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Wong v. 396 Investment Co.5/17/2005
Co. v. Briggs, supra, 130 Cal.App.3d at p. 593.)
Here, Anaheim maintains that the owners of the servient tenement(s) had constructive notice of the leakage problem. We have reviewed Anaheim's multitudinous citations to the record. However, they do not convince us that the plaintiffs or their predecessors in interest had constructive notice of the leakage of 34 million gallons of water per year. True enough, Anaheim provided expert testimony to the effect that reservoirs with earthen liners seep some amount of water. Furthermore, it is true that when the reservoir was constructed some minimal amount of seepage was anticipated, but that amount was expected to be "insignificant" or "extremely low." We agree with the trial court that seepage of 34 million gallons of water per year cannot reasonably be characterized as "insignificant" or "extremely low," especially when that amount of seepage represents a loss of water exceeding the total volume of the reservoir's design capacity once every two years.
Anaheim has also shown that it made piezometer readings and reservoir plans available to GeoSoils, Inc., the geotechnical consultants involved in the development of Tract 10439. However, there is no indication that the particular information provided gave any clue that the reservoir was leaking 34 million gallons per year. Anaheim also points out that the City of Orange was aware that seepage from the reservoir was discharged through the surface channel. Again, there is no indication that the City of Orange was aware of the amount of the seepage or the fact that the seepage created a mounding effect underneath the reservoir.
Finally, Anaheim mentions the fact that certain records disclosing reservoir discharge, such as records in the possession of the Division of Safety of Dams, were public records, which it asserts provided constructive notice. This is not, however, a case where constructive notice such as that provided by the recording statutes is at issue. Moreover, this is not a case where the visible, open, and notorious use of a portion of the surface of another's land should be deemed to impart constructive notice to the owner. (See, e.g., Applegate v. Ota, supra, 146 Cal.App.3d at p. 709.) In the case of the visible, open, and notorious use of a roadway, for example, the owner is deemed to have constructive notice of the usage because if the owner had been vigilant with respect to the use of the property, he or she would have had actual notice. If the owner is out of state and does not visit the property, then he or she will suffer the consequences of failing to mind the property. Here, there was no visible, open, and notorious physical warning with respect to the property usage.
"Whether the elements of prescription are established is a question of fact for the trial court [citation] . . . ." (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570.) That determination "must be based upon clear and convincing evidence . . . ." (Applegate v. Ota, supra, 146 Cal.App.3d at p. 708.) If there is substantial evidence to support that determination, it will not be disturbed on appeal. (Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d at p. 570; Applegate v. Ota, supra, 146 Cal.App.3d at p. 708.) Anaheim has not shown that there was clear and convincing evidence of the visible, open, and notorious usage of the plaintiffs' properties for reservoir seepage that would be deemed to impart constructive notice.
(3) Implied Easement
Lastly, Anaheim argues that if this court holds that it has neither an express nor a prescriptive easement, then we must hold that it has an implied easement. We disagree.
"`When the grant
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