Bates v. Lark

Filed 11/29/05 Bates v. Lark CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RICHARD J. BATES et al., Plaintiffs and Appellants, v. PAUL A. MARTIN, Defendant and Respondent. ___________________________________ BRADLEY JAMES LARK et al., Plaintiffs and Appellants, v. PAUL A. MARTIN, Defendant and Respondent.

G034295 (Super. Ct. Nos. 02CC02814, 02CC06970) O P I N I O N

Appeals from a judgment of the Superior Court of Orange County, James M. Brooks, Judge. Affirmed.

Jerome D. Stark for Plaintiffs and Appellants Richard J. Bates and Tina M. Bates.

Bryant & Bryant and Kenneth A. Bryant for Plaintiffs and Appellants Bradley J. Lark and Charlotte W. Lark.

Law Offices of Robert A. Walker and Robert A. Walker for Defendant and Respondent.

* * *

Neighboring property owners brought consolidated quiet title and declaratory relief actions seeking a judgment to the effect that a claimed easement was nonexistent. At the end of the presentation of the plaintiffs’ case-in-chief, the defendant moved for judgment and the court granted the motion. The plaintiffs appeal. They maintain that no easement, express or implied, was ever created in favor of the defendant. They also say the court erred in considering the testimony of the defendant’s expert title witness, who was called out of order.

We disagree on both counts. Substantial evidence supports the trial court’s determination that an easement by implication arose when the defendant recorded a parcel map showing the easement and thereafter transferred property by reference to that parcel map. Also, the court was at liberty to weigh the testimony of the expert witness and, in any event, the expert’s opinion was supported by case law. We affirm.

I

FACTS

Richard J. Bates and Tina M. Bates (the Bateses) filed suit against Paul A. Martin (Martin). (Bates v. Martin (Super. Ct. Orange County, 2004, No. 02CC02814).) They alleged that Martin, while claiming to hold an easement, had unlawfully entered upon their property in Anaheim Hills. The Bateses alleged that, through adverse possession or abandonment, they had come to own the portion of the purported easement that affected their property. They sought to quiet title and obtain declaratory relief. The purported easement also ran across the property of Bradley J. Lark and Charlotte W. Lark (the Larks), neighbors of the Bateses. The Larks also filed suit against Martin. (Lark v. Martin (Super. Ct. Orange County, 2004, No. 02CC06970).) They too alleged that, through adverse possession or abandonment, they had acquired title to the portion of the claimed easement area lying within their property. The Larks sought to quiet title and obtain declaratory relief and damages. Martin filed cross-complaints in both matters. Martin asserted that he had a valid easement over the properties in question. The court consolidated the cases.

When the matter came on for trial, the court, on its own motion, bifurcated the easement issues from the damage issues. The court took evidence on whether there existed a twenty-foot easement along the southerly boundary of the Bateses’ and the Larks’ properties and, if so, whether Martin had any right to use the easement. Martin made a motion for judgment after the Bateses and the Larks rested their case-in-chief. The court granted the motion and ordered that the Bateses and the Larks take nothing on their complaints with respect to the easement.

In its statement of decision, the court indicated that the motion, and impliedly the ruling, were “based upon the following facts: [¶] [Martin] was the owner of a parcel of property described in Parcel Map [No.] 58-28. [He] recorded Parcel Map [No.] 58-28 on February 8, 1974[.] Parcel Map [No.] 58-28 describes an easement along the southerly 20’ of Lots 1, 2, and 4 of Parcel Map [No.] 58-28. The [Bates] currently own the portion of Lot 2 over which the southerly 20’ easement passes. The [Larks] currently own Lot 4. After recording Parcel Map [No.] 58-28, [Martin] continued to own Lot 1. Lots 2, 3, and 4 were conveyed. On the conveyance, the easement described in Parcel Map [No.] 58-28 came into existence. [Martin] currently owns Lot 1 and Lot 3. By virtue of his ownership of Lots 1 and 3, [Martin] has an easement along the southerly 20’ of Lots 2 and . . . 4, the [Bates] and [Lark] properties respectively. The easement is for road and utility purposes. [Martin] did not, at any time, exhibit any intent to abandon his easement. Any trees planted in the easement were properly removed as being inconsistent with the use of the easement for road purposes.” The court entered judgment in favor of Martin. The Bates and the Larks each filed a notice of appeal.

