Horgan v. Felton
| Decision Date | 21 November 2007 |
| Docket Number | No. 45551.,45551. |
| Citation | 170 P.3d 982 |
| Parties | John P. HORGAN, III, and Dorothy L. Horgan; Andrew M. Spieker and Gail S. Spieker; Cathy J. McAuliffe; Charles J. Wilson and Debra S. Wilson, Appellants/Cross-Respondents, v. D.D. FELTON and Paul J. Felton, Partners of the Dianne Daiss Felton Family Limited Partnership of 1997, a Nevada Limited Partnership; Jane Thornton Daiss, as Trustee of the Robert M. Daiss and Jane Thornton Daiss 1981 Trust No. 1; Jepsen Properties, Inc., a Nevada Corporation; and Edward F. Biggs and Charlotte L. Biggs, as Trustees of the Biggs Family Trust Dated August 12, 1986, Respondents/Cross-Appellants. |
| Court | Nevada Supreme Court |
Lionel Sawyer & Collins and Dan C. Bowen and Janet S. Bessemer, Reno, for Appellants/Cross-Respondents Horgans and Spiekers.
Michael B. Springer, Reno, for Appellants/Cross-Respondents McAuliffe and Wilsons.
Richard Glasson, Lake Tahoe, for Respondents/Cross-Appellants Feltons and Daiss.
Hale Lane Peek Dennison & Howard and Patricia C. Halstead and Richard L. Elmore, Reno, for Respondents/Cross-Appellants Biggs and Jepsen Properties.
BEFORE THE COURT EN BANC.
In this case, we primarily reexamine our decision in Sandy Valley Associates v. Sky Ranch Estates,1 which states that attorney fees as damages are available in cases clarifying or removing a cloud on title to property. We now retreat from that statement and hold that in cases concerning title to real property, attorney fees are only allowable as special damages in slander of title actions, not merely when a cloud on the title to real property exists.
The underlying litigation in this case involves the property rights of seven neighboring homeowners in the Lake Tahoe community of Glenbrook, Nevada. Respondents/cross-appellants Jane Thornton Daiss, as trustee for the Robert M. Daiss and Jane Thornton Daiss 1981 Trust No. 1, Jepsen Properties, Inc., and Edward and Charlotte Biggs, as trustees of the Biggs Family Trust, own residences that abut a beach in Glenbrook. Appellants/cross-respondents John and Dorothy Horgan, Andrew and Gail Spieker, Cathy McAuliffe, and Charles and Debra Wilson own residences east of those beachfront properties, separated from them by Golf Links Road. Respondents/cross-appellants Dianne and Paul Felton own the remaining residence. The Feltons' residence, like that of the appellants/cross-respondents, is located to the east of Golf Links Road and does not abut the beach.
Golf Links Road is a roadway easement providing access to the homeowners' respective residences. The recreational beach easement is comprised of the "sand" of the beach area, the "slope" from the beach area up to the residences above, and the "bluff," which is the area above the slope and the sand just west of the property lines of Daiss, Jepsen Properties, and the Biggs. All of the parties' parcels are benefited by the recreational beach easement, except for the Feltons'. Daiss currently owns the recreational easement, which is referred to by the parties as Parcel 7.
The Horgans initiated this litigation by filing a complaint for declaratory relief and to quiet title, naming as defendants only two other property owners. By the time of trial, the owners of all affected parcels were involved in the litigation.
In the litigation before the district court, the appellants/cross-respondents, collectively referred to as the Horgan group, sought a declaration that they were the owners of Golf Links Road, an order that Daiss and the Feltons remove improvements that the Horgan group alleged impeded their use of the road, and an order requiring that Daiss and the Feltons re-grade and repave the road. The Horgan group also sought declaratory relief regarding the extent of both their use of the recreational beach easement and the boundaries thereof.
Jepsen Properties and the Biggs counterclaimed against the Horgan group for declaratory relief as to the road easement and for adverse possession as to the recreational easement. Jepsen Properties and the Biggs also cross-claimed against Daiss and the Feltons for adverse possession as to the recreational easement.
