Filed 12/16/13
                              CERTIFIED FOR PUBLICATION




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


BRIAN RYE,                                                                  C067970

                 Plaintiff, Cross-defendant and Respondent,              (Super. Ct. No.
                                                                           SCV22362)
        v.

TAHOE TRUCKEE SIERRA DISPOSAL COMPANY, INC.,

                 Defendant, Cross-complainant and Appellant;

DAWN C. RYE,

                 Cross-defendant and Respondent.


     APPEAL from a judgment of the Superior Court of Placer County, Charles
Wachob, Judge. Affirmed.

       Sinclair Law Office, Sinclair Wilson Baldo & Chamberlain and Robert F. Sinclair
for Defendant, Cross-complainant and Appellant.

      Porter Simon, Professional Corporation and Louis A. Basile for Plaintiff, Cross-
defendants and Respondents.



        This is a tale of intertwined claims of right by the plaintiffs to the use of property
at Kings Beach, Lake Tahoe, for the parking of garbage trucks and the storage of garbage
bins. One claim is predicated on an easement, the other on a lease. The property subject



                                               1
to the easement and lease is referred to as a portion of “Parcel One.” The property,
owned by plaintiffs Brian and Dawn Rye (the Ryes), is the subject of a complaint and
cross-complaint to determine the rights of the parties to its use. The complaint by Brian
Rye, based on the easement, seeks to bar defendant Tahoe Truckee Sierra Disposal
Company, Inc. (Tahoe Truckee) from the use of the area subject to the easement beyond
its historic uses. The cross-complaint by Tahoe Truckee against the Ryes claims the right
to use all of the subject property, as the need arises, either by reliance on the easement or
the lease.1 The lease and the easement oddly concern the use of the same piece of
property for the same purposes. If the lease is valid, there is no need to rely on the
easement since the rights conferred by it are encompassed within the lease.
       Defendant Tahoe Truckee operates a garbage disposal business and has need of
the area of the property subject to the easement or lease for the use of its garbage trucks
and the storage of its garbage bins. The easement derives from a reservation in a 1981
recorded deed transferring the servient tenement to the Ryes‟ predecessors. The
unrecorded lease derives from a purported 1982 agreement between the Shaffers and
Tahoe Truckee. The parties disagree whether Tahoe Truckee may expand its parking and
storage within the area subject to the easement beyond its historic uses. They necessarily
disagree whether the lease was invalid or abandoned.
       The property is described on a survey map as subject to an “easement for parking,
ingress, egress, utilities and storage in favor of” Kings Beach Disposal Company, Inc.
(Kings Beach) doing business as Tahoe Truckee.2 (Appendix A, post, p. 14.) The map
shows a paved area and a dirt area. The reservation in the grant deed describes an



1 The complaint was filed by Brian Rye alone but the cross-complaint named both Brian
and Dawn Rye. For convenience of designation the court will refer to both as plaintiffs.
2 Silvano Achiro answered “correct” to the assertion that Kings Beach “does business as
Tahoe Truckee . . . .” Accordingly, we shall use their names interchangeably.

                                              2
easement over the property for “ingress, egress, parking, storage, [and] utilities . . . .”3 A
shaded area on a drawing attached to the grant deed shows the contested area of Parcel
One. (Appendix B, post, p. 15.)
       A substantially identical area to the drawing of a portion of Parcel One is shown
on an exhibit to an unrecorded, 1982, 99-year lease from the Shaffers to Kings Beach
(Tahoe Truckee) for use “in conjunction with its solid waste disposal business, including
the storage of empty garbage bins.” The terms of the lease (exhibit 57) parallel the area
and purpose of the easement. Neither Tahoe Truckee nor the owners of Parcel One
sought to enforce the lease in the 22 years from its inception until its sale to the Ryes.
The trial court ruled that, assuming the validity of the lease, it had been abandoned
because “Tahoe City Disposal Company [(Tahoe Truckee)] clearly disregarded the lease
as soon as it was signed.” “[A]lthough the lease was valid when formed, the lease was
completely ignored and abandoned.”
       The trial court also ruled that the terms of the written easement were not exclusive.
It limited the defendant to the historic use of the paved area and 10 feet beyond the paved
area. It issued an injunction barring Tahoe Truckee from expanding its use beyond this
area. We agree.
       We shall affirm the judgment limiting the defendant to the historic uses of the
easement.
                                           FACTS
       The case was tried to the court and the facts are taken mainly from the trial court‟s
statement of decision.




3The scope of the easement for ingress and egress from the area subject to the easement
was not litigated.

