Loading...
HomeMy WebLinkAbout11/19/2008 - STAFF REPORTS - 4.A. F pALMS ti p��Z G+ o ,s C�</FO'RN,P City Council Staff Report DATE: November 19, 2008 UNFINISHED BUSINESS SUBJECT: ACCEPTANCE OF GRANT DEED FROM THE SUZANNE D. PARISH REAL ESTATE TRUST FOR 17.07 ACRES OF LAND TO BE PRESERVED AS OPEN SPACE AND APPROVING A MEMORANDUM OF UNDERSTANDING BETWEEN GRANTOR AND CITY FOR THE LOT SPLIT OF PARCEL APN 510-270-003. FROM: David H. Ready, City Manager BY: Community & Economic Development Department SUMMARY: RECOMMENDATION: 1. Approve Agreement No. "Authorizing the City Clerk to accept the Grand Deed from the Suzanne D. Parish Real Estate Trust for 17.07 acres in the Araby Cove and Araby Wash area for the purpose of preserving the land as natural open space and approving a memorandum of understanding (MOU) between the Grantor and City for the split of parcel APN 510-270-003." 2. Authorize the City Manager or his designee to execute all the necessary documents. BACKGROUND: Staff began discussion in August 2005 by a private party regarding a potential gift to the City of open space land in the Araby Cove area. The resident was interested in purchasing a small group of historic rock structures consisting of a small house, horse barn, and pool/outdoor recreation area from the current owner, the Suzanne D. Parish Real Estate Trust. As part of the private buyer's negotiation with Ms. Parish, it became clear that Ms_ Parish desired to preserve the rock houses mentioned above as well as the undeveloped land surrounding it. Staff proposed that the Suzanne D. Parish Real Estate Trust grant the undeveloped acreage to the City of Palm Springs; as part of that overall transaction, the Trust would then make a separate deal with the private buyer to ITEM N10. "` °� sell her the rock house, other structures and adjacent land, in a newly created parcel with an area of approximately 3 acres. On November 2, 2005, Council accepted the gift to the City of Palm Springs of approximately 17 acres of land from the Suzanne D. Parish Real Estate Trust for the purpose of preserving the land as natural open space. Since that time, staff has been working with the Trust and a private buyer to reach an agreement for the mechanism by which the Trust will grant the City a portion of the property (17.07 acres) and sell the remainder(2.97 acres) to a private buyer. The gift to the City consists of parcels 510-210-003, 510-210-017 and a portion of 510- 270-003. The remainder portion of parcel 510-270-003 will be sold by the Trust to the private buyer. The private buyer has obtained a professional survey of the property including legal description of the separated parcels, (see attachment 1 Legal Description and Boundary Exhibit). This action approves the Acceptance of the Grant Deed by the City, which is one of the documents necessary to close the escrow. In addition, a Memorandum of Understanding (MOU) between the Trust (Grantor) and City (see attachment 3 -- MOU), addresses a number of issues including: (a) it fixes the zoning boundary between the 0-5 (open space) and R-1-A (residential) zoning at the new property line that will divide the Parcel (APN 510- 270-003), so that the Rock House property remains in residential zoning and the land received by the City remains in open space zoning; (b) it declares that the stable on the property is an actual stable, which will come as close to "grandfathering" the equestrian nature of the property as possible, since the practical application of grandfathering would have been long gone through disuse; (c) it advises the property owner that the parcel is subject to the Hillside Development provisions of the City — this is not a new condition but it will be made clear, including a higher level of architectural scrutiny for any new structures there; likewise, it would also advise that any subdivision of the remaining property would be subject to the Subdivision Map Act, including the requirement to provide demonstrated access to sewer and water; and, (d) it recognizes that the access to the property has been legally established across the Levy Road , as well as the Lineau and Petty properties, by the Appellate Court opinion. Since the document contains the legal description of those properties as Restricted Parcels, the document can be recorded against all of the affected properties. That way in the future parties will have clear documentation to prove access. By acceptance of the Grant Deed and the MOU, staff can issue a Certificate of Compliance on the newly created parcel prior to closing escrow and the Trust can sell the remainder 2,97 acre parcel to the private buyer. 1 Jo n S. ay of d, Director of Diana Shay C m ity & conomic Development �velopment Coord' for DAVID H. READY-- Tom Wilson Executive Direct Assistant City Manager Attachments: 1. Legal Description and Boundary Exhibit 2. Acceptance of Grant Deed 3. Memorandum of Understanding between City and Suzanne D. Parish Trust r„�7 Attachment 1 Legal Description and Boundary Exhibit I - ' U PARCEL A BEING THAT PORTION OF THE SOUTHEAST QUARTER OF SECTION 25, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, MORE PARTICULARLY DECSCRIBED AS FOLLOWS: COMMENCING AT THE MOST WESTERLY CORNER OF LOT 17, BLOCK F, OF THE ARABY TRACT, AS SHOWN BY MAP ON FILE IN BOOK 13, PAGES 61 AND 62 OF MAPS, RECORED OF RIVERSIDE COUNTY, CALIFORNIA, THENCE SOUTH 71°03'26" WEST A DISTANCE OF 367.26 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 50017'05" WEST A DISTANCE OF 44.04 FEET TO A POINT LYING AT THE EXISTING TOE OF SLOPE; THENCE NORTHWESTERLY ALONG THE EXISTING TOE OF SLOPE THROUGH THE FOLLOWING COURSES: THENCE NORTH 81017'10" WEST A DISTANCE OF 37.95 FEET; THENCE NORTH 59004'13" WEST A DISTANCE OF 22.80 FEET; THENCE NORTH 75006'28" WEST A DISTANCE OF 44.18 FEET; THENCE NORTH 62023'01" WEST A DISTANCE OF 55.63 FEET,- THENCE NORTH 28049'51" WEST A DISTANCE OF 29.78 FEET,- THENCE NORTH 11003'10" WEST A DISTANCE OF 2829 FEET; THENCE NORTH 31°34'43" WEST A DISTANCE OF 59.01 FEET; THENCE NORTH 70048'18" WEST A DISTANCE OF 104.68 FEET; THENCE SOUTH 22041'33" WEST A DISTANCE OF 14.05 FEET; THENCE LEAVING SAID TOE OF SLOPE SOUTH 79042'00" WEST A DISTANCE OF 20.91 FEET TO A POINT LYING ON THE EASTERLY LINE OF THAT CERTAIN PARCEL OF LAND CONVEYED TO E.K. DAVALL BY DEED RECORDED APRIL 22, 1935 IN BOOK 228 PAGE 442 O.R.; THENCE SOUTH 04024'48" EAST ALONG SAID EASTERLY LINE A DISTANCE OF 278.64 FEET TO AN ANGLE POINT IN SAID LINE; THENCE SOUTH 00000'55" WEST A DISTANCE OF 144.23 FEET; THENCE SOUTH 85048'59" EAST A DISTANCE OF 338.67 FEET; THENCE NORTH 00009'59" WEST A DISTANCE OF 242.16 FEET TO THE TRUE POINT OF BEGINNING. COMPRISING 116798 SQUARE FEET, MORE OR LESS. PARCEL B BEING THAT PORTION OF THE SOUTHEAST QUARTER OF SECTION 25, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, MORE PARTICULARLY DECSCRIBED AS FOLLOWS: COMMENCING AT THE MOST WESTERLY CORNER OF LOT 17, BLOCK F, OF THE ARABY TRACT, AS SHOWN BY MAP ON FILE IN BOOK 13, PAGES 61 AND 62 OF MAPS, RECORED OF RIVERSIDE COUNTY, CALIFORNIA, THENCE SOUTH 71°03'26" WEST A DISTANCE OF 367.26 FEET,- THENCE NORTH 0°17'05" WEST A DISTANCE OF 44.04 FEET TO A POINT LYING AT THE EXISTING TOE OF SLOPE AND THE TRUE POINT OF BEGINNING; THENCE NORTHWESTERLY ALONG THE EXISTING TOE OF SLOPE THROUGH THE FOLLOWING COURSES: THENCE NORTH 81017'10" WEST A DISTANCE OF 37.95 FEET; THENCE NORTH 9004'13" WEST A DISTANCE OF22.80 FEET,- THENCE NORTH 75006'28" WEST A DISTANCE OF 44.18 FEET; THENCE NORTH 62023'01" WEST A DISTANCE OF 55.63 FEET; THENCE NORTH 28049'51" WEST A DISTANCE OF 29.78 FEET; THENCE NORTH 11 003'10" WEST A DISTANCE OF 2829 FEET,- THENCE NORTH 31°34'43" WEST A DISTANCE OF 59.01 FEET; THENCE NORTH 70048" 8" WEST A DISTANCE OF 104.68 FEET; THENCE SOUTH 22041'33" WEST A DISTANCE OF 14.05 FEET; THENCE LEAVING SAID TOE OF SLOPE SOUTH 79042'00" WEST A DISTANCE OF 20.91 FEET TO A POINT LYING ON THE EASTERLY LINE OF THAT CERTAIN PARCEL OF LAND CONVEYED TO E.K. DAVALL BY DEED RECORDED APRIL 22, 1935 IN BOOK 228 PAGE 442 O.R.; THENCE NORTH 4024'49" WEST ALONG SAID EASTERLY LINE A DISTANCE OF 73,41 FEET; THENCE NORTH 85035'12" EAST A DISTANCE OF 2727 FEET, THENCE SOUTH 50017'05" EAST A DISTANCE OF 393.98 FEET TO THE TRUE POINT OF BEGINNING. COMPRISING 12693 SQUARE FEET, MORE OR LESS. l � PARCEL C BEING THAT PORTION OF THE SOUTHEAST QUARTER OF SECTION 25, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, MORE PARTICULARLY DECSCRIBED AS FOLLOWS- COMMENCING AT THE MOST WESTERLY CORNER OF LOT 17, BLOCK F, OF THE ARABY TRACT, AS SHOWN BY MAP ON FILE IN BOOK 13, PAGES 61 AND 62 OF MAPS, RECORED OF RIVERSIDE COUNTY, CALIFORNIA; THENCE SOUTH 71003'26" WEST A DISTANCE OF 367.26 FEET; THENCE SOUTH 00009'59" EAST A DISTANCE OF 242,16 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 00009'59" EAST A DISTANCE OF 699.34 FEET TO A POINT LYING ON THE SOUTH LINE OF SAID SECTION 25, THENCE SOUTH 89040'08" WEST ALONG SAID SOUTH LINE OF SECTION 25 A DISTANCE OF 340.00 FEET, THENCE NORTH 00000'55" EAST A DISTANCE OF 726.00 FEET; THENCE SOUTH 85°48'59" EAST A DISTANCE OF 338.67 FEET TO THE TRUE POINT OF BEGINNING. COMPRISING 241501 SQUARE FEET, MORE OR LESS. ' LINE BEARING DISTANCE t Li N 81'17'10" W 37.95' L2 N 59'04'13" W 22.80' L3 N 75'06'28" W 44.18' ' L91 L4 N 62'23'01" W 55.63' If If L5 N 28'49'51" W 29.78' PARCEL B L6 N 11'03A 0" W 28.29' 12693 SO. FT. L7 N 31'34'43" W 59.01' 0.29 ACRES In L8 N 70'48'16" 'N 104.68' 13 �0 LS` \Lg L10 LL190 N 7292'4421'33"" E 2104..0951' i4 N8535' L11 12E 27.27' m �t L7t3'93 03., 3I g8�� P.0.C. 16 001 L6 +ram O �. .02, 17 C N` L5 . /' ? o T.P.0.B. 35'1 zi° L4 PARCEL "B " p326, E�r a YN L3 L2 L1 ry I T.P.0.B. r „ PARCEL "A " 0' 100' 200' 300' b PARCEL A I l 116796 SO. FT. f 2.68 ACRES o NI ° BOUNDARY EXHIBIT I� 3 ➢RA WN DATE PORS OF THE SE f/4 N I ` m SJV 02128106 SEC 25, T 4 S, R 4 S in co APPROVED DATE 0 N 85'48'S9"py 338.67' Z SCALE SHEET PROJECT NO. �I T.P.O.B. r" = too' 1 OF 2 5000.392 RUPP of 01 ' PARCEL "C" o PARCEL "C" 1 f}NSI (T2VErIMCr lMC--. Z I I STC RL5E ch F!ivt.Sui to 1� Czi I A.9:ne Su srrr rr5. G4 92.262 DO HATCH LINE-SEE SHEET r—:0) N ❑0'00'55" E 870.23' -----------------—------- Z 726.00' ----------------T 144.23'- m: to I al lI a ! ml I I ml IZ , rm N' PARCEL "C" r PARCEL "A " NSW " 241501 SO. FT. f • O '•ao 5.54 ACRES I � lu w m I m I Iv T.P. 0.B. T.P.0.B. �r PARCEL C PARCEL "A " 3 242.16' i N 0909'59" W 941.54'---- ------ r tir �u SOl17H LINE OF SEGTI ON 25 r r' r BOUNDARY EXHIBIT _A DRAWN DATE PORS OF THE SE !