Filed 5/3/17

               CERTIFIED FOR PUBLICIATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION SIX


LESLIE WITHERSPOON                    2d Civil No.B267505
HINRICHS,                           (Super. Ct. No. 56-2011-
                                           00395805)
  Plaintiff, Cross-defendant           (Ventura County)
and Appellant,

v.

GEORGE R. MELTON, as
Trustee, etc., et al.,

  Defendants, Cross-
complainants and Appellants;


            How does a landowner whose parcel is landlocked
gain access to the property? In Linthicum v. Butterfield (2009)
175 Cal.App.4th 259 (Linthicum), we held that the trial court
may grant the landowner an equitable easement over a
neighboring property. In Linthicum, the party to whom an
equitable easement was granted had been using a road on
neighboring property for several decades. Here we hold, among
other things, the court may grant an equitable easement without




                               1
there being a preexisting use by the landowner seeking the
easement.
             Plaintiff, the owner of a landlocked parcel of land,
brought an action against the owners of three neighboring
parcels seeking to establish easements for access to his parcel.
The trial court established access by finding an easement by
necessity over one parcel and a connecting equitable easement
over another parcel. The court found no easement over the third
parcel. The owners of the parcels over which the court found
easements appeal. Plaintiff, dissatisfied with the route chosen by
the court, also appeals. We affirm.
                               FACTS1
             In 1993, Leslie Hinrichs inherited two contiguous
parcels of real property from his mother. The southern parcel is
improved with a residence. The northern parcel is unimproved.
It contains a rocky ridge running east and west along most of the
parcel. In determining an access route to this parcel, one must
consider the difficulties imposed by the ridge. When he was
growing up, Hinrichs lived in the residence on the southern
parcel, but has lived in Alaska since the 1980’s. In 1999,
Hinrichs sold the southern parcel to the Asquith Family Limited
Partnership (Asquith). The conveyance left the northern parcel
landlocked.


      1 Describing the topography of the parcels and their
relationship to one another is a challenge to both writer and
reader. To aid the reader we take a cue in only one respect from
written instructions to assemble products. We attach as
appendix A to our opinion a map depicting the parcels and the
respective roads on those parcels. Luckily the reader only has to
comprehend, not assemble anything.



                                2
             A parcel owned by George and Margaret Melton lies
to the north and east of the northeast corner of the Hinrichs
parcel.
             Eugenijus Valiulis is a trustee of a living trust that
owns a parcel to the east of the other three parcels. The Valiulis
parcel is contiguous with the eastern boundaries of the Asquith
and Melton parcels, but is separated from the Hinrichs parcel by
the eastern portion of the Melton parcel.
             All of the parcels are approximately 20 to 30 acres
and are in a rural setting. No parcel has direct access to a public
road. The closest public road is Thacher Road, lying to the south
of the parcels and separated from the parcels by private property.
Thacher Road runs east and west.
             The parties gain access to their parcels from Thacher
Road through Ladera Road, a private road running northerly
from Thacher Road. Ladera Road runs northerly into the
Valiulis parcel where it divides. Ladera Ridge Road runs easterly
from Ladera Road through the southern portion of the Asquith
parcel. Hermitage Road runs northerly from Ladera Road
through a portion of the Valiulis parcel, then bends northwesterly
running through the Melton parcel and intercepting the
northeast tip of the Hinrichs parcel.
             Asquith, the Meltons and Valiulis do not contest
Hinrichs’s right to use Ladera and Ladera Ridge Roads. But the
Meltons and Valiulis denied Hinrichs right of access over any
other portion of their parcels.
                              The Trail
             Hinrichs’s complaint sought an easement over what
he characterizes as the “historic trail.” He claims the trail was
documented in a federal survey map as far back as 1868.




