Filed 4/25/13 MacKenzie v. Madden CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX


R. BRUCE MacKENZIE et al.,                                                    2d Civil No. B234252
                                                                            (Super. Ct. No. 1338982)
     Plaintiffs, Cross-defendants, and                                       (Santa Barbara County)
     Respondents,

v.

JOSEPH E. MADDEN et al.,

     Defendants, Cross-complainants, and
     Appellants.




                   Respondents R. Bruce and Louise MacKenzie and their neighbors,
including appellants Joseph E. and Christy Madden, all have a private road easement
incident to the ownership of their respective parcels. To protect against flooding from an
adjacent creek and provide privacy to their road, respondents and a group of their
neighbors placed a berm, rocks and hedges along the outer edge of the parcel of property
owned by appellants, who live on the other side of the creek and reach their residence
from a different road. Appellants did not approve of the changes and litigation ensued.
Following a three-day bench trial that included a visit to the site, the trial court found the
improvements were a proper exercise of respondents' rights and duties under a right-of-
way easement and accordingly entered judgment in their favor. Appellants contend the
court's ruling is legally and factually erroneous. We affirm.
                        FACTS AND PROCEDURAL HISTORY
              La Vuelta Road (La Vuelta or the road) is a "u"-shaped road in Montecito
that begins and ends at two points along North Jameson Lane, which runs parallel to
Highway 101. The road was created in 1921 pursuant to a survey subdivision map of the
"Hermosa Vista Property," which includes part of the San Ysidro Creek (the creek).1
The subdivision consists of 16 parcels, all but one of which are bounded on one side by
the centerline of La Vuelta. Thirteen of the parcels are entirely east of the creek, while
two of the remaining parcels begin west of the creek and extend eastward over the creek
to the centerline of La Vuelta.2 The owner of each parcel of property that includes a
portion of La Vuelta also owns a 30-foot wide easement (the La Vuelta easement or the
easement), which gives them "a right of way for all of the uses and purposes of a private
roadway."
              Over the years, the residents of the subdivision have treated La Vuelta as a
private road and have borne all responsibility for its maintenance and repair. "Private
road" signs have been at both ends of the road for the past several decades.
              For the last 25 years, respondents have lived on the parcel of property that
runs east from the centerline of La Vuelta at its western entrance. In 1995, appellants
purchased the southernmost parcel of property that begins east of the creek and extends
eastward to the centerline of La Vuelta. Their residence is east of the creek and is
reached by a different road.3 The property is roughly the shape of an "upside-down"
right triangle. The southernmost point of the property, which is wedged between the


1 When the map was created, Jameson Lane was part of Pacific Coast Highway.

2 The last parcel, which is depicted in the northwest corner of the subdivision map, lies
west of the creek and does not include any portion of La Vuelta.
3 Appellants' property and the other two Hermosa Vista parcels west of La Vuelta are
accessed by Tiburon Bay Road and bear addresses for that road.

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creek and the western edge of La Vuelta, is approximately 81 feet long. The portion of
appellants' property in this area that is not part of the La Vuelta roadway easement, which
the trial court accurately characterized as "icicle"-shaped, is approximately four feet at its
widest and gradually narrows to a width of about one inch until it ends to the west of
respondents' driveway.
              Although appellants cannot access their property from La Vuelta by
vehicle, Joseph Madden often parks vehicles along the road and during dry times often
hikes through the creek bed to reach the bus stop on Jameson. Christy Madden has also
been known to traverse the creek bed to reach the home of her parents, who live on La
Vuelta.
              In recent years, heavy rains have caused the creek to swell and flood La
Vuelta from the southernmost area of appellants' property and a small triangular-shaped
property to its south that is owned by a third party. After Jameson Lane was widened in
2007, respondents and their neighbors noticed an increase in motorists attempting to use
La Vuelta as an alternate route only to discover that it ends on Jameson, very near their
starting point. Motorists were also cutting across the triangular-shaped property to obtain
access to La Vuelta.
              To address these concerns, respondents and a majority of their neighbors
decided to place electronic gates at both entrances to La Vuelta. They also undertook to
place a berm, rocks, and hedges within the La Vuelta easement along the edge of the road
where the flooding occurs, which includes a portion of the narrow southernmost strip of
appellants' property. Appellants were included in all of the discussions, and initially did
not contest the changes. After respondents obtained permits and began installing the gate
columns, however, appellants complained to the County of Santa Barbara (the County)
that one of the columns was on their property. The County took no action because
neither of the columns were on appellants' property and did not interfere with the
County's property rights.
              Appellants also challenged the placement of the berm, rocks, and hedges on
their property. After appellants stated their intent to remove the improvements and


