Prout v. Dep't of Transp.

• Decision Date: 18 December 2018
• Docket Number: C076812
• Citation: 242 Cal.Rptr.3d 483,31 Cal.App.5th 200
• Court: California Court of Appeals Court of Appeals
• Parties: Loren PROUT, Plaintiff, Cross-Defendant and Appellant, v. DEPARTMENT OF TRANSPORTATION, Defendant, Cross-Complainant and Respondent.

31 Cal.App.5th 200

242 Cal.Rptr.3d 483

Loren PROUT, Plaintiff, Cross-Defendant and Appellant,

v.DEPARTMENT OF TRANSPORTATION, Defendant, Cross-Complainant and Respondent.

C076812

Court of Appeal, Third District, California.

Filed December 18, 2018

As Modified January 16, 2019

Law Offices of Kenneth M. Foley, Kenneth M. Foley, San Andreas, for Plaintiff, Cross-defendant, and Appellant.

Jeanne Scherer, Chief Counsel, Ardine N. Zazzeron, Assistant Chief Counsel, Daniel E. Muallem, and Joseph P. Carroll for Defendant, Cross-complainant, and Respondent.

HULL, J.

Loren Prout filed an inverse condemnation action, alleging Department of Transportation (Caltrans) violated the Fifth Amendment of the United States Constitution in 2010 by physically occupying without compensation a long, narrow strip of Prout's land fronting State Highway 12, to make highway improvements. The land taken was a 1.31-acre strip, 20 feet wide and about 6,095 feet long. Caltrans cross-complained for breach of contract, promissory estoppel, and specific performance, alleging Prout agreed to dedicate the strip by deed for highway purposes 20 years earlier when he obtained an encroachment permit for a subdivision he was developing. Prout's subdivision map stated the strip of land fronting Highway 12, shown by hash marks on the map, was "IN THE PROCESS OF BEING DEEDED TO CALTRANS FOR HIGHWAY PURPOSES." No deed was signed or recorded.

After a bench trial on the bifurcated issue of liability, the trial court found Caltrans validly accepted the offer of dedication by physically occupying the strip for its highway improvements, and the court awarded specific performance on Caltrans's cross-complaint and ordered Prout to execute a deed.

On appeal, Prout claims the evidence is insufficient to support the trial court's finding that he agreed to dedicate the entire strip of land, as opposed to just a small area needed to connect the subdivision's private road to the state highway. Prout contends that, if dedication of the strip was a condition of the encroachment permit (as claimed by Caltrans), it was an illegal exaction under Nollan v. California Coastal Commission (1987) 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 ( Nollan ). Prout also argues Caltrans's 2012 cross-complaint for specific performance of a deed is barred by five-year statutes of limitations for recovery of real property. ( Code Civ. Proc., §§ 318 - 321 ; unless otherwise indicated, statutory section references that follow are to this Code.)

We conclude Prout's Nollan challenge is barred by his failure to file a timely petition for writ of mandamus, and his inverse condemnation claim fails because substantial evidence supports the trial court's finding that Prout made an offer to dedicate the entire strip of land in 1990 and did not revoke the offer before Caltrans accepted it by physically using the strip to make highway improvements in 2010-2011. We explain the cross-complaint is timely.

Accordingly, we affirm the judgment.

FACTS AND PROCEEDINGS

In 1977, Prout—a licensed real estate broker and land developer—acquired a 165-acre parcel of land on the north side of State Highway 12 in Calaveras County that he wanted to develop into a project called the Golden Oaks Ranchettes Subdivision. This was the first project he developed without partners. He hired civil engineer Roark Weber to prepare tentative and final maps and deal with encroachment issues. Weber was also hired as agent by the owner (C. Leland Hall) of land on the south side of Highway 12, who wanted an encroachment permit to connect Highway 12 to a private road in his 17 Arabian Ranch Subdivision. Hall is not party to this lawsuit, and the two subdivisions were unrelated.

In December 1989, Weber, as "agent" for the owners submitted to Caltrans an application for an encroachment permit allowing connections of the private roads to Highway 12. The application described the work Prout wanted to do within the State's right of way as "Encroachment from private roads to Highway 12, with two-way left-turn pocket...." Weber's letter to Caltrans said, "We understand Caltrans may require that we provide an easement across parcels 4 and 5 for road purposes" and also promised to provide a legal description and parcel map of the area to be dedicated, which apparently was not done.