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                                      A. The Easement
       The defendant, Tahoe Truckee, is the owner of a recorded easement over a portion
of Parcel One at Kings Beach, California for the use by its garbage trucks and the storage
of its garbage bins.
       Originally Kings Beach owned two adjoining parcels, Parcel One and parcel 27.
The Shaffers owned two other lots, including parcel 26, adjacent to Parcel One. In 1980
the Shaffers sold their 50 percent interest in Kings Beach to Tahoe City Disposal
Company, Inc. (Tahoe Truckee). In the same year the Shaffers agreed to a land swap
whereby they transferred parcel 26 to Kings Beach in exchange for the western portion of
Parcel One owned by Kings Beach. In 1981 the Shaffers performed their part of the
agreement but Kings Beach was unable to convey the western portion Parcel One to the
Shaffers. “One result of the transaction was that Kings Beach . . . then owned Parcels 26
and 27, both of which were adjacent to Parcel One. As part of the transaction, Kings
Beach . . . desired to maintain an easement from Parcels 26 and 27 over Parcel One.”
Accordingly, when Kings Beach transferred Parcel One by deed to the Shaffers on June
11, 1981, the deed “RESERV[ED] THEREFROM an easement for ingress, egress,
parking, storage, utilities over a portion of Parcel One . . . , lying Easterly of the
Northerly prolongation of the Westerly line of the land conveyed to Bud L. Shaffer, et
ux., by deed recorded September 28, 1971 in Book 1374 at Page 361.”
       The trial court ruled that “[t]he precise derivation of [the] easement language was
not established at trial. . . . S[i]lvano Achiro [(a principal in Tahoe Truckee)] was the
only trial witness involved . . . in the 1981 transaction that culminated in [the] easement
language.” The trial court “provisionally received, without actually admitting,” Achiro‟s
testimony that he intended that the easement holder “be able to use the entire easement
area . . . for trucks, parking, storage or other disposal business operations.” The
testimony was never admitted. The court said: “Because the language [of the easement]



                                               4
is not reasonably susceptible to another meaning . . . there is no need to resort to extrinsic
evidence to ascertain the intent of the parties.”
       The area of the servient tenement is shown on a plot map prepared by Brian Rye.
(Appendix A, post, p. 14.) The map describes the area as subject to an “easement for
parking, ingress, egress, utilities and storage in favor of Kings Beach Disposal” and
language identical to that is contained in the easement. The map shows a paved area and
an unpaved area.
       At some point Parcel One was purchased from the Shaffers by John Serpa, who in
turn offered to sell it to plaintiff Brian Rye‟s father Gerald Rye and Simon Thomas for
use as a tree maintenance and wood supply service known as Bushwhackers, Inc.
(Bushwhackers). In 1995 Gerald Rye entered into an agreement to purchase Parcel One
from John Serpa. “A condensed version [of the transaction] thereafter includes the
purchaser‟s failure to make required payments to Serpa, and Serpa‟s failure to remove
easements to the property.” In 2004 Gerald Rye‟s son, Brian Rye, became Gerald‟s
assignee under the agreement. There followed numerous letters from Brian Rye‟s
attorneys asking that Serpa comply with the underlying agreement to expunge the
easements on Parcel One. The easement was not expunged and the sale was completed
by separate agreement with the Ryes.
       Accordingly, in 2004 the Ryes, by grant deed from Serpa, “became record title
holders of the servient tenement . . . Parcel One, burdened by an easement in favor of
[Tahoe Truckee].” From 1996 to 2004 the parties coexisted within the easement area
with the defendant using the paved area and a small portion of the unpaved area and
Bushwhackers using the unpaved areas. In 2004 Placer County ordered Bushwhackers to
cease all business operations on the parcel.
       The easement area was paved by Tahoe Truckee so that front loader vehicles
could turn. Silvano Achiro testified that it was his company (Tahoe Truckee) that paved
the area. The dirt area was used almost exclusively by Bushwhackers for the parking of

