S. Cal. Edison Co. v. Severns

• Decision Date: 10 September 2019
• Docket Number: 2d Civ. No. B286354
• Citation: 39 Cal.App.5th 815,252 Cal.Rptr.3d 667
• Parties: SOUTHERN CALIFORNIA EDISON COMPANY, Plaintiff, Cross-Defendant and Respondent, v. Steven SEVERNS, Defendant, Cross-Complainant and Appellant.
• Court: California Court of Appeals Court of Appeals

39 Cal.App.5th 815

252 Cal.Rptr.3d 667

SOUTHERN CALIFORNIA EDISON COMPANY, Plaintiff, Cross-Defendant and Respondent,

v.Steven SEVERNS, Defendant, Cross-Complainant and Appellant.

2d Civ. No. B286354

Court of Appeal, Second District, Division 6, California.

Filed September 10, 2019

Slaughter, Reagan & Cole, William M. Slaughter, Barry J. Reagan, Gabriele M. Lashly, Ventura, and Jonathan D. Marshall, Santa Barbara, for Defendant, Cross-Complainant and Appellant.

AlvaradoSmith, Keith E. McCullough, Santa Ana, and William M. Hensely, for Plaintiff, Cross-Defendant and Respondent.

PERREN, J.

Steven Severns owns a 15.82-acre parcel of property (the property) which is burdened by three public utility easements granted to Southern California Edison Company (SCE). SCE maintains electrical power lines and supporting structures within a 10-foot wide strip along the eastern boundary of the property. That strip is described by metes and bounds in the recorded conveyances. Each conveyance also grants SCE "free access" to its electrical facilities.

It is undisputed SCE may use the 10-foot wide strip for utility purposes, but the parties disagree as to whether SCE has the right to access that area by traversing other portions of the property. For nearly 80 years, the property owners allowed such access. When Severns denied access in 2008, SCE brought this action for interference with easement and declaratory relief. Severns cross-complained, seeking damages for nuisance, trespass and ejectment.

The trial court summarily adjudicated the cross-claims in SCE's favor. It determined the claims are barred by the three-year statute of limitations in Code of Civil Procedure section 338, subdivision (b)¹ because the alleged nuisance is permanent rather than continuing. (See KFC Western, Inc. v. Meghrig (1994) 23 Cal.App.4th 1167, 1180, 28 Cal.Rptr.2d 676 (KFC Western ).)

Following a five-day bench trial, the court found, based on the language in the recorded conveyances, that SCE was granted "floating easements" over the property to access its electrical facilities. Although the floating easements burdened the property at the time of creation, they did not become "fixed" easements until SCE and the property owners agreed on the access routes. At that point, SCE became "the owner of an easement of reasonable width" over each agreed-upon access route. The judgment entitles SCE "to ‘free’ (i.e. unimpeded) access" to those routes.

Severns appeals both the post-trial decision and the pretrial summary adjudication ruling. He contends the easements granted to SCE are limited to the metes-and-bounds descriptions in the recorded conveyances. He further asserts triable issues of material fact exist as to whether his cross-claims are time-barred. We conclude the trial court properly determined SCE owns easements over the agreed-upon access routes. Since its findings also establish the alleged nuisance is permanent, Severns's challenge to the summary adjudication ruling is moot. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The property is located near the corner of Moorpark and Olsen Roads in the City of Thousand Oaks. SCE placed seven electrical power poles on the property in accordance with easements granted by Nils, Ellen and Nicholas Olsen. The poles, which are situated on steep, rocky hillsides, are identified, from north to south, as Poles 1 through 7.

The first of the three easement conveyances was recorded on September 10, 1930. The conveyance grants a four-foot wide easement, described by metes and bounds, and allows for placement of five electrical power poles along the easternmost portion of the property. The instrument states: "The Grantee [SCE] and its employees and agents, shall, at any time when necessary, and at all reasonable times, have free access to the said poles or H-frames, and fixtures thereon, for the purpose of constructing, repairing, renewing, maintaining, replacing and operating such electric lines."

The second conveyance was recorded on February 14, 1956. It grants a 10-foot wide easement, described by metes and bounds, and states: "The Grantee [SCE], its successors and assigns, and its and their respective agents and employees, shall have the right to trim or top such trees as may endanger or interfere with said electric line, and shall have free access to said electric line and every part thereof, at all times, for the purpose of exercising the rights herein granted."

