Riverside Cnty. Transp. Comm'n v. S. Cal. Gas Co.

• Docket Number: E069462
• Decision Date: 24 August 2020
• Citation: 54 Cal.App.5th 823,268 Cal.Rptr.3d 196
• Parties: RIVERSIDE COUNTY TRANSPORTATION COMMISSION, Plaintiff, Cross-defendant, and Appellant, v. SOUTHERN CALIFORNIA GAS COMPANY, Defendant, Cross-complainant, and Appellant.
• Court: California Court of Appeals Court of Appeals

54 Cal.App.5th 823

268 Cal.Rptr.3d 196

RIVERSIDE COUNTY TRANSPORTATION COMMISSION, Plaintiff, Cross-defendant, and Appellant,

v.SOUTHERN CALIFORNIA GAS COMPANY, Defendant, Cross-complainant, and Appellant.

E069462

Court of Appeal, Fourth District, Division 2, California.

Filed August 24, 2020

As Modified on Denial of Rehearing September 16, 2020

Certified for Partial Publication.^*

Gibson, Dunn & Crutcher, David A. Battaglia, Andrew M. Roach, and Jennifer K. Bracht, Los Angeles, for Defendant, Cross-complainant, and Appellant.

Best Best & Krieger, Scott W. Ditfurth, and Thomas M. O'Connell, Riverside, for Plaintiff, Cross-defendant, and Appellant.

Wolf Wallenstein & Abrams and Michael H. Wallenstein, Los Angeles; Mary C. Wickham, County Counsel, Los Angeles, and Charles M. Safer and Kathleen Dougherty, Deputy County Counsel, for Los Angeles County Metropolitan Transportation Authority; Geoffrey P. Forgione for Southern California Regional Rail Authority; and Julianna K. Tillquist for San Bernardino County Transportation Authority, as amici curiae on behalf of Plaintiff, Cross-defendant, and Appellant.

OPINION

RAMIREZ, P. J.

This case presents questions that have recurred at least since the 1860s (see, e.g., Water Commissioners of Jersey City v. City of Hudson (N.J. Ch. 1861) 13 N.J. Eq. 420 ), when rail lines, macadamized streets, water pipelines, sewer pipelines, gas pipelines, and soon electrical lines all began to proliferate across America: When the time comes to install or to improve any one of these modern conveniences, what is to be done about another one that stands in its way? Can one force the other to relocate? And if so, who must pay for the relocation?

Obviously, each of these cases is unique in some respects. Nevertheless, we discern a theme that runs through them: You can't stand in the way of progress.

So it is here. The Riverside County Transportation Commission (Commission) sought to extend its Metrolink commuter rail line from Riverside to Perris, using the route of a preexisting rail line that it had acquired. At five points, however, the new rail line would cross gas pipelines owned by the Southern California Gas Company (Gas Company). The Gas Company had installed these pipelines under city streets decades earlier, pursuant to franchises granted by the relevant cities and, in some instances, pursuant to licenses granted by the then-owner of the preexisting rail line. The new rail line could not be built as long as the pipelines remained in place.

The Commission terminated the licenses and demanded that the Gas Company relocate its pipelines at its own expense. The parties agreed that the Gas Company would relocate its pipelines to other points also owned by the Commission, and the Commission would pay the estimated expenses, but only provisionally; the Commission could still sue for reimbursement, and the Gas Company could then sue for any additional expenses.¹

The trial court ruled that the Gas Company had to bear all of the costs of relocation — in other words, you can't stand in the way of progress. However, it also ruled that the Gas Company had never trespassed on the Commission's land.

Both sides appeal. We will hold that the Gas Company did have to bear all of the costs of relocation. However, we will also hold that, at those points where the Gas Company held licenses for its pipelines, once the Commission terminated the licenses, the Gas Company could be held liable for trespass.

IFACTUAL BACKGROUND

A. The Trial Court's Evidentiary Rulings.

The facts in part IB., post , are taken from the evidence admitted in connection with the parties' cross-motions for summary adjudication.

The Commission objected to some of the Gas Company's evidence. The trial court overruled all but one of these objections.

Likewise, the Gas Company objected to some of the Commission's evidence.² The trial court overruled all but one of these objections.

The Commission also requested judicial notice of specified documents. The trial court granted the Commission's request in part and denied it in part.

Finally, the Gas Company also requested judicial notice of specified documents. The Commission objected to the Gas Company's request. It does not appear that the trial court ever expressly ruled on this request or on the objections thereto.

Neither side contends that any of these rulings were erroneous. Moreover, neither side complains about the trial court's failure to rule. Accordingly, we consider all of this evidence, except that which the trial court excluded. ( Code Civ. Proc., § 437c, subd. (c) ; Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4, 188 Cal.Rptr. 115, 655 P.2d 317.)