/4 SJV 02/26/06 SEC 25, T 4 S, R 4 S - - APPROVED DATE [Q SCALE SHEET PROJECT NO. NORTH !" = 100' 2 OF 2 5000.392 RUPP 0' 100, 200, 300' VAN.5G(72VEYIMC INC. _\}f 8'-C R25?.a:-k,]rev2..5uif'17 Attachment 2 Certificate of Acceptance n �� CERTIFICATE OF ACCEPTANCE THIS IS TO CERTIFY that the interest in real property conveyed by GRANT DEED Real property in the City of Palm Springs, County of Riverside, State of California, as described: Land described in Exhibit "A" and shown on Exhibit "B" APN: 510-270-003 dated: from, Suzanne D. Parish Real Estate Trust Grantor, to the City of Palm Springs, a municipal corporation and charter city, grantee, is hereby accepted by the City Clerk of said City, by the order of the City Council of the City of Palm Springs, on the day of 200_, and the Grantee consents to recordation thereof by the City Clerk, its duly authorized officer. Dated at Palm Springs, California, this day of , 200_ JAMES THOMPSON City Clerk Exhibit A Legal Description PARCEL A BEING THAT PORTION OF THE SOUTHEAST QUARTER OF SECTION 25, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, MORE PARTICULARLY DECSCRIBED AS FOLLOWS: COMMENCING AT THE MOST WESTERLY CORNER OF LOT 17, BLOCK F, OF THE ARABY TRACT, AS SHOWN BY MAP ON FILE IN BOOK 13, PAGES 61 AND 62 OF MAPS, RECORED OF RIVERSIDE COUNTY, CALIFORNIA, THENCE SOUTH 71°03'26" WEST A DISTANCE OF 367.26 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 50017'05" WEST A DISTANCE OF 44.04 FEET TO A POINT LYING AT THE EXISTING TOE OF SLOPE,- THENCE NORTHWESTERLY ALONG THE EXISTING TOE OF SLOPE THROUGH THE FOLLOWING COURSES: THENCE NORTH 81°17'10" WEST A DISTANCE OF 37.95 FEET; THENCE NORTH 59004'13" WEST A DISTANCE OF 22.80 FEET, THENCE NORTH 75°06'28" WEST A DISTANCE OF 44.18 FEET, THENCE NORTH 62023'01" WEST A DISTANCE OF 55,63 FEET; THENCE NORTH 28049'51" WEST A DISTANCE OF 29.78 FEET; THENCE NORTH 11 003'10" WEST A DISTANCE OF 28.29 FEET; THENCE NORTH 31°34'43" WEST A DISTANCE OF 59.01 FEET; THENCE NORTH 70048'18" WEST A DISTANCE OF 104.68 FEET; THENCE SOUTH 22041'33" WEST A DISTANCE OF 14.05 FEET; THENCE LEAVING SAID TOE OF SLOPE SOUTH 79-42-00" WEST A DISTANCE OF 20.91 FEET TO A POINT LYING ON THE EASTERLY LINE OF THAT CERTAIN PARCEL OF LAND CONVEYED TO E.K. DAVALL BY DEED RECORDED APRIL 22, 1935 IN BOOK 228 PAGE 442 O.R.; THENCE SOUTH 04024'48" EAST ALONG SAID EASTERLY LINE A DISTANCE OF 278.64 FEET TO AN ANGLE POINT IN SAID LINE; THENCE SOUTH 00°00'55" WEST A DISTANCE OF 144.23 FEET, THENCE SOUTH 85048'59" EAST A DISTANCE OF 338.67 FEET, THENCE NORTH 00°09'59" WEST A DISTANCE OF 242.16 FEET TO THE TRUE POINT OF BEGINNING. COMPRISING 116798 SQUARE FEET, MORE OR LESS. PARCEL P BEING THAT PORTION OF THE SOUTHEAST QUARTER OF SECTION 25, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, MORE PARTICULARLY DECSCRIBED AS FOLLOWS: COMMENCING AT THE MOST WESTERLY CORNER OF LOT 17, BLOCK F, OF THE ARABY TRACT, AS SHOWN BY MAP ON FILE IN BOOK 13, PAGES 61 AND 62 OF MAPS, RECORED OF RIVERSIDE COUNTY, CALIFORNIA, THENCE SOUTH 71°03'26" WEST A DISTANCE OF 367.26 FEET; THENCE NORTH 001705" WEST A DISTANCE OF 44.04 FEET TO A POINT LYING AT THE EXISTING TOE OF SLOPE AND THE TRUE POINT OF BEGINNING; THENCE NORTHWESTERLY ALONG THE EXISTING TOE OF SLOPE THROUGH THE FOLLOWING COURSES- THENCE NORTH 8101710" WEST A DISTANCE OF 37.95 FEET, THENCE NORTH 9004'13" WEST A DISTANCE OF22.80 FEET; THENCE NORTH 75006'28" WEST A DISTANCE OF 44.18 FEET; THENCE NORTH 62023'01" WEST A DISTANCE OF 55.63 FEET; THENCE NORTH 28049'51" WEST A DISTANCE OF 29.78 FEET; THENCE NORTH 11003'10" WEST A DISTANCE OF 28.29 FEET; THENCE NORTH 31034'43" WEST A DISTANCE OF 59.01 FEET,- THENCE NORTH 70048" 8" WEST A DISTANCE OF 104.68 FEET; THENCE SOUTH 22041'33" WEST A DISTANCE OF 14,05 FEET; THENCE LEAVING SAID TOE OF SLOPE SOUTH 79042'00" WEST A DISTANCE. OF 20.91 FEET TO A POINT LYING ON THE EASTERLY LINE OF THAT CERTAIN PARCEL OF LAND CONVEYED TO E.K. DAVALL BY DEED RECORDED APRIL 22, 1935 IN BOOK 228 PAGE 442 O.R.; THENCE NORTH 4024'49" WEST ALONG SAID EASTERLY LINE A DISTANCE OF 73.41 FEET,- THENCE NORTH 8503612" EAST A DISTANCE OF 27.27 FEET,- THENCE SOUTH 50°17'05" EAST A DISTANCE OF 393.98 FEET TO THE TRUE POINT OF BEGINNING. COMPRISING 12693 SQUARE FEET, MORE OR LESS. ii 4. ?�V "r.�`.L PARCEL. C BEING THAT PORTION OF THE SOUTHEAST QUARTER OF SECTION 25, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, MORE PARTICULARLY DECSCRIBED AS FOLLOWS: COMMENCING AT THE MOST WESTERLY CORNER OF LOT 17, BLOCK F, OF THE ARABY TRACT, AS SHOWN BY MAP ON FILE IN BOOK 13, PAGES 61 AND 62 OF MAPS, RECORED OF RIVERSIDE COUNTY, CALIFORNIA; THENCE SOUTH 71°03'26" WEST A DISTANCE OF 367.26 FEET; THENCE SOUTH 00009'59" EAST A DISTANCE OF 242.16 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 00009'59" EAST A DISTANCE OF 699,34 FEET TO A POINT LYING ON THE SOUTH LINE OF SAID SECTION 25; THENCE SOUTH 89040'08" WEST ALONG SAID SOUTH LINE OF SECTION 25 A DISTANCE OF 340,00 FEET; THENCE NORTH 00000'55" EAST A DISTANCE OF 726.00 FEET, THENCE SOUTH 85048'59" EAST A DISTANCE OF 338.67 FEET TO THE TRUE POINT OF BEGINNING. COMPRISING 241501 SQUARE FEET, MORE OR LESS. W7 Exhibit B Boundary Exhibit (2 pages) + LINE SEARING DISTANCE L1 N 81'17'10" W 37.95' 1-2 N 59'04'13" W 22.80' L3 N 75'06'28" W 44.18' 1 L15 L4 N 62'23'01" W 55.63' ,� ,� L5 N 28'49'5l" W 29.78' PARCEL B L6 N 11'03'10" W 28.29' 12693 SO. Ff. L7 N 3V34'43" W 59.01' M \ 0.29 ACRES L8 N 70'48'18" W 104.68' r LS �� L9 N 22'41'33" E 14.05- 13 L9 `�` \ L,D N 79'42'00" E 20.95' 14 m L10 NyS L15 N 85'35'12" E 27.2T 3 t L7 t 3g390s.. P.0.C. ro, 15 o Nt` LS \? .��� 17 o V `\ T.P.0.B.LP La PARCEL „$„ 9 j` /' i ,s 1 L3 L2 + Lt r /' O L�f j 40g, z II T.P.0.B. + PARCEL "A " o 100, 200' 300' rn PARCEL A } 116795 SQ FT, .' 2.68 ACRES c, BOUNDARY EXHIBIT NI DRA FIN DATE PORS OF THE SE 114 C STS' 02/26/06 SEC 25, T 4 S, R 4 Sci { N n m o APPROVED DATE t�5� 85'48'59"W 338. -- z SCALE SHEET PROJECT NO. 67' t T.P.0.B. I" = 100' 1 OF 2 5000.392 RUPP ={� o+ I ol PARCEL "C" e=a PARCEL „C„ I %4Ns (rzt E� iNc, rnrc. Z� [ Rr.7 ii�iG,Cii�,fi.Z.Stccd L^ hWY W LUdE-SEE SH EEi 2 N 00'00'55" E 870.23' -----------—---------------------------- 726.00' 1 44.23 z wl r _! r �I IN n PARCEL „C„ ;N PARCEL "A „ f�f 0I 0' 241501 SO. FT. x -]0 5.54 ACRES t� r� I !w L} ! I T.P. 0.B. f T.P.O.B. ' PARCEL "C" PARCEL "A " ! ! I 699.34' 242.16' �J�J ------------------- --------- -- N 00'09'59" W 941.50' - ----------- C SOUTH LINE OF ' 12�- SECTION 25 , r BOUNDARY EXIIIBIT � r DRAWN DATE PORE OF THE SE 114 ice; Sill 02/26/06 SEC 25, T 4 S, R 4 S APPROVED DATE r SCALE SHEET PROJECT NO. t 1" = too' 2 OF 2 5000.392 R UPP f+1 0' 100, 200' 300' VANS C1zvEr/Nq INC. Attachment 3 Memorandum of Understanding MEMORANDUM OF UNDERSTANDING between SUZANNE D. PARISH REAL ESTATE TRUST and CITY OF PALM SPRINGS, a California Charter City for the SUBDIVISION OF PARCEL APN 510-270-003 The SUZANNE D. PARISH REAL ESTATE TRUST hereinafter called 'TRUST" and the CITY OF PALM SPRINGS a California Municipal Corporation, hereinafter called "CITY", agree as follows: RECITALS A. WHEREAS, the TRUST desires to donate 17.07 acres of land consisting of APN 510-210-003, 510-210-017 and a portion of 510-270-003 for the purpose of preserving the land as natural open space; and B. WHEREAS, the CITY desires accepting 17.07 acres of land in the Araby Cove and Araby Wash area for the purpose of preserving the land as natural open space; and C. WHEREAS, the TRUST desires to subdivide a portion of parcel with APN 510-270-003 (Rock House Property) for the purpose of selling that portion to a private buyer to preserve a small group of historic rock structures consisting of a small house, horse barn and poolfoutdoor recreation area with the remainder of the parcel to be donated to the City. NOW, THEREFORE, the TRUST and THE CITY mutually agree to the following: 1. The zoning of the existing parcel 510-270-003 (8.51 acres total) is R-1-A and the zoning of the subdivided parcel would maintain the Rock House property (2.97 acres) in residential zoning (R-1-A) while rezoning the land received by the City (5.54 acres) as open space zoning (0-5). 2. The Rock House property includes horse stables and was historically used for horses defining the equestrian nature of the property although this use has not been active for many years and the official zoning of the property is not and has never been for horse use. 3. The Rock House property is subject to the Hillside Development provisions of the City, requiring a higher level of architectural scrutiny for any new structures there. 4. Any subdivision of the Rock House property would be subject to the Subdivision Map Act, and would be required to demonstrate access to sewer and water. 