Bello v. Aba Energy Corp.

• Decision Date: 02 August 2004
• Docket Number: No. A102287.,A102287.
• Citation: 121 Cal.App.4th 301,16 Cal.Rptr.3d 818
• Court: California Court of Appeals Court of Appeals
• Parties: Tony BELLO et al., Plaintiffs and Appellants, v. ABA ENERGY CORPORATION, Defendant and Appellant.

16 Cal.Rptr.3d 818

121 Cal.App.4th 301

Tony BELLO et al., Plaintiffs and Appellants, v. ABA ENERGY CORPORATION, Defendant and Appellant.

No. A102287.

Court of Appeal, First District, Division 1.

August 2, 2004.

Bernheim, Gutierrez & McCready, William S. Bernheim, Dixon, for Plaintiffs and Appellants.

Downey Brand, Julie A. Carter, Tracy K. Hunckler, David A. Livingston, Sacramento, for Defendant and Appellant.

Jennifer Henning for League of California Cities and California State Association of Counties as Amici Curiae on behalf of Defendant and Appellant.

Anderson & Poole, Edward G. Poole, San Francisco, Shannon M. Childs for California Natural Gas Producers Association as Amicus Curiae on behalf of Defendant and Appellant.

MARGULIES, J.

Plaintiffs own a parcel of land in rural Solano County bounded by a county road. The land underlying and immediately adjoining the road is subject to a public right-of-way. Defendant ABA Energy Corporation (ABA) is a private company that operates a natural gas field located near plaintiffs' parcel. After obtaining an appropriate permit from the county, but without notice to plaintiffs, ABA installed a pipeline in the right-of-way on plaintiffs' land to transport natural gas recovered from ABA's drilling operations. Plaintiffs sued for trespass, contending that ABA was required to obtain their consent before laying pipe in the right-of-way. The trial court agreed with plaintiffs, finding that ABA's pipeline constituted a trespass, but the court refused to require ABA to remove the line and awarded only nominal damages.

ABA contends that the trial court erred in finding a trespass. Plaintiffs contend in their cross-appeal that the trial court erred in permitting the pipeline to remain, in awarding only nominal damages, and in refusing to award attorney fees. We reverse the trial court's finding that ABA is a trespasser, direct entry of judgment for ABA, and dismiss plaintiffs' cross-appeal as moot.

I. BACKGROUND

Plaintiffs Tony, Virginia and Frank Bello (Bellos) are the trustees of three living trusts that together own a 320-acre parcel of agricultural land in Solano County. At the time of trial, the parcel was farmed by tenants and planted with clover and alfalfa. The northern border of the Bellos' property is subject to a 30-foot-wide public right-of-way in favor of the county. The full width of the right-of-way is 60 feet, containing a 30-foot-wide paved county road, Midway Road, and 15 feet of unpaved reserve on either side. Because the right-of-way is shared by the parcel across the road, the Bellos' parcel supports one longitudinal half of the road and one of the unpaved shoulders.

ABA is a privately owned natural gas exploration and production company. In the year 2000, ABA drilled natural gas wells on property near the Bellos' parcel. ABA anticipated that the unprocessed natural gas recovered from these wells would be transported by pipeline to a metering station operated by the local natural gas utility, Pacific Gas & Electric Company (PG & E). At that point, ABA's gas would be mixed with gas from other producers. ABA's customers, rather than receiving the actual gas recovered by ABA, would be entitled to draw from PG & E's natural gas delivery system a cubic yardage equivalent to that delivered into the system by ABA. As ABA's president testified, the system "is similar to a bank."

To transport the gas recovered from the well, ABA applied to the county for a right-of-way encroachment permit authorizing the burial of a four-mile-long, four-inch metal pipeline in the shoulder along local roads. Approximately one mile of the proposed pipeline was to be buried in the right-of-way alongside Midway Road, including that portion of Midway Road on the Bellos' parcel. The county approved the permit, and ABA installed the pipeline. ABA neither sought nor received the consent of the underlying landowners to installation of the pipeline.

The Bellos filed this action for trespass and ejectment after ABA had completed construction of the pipeline. Their complaint asserted that ABA was required to obtain their consent prior to burying a pipeline in the roadway right-of-way on their property and sought damages and an injunction requiring ABA to remove the pipeline.

