Filed 2/6/14 Keller v. Donegan CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                       (Nevada)
                                                            ----




GABRIEL KELLER,                                                                              C068967

                   Plaintiff, Cross-defendant and                                   (Super. Ct. No. 74867)
Appellant,

         v.

CHRIS DONEGAN,

                   Defendant, Cross-complainant and
Respondent.




         This appeal arises out of a dispute between two former friends over the existence
and scope of an easement across one man’s property allowing access to the otherwise
landlocked property of the other.
         Defendant Chris Donegan owned a 40-acre parcel of real property in Nevada
County. He purchased a 38-acre parcel directly north of his land for the purpose of



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conveying it immediately to plaintiff Gabriel Keller, who moved onto the property and
made payments directly to the seller. Over time, Keller began to restrict and eventually
prohibit altogether Donegan’s previously unobstructed use of the easement over Keller’s
property by changing the locks on the gates and placing obstacles across the easement to
prevent passage. After the dispute culminated in several confrontations at the gate,
Donegan and Keller became embroiled in litigation. Following a bench trial and a
hearing on Keller’s objections to the initial statement of decision, the trial court entered
judgment finding an easement in favor of Donegan, the scope of which was as described
in deeds recorded in 1969 and 1970.
       On appeal, Keller contends the trial court erred by relying on the 1969 and 1970
deeds to define the scope of the easement, as any easement described in those deeds was
extinguished by merger when Donegan’s property and Keller’s property came under
common ownership. He argues that, even assuming an easement was created by
implication when Donegan conveyed the property to Keller, the scope of that implied
easement was limited to the extent of use at the time of transfer. Keller further contends
there is no substantial evidence to support the court’s finding regarding the scope of the
easement, and that the court’s statement of decision fails to explain the factual and legal
basis for such finding.
       As we will explain, the record makes plain that there was no merger of the Keller
and Donegan properties, and thus no extinguishment of the existing easement. Keller’s
claims regarding whether substantial evidence supports the court’s finding as to the scope
of the easement is forfeited for failure to provide an adequate record on appeal. Finally,
we conclude the court’s statement of decision is adequate. We therefore affirm the
judgment.




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                              FACTS AND PROCEEDINGS

       In December 1969, members of the Coughlin family conveyed to John and Pamela
Vantress, by grant deed, eight parcels of real property in the County of Nevada (hereafter,
the 1969 Deed). The 1969 Deed reserved to the Coughlins “a non-exclusive right of way
and easement 60-feet in width for road and utility purposes over and across all of the
[eight parcels] for the benefit of and appurtenant to the [eight parcels] or any portion
thereof” (hereafter, the easement or the easement roads).
       On October 1, 1970, the Coughlins quitclaimed “[a]ll their right, title and interest
in those certain 60 foot rights of way and easements 60 feet in width for road and utility
purposes as reserved in the [1969 Deed]” to the Lone Star Lands Corporation (hereafter,
the 1970 Deed). The 1970 Deed reserved to the Coughlins “a non-exclusive right of way
60 feet in width for road and utility purposes over the existing roads traversing the
property described in [the 1969 Deed],” and stated, “The intent of this instrument is to
establish the location of said 60 foot right of way as being over the existing roads only.”
       Donegan and Keller met in Montana sometime between 1999 and 2001. In late
2001, Donegan purchased a portion of Parcel No. 6 as described in the 1969 Deed,
namely Lots 5 and 6 and the McCarthy Mine (collectively, the Donegan property), from
then owners, Robert and Nanette Streiff, for $100,000. The northern half of the Donegan
property was only accessible by vehicle via either of two easement roads--the upper road
and the lower road--across the adjacent property directly to the north.
       Donegan moved onto the Donegan property immediately. He lived on the
Donegan property for the first few years, and spent a good deal of time constructing a
foundation and a geodesic dome. During one summer, he stayed on the property in a
camper bus with his daughter.
       In 2001, Donegan used the easement roads to access the northern part of his
property “more than once a day.” In early 2002, he continued to use the easement roads



