Taormino v. Denny , 1 Cal. 3d 679 ( 1970 )

Opinion

TRAYNOR, C. J.

Plaintiff brought this proceeding for an injunction and to quiet her title to a road over which defendant claimed both an easement by prescription and a right to pass by virtue of an implied dedication to the public. On September 19, 1966, the court entered judgment for plaintiff quieting her title to the road and enjoining any occupancy or trespass by defendant.

The court found that the road had existed on plaintiff’s property since 1910 or before, that defendant had frequently used the road without plaintiff’s consent and claimed an interest in the road adverse to plaintiff’s title. The court also found that defendant acquired his property adjoining plaintiff’s in 1964 and that his immediate predecessor in title had never claimed a right of way over the road, but had asked for and received permission to use the road whenever he made use of it. None of defendant’s predecessors in title had made use of the road under a claim of right or adversely to plaintiff’s title sufficient to establish any legal claim, and there had never been a formal or implied dedication of the road to public use.

A hearing on defendant’s motion for new trial was held on November 10, 1966. Thereafter, the court filed a “Ruling on Motion for New Trial” ordering that the matter be reopened for testimony of defendant’s predecessor in title only but not of any other witnesses already heard. A hearing was held on February 27, 1967. On March 14, 1967, the court filed a memorandum opinion adopting the previous judgment in its entirety. On April 3, 1967, defendant filed a second notice of intention to move for a new trial. On August 4, 1967, however, the court filed another memorandum opinion modifying the “original Opinion” and holding that defendant had a right to use the road for purposes related to farming operations on his land and that defendant must share in the maintenance and upkeep of the road. New findings of fact and conclusions of law were filed, and on October 10, 1967, judgment was entered in conformity with the modified opinion. Plaintiff appeals from that part of the October 10, 1967 judgment awarding defendant an easement in the road.

Plaintiff contends that the trial court lacked jurisdiction to modify the judgment of September 19, 1966 and that, if it had jurisdiction, there is no evidence to support the court’s finding that the use of the road by defendant and his predecessor in title was adverse to her title. She also contends that the judgment is ambiguous in failing to specify whether the easement was conditioned on payment by defendant of a part of the maintenance expense, and, if so, what that share is, to whom it is to be paid, and, in what state of repair the road is to be maintained. We have concluded that none of the foregoing contentions has merit and that the judgment should be affirmed.

Jurisdiction to Enter the Judgment of October 10, 1967

The suggestion that the court lacked jurisdiction to enter the judgment of October 10, 1967 is based on Code of Civil Procedure section 660 governing motions for a new trial. At the time this action was commenced the relevant part of that section read: “Except as otherwise provided in Section 12a of this code, the power of the court to pass on motion for a new trial shall expire 60 days from and after service on the moving party of written notice of the entry of the judgment, or if such notice has not theretofore been served, then 60 days after filing of the notice of intention to move for a new trial. If such motion is not determined within said period of 60 days, or within said period as thus extended, the effect shall be a denial of the motion without further order of the court. A motion for a new trial is not determined within the meaning of this section until an order ruling on the motion (1) is entered in the permanent minutes of the court or (2) is signed by the judge and filed with the clerk.”

Plaintiff contends that the trial court never ruled on defendant’s motion for a new trial and therefore lacked jurisdiction to make further orders granting relief under section 660 subsequent to the denial of the motion by operation of law 60 days from September 19, 1966, the date upon which notice of entry of judgment was mailed. This argument denies any effect to the order of November 10, 1966, made within the 60-day period and titled by the court “Ruling on Motion for New Trial.” That order directing that the proceedings be reopened was a “ruling on the motion” within the meaning of both section 660 and section 662 of the Code of Civil Procedure. Section 662 governs the powers of a court ruling on a motion for new trial and provides specifically: “In ruling on such motion, in a cause tried without a jury, the court may, on such terms as may be just, change or add to the findings, modify the judgment, in whole or in part, vacate the judgment, in whole or in part, and grant a new trial on ail or part of the issues, or, in lieu of granting a new trial, may vacate and set aside the findings and judgment and reopen the case for further proceedings and the introduction of additional evidence with the same effect as if the case had been reopened after the submission thereof and before findings had been filed or judgment rendered.” (Italics added.)