The third conveyance was recorded on February 16, 1961. It has two metes-and-bounds descriptions, running from the north to the south ends of the property. The width of the easement is 20 feet, centered on the property line, meaning 10 feet is on the property and 10 feet is on an adjacent parcel. Consistent with the prior conveyances, the instrument states: "The Grantee [SCE], its successors and assigns, and its and their agents and employees, shall have free access to said electric lines and every part thereof, at all times, for the purpose of exercising the rights herein granted."

Gerald Olsen testified his family routinely allowed SCE employees to drive their trucks over the property to inspect and maintain the electrical power lines, poles and equipment. He recalled his family gave SCE such access to replace a pole in 1946 or 1947. Olsen described the family's relationship with SCE as "very friendly."

At some point, a locked gate was installed across the driveway to the property. When Severns purchased the property in 2006, he gave SCE the gate code and allowed it to continue using the then-existing routes to access its electrical facilities. SCE used those routes about three times a year.

From 1986 to 2007, Robert Martinez, an SCE "lineman," was assigned to inspect and service the electrical power poles and equipment on the property. In 1986, Martinez's supervisor gave him an aerial photograph of the property which showed the dirt roads used to access the poles. Martinez testified he drove over those roads to reach Poles 3, 5 and 6. From those locations, Martinez used binoculars to inspect Poles 2 and 4. He also used binoculars to inspect Poles 1 and 7 from the public streets.

In 2008, SCE informed Severns it needed to replace Poles 1, 5 and 6. The parties discussed the routes that could be used to reach the poles. Severns objected to the use of the route historically utilized to access Pole 5. He complained that SCE trucks had damaged pipes along the route and that it was too close to the back of his house. The parties agreed SCE would construct an alternative route. As the trial court observed, "[t]he new route branched off the road to Pole #6, just south and east of the house, and then extended along the east side of the residence to merge with the former route to Pole #5. The newly created route was steep and, during the work on the poles, the trucks had to be pulled up the steepest stretch with a bulldozer."

Severns believed the new 2008 route would be temporary. There was no written agreement to that effect, but Severns testified George Perez, an SCE representative, told him "before the road construction that after [Pole 5] was replaced SCE would put the property back in the same condition that it was in prior to the construction of the road." After the pole was replaced, Severns asked SCE to return the route to its former condition. SCE did not do so.

Ryan Brown, a senior patrolman for SCE, knew SCE had cut a dirt road into the hillside to facilitate replacement of Pole 5, but was unaware of any agreement between Severns and SCE to return the road to its original condition. Matthew Payne, a construction crew foreman, testified that such roads are "[u]sually permanent." Adam Bell, an SCE general supervisor, stated the road was constructed in the manner approved by Severns. Bell testified SCE typically does not remove roads once they are established.

Severns conceded he had no problem with SCE's use of the access routes until the dispute arose regarding the 2008 route. Severns removed the gate access code/tumbler box and took other steps to prevent SCE's access. He suggested that SCE use adjacent properties or helicopters to access its electrical facilities.

SCE subsequently filed this action. In its second amended complaint, SCE alleged Severns unreasonably interfered with its easement rights by placing structures and trees on the property, by refusing to allow it to construct a new access route, and by blocking its access to the property for routine and emergency maintenance.

In his first amended cross-complaint, Severns alleged claims for continuing nuisance, permanent nuisance, trespass and ejectment.² SCE moved for summary adjudication of the cross-claims, arguing they are barred by the three-year limitations period in section 338, subdivision (b). Severns asserted that because the hillside along the 2008 route can be repaired, the nuisance is abatable and therefore continuing, not permanent. The trial court granted the motion, concluding the 2008 route is not a continuing nuisance. It determined that if Severns "wanted [SCE] to stand by its (alleged) commitment to restore the property, he had to act within three years after the bulldozer finished its work. He did not do so."

Following trial and a site visit, the trial court issued a proposed statement of decision. The court rejected both SCE's position that it is entitled to unfettered access over the property and Severns's position that the easements are limited to the metes-and-bounds descriptions, i.e., the 10-foot wide strip defined in the recorded conveyances. It determined the conveyances grant SCE floating easements over the property to permit the inspection and maintenance of its electrical facilities. The floating easements became "fixed" easements when SCE and the property owners agreed on the access routes.

The trial court further found SCE and Severns had agreed by acquiescence to abandon the original route to Pole 5 and to change the location of that access easement to the 2008 route....