II

DISCUSSION

A. Standard of Review:

At the outset, we note that the Bateses and the Larks contend that the standard of review to be applied is that applied when a motion for nonsuit is made and granted after the plaintiffs complete the presentation of their case-in-chief. However, there is a distinction between a motion for nonsuit made after a plaintiff has rested his or her case-in-chief in a jury trial and a motion for judgment made under Code of Civil Procedure section 631.8 in a bench trial.^[1] (Roth v. Parker (1997) 57 Cal.App.4th 542, 546, fn. 3; Ford v. Miller Meat Co. (1994) 28 Cal.App.4th 1196, 1200.) Although the statement of decision does mistakenly recite that a motion for nonsuit was made and granted, it is clear from the record that the trial was a bench trial and the motion was made under Code of Civil Procedure section 631.8.

As we said in Ford v. Miller Meat Co., supra, 28 Cal.App.4th 1196 at page 1200, “Initially, we note that although the parties contend the court granted [the moving party’s] motion for nonsuit, in a trial by the court a motion for nonsuit is not recognized. The correct motion is for judgment pursuant to Code of Civil Procedure section 631.8, the purpose of which is to enable the court, after weighing the evidence at the close of the plaintiff’s case, to find the plaintiff has failed to sustain the burden of proof, without the need for the defendant to produce evidence. [Citation.] ‘“ . . . In weighing the evidence, the trial judge may exercise the prerogatives of a fact trier by refusing to believe witnesses and by drawing conclusions at odds with expert opinion. If the motion is granted, his [or her] findings are entitled to the same respect on appeal as any other findings and are not reversible if supported by substantial evidence. [Citations.]”’ [Citation.]”

B. Background/Chain of Title:

Frank J. Currie and Evelyn B. Currie purchased certain real property in Orange County in 1960. The deed by which they acquired title conveyed to them a twenty-foot wide easement for road and public utility purposes over certain property as described therein.

The Martins acquired approximately 4 and a half acres of neighboring property in 1972. In their opening brief, the Bateses and the Larks represent to this court that the Martin property is adjacent to and west of the Currie property. In 1974, the Martins subdivided their property into four parcels. The parcel map, recorded in book 58, page 28 of parcel maps, in the official records of the Orange County, California Recorder, reflects certain twenty-foot easements for roadway purposes (hereinafter referred to as “parcel map No. 58-28”). One of the easements runs across the southerly portions of parcels 2 and 4 and a part of the southerly portion of parcel 1. It also runs across the easterly portions of parcels 3 and 4, the northerly portion of parcel 3, and a part of the northerly portion of parcel 2.

In 1975, the Martins conveyed parcel 4 to Carlos and Vicki Martinez. The conveyance was effectuated by deed recorded June 18, 1975 as instrument No. 18769, in book 11433, page 475 of the official records of the Orange County, California, Recorder. The deed described the property as being located in the County of Orange, State of California, “shown as Parcel 4 on a map thereof recorded in book 58, page 28 of Parcel Maps, in the office of the County Recorder of said County.”.

In 1987, Paul A. Martin conveyed his interest in parcel 2 to Louise M. Martin, as part of a marital dissolution. More specifically, by quitclaim deed recorded on March 23, 1987 as instrument No. 87-154797, he conveyed to her his interest in “Parcel 2 of Parcel Maps recorded in Book 58, Page 28 of Parcel Maps, in the office of the County Recorder of Orange County, State of California . . . .” In that same year, Louise M. Martin conveyed her interests in parcels 1 and 3 to Paul A. Martin, also as part of the marital dissolution.