                                               5
its vehicles, for storage of cut timber, for wood chipping, and for ingress and egress by its
trucks and equipment to store piles of wood on the property. Tahoe Truckee‟s route
supervisor testified that from 1995 through 2004 Tahoe Truckee used the paved area as a
staging area where its trucks came in and out with dumpsters on a near-daily basis. In
2000 large areas of Bushwhackers‟s wood rounds started appearing in the dirt portion of
the easement area, which impeded Tahoe Truckee‟s trucks from using the non-paved
areas to unload its dumpsters.
       The trial court issued a judgment finding that Tahoe Truckee is “entitled to
continued use of the paved area [of the servient tenement] only for storage and parking.
Its continued use for those purposes shall extend ten feet past the edge of the paved area,
consistent with the evidence of its prior use of that portion of the dirt area for storage of
garbage bins or dumpsters.” The trial court issued an injunction barring Tahoe Truckee
from use of the servient tenement beyond these areas.
                                          B. The Lease
       Tahoe Truckee claims that on August 20, 1982, Kings Beach (Tahoe Truckee)
entered into a lease with the Shaffers.
       The record contains two copies of the lease agreement, exhibits 2 and 57. They
are not identical. While the general terms are the same, exhibit 2 contains blanks where
exhibit 57 shows the beginning and end dates of the lease. “. . . Exhibit 57 contains the
initials of the parties at the bottom of the pages, while Exhibit 2 does not; and Exhibit 57
contains an attached exhibit showing the property [(similar to the easement)], while
Exhibit 2 does not.” Exhibit 57 contains an added inscription showing the signature of
Budd J. Shaffer and the date “9-12-09” together with a notarized acknowledgement of
Shaffer‟s signature, dated September 11, 2009. “The Shaffers did not testify at trial, and
there is no indication their depositions were taken, although defendants evidently [knew]
the whereabouts of the Shaffers.”



                                               6
       The trial court stated that the “circumstances concerning [the] lease are murky at
best, and highly suspicious, at worst.” It put aside the “obvious questions concerning the
authenticity of the lease (Exhibit 57)” and “assum[ed] the lease to be valid” for the
purpose of considering whether it had been abandoned. It said: “[E]ven assuming the
purported lease was properly authenticated, the later discovery and reaction to the lease
raise questions about the vitality of the lease.”
       The lease (exhibit 57) states that on August 20, 1982, the Shaffers conveyed to
Tahoe City Disposal Company, Inc. (Tahoe Truckee) a 99-year lease of the same portion
of Parcel One subject to the easement. The terms of the lease permit the lessee to “use
the leased premises in conjunction with its solid waste disposal business, including the
storage of empty garbage bins.” The lease further recites that “the parties . . . have
agreed to enter into this long term lease agreement to provide the lessee with the use and
benefit of the property . . . in full satisfaction of lessor‟s obligation to exchange and
transfer such real property to the lessee.”
       The lease was signed on behalf of Tahoe City Disposal Company, Inc. (Tahoe
Truckee) by Silvano Achiro, a member of the family that owned and still owns the
disposal companies, and by the former owners of Parcel One, the Shaffers. The Shaffers
later sold Parcel One to John Serpa. Serpa negotiated with Brian Rye or his father for the
sale of Parcel One for eight years without either party mentioning the lease. In 2004, just
before completion of the sale to the Ryes, he sent an incomplete copy of the lease (exhibit
2) to Brian Rye. The “original lease [(exhibit 57)] with the original exhibit” was located
in the files of Tahoe Truckee in 2008. Neither Tahoe Truckee or the Ryes (or their
predecessors) invoked the provisions of the lease for the 22 years from its inception in
1982 to the sale to the Ryes in 2004.
       Brian Rye testified that he became aware of the lease on January 6, 2004, when
John Serpa faxed a copy of the incomplete lease (exhibit 2) to Rye‟s attorneys during the
period when Rye was in the process of purchasing Parcel One. Rye had never seen the

                                               7
lease and Tahoe Truckee‟s use of the servient tenement was consistent with its use under
color of an easement. “Rye doubted that the purported lease was effective. He had not
heard of such a lease before, and no such lease [had] been recorded as of that time.” “In
September 2009, well after [the] litigation was underway, counsel for [Tahoe Truckee]
arranged to have the lease (Exhibit 57) executed by Budd Shaffer in the presence of a
notary.”
       The trial court concluded that the parties “acted in a manner consistent with the
lease having no effect, or with there being no lease at all.” Tahoe Truckee never took
possession of the leased area other than the part used for the easement and in 2000
asserted by letter to Bushwhackers only an easement interest in the subject area. Two of
Tahoe Truckee‟s employees testified that they were unaware of the lease, but it was
signed by Silvano Achiro in 1982, on behalf of Tahoe Truckee, and the original was
found in Tahoe Truckee‟s files. The trial court concluded that “[f]or all intents and
purposes, [Tahoe Truckee] and its predecessors acted as if there was no lease, as did the
Ryes and their predecessors.”
       The trial court found that, assuming the validity of the lease, Tahoe Truckee
“never intended to perform any lease obligations . . . and that it did not use the claimed
lease area for significant periods of time.” It concluded that the leaseholder had
abandoned the lease and the rights of the parties were governed by the easement and its
historical uses.
                                       DISCUSSION
                                 A. The Scope of Review
       The interpretation of a written instrument is solely a question of law unless the
meaning turns on a question of fact. In that case, a review of the facts is subject to the
substantial evidence rule and if the evidence is in conflict we are directed to decide on the
basis of the inference or inferences that support the trial court. (Parsons v. Bristol
Development Co. (1965) 62 Cal.2d 861.) We proceed on that basis.