Plaintiff concedes that the court did reopen the proceedings, but contends that it did not vacate the findings and judgment pursuant to section 662. The failure of the trial court to include language directing vacation of its prior findings and judgment in the ruling on the motion for new trial cannot lessen the effect of that ruling. The court ordered that the matter be reopened. Section 662 provides that when a case is reopened in lieu of granting a new trial, the effect is the. same as if the case had been reopened before the findings had been filed or judgment entered. It follows that an order made pursuant to section 662 directing that a case be reopened has the effect of vacating the findings and judgment. Inasmuch as the matter was returned to the posture in which it was prior to entry of judgment, the motion for new trial had been disposed of and the provisions of section 660 no longer applied.¹

Defendant filed his second notice of intention to move for a new trial on April 3, 1967, prior to entry of judgment. The motion was denied by operation of law on June 2, 1967, when the court failed to act on the motion. Although the court lost jurisdiction to act on that motion 60 days after the motion was filed, its jurisdiction to enter judgment in the reopened proceedings was in no way affected. The fact that the judgment was not in conformity with the memorandum opinion of March 14, 1967, does not affect the validity of the judgment. A memorandum opinion is not a decision. Although it may purport to decide issues in the case, it is merely an informal statement of the views of the trial judge. It does not constitute findings of fact. (People v. Hills (1947) 30 Cal.2d 694, 702 [185 P.2d 11]; De Cou v. Howell (1923) 190 Cal. 741, 751 [214 P. 444]. See 3 Witkin, Cal. Procedure (1954) p. 1873.) “ ‘No antecedent expression of the judge, whether casual or cast in the form of an opinion, can in any way restrict his absolute power to declare his final conclusion . . . by filing the “decision” (findings of fact and conclusions of law) provided for by . . . the Code of Civil Procedure.’ (Scholle v. Finnell, 173 Cal. 372, 376 [159 P. 1179].)” (Strudthoff v. Yates (1946) 28 Cal.2d 602, 616 [170 P.2d 873].)

Sufficiency of the Evidence of An Easement by Prescription

The findings of fact and conclusions of law accompanying the judgment of October 10, 1967, recited that the plaintiff was the owner in fee simple of the road in issue, that defendant was the owner in fee simple of real property adjoining the road, and that: “It is true that defendant, without plaintiff’s consent or permission frequently enters upon said roadway and uses the same for the purposes of conducting his farming operations, that is to say, for the purposes of cultivation and harvesting the crops produced on said' real property . . . [D]efendant's predecessor in title . . . M. Thome . . . used said road for the purpose of cultivating his said property and harvesting the crops thereon for more than ten years prior to the commencement of this action, which said use had been conducted openly, notoriously, continuously and adverse to plaintiff’s alleged rights in said roadway, and without asking or receiving permission from anyone, that is to say, either the plaintiff herein, or plaintiff’s predecessors in interest.”

The following evidence relative to the use of the road by defendant and his predecessor in title, Matt Thome, was adduced at the trial. Plaintiff is the owner of farm property on the Oroville Highway in Yuba County. She purchased the property in 1943. She and her late husband had first leased the property in 1937. Defendant purchased the farm property immediately south of that owned by plaintiff in 1964 from Matt Thome who had owned it since 1946. At the time Thome acquired his property a road existed on plaintiff’s property. The road ran in a westerly direction from the highway along the southern boundary of plaintiff’s property. The road had at one time been fenced on each side, but the fence along the north side was no longer there when plaintiff purchased her property. The fence along the south side was removed sometime after Matt Thome purchased the land later conveyed to defendant.

The road was used by both strangers and local residents to reach farms to the west of plaintiff’s property and by occasional hunters and fishermen to gain access to the bottomlands of the Feather River. At times the road had been posted at the Oroville Highway entrance. Plaintiff and her son-in-law, Roger Hoon, stopped strangers using the road to ascertain whether they had legitimate business, but did not stop neighbors.

Plaintiff and Hoon testified that they had posted “No Trespassing” signs twice, that Thome had requested permission to use the road at harvest time and on numerous other occasions, and that permission had been granted. In June 1965, Hoon presented a letter drafted by plaintiff’s attorney to Thome for signature. The letter, signed by Thome, acknowledged that Thome had no claim to a right of way over the road, had never made such a claim and had not represented to defendant that defendant would have such a claim.² Thome testified that he had no permission to use the road and had never spoken to plaintiff about the use of the road. He used the road frequently for at least 10 years without asking permission of anyone, knowing it was on plaintiff’s property. The road was closed only when repairs were being made. He had signed the letter believing its purport to be that he had not given defendant any right to the road. He had never seen signs posted by others limiting the use of the road, although he had posted one himself at one time.

Defendant testified that he and other users of the road paid to have it oiled and sanded in 1964. He refused to make an additional contribution later in that year when requested to do so by plaintiff and, in response to her threat to put a chain across the road, asserted his claim to a right of way.

Other defense witnesses offered cumulative testimony that they had often used the road without permission and had not seen “No Trespassing” signs.