5. Access to the property has been legally established across the Levy Road, as well as the Lineau and Petty properties, by the Appellate Court opinion filed by the Superior Court of California County of Riverside on August 10, 1999. (ref. Attachment 1 — Appellate Court Opinion) 6. The CITY shall accept the donation of 5.54 acres via Grant Deed from the TRUST to be rezoned 0-5 Open Space and by doing so allow the 2.97 acre remainder parcel to be kept or sold by the TRUST under its present R-1-A zoning. The City shall issue a Certificate of Compliance on the newly created 2.97 acre parcel to facilitate the sale of the parcel by the TRUST to a private buyer prior to closing escrow. 7. This Agreement may be executed in counterparts, each of which shall be deemed an original. e 4i IN WITNESS WHEREOF, the parties hereto have executed this Agreement on "TRUST" SUZANNE D. PARISH REAL ESTATE TRUST Trustee APPROVED AS TO FORM: Attorney for Trust "CITY" THE CITY OF PALM SPRINGS, a California Charter City David H. Ready, City Manager ATTEST: City Clerk AP O fzz : Att ryi'ey 23 State of California ) )55. County of ) On before me, Date Name and Title of Officer personally appeared Namc(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/arc subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal Signature of Notary Public Attachment 1 Appellate Court Opinion 25 MCDERMOTT, WILL & EMERY ,LLP 1- 12 5 4 3 4 j a.�sprvlcq� BIII TO: 18191 von Karman #400 Irvine, CA 92612 Conddar#0o 1 (949) 851-0633 18011 Sky7xk C,�Smt L 61,a Cnure�92914 s4g 851•AAP(27M e4s 47r4993 F,K Date. ��� DELIVERY/COURT FILING FORM Pue Mauer a. Pick-u Destinatio 1hh1 Address ry D1� y case Name: Case#' [' Wilt)/ Court. D)y,�7 1p 1*State, Zip '1r ordered 8y. _ ( p1.d --� Phone # Phono#. �C' , Contact Name RETURN Name of Document(s): ADVANCE FE TYPE OF SERVIOE CONFORMED /'� �� j/'`pp'' ,-, ❑Attached COPIES S� V aei- �-�� ❑please Advance ❑ ASAP exclusive E] Same bay 1��•++ FOR: © Priority ❑ Next Day �-{yI ❑Filing Fees [] Rush r ( jyf_� l lj I,I � � '� 1rL n+s ❑Copiea ❑ Regular #of Pioccf " SjV\p 1,`�L/yV' ' I�f� � I ❑Faxing [] Noxt Pay Weight ❑Other LAST DATE TO FILE: Last Date to File: 1 SPECIAL INSTRUCTIONS: 1 -o . Oyfalk7l douuirnr l-S rtftv� ) C UTU r I I��Ir Call U an Completion d DYCS ❑NO Terms ofPayment: Nei 30 Days Putt quo account:ofc zublcct to a t%charpo per month(12%annually). Liability Conditions•U°billtytorl°csordamngetoltomslsllmaodta$250.W parrlAt aaaumaa na feeporelb111ty,to make dNivados at a olven time or for consequential damages. evory mmrt to made for quick acrvico out a maaonablo amount of time must be allowod. Chocks for CCCs am at chlppors dal, Recipient Date Advance Fee: $ Wait/Research Time: Driver: BILLING COPY California Courts -Appellate Court Case Information Page 1 of 6 CA'LIFORN1A APPE;L.ILI t'i1E COURTS Case Infarma i'fat� '' 41 k: ,. i 4th Appellate District Division 2 cnangecourt rz Court data last updated:0212 612008 0 3:05 PM d Case Summary. pocket Scheduled ApYigtts Briefs Disposition Parties and Attorneys Trial Court .He7py .I. r ocket (Reg iste for Actions) n Michael Arthur et al.v.David Levy p�P,Y pt,QYliS l p 1 Case Number E026130 Date Descri Notes C I c 11/24/1999 Noticeofalipeal Dtd Sep 9, 1999, David Levy. n, hom dg e oed/received. 11/29/1999 Letter to counsel - 10 days to file docketing statement 12/06/1999 Received document entitled: dktg stmt \ \J 1 210 6/1 9 9 9 To court. dktg stmt w/file folder 12/07/1999 Docketing statement filed. 1 2/1 011 999 Received document entitled: clk's cart for relief from default for failure to correctly process appeal 1 2/1 011 9 9 9 To court, clk's cart w/file folder 1 2/1 611 9 9 9 Order filed. et has considered clk's cent reed 12/10/99 & req for relief from default is grnt; applt Is grntd an extn to serve/file ntc of designation of record w/clk of sup at w/in 10 days(see order) 1 211 7/1 9 9 9 Notice to reporter to prepare dtd 12/17199; esr Campbell transcript. 0 111 3/2 000 Notice of record completion clk's dtd 1112/00 received. 03/21/2000 Returned document for non- C-2& R-1; clk's cert re certification of conformance. record not completed 03/23/2000 Returned document for non- C-2 & R-1, n0 signature on clk's cert conformance. 03/31/2000 Record on appeal filed. C-2 & R-1 04/14/2000 Requested -extension of time Attorney: Pro per Party Levy, David 04/20/2000 Granted-extension of time. Attorney: Pro per(no further extns...) Party: Levy, David 05/31/2000 Motion/application to augment by applt w/extn to file AOB record fled. 06/05/2000 Motion to dismiss filed (after by respondents. record). 06106/2000 To court. Mtn to dismiss by respondents. applt's mtn to augment/extn req (blc) http://appellatecases.courtinfo.ca.gov/search/case/dockets-cfm?dist-42&doc id=659234&doc no=CO26130 2/26/2008 27 California Courts -Appellate Court Case Information j` Pabe 5 of 6 08/27/2001 To court, applt's amended page 3 to req for extn to file AOB 08/29/2001 1 Received document entitled: applt's addendum to req for extn to file A0B 08/29/2001 To court. applt's addendum to req for extn... 11/13/2001 Filed document entitled: 2nd amended slip for reversal by applt 1 111 3/2 0 0 1 To court. applt's second amended stipulation for reversal 11/16/2001 Filed document entitled: applt's second amended stip for reversal filed 11/13/01 11/16/2001 To court. applt's second amended stip for reversal 09/12/2002 Order filed. after thorough study of hte record & consideration of the stips to reverse the sup ctjudgment; the ct has determined that the proposed reversal would not be an appropriate resolution of the case &the et denies the second amended stip for reversal; ct accepts the case into its settlement program; persons necessary to complete settlement are Michael Arthur, Robert L. Nahodil, David M. Levy, Ronald N. Kilgore& John Wessman, parties are directed to file w/clk w/in 20 days, letters adding to, deleting form, or otherwise correcting this list of names&addressed; any change must be accompanied by a short explaination; in the same Itr, parties are directed to state one or more phone number at which each party may be reach by the settlement coordinator during normal business hours to arrange a date for the initial settlement conf to be held at this court, clk directed to mail a copy of this order to each person listed above at address accompanying the person's name (see order)cc settlement coordinator 09/30/2002 Filed: Appellant's letter pur crt's order filed Sept 12th. (Ltr w/attchmnts forwarded onto digit clk) 1 010 2/2 0 02 Filed letter from. atty Selzer Ealy Hemphill& Blasdel did 10/1102 re their client John Wessman was not a party in the underlying action.. 10/02/2002 To court. file folder w/ltr from applt Levy &Itr from attys Selzer et al. 03/13/2003 Opinion filed, 03/1 a by applt for correction of page 13 of opinion filed 3113103 applt's Mtn to correct page 13 of http://appellaiecases.coLirtinfo.ca,aov/search/case/dockeis.cfm?dist=42&doe id=659234&doc no=E026130 2/26/2008 �U' California Courts -Appellate Court Case Information Page 6 of 6 03/19/2003 To court. opinion 03/21/2003 Filed document entitled. applts amendmt to mtn for correction of pg 13 of opinion filed 3/13/03 03/21/2003 To court. applt's amendment to mtn to correct. . 03/24/2003 Filed document entitled: 2nd amendment to mtn for correction of p. 13 of opinion fled 3/13103 003 T urt. 2nd amendmt to mtn for correction 04/10/2003 Order on motion filed. ct denies applt's mtn for correction filed 3/19/03& amendments Fled 3/21/03 & 3124/03 04/28/2003 Note: copy of docket sent to Levy this date per his req 05/05/2003 Received copy of Supreme appl for release from default Court filing. (supreme crt) 05/05/2003 Service copy of petition for appint review received. 05/06/2003 Received copy of Supreme errata to pet for review Court filing. I 05/06/2003 Received letter from: applt(not dated) req'ing copy of pg 13 of opinion & court's mailing list 05/06/2003 Note: copy of page 13 of opinion &court's mailing list sent to applt per his written req 05/14/2003 Telephone conversation with: w/Natalie of Suprm ct&she verified that applt's mtn for relief from default filed w/them 5/5/03 w/petition for review was denied on 5/7103, there will be no order; S115615 0 5/1 412 0 0 3 Motion filed. by applt for reconsideration of court's order filed 4110/03 or in alternative to recall remittiur(if Issued) 0511412003 To court. applt's mtn for reconsideration of rfs order dtd 4/10/03 05/19/2003 Order Fled, ct denies applt's min filed 5/14/03 for reconsideration of ct's order Fled 4110103 D5/19/2003 Remittitur issued. 05/19/2003 Case complete. 109/08120051 Record In off-site storage. List 1, Box 53, SRC 0017281 Click here to request automatic e-mail notifications about this case. 02007 .udlclaY Council of dal ii•oc fl E�, http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfrn?dist=42&doe id=659234&doe ao=p026130 2/26/2008 2 U - W it IL COURT OF APPEAL -- STATE OF CALIFORNIA FOURTI4 DISTRICT DIVISION TWO APR 1 0 Z003 MICHAEL ARTHUR et al., COURT OF,A2PFAL FOUR [STRICT Plaintiffs, Cross-Defendants and E026130 Respondents, (Super.Ct.No. INC9357) V. The County of Riverside DAVID M. LEVY, Defendant, Crass-Complainant and Appellant. THE COURT The court DENIES appellant's motion for correction filed March 19, 2003, with the amendments filed March 21 and 24, 2003. The record supports the statements in the opinion respecting the route and dimensions of the prescriptive easement. Acting P.J. cc: See attached list MAILING LIS'i rOR CASE: E026130 f Superior Court Clerk Riverside County P. O Box 431 -Appeals Riverside, CA 92502 Selzer, Ealy, Hemphill&Blasdell, LLP Diane C. Blasdel 777 E. Tahquitz Canyon Way, Suite 328 Palm Springs, CA 92262 David Levy 2550 Araby Drive Palm Springs, CA 92264 Michael Arthur A&N Development 437 South Bristol Avenue Los Angeles, CA 90049 Robert L. Nahodil c/o White Water Trout Co. SRI;Box 549 Whitewater, CA 92282 Ronald Kilgore c/o Greenleaf Trust 490 W. South Street Kalamazoo,MI 49007 4621 NOT TO BE PUBLISHED IN OFFICIAL REPORT'S California Rules of court,rule 977(a),prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,except as specified by rule 977(b). This opinion Fias hat peen certified for publication or ordered published for purposes of rule 977. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO MICIIAEL ARTHLTR et al., F[ MAR 1 3 Z003 D LIHL PE&TSa E,pp) isr61CT Plaintiffs and Respondents, E0261�8 v. (Suner.Ct.No. INC009357) DAVID M. LEVY, OPINION Defendant and Appellant_ APPEAL from the Superior Court of Riverside County. Charles E. Stafford, Judge. Affirmed with modifications. David M. Levy, in pro. per., for Defendant and Appellant. Michael Arthur and Robert Nahodil, in pro. per., for Plaintiffs and Respondents. Defendant David M. Levy appeals from a judgment quieting title in plaintiffs Michael Arthur and Robert Nahodil to a 50-foot-wide road easement located in the outskirts of Palm Springs, running from the Arthur-Nahodil property southeast across the Levy property. In the 50-foot-wide easement is Old Araby Road, a roughly paved road I about 10 to15 feet wide,which continues beyond defendant's properly through adjoining lots to a city street now known as Araby Drive but originally called Tamarist Avenue. The property can best be described by reference to the assessor's map attached. Plaintiffs owned lot 3 at the time the judgment was rendered, an 8.2 acre lot shown as parcel number 510-270-003 on the assessor's map. Their access to that lot is principally over Old Araby Road, which, in addition to running within the adjudicated 50-foot easement also runs within a 25-foot-wide, 800-foot-long strip of land known as lot 12, parcel 510-270-012, on the assessor's map. The plaintiffs have admitted that defendant owns lot 12. Additionally, defendant owns three lots adjacent to lot 12: lot 4, parcel 510-270- 004, lot 13, parcel 510-270-013, and an undivided one-third interest in lot 6,parcel 510- 270-006. The owner of the other two-thirds interest in lot 6 has not been joined in this action and is therefore not bound by this opinion. The parties have submitted two stipulations to reverse the trial court's judgment. We accept the stipulations as "confessions of error" and reverse the judgment, modifying it to correct several errors: (1) the easement is only prescriptive and is not created by express agreement, implication, or necessity; (2) the easement is not unlimited or of unspecified character,but is only for purposes of ingress and egress to and from plaintiffs' land; and(3) the easement is not 25 or 50 feet,but is the width of the narrow paved road used by plaintiffs and their tenants and agents. 2 THE FACTS A bank originally owned all of plaintiffs' and defendant's land. The bank sold defendant's land (lots 4, 6, 12, and 13) and kept plaintiffs' land (lot 3). In 1929 and 1930 the new owner of defendant's land built a circle drive just beyond the east boundary of lot 3. The northern half of the circle drive lies in lot 12, and the southern half of the circle lies in lot 6. He also built three stone houses on lots 4, 6, and 13 where they bordered on the circle drive. The circle drive was connected to a public road to the north (then Stagecoach Road, now Palo Verde Drive)by a dirt road that first ran west into and through plaintiffs' lot 3, which was still owned by the bank. In the early 1930's the owner of lot 4 and the owners of lots 6 and 13, gained access to their property by traveling from the north and west across lot 3. Later in the 1930's Edgerly, who owned lots 6 and 13, agreed with Martin, who had acquired lot 3,to stop crossing lot 3 to gain access to her properties and instead to construct and use what would be called Old Araby Road. Subsequent to its construction, various deeds and deed reservations were executed that the trial court construed to apply to Old Araby Road,but in fact they did not describe or apply to the property actually used by the parties. Since the 1930's, Araby Road has been used by the people living on lots 3, 4, 6, and 13 to gain access to the properties. When the parties to this proceeding purchased their lots in the late 1970's defendant lived in a house on lot 4 and plaintiffs owned a house on lot 3 that they leased to a variety of tenants. The tenants gained access to the houses using the road now in dispute. Defendant contends that any right to use the road as access to lot 3 ceased after 1989 because plaintiffs' house was not occupied consistently and the road was not consistently used. DISCUSSION The judgment declares the existence of a nonexclusive, unlimited easement in favor of the plaintiffs' lot 3 in a 50-foot-wide strip of land. From the above history we can now discern the correct and incorrect aspects of the judgment. First, paragraph I of the judgment is correct on the fundamental point that there is a nonexclusive easement appurtenant to plaintiffs' lot 3 over land concededly owned by defendant (lot 12) and in land in which defendant owns an interest(lot 6). However, the trial court erred respecting the ways in which the easement was created, the purpose of the easement, and the easement's width. The distinctions in the four types of easement are important because both the rights and the extent of the easement depend on the way in which the easement was created. Easements are created in essentially four ways: expressly,by implication,by necessity, or by prescription-1 The trial court found that each of these theories applied in this case; t See 6 Miller& Starr, California Real Estate (3d ed. 2000) Easements, section 15:13,pages 56-58 (generally), section 15:14,pages 58-61 (express grant or reservation), section 15:19,pages 77-79 (implied grant or reservation), section 15:27, pages 97-102 (necessity), section 15:29,pages 105-108 (prescription) (hereinafter Miller& Starr). 4 however, based on the documents and evidence presented at trial and judicially noticed on appeal, we find that the only easement appurtenant to lot 3 is prescriptive. 1_ Express Easement An express easement may be created by contract without words of conveyance, even though a grant or reservation in a deed is more common.Z A document creates an easement when it manifests an intent by one landowner to give another the right to use his i or her land.3 The grant of an easement is construed in the same manner as any contract.4 The interpretation of a contract depends first on the plain meaning of its language from which the parties' intent is best inferred; however, if the language is ambiguous, extrinsic evidence may be used to determine a meaning to which the contract's language is reasonably susceptible 5 Z See, e.g.,Knoch v. HaLlip (1912) 163 Cal. 146, 149, 151-153; Golden West Baseball Co. v. City ofAnaheinti (1994) 25 Cal.AppAth 11, 35 (whether lease created easement) (hereinafter Golden West), 3 Rice v. Capitol Trailer Sales of Redding(1966) 244 Cal.App.2d 690, 692-693 (easement created in trust deed encumbering the dominant tenement at time trustor also owned the servient tenement). 4 Civil Code sectionl066; Miller& Starr,supra, section 15:16, page 62. 5 City of Manhattan Beach v. Superior Court(1996) 13 CalAth 232, 246; Golden West, supra, 25 Cal.App.4th at page 21; Miller& Starr, supra, section 15:16,pages 62- 65. 5 - � r u� i �I An appellate court independently reviews the agreement and extrinsic evidence, even if that evidence could be interpreted in different ways; however, if the resolution of the credibility of conflicting evidence determines the interpretation, the trial court's interpretation must be upheld if it is reasonable.6 Although the court found, and the parties agree, that the 1933 Martin-Edgerly agreement created a road easement in favor of Martin's 1 of 3, neither the unconflicting extrinsic evidence nor the document itself(reproduced in pertinent part with italics added) supports that construction; "WHEREAS, Perle Wheeler Martin, who is buying 8.3 acres of land [lot 3] . . . through which Helen A. Edgerly has a right of way for road purposes, [¶] AND WHEREAS, Mrs. Martin desires the relinquishment of said right of way and abandonment of said road. [¶] NOW, THEREFORE, it is agreed to build a new road to serve Mrs. Edgerly's property and the Hopi houses owned respectively by Mrs. Edgerly [the two on fixture lots 6 and 13] and Mrs. Martin [the one on lot 41, located on acreage deeded to Mrs. Edgerly and recorded June 6, 1932. . . . [¶] Said road to connect with the South end of Tamarist Avenue, Araby Tract. The contract for which has been let to the 6 Golden West, supra, 25 Cal.AppAth at page 22, Eisenberg et al., Califomia Practice Guide: Civil Appeals and Writs (The Rutter Group 2000)paragraph 8:64 et seq., page 8-26 et seq, 6 -- 27 V.P. Hunt Company of Redlands for the sum of$1,000,00, [¶] In consideration therefore, Mrs. Martin hereby agrees to advance to Mrs. Edgerly her proportion of the cost of said road in the sum of$333.00. [¶] Mrs. Edgerly agrees to the abandonment ofsaid road across the 8.3 acres aforesaid, to become [c]ffective upon the completion of the new road connection with the South end of Tamarist Avenue. [¶] Helen A. Edgerly further agrees to reimburse and pay to Mrs. Martin, together with interest at the rate of 7%per annum, until so paid,the sum of$333.00, said money to be paid out of the proceeds of the first sale of property now owned by Helen A. Edgerly . . . . [¶] Perle Wheeler Martin is hereby authorized to pay to H. W_ Otis, said sum of$333.00 upon completion of said road Thus, Martin's only intent expressed in the document itself is to prevent Edgerly fxom using lot 3, to which Martin acquired title the following month, as access from Stagecoach Road to Edgerly's property, the future lots 6, 12 and 13 now owned in whole or part by defendant. This construction is supported by the testimony of one of plaintiffs' witnesses,realtor Robert Fey: "But the document you say speaks to itself that Mrs. Marlin wanted some privacy and offered to build the road . . . so that she would . . . not have her neighbors going through [her property]." This construction was also supported by the testimony of defendant's title expert, who testified that the agreement implied only that the easement over lot 3 was being terminated. No extrinsic evidence contradicts this conclusion. 