Filed 8/6/14 Rhodes v. City of Glendora CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO

JAMES RHODES, an Individual and as                                   B251642
Trustee of The Rhodes Family Trust,
                                                                     (Los Angeles County
         Plaintiff and Appellant,                                    Super. Ct. No. KC064007)

         v.

CITY OF GLENDORA, a Municipal
Corporation,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Salvatore T. Sirna, Judge. Affirmed.
         Law Office of Glenn E. Stern, Glenn E. Stern, Jan T. Aune and Richard Coberly
for Plaintiff and Appellant.
         Law Offices of Leech & Associates, D. Wayne Leech for Defendant and
Respondent.


                                                       ******
       Following a bench trial on stipulated facts, the trial court ruled that Civil Code
section 1007 applied to bar plaintiff and appellant James Rhodes from bringing a claim
for adverse possession of property to which defendant and respondent the City of
Glendora (City) held title. We affirm. The trial court properly determined that appellant
was not entitled to perfect a claim for adverse possession against public property as a
matter of law.
                  FACTUAL AND PROCEDURAL BACKGROUND
       This matter was tried on the basis of stipulated facts. (See Mooney v. Pickett
(1972) 26 Cal.App.3d 431, 437 [where no relief from stipulation has been requested or
granted, “stipulated facts are binding on the appeal”].)
       In October 1910, the County of Los Angeles (County) acquired fee simple title to
Amelia Avenue, a 60-foot wide street. The center 40-foot width of Amelia Avenue was
improved with an asphalt road surface, leaving approximately 10 feet on either side
unimproved. A copy of the deed by which the County obtained Amelia Avenue was
identified as Exhibit 1.
       In October 1961, appellant acquired his residential property in fee simple (Rhodes
property). The west property line of the Rhodes property abuts the east property line of a
portion of Amelia Avenue. The portion in dispute—an approximate 10-foot-wide by
210-foot-long portion of Amelia Avenue (the Strip)—had landscaping on it when
appellant acquired the Rhodes property.
       Pursuant to Street and Highways Code section 989, in February 1966 the County’s
fee simple interest in part of the 60-foot-width of Amelia Avenue, including the Strip,
passed to the City of Glendora (City) in connection with the annexation of the Easterly
Annexation District No. 57. The annexation was filed with the County Recorder’s Office
on February 11, 1966, and a copy thereof was identified as Exhibit 2. Since that time, the
City has held a fee simple interest in Amelia Avenue, including the Strip.




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       In June 2012, appellant filed a complaint against the City and County, alleging
causes of action for declaratory relief and quiet title.1 He sought relief on the ground he
had established an interest in the Strip through adverse possession. He contended he was
entitled to perfect a claim for adverse possession on the basis the Strip had not been
officially dedicated for public use. The City maintained that appellant could not
adversely possess the Strip because it was public property. It further asserted that formal
public use dedication was not required to prohibit a claim of adverse possession
involving public property and that, in any event, Amelia Avenue, including the Strip, had
been dedicated for public use as a road.
       For the purpose of trial, the parties offered no evidence beyond the stipulated
facts. Pursuant to that stipulation, the parties “respectfully request[ed] that the court
adjudicate whether plaintiff is entitled to perfect a claim for adverse possession of the
Strip as a matter of law. If the court adjudicates that plaintiff is entitled to perfect an
adverse possession claim to the Strip as a matter of law, the parties will either present
evidence and testimony as to whether plaintiff has met the elements required to perfect a
claim for adverse possession, or stipulate to further facts addressing those elements for
further court adjudication. [¶] If the court determines that plaintiff is not entitled to
perfect an adverse possession claim to the Strip as a matter of law, judgment in favor of
defendant and against plaintiff shall be entered accordingly, and there shall be no further
necessity for additional evidence and testimony to be received.”
       The parties submitted trial briefs in support of their respective positions.
Thereafter, the trial court called the matter for trial in July 2013 and made the following
findings: “[Civil Code] Section 1007 applies to this case. There can be no adverse
possession of property dedicated to or owned by the state or any public entity. The city