If substantial evidence supports the judgment that defendant acquired an easement or right of way in the roadway by prescription, the judgment must be affirmed. All conflicts must be resolved in favor of the prevailing party and the evidence viewed in the light most favorable to him. (O’Banion v. Borba (1948) 32 Cal.2d 145, 147-148 [195 P.2d 10].) The elements necessary to establish a prescriptive easement are, with the exception of the requirement that taxes be paid,³ identical with those required to prove acquisition of title by adverse possession: open and notorious use or possession that is continuous and uninterrupted, hostile to the true owner, and under a claim of right. (Thomas v. England (1886) 71 Cal. 456, 459-460 [12 P. 491].) Such use for the five-year statutory period of Code of Civil Procedure section 321⁴ confers a title by prescription. (Civ. Code, § 1007.)⁵

Plaintiff contends that none of the requisite elements of adverse possession exist. The foregoing summary of the evidence, however, leads us to conclude that substantial evidence supports the judgment of the trial court as to each element. Direct evidence established both the requisite open, continuous use and the nature of the use for purposes related to cultivation and harvesting crops on defendant’s property. Whether the use was under a claim of right adverse to the owner is a question of fact. (O’Banion v. Borba, supra, 32 Cal.2d 145, 149.) The trial court was not compelled to accept either plaintiff’s evidence or Thome’s conclusion as expressed in his letter as to the nature of the use. (Blank v. Coffin (1942) 20 Cal.2d 457, 461 [126 P.2d 868].) Thome’s testimony and letter were susceptible of conflicting inferences—that the use was permissive and a matter of neighborly accommodation, or that his use of the road over a 10-year period without asking permission adequately demonstrated a claim of right to do so. The trial court is the arbiter of the facts, and this court cannot upset its decision as a matter of law when substantial evidence supports the judgment.

Ambiguity of the Judgment

Plaintiff complains that the judgment fails to specify whether defendant’s right to use the road is conditioned on his payment of his share of the maintenance expense and, if so, what that share is and to whom it should be paid. The rules set forth in section 845 of the Civil Code govern the maintenance of private rights of way in the absence of an agreement.⁶ The judgment is in no way conditional. Section 845 provides a method by which to apportion costs if no agreement is reached among the owners of an easement and a remedy enforceable against a delinquent owner by the other owners of the easement.

The judgment is affirmed.

Peters, J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.

1 Plaintiff’s claim that the court denied the motion for new trial on March 14, 1967 is not supported by the record. The memorandum opinion of that date read: “On Order of the Court, the above entitled matter was set for further hearing to determine if any further evidence would alter the Opinion heretofore rendered in favor of the plaintiff.

“The Court is satisfied that further evidence indicates that the previous ruling of the Court in this matter should not be disturbed.

“Counsel for plaintiff shall prepare the necessary documents.”

2 The letters reads: “Dear Mrs. Taormino:

“You have told me that you are planning possible improvements to the road which runs westerly from the Oroville Highway along the southerly border of your ranch, and immediately to the north of my property. You have also told me that, in connection with a cost sharing scheme that is being worked out for the road, your attorney has said.that it would be helpful to you if I acknowledged that I do not have and that I have never made a claim to a right of way over that road. This I am happy to do.

“When I sold a portion of my property to Mr. Denney about a year ago, I afforded Mr. Denney other access to the property I sold him, and I at no time represented to him that he would have any right of way over your road.”

3 Taxes need not be paid by the claimant of an easement by prescription in the absence of a showing by the record owner that taxes were separately levied on the easement. (Glatts v. Henson (1948) 31 Cal.2d 368, 372 [188 P.2d 745].)

4 Code of Civil Procedure section 321: “In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the property is presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title, unless it appear that the property has been held and possessed adversely to such legal title for five years before the commencement of the action.”

5 Civil Code section 1007: “Occupancy for the period prescribed by the Code of Civil Procedure as sufficient to bar any action for the recovery of the property confers a title thereto, denominated a title by prescription. . . .”

6 Civil Code section 845: “The owner of any easement in the nature of a private right of way, or of any land to which any such easement is attached, shall maintain it in repair.

“If the easement is owned by more than one person, or is attached to parcels of land under different ownership, the cost of maintaining it in repair shall be shared by each owner of the easement or the owners of the parcels of land, as the case may be, pursuant to the terms of any agreement entered into by the parties for that purpose. In the absence of an agreement, the cost shall be shared proportionately to the use made of the easement by each owner.

“In the absence of an agreement, any owner of the easement, or any owner of land to which the easement is attached, may apply to the superior court where the right of way is located for the appointment of an impartial arbitrator to apportion such cost. If the arbitration award is not accepted by all of the owners, the court may determine the proportionate liability of the owners, and its order shall have the effect of a judgment.

“If any one of the owners of the easement or parcels of land fails, after demand in writing, to pay his proportion of the expense, action may be brought against him in a court of competent jurisdiction by the other owners, either jointly or severally, for contribution.”