                                              8
                                       B. The Easement
        Tahoe Truckee has an express easement created by a reservation in a grant deed.
The reservation provides for “an easement for ingress, egress, parking, storage, utilities
over a portion of Parcel One . . . , lying Easterly of the Northerly prolongation of the
Westerly line of the land conveyed to Bud L. Shaffer, et ux., by deed recorded
September 28, 1971 in Book 1374 at Page 361.”4
        The trial court ruled that the portion referred to is the area shown on a survey map
prepared by plaintiffs (appendix A, post, p. 14) for submission to the Tahoe Area
Regional Planning Agency. The map describes the area as subject to an “easement for
parking, ingress, egress, utilities and storage, in favor of Kings Beach . . . ,” the exact
terms of the easement, and shows both a paved area and an unpaved area. The evidence
shows that historically only the paved area, and a small portion of the unpaved area, was
used for the parking of garbage trucks and the storage of garbage bins. The trial court
concluded that: “The testimony, photographs and documentary evidence adduced at trial
all combine to establish that from 1995 to 2004 [Tahoe Truckee] essentially confined its
use of the easement area to the paved area.”
        The trial court ruled that “ „[w]hen the instrument of conveyance grants an
easement in general terms, without specifying or limiting the extent of its use, the
permissible use is determined in the first instance by the intention of the parties and the
purpose of the grant. Once the easement has been used for a reasonable time, the extent
of its use is established by the past use.‟ (6 Miller [&] Starr, Cal. Real Estate (3d ed.
[2006]) § 15:56, [p. 186, fns. omitted,] emphasis added.) „Once the extent of an
easement‟s use has been established, the easement owner cannot subsequently enlarge its
character so as to materially increase the burden on the servient tenement.‟ ([Id.,] . . .




4   The parties tender no issues concerning ingress, egress, or utilities.

                                                9
§ 15:54[, p. 176, fn. omitted].)” This means that the trial court did not find that the
express terms of the easement determined the extent of the use of the easement.
       “Where the easement is founded upon a grant . . . only those interests expressed in
the grant and those necessarily incident thereto pass from the owner of the fee.”
(Pasadena v. California-Michigan Land & Water Co. (1941) 17 Cal.2d 576, 579
(Pasadena); Civ. Code § 806 [“The extent of a servitude is determined by the terms of
the grant”].) The easement provides in general terms “for ingress, egress, parking,
storage, utilities over a portion of Parcel One . . . .” The defendant argues that,
“[m]easured by its language alone, [Tahoe Truckee] was entitled to park and store
equipment within all areas of the easement, for the simple reason that the instrument
creating the easement expressly and unambiguously said so.” We do not agree.
       While the area subject to the easement is specified, the extent and location of the
parking and storage on the easement is not. The easement in general language provides
only that parking and storage may occur “over,” meaning, as to parking and storage, “in”
the easement area.5 It does not specify that all of the area is subject to the easement. For
that reason the precise area of use must be inferred from the intention of the parties.
(Civ. Code, § 806.) “ „[S]ection 806 of the Civil Code . . . establishe[s] intent as the
criterion for determining the “extent of a servitude,” and this is in accord with the
rationale of the rules governing easements by implication.‟ ” (Camp Meeker Water
System, Inc. v. Public Utilities Com. (1990) 51 Cal.3d 845, 867.) “This rule necessarily
applies to express easements when the extent of the easement is in question.” (Ibid.) In
that case the extent of the servitude includes “such uses as the parties might reasonably
have expected from the future uses of the dominant tenement. What the parties might




5Similarly, the easement speaks of ingress and egress to Parcel One but does not say
where or to what extent.