1      The County did not appear at trial and, consequently, is not a party to this appeal.

                                               3
of Glendora is determined to be a public entity as contemplated by [Civil Code] Section
1007. [¶] The Court finds that exhibit 1 (1910 deed), states public use for property of
trust designates the subject property as use for a road.”
       The trial court thereafter entered a judgment that included a recitation of the
stipulated facts and elaborated on the initial findings, providing: “1. Civil Code Section
1007 applies to this case and the 1935 amendment to Civil Code Section 1007 bars
plaintiff’s claim for adverse possession to the Strip. [¶] On October 17, 1910, the
County of Los Angeles acquired fee simple title to Amelia Avenue, a 60 foot wide street,
for ‘road purposes.’ The deed (Exhibit 1) states in relevant part: [¶] ‘For, and in
consideration of the sum of one & no/100 dollars . . . [] do hereby grant to the said county
of Los Angeles in fee simple for road purposes the following described real property . . .
[] a strip of land sixty (60) feet in width . . . [] (Reference is hereby made to the attached
map.’) [¶] Said deed evidences that the entire width of Amelia Avenue, including the
Strip, was deeded to the County for road purposes, a public use. The City of Glendora is
not required to prove that the Strip was dedicated for a public use, since the 1935
amendment to Civil Code Section 1007 holds that title to property held by a
governmental agency is not subject to loss by adverse possession regardless of the
character of the property as a public use or propriety [sic] use. Nonetheless, said deed
provides that Amelia Avenue, including the Strip, is for roadway purposes, a public use,
thereby providing another legal basis for defeating Plaintiff’s adverse possession claim.”
       This appeal followed.
                                       DISCUSSION
       The trial court adjudicated a single question of law: Whether appellant was
entitled to perfect a claim for adverse possession of the Strip as a matter of law on the
basis of the stipulated facts. Appellant challenges the trial court’s resolution of that
question on several grounds, none of which has merit.




                                               4
I.     Applicable Adverse Possession Principles and Standard of Review.
       “Adverse possession is a means to acquire ownership of land.” (Silacci v.
Abramson (1996) 45 Cal.App.4th 558, 562.) Current law provides: “In California, title
to property owned by a public entity cannot be obtained by another through adverse
possession. [Citations.]” (Hagman v. Meher Mount Corp. (2013) 215 Cal.App.4th 82,
87, fn. omitted.) This principle is codified in Civil Code section 1007,2 which states:
“Occupancy for the period prescribed by the Code of Civil Procedure as sufficient to bar
any action for the recovery of the property confers a title thereto, denominated a title by
prescription, which is sufficient against all, but no possession by any person, firm or
corporation no matter how long continued of any land, water, water right, easement, or
other property whatsoever dedicated to a public use by a public utility, or dedicated to or
owned by the state or any public entity, shall ever ripen into any title, interest or right
against the owner thereof.”
       As originally enacted in 1872, section 1007 provided that real property held by the
state or its subdivisions was subject to loss through adverse possession if the property
was held in a proprietary capacity and had not been reserved for or dedicated to public
use. (Southern Pacific Co. v. City and County of San Francisco (1964) 62 Cal.2d 50, 53,
fn. 1; Henry Cowell Lime & Cement Co. v. State of California (1941) 18 Cal.2d 169,
172.) The statute was amended in 1935 to provide that “title to property held by the
governmental agencies therein described is not subject to loss by adverse possession
regardless of the character of the property.” (Southern Pacific Co. v. City and County of
San Francisco, supra, 62 Cal.2d at p. 53, fn. 1; accord, Marin Healthcare Dist. v. Sutter
Health (2002) 103 Cal.App.4th 861, 882; see also Stats. 1935, ch. 519, § 1.) A 1968
amendment—the statute’s most recent—both extended the statutory exemptions to apply
to property “dedicated to a public use by a public utility” and replaced the phrase “the
state or any public entity” for the governmental entities specified in the former provision.
(See Stats. 1968, ch. 1112, § 1.)

2      Unless otherwise indicated, all further statutory references are to the Civil Code.

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       Here, the parties offered no evidence to establish whether appellant’s conduct
satisfied the elements of adverse possession. Rather, the evidence was comprised of the
parties’ stipulation to five facts concerning title to Amelia Avenue and the Rhodes
property, and the parties asked the trial court to resolve the legal question whether
appellant was entitled to perfect a claim for adverse possession in light of those facts.
Where a matter is tried on stipulated facts and there is no conflict in the evidence, the
appeal presents only questions of law that we review de novo. (J.H. McKnight Ranch,
Inc. v. Franchise Tax Bd. (2003) 110 Cal.App.4th 978, 983; Sea World, Inc. v. County of
San Diego (1994) 27 Cal.App.4th 1390, 1397.)
II.    The Trial Court Properly Determined that Civil Code Section 1007 Barred
Appellant’s Claim for Adverse Possession as a Matter of Law.
        Section 1007 prohibits the adverse possession of “property . . . dedicated to or
owned by the state or any public entity . . . .” On the basis of the stipulated facts, the trial
court concluded that appellant could not claim adverse possession of the Strip as a matter
of law because, at all relevant times, either the County or the City owned the Strip. It
ruled that the title to the Strip was determinative, explaining that section 1007 provided
property owned by a public entity was not subject to loss through adverse possession
regardless of the property’s use. Alternatively, it found the stipulated facts further
demonstrated that the deed by which the County acquired Amelia Avenue, including the
Strip, provided the grant was for “road purposes,” thereby establishing a dedication for
public use.
       We agree with the trial court’s conclusion. The stipulated facts provided that a
pubic entity—the County or the City—held title to the Strip at all relevant times.
According to the plain language of section 1007, such title was not subject to loss through
adverse possession. (See Southern Pacific Co. v. City and County of San Francisco,
supra, 62 Cal.2d at p. 53, fn. 1 [“title to property held by the governmental agencies