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“on a daily basis sometimes two and three times a day back and forth to the hardware
store into town to get materials.” Donegan visited the property daily for months at a
time, and took family and friends to visit the property, always using the easement roads
to access his land.
        In the latter half of 2002, Keller and Donegan verbally agreed to a joint venture--a
gardening business--in which Keller invested approximately $50,000. For reasons not
relevant to this dispute, the joint venture business never came to fruition. By the end of
2005, Donegan reimbursed Keller for all but $8,500 of the $50,000.
        At some point in 2002 or 2003, the Streiffs offered to sell Donegan approximately
38 acres of property to the north of the Donegan property, in particular, a portion of
Parcel No. 6 as described in the 1969 Deed, namely Lots 2, 3, and 47-B (collectively, the
Keller property), for $82,500. Donegan contacted Keller to let him know the Keller
property was for sale. Keller expressed an interest in purchasing the property and, in
Summer or Fall 2003, Donegan drove Keller and his girlfriend, Jessica Knutson, to see
the Keller property. They drove down to the creek and back up again using the upper
easement road. They also travelled on the lower easement road, which at the time had no
gate.
        Donegan and Keller agreed that Donegan would purchase the Keller property from
the Streiffs and hold the deed, while Keller would make all payments directly to the
Streiffs. When payment was complete, Donegan would quitclaim the property to Keller.
        Donegan testified that when he and Keller discussed the possible purchase of the
Keller property, Donegan stated his intention “to continue using the [easement] roads
permanently” and requested that he be given a right of first refusal should Keller ever sell
the property. According to Donegan, Keller agreed to Donegan’s continued use of the
easement, and to give him the right of first refusal. At trial, Keller denied ever having
those discussions. Keller testified he intended to maintain exclusive control over the
easement roads irrespective of anything Donegan may have said about wanting to use

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them. Keller further testified he “didn’t know there was an easement” on his property,
but he did know there were roads on the property when he and Donegan toured it prior to
purchase.
       In 2004, Donegan purchased the Keller property from the Streiffs as planned. The
grant deed was silent as to the easement. Keller moved onto the property in May and
built a small cabin and outhouse that summer. Donegan quitclaimed the Keller property
to Keller on June 3, 2004, and filed a “correctory deed” on June 28, 2004. Both deeds
were silent as to the easement.
       The parties’ accounts of what transpired from this point forward differ
significantly. Donegan testified that, for a while after Keller moved onto the Keller
property, he and Keller continued to socialize as friends. During that initial period,
Donegan used the easement roads “many times” with his daughter. Between May 2004
and May 2006, he enjoyed unobstructed access to the northern portion of his property via
the easement roads for “extensive” recreational use.
       According to Donegan, in approximately May 2005, he and Keller agreed to have
a gate installed on the lower easement road to protect both the Keller property and the
Donegan property from unwanted intruders. Donegan enlisted the help of Nate Robinson
to install the gate, for which Keller and Donegan each had a key. While Robinson was
there, Donegan also had him regrade the easement roads.
       Donegan testified that, on one occasion in 2005, he and a friend visiting from out
of state used Donegan’s key to unlock the gate across the upper easement road, then
stopped and visited with Keller and Knutson before continuing down to Donegan’s
property, unobstructed by Keller. Donegan used both the upper and the lower easement
roads on several occasions during the 2005-2006 timeframe, unobstructed by Keller.
       According to Donegan, Keller changed the locks on the gates to the upper and
lower easement roads in Spring 2008 and told Donegan, “I don’t want you coming
through here anymore.” In May 2009, a confrontation occurred at the gate to the lower

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easement road when Keller prevented Donegan from using the easement road to access a
portion of the Donegan property in order to mill a downed tree and remove the lumber.
       Keller testified he first began to inhibit Donegan’s use of the easement roads in
Fall 2005, when he “locked the lower gate and changed the locks.” In 2005 or 2006,
Donegan asked him several times for permission to use the easement roads to reclaim
pipe on the Donegan property. Keller granted him permission. In 2007, when Donegan
asked for the key to the gate so he could go down to the creek, Keller refused. In early-
2009, Keller gave Donegan a $5,000 down payment to buy Donegan’s property.
According to Keller, when issues arose with the deal, Donegan threatened to sue him “for
not allowing an easement through my [Keller’s] land” so Donegan could sell the property
to another potential buyer. Keller confirmed he cut off Donegan’s use of the easement
roads in part because he was angry and felt he had been “ripped off” and lied to by
Donegan. He acknowledged that he did not like Donegan and did not care that Donegan
had used the easement roads in the past. He also acknowledged he knew that by denying
Donegan access to the easement roads, he was effectively cutting off all vehicular access
to the northern portion of Donegan’s property.
       Keller filed a complaint for trespass and injunctive relief. Donegan cross-
complained to quiet title and for other causes of action.
       Following a bench trial, the court issued its statement of decision finding an
easement in favor of Donegan, but expressly declining to define the scope of the
easement. In the meantime, Keller filed written objections to the proposed statement of
decision and proposed judgment prepared by Donegan (neither of which were made a
part of the appellate record), and suggested that a hearing be held “to determine the
historical use by [Donegan] of the easements he has been awarded.”
       The trial court issued an order setting aside its statement of decision and setting a
hearing on Keller’s objections. The hearing was not recorded. The court’s minutes
reflect that the matter was submitted following arguments by the parties. Thereafter, the

