78 Cal.App.4th 810, C031330, Friends of the Trails v. Blasius

Docket Nº:C031330
Citation:78 Cal.App.4th 810, 93 Cal.Rptr.2d 193
Opinion Judge:[8] The opinion of the court was delivered by: Blease, Acting P. J.
Party Name:Friends of the Trails v. Blasius
Attorney:[7] Haley & Bilheimer, Allan S. Haley and John Bilheimer, for Plaintiffs, Respondents, and Appellants. James S. Burling, Eric Grant, John A. Ramirez, and Harold E. Johnson, for Defendants, Respondents and Appellants Jon & Robin Blasius. Minasian, Spruance, Baber, Meith, Soares & Sexton, and Willi...
Case Date:February 28, 2000
Court:California Court of Appeals

Page 810

78 Cal.App.4th 810

93 Cal.Rptr.2d 193

FRIENDS OF THE TRAILS et al., Plaintiffs and Appellants,


JON E. BLASIUS et al., Defendants and Appellants;

NEVADA IRRIGATION DISTRICT, Defendant and Respondent.

FRIENDS OF THE TRAILS et al., Plaintiffs and Respondents,


JON E. BLASIUS et al., Defendants and Appellants.

Nos. C031330, C032253.

California Court of Appeal, Third District

February 28, 2000

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Haley & Bilheimer, Allan S. Haley and John Bilheimer for Plaintiffs and Appellants and for Plaintiffs and Respondents.

James S. Burling; Eric Grant; John A. Ramirez; and Harold E. Johnson for Defendants and Appellants.

Minasian, Spruance, Baber, Meith, Soares & Sexton, and William H. Spruance for Defendant and Respondent.


BLEASE, Acting P. J.—

This matter concerns appeals and cross-appeals from the judgment in an action to declare a public easement for use of a road along the side of an irrigation canal.

Defendants Jon and Robin Blasius (collectively the Landowners) appeal from a judgment which declares and enjoins interference with a public easement for a right-of-way and recreation along the portion of their property crossed by an irrigation district canal. They contend the trial court erred in finding a public easement. We conclude the public acquired an easement

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for passage and recreational purposes before March 4, 1972, in the manner provided for under Gion v. City of Santa Cruz (consolidated with Dietz v. King) (1970) 2 Cal.3d 29 [84 Cal.Rptr. 162] (Gion-Dietz). We also conclude the easement was not extinguished or otherwise affected by the enactment of Civil Code section 1009, which prospectively imposes restrictions on the acquisition of a public easement. (See Stats. 1971, ch. 941, § 2, pp. 1846-1847.) We also conclude the trial court did not err in awarding attorney's fees to Friends of the Trails under Code of Civil Procedure section 1021.5.

We will affirm the judgment and the orders awarding attorney's fees and costs.

Facts and Procedural Background1

The land in question is adjacent to a 240-foot section of the aptly named Rattlesnake Canal, which snakes through the California foothills for many miles. This section of the canal, constructed from 1926-1927, crosses the Landowners' property and runs generally north to south. The canal consists of a ditch approximately 16 feet wide and an adjacent berm. The ditch is used to convey water for purposes of the Nevada Irrigation District (NID). Atop the berm is a road approximately nine feet wide, used by NID to access the canal and adjacent facilities for their maintenance and repair. NID maintains and operates the portion of the canal in issue pursuant to a written easement of record.

The land in question has been owned by various persons. During the period 1957 to 1981 it was owned by Frank and Madeleine Duncombe. During this period Frank Duncombe was aware the public used the canal road and he believed they had the right so to do. No one asked for or received his permission to use the road during the 25 years he owned the land. He did not object to or attempt to limit the public's use of the road.

In 1981 Duncombe conveyed the land to Deborah Best. She had occupied adjoining land since 1966 and used the canal road for recreational purposes with her children. Contemporaneous with that conveyance Best married the defendant Jon Blasius. He acquired a 75 percent interest in the land in 1991, when Best died. He remarried and conveyed his interest to himself and his new wife, defendant Robin Blasius.

In August 1996, the Landowners obtained the fee interest in the entire property. In September 1996, they blocked the canal road with a locked gate

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at each end of the section that crosses their land. Only the Landowners and NID have keys to the gates. Since that time the Landowners have denied passage through the gates to members of the public, including their neighbors.

On September 4, 1997, Friends of the Trails filed the complaint beginning this action. They sought to quiet title to a public easement for recreational purposes, including walking running, fishing, and riding horses and bicycles. They also sought injunctive and declaratory relief. They named as defendants the Landowners and NID.