                                               6
therein described is not subject to loss by adverse possession regardless of the character
of the property”]; Hagman v. Meher Mount Corp., supra, 215 Cal.App.4th at p. 87 [“title
to property owned by a public entity cannot be obtained by another through adverse
possession,” fn. omitted]; City of Los Angeles v. Forrester (1936) 12 Cal.App.2d 146,
149 [“the rights of a municipality in public land may not be divested by adverse
possession”]; Martin v. City of Stockton (1919) 39 Cal.App. 552, 557 [“‘it has been held
and decided that no rights can thus be acquired in and to the public property, or property
devoted to a public use, or owned by a municipality for public uses’”].)
       We find no merit to appellant’s efforts to demonstrate that section 1007 did not
apply to preclude an adverse possession claim of the Strip. At trial, appellant contended
that his five-year period required for adverse possession ran from 1961 to 1966, and that
therefore the version of section 1007 before its 1968 amendment was applicable. (See
Buic v. Buic (1992) 5 Cal.App.4th 1600, 1604 [one element of adverse possession is
uninterrupted and continuous possession for five years].) He further contended that
section 1007 as amended in 1935 permitted public property to be adversely possessed if it
was not dedicated for a public use. Building on this contention, appellant first argues that
the operative version of section 1007 does not bar his claim because there was no official
dedication of the Strip for public use.
       Appellant’s argument lacks merit. Even assuming that the pre-1968 version of
section 1007 is applicable, the statute then insulated public property from claims of
adverse possession regardless of the property’s use. Between 1935 and 1968, section
1007 provided: “‘Occupancy for the period prescribed by the Code of Civil Procedure as
sufficient to bar any action for the recovery of the property confers a title thereto,
denominated a title by prescription, which is sufficient against all, but no possession by
any person, firm or corporation no matter how long continued of any land, water, water
right, easement, or other property whatsoever dedicated to or owned by any county, city




                                              7
and county, city, irrigation district, public or municipal corporation or any department or
agency thereof, shall ever ripen into any title, interest or right against such county, city
and county, city, public or municipal corporation, irrigation district, or any department or
agency thereof or any agency created or authorized by the Constitution or any law of this
State for the administration of any State school, college or university. The exemption of
certain classes of governmental property is intended as a limitation and shall not be
deemed to subject to the operation of this section any classes of governmental property
which would not otherwise be subject thereto.’” (City of Los Angeles v. City of San
Fernando (1975) 14 Cal.3d 199, 270, fn. 66, italics and underline added, disapproved on
another point in City of Barstow v. Mojave Water Agency (2000) 23 Cal.4th 1224, 1248.)
Thus, contrary to appellant’s contention, after 1935, section 1007 provided that property
owned by a city was not subject to loss through adverse possession, “regardless of the
character of the property.” (Southern Pacific Co. v. City and County of San Francisco,
supra, 62 Cal.2d at p. 53, fn. 1; accord, Marin Healthcare Dist. v. Sutter Health (2002)
103 Cal.App.4th 861, 882.) Here, the parties stipulated that the City held fee simple title
to the Strip. “Unless the trial court, in its discretion, permits a party to withdraw from a
stipulation [citations], it is conclusive upon the parties, and the truth of the facts
contained therein cannot be contradicted. [Citations.]” (Palmer v. City of Long Beach
(1948) 33 Cal.2d 134, 141-142; see also Glade v. Superior Court (1978) 76 Cal.App.3d
738, 744 [“a stipulation in proper form is binding upon a court unless it is contrary to
law, court rule, or public policy”].) Accordingly, the trial court properly ruled that
section 1007, as amended in 1935, applied to bar appellant’s claim for adverse possession
of City-owned property.3 Appellant’s reliance on Henry Cowell Lime & Cement Co. v.
State of California, supra, 18 Cal.2d at page 173 is misplaced, as there the plaintiff




3      We find no merit to appellant’s related claim that application of section 1007 as
amended in 1968 unconstitutionally deprived him of vested rights. Again, the trial court
properly applied section 1007 as amended in 1935 to determine appellant could not
perfect an adverse possession claim.