7 We conclude the 1933 Martin-Edgerly agreement did not create an g Y �' express easement for access to lot 3. 2. Implied Easement I I Implied easements arise only when: (1) a landowner uses his or her land in a way that is (a) obvious or known and (b) apparently permanent; (2) the landowner then conveys part of the land to someone else; and(3) the reasonable use and benefit of the conveyed part reasonably requires that the unconveyed part be used in the same way it was used by the original owner.? In this case, the use at issue is Old Araby Road; plaintiffs trust contend that the conveyed part that would benefit is lot 3, and the burdened,unconveyed part would have to be lot 12 and a small part of lot 6 where the southern portion of the circle drive runs; the only landowner who owned both the conveyed and unconveyed parts was the bank, and it was the bank that conveyed the land(lot 3) to plaintiffs' first predecessor, Martin; however, the bank never used Old Araby Road,which was first built and used by Edgerly_ We do not have an implied easement here for several reasons. First, when the bank owned both plaintiffs' and defendant's land, the Old Araby Road had not been constructed, much less used by the bank. Second, the land to be benefited by the implied 7 Civil Code section 1104; Tusher v. Gabrielsen (1998) 68 Cal.AppAth 131, 141_ 8 _ � J easement (Martin's lot 3) was not conveyed to its new owner(Martin) by the owner (Edgerly) of the land to be burdened(Edgerly's undivided 12%2 acres),because Martin acquired lot 3 from the bank, not from Edgerly. Thus, the trial court erred in finding Old Araby Road to be the subject of an implied easement. 3. Easement by Necessity Easements by necessity occur only when a landowner: (1) conveys part of his or her land and(2) the conveyed land is landlocked completely by the landowner's remaining land alone or together with the land of others.$ The standard is no longer one of strict necessity,but of reasonable necessity for the beneficial use of the land.9 Evidence was presented that the access over plaintiffs' Smokewood Avenue lot was restricted, at the time of trial,by the City of Palm Springs to only a fair weather road. Nevertheless, once again, we have no easement because of the common ownership requirement. Lot 3 was not landlocked when it was conveyed by the bank,the only landowner of both the plaintiffs' and defendant's property. When the bank conveyed lot 3 to R_ Lee Miller,he had access to Stagecoach Road over the old dirt road on lot 3. 8 Moores v. Walsh (1995) 38 Cal.AppAth 1046, 1049. 9 Leonard v_ Haydon (1980) 110 Cal_App.3d 263, 268, 270, 273 (no necessity where alternative means of access available at reasonable cost). 9C 4_. Prescriptive.basement The issue here is not whether plaintiffs had established a prescriptive easement, because defendant conceded that plaintiffs had acquired a prescriptive easement by 1989. The issues are the extent of plaintiffs' prescriptive rights and whether plaintiffs abandoned their. The extent of a prescriptive easement is determined by the extent of the use.to Respecting the abandonment of prescriptive casements,physical interruption of an established adverse use does not affect the prescriptive rights unless the adverse user ceases using the easement for the five-year prescriptive period_11 Gates that can be opened and closed at will, or to which an adverse user has a key, do not physically interrupt the adverse use.12 Posting a sign does not affect a vested prescriptive right.13 1n O'Banion v. Borba (1948) 32 Cal.2d 145, 155. 11 Civil Code section 811, subdivision 4; Zimmer v. Dykstra (1974) 39 Cal.App.3d 422,434, 435; Miller& Starr, supra, section 15:33, page 121. 12 O Banion v. Borba, supra, 32 Cal.2d at page 154; Silveira v. Smith (1926) 198 Cal. 510, 519; Miller& Starr, supra, section 15:33,pages 120-121. 13 Harrison v. Bouris (1956) 139 Cal.App.2d 170, 171-172, 175 (sign said that permission to pass was revocable at any time); Miller& Starr,supra, section 15:36, page 132. 10 �I We must affirm the trial courts determinations on the issues of extent and abandonment if substantial evidence supports theru.r4 Defendant's claims of abandonment were countered at trial with documents and testimony that, although there were some periods of nonoccupancy, the Old Araby Road access was used by one of the plaintiffs several times, their real estate agent 25 to 30 times, and their general contractor three or four times during the period of alleged i abandonment. Plaintiffs consistently demanded access whenever the prescriptive easement was temporarily blocked by a woodpile or locked gate. Defendant acceded to these demands making no sustained effort to block plaintiffs' access. The gates, signs, and recorded consents did not imply nonuse or abandonment and otherwise had no effect on plaintiffs' vested prescriptive rights. The plaintiffs' case provided substantial evidence that plaintiffs did not abandon their prescriptive easement over Old Araby Road to the plaintiffs' gate. We conclude that substantial evidence supports the trial court's finding of a prescriptive easement as of the time of trial. However, the only easement being prescriptive, its extent is limited by its use, which was only of the paved road, circle drive, and short road to plaintiffs' gate—not a 50- foot- or even a 25-foot-wide easement. Also, the use was only to access plaintiffs' lot 3— not to access any other lot. The trial court's judgment is defective in these respects, and 14 Warsaw v. Chicago Metallic Ceilings, .Inc. (1984) 35 Cal.3d 564, 571. 11 & must be modified to limit the easement to the scope of actual use—onl prescriptive. P Y along Old Araby Road itself, around the circle drive, and to the plaintiffs' gate, and only i to access lot 3. Returning to the judgment, with these holdings we can now modify the judgment in detail. Paragraph I requires amendment as to the kind and description of the easement. However,based on the fundamental point that the plaintiffs do have a prescriptive easement, in paragraph 3 the judgment correctly enjoins defendant£rout interfering with plaintiffs' use of the easement. In paragraph 2 the judgment also adjudicates the cross- complaint against defendant and in favor of plaintiffs, which again follows from the existence of the easement. The defendant does not contest this adjudication, and it remains justified under the modifications we will make to paragraph 1. In paragraph 4 the judgment awards costs to plaintiffs, who remain the prevailing parties under the judgment as we will modify it, Thus, we will preserve paragraphs 2, 3, and 4 of the judgment. DISPOSITION Only paragraph 1 of the judgment is modified to delete the legal description and to read as follows: "1. Judgment rendered on the complaint in favor of plaintiffs Robert Nahodil and Michael Arthur and against defendant David Levy, as well as all persons unknown, 12 - I claiming any legal or equitable right, title, estate, lien, or interest adverse to plaintiffs in the nonexclusive prescriptive easement to serve plaintiffs' lot 3 (APN 510-270-003). The prescriptive easement is only for rights of ingress and egress only to lot 3. The prescriptive easement runs along the Old Araby Road from the southeast end of defendant's lot 12 (APN 510-270-012),bounded by lot 3 on the west, lots 4 (APN 510- 270-004) and 13 (APN 510-270-013) on the north and northeast, lot 6 (APN 510-270- 006) on the south and southwest, and on the east lot 7 (APN 510-270-007) and the adjacent lot to the south. The prescriptive easement continues to the northwest entirely within lot 12 on the Old Araby Road, to the small circle drive at the northwest end of the Old Araby Road, around the south side of the small circle drive just across the north boundary of lot 6 and around the north side of the small circle drive within lot 12, and along the short road within lot 12 between the circle drive and the plaintiffs' gate on the boundary between plaintiffs' lot 3 and defendant's lot 12. Not included in the prescriptive easement here adjudicated is the portion of the Old Araby Road lying to the southeast and east of the southeast end of lot 12 and connecting with the south end of Araby Drive. Currently the Old Araby Road, circle drive, and short road from the circle drive to lot 3, are roughly paved, and the easement as it has been used is the width of the pavement. Thus, the prescriptive easement varies in width between 9'/z feet and 18'/z feet with most of the easement varying between 11 and 16 feet wide." 13 i As modified, the judgment is affirmed. Each party shall bear their own costs. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS I ncuz: � C Acting P. . . J. 14 'lam 'I,s��' •�''� , P5�•. f.4 �'-�jD � �} s � @ m 5 pCp. awr mra i q lit Fp 510-210-004 4. ® p �- ^s OD y • � � � r N I �Y.fly 5 �a � 4� TI � 11 � • .� ^'510-210=003 2,Fp' O tee f 1 n li+l c �Q ' •A _q d. "ym 'gym ` Ir•1 ppre .,, w . '• O m" t rr II ♦ LF ©� 510-210-017 O p Y 510-270-002 o p o AD 510-270-004 ®' ,`• .� H POR 6ovr. LOr 6 =® 4 :sr.x?xt �• �` n. . Rom• /8.86t Ac 4' , 510-270 D13 pw Ii 510-270-003 < �w ' B.20.e Ac y w' rw 11 $10-270-012 YY t O 6 It 6.644 Ac. fly w_ • ti pu • „al 510-270-006 ` li ' V Yt i�S I' 2i ].- CwC Ilf'i u•I 5a.i •w �c,40fzuuy 18 29 FAX 94 / 48 M 0 E ORANGE COUNTY ID 002/007 .4� J MCDERMOTT, WILL & EHERT ,LLP 1-125433 T0: 18191 von Xarman 4500 Irvine, CA 92612 Z C'3' 6 (949) 651-0633 G IAOn 9prw Qb.&w 4 4....CJlenr SEi. G9e5�x�p Wa.:a�7 F. DEUVERMURT HUNG FORM Fe.MH oe o; Pick-up s6natio C.ca No": (( Address ` Cuo J: city CatJfL• � State, zip to u�; Phone # Rhona x: orc Carrtact Name RETURN Name of[ocumant(sJ: Apy TYpE OF SERVICE CONFORMED OAttathed COPIES �,f,�_ �, _ Q � Oo Not Advance [I ASAPt=xcluenre El3ama oqy (J�[ � Issas Advance FOR: ❑pnarip� ❑Next[ay [' r r� 61,r I �l5 20pl mFew Rush '(lJ( t-6. f Plea •Ll Regular !of pieces (]Faxing ❑Next Day waipht ❑Omar t-AST OAT'P 7�FILE: Last[ale t0 le: SPECIAL INSTRUCTtoNS; yZJ-Uy'h -�D �l A tlpan CampleHan ❑Y�ormea Byment Nex ao ❑Na ory.. P..ewn.xa,new sre euyactm.lx ewrpe��roryZx.n.wM. Uublllty Cvntlltlans-�"'ny tx iw.erauryp.ho�am.�.niwue to .a 5 Cues n.pen.iagy to rt for wl oamEl.pyyrh j'Ev.ry.mn�..rye.br ewak w�new eun.rc..e.,.ue nmume cr nrw rt.�.t e.wiew..e. (Mw�e n�coo.on.x/*prnn exh.r` Recipinnt Data '�` --j7_Q 6 Advance Fee: S oeeareh T1me: pt{vgr: i I L7 a INCO09357 Actions - India Civil & Small Claims Page 1 of 2 .;;�.,I I•**I.S�%%�. k- EJ"+J,.W "�egv_',�d ;i°,will•"�i,:i��=' i"i.m„y.� '"'�rf�4" ' ,,r`;'' .`Y';- ,i. .4+� .:�:w.:1..a^.J:H..!^;�.,,,..i rr i:�:.'��.„�.. ... ._ti.�'e.;,•�LS�'i:^ ..1.:_ . .... 'w:iluS'.�.. ... a"_. . ':� Home Complaints/Parties Actions Minutes yPending Hearings Case Report Images i Open+Qlicky�ealfcFi,"i",'I�+d� Case INCO09357 - MICHAEL ARTHUR VS. DAVID M LEVY ,rQVo,,;Tb;,ll,�i Qate,,lr�rtii; Viewed Date 0 Action Text� Dispostion Image I PROOF OF SERVICE OF JUDGMENT AFTER TRIALISTATEMENT OF Not N 08/13/1999 DECISION,HALL& BAILEY,08/12/99, SERVED ON SERVED FILED (NON- Applicable N 08/10/1999 JUDGMENT(ENTIRE ACTION) FILED; HONORABLE CES,. Not F] :711Applicable 0 8/1 011 9 9 9 STATEMENT OF DECISION FILED BY MICHAEL AR ONORABL . ,Not Applicable K N 08/03/1999 OF COSTS AND DISBURSEMENTS, SUMMARY FI Not MICHAEL ARTHUR, ROBERT L NAHODIL'USE) MCS PVIOLA"` Applicable ❑ 07/13/1999 EXHIBITS LIST(JOINT), Not N/A Applicable E07/13/1999 9:30 COURT TRIAL(TRAILING); ESTIMATE 3,07/12/99,09.30,2F, DAYS - Judgment ❑ AM DEPT. 2F Minutes Entered 07/13/1999 COURT REPORTER FEE IN THE AMOUNT OF$84.00,000NSEL FOR Npott ❑ DEFENDANT,07/13l99, PAID BY FOR A licable 07/13/1999 COURT REPORTER FEE IN THE AMOUNT OF$84.OD,000NSEL FOR Not ❑ PLAINTIFF,07/13/99, PAID BY FOR Applicable 07/12/1999 COURT REPORTER FEE IN THE AMOUNT OF Nat $168.00,PLAINTIFF,07/12/99, PAID BY FOR Applicable ❑ 07l12/1999 TRIAL BRIEF FILED SY MICHAEL ARTHUR, ROBERT L NAHODIL Applicable N/A 07H2/1999 TRIAL BRIEF FILED BY DAVID M LEVY Not N/A Applicable 07/1211999 STATEMENT SEPARATE STATEMENT OF UNDISPUTED FACTS,0003, Not FILED BY Applicable N/A 0 711 2/1 9 9 9 PLAINTIFF WITNESS LIST Not N/A Applicable 07/12/1999 EXHIBITS LIST BY PLAINTIFFS, Nat N/A Applicable 07/12/1999 71 COURT REPORTER FEE IN THE AMOUNT OF $168.00,DAVID M LEVY Not (DEFT),07/12199, PAID BY FOR Applicable ❑ 07/12/1999 9.30 COURT TRIAL(TRAILING); ESTIMATE 3,D7/12/99,09:30,2F, DAYS- Granted ❑ F-11AM DEPT.2F Minutes 06/28119 - 9 00 JURY TRIAL-Minutes Completed F71AM DEPT.2F AM2DEp79 8 30 STATUS CONFERENCE-Minutes Completed ❑ AMIDEPT. 2F30 STATUS CONFERENCE Vacated ❑ hitp://ptiblic-access.riverside.courts.ca-gov/OpenAccess/CIVIL/civildetails.asp?courteode=B&casenumbe_-- 2/26/2008 9 7 .r.U fi 1 LAW OFFICES OF RICK M. STEIN Rick M. Stein, Esq, 2 State Bar No.: 044652 400 South Farrell Drive ORIGINAL ° L 9E DO Suite B-203 SUPERIOR COURT OF chuFORNIA COUNTY OF RIVERVOE Palm Springs, California 92262 4 Telephone: (760)325-5990; Facsimile: (760)325-6265 AUG 101999 5 ATTORNEY FOR Plaintiffs 6 L. MICKELSON J 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF RIVERSIDE 10 Q 11 MICHAEL ARTHUR and ROBERT NAHODIL, ) Case No.: INC 009357 12 Plaintiffs, ) STATEMENT OF DECISION 13 V. ) (California Rules of Court 14 DAVID LEVY, an individual; all persons ) 232(c) and 520) unknown, claiming any legal or equitable ) 15 right, title, estate, lien, or interest in the ) [i�repescd] property described in the complaint adverse ) 16 to plaintiffs' easement; and DOES 1 through ) 50, inclusive, ) 17 ) Defendants. ) 1B ) 19 ) DAVID M. LEVY, ) 20 ) Cross-Complainant, ) 21 ) V. ) 22 ) MICHAEL ARTHUR; ROBERT L. NAHODIL, ) 23 et al., ) 24 Cross-Defendants. ) 25 } 26 27 28 7351.ART Statement of Decision i 1 The above entitled case came on regularly for trial on Tuesday, July 12, 2 1999, and continued through the morning of Wednesday, July 13, 1999, in Dept. 2F of 3 the above-entitled court, the Honorable Charles E. Stafford, Jr., Judge presiding, a jury 4 having been expressly waived by both parties. Rick M. Stein, Esq. appeared as counsel ti 5 for plaintiffs/cross-defendants Arthur and Nahodil, and John L. Bailey, Esq, appeared for 5 defend a ntfcross-complainant Levy h 7 Oral and documentary evidence was introduced on behalf of the respective 8 parties and the cause was argued and submitted for decision. The court, having 9 considered the evidence and heard the arguments of counsel and being fully advised, 10 issues the following Statement of Decision: 11 1. Easement. With regard to the issue whether plaintiffs established 12 their right to an easement over the Old Araby Road which abuts Levy's property,the 13 court finds, based upon the totality of the evidence, that plaintiffs have overwhelmingly 14 established the existence of the easement as an express easement, easement by 15 prescription, easement by implication, and easement by necessity, The court based its 16 decision of the following facts: 17 a. The area in question, off Araby Road in South Palm Springs, 18 consists of a hillside area, lightly inhabited. 19 b. Exhibit 101 shows that Perle Wheeler Martin and Hellen A. 20 Edgerly, predecessors in interest to the properties owned by plaintiffs and defendant, 21 respectively, entered into an agreement, and exchanged monetary consideration, on 22 March 24, 1933,with the intent to jointly develop a road (now known as the"Old Araby 23 Road")and that each party would have a non-exclusive easement to use the road once it 24 was completed. By recording the Agreement,the parties intended the easement to run 25 with the land parcels in question. 26 27 28 .2- Statement of Decision C � h 1 c. The road was completed and became known as the Old Araby 2 Road- The Old Araby Road abuts property owned by plaintiffs and defendant, and it 3 passes through a large portion of property owned by Levy, servient tenement. (See Civil 4 Code § 803.) 5 d. The benefits and burdens of the 1933 agreement operated as 6 servitudes burdening the property owned by Levy, a successor in interest to Hellen A. 7 Edgerly. (See Civil Code §806.) 8 e. The Deed from George Moore to David Levy which granted i 9 Levy title to Parcels 4, 12 and 13 clearly indicates in the legal description the property is 10 subject to a "perpetual easement and right of way for road purposes over a strip of land 11 50.00 feet in width lying 25.00 feet on each side of the following described center line 12 " (See Exhibits 103 and 122 and others.) Levy's expert witness testified the center 13 line lines in the middle of the Old Araby Road. 14 f. Thereafter, the Old Araby Road was used by the original parties 15 to Exhibit 101 as well as their successors in interest, including plaintiffs and defendant. 16 g. The intent of the original owners, Perle Martin Wheeler and 17 Hellen A. Edgerly, was to provide access to Parcel 3, depicted on Exhibit 102, a parcel 18 now owed by plaintiffs. 19 h. Plaintiffs purchased their parcels in 1978, and Levy purchased 20 his parcels in 1977 and 1978, 21 i Between 1978 and 1989, plaintiffs had tenants on their property 22 who used the Old Araby Road for ingress and egress. Between approximately 1989 23 and 1996, plaintiffs' property was vacant, because Levy had made numerous complaints 24 to plaintiffs concerning activities of their tenants on plaintiffs' property, Parcel 3. In 1996, 25 Levy introduced plaintiffs to a tenant who rented the property on Parcel 3 from plaintiffs. 26 27 211 -3- Statement of Decision w 'I u. 1 j. At least once, Levy placed a lock on his gate to prevent y 2 vagrants from passing over the Old Araby Road; however, on April 5, 1991, Levy gave a 3 key to the lock to Bob Fey who Levy knew was a real estate broker representing I f 4 plaintiffs in their attempt to sell their property. (Exhibit 6) f 5 k. The use of the Old Araby Road by plaintiffs and their tenants 6 between 1978 and the present was open, notorious and continuous for a period 7 exceeding five years, indeed, from 1978 to the present. 8 2. Aban onment. Did plaintiffs abandon the easement? The court 9 based its decision on the following facts: 10 a. Plaintiffs did not abandon the easement. Indeed, on January 6, 11 1997, Robert Nahodil wrote Levy to tell him that"we will not relinquish our rights of 12 access and egress on Araby Drive ..." (See also Exhibits 126-129 recorded December 13 31, 1997.) 