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court issued its final statement of decision and again entered judgment in favor of
Donegan, this time defining the scope of the easement as follows: “It is hereby ordered
that an easement exists in favor of Defendant Chris Donegan on the property owned
and/or possessed by Plaintiff Gabriel Keller. That easement is that described in the deed
dated November 12, 1969, recorded December 5, 1969 in Book 496, Page 409, Official
Records and as clarified in the deed dated September 29, 1970, in Book 529, Page 356,
Official Records.” The judgment also awarded Donegan damages in the amount of
$5,000, plus costs of suit.
       Keller filed a timely notice of appeal.

                                      DISCUSSION

                                                 I

                                    Standard of Review

       In California, “[a] judgment or order of a lower court is presumed to be correct on
appeal, and all intendments and presumptions are indulged in favor of its correctness.
[Citations.]” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)
       Generally, appellate courts independently review questions of law and apply the
substantial evidence standard to a superior court’s findings on questions of fact. (See
People v. Cromer (2001) 24 Cal.4th 889, 893-894 [questions of law are subject to de
novo review and questions of fact are reviewed under deferential substantial evidence
standard].)

                                             II

                              No Extinguishment by Merger

       Keller contends the trial court erred by referring to the 1969 and 1970 Deeds to
define the scope of the easement over Keller’s property because any easement described
in those historical deeds was extinguished when the two parcels came under common


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ownership, that is, when title to the two parcels merged in the same person (Donegan).
Keller contends the trial court found an easement was created by implication when the
two parcels once again became separate and, as such, the scope of the implied easement
should have been limited to the extent of use at the time of conveyance.
       Donegan argues Keller’s claim of extinguishment by merger fails because
Donegan, merely a “strawman” through whom Keller acquired the property, never
became the true owner of the Keller property. Hence, the scope of the easement is as
expressly stated in the historical deeds.
       As we will explain, the easement that existed prior to Donegan’s purchase of the
Keller property was not extinguished by merger.
       We begin by defining the relevant terms. “[A]n easement is a nonpossessory
‘ “interest in the land of another that gives its owner the right to use the land of another or
to prevent the property owner from using his land.” ’ [Citations.]” (Kazi v. State Farm
Fire & Casualty Co. (2001) 24 Cal.4th 871, 880.) In contrast to fee simple property
ownership, which provides the owner the right to the surface and to everything
permanently situated beneath or above it, “an appurtenant easement is a burden on land
that creates a right-of-way or the right to use the land only. (Civ. Code, § 801.) It
represents a limited privilege to use the land of another for the benefit of the easement
holder’s land, but does not create an interest in the land itself. [Citations.]” (Kazi, supra,
24 Cal.4th at pp. 880-881.)
       “The land to which an easement is attached is called the dominant tenement; the
land upon which a burden or servitude is laid is called the servient tenement.” (Civ. Code
§ 803.) “A servitude can be created only by one who has a vested estate in the servient
tenement.” (Civ. Code, § 804.) “A servitude thereon cannot be held by the owner of the
servient tenement.” (Civ. Code, § 805.)