                                3
              The trail runs from the eastern edge of Hinrichs’s
parcel through the southwest corner of the Melton parcel, across
the northeast portion of the Asquith parcel and into the eastern
portion of the Valiulis parcel where it connects with Ladera Ridge
Road. Hinrichs reserved an easement over the Asquith parcel in
the 1999 deed. The easement was intended to connect with the
trail as it passed over the Melton and Valiulis parcels, but
Hinrichs had no easement over those parcels.
              The trail is an unpaved path. The last time Hinrichs
drove the trail in a motor vehicle all the way to his property was
in 1994. Prior to that, he drove the trail in 1993. The last time
he attempted to drive the trail in a motor vehicle was in 2002.
He stopped after only 50 feet because the trail was so overgrown
he did not want the vegetation to scratch his car.
              At the time Valiulis purchased his parcel in 2003,
there were boulders blocking the trail as it entered his property
from Ladera Ridge Road. In 2004 or 2005, Valiulis added more
boulders to block the entrance to the trail. He used heavy
equipment to place the boulders and added a barbed wire fence at
the entrance to the trail. Valiulis testified he intended to prevent
everyone from using the trail.
              In 2006, Hinrichs sued Valiulis for access over a
portion of the trail on Valiulis’s parcel. Hinrichs dismissed the
action after the trial court denied his request for a preliminary
injunction.
                            Hermitage Road
              Hinrichs’s original complaint sought an easement
over the trail. During discovery, however, Hinrichs learned that
Hermitage Road intersects with the northeast corner of his
parcel. He amended his complaint to allege Hermitage Road as a




                                 4
possible easement. Hermitage Road is a private improved road
that runs through the Valiulis parcel, then the Melton parcel
north of the trail, before it intersects with the northeast corner of
Hinrichs’s parcel. Hinrichs’s complaint describes the Hermitage
Road as the “best access route.”
                        Statement of Decision
             The trial court rejected Hinrichs’s claim of an
easement by prescription or as appurtenant to a federal patent
over the historic trail. The court found that if Hinrichs ever had
an easement over the trail as it crosses the Valiulis parcel, it has
been extinguished by adverse possession.
             The trial court granted Hinrichs an easement by
necessity over the Asquith parcel. Most of the easement is over
an existing driveway that runs northerly from Ladera Ridge
Road. A roadway over a relatively short area north of a parking
lot on the Asquith parcel has to be constructed. The easement
over the Asquith parcel would end at the Melton parcel.
             The trial court also granted an equitable easement
over a small portion of the Melton parcel under the doctrine of
balancing of the hardships. The trial court found:
             “[T]he MELTON’S would suffer little to no harm from
the use of the section of their property at issue in this case. The
evidence established that it is at the very back of their property
and separated from the rest of their property by a creek bed. It
established that they did not use the property for any purpose
and had visited it rarely if at all. There did not appear to be even
a potential use to them for the piece of property.
             “On the other hand, that section of the MELTON
property would allow the owners of the HINRICHS parcel to
access the ASQUITH property previously owned by them over




                                 5
which the Court has determined HINRICHS would have an
easement by necessity. As the HINRICHS property would
otherwise be landlocked and therefore virtually useless, the
‘relative hardship’ test clearly favors the Plaintiff HINRICHS.”
                            DISCUSSION
                                   I
                         The Meltons’ Appeal
             The Meltons contend the trial court abused its
discretion by even considering the granting of an equitable
easement over their parcel.
             The trial court may grant an equitable easement
where the hardship to the party seeking the easement is greatly
disproportionate to the hardship caused to the servient owner
over whose property the easement is granted. (Linthicum, supra,
175 Cal.App.4th at p. 265.) The court should consider whether
the need for the easement is the result of the willful act of the
party seeking the easement. (Ibid.) The court should also
consider whether the servient property owner will suffer
irreparable injury by the easement. (Ibid.)
             The Meltons argue there is no evidence of a current
use of the Meltons’ property by Hinrichs or anyone else. It may
be true that an equitable easement often involves a preexisting
use of the servient owner’s property. But a preexisting use is not
an element of an equitable easement. (See Linthicum, supra, 175
Cal.App.4th at p. 265.) The argument that only a long-standing
encroachment would justify the creation of an equitable easement
has been rejected. (Tashakori v. Lakis (2011) 196 Cal.App.4th
1003, 1013.) The Meltons cite no authority that requires a prior
use as an element of an equitable easement.