Louise M. Martin ultimately chose to dispose of parcel 2. D. M. S. T. Development, Inc. acquired the property and, in 1989, further subdivided parcel 2 of parcel map No. 58-28. The subdivision was accomplished by recordation of parcel map No. 88-117.

In 1999, the Bateses acquired title to parcel 2 as shown on parcel map No. 88-117.^[2] The grant deed by which they acquired title was recorded on September 1, 1999 as instrument No. 19990635191 in the official records of the Orange County, California Recorder and described the property as “Parcel 2, in the City of [Anaheim], County of Orange, State of California as per map recorded in Book 242, Page(s) 48 through 50 inclusive, of Parcel Maps in the Office of the County Recorder of said County.” The map recorded at those pages is parcel map No. 88-117.

The Larks acquired title to parcel 4 in 2001. The grant deed by which they acquired title was recorded on May 16, 2001 as instrument No. 20010315582 of the official records of the Orange County, California Recorder and described their property in part as “Parcel 4, as shown on a map filed in book 58, page 28 of Parcel Maps in the office of the County Recorder of said Orange County.” (Capitalization omitted.)

C. Arguments:

(1) Introduction

The Bateses and the Larks make four primary arguments: (1) the only roadway easement that ever ran across the southerly portions of the Bateses’ and the Larks’ properties was the Currie easement, and that easement does not run in favor of Martin, for a number of reasons; (2) no easement, express or implied, was ever created in favor of Martin; (3) the court abused its discretion in considering the testimony of Martin’s expert witness; and (4) the case should be remanded for a determination of damages arising out of Martin’s entry on the easement area. We address these issues in turn.

(2) Currie easement

(a) existence and location

The Bateses and the Larks fixate on the significance of the Currie easement. They point out that Frank J. Currie (Currie) testified that it was his understanding that the purpose of the easement in his favor was to permit him to access Mohler Drive from his property in the event that he lost access to Santa Ana Canyon Road. Parcel map No. 58-28 indicates that Mohler Drive abuts the southerly boundary of parcel 1 and a portion of the southerly boundary of parcel 2. The Bateses and the Larks cite Currie’s vague testimony in an apparent effort to imply that it establishes the location of the easement as running from the east, where the Curries’ property is located, to the west along the southerly portions of parcels 1, 2 and 4, in order to permit access to Mohler Drive.

To further document the existence of the Currie easement, the Bateses and the Larks draw our attention to a parcel map that the Curries recorded on October 31, 1975 in book 72, pages 47 to 48 of parcel maps, in the official records of the Orange County, California Recorder. That map notes the existence of easements for roadway and utility purposes as reflected in: (1) the deed by which the Curries acquired title to their property; and (2) a deed by which the Curries’ grantors conveyed to others certain property in fee, together with certain easement interests, and also reserved an easement for road and utility purposes over the southerly twenty feet of the property therein conveyed.

The Bateses and the Larks also cite a May 1960 record of survey, described as “49/5”, showing lot 9 and a portion of lots 6, 8, 10 and 12 of tract No. 117, the map of which is recorded in book 11, page 15 of miscellaneous maps, in the official records of the Orange County, California Recorder.^[3] That record of survey shows a twenty-foot easement for road purposes along the southern portion of lots 10 and 11 as shown thereon and on the eastern portion of lot 10. Portions of lots 10 and 11 as shown on that survey were later remapped as parcels 1, 2, 3 and 4 of parcel map No. 58-28. The portion of parcel map No. 58-28 depicting the southerly easement does make reference to “RS 49/5.”

Without the assistance of an engineering expert to compare the metes and bounds descriptions of the various deeds, maps and surveys and to opine as to which easements cover which portions of the properties at issue, we will, for the purposes of discussion, simply assume that the Curries’ easement did indeed traverse the southerly twenty feet of parcels 2 and 4 and a portion of parcel 1.