The case was tried without a jury. In its statement of decision, the trial court concluded that ABA's installation of the pipeline was not within the scope of uses permitted in the public right-of-way because "[t]he installation of a natural gas pipeline within [the] easement is not a use incidental to the road purposes for which the right-of-way was acquired by the county." Based on its conclusion that the pipeline was not a proper use of the right-of-way, the court found that ABA, having never obtained the Bellos' consent to installation of the pipeline, was a trespasser. Nonetheless, the court granted only nominal damages, finding that the pipeline did not interfere with the Bellos' use of their land and that they had provided no evidence to support their claim that the pipeline had diminished the value of their property. Because ABA's trespass was made in good faith and did not injure the Bellos, the court found that the balance of hardships weighed against their request for removal of the pipeline and denied injunctive relief. The trial judge also declined to award attorney fees.

II. DISCUSSION

We first address ABA's contention that the trial court erred in finding that it was required to obtain the Bellos' consent before installing a pipeline in the public right-of-way on their property.¹ Although the trial court cited no legal authority in its decision, the language of its ruling suggests that the court was relying on Gurnsey v. Northern Cal. Power Co. (1911) 160 Cal. 699, 117 P. 906 (Gurnsey), in which the Supreme Court held that the defendant's installation of electrical transmission poles and lines in the right-of-way along a "public wagon road" across a "large tract of land" in Tehama County (id. at p. 702, 117 P. 906) constituted a trespass because the electric lines did not serve "purposes incidental to the effective use by the public of the highway." (Id. at p. 705, 117 P. 906.)

Gurnsey represents one of two distinct lines of authority in the Supreme Court's right-of-way jurisprudence. The second line was established nearly 20 years prior to Gurnsey by Montgomery v. Railway Company (1894) 104 Cal. 186, 37 P. 786 (Montgomery), in which the Supreme Court allowed an interurban railway to be constructed in a public right-of-way without the landowner's consent. Montgomery holds that, 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. (Id. at p. 189, 37 P. 786.) This expansive approach was reaffirmed by Colegrove W. Co. v. City of Hollywood (1907) 151 Cal. 425, 90 P. 1053 (Colegrove), decided only four years prior to Gurnsey.

We find Gurnsey distinguishable in these circumstances and hold that the standard adopted in Montgomery governs use of the right-of-way along the Bellos' property. The rule of law announced by Gurnsey is applicable only to rights-of-way that have yet to be subjected to the "other and further uses" that are incident to modern development. (Montgomery, supra, 104 Cal. at p. 189, 37 P. 786.) Because public rights-of-way even in rural portions of the San Francisco Bay Area are now subject to the intensive use described in Montgomery, the rule of law adopted in that case must govern here.

A. The Supreme Court's Public Right-of-way Jurisprudence

A public right-of-way is a form of easement, in that it grants use rights in a particular parcel of land to nonowners of the land. (Civ.Code, § 801, subd. (4); City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 240, 52 Cal.Rptr.2d 82, 914 P.2d 160.) A private easement ordinarily vests those use rights in the owner of a particular parcel of neighboring property, the "dominant tenement." (Moylan v. Dykes (1986) 181 Cal.App.3d 561, 568, 226 Cal.Rptr. 673.) Unlike a private easement, the use rights of a public right-of-way are vested equally in each and every member of the public. (In re Anderson (1933) 130 Cal.App. 395, 398-399, 19 P.2d 1027.) The city or county government ordinarily administers use of the right-of-way. (E.g., Sts. & Hy.Code, §§ 1450, 1460.)

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. (See, e.g., Muller v. Railway Co. (1890) 83 Cal. 240, 243-244, 23 P. 265; S.P.R.R. Co. v. Reed (1871) 41 Cal. 256, 261-262.) 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.

In Montgomery, supra, the court expressly overruled the prevailing narrow interpretation of rights-of-way in holding 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. Summarizing its holding, the Montgomery court "affirm[ed] that when a public street in a city is dedicated to the general use of the public, it involves its use subject to municipal control and limitations for all the uses and purposes of the public as a street, including such methods for the transportation of passengers and freight as modern science and improvements may have rendered necessary, and that the application of these methods and indeed of those yet to be discovered, must have been...