                                6
             The Meltons argue Hinrichs was not innocent or non-
negligent. In Linthicum, we stated: “The question whether the
defendant’s conduct is so egregious as to be willful or whether the
quantum of the defendant’s negligence is so great as to justify an
injunction is a matter best left to the sound discretion of the trial
court.” (Linthicum, supra, 175 Cal.App.4th at p. 267.)
             Here the trial court found that Hinrichs is innocent
because he believed long after the Asquith parcel was sold that
he had a right of way over the trail. The court did not abuse its
discretion in determining Hinrichs’s actions do not bar equitable
relief.
             The Meltons argue Hinrichs failed to show he would
suffer irreparable harm or that the harm would be greatly
disproportionate.
             The Meltons claim the trial court did not properly
factor Hinrichs’s failure to explore other options for access. The
Meltons argue that Hinrichs had the option of buying an
easement from the owners of the properties over which
Hermitage Road runs. What the Meltons fail to mention is that
those property owners include Valiulis and themselves, the very
defendants in this case who have vigorously opposed any
easement across their lands. In addition, Valiulis testified that
Hinrichs’s daughter asked him to give her father an easement.
Valiulis did not respond that he might be willing to sell an
easement; he did not respond at all. George Melton testified that
prior to the filing of this action, Hinrichs offered him $10,000 for
an easement. Melton refused the offer and made no counter-
offer. The court could conclude there was no reasonable
probability Hinrichs could purchase an easement over Hermitage
Road.




                                  7
             The Meltons suggest the trial court could have
created an easement through the Asquith parcel directly to
Hinrichs’s parcel. But the Asquith parcel is developed with an
olive orchard. The court chose a route for an easement by
necessity through the Asquith parcel that runs for most of its
length along an existing driveway. The existing driveway is the
most reasonable route through the Asquith parcel.
             The trial court found that Hinrichs would suffer
irreparable harm if some easement or easements are not
imposed. The court found that without such an easement or
easements Hinrichs’s parcel would be landlocked. The court
chose a route that was the least disruptive for all the servient
parcel owners involved. It used an existing driveway over the
Asquith parcel and a small portion of the Melton parcel that was
separated from the bulk of the parcel by a creek. The Meltons
seldom visited that portion of their parcel and it had little or no
development potential. The court properly balanced the
hardships.
             The Meltons’ reliance on Shoen v. Zacarias (2015)
237 Cal.App.4th 16 (Shoen) is misplaced. There the court held
that the hardship plaintiff would suffer by having to move her
portable patio furniture is not greatly disproportionate to the
harm suffered by defendant in losing the use of a portion of her
land for an easement. (Id. at p. 21.) Here the harm suffered by
Hinrichs would be leaving his property landlocked, not having to
move portable patio furniture.
             Nor does Shoen require the application of the Fifth
Amendment takings clause to an equitable easement. Shoen
cites the Fifth Amendment only as a reason why courts approach
the imposition of an equitable easement with an abundance of




                                 8
caution. (Shoen, supra, 237 Cal.App.4th at p. 21.) But neither
Schoen nor any other case requires a Fifth Amendment takings
analysis in determining whether to impose an equitable
easement. Fifth Amendment analysis applies to legislative or
quasi-legislative acts. (See, e.g., Loretto v. Teleprompter
Manhattan Catv Corp. (1982) 458 U.S. 419 [statute requiring
apartment building owners to allow installation of cable
television box].) The Meltons cite no case applying takings
analysis to judicial decisions.
              In any event, the Fifth Amendment does not prohibit
a taking, it only requires the payment of just compensation. The
doctrine of equitable easements allows compensation to the
servient property owner. (Linthicum, supra, 175 Cal.App.4th at
p. 268.) The Meltons do not contend the trial court prevented
them from seeking compensation from Hinrichs in this case.
                                   II
                           Hinrichs’s Appeal
              Much of Hinrichs’s appeal is based on a view of the
evidence in a light most favorable to himself. But that is not how
we view the evidence.
              In viewing the evidence, we look only to the evidence
supporting the prevailing party. (GHK Associates v. Mayer
Group, Inc. (1990) 224 Cal.App.3d 856, 872.) We discard
evidence unfavorable to the prevailing party as not having
sufficient verity to be accepted by the trier of fact. (Ibid.) Where
the trial court or jury has drawn reasonable inferences from the
evidence, we have no power to draw different inferences, even
though different inferences may also be reasonable. (9 Witkin,
Cal. Procedure (5th ed. 2008) Appeal, § 376, pp. 434-435.) The
trier of fact is not required to believe even uncontradicted