After the trial concluded, the district court entered its judgment, finding that the Horgan group and their predecessors have continuously used the recreational easement. Thus, their right to the recreational easement (whether by prescription, adverse possession, abandonment, or any other theory under which ownership to real property can change without a deed) had not been extinguished. In its judgment, the district court concluded that the original grantor's reservation of the recreational easement and the right to prescribe reasonable regulations necessary for the safe and proper enjoyment of the easement "runs with the land." Further, the district court concluded that this reservation of the recreational easement provided a sufficient basis on which the court could fashion new rules effectuating the equitable resolution of the parties' disputes over the easement's use. The district court then promulgated rules pertaining to the easement's use and awarded attorney fees jointly and severally against respondents/cross-appellants, collectively referred to as the Daiss group, in favor of the Horgan group as follows: $187,814.82 to the Horgans; $20,031 to the Spiekers; and $12,978.50 to McAuliffe and the Wilsons. The parties' appeal and cross-appeals followed.
While the parties raised numerous issues below, on appeal and cross-appeal, we primarily address whether Jepsen Properties and the Biggs extinguished a portion of the recreational easement; whether the right to promulgate rules concerning the reasonable use of the recreational easement under the deed survived the grantor and vested in the servient tenant; whether the district court has rulemaking authority under the deed; and whether attorney fees are appropriate in this case.
Standard of review
The district court's findings of fact will be upheld unless they are not supported by substantial evidence or are clearly erroneous.2 Substantial evidence is evidence that "`a reasonable mind might accept as adequate to support a conclusion.'"3 Such evidence need not be voluminous and may be inferentially shown by a lack of certain evidence in the record.4 Pure legal issues are reviewed de novo.5
Extinguishment of the easement
On cross-appeal, Jepsen Properties and the Biggs argue that they extinguished a portion of the recreational easement by adverse use. We disagree.
An easement may be extinguished by, among other ways, prescription, provided the use is adverse to the easement's owner and such adverse use is, for the period of prescription, continuous and uninterrupted.6 Based on the lack of evidence in the record showing that Jepsen Properties and the Biggs adversely, continuously used any portion of the recreational easement over the required five-year prescription period, we conclude that substantial evidence supports the district court's determination that Jepsen Properties and the Biggs failed to extinguish any part of it.7
Specifically, the district court found that until recently most of the residences situated on the parties' parcels were vacation homes and not occupied on a year-round basis. Because each owner occupied his property only part of the time, the owners, or their predecessors in interest, of the parcels closer to the bluff could act, and to some extent did act, with a full intention to exclude the backlot owners from using the recreational easement. In particular, some of the Daiss group installed sprinkler systems and landscaping on those parts of the bluff and slope between their respective parcels and the sand. Likewise, some of the Daiss group erected fences on or across the bluff.
However, because the Horgan group was able to climb over or walk around the fences erected near the bluff, their access to the bluff area of the recreational easement was not completely obstructed. Likewise, evidence adduced at trial indicated that the Horgan group and their predecessors had made use of the recreational easement including strolling, sitting, reading, walking, picnicking, swimming, boating, and hitting golf balls. Based on the above evidence, we conclude that substantial evidence supports the district court's finding that Jepsen Properties and the Biggs failed to demonstrate that the easement was extinguished.
Rulemaking authority of the servient landowner
The parties dispute whether Jane Thornton Daiss, as the owner of the servient estate, has authority to make reasonable rules for the recreational easement's use. The Horgan group argues that the language of the easement grant itself is clear and unambiguous in its failure to provide for a right of rulemaking in the grantor's successors and assigns. The grant provides, in part,
[S]aid easement is ... subject to the right of the First Party to prescribe any and all reasonable regulations necessary for the safe and proper enjoyment of the easement hereby granted to the Second Parties....
Jepsen and the Biggs argue that the grantor's reservation of the rulemaking authority was clearly reserved to only "the First Party," i.e., the original grantor, and was a personal right that was not intended to pass to the grantor's heirs, successors, and assigns. We disagree.
The burden of an easement is appurtenant, so that the rights or obligations of servitude are tied to ownership or occupancy of a particular parcel of land and not tied to an individual.8 Here, Jane Thornton Daiss owns the servient estate and, therefore, has the right to prescribe any and all reasonable regulations necessary for the safe and proper enjoyment of the easement.9
While we conclude that the right to promulgate rules concerning the reasonable use of the recreational easement under the deed survived the grantor and vested in the servient tenant, the clear language of the deed does not provide the district court...
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