On April 3, 1990, Caltrans issued an encroachment permit, granting permission to: "Construct two public road connections to connect two new private roads to Highway 12. Widen roadway, construct two left-turn pockets.... Right of way to 50 feet of centerline along Route 12 and drainage easements to be dedicated by subdivision map for 17 Arabian ranches and Golden Oaks Ranchett[e]s ." (Italics added.) The right of way to 50 feet of the center of the highway meant the 20-foot wide strip (1.31 acre) of vacant land was to be dedicated. The trial court noted Prout sometimes referred to it as 50 feet; a Caltrans engineer testified the reason to require a 50-foot dedication was to give Caltrans "free title" to the center line of the highway. Prout's work was to be completed by September 30, 1990, but the parties agreed to extend the date to March 31, 1991.

On November 20, 1990, a final subdivision map was recorded for Unit 1 of the subdivision Golden Oaks Ranchettes, creating 18 lots. The final map states that hash marks represent "AREA IN THE PROCESS OF BEING DEEDED TO CALTRANS FOR HIGHWAY PURPOSES." The hash marks delineated an area 20-feet wide, parallel to the centerline of Highway 12 and extending a total length of about 2,847 feet—599 feet to the west and 2,248 feet to the east of Toreno Way. The subdivision map was prepared and recorded by Weber as Prout's agent and therefore binds Prout ( Civ. Code, § 2330 ). Moreover, Prout himself signed the first page of the map, stating that Prout "consent[ed] to the preparation and recordation of this final map." Prout's signature on the first page also "dedicate[d] to public use any and all easements shown hereon except those easements and right of ways designated hereon as private." Prout testified he just signed whatever was presented to him "to get the ball rolling."

Caltrans argued it believed the dedication of the entire strip was complete when the offer and acceptance was reflected in the recorded subdivision map. A Caltrans MINI-MEMO shows that on October 29, 1990, someone asked, "Did we get dedication of R/W [right of way] 50' from ... both sides [of] Route 12? See attached Tentative Subdiv. Map dated 8/25/89. And map by Weber Assoc. dated 7-18-89. Also letter from Weber dated 12/27/89. This was to be dedicated by Map ." (Italics added.) A Caltrans permit engineer testified that, a few years before trial, Caltrans asked him to research the dedication issue. His understanding was that the 1990 memo reflected some sort of confirmation that in order to issue the permit, the dedication by map was to be sufficient.

At trial, Prout testified he believed the area to be dedicated was merely a small area needed to connect the subdivision's private road to the highway, shown with hash marks in "Detail ‘A’ " of Sheet 2 of 5 of the subdivision map, consisting of about 0.05 of an acre. In a written tentative decision incorporated by reference in the judgment, the trial court expressly found Prout's "testimony in that regard is simply not credible. Detail ‘A’ is clearly nothing more than a close-up drawing of the area of the intersection of Highway 12 and Toreno Way and provides additional distances and radials that could not be placed in the main drawing [due to lack of space]. There is nothing in the subdivision map to suggest the area to be dedicated to Caltrans is limited to that shown in Detail ‘A.’ "

On June 11, 1992, a subdivision map was recorded for Unit 2 of the Golden Oaks Ranchettes Subdivision, creating an additional 10 lots, most of which did not front Highway 12. This Unit 2 map, like the Unit 1 map, identified the strip with hash marks as "area in the process of being deeded to Caltrans for highway purposes." And Prout again signed his consent on the first page of the Unit 2 map.

Prout never transferred by deed the 1.31-acre strip of land. He admitted at trial that he has not been assessed or paid property taxes on that strip since the subdivision maps were recorded, and no assessor parcel number has been assigned to that strip of land. All fencing of subdivision lots leaves that strip of land (which has utility poles) on the highway side rather than within the subdivision. Prout has never received payment from Caltrans for its use of the strip.

In 2007, Caltrans began preparations to rehabilitate Highway 12. On September 12, 2007, Caltrans informed Prout by letter that an appraisal would be conducted to determine how much Caltrans would pay Prout for the 1.31-acre strip of land needed to accomplish the highway improvements.

However, in a December 3, 2008, letter to Prout, Caltrans asserted the terms of the April 1990 encroachment permit required that Prout dedicate the 1.31-acre strip of land to Caltrans, and Caltrans would be preparing a deed package for his signature. We disregard e-mails between Caltrans and its attorney, which Caltrans inadvertently disclosed during discovery and which should have been removed from the clerk's transcript after the trial court ruled them inadmissible as privileged attorney-client communications. Prout received the letter but did not make any objection to Caltrans.

In March 2009, Caltrans sent a letter to Prout asking him to sign an attached Grant Deed (which is not attached in the record on appeal).

Prout never signed a deed conveying the strip to Caltrans.

In 2009 or 2010, Caltrans began the highway improvements and physically occupied the strip for that purpose. There is no evidence that Prout revoked the offer or objected at any time before Caltrans physically occupied the strip. The exact nature of the improvements is not clear from the record, but Prout alleged that, "[a]s a direct and...