the trial
court found the gas company liable for trespass, reasoning that
32
use for a gas pipeline was not incidental to the original roadway
purpose of the public right-of-way. (Id. at pp. 306-307.)
The Court of Appeal reversed, after summarizing two
conflicting lines of California Supreme Court authority. (Bello,
supra, 121 Cal.App.4th at pp. 307-308, 320.) The first line posited
that a use not incident to the transit function of a roadway ROW
constituted a trespass; thus, a defendant’s installation of electric
power lines in a rural county road right of way that crossed a
defendant’s ranch constituted a trespass. (Gurnsey v. Northern
California Power Co. (1911) 160 Cal. 699, 705 (Gurnsey), 709;
Bello, supra, 121 Cal.App.4th at p. 307.) The second line of
authority, embodied in Montgomery v. Santa Ana W.R. Co. (1894)
104 Cal. 186 (Montgomery), held “that a municipality could grant
a private company the right to construct and operate a railroad in
a public right-of-way without the landowner’s consent.” (Bello,
supra, 121 Cal.App.4th at p. 308.) Montgomery noted a “‘wide
distinction’” between a city street and a country highway; “while
country roads were used only for surface transit, ‘[i]n the case of
streets in a city there are other and further uses, such as the
construction of sewers and drains, laying of gas and water pipes,
erection of telegraph and telephone wires, and a variety of other
improvements, beneath, upon, and above the surface, to which in
modern times urban streets have been subjected.’ [Citation.]” (Id.
at p. 309.) Thus, due to development of more urbanized areas,
“'[t]he trend of judicial opinion . . . is to a broader and more
comprehensive view of the rights of the public in and to the
streets and highways of city and country . . . .’ [Citation.]” (Ibid.)
Bello concluded that Gurnsey is limited to roads “used
solely for private surface transportation” in “‘sparsely inhabited’”
areas, which lack “the extensive infrastructure that accompanies
33
modern development.” (Bello, supra, 121 Cal.App.4th at p. 312.)
Everywhere else, under Montgomery, “as a result of the demands
of urbanization, public rights-of-way located in developed areas
are subject to a wide range of ‘other and further uses’ besides
surface transportation, including the installation of sewage,
water, gas, and communications lines. [Citations.]” (Id. at p. 307.)
Even in “[r]ural Solano County,” “the rights-of-way in the
countryside [are] as filled with the transmission hardware of
public services as were city rights-of-way in the time of
Montgomery . . . .” (Id. at pp. 312-313.)
Bello set forth standards to govern a municipality’s power
to let a utility use its ROW over private land, finding that “a
proposed use of a public right-of-way should: (1) serve as a
means, or be incident to a means, for the transport or
transmission of people, commodities, waste products or
information, or serve public safety [citations]; (2) serve either the
public interest or a private interest of the underlying landowner
that does not interfere with the public’s use rights [citation]; and
(3) not unduly endanger or interfere with use of the [fee owner’s]
property. [Citation.]” (Bello, supra, 121 Cal.App.4th at pp. 315-
316.)
Applying these three criteria to the case before it, the court
found that the “pipeline serves precisely the public interest that
rights-of-way were intended to promote: efficient and effective
travel and transportation of goods.” (Bello, supra, 121
Cal.App.4th at p. 316.) Also, there was “no evidence that the
pipeline presented any significant risk of danger or interference
with use of [the plaintiffs’] property.” (Id. at p. 317.) Accordingly,
“[t]here [wa]s no basis for finding an abuse of discretion in the
issuance of an encroachment permit to [the gas company].” (Ibid.)