                                              3
replace them with a chain link fence and gate, respondents filed a complaint for
declaratory and injunctive relief. Following the sustaining of a demurrer, respondents
filed an amended complaint to which a demurrer was overruled.4 Appellants filed a
cross-complaint seeking declaratory and injunctive relief and damages for trespass.
              Following a bifurcated trial on the equitable claims, the court found in
favor of respondents. In its statement of decision, the court indicated that "the
foundation" for its ruling was the language in appellants' own deed describing the
easement at issue as "a right of way for all of the uses and purposes of a private
roadway." Based on this language, the court found "that the berm, boulders and hedge
are all appropriate additions to the land, as they add true and necessary protection to the
roadway for the common good in the prevention of flooding, and which do very little if
anything at all to interfere with [appellants'] permissible use of the easement area for
parking. It is obvious that Mr. Madden won't be able to walk from the creek bed through
the hedge to get to the bus stop, but he still has a clear pathway from the creek bed up to
Jamison Road [sic] on the north side of the hedge." The court further found that "the
improvements pose the least burdensome interference with [appellants'] use of their
property, consistent with their obligations under the easement. The Court is impressed
with the creativity and restraint shown by the builder. The improvements were carefully
placed within [appellants'] land over which the easement runs. No part of the
improvements encroaches on the unencumbered parts of their property."
              The court also found that appellants' proposed construction of a chain-link
fence along the easement was inconsistent with respondents' rights under the easement,
and accordingly ruled that appellants "have lost the right to erect a fence, gate, or bridge
on their property within the area of the easement." The court noted that it "did not


4 The amended complaint also named Charles Crail as a defendant. Crail owns the parcel
of property west of appellants' property. Crail's property is not part of the Hermosa Vista
subdivision. He was sued after respondents discovered he was planning to give
appellants an easement that would have allowed them to build a bridge over the creek,
with the theoretical purpose of obtaining vehicle access to their property from La Vuelta.
Crail was dismissed from the case pursuant to a settlement in which he agreed to refrain
from offering any easement to appellants.

                                              4
engage further in a weighing process, balancing hardship against benefit, as it is not
necessary to do so where the evidence is so compelling as to prompt a determination that
there is virtually no interference with [appellants'] historical use of this tiny 'icicle' of land
which has always been subject to the easement."
               In its judgment, the court declared that respondents had the right to
maintain the subject improvements and that appellants were prohibited from removing
them or erecting a fence within the area of the easement. The judgment further gives
respondents the right to complete the gate project subject to the County's approval.5 The
court declined respondents' request that it issue a further declaration "that they have the
right, at some future unspecified time, to add to any of the improvements which are the
subject of this suit. Such relief is speculative and beyond the scope of this proceeding."
Appellants timely appealed following the denial of their motion for a new trial.
                                         DISCUSSION
               Appellants claim (1) the berm, rocks, and hedge respondents placed within
the La Vuelta right-of-way easement on appellants' property are unlawful because La
Vuelta is a public road; (2) the court erred in finding the road is private based solely on
language included in the deed to appellants' property; and (3) the improvements in any
event go beyond the scope of respondents' easement. None of these claims has merit.
               In its ruling, the court found that whether La Vuelta was offered or
accepted for dedication as a public road is essentially irrelevant to the issue whether
respondents had the right to maintain the road pursuant to the grant of a private easement.
The law is in accord. Over 100 years ago, our Supreme Court stated: "It is a thoroughly
established proposition in this state that when one lays out a tract of land into lots and
streets and sells the lots by reference to a map which exhibits the lots and streets as they
lie with relation to each other, the purchasers of such lots have a private easement in the
streets opposite their respective lots, for ingress and egress and for any use proper to a


5 Appellants will be given a key to open the gate once it is installed. According to
respondents' representation, pedestrians will still be able to access the road through a
pedestrian gate at the southwest end.

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private way, and that this private easement is entirely independent of the fact of
dedication to public use . . . ." (Danielson v. Sykes (1910) 157 Cal. 686, 689
(Danielson).) For this reason, it is also irrelevant whether deeds to some of the parcels
did not include express references to this type of easement.
              The only issue remaining for our review is whether the court erred in
finding that the subject improvements were within the scope of the easement. To the
extent the existence or scope of an easement hinges on findings of fact, we review the
trial court's findings for substantial evidence. (See Warsaw v. Chicago Metallic Ceilings,
Inc. (1984) 35 Cal.3d 564, 570.)
              As we have noted, respondents are entitled to use the La Vuelta easement
"for ingress and egress and for any use proper to a private way . . . ." (Danielson, supra,
157 Cal. at p. 689.) It has long been settled that the right to use property for road
purposes includes "a right to make necessary and reasonable improvements for the
purpose for which it was intended to be used." (Zimmerman v. Young (1946) 74
Cal.App.2d 623, 628; see also Healy v. Onstott (1987) 192 Cal.App.3d 612, 617; 6 Miller
& Starr, Cal. Real Estate (3d ed. 2006) Easements, § 15:67, pp. 15-223 & 15-224.)
Substantial evidence supports the court's finding that the subject improvements were
reasonable and necessary to prevent the creek from flooding La Vuelta and provide
privacy and security from drivers who were attempting the access the road through that
area. Substantial evidence also supports the finding that the improvements were
minimally intrusive and placed the least possible burden on appellants' property.
              Appellants' reliance on Herzog v. Grosso (1953) 41 Cal.2d 219 (Herzog), is
unavailing. In Herzog, the owners of a servient tenement were sued for interfering with
the dominant tenement owners' use of an easement, consisting of a private road near
Universal Studios that had been provided to them by a prior owner. The trial court
entered a judgment in favor of the plaintiffs that required the defendants to, among other
things, remove a gate and fence they had erected at the entrance to the road. (Id. at p.
224.) In affirming, the Supreme Court adopted the trial court's findings "that the fence
and gates interfered with plaintiffs' free use and enjoyment of the easement. Plaintiffs'