B. The Facts as Shown by the Record.

The Commission is a governmental entity (see Pub. Util. Code, §§ 130000 - 130828.1 ) created by the Legislature (see id. , §§ 130050, 130053-130053.7, 240000-240323). It has the authority to acquire, construct, maintain, and operate public transit systems. (See id. , §§ 130001, 130105, subd. (f), 130259, subd. (d).)

The Gas Company is an investor-owned public utility. It is the only entity authorized to provide natural gas in Riverside County.

1. The franchises.

The City of Riverside, in 1939, and the City of Perris, in 1953, enacted ordinances granting the Gas Company franchises to lay and use pipelines under their public streets (Franchises).³ These ordinances were repeatedly renewed and extended thereafter.⁴ To become effective, the Franchises had to be accepted by the Gas Company, and the Gas Company had to pay annual franchise fees; thus, the Franchises were creatures not only of statute, but also of contract.

The Franchises obligate the Gas Company to "remove and relocate, without expense to the City, any facilities installed, used and maintained under this franchise if and when made necessary by any lawful change of grade, alignment or width of any public street, way, alley or place, including the construction of any subway or viaduct by the City ...."

2. The licenses.

Between 1957 and 1979, the Atchison, Topeka and Santa Fe Railway Company and its successor in interest, the Burlington Northern and Santa Fe Railroad (collectively Santa Fe), granted the Gas Company a series of pipeline licenses (Licenses). Each of the Licenses allowed the Gas Company to run a pipeline across Santa Fe's San Jacinto branch line at a specified point.

According to the recitals in the Licenses, the Gas Company paid minimal consideration for them (between $10 and $150 each).

Each of the Licenses provided: "Licensee shall, at its own cost ..., locate, construct and maintain the pipe line in such a manner ... that it will not at any time be a source of danger to or interference with the present or future tracks, roadbed and property of Licensor or the safe operation of its railroad." (Capitalization altered.)

The Licenses also provided that they "may be terminated at any time by either party upon ten (10) days' notice in writing ..., and that upon the termination of this license in this or any other manner herein provided, Licensee, upon demand of Licensor, shall abandon the use of the pipe line and remove the same ...." (Capitalization altered.)

Finally, they provided that they "shall be binding upon and inure to the benefit of the successors ... and assigns of the parties ...."

3. The purchase agreement and the resulting deeds.

In 1992, Santa Fe, the Commission, and others entered into an agreement (Purchase Agreement) in which Santa Fe agreed to sell its San Jacinto branch line (Property) to the Commission.

The title conveyed was "subject ... to" "all applicable laws, rules, regulations or orders of any municipality or any other governmental ... or public authority ...."

The conveyance specifically included "Santa Fe's interests in all ... licenses ... encumbering or relating in whole or in part to any portion" of the Property. Moreover, the title conveyed was subject to all such licenses.

The Purchase Agreement provided that, before the closing, the parties would execute an assignment and assumption agreement, in which Santa Fe would convey such licenses to the Commission, and the Commission would assume Santa Fe's obligations under the licenses. However, it does not appear that any such assignment and assumption agreement was ever actually executed.

Pursuant to the Purchase Agreement, Santa Fe deeded the Property to the Commission in a series of transactions between 1993 and 2012 (Deeds).⁵

Like the Purchase Agreement, the Deeds provided that the interest conveyed was "subject ... to" "all applicable laws, rules, regulations or orders of any municipality or other governmental, statutory or public authority ...."

They also provided that the interest conveyed was subject to "any ... licenses to the extent that the same do not and will not materially interfere with ... [the Commission]'s use of the portion of the Property ... which is used for Agency Rail Service [defined as the operation of passenger trains]."

After the closing, Santa Fe was supposed to send written notice of the conveyance to all licensees. The Gas Company claims there is evidence that this never happened. More accurately, the evidence fails to show one way or the other whether it happened.

4. The Metrolink extension.

In or before 2012, the Commission decided to build a 24-mile-long commuter rail line that would extend the Metrolink system from Riverside to Perris.

Due to construction requirements and/or safety requirements, the planned rail line was incompatible with the Gas Company's pipelines at five points where they intersected (conflict points):

(1) Palmyrita Avenue, between Iowa Avenue and Ardmore Street, in Riverside;

(2) Mt. Vernon Avenue, between Linden Street and East Campus View Drive, in Riverside;

(3) West San Jacinto Avenue, between North C and D Streets, in Perris;

(4) West 5th Street, between South C and D Streets, in Perris;

(5) South Perris Boulevard, between State and Commercial Streets, in Perris.

All five conflict...