Hubbard v. Brown

Decision Date15 February 1990
Docket NumberNo. S009697,S009697
Citation266 Cal.Rptr. 491,50 Cal.3d 189,785 P.2d 1183
CourtCalifornia Supreme Court
Parties, 785 P.2d 1183 Wayne K. HUBBARD et al., Plaintiffs and Appellants, v. Ben BROWN, Jr., et al., Defendants and Respondents

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

Mackenroth, Seley & Anwyl, Dennis G. Seley, Robert M. Shannon, Robert A. Cutbirth, Sacramento, Marer, Marer & Schuck and Gerald Z. Marer, Palo Alto, for defendants and respondents.

PANELLI, Justice.


A motorcycle rider was injured as a result of colliding with a barbed wire gate which had been erected across a road in a national forest by the holder of a federal grazing permit. The injured rider sued the permit holder for negligence. Citing section 846 of the Civil Code (hereafter "section 846"), which immunizes owners of interests in real property from liability arising out of recreational use of the property, the trial court granted summary judgment for the holder of the grazing permit. A divided Court of Appeal reversed, the majority observing that the regulations governing federal grazing permits declare that the granting of such a permit creates no property "right, title, or interest" in the permittee. We granted review to decide whether the holder of a federal grazing permit is entitled to immunity under section 846.

In section 846 the Legislature expressed a strong policy that land should be open to recreational use. Section 846 accomplishes this purpose by immunizing persons with interests in property from tort liability to recreational users, thus making recreational users responsible for their own safety and eliminating the financial risk that had kept land closed. The Legislature adopted an exceptionally broad definition of the types of "interest" in property which will trigger immunity. Under the statute, immunity extends to the "owner of any estate or any other interest in real property whether possessory or nonpossessory." (§ 846.) In contrast, the federal regulation relied on by the Court of Appeal is designed simply to assure that a grazing permittee acquires no interest in federal land that is compensable in eminent domain proceedings. Because the Court of Appeal incorrectly relied on this inapposite regulation to defeat the purpose of section 846, we reverse.


Defendant Ben Brown, Jr., occupies some 40,000 acres in the El Dorado National Forest under a United States Forest Service ("Forest Service") grazing permit. Under the permit, Brown was authorized to graze approximately 600 head of livestock in exchange for the payment of a grazing fee. By the terms of his agreement with the Forest Service, Brown was obligated to carry out the provisions of an "Allotment Management Plan" ("Plan"). The Plan, among its other provisions, specified when cattle would be placed on and taken off the range, required placing of salt for livestock and made Brown responsible for maintaining all improvements, including fences, on the allotted range. The permit was effective for nearly 10 years, and gave Brown priority consideration for renewal. Brown's annual grazing fee was approximately $1,000.

Brown left the grazing area open to persons for recreational purposes. In July 1984, plaintiff Wayne K. Hubbard rode his off-road motorcycle on a Forest Service road in the vicinity of Brown's permitted grazing area. Hubbard was injured when he struck an unmarked barbed wire gate which was strung across the roadway. Brown had erected a barbed wire fence and the gate in order to control movement of his cattle on the land.

Hubbard and his wife ("Hubbard") sued Brown on a negligence theory, seeking damages for personal injury and loss of consortium. Claiming immunity under section 846, Brown moved for summary judgment. The trial court granted Brown's motion and dismissed, ruling that "under current law, the permit held by moving parties does constitute an interest in land for purposes of Civil Code section 846." The Court of Appeal reversed. The court agreed with Hubbard that federal grazing permit holders do not acquire an interest in real property within the meaning of section 846. In so holding, the court cited federal regulations which provide that a grazing permittee acquires no right, title or interest in the land.

A. Section 846

Section 846 was enacted in 1963. It immunizes the "owner of any estate or any other interest in real property, whether possessory or nonpossessory," from liability arising from the recreational use of the property. 1 Section 846 was enacted to encourage property owners to allow the general public to engage in recreational activities free of charge on privately owned property. (Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707-708, 190 Cal.Rptr. 494, 660 P.2d 1168, cert. den. 464 U.S. 915, 104 S.Ct. 277, 78 L.Ed.2d 257.) The statutory goal was to constrain the growing tendency of private landowners to bar public access to their land for recreational uses out of fear of incurring tort liability. (Pacific Gas & Electric Co. v. Superior Court (1983) 145 Cal.App.3d 253, 256, 193 Cal.Rptr. 336; Parish v. Lloyd (1978) 82 Cal.App.3d 785, 787-788, 147 Cal.Rptr. 431.)

