Healy v. Onstott

Opinion

BRAUER, J.

We here consider the rights of a co-owner of a private easement who declines to accept the award of an arbitrator appointed pursuant to Civil Code section 845.

That section was originally passed in 1939 and has been amended once, in 1985. The former statute was in effect during the relevant time. Former Civil Code section 845 provided that co-owners of a private right-of-way must share the maintenance of the easement according to an agreement or, “proportionately to the use made of the easement by each owner.” The section further provided: “In the absence of an agreement, any owner of the easement, or any owner of land to which the easement is attached, may apply to the superior court where the right of way is located for the appointment of an impartial arbitrator to apportion such cost. If the arbitration award is not accepted by all of the owners, the court may determine the proportionate liability of the owners, and its order shall have the effect of a judgment.” The amended statute rewrote the section, and subdivision (c) now provides: “In the absence of an agreement, the cost shall be shared proportionately to the use made of the easement by each owner, [fl] Any owner of the easement, or any owner of land to which the easement is attached, may apply to any court where the right-of-way is located ... for the appointment of an impartial arbitrator to apportion the cost----If the arbitration award is not accepted by all of the owners, the court may enter a judgment determining the proportionate liability of each owner----”

Appellant Albert Onstott is the former owner of a vacant lot in a 12-parcel subdivision located in Santa Cruz County. Three lots are improved with residences; nine lots are vacant. The lots are connected to the public roadway by a private road in which each lot has been granted an easement

[615]

by deed. There is no agreement among the co-owners of this easement respecting the cost of maintaining it in repair.

The private right-of-way traverses Hester Creek by means of a bridge which was destroyed by a severe storm in January 1982. Respondents Thomas and Diane Healy took the initiative and arranged for the replacement of the bridge at an approximate cost of $30,000. Onstott and two other co-owners refused to share in this cost. Using the procedure authorized by Civil Code section 845, the nine contributing co-owners obtained an order appointing an impartial arbitrator. Hearing was held and a decision rendered which apportioned liability for the cost of the bridge among the co-owners equally. The decision also set responsibility for past and future maintenance, taking into consideration whether or not a lot was improved, whether or not the improvement was a permanent or vacation residence, and the distance of each particular lot to the public roadway. Onstott declined to comply with the decision and respondents filed a petition to confirm the award under Civil Code section 845. The petition (1) alleged that Onstott had failed to pay the amount determined by the arbitrator’s formula, (2) prayed for an order confirming the award, and (3) for judgment in the amount due.