                                              6
home is located in a large city and the road should be kept unobstructed for adequate
access by the fire department, police department, and other public agencies. [Citation.]"
(Ibid.) The opinion goes on to state: "Defendants suggest that they should be allowed to
maintain the gates and fence to prevent motorists from mistaking the road for a public
road and entering defendants' property. Plaintiffs concede that defendants are 'free to put
up any sign deemed necessary as would not unreasonably interfere with plaintiffs' use of
the easement.' It would appear that defendants could thus be adequately protected." (Id.
at p. 225.)
              As relevant to the instant case, the court in Herzog also affirmed the
judgment to the extent it gave the plaintiffs the right to construct and maintain a wooden
guard rail along one side of the easement. In rejecting the defendants' claim that this
aspect of the judgment unduly burdened the servient tenement, the court reasoned: "By
the grant of the easement, however, plaintiffs acquired the right to do such things as are
reasonably necessary to their use thereof. [Citations.] Since the road adjoins a steep
embankment, guardrails are reasonably necessary and would not unduly burden the
servient tenement." (Herzog, supra, 41 Cal.2d at p. 225.) As we have explained, the
particular facts of this case support the court's finding that respondents' improvements,
including the columns and gate, were reasonably necessary to their use and enjoyment of
La Vuelta and did not unduly burden appellants' use of their property.
              Appellants also rely on Scruby v. Vintage Grapevine, Inc. (1995) 37
Cal.App.4th 697 (Scruby), for the proposition that "[t]he conveyance of an easement
limited to roadway use grants a right of ingress and egress and a right to unobstructed
passage to the holder of the easement. A roadway easement does not include the right to
use the easement for any other purpose." (Id. at p. 703.) The easement in Scruby,
however, was merely "for road and utility purposes." (Ibid.) Respondents' easement is
not so limited. (Danielson, supra, 157 Cal. at p. 689.) Moreover, the primary issue in
Scruby was whether a winery's placement of grapevines within the dominant tenement
owner's 52-foot wide roadway easement unreasonably interfered with the use of said
easement. (Scruby, at p. 700.) The trial court's affirmative finding on that issue was


                                             7
supported by substantial evidence and was thus upheld on appeal. (Id. at p. 705.) The
trial court's finding that the dominant tenement holder's pavement of a portion of the
easement "was not incident to the reasonable repair and maintenance of the easement"
was similarly upheld. (Id. at p. 707.)6 Substantial evidence also supports the contrary
findings at issue in this case.7
                                      DISPOSITION
              The judgment is affirmed. Respondents shall recover their costs on appeal.
              NOT TO BE PUBLISHED.


                                          PERREN, J.
We concur:



              GILBERT, P. J.



              YEGAN, J.

6 The trial court's finding was based on evidence that before the dominant tenement
holder (Scruby) paved a strip of property near the entrance to the easement from the
highway, he had been informed that the winery's use permit required that the entrance be
moved farther south along the highway to allow a proper turning radius from the highway
to the winery property. After viewing the scene, the trial court also found "'that for safety
reasons a single entrance to the winery property is essential.'" (Scruby, supra, 37
Cal.App.4th at p. 707.)
7 For the first time in their reply brief, appellants refer us to Buechner v. Jonas (1964)
228 Cal.App.2d 127. The only relevant similarity between Buechner and the instant case
is that both involved a dominant tenement holder's placement of a hedge in a roadway
easement. In Buechner, the primary issue was whether the dominant tenement holder had
either extinguished or limited her right to use the easement by planting the hedge. (Id. at
p. 130.) Moreover, the dominant tenement holder never claimed any right to maintain the
hedge, which the trial court found "was purely ornamental and temporary." (Id. at pp.
129-130.) The facts and issues in this case are plainly dissimilar. Cottonwood Duplexes
v. Barlow (2012) 210 Cal.App.4th 1501, which was issued after appellants filed their
reply brief, is also inapposite. In that case, the court framed the issue as "whether a court
can partially extinguish a granted easement if the evidence shows that the owner of the
dominant tenement does not reasonably need, either now or in the future, the entirety of
the easement . . . ." (Id. at p. 1508.) The court's ruling in this case neither expressly nor
implicitly extinguished any portion of either party's easement.

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                            Denise de Bellefeuille, Judge
                       Superior Court County of Santa Barbara
                        ______________________________


            Law Office of John C. Lauritsen, John C. Lauritsen; Law Office of Mark D.
Jamison and Mark D. Jamison for Appellants.
            Richardson, Fair & Cohen, Manuel Dominguez; Law Offices of Bruce
MacKenzie and Bruce MacKenzie for Respondents.




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