Contrary to the position of the Court of Appeal, we believe the legislative history of section 846 clearly demonstrates that a federal grazing permit is an interest in real property sufficient to qualify its holder for the immunity provided by that statute.

As originally enacted, section 846 immunized only "[a]n owner of any estate in real property." (Stats.1963, ch. 1759, § 1, p. 3511.) In 1980, the Legislature amended section 846 to its present form by inserting the words "or any other interest" and "whether possessory or nonpossessory" into the section's first paragraph. (Stats.1980, ch. 408, § 1, p. 797.) As the Court of Appeal recounted in its opinion in this case, the purpose of the amendment was to negate limitations placed on section 846 by that court in two previous opinions. Those opinions, Darr v. Lone Star Industries, Inc. (1979) 94 Cal.App.3d 895, 157 Cal.Rptr. 90, and O'Shea v. Claude C. Wood Co. (1979) 97 Cal.App.3d 903, 159 Cal.Rptr. 125, held that section 846 immunized only the holders of possessory interests in real property.

Darr involved an easement to cross the American River granted to a private gravel company by the State of California. The company constructed a low-level bridge on the easement, from which the plaintiff dove and was injured. The Court of Appeal said that because the easement was a nonpossessory interest in real property, 2 it was not an "estate in real property" such that section 846 applied to immunize its holder. (Darr v. Lone Star Industries, Inc., supra, 94 Cal.App.3d 895, 900-901, 157 Cal.Rptr. 90.) O'Shea, supra, 97 Cal.App.3d 903, 159 Cal.Rptr. 125, involved an action against an earth removal contractor and others by a motorcyclist who was injured while riding in an area in which the contractor had stockpiled removed earth, pursuant to a license from a private property owner allowing him to do so. The trial court had granted the contractor's motion for summary judgment. Reversing, the Court of Appeal held that in enacting section 846, the Legislature did not intend to disturb the common law rule of limited liability to owners and possessors; hence, "[t]he statutory limitation applies to those who have a possessory interest, which includes the right to exclusive occupation as against the injured user." (97 Cal.App.3d at p. 911, 159 Cal.Rptr. 125.) Because the contractor had failed to establish that his license entitled him to possession of the premises as against plaintiff and other third parties, a triable issue of fact remained. (Id. at p. 912, 159 Cal.Rptr. 125.)

It is clear that the Legislature intended, when amending section 846, to broaden the scope of the statute so that it would apply to the Darr and O'Shea contexts in future cases. Assembly Bill No. 1966, 1980 Regular Session, which amended section 846, was introduced just three months after the decision in O'Shea. As the Court of Appeal in this case noted, reports by both legislative committees that considered the bill cited Darr and O'Shea as the impetus for the amendment. (See Legis. Counsel's Dig., Assem. Bill No. 1966, 4 Stats. 1980 (Reg. Sess.) Summary Dig., p. 110; Liability-Recreational Use of Land, Sen. Com. on Judiciary 1979-1980 (Reg. Sess.) Feb. 11, 1980.) By amending section 846, the Legislature indisputably intended to remove the Darr and O'Shea limitations and to immunize the owner of any interest in real property regardless of whether the interest includes the right of exclusive possession. Though acknowledging these facts of legislative history and intent, the Court of Appeal nevertheless found that certain provisions of the federal regulations governing grazing permits overrode the Legislature's intention as regards federal lands. We disagree.

B. Federal Grazing Permit Regulations

The majority opinion of the Court of Appeal rests on the premise that the federal government has paramount authority to determine whether an "interest in real property" is created in federal lands. Because title 36 of the Code of Federal Regulations, section 222.3(b) (1989) ("section 223.3(b)") states that "[g]razing permits and livestock use permits convey no right, title, or interest held by the United States in any lands or resources," the Court of Appeal reasoned that defendant did not possess an interest in land for the purposes of section 846.

It is true that the holder of a federal grazing permit is, for the purpose of eminent domain proceedings, a licensee without compensable property rights. (Osborne v. United States (9th Cir.1944) 145 F.2d 892, 895-896; Tidwell v. State ex rel. Herman (1973) 21 Ariz.App. 3, 514 P.2d 1260, 1262-1263; Acton v. United States (9th Cir.1968) 401 F.2d 896, 899, cert. den. 395 U.S. 945, 89 S.Ct. 2018, 23 L.Ed.2d...

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