(b) significance of easement

Although Currie testified that the purpose of the easement was to provide him access to Mohler Drive, he further testified that he never used the easement. He explained that he used a different road to access Santa Ana Canyon Road instead. He also stated that at some point he had come to learn that perhaps the access road he was using was not a “legal easement.” An attorney had advised him that he could probably obtain a prescriptive easement over that access road, however, due to the fact that he had been using it openly for at least 15 years. Anyway, Currie said that at some point Martin approached him and proposed that the Curries relinquish their interest in the southerly easement in exchange for an easement across the access road the Curries were in fact using. The Curries agreed and an exchange took place. By deed recorded November 3, 1975 as instrument No. 1303, in book 11557, page 145 of the official records of the Orange County, California Recorder, the Curries quitclaimed their interest in an easement described therein to the Martins. By deed recorded November 3, 1975 as instrument No. 1304, in book 11557, page 146 of the official records of the Orange County, California Recorder, the Martins granted an easement as described therein to the Curries.

It is the Currie easement and this exchange of deeds between the Curries and the Martins upon which the Bateses and the Larks hinge their case. They contend that the easement at issue is the Currie easement. They assert that the Martins’ property was not the dominant tenement under that easement, but rather was the servient tenement. Furthermore, the Bateses and the Larks assert that when the Curries quitclaimed their interests in the easement to the Martins, this extinguished the easement as to the Martin property, under the doctrine of merger. They also state that the Currie easement was never dedicated to the city or the county for roadway purposes and that the Curries never used their easement for access to Mohler Drive. In addition, the Bateses and the Larks argue that a number of Martin’s own actions served to extinguish the Currie easement. In short, they argue that, contrary to the statement of decision, Martin never acquired an easement along the southerly boundaries of parcels 2 and 4.

The Bateses and the Larks attempt to make too much of the existence and relinquishment of the Currie easement. The record reflects that the Curries had an easement and that they relinquished it in favor of the Martins, in exchange for an easement in a different location. The point of the matter, however, is that Martin does not assert that his rights were based on the easement described in the deed by which the Curries acquired title to their property. Frankly, any such assertion would not make sense inasmuch as it would indeed appear, as the Bateses and the Larks maintain, that under the Currie easement the Martin property was the servient tenement and the Currie property was the dominant tenement. We need not address most of the issues that the Bateses and the Larks raise with respect to the creation and the voluntary relinquishment of the Currie easement, and to the possible extinction of the Currie easement prior to its relinquishment, because the deed by which the Curries acquired title to their property is just not the basis of Martin’s claimed easement. Martin testified at trial that he was claiming through parcel map No. 58-28.

(3) Substantial evidence of creation of easement in favor of Martin

(a) introduction

The Currie easement aside, the Bateses and the Larks still assert that there is no substantial evidence to support the trial court’s finding that an easement was created in favor of Martin. As the Bateses and the Larks point out, “[e]asements may be created by grant or by prescription. [Citation.] The set of easements created by grant fall into two subsets: easements created by express grant, and easements created by implied grant. [Citation.]” (Mikels v. Rager (1991) 232 Cal.App.3d 334, 355-356.) The Bateses and the Larks contend that there is no “deed, conveyance or other legal instrument that gives rise to the creation of an easement across the Bates’ and Larks’ properties in favor of Martin as the dominant tenement.” They argue that any easement could only have been created by implication, but there are no facts that support the creation of an easement by implication. As we shall show, we disagree.

(b) Tract Development Services: effect of map recordation

In 1974, the Martins recorded parcel map No. 58-28, which reflects a twenty-foot right of way across the southerly portions of parcels 2 and 4, and a portion of parcel 1, connecting up to twenty-foot roadway easements along the eastern portions of parcels 3 and 4 (Martinez Road) and the northern portions of parcels 2 and 3 (San Roman Way). San Roman Way in turn hooks up to Martin Place, which provides access for the development to Santa Ana Canyon Road.