                                 9
testimony. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012,
1028.)
                                  (a)
             Hinrichs challenges the trial court’s finding that he
did not have a prescriptive easement over the trail as it passes
through the Melton and Valiulis parcels.
             The elements of an easement by prescription are
open and notorious adverse use of the land of another that is
continuous and uninterrupted for the five-year statutory period.
(Connolly v. McDermott (1984) 162 Cal.App.3d 973, 976.) The
burden of proof is on the party asserting the prescriptive
easement. (Ibid.) It is for the trier of fact to determine whether
the elements of a prescriptive easement have been established.
(Ibid.)
             Hinrichs claims the evidence establishes his
prescriptive easement was acquired no later than the early
1900’s. He points to numerous exhibits containing maps, deeds,
easement grants and aerial photographs. But he fails to explain
what it is about the exhibits that presents incontrovertible
evidence of a prescriptive easement in his favor.
             Hinrichs points to his own testimony that by 1960 his
family had used the trail for ingress and egress to and from his
property for six years. He claims the evidence is uncontroverted.
But he confuses uncontroverted evidence with credible evidence.
The trier of fact is not required to believe uncontradicted
testimony. (Sprague v. Equifax, supra, 166 Cal.App.3d at
p. 1028.) Hinrichs points to nothing in the record that would
compel a trier of fact to find he carried his burden of proving a
prescriptive easement.




                               10
                                  (b)
             Hinrichs claims the trial court erred in finding he did
not have an easement appurtenant to the patent.
             The United States conveyed Hinrichs’s parcel to his
predecessor in 1898. The patent conveyed the land “with the
appurtenances thereof . . . .” Hinrichs claims that the trail
easement was an appurtenance to the land.
             But the trial court concluded that Hinrichs failed to
prove the trail was an easement appurtenant to the parcel at the
time of the conveyance by patent. The court relied on McFarland
v. Kempthorne (9th Cir. 2008) 545 F.3d 1106, 1111 (McFarland),
for the proposition that “‘[w]hile the word “appurtenance” will
carry with it an existing easement, it will not create the
easement.’”
             Hinrichs argues McFarland is short on analysis and
historical perspective. Instead, Hinrichs relies on California
cases. His reliance is misplaced.
             Guerra v. Packard (1965) 236 Cal.App.2d 272,
concerns an easement by prescription. It does not even remotely
concern the claim of an easement acquired as an appurtenance to
a patent. Nor does it in any way contradict McFarland.
             Corea v. Higuera (1908) 153 Cal.451, 454, states
nothing more than that an easement appurtenant runs with the
land. It does not hold, or even discuss the proposition, that the
use of the word “appurtenance” in a federal land patent can
create an easement.
             Finally Kellogg v. Garcia (2002) 102 Cal.App.4th 796,
807, states nothing more than that an easement by necessity can
be created over federal lands. It does not remotely support




                                11
Hinrichs’s claim of an easement created by use of the word
“appurtenances” in a federal land patent.
                                    (c)
             Hinrichs challenges the trial court’s finding that if he
ever had an easement over the Valiulis parcel, it was
extinguished by adverse possession.
             The elements of adverse possession are: actual
possession under circumstances as to constitute reasonable notice
to the owner; possession that is hostile to the owner’s title under
claim of right or color of title; continuous and uninterrupted
possession for five years; and the payment of all taxes assessed
on the property. (Nielsen v. Gibson (2009) 178 Cal.App.4th 318,
325.) The circumstances that constitute reasonable notice to the
owner are sometimes described as possession that is open,
notorious and visible. (Id. at p. 326.)
             An easement may be extinguished by adverse
possession by the owner of the servient estate. (Glatts v. Henson
(1948) 31 Cal.2d 368, 370-371.) The owner of the servient estate
must use his land in a manner that is adverse to the exercise of
the easement. (Id. at p. 371.)
             Hinrichs argues that the undisputed facts show he
last moved the rocks that block the entrance to the trail in
October 2006. The instant lawsuit was filed in April 2011, less
than five years after Henrichs claimed he moved the rocks. But
Hinrichs again confuses undisputed facts with credible evidence.
The trial court may reject undisputed facts as not having
sufficient verity. (Sprague v. Equifax, Inc., supra, 166
Cal.App.3d at p. 1028.)
             Hinrichs argues Valiulis’s possession was not open
and notorious. But Valiulis placed large boulders and a barbed