                                               8
contended his predecessors acquired title to public property through adverse possession
in the 1860’s, well before the 1935 amendment to section 1007.
       Nor do we find any merit to appellant’s contention that a claim for adverse
possession should lie because the City abandoned the Strip. Appellant relies on
Humboldt County v. Van Duzer (1920) 48 Cal.App. 640, 643, where the court discussed
the possibility that a public entity’s abandonment of a property’s public use could result
in the property being held in a proprietary capacity, subject to acquisition by adverse
possession according to the pre-1935 version of section 1007. That case does not assist
appellant, as his rights must be assessed under the post-1935 version of section 1007
which makes no distinction between property held by a public entity for public use or in a
proprietary capacity. The other cases cited by appellant are inapposite. (Machado v.
Title Guarantee & Trust Co. (1940) 15 Cal.2d 180, 185 [quiet title action between
adjacent private property owners involving strip of land that had been set aside for public
use but was never accepted, used or improved for that purpose and was later formally
abandoned by the public entity]; Besneatte v. Gourdin (1993) 16 Cal.App.4th 1277, 1281
[quiet title action to alley over two adjacent parcels, where public easement in alley had
been abandoned and neither deed described the alley]; Zimmerman v. Young (1946) 74
Cal.App.2d 623, 628 [quiet title action between adjacent private property owners
involving question of contractual right to easement for roadway purposes].)
       In any event, even if the concept of abandonment were relevant, the court in
Humboldt County v. Van Duzer, supra, 48 Cal.App. at page 644, explained that “[t]o
effect an abandonment of an easement or public use of property acquired by grant to the
public authorities, the intention to abandon must be clearly manifest. Mere nonuser of an
easement acquired by grant does not amount to an abandonment.” (Accord, City of
Imperial Beach v. Algert (1962) 200 Cal.App.2d 48, 51 [“That a county or city will not
lose its right to a duly dedicated public street by mere nonuser has been clearly




                                             9
established by constantly uniform authority”].) Here, the stipulated facts contained no
evidence establishing abandonment. Rather, the evidence showed the Strip was part of a
60-foot road owned by the County or City at all relevant times; the County improved a
40-foot width of the road with asphalt; and the Strip was landscaped when appellant
acquired the adjacent Rhodes property. This evidence provided no basis for the trial
court to find the City had a manifest intent to abandon the Strip.
       Lastly, we decline to disturb the judgment on the basis of facts and theories not
presented below. We denied appellant’s motion to augment the record or take additional
evidence on appeal of a 2010 County letter regarding the Strip, and in his reply brief,
appellant has abandoned any contention based on that letter. Appellant’s final argument
involves a perceived inconsistency between the map attached to the 1910 deed and the
1966 annexation map, both of which were attached to the stipulated facts. He did not
raise this issue at trial. As aptly summarized in Brandwein v. Butler (2013) 218
Cal.App.4th 1485, 1519: “It is a well established tenet of appellate jurisprudence that a
litigant may not pursue one line of legal argument in the trial court, and having failed in
that approach, pursue a different, and indeed, contradictory line of argument on appeal,
thus depriving the trial court of the opportunity to consider what the appellant contends
on appeal is the real dispute. [Citation.] Such new arguments may be deemed waived,
based on common notions of fairness. ‘Appellate courts are loath to reverse a judgment
on grounds that the opposing party did not have an opportunity to argue and the trial
court did not have an opportunity to consider . . . . Bait and switch on appeal not only
subjects the parties to avoidable expense, but also wreaks havoc on a judicial system too
burdened to retry cases on theories that could have been raised earlier.’ [Citation.]”
(Accord, City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126
Cal.App.4th 668, 685 [contentions or theories raised for the first time on appeal are not
entitled to consideration]; Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784,
1794 [“It must appear from the record that the issue argued on appeal was raised in the




                                             10
trial court. If not, the issue is waived”].) We deem appellant to have waived any
argument premised on map inconsistency because he did not raise it below.
                                    DISPOSITION
      The judgment is affirmed. The City is entitled to its costs on appeal.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           _____________________, J. *
                                                  FERNS
We concur:




____________________________, P. J.
      BOREN


____________________________, J.
      ASHMANN-GERST




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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