BLEASE, Acting P. J. —
This action began as one by several neighboring property owners to establish an easement for the purpose of access to their properties over land owned by Alfred Robert Pereira, Jr. (appellant). The property owners brought the action in 2007, following Pereira's purchase of his property in 2006 and subsequent blocking of the entrance to Quartz Hill Drive, over which the neighbors claimed they had a prescriptive easement by virtue of their use and the use of their predecessors in interest for access to their properties.
The Pulidos (respondents) were named defendants in the suit by the neighbors, but no allegations of wrongdoing on the Pulidos' part were included in the complaint. The Pulidos filed a cross-complaint against Pereira, alleging their right to an easement across Pereira's property on several theories, including an easement by prescription. This appeal involves only the Pulidos' cross-complaint.
The trial court found the Pulidos had satisfied their burden of proving the continuous, open, and notorious use of Quartz Hill Drive for the five-year prescriptive period. It granted a permanent injunction against Pereira "from interfering with the PULIDOS use and enjoyment of the easement across PEREIRA's realty as described and adjudged herein." Pereira argues there was insufficient evidence to support the trial court's finding that the Pulidos and their predecessors used the road openly, notoriously, and continuously for a period of five years. We shall conclude the evidence was sufficient and we will affirm the judgment.
The Pulidos purchased property in Calaveras County in 2001. When Antonio Pulido first visited the property he took Hogan Dam Road and turned off onto Quartz Hill Drive to access the property. There was no gate where he turned onto Quartz Hill Drive. When the Pulidos purchased their property, Dennis Lee owned the property that was later purchased by Pereira. The Pulidos bought the property with the intent to build a house on it. In the meantime, they were using the property for target shooting. Antonio Pulido went to the property once or twice a month to walk around and shoot targets. Every time the Pulidos went to the property they had to untie a chain strung between two posts at the entrance to Quartz Hill Drive off of Hogan Dam Road.
In 2007 the Pulidos' neighboring property owner, Pereira, informed him that he was going to put a lock on the gate. Antonio Pulido told Pereira to give him a key to the gate if he locked it. Pereira said he would think about it. The Pulidos continued to use Quartz Hill Drive to access their property, until one day they arrived at the gate and a woman there told them a court case had been filed and they were not to use the road anymore. Pereira later installed a lock and dug a trench across Quartz Hill Drive.
Pereira's actions in blocking Quartz Hill Drive affected several of the neighbors in the area, and on November 28, 2007, Roman and Rosa Olavarrieta and Gary and Rachael Fong, joint owners of a neighboring property, filed a complaint to prevent Pereira from blocking their access to Quartz Hill Drive, and to determine their right to a prescriptive easement. Neighboring property owners Barbara Glenn, Erasmo Olavarrieta, and Donna Pyeatt were later added as plaintiffs in the action. The Pulidos were named defendants in that action.
The Pulidos cross-complained against Pereira. They sought a determination that they owned an easement over Quartz Hill Drive to access their property. They alleged several theories by which they were entitled to such easement: (1) easement by implication, (2) easement by implied dedication, (3) easement by prescription, (4) easement by necessity, and (5) equitable easement.
Following trial on the Pulidos' cross-complaint, the court's tentative decision determined the Pulidos had established a prescriptive easement over
Judgment was entered on the cross-complaint in favor of the Pulidos for an easement by prescription for ingress and egress over Quartz Hill Drive on Pereira's property. Pereira was permanently enjoined from interfering with the Pulidos' use and enjoyment of the easement, and the Pulidos were awarded damages in the amount of $1. It is from this judgment on the cross-complaint that Pereira appeals.
Civil Code Section 1009 Has No Application Under These Circumstances
Civil Code section 1009 provides in relevant part:
"(a) The Legislature finds that:
"(1) It is in the best interests of the state to encourage owners of private real property to continue to make their lands available for public recreational use to supplement opportunities available on tax-supported publicly owned facilities.
"(b) ... [E]xcept as otherwise provided in subdivision (d), no use of such property by the public after the effective date of this section shall ever ripen to confer upon the public or any governmental body or unit a vested right to continue to make such use permanently, in the absence of an express written irrevocable offer of dedication of such property to such use, made by the owner thereof in the manner prescribed in subdivision (c) of this section, which has been accepted by the county, city, or other public body to which the offer of dedication was made, in the manner set forth in subdivision (c)."
As Pereira interprets this section, the Pulidos and their predecessors in interest were prevented from creating a prescriptive easement over Quartz Hill Drive because they used the road to access their own property, and they used their own property for recreational purposes, i.e., shooting guns, walking around, and picnicking. Pereira claims that his neighboring property owners passed over his property for recreational purposes as defined in the statute, when they passed over his property in order to use their own property for recreational purposes. This presents an issue of statutory construction in which we must determine whether the phrase "pass over their property for recreational purposes" includes a neighboring property owner passing over the property of another for the purpose of recreating on his or her own property. We apply a de novo standard of review for this issue of statutory construction. (McLaughlin v. State Bd. of Education (1999) 75 Cal.App.4th 196, 210 [89 Cal.Rptr.2d 295].)
"An ambiguity arises when language is reasonably susceptible of more than one application to material facts." (California State Auto. Assn. Inter-Ins.
Civil Code section 1009 does not apply here because there is no question of public use. Rather, this is a matter of a private prescriptive easement between neighboring landowners. Also, Civil Code section 1009 does not apply because the recreation taking place is neither on Pereira's property, nor is Pereira's property being passed over by the public to reach a public recreational area.
Pereira cites Bustillos, supra, 96 Cal.App.4th 1277 in support of his argument that Civil Code section 1009 applies to private easements. This is not a correct reading of Bustillos. Bustillos and others used an undeveloped property that was adjacent to a residential development for recreational purposes. (Bustillos, at p. 1279.) The undeveloped property was owned by Murphy. (Ibid.) Bustillos argued he was entitled to a private easement, and that Civil Code section 1009 did not bar such an easement because the section was applicable only to public easements. (Bustillos, at p. 1279.) The court did not hold that Civil Code section 1009 applies to private easements, as Pereira contends, but that Bustillos's interest was indistinguishable from the public generally, thus he could not claim a private easement. "The effect of granting a prescriptive easement in this case would mean that Bustillos, as well as other members of the public, would gain a permanent right to use Murphy's property for recreational purposes. There is nothing `private' about the prescriptive easement sought here or anything to distinguish Bustillos's situation from that contemplated by [Civil Code] section 1009." (Bustillos, at p. 1281.)
The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
Butz, J., and Murray, J., concurred.