                                 12
wire fence that blocked the entrance to the trail. That is more
than adequate to give notice to Hinrichs and everyone else that
Valiulis is adversely possessing whatever easement might exist
over the trail.
             Hinrichs argues that Valiulis’s actions were not
hostile to him. Hostility does not require a dispute. (Sorensen v.
Costa (1948) 32 Cal.2d 453, 459.) It only requires that claimant’s
possession be adverse to the easement holder, unaccompanied by
any recognition of the easement holder’s rights, express or
inferable from the circumstances. (Ibid.)
             Here Valiulis blocked the entrance to the trail with
large boulders. He testified he intended to prevent everyone from
using the trail. That would include Hinrichs. Hinrichs
complains that Valiulis remained silent concerning his use. But
the boulders spoke louder than words. The trial court could
reasonably conclude Valiulis’s use of his property was hostile and
adverse to Hinrichs’s use of the trail.
             Substantial evidence supports the trial court’s
finding of adverse possession.
                                  (d)
             Hinrichs contends the trial court erred by failing to
impose an equitable easement over the Valiulis parcel.
             But the trial court found that the hardship to
Hinrichs is that his parcel is landlocked. The imposition of
easements over the Melton and Asquith parcels alleviated that
hardship. The court could reasonably conclude the balance of the
hardships did not justify imposition of an easement over the
Valiulis parcel.




                               13
                                   (e)
               Hinrichs contends the trial court erred in not
choosing the historical trail as the route for the easement.
               Hinrichs states the historical trail is in virtually a
straight line with a minimal grade. He claims the Asquith route
is “highly problematic.” He states it will require the removal of
dozens of olive trees; removal of a significant amount of dirt and
fill; vertical retaining walls; cause problems with a well; and,
worst of all, it goes through the Asquith’s parking lot where they
give tours on Tuesdays and Saturdays for 200 people or more.
               But Hinrichs cites no authority that he is entitled to
the most direct route, or the most convenient route, or the route
that is the least expensive to construct. The trial court
personally viewed the properties. Nothing in the record shows
the trial court abused its discretion in choosing the route.
                                   (f)
               Hinrichs contends the trial court erred in not
awarding him costs against the Meltons and Asquith. The court
found there was no prevailing party and ordered each party to
bear its own costs.
               Hinrichs argues he is the prevailing party because he
obtained his litigation objective: access easements. (Citing
Wakefield v. Bohlin (2006) 145 Cal.App.4th 963, 988-989,
disapproved on other grounds in Goodman v. Lozano (2010)
47 Cal.4th 1327, 1330.) Hinrichs relies on Code of Civil
Procedure section 1032, subdivision (b)2: “Except as otherwise
expressly provided by statute, a prevailing party is entitled as a
matter of right to recover costs in any action or proceeding.”

      2As used in this section of the opinion, all statutory
references are to the Code of Civil Procedure.