14 b. Robert Fey testified that up to the present, he used the Old 15 Araby Road to show plaintiffs' property to prospective purchasers. (See Exhibit 2, the 16 notice posted by Fey on Levy's fence.) 17 3. Easement of Necessity. Easement by necessity? The court based 18 its decision on the following facts: 19 a. The dominant and servient tenements were at one time under 20 common ownership and the easement created. (See Exhibits 121, 122, 123, 124.) 21 b, There exists a strict necessity for the easement as plaintiffs' 22 land is land-locked and, other than the Old Araby Road,there is not an all weather road 23 which services plaintiffs' property. The road across plaintiffs' parcel on Smokewood was 24 disapproved by the City of Palm Springs in or about 1985. 25 4. Taxes on E Bement. Who was required to pay taxes on the 26 easement? The court based its decision on the following facts: 27 28 .4• Statement of Decision f �� i I a. When Perle Wheeler Martin and Hellen A. Edgerly transferred 2 their properties (Exhibit 101), the subsequent owners took the properties burdened and I 3 benefitted by the easement which had been created in 1933. 4 b. Based upon the evidence before the court, George Moore had no 5 power to convey the easement to David Levy on December 6, 1979 (as purported in 6 Exhibit 104), as he did not own it. Exhibit 103, dated months earlier in February 1979, 7 shows that Levy took title to his property burdened by a perpetual easement. (A 8 servitude thereon cannot be held by the owner of the servient tenement. Civil Code 9 §805-) 10 c. Levy claims he paid taxes on the easement(about$5 a year), yet 11 he also contends no easement existed, If Levy thought the easement existed, he would 12 have forwarded the tax bills to the owner of the dominant tenement, something he did not 13 do. 14 b. Presumably, 4 plaintiffs had known about a tax bill an the 15 easement, as owners of the easement they would have paid the tax bill. Plaintiffs would 16 have paid the tax bill on the easement if they had known about it- 17 c. The only reason the tax assessor sent a tax bill to Levy was as 16 a result of the purported conveyance from George Moore to Levy recorded February 28, 19 1979, (Exhibit 103.) The sending of the tax bill does not evidence Levy's ownership of 20 the easement. 21 5. Levy Cross-Complaint. Is Levy entitled to interfere with plaintiffs' 22 use of the Old Araby Road and does Levy's cross-complaint have any merit? The court 23 based its decision on the following facts: 24 a- As owner of the servient tenement, Levy was not permitted to 25 interfere with use by owners of the dominant tenement. 26 27 26 g_ Statement of Decision - C� i I b. In fact,the court finds Levy did many times interfere with use of 2 the Old Araby Road by plaintiffs and their tenants and real estate agent as they 3 accessed plaintiffs' property. 4 c. Therefore,the court orders an injunction against any further . 5 interference by Levy with plaintiffs' rights- 6 d. It is also ordered that Levy take nothing by his cross-complaint. 7 e. Costs of suit are awarded to plaintiffs as prevailing parties. 8 l 9 Legal Basis. f' 10 The legal basis for the c ourt's decision is found in various authorities. "The 11 conveyance of an easement limited to roadway use grants aright of ingress and egress 12 and a right of unobstructed passage to the holder of the easement." Scruby v,Vintage 13 Grapevine, Inc., 37 Cal. AppAth 697, 703, 43 Cal_ Rptr.2d 810 (1995). Once an 14 easement for streets has been created by initial reference to a subdivision map, it 15 passes as an appurtenance to the lot unless specifically excepted_ Tract Development 16 Service. Inc.v. Ifeolgr, 199 Cal.App.3d 1374, 1383, 246 Cal. Rptr. 469 (1988). An 17 express easement may not be abandoned my mere non-use in the absence of evidence 18 of a clear, decisive, and unequivocal intent to abandon by the owner of the easement." 19 Tract Development, s,upra, at p. 1384, "... may be last by abandonment only when the 20 intention to abandon clearly appears," Gerhard v. Stephens, 68 Cal.2d 864, 69 Cal. 21 Rptr. 612 (1968). 22 section 321 of the Code of Civil Procedure and Section 1007 of the Civil 23 Code lay the statutory framework for prescriptive easement after five years of adverse 24 use. (See Zimmer v. aykstra, 39 Cal.App.3d 422,430, 114 Cal. Rptr. 380 (1974), "two 25 broad elements required to create a prescriptive easement(1) an adverse use for and 26 (2)the five year prescriptive period;" Taormina y. Denny, 1 Cal.3d 679, 686, 83 Cal_ 27 28 -6- Statement of Decision �I 4 I Rptr. 369 (1970), "title by prescription," "The elements to establish prescriptive 2 easement are ... open and notorious use or possession that is continuous and 3 uninterrupted, hostile to the true owner, and under a claim of right. ... Such use for the 4 five year statutory period ... confers a title by prescription" (at p. 686.) Another case 5 has noted, "... [C)ontinuous use of an easement over a long period of time without the r 6 landowner's interference is presumptive evidence of its [prescriptive easement) 7 existence and in the absence of evidence of mere permissive use it will be sufficient to i 8 sustain a judgment." Warsaw v Chicago Metallic Ceiling nr., 35 Cal.3d 564, 571-72, 9 199 Cal. Rptr. 773 (1984).) (Brackets added.) 10 Easements by implication will arise and be given effect when an easement 11 has been given effect by the prior owners of the property, a situation which occurred 12 here when the easement was created in 1933. The intention of Perle Wheeler Martin 13 and Hellen A. Edgerly to create an easement(in Exhibit 101), and the recordation of the 14 Agreement, creating the easement, leads the court to the conclusion that later owners of 15 the respective properties of Martin and Edgerly are burdened and benefitted by the 16 easement. (Civil Code§1104). 17 Elements necessary to establish an "adverse use" are "(a) open and 18 notorious use; (b) continuous and uninterrupted use; (c) hostile to the true owner; and 19 (d) under a claim of right." ZiMmer, supra. at p.430. In general, "adverse" use is that 20 made under a claim of right without the permission of the landowner. Kaler v. @rown, 21 101 Cal. App.2d 716, 720 (1951). 22 In California, "open and notorious" use merely means a use that notifies 23 the owner of the property (Levy in this case)that a use inconsistent with his rights is 24 being made. (See Kerr Land 8,Timber Co. v. Emmerson, 268 Cal. App.2d 628, 634, 74 25 Cal_ Rptr. 307 (1969)- M arty v , 212 Cal, App.2d 39, 44, 27 Cal. Rptr. 792 26 (1963).) "Continuous and uninterrupted" use may be satisfied when, as here,there are 27 28 -7- Statement of Decision *7 1 periods of time,even extended periods of time, between the specific acts of use by the 1 2 claimant. (See Strong v. Baldwin, 154 Cal. 150, 162 (1908); Z'mmer�, supra,) 3 Based on the record as a whole, it is crystal clear that plaintiffs have used 4 the Old Araby Road in an open, notorious and continuous fashion for many more than 5 the five years necessary to establish an easement by prescription. Plaintiffs bought the 6 property with the belief the Old Araby Road would serve their purposes. Robert Fey i 7 tried to sell the plaintiffs' property believing the Old Araby Road was available as a year- 8 round road to and from it. Levy,who lives on the Road, knew of the use and did nothing 9 to stop it, except for blocking the road on occasion, until 1996, years after the 10 easement's existence had already been well established, 11 Even though Levy paid taxes on the easement, plaintiffs had no notice of 12 the fact. Moreover,the easement should not have been separately taxed as George 13 Moore had no power to convey the easement to Levy_ (See Civil Code§805.) IN 14 any event, the tax assessor picked up the transfer from Moore to Levy_ Until Levy 15 asked them to pay, plaintiffs were absolved from paying taxes on the easement because 16 they did not know it was separately taxed. 17 18 Easement by Necessity 19 A third and independent basis for establishing the easement in question 20 arises out of the fact it was jointly developed by the prior owners when the properties 21 were owned, respectively, by Perle Martin Wheeler and Hellen A. Edgerly. By 22 developing the Old Araby Road to serve both properties, it is obvious the prior owners 23 contemplated construction of the Old Araby Road to service both properties. 24 Generally, an"easement by necessity" arises when ownership of land is 25 divided in such a way as to create a landlocked parcel. Two elements must exist before 26 a court will enforce an easement by necessity: (1)there must be"strict necessity for the 27 28 -8- Statement of Decision S Y 1 easement; and (2)the dominant and servient tenements must have been under common 2 ownership when the land was divided and the easement created. Reese v. Borohi, 216 3 Cal.App.3d 324. 332-333, 30 Cal. Rptr. 866 (1963). 4 In the case at bar, the express easement in question was created in 1933, 5 when the predecessors in interest to the properties now owned by plaintiffs and by Levy, i 5 Perle Wheeler Martin and Hellen A. Edgerly,jointly agreed to construct the Old Araby 7 Road to provide ingress and egress to the properties. The properties had been divided I 8 at or about that time and,just prior to the parties owning the properties,the properties 9 were owned by the same person, Security First National Bank, and later, R. Lee Miller. 10 When plaintiffs and Levy purchased their properties,the benefits and burdens of the 11 easement passed with the respective titles. (See discussion in Lichtyv. 