                                              10
reasonably have expected is to be ascertained from the circumstances existing at the time
of the conveyance.” (Id. at pp. 866-867.)
       If the defendant were correct that it had a right to use all of the area subject to the
easement, it could effectively preclude the plaintiffs from any effective use of the servient
tenement by its choice of location for parking and storage, thereby creating an exclusive
easement. An exclusive easement is the right of the holder of the easement to exclude
everyone, including the servient owner, from use of the land within the easement
boundaries. (Gray v. McCormick (2008) 167 Cal.App.4th 1019, 1024.) But an exclusive
easement cannot be inferred from general language. “No intention to convey such a
complete interest can be imputed to the owner of the servient tenement in the absence of
a clear indication of such an intention.” (Pasadena, supra, 17 Cal.2d at pp. 578-579.)
Pasadena concerned an easement that specified the width and location of a road
easement. But, the court said “a specification of width and location does not always
determine the extent of the burden imposed upon the servient land.” (Id. at p. 581.)
       In this case, there is no clear indication of an intention to extend parking and
storage to all of the area subject to the easement. The only testimony to that effect, by
Silvano Achiro, was not admitted in evidence by the trial court. The only evidence of the
intention of the parties regarding the use of the easement is past usage and that was
confined to the paved area and a portion of the unpaved area of the easement. That usage
was essentially uniform from 1996 to 2004 (and impliedly before), when Bushwhackers
lost its right to do business on the property. The trial court found that “[t]he evidence
establishes that, historically, [Tahoe Truckee] used only the paved area for storage of
dumpsters or bins.”
       This case is analogous to Wilson v. Abrams (1969) 1 Cal.App.3d 1030 (Wilson).
Wilson involved a “non-exclusive easement for the benefit of . . . [a shopping center] for
roadways, walkways, ingress and egress, public utilities, and motor vehicle parking, over
. . . [a] portion of Wilsons Property[,]” language similar to the easement in this case.

                                              11
(Id. at pp. 1033-1034.) The court found that this language alone did not express the
extent of motor vehicle parking on the servient tenement. (Id. at p. 1035.) What did
show the extent was a map, incorporated in the easement document, that showed the
location of “individual parking stalls, light stanchions, and areas of ingress and egress”
on the servient tenement. (Ibid.) On that basis the court construed the easement to
include only the uses diagramed on the map. (Ibid.)
                                        C. The Lease
       The trial court found that Tahoe Truckee “never intended to perform any lease
obligations . . . and that it did not use the claimed lease area for significant periods of
time.” It found that “[t]he conduct of [Tahoe Truckee], both before and after this dispute
began, consistently demonstrated its intent to ignore and abandon whatever lease rights it
claims exist under the lease entered decades before by its predecessors, and which lease
was never performed by [Tahoe Truckee] or its predecessors.” “Under all [the]
circumstances, the court finds it reasonable that Rye did not undertake efforts to inquire
further as to the existence or effect of the lease which defendants now claim to be valid.”
       Tahoe Truckee advances two arguments in response. First, it claims the lease area
had been partially occupied since its creation and that an intent to abandon cannot be
drawn from such an occupation. Second, it claims that the lease was simply not used for
22 years and that an intent to abandon cannot be drawn from mere disuse. We disagree.
       “ „Although it has been said that the lessee of a term may abandon the lease by
words or equivalent acts, a surrender cannot be implied by operation of law when the
tenant retains possession, as tenant, of the leased premises, or any material portion of
them.‟ ” (Pickens v. Johnson (1951) 107 Cal.App.2d 778, 788, italics added.) In this
case the leased area was never used by Tahoe Truckee, under a claim of right as a tenant
under color of the lease, for the entire period from its inception until 2004 when the
servient tenement was purchased by the Ryes. The fact that a portion of the property was



                                              12
used under color of the easement is not evidence that the property was used under color
of the lease.
       As to disuse, although the evidence shows that some employees of Tahoe Truckee
were unaware of the lease, the lease was signed in 1982 by Silvano Achiro, on behalf of
Kings Beach (Tahoe Truckee), and the original of the lease (exhibit 57) was found in the
files of Tahoe Truckee in 2008. As the trial court found, for twenty two years, until the
purchase by the Ryes, Tahoe Truckee paid no taxes on the property, as required by the
terms of the lease, and was “ „entirely indifferent as to what may become of it or as to
who may thereafter possess it.‟ ” (Martin v. Cassidy (1957) 149 Cal.App.2d 106, 110.)
The trial court found that this showed a manifest indifference to the existence of the lease
and permitted the inference that the lease was abandoned and not merely disused.
                                      DISPOSITION
       The judgment limiting the plaintiffs to the historic uses of the easement is
affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule
8.278(a)(5).)

                                             BLEASE                    , J.


We concur:


          RAYE                     , P. J.


          NICHOLSON                , J.




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Appendix A




    14
Appendix B




   15