Eventually the matter came on for trial. Friends of the Trails adduced evidence from 19 witnesses summarized as follows by the trial court. "The use [of the canal road] spanned the period from the 1940's through 1971. These witnesses all used the canal road themselves and also saw others using the canal road. The evidence clearly established that the use was more than just neighbors crossing neighboring land, and that the use was made by various people, young and old, families and single persons, friends, guests, visitors and strangers, coming from nearby as well as from more than four miles away. The uses included walking, jogging, riding bicycles or horses, and fishing, as well as using the canal road as a means to get from one place to another, and to go to or from school.... [¶] ...

"All the witnesses called by plaintiffs testified that they neither asked nor received permission to use the canal road. All those witnesses testified that no objection was ever made to their use. All those witnesses testified that they believed the canal road was a public right-of-way, and that they used it as such."

The trial court's statement of decision explains its view that Friends of the Trails had proved the public acquired an easement for recreational purposes before March 1972, in the manner provided for under Gion-Dietz, supra, 2 Cal.3d 29. The ensuing judgment declares the public had acquired title to: "an easement for public right-of-way and recreational purposes across the property presently owned by Jon and Robin Blasius." The judgment provides that the easement: "consists of the width of the Rattlesnake Canal plus its westerly berm, which is nine feet wide, more or less ...." It provides that the easement is: "for non-motorized right-of-away and recreational uses by the public, being walking, jogging, riding bicycles and horses, and fishing in the Rattlesnake Canal. Such easement rights are subordinate to the easement rights of record in the Blasius Property held by the defendant [NID]." The

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judgment enjoins the Landowners from interfering with or obstructing the easement so declared. In conclusion it recites: "No relief is granted in favor of plaintiffs against defendant [NID]."

In proceedings after judgment, Friends of the Trails were awarded attorney's fees, under Code of Civil Procedure section 1021.5, and costs of suit against NID and the Landowners.



The Landowners contend the trial court erred in finding a public easement. They argue that such an easement is an unwarranted application of Gion-Dietz, supra, 2 Cal.3d 29, and, in any event, is precluded under the law pertaining to easements because of the preexisting NID easement. We disagree.

A. Gion-Dietz and the Law of Implied Dedication of a Public Easement

We first turn to a brief survey of the doctrine of implied-in-law dedication on which the claim of a public easement is predicated.

Dedications may occur pursuant to statute or the common law. (See 26 Cal.Jur.3d (1976) Dedication, § 2.) Here we are concerned with the common law. Doctrinal impediments have barred the application of the common law of prescription to justify the acquisition of a public easement. (See, e.g., Bruce & Ely, The Law of Easements and Licenses in Land (rev. ed. 1995) ¶ 5.09, pp. 5-45 to 5-46.) For this reason in California it is said that "[a] public easement arises only by dedication." (People v. Sayig (1951) 101 Cal.App.2d 890, 896 [226 P.2d 702]; see also Bolger v. Foss (1884) 65 Cal. 250, 251 [3 P. 871]; Smith v. Kraintz (1962) 201 Cal.App.2d 696, 701 [20 Cal.Rptr. 471].)

"Dedication has been defined as an appropriation of land for some public use, made by the fee owner, and accepted by the public. By virtue of this offer which the fee owner has made, he is precluded from reasserting an exclusive right over the land now used for public purposes. American courts have freely applied this common law doctrine, not only to streets, parks, squares, and commons, but to other places subject to public use. California has been no exception to the general approach of wide application of the doctrine." (Gallagher et al., Implied Dedication: The Imaginary Waves of Gion-Dietz (1973) 5 Sw. U. L.Rev. 48, 52, fns. omitted (hereafter Implied Dedication).)

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A common law dedication may be express or implied. Express dedication arises where the owner's intent to dedicate is manifested in the overt acts of the owner, e.g., by execution of a deed. An implied dedication arises when the evidence supports an attribution of intent to dedicate without the presence of such acts. (See 26 Cal.Jur.3d, supra, Dedication, § 4; Implied Dedication, supra, 5 Sw. U. L.Rev. at p. 53.) A dedication is implied in fact when the period of public use is less than the period for prescription and the acts or omissions of the owner afford an implication of actual consent or acquiescence to dedication. (See, e.g., Union Transp. Co. v. Sacramento County (1954) 42 Cal.2d 235, 241 [267 P.2d 10].) A dedication is implied by law when the public use is adverse and exceeds the period for prescription. (Ibid.)

In Gion-Dietz, supra, 2 Cal.3d 29, the California Supreme...

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