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       The merger doctrine is codified in Civil Code section 811, which states, “A
servitude is extinguished: [¶] 1. By the vesting of the right to the servitude and the right
to the servient tenement in the same person . . . .”
       “To extinguish an easement as far as all the dominant tenement is concerned, a
complete merger is required . . . .[¶] . . . [¶] ‘[T]he ownership of the dominant and
servient estates must be coextensive and equal in validity, quality, and all other
characteristics.’ ” (Leggio v. Haggerty (1965) 231 Cal.App.2d 873, 881-882 (Leggio).)
“ ‘In order that an easement will be extinguished under the doctrine of merger, there must
be unity of title . . . . [T]he owner should have a permanent and enduring estate, an estate
in fee, in both the dominant and servient estate, not liable to be disjoined again by
operation of law. In any event, mere unity of possession is not enough. Further, the
ownership of the two estates should be coextensive and equal in validity, quality, and all
other circumstances of right.’ ” (Id. at pp. 883-884.)
       “ ‘A merger occurs when a greater and lesser estate are held by the same person.
In order to effect an extinguishment by merger, the title and ownership held in both
tenements must be coextensive and equal in validity, quality, right to possession, and all
other characteristics. [Fn. omitted.] The easement is not extinguished if the person has
unequal title or rights in the servient and dominant tenements. [Fn. omitted.]’ (6 Miller
& Starr, Cal. Real Estate (3d ed.) Easements, § 15:75, pp. 232-233.)” (Beyer v. Tahoe
Sands Resort (2005) 129 Cal.App.4th 1458, 1474.) Extinguishment by merger “does not
occur unless the common owner has present possessory interests in both the dominant
and servient estates.” (Zanelli v. McGrath (2008) 166 Cal.App.4th 615, 629.)
       We conclude there was no merger here. Donegan purchased the Donegan
property in 2001 and lived on and used that property for a number of years. The record is
clear that when the Streiffs offered to sell Donegan the adjacent Keller property, Donegan
contacted Keller to let him know the property was for sale. After Donegan showed
Keller the property, Keller confirmed he was interested in buying, and the two agreed that

                                              9
Donegan would purchase the Keller property from the Streiffs, Keller would make all the
payments, and Donegan would quitclaim the property to Keller when the debt was paid
off.
       In fact, both parties acted in accordance with their agreement. Donegan purchased
the Keller property and, as confirmed by Keller at trial, acted as nothing more than a
“strawman” or a “nominal holder” of the deed. Keller made all payments to the Streiffs.
Donegan quitclaimed the property to Keller despite that Keller had nearly a year left until
the Streiffs would be paid in full. Keller took physical possession of the Keller property
almost immediately, whereas Donegan never took possession at all.
       Donegan never had “the full and unlimited right and power to make any and every
possible use of” the Keller property (Leggio, supra, 231 Cal.App.2d at p. 883) because
the parties never intended that he would. While Donegan did, for awhile, hold a grant
deed to the property, as Keller agrees, he did so only as a nominal owner or a strawman.
As such, Donegan’s title and ownership in the dominant estate (the Donegan property)
and the servient estate (the Keller property) was neither coextensive nor equal in validity,
quality, possession, or any other circumstance of right. Had Donegan attempted to treat
the property as his own, Keller would no doubt have objected to Donegan’s use of the
property. The easement was therefore not extinguished by merger.
       We similarly reject Keller’s challenge to the trial court’s reliance on the 1969 and
1970 Deeds to define the scope of the easement. The trial court admitted into evidence
the 1969 Deed referencing the pre-existing easement, defined as a “non-exclusive right of
way and easement 60-feet in width for road and utility purposes.” It is worth noting that,
in claiming the easement was extinguished by merger, Keller implicitly concedes the
easement existed prior to Donegan’s purchase of the Keller property. In any event,
where, as here, the terms of the conveyance of the Keller property from the Streiffs to
Donegan and then from Donegan to Keller did not expressly provide otherwise, the
easement was incident to the Keller property and passed with it. (Lemos v. Farmin

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(1932) 128 Cal.App. 195, 199.) In that regard, Donegan testified at length regarding his
use of the easement roads in a manner consistent with their historical use, from and after
the date he purchased the Donegan property and continuing after conveyance of the
Keller property to Keller. While Keller disputed that fact, testifying Donegan rarely ever
used the easement roads and even then only with Keller’s permission, the trial court
concluded otherwise, finding that “the prior existing use was ongoing and known to
[Keller] prior to buying [the Keller property].” We conclude the court did not err in
relying on the historical deeds to define the scope of the easement.

                                                III

                                   Substantial Evidence

       Next, Keller contends there is no substantial evidence to support the trial court’s
finding that the scope of the easement was 60 feet wide and for road and utility purposes
over all existing roads on Keller’s property.
       On a claim based on the sufficiency of the evidence, our review is limited to a
determination of whether the record contains evidence of “ponderable legal significance”
which, when coupled with all reasonable inferences therefrom, supports the judgment of
the trial court. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44
Cal.App.4th 1160, 1203.)
       Keller has failed to satisfy his obligation to provide an adequate record on appeal.
The party challenging the judgment or order has the burden of showing error by an
adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Estate of Davis (1990)
219 Cal.App.3d 663, 670 & fn. 13.) An appellant “bears the burden to provide a record
on appeal which affirmatively shows that there was an error below, and any uncertainty
in the record must be resolved against the [appellant].” (People v. Sullivan (2007) 151
Cal.App.4th 524, 549; accord People v. $17,522.08 United States Currency (2006) 142
Cal.App.4th 1076, 1084.) “Without the benefit of the entire record, we cannot say that