53.0kels, 149 12 Cal. App.3d 696, 700-01, 197 Cal. Rptr. 137 (1983).) An easement of necessity is 13 appurtenant to the land and it"... must be presumed to continue until some fact found by 14 the court shows that the right no longer exists ... The way, having been created by the 15 necessity for its use, cannot be extinguished so long as the necessity exists." (Lbh-ly at 16 p. 701.) 17 Judgment is hereby ordered to be entered as follows: 18 1. Judgment on the complaint in favor of plaintiffs Robert Nahodil and 19 Michael Arthur and against defendant David Levy, as well as all persons unknown, 20 claiming any legal or equitable right, title, estate, lien, or interest in the property adverse 21 to plaintiffs in the non-exclusive easement to service Parcel 3 described as follows: 22 "A strip of land 50.00 feet in width lying 25.00 feet on each side of the following described center line: 23 All that portion of the Southeast quarter of Section 25, 24 Township 4 South, Range 4 East, San Bernardino Meridian, as shown by United States Government 25 Survey, and more particularly described as follows: 26 Beginning at the most Westerly comer of Lot 17 in Block"la'of Araby Tract, as shown by Map on file in 27 28 -9- Statement of Decision E3 1 Book 13 Pages 61 and 62 of Maps, records of Riverside County, California; thence South 71`22'20" 2 West, a distance of 367-26 feet;thence South 00001'00"West, a distance of 222.81 feet to the true 3 point of beginning of said center line to be described; thence South 83033'00" East, a distance of 60.76 feet; 4 thence North 59"18'00" East, a distance of 62.47 feet; thence North 87°57'00" East, a distance of 19.93 feet; 5 thence south 54032'00" East, a distance of 59.66 feet; thence South 26023'00" East, a distance of 152.33 6 feet; thence South 63128'00" East, a distance of 235.41 feet;thence south 48028'00" East, a distance 7 of 234.19 feet to a point that bears South 00°13'00" East, a distance of 137.47 feet from the Southwesterly 8 corner of Lot 26 in Block"F" of said Araby Tract- 9 The side lines of said Easement are to be prolonged or shortened to terminate in the side lines of that certain 10 parcel of land, as conveyed to Hellen A. Edgerly, by deed recorded June 7, 1932 in Book 78 Page 398 of 11 Official Records of Riverside County, California." 12 2. Cross-complainant Levy take nothing by his cross-complaint. 13 3. Costs of suit are awarded to plaintiffs as prevailing parties- 14 4. Levy, his servants, agents, attomeys, and those acting in concert 15 with him are enjoined from any conduct which will interfere with plaintiffs' use of the 16 easement. 17 18 Dated; J t9 , 1999 19 20 (� 21 Charles E. Stafford, Jr. U Judge of the Superior Court 22 23 APPROVED AS TO FORM AND CONTENT: 24 25 26 John L. Bailey Attorney for Levy 27 28 -10- Statement of Decision 50 ,I I PROOF OF SERVICE,STATE OF CALIFORNIA, COUNTY OF RIVERSIDE 2 1 am employed in the County of Riverside,State of California, I am over the age of 18 and not a party to the within action; my business address is 400 South Farrell Drive, Suite B-203, Palm k 3 Springs, California. 4 On Augustt, 1999, 1 served the foregoing document(s) described as: 5 STATEMENT OF 09CISION rouosedl 6 on the interested party(ies) in this action as follows: 7 John L. Bailey, Esq. Therese Balley-Nelson, Esq. 8 Hall&Bailey 6761 Brockton Avenue 9 Riverside, CA 92506 10 [X](BY MAIL) In a sealed envelope addressed as set forth above. I am"readily familiar'with the 11 irm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S, postal service on that same day with postage thereon fully prepared 12 at Palm Springs, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more 13 than one day after date of deposit for mailing in affidavit. 14 [ ] (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the addressee. 15 [ y (BY FACSIMILE SERVICE)The above mentioned document(s)waslwere transmitted by facsimile transmission and the transmission was reported as complete and without error. 16 17 (STATE) I declare under penalty of perjury under the laws of the State of California that the above 18 is true and correct- 19 Executed an August , 1999, at Palm 5 rings, Califomia- 20 21 22 Ti a Weintraub 23 24 25 26 27 26 E 2 f 1 LAW OFFICES OF RICK M. STEIN Rick M. Stein, Esq. n 2 State Bar NO.: 044652 ORIGINAL ` I � 19 D 400 South Farrell Drive SUPERIOR COURT OF CALIFORNIA 3 Suite 8-203 COUNTY OF RIVERSIDE o Palm Springs, California 92262 AUG 10 1999 4 Telephone: (760)325-5990; Facsimile: (760)325-6265 B G 5 ATTORNEY FOR Plaintiffs L. MICKELSON 6 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF RIVERSIDE 10 i 11 MICHAEL ARTHUR and ROBERT NAHODIL, ) Case No.: INC 009357 12 Plaintiffs, ) JUDGMENT AFTER TRIAL BY COURT 13 V. ) ) 14 DAVID LEVY, an individual; all persons ) unknown, claiming any legal or equitable ) 15 right, title, estate, lien, or interest in the ) property described in the complaint adverse ) 16 to plaintiffs' easement; and DOES 1 through ) 50, inclusive, ) 17 ) Defendants. ) 18 ) 19 ) DAVID M. LEVY, ) 20 ) Cross-Complainant, ) 21 ) V. ) 22 ) MICHAEL ARTHUR; ROBERT L. NAHODIL, ) 23 et al., ) 24 Cross-Defendants. } 25 ) 26 27 28 7354_ART Judgment After Trial by Court li 1 THIS ACTION came on regularly for trial on Tuesday, July 12, 1999, and 2 continued through the morning of Wednesday,July 13, 1999, in Dept. 2F of the above- 3 entitled court, the Honorable Charles E. Stafford, Jr., Judge presiding, a jury having i 4 been expressly waived by both parties. Rick M. Stein, Esq. appeared as counsel for 5 plaintiffs/cross-defendants Arthur and Nahodil, and John L. Bailey, Esq, appeared for 6 defendant/cross-complainant Levy. If 7 Oral and documentary evidence was introduced on behalf of the respective i 8 parties and, after argument, the cause having been submitted for decision, 9 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that, 10 1. Judgment rendered on the complaint in favor of plaintiffs Robert l 11 Nahodil and Michael Arthur and against defendant David Levy, as well as all persons 12 unknown, claiming any legal or equitable right,title, estate, lien, or interest in the 13 property adverse to plaintiffs in the non-exclusive easement to serve Parcel 3 described 14 as follows: 15 "A strip of land 50.00 feet in width lying 25,00 feet on each side of the following described center line: 16 All that portion of the Southeast quarter of Section 26, 17 Township 4 South, Range 4 East, San Bernardino Meridian, as shown by United States Government 18 Survey, and more particularly described as follows: 19 Beginning at the most Westerly corner of Lot 17 in Black"F" of Araby Tract, as shown by Map on file in 20 Book 13 Pages 61 and 62 of Maps, records of Riverside County, California; thence South 71°22'20" 21 West, a distance of 367.26 feet; thence South 00 101'00"West, a distance of 222.81 feet to the true 22 point of beginning of said center line to be described; thence South 83°33'00" East, a distance of 60.76 feet; 23 thence North 59'18'00" East, a distance of 62.47 feet; thence North 87057'00"East, a distance of 19.93 feet; 24 thence south 54032'00" East, a distance of 59.66 feet; thence South 26°23'00" East, a distance of 152.33 25 feet;thence South 63'28'00" East, a distance of 23SAI feet; thence south 48°28'00" East, a distance 26 of 234.19 feet to a point that bears South 000 13'00" East, a distance of 137.47 feet from the Southwesterly 27 28 -2- Judgment After Trial by Court L 1 corner of Lot 26 in Block"F"of said Araby Tract. �I 2 The side lines of said Easement are to be prolonged or shortened to terminate in the side lines of that certain G 3 parcel of land, as conveyed to Hellen A. Edgerly, by deed recorded June 7, 1932 in Book 78 Page 398 of 4 Official Records of Riverside County, California." 5 2. Cross-complainant Levy take nothing by his cross-complaint. 5 9 3. Levy, his servants, agents, attorneys, and those acting in concert 7 with him are enjoined from any conduct which will interfere with plaintiffs' use of the 8 easement, s 4. Costs of suit awarded to plaintiffs. 10 11 Dated: l0, 1999 12 13 14 ChharrllesaE. Sta orrdf�Jr/. � Judge of the Superior Court 15 18 APPROVED AS TO FORM AND CONTENT: 17 16 19 John L. Bailey Attorney for Levy 20 21 22 23 24 25 26 27 28 -3- Judgment After Trial by Court iEE I PROOF OF SERVICE, STATE OF CALIFORNIA, COUNTY OF RIVERSIDE 2 1 am employed in the County of Riverside, State of California. I am over the age of 18 and not a party to the within action; my business address is 400 South Farrell thrive, Suite B-203, Palm 3 Springs, California. 4 On August J, 1999, 1 served the foregoing document(s)described as: li 5 JUDGMENT AFTER TRIAL BY COURT rPr000seQ 6 1 on the interested party(ies)in this action as follows: 7 John L. Bailey, Esq. Therese Bailey-Nelson, Esq. 8 Hall & Bailey 6761 Brockton Avenue 9 Riverside, CA 92506 10 [X](BY MAIL) In a sealed envelope addressed as set forth above. I am"readily familiar'with the 11 fiWs practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S, postal service on that same day with postage thereon fully prepared 12 at Palm Springs, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more 13 than one day after date of deposit for mailing in affidavit. 14 [ ] (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the addressee. I 15 [ ](BY FACSIMILE SERVICE)The above mentioned document(s)wastwere transmitted by facsimile transmission and the transmission was reported as complete and without error. 16 17 (STATE) I declare under penalty of perjury under the laws of the State of California that the above 18 is true and correct. 19 Executed on August 1999, at Palm Springs, California. 20 21 22 Tina Weintraub 23 24 25 26 27 28