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Salyer v. 396 Investment Co.5/17/2005
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"`When the grant [of easement] is implied, its terms must be inferred from all of the circumstances of the case.'" (George v. Goshgarian (1983) 139 Cal.App.3d 856, 862, italics omitted.) "`"The extent of an easement created by implication is to be inferred from the circumstances which exist at the time of the conveyance and give rise to the implication."'" (Ibid.) The reasonable expectation of the parties at the time of the conveyance is key. (Ibid.) Moreover, "the easement must be obvious to others . . . to confirm the intent of the original owner to use part of his land for the benefit of the other part and to give notice to his successors in interest that the future servient estate is burdened with the easement in favor of the future dominant estate." (Id. at p. 860.)
The trial court rejected Anaheim's implied easement theory. It stated: "If the easement did arise from the deed . . . , it is not clearly set forth in the deed. The Court finds the deed does not by `clear intent' establish an implied easement to drain 65 gallons per minute over or under another's property."
We agree completely. The record shows that the Santiago Land Co. conveyed to Anaheim an express drainage easement and Anaheim indicates that it constructed a surface channel thereon. The parties clearly intended to take care of the drainage problem with the express easement. The evidence does not show any reason why the Santiago Land Co. should have reasonably expected that Anaheim would additionally require an easement to drain 34 million gallons of water per year across the plaintiffs' properties. Moreover, no 34-million-gallon-per-year seepage easement was "obvious to others" so as to give notice to the successors in interest of the Santiago Land Co. that their properties were burdened with such an easement in favor of the reservoir site. (See George v. Goshgarian, supra, 139 Cal.App.3d at p. 860.)
H. SLIDING SCALE SETTLEMENT AGREEMENTS:
(1) Validity of Agreements
396 entered into three settlement agreements, with different groups of plaintiffs and insurance carriers. The first agreement, dated October 26, 1999, was between 396 and 24 other parties. The second agreement, dated May 17, 2000, was between 396 and 14 other parties. The final agreement, dated May 24, 2000, was between 396 and Vista Royale. 396 sought to recover from Anaheim millions of dollars that 396 had paid in settlement under these agreements.
Anaheim asserts that 396 may not recover against it under the sliding scale settlement agreements because 396 did not give Anaheim the notice required by Code of Civil Procedure section 877.5, subdivision (c). That subdivision provides in pertinent part: "No sliding scale recovery agreement is effective unless, at least 72 hours prior to entering into the agreement, a notice of intent to enter into an agreement has been served on all nonsignatory alleged defendant tortfeasors. . . ."
Anaheim raised this issue in the trial court, albeit unsuccessfully. On June 8, 2001, Anaheim filed a brief regarding the effect of the failure to provide a notice of intent pursuant to Code of Civil Procedure section 877.5. It argued that, due to that failure, the sliding scale settlement agreements were not effective with respect to Anaheim. Anaheim asked the court to exclude any sums paid through the sliding scale settlement agreements from any judgment against it on any indemnity claim.
396 filed a reply brief dated August 15, 2001, supported by declarations of Attorney Joseph A. Ferrentino. In that reply brief, 396 raised several issues, including waiver and estoppel. 396 argued that Anaheim had not objected to the sliding scale settlem
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