Hubbard v. Brown

• Decision Date: 08 March 1989
• Docket Number: No. C003683,C003683
• Citation: 256 Cal.Rptr. 430,208 Cal.App.3d 691
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 208 Cal.App.3d 691 208 Cal.App.3d 691 Wayne K. HUBBARD et al., Plaintiffs and Appellants, v. Ben BROWN, et al., Defendants and Respondents.

Page 430

256 Cal.Rptr. 430

Previously published at 208 Cal.App.3d 691

208 Cal.App.3d 691

Wayne K. HUBBARD et al., Plaintiffs and Appellants, v. Ben BROWN, et al., Defendants and Respondents.

No. C003683.

Court of Appeal, Third District, California.

March 8, 1989.

Certified for Partial Publication ^*

As Modified on Denial of Rehearing March 27, 1989.

Review Granted May 18, 1989.

Wade R. Thompson, Sacramento, and William M. Lyons, for plaintiffs and appellants.

Mackenroth, Seley & Anwyl, Robert Shannon and Robert Cutbirth, Sacramento, for defendants and respondents.

SPARKS, Acting Presiding Justice.

Civil Code section 846 generally immunizes real property owners from liability arising from the recreational use of their property. Under its terms, the statute protects the "owner of any estate or any other interest in real property, whether possessory or nonpossessory." The central question in this case is whether the holder of a grazing permit issued by the federal Forest Service on land in a national forest has an "interest in real property" within meaning of the statute. We hold that the permit holder has no real property interest in federal forest lands and consequently is not statutorily entitled to immunity against a recreational user.

Plaintiffs Wayne and Karen Hubbard appeal from a judgment of dismissal entered in favor of defendant Ben Brown, Jr., after the trial court granted defendant's motion Plaintiff's appeal takes two tacks. First, he claims that the record demonstrates a dispute over the location of the accident, an argument we reject in the unpublished portion of this decision. Second, he argues that defendant's grazing permit is not an "interest in real property" for purposes of section 846's immunity. We agree with plaintiff's second contention. Because the controlling federal statute and regulations unequivocally provide that the issuance of a grazing permit on federal forest lands conveys no interest in those lands, the defendant permit holder did not obtain an interest in real property as required by the statute. We shall therefore reverse the trial court's judgment.

for summary judgment. ¹ The trial court found no factual dispute and ruled that Civil Code section 846 (subsequent undesignated section references are to this code) immunized the defendant from any liability for plaintiff's recreational injuries.

FACTUAL AND PROCEDURAL BACKGROUND

The parties agree upon the essential facts of the case. Defendant occupies land in the El Dorado National Forest under a United States Forest Service grazing permit. Defendant's permit covered three separate areas. The area where the accident occurred started at Kyburz and ended at Caples Lakes. It contained some 40,000 acres. Under the permit, defendant was authorized to graze 250 pair of cattle and 100 head of dry cows in exchange for the payment of a grazing fee. Although the permit itself is not part of the record, we are told by the parties that the permit was effective for nearly 10 years. Under its terms, defendant was required to pay for his proportionate share of cooperative improvements. It is further asserted that the permit gave defendant priority on renewal.

The undisputed facts show that defendant kept the grazing area open to persons for recreational purposes "including but not limited to motorcycle riding." He has never received any consideration for granting permission to use the grazing site recreationally.

In July 1984, plaintiff rode his off-road motorcycle on an undeveloped forest service road in the vicinity of defendant's permitted grazing area. Plaintiff sustained injuries when he struck an unmarked barbed wire gate which ran across the roadway. Defendant had erected the barbed wire fence and gate to control movement of his cattle on the land.

Plaintiff and his wife sued defendant for negligence and loss of consortium. Defendant eventually moved for summary judgment. He claimed that the accident occurred on property he occupied under his grazing permit. According to defendant, he had erected the barbed wire fence and gate solely to control the movement of cattle on the road and not to mark the boundaries of his grazing acreage. He argued that Civil Code section 846 immunized him from any liability for plaintiff's injuries.