34
2. Riverside Transportation.14
Around 2012, the Riverside County Transportation
Commission (Commission) commenced building a 24-mile-long
commuter rail line that would extend the Metrolink system from
Riverside to Perris. (Riverside Transportation, supra, 54
Cal.App.5th at p. 833.) The Commission had purchased pre-
existing rail lines and used those routes to construct the
Metrolink commuter rail. (Ibid.) At five points, the new rail line
conflicted with SoCalGas’s pipelines, which occupied the ROW
pursuant to licenses with the Commission’s predecessor ATSF, as
well as city franchises. (Id. at pp. 831-833.) In the trial court, the
Commission won a determination on summary judgment that
SoCalGas was obligated to move pipelines at its own expense, but
failed to prevail on its claim that SoCalGas had been trespassing
after the Commission terminated the pipeline licenses. (Id. at p.
835.)
After rejecting the Commission’s assertions that Bello did
not apply to a railroad, Riverside Transportation addressed the
effect of licenses upon SoCalGas’s alleged trespass. (Riverside
Transportation, supra, 54 Cal.App.5th at p. 849.) The court made
the factual distinction that unlike Bello, which involved a county
encroachment permit, SoCalGas’s pipelines were installed
pursuant to a city franchise. (Id. at p. 854.) It noted, however,
that “this is a distinction without a difference; what counts is
that [SoCalGas] installed them in a public right of way, with the
permission of the public entity. Hence, under Bello it was entitled
to do so, without the permission of [the railroad] or the
14 Riverside County has no equivalent of section 30631.
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Commission, provided the installation met the Bello criteria.”
(Ibid.)
Thus, Riverside Transportation analyzed the trespass
question by breaking the issue into the three factual scenarios
presented by the case. (Riverside Transportation, supra, 54
Cal.App.5th at pp. 854-855.) First, at one of the conflict points
where there was no license, “Bello simply means there was no
trespass at all” because the city held a street ROW over the
railroad’s property. (Id at p. 854.) Thus, neither the permission of
the railroad nor the Commission was necessary, presumably
based upon the franchises from the city. (Ibid.) Riverside
Transportation concluded the pipeline satisfied the Bello criteria.
(Ibid.)
In the second scenario, at the other four conflict points
where SoCalGas had a license from the Commission, Riverside
Transportation observed “Bello means that, in hindsight,
[SoCalGas] did not really need any licenses to maintain its
pipelines at any of the conflict points,” presumably because the
installation met the Bello criteria. (Riverside Transportation,
supra, 54 Cal.App.5th at p. 855, original emphasis.) However,
where a public utility has franchise rights to locate its facilities in
a location and nonetheless enters into a license, the licenses
supersede the franchises. (Ibid.) Ironically, in this instance, “the
curious outcome is that [SoCalGas] has a better claim to the
conflict point at which it had no license.” (Id. at p. 855, original
emphasis.)
The third scenario addressed SoCalGas’s relocation of its
pipelines to other places on the Commission’s property. (Riverside
Transportation, supra, 54 Cal.App.5th at p. 855.) Riverside
Transportation observed there was evidence the Commission had
36
not consented to SoCalGas’s placement, but also evidence it had
done so, creating a factual issue. (Ibid.) This left the door open for
SoCalGas to argue it could use those locations without the
Commission’s permission, while the Commission could argue
SoCalGas’s use of those locations would, under Bello, “unduly
endanger or interfere with its use” of the ROW. (Ibid.)
In summary, Riverside Transportation observed that Bello
means a utility can install some facilities in a public right-of-way
without a license from the landowner, but the ruling did not
upend the law regarding licenses. (Riverside Transportation,
supra, 54 Cal.App.5th at p. 849.) Instead, it clarified when a
license is needed. (Ibid.) “The utility and the landowner might
well choose to enter into a license anyway—e.g., to prevent the
landowner from claiming that the installation of the utility
exceeds the three Bello criteria, or to provide for individualized
terms regarding access or maintenance.” (Ibid.)
3. Under Bello and Section 30631, SoCalGas
Cannot Be Liable for Trespass.
Bello and section 30631 tell us how to resolve competing
real property interests (licenses, easements, franchises, and
ROW) where transportation corridors, streets, and utilities
coincide.15 Bello’s three-factor test allows the various interests to
coexist while furthering the public interest. Moreover, section
30631 requires Metro to accommodate utilities located under
streets or other public places and to reimburse utilities for facility
15 Unlike Riverside Transportation, which found factual
issues precluded summary judgment, the parties here do not
contend any factual issues exist.
