California Court of Appeal Feb 19, 2015 No. E058369Unpublished
Filed 2/19/15 Wykidal v. Bain CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
GARY C. WYKIDAL,
Plaintiff and Appellant, E058369
v. (Super.Ct.No. CIVDS913511)
BELINDA BAIN et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of San Bernardino County. John M. Pacheco,
Judge. Affirmed.
Gary C. Wykidal, in pro. per., for Plaintiff and Appellant.
Law Office of Harry S. Carmack and Harry S. Carmack for Defendants and
Respondents.
I
INTRODUCTION
Plaintiff and appellant Gary C. Wykidal owns a parcel of real property adjacent to
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other property on which defendants and respondents operate a business, Action Zipline.
Wykidal appeals from an adverse judgment which was rendered after a court trial on his
complaint for public and private nuisance.
On appeal, Wykidal argues that defendants’ use of a dirt road has overburdened
the easement for access across his property and the trial court erred in making a contrary
“The conveyance of an easement limited to roadway use grants a right of ingress
and egress and a right of unobstructed passage to the holder of the easement. A roadway
easement does not include the right to use the easement for any other purpose. [Citation.]
When the easement is ‘nonexclusive’ the common users ‘have to accommodate each
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other.’ (Applegate v. Ota (1983) 146 Cal.App.3d 702, 712.)” (Scruby v. Vintage
Grapevine, Inc., supra, 37 Cal.App.4th at pp. 702-703.)
In the present case, an easement for ingress and egress was granted in 1965 for all
of section 18. The same easement was included in the 1991 grant deed to Wykidal’s
property. Defendants have a specific, limited, and definable right to use the easement
reasonably for ingress and egress, imposing as slight a burden as possible that is not
inconsistent with their use.
The subject easement does not prohibit commercial use. An easement is subject to
regulation by zoning: “Obviously, if a parcel of land is zoned the particular interest
therein of any individual is subject to that zoning.” (City & County of San Francisco v.
Safeway Stores, Inc. (1957) 150 Cal.App.2d 327, 332.) The Resource Conservation
zoning designation for section 18 permits rural sports and recreational use, in addition to
residential use. The CUP approved in 2009 allows defendants to operate a zipline tour
business on defendants’ properties, limiting the maximum number of trips allowed per
day to eight roundtrips with 64 participants.
The trial court expressly found that defendants’ use of the easement was
reasonable to afford ingress and egress to their property for a commercial purpose. Based
on these facts and applying the legal principles or standards governing easements, the
trial court properly concluded that the subject easement granted defendants a right of
ingress and egress and a right of unobstructed passage. (Scruby v. Vintage Grapevine,
Inc., supra, 37 Cal.App.4th at p. 703; Laux v. Freed (1960) 53 Cal.2d 512, 525.)
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Defendants made no other use of the road and, because the easement is “nonexclusive,”
Wykidal must accommodate defendants’ reasonable commercial use, as is permitted by
the zoning law.
IV
DISPOSITION
Substantial evidence supports the trial court’s factual findings that defendants’
commercial use does not overburden the subject easement. The trial court did not err in
its application of the law of easements.
We affirm the judgment. Defendants, the prevailing parties, shall recover their
costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
KING J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that substantial evidence supported the trial court's finding that the defendants' commercial use of an express easement for ingress and egress did not constitute an unreasonable overburdening of the servient tenement.
Issues
Whether the trial court committed legal error in its determination that the defendants' use of the easement did not constitute an overburdening of the servient tenement.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We hold substantial evidence supports the trial court’s factual findings and the court correctly applied the law of easements.”
“The trial court expressly found that defendants’ use of the easement was reasonable to afford ingress and egress to their property for a commercial purpose.”
“Substantial evidence supports the trial court’s factual findings that defendants’ commercial use does not overburden the subject easement.”