As explained in Tract Development Services, Inc. v. Kepler (1988) 199 Cal.App.3d 1374 (Tract Development Services), “‘It is a thoroughly established proposition in this state that when one lays out a tract of land into lots and streets and sells the lots by reference to a map which exhibits the lots and streets as they lie with relation to each other, the purchasers of such lots have a private easement in the streets opposite their respective lots, for ingress and egress and for any use proper to a private way, and that this private easement is entirely independent of the fact of dedication to public use, and is a private appurtenance to the lots, of which the owners cannot be divested except by due process of law. [Citations.]’ [Citation.]” (Id. at pp. 1381-1382.) “‘When a lot conveyed by a deed is described by reference to a map, such map becomes a part of the deed. If the map exhibits streets and alleys it necessarily implies or expresses a design that such passageway shall be used in connection with the lots and for the convenience of the owners in going from each lot to any and all the other lots in the tract so laid off. The making and filing of such a plat duly signed and acknowledged by the owner, . . . is equivalent to a declaration that such right is attached to each lot as an appurtenance. A subsequent deed for one of the lots, referring to the map for the description, carries such appurtenance as incident to the lot.’ [Citations.] This rule applies regardless of whether the city or county has ever accepted the right-of-ways laid out in the map, and whether or not the right-of-ways have ever been opened or used as streets or highways. [Citation.] Furthermore, the right to an easement created in this manner cannot be lost by mere nonuse, nor because the easement is not necessary for access to the dominant tenement. [Citation.]” (Id. at p. 1382, italics omitted.)

Martin claims this language from Tract Development Services, supra, 199 Cal.App.3d 1374 is dispositive. The Martins recorded a parcel map that showed a twenty-foot right of way across the southerly portions of parcels 2 and 4 and a part of the southerly portion of parcel 1, connecting up to Martinez Road, which in turn provides access to San Roman Way, Martin Place and Santa Ana Canyon Road. The Martins’ deed to the Martinezes described parcel 4 by reference to that parcel map. Likewise, Paul A. Martin’s deed to Louise M. Martin also described parcel 2 by reference to that parcel map. The requirements of Tract Development Services are met. The easements described in the parcel map were appurtenant to the parcels described in the parcel map and when the parcels were conveyed by reference to the parcel map, the easements appurtenant passed with them. Martin urges that, once the initial conveyances were made, each owner of a parcel, including himself, had a private easement across each other parcel, as designated on the parcel map.

(c) Mikels: elements of implied easement

The Bateses and the Larks disagree with this application of Tract Development Services, supra, 199 Cal.App.3d 1374. As they see it, the language from Tract Development Services is undercut by language from Mikels v. Rager (1991) 232 Cal.App.3d 334 (Mikels). The court in Mikels also addressed the effect of transfers of property made by reference to a recorded map showing roadways. However, in Mikels, the recorded map contained an offer of dedication to the city within which the land was located. The recorded map contained a certificate of the county surveyor, in which the county surveyor, on behalf of the city, approved the map and accepted the offers of dedication as shown on the map, subject to completion of street improvements in accordance with county standards. (Id. at p. 345.) The court held that without unconditional acceptance of the offer of dedication, no public interest was created in the roadways depicted on the map. (Id. at p. 354.)

In the case before us, on the other hand, we have no issue of dedication to public use or of conditional acceptance by a public entity, so the Mikels case is inapposite to the extent it relies on that point. However, the court in Mikels, supra, 232 Cal.App.3d 334, having held there was no public easement, went on to address whether the conveyance of lots by reference to the recorded map could have given rise to an easement by implication in favor of the party that recorded the map. It is that discussion that has application to this case.