37
relocations necessitated by Metro’s new construction. By
necessary implication the statute also prohibits Metro from
ousting SoCalGas from its ROW to avoid shouldering relocation
costs.
SoCalGas easily meets the three Bello criteria and
therefore cannot be liable for trespass. First, its pipelines
transport a needed commodity (natural gas); second, its transport
of gas serves the public interest, namely, distribution of a
necessary commodity; and third, its underground pipelines,
before Metro commenced construction and required their
relocation, did not interfere with the operation of Metro’s ROW.
(See Bello, supra, 121 Cal.App.4th at pp. 315-316.) Therefore,
SoCalGas was not in trespass and cannot be ejected. (Ibid.)
Metro argues Bello does not apply, however, because its
property rights under its ROW are superior to SoCalGas’s rights
to occupy the ROW. Metro argues its ROW is “private,” giving it
the power to exclude all persons, irrespective of licenses, or the
property interests of third parties.16 But Metro’s ROW is owned
by a public entity (Metro) and it serves the interests of the
general public in providing transit. (See Schmidt v. Bank of
America, N.A., supra, 223 Cal.App.4th at p. 1501.) Further,
Metro’s argument treats its ROW as a fee simple. It is not.
Although a ROW is more than an easement, and constitutes an
interest in land, it is nonetheless less than a fee. Metro’s interest
cannot be treated as exclusive given the needs of competing
entities providing necessary public services, such as city streets
and gas pipelines. As Metro acknowledges, where there are non-
16 In general, ownership in property confers three powers:
possession, use, and disposition. (United States v. General Motors
Corp. (1945) 323 U.S. 373, 377-378 [65 S.Ct. 357; 89 L.Ed. 311].)
38
exclusive easements, the easement holders must accommodate
each other. (Applegate v. Ota (1983) 146 Cal.App.3d 702, 712;
accord, Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th
697, 703.)
We are unmoved by Amici’s argument that, in effect, the
trial court’s ruling gave SoCalGas a prescriptive easement on
Metro’s ROW. Metro is required to permit the City of Inglewood
to use portions of the ROW for street purposes, and to permit
SoCalGas use of its ROW for the essential transport of gas.
(Bello, supra, 121 Cal.App.4th at pp. 315-316.) SoCalGas is not,
and was not, in trespass.
Finally, Metro’s effort to force SoCalGas to pay for its own
utility relocation costs by terminating the former ATSF licenses
permitting SoCalGas to use Metro’s ROW, and then asserting a
trespass claim, is inconsistent with section 30631’s mandate that
Metro “shall” pay for utility relocations made necessary by
Metro’s construction. To permit Metro to oust SoCalGas from the
ROW to avoid paying for relocation of SoCalGas’s facilities would
be inconsistent with the Legislature’s specific mandate that
Metro reimburse utilities when relocations are required. As a
creation of the Legislature, Metro is bound by the statute.
4. Metro Forfeited Any Arguments Based on its
Status as a Federally Regulated Railroad.
Metro is a federal railroad common carrier under the
jurisdiction of the U.S. Department of Transportation. (49 U.S.C.
§§ 20100, et seq.) Based upon this status, Metro argues that
conflicting state regulations are preempted. We conclude Metro
forfeited this argument by not raising it below. “‘As a general
rule, theories not raised in the trial court cannot be asserted for
39
the first time on appeal; appealing parties must adhere to the
theory (or theories) on which their cases were tried.’” (Nellie Gail
Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997.)
We reject any request that we exercise our discretion to decide
the issue as a question of law for the first time on appeal.
(Daneshmand v. City of San Juan Capistrano (2021) 60
Cal.App.5th 923, 937 [appellate court has discretion to consider
issue of law for the first time on appeal].)
DISPOSITION
The judgment of the superior court is affirmed. SoCalGas is
awarded its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
COLLINS, J.
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