                                 14
               But section 1032, subdivision (a)(4) provides in part:
“When any party recovers other than monetary relief . . . the
‘prevailing party’ shall be as determined by the court, and under
those circumstances, the court, in its discretion, may allow costs
or not . . . .”
               The mandate of cost recovery in section 1032,
subdivision (b) is limited by the phrase “[e]xcept as otherwise
expressly provided by statute.” Subdivision (a)(4) contains such
an express statutory exception when the trial court awards
nonmonetary relief. When the court awards nonmonetary relief,
subdivision (a)(4) gives the court discretion to “allow costs or not.”
to the prevailing party (italics added; see Lincoln v. Schurgin
(1995) 39 Cal.App.4th 100, 104-105 [section 1032, subdivision
(a)(4) gives the trial court discretion not to allow costs to
prevailing party].)
               Hinrichs received nonmonetary relief. Thus, even if
he is the prevailing party, the trial court had the discretion not to
allow him costs. The court did not abuse its discretion. The court
could reasonably conclude that imposing easements is costly
enough for the defendants without the addition of court costs.
               Hinrichs complains that the trial court ignored its
section 998 offers. Subdivision (a) of section 998 provides, “The
costs allowed under sections 1031 and 1032 shall be withheld or
augmented as provided in this section.” Hinrichs provides no
authority that the provisions of section 998 apply when, as here,
no such costs are allowed.
               Moreover, even if section 998 does apply, the only
sanction where the defendant refuses plaintiff’s offer is that the
trial court “in its discretion” may award plaintiff expert witness




                                 15
costs. (§ 998, subd. (d).) Here the court exercised its discretion
not to award Hinrichs’s costs.
                                  III
                           Asquith’s Appeal
             Asquith contends there is no need for an easement by
necessity over its parcel.
             An easement by necessity requires a unity of
ownership of the dominant and servient parcels at the time of a
conveyance and strict necessity for a right of way because the
conveyance left the dominant parcel landlocked. (Pipkin v. Der
Torosian (1973) 35 Cal.App.3d 722, 729-730.)
             Asquith argues there is no necessity because the 1999
deed from Hinrichs to Asquith reserved an easement. But the
easement reserved in the 1999 deed connected to the historic
trail. The trial court found Hinrichs reserved the easement
under the mistaken belief that he had a right of access over the
historic trail. In fact, he had no such right. Hinrichs’s parcel was
landlocked in spite of the reserved easement.
             Asquith argues Hinrichs’s parcel only became
landlocked when the Meltons adversely possessed the easement
over the historic trail. That ignores the trial court’s finding that
Hinrichs never had an easement over the trail.
             Asquith argues that access by Hermitage Road
presents another option. But Hinrichs has no right of access over
Hermitage Road.
             Asquith argues that if Hinrichs ever had a claim of
an easement by necessity, the claim is barred by the statute of
limitations. Asquith points out that the trail has been completely
blocked for more than five years. Asquith concludes that the five-
year statute of limitations on quiet title actions found in Code of




                                16
Civil Procedure section 318 extinguished any easement. There is
no doubt that the Meltons extinguished any easement over the
trail by adverse possession. But that does not mean an easement
by necessity over the Asquith parcel has been extinguished by
adverse possession.
             An easement by necessity cannot be extinguished as
long as the necessity exists. (Kellogg v. Garcia, supra, 102
Cal.App.4th at p. 804.) The five-year statute of limitations on
quiet title actions found in Code of Civil Procedure section 318
does not apply to an easement by necessity. (Ibid; 12 Witkin,
Summary of Cal. Law (10th ed. 2005) Real Property, § 398,
p. 466.)
                           DISPOSITION
             The judgment is affirmed. Each party is to bear its
own costs.
             CERTIFIED FOR PUBLICATION.




                                    GILBERT, P. J.


We concur:



             YEGAN, J.



             TANGEMAN, J.




                               17
                    Rebecca S. Riley, Judge

               Superior Court County of Ventura

                ______________________________

             Osborne Law Firm and Brian A. Osborne for
Plaintiff, Cross-defendant and Appellant Leslie Witherspoon
Hinrichs.
             Jones & Lester and Paul R. Huff; Fell, Marking,
Abkin, Montgomery, Granet & Raney and Craig S. Granet for
Defendants, Cross-complainants and Appellants George R.
Melton and Margaret Ann Melton, Trustees of the Melton
California Trust dated July 1, 2003.
             Jones & Lester and Paul R. Huff for Defendant,
Cross-complainant and Appellant the Eugenijus Valiulis
Revocable Living Trust dated October 2, 2012.
             Fidelity National Law Group and Raymond Perez, Jr.
for Defendant, Cross-complainant and Appellant Asquith Family
Limited Partnership.




                              18
appendix A