                                                11
the evidence is insufficient to support the finding of [the trial court]. Every intendment is
in favor of the findings and judgment of the court below, and in support thereof it will be
presumed that the omitted evidence authorized the same unless there is something in the
record to overcome the presumption.” (In re Silva (1931) 213 Cal. 446, 448.)
       In this case, there is no transcript of the hearing on Keller’s objections to the
court’s initial statement of decision. The court’s minute order, which simply states that
arguments were presented and the matter was submitted, is of little help, as we do not
know what the parties argued or what evidence, if any, they presented in support of, or
opposition to, those arguments. This information is particularly important in light of the
fact that the trial court’s initial statement of decision declined to define the scope of the
easement. In the absence of an adequate appellate record, we must presume the court’s
decision to define the scope of the easement by reference to the 1969 and 1970 Deeds
was supported by the evidence.

                                              IV

                             Adequacy of Statement of Decision

       Lastly, Keller contends the trial court’s statement of decision failed to address his
objections to the scope of the easement. The claim lacks merit.
       In a nonjury trial, the trial court is required to render a statement of decision on the
timely request of a party, explaining the factual and legal basis for its decision as to each
of the principal controverted issues for which the statement was requested. (Code Civ.
Proc., § 632.) On appeal, the statement of decision provides a record of the trial court’s
reasoning on particular disputed issues, which the appellate court may review in
determining whether the court’s decision is supported by the evidence and the law. (In re
Marriage of Ditto (1988) 206 Cal.App.3d 643, 647.)
       Although a party may object to the statement of decision by raising numerous
points of contention, the trial court is not required to respond point by point. “The court’s


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statement of decision is sufficient if it fairly discloses the court’s determination as to the
ultimate facts and material issues in the case. (People v. Casa Blanca Convalescent
Homes, Inc. (1984) 159 Cal.App.3d 509, 525; Republic Indemnity Co. v. Empire Builders
Corp. (1985) 167 Cal.App.3d 1163, 1167.)” (Golden Eagle Ins. Co. v. Foremost Ins. Co.
(1993) 20 Cal.App.4th 1372, 1379-1380.) A statement of decision is “not required to
address how it resolved intermediate evidentiary conflicts, or respond point by point to
the various issues posed in appellant’s request for a statement of decision.” (Muzquiz v.
City of Emeryville (2000) 79 Cal.App.4th 1106, 1125-1126.)
       As identified by the trial court, the ultimate facts and material issues here revolve
around one central question—whether and to what extent Donegan had “the right to use
access roads over [Keller’s] land to access portions of [Donegan’s] land.” The statement
of decision reveals that, with respect to that core issue, the court found: Keller was aware
of the existence of the easement roads and Donegan’s use of those roads prior to his
purchase of the Keller property; Keller was aware that without those easement roads,
Donegan had no access to a portion of Donegan’s property; Keller was aware that
Donegan continued to use the easement roads up until the physical confrontation in 2008;
and, Keller prevented Donegan from using the easement roads because Keller felt
Donegan had “ripped [him] off” in their joint business venture and Keller was angry with
Donegan, in addition to professing to lack of understanding of easements.
       The court concluded the “historical nature of the paths or roads that run across
[Keller’s property]” to the otherwise inaccessible portion of Donegan’s property, as well
as the “circumstances of sale and the reasonable expectation of the[] parties,” all
supported the conclusion that the easements in existence prior to the sale (of which Keller
knew or should have known) continued to exist after Keller’s purchase of the Keller
property, and that the historical definition of the pre-existing easement still applied to the
easement at the time of trial. Hence, the scope of the easement was as described in the
1969 and 1970 Deeds.

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       The statement of decision fairly discloses the trial court’s determination as to the
ultimate facts and material issues in the case.

                                      DISPOSITION

       The judgment is affirmed. Respondent shall receive his costs on appeal. (Cal.
Rules of Court, rule 8.278 (a)(5).)



                                                        HULL                  , J.



We concur:



      NICHOLSON             , Acting P. J.



      ROBIE                 , J.




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