In opposition to the motion, plaintiff disputed the location of the barbed wire fence and gate in relation to defendant's grazing use area. His unspoken premise is that if defendant erected the barbed wire on property in which he did not have any interest, the immunity of an owner under section 846 could not protect him. Plaintiff further argued that even if the fence had been properly located within the grazing area, defendant's grazing permit, characterized as a mere license, was not an "interest in real property" within the meaning of section 846.

The trial court granted defendant's motion, ruling that defendant's grazing permit "does constitute an interest in land for

                purposes of Civil Code § 846."   This appeal followed
                

DISCUSSION

I

As always, we begin with the statute. Section 846 provides in pertinent part: "An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purpose, except as provided in this section." The statute then defines "recreational purpose," amplifies the extent of the immunity, and excepts certain conduct from the immunity. ²

We recently considered section 846 in the context of a summary judgment motion in Charpentier v. Von Geldern (1987) 191 Cal.App.3d 101, 236 Cal.Rptr. 233. There we noted the section "establishes limited liability to a private landowner for injuries sustained by another from recreational use of the land. It is an exception to the general rule that a private landowner owes a duty of reasonable care to any person coming upon the land. Under section 846, the landowner's duty toward the nonpaying, uninvited recreational user is, in essence, no greater than that owed a trespasser under the common law as it was known prior to Rowland v. Christian, (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561. The recreational trespasser on private land assumes the risk of injury, ... absent willful or malicious misconduct by the landowner. The legislative purpose of that statute, by eliminating the threat to the landowner of gratuitous tort liability, is to encourage the landowner to keep the property accessible and open to the public for recreational use without charge." (Id., at pp. 106-108, 70 Cal.Rptr. 97, 443 P.2d 561, citations and fn. deleted.)

The summary judgment motion in this case squarely framed the issue of the defendant's entitlement to the limited immunity of section 846. Before reaching that question, however, we must first determine whether there are any triable issues of material fact with respect to the location of the accident which might negate the application of section 846. Concluding in the unpublished portion of this opinion that there are no such triable issues, we then consider whether the holder of a grazing permit in a national forest is an owner of an interest in real property under the statute.

II ^**

III

We come to the central dispute between the parties--the application of section 846. Plaintiff claims that defendant's grazing permit "can be construed as at the very most, a license. As such, a licensee is not entitled to the protection afforded by Civil Code Section 846." Defendant counters that under the facts of this case his grazing permit is more than a mere license, and suggests that it should be considered as an executed license, and thus the equivalent of an easement. Alternatively, defendant argues that even if the grazing permit constitutes a mere license, a license is an interest within section 846.

In order to determine the interest conveyed by the grazing permit, we first consider the nature of a right to graze cattle on land. We then examine the special character of a federal grazing permit on federal forest lands. Finally, we consider whether a such a federal grazing permit is an interest in real property within the meaning of the statute.

A. The Right of Pasture in California.

In California, the term "real property" is "defined by section 14, subdivision 2, Civil Code, as 'coextensive with lands, tenements, and hereditaments', to which Blackstone gives the appellation 'things real.' " (Callahan v. Martin (1935) 3 Cal.2d 110, 118, 43 P.2d 788; see also § 658.) By a residual definition, every kind of property that is not real is personal. ( § 663.)

As the Callahan court noted, the "common law included, in addition to lands and tenements, in the category of things real, hereditaments, corporeal and incorporeal, and section 14, subdivision 2 of the Civil Code, noted above, preserves this classification. A hereditament, as defined by Blackstone, included not only lands and tenements, but whatsoever passed to the heirs at law, rather than to personal representatives, 'be it corporeal or incorporeal.' Blackstone lists ten sorts of incorporeal hereditaments: advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities and rents.... Of the ancient incorporeal hereditaments listed by Blackstone, several either are not recognized at all in this country, or, if they do not involve rights in or to land, are not classed as things real. But a number of the common-law incorporeal hereditaments which involve rights connected with or pertaining to land persist, and are recognized generally as a species of interest in land, or estate in real property. [p] The incorporeal hereditament of common is defined by Blackstone as 'being a profit which a man hath in the land of another; as to feed his beasts, to catch fish, to dig...