As the court in Mikels, supra, 232 Cal.App.3d 334 observed, “An implied easement may arise when, under certain specific circumstances, the law implies an intent on the part of the parties to a property transaction to create or transfer an easement even though there is no written document indicating such an intent. [Citation.]” (Id. at p. 357.) The creation of an implied easement “requires the existence of three elements: [¶] ‘“(1) A separation of title; [¶] ‘“(2) [B]efore the separation takes place the use which gives rise to the easement shall have been so long continued and so obvious as to show that it was intended to be permanent; and [¶] ‘“(3) [T]he easement shall be reasonably necessary to the beneficial enjoyment of the land granted.”’ [Citations.]” (Id. at p. 357.)

The court in Mikels, supra, 232 Cal.App.3d 334 stated that sales of real property by reference to a recorded map could indeed satisfy each of the three elements necessary for the creation of an implied easement. (Id. at pp. 357-358.) It explained: “This scenario fulfills the three elements required for an implied easement to arise in that (1) when the owner of the property being subdivided draws up a map dividing the property into lots divided and encumbered by roads, and then sells lots with reference to such map, the roadways are obvious (on the map) and by their very nature and the fact of the sales of lots clearly intended to be permanent, (2) the sale of lots creates the necessary separation of title, and (3) the easements are reasonably necessary to the lot owners’ beneficial enjoyment of their land, in that they enable the owners to move freely among and between the various lots within the subdivision as well as onto the adjoining city streets.” (Id. at p. 358.)

Despite this plain statement of law, however, the Mikels court held that the subdividers, who had prevailed on a motion for summary judgment, had failed to meet their burden to establish, as a matter of law, the reservation of an implied easement in favor of themselves. (Mikels, supra, 232 Cal.App.3d at pp. 341, 359-360.) While the map contained an offer to dedicate a roadway to the public, the offer was not unconditionally accepted and thus no public roadway was created. (Id. at pp. 353-354.) The court held that the subdividers had not presented, as an undisputed fact, that the grantees had the requisite knowledge or notice of the purported existence of a private easement by virtue of the reference in their deed to the map containing the offer of dedication. Moreover, the court remarked that the subdividers did not even assert that the map made any representations as to a private easement for roadway purposes. (Id. at p. 360.)

In assessing the impact of Mikels, supra, 232 Cal.App.3d 334 on the case before us, we make a few initial observations. First, the procedural context differs in the case before us. Here, Martin did not prevail on a motion for summary judgment based on undisputed facts. Rather, he prevailed on a motion for judgment under Code of Civil Procedure section 631.8, which directs the court as trier of fact to weigh the evidence. Second, the map in Mikels contained a conditional acceptance of an offer of dedication, such that the roadway offered to the public was not accepted and purchasers were on notice of the fact that no public roadway existed at the time of purchase. In the case before us, however, the map does not bear a conditionally accepted offer of dedication for public roadways, but does bear notations as to road easements and a right of way per a record survey, so the intention to create private easements is more apparent. Third, in the case before us the party who recorded the map does assert that the map depicts a private roadway easement, whereas the subdividers in Mikels did not.

These distinctions notwithstanding, the Bateses and the Larks contend that

Mikels, supra, 232 Cal.App.3d 334 controls and compels a reversal. First, they assert that the element of the implied easement test that requires the owner of the property to draw up a map dividing the property into lots encumbered by roads and to thereafter sell the lots with reference to the map has not been established here because the Currie easement existed years before Martin ever subdivided the property. As we indicated previously, the Bateses and the Larks are unduly preoccupied with the Currie easement. Martin claims under the easement created by the recordation of a parcel map depicting the same, not under the deed by which the Curries acquired an easement they later relinquished.

The Bateses and the Larks also imply that this element of the implied easement test has not been established because the deed by which Bateses acquired their property did not contain a reference to the parcel map the Martins recorded. However, the point of the matter is that when Paul A. Martin conveyed his interest in parcel 2 to Louise M. Martin in 1987, the deed did refer to parcel map No. 58-28. Furthermore, the deed by which the Bateses acquired title made reference to a map recorded in book 242, pages 48 through 50 of parcel maps. Parcel map No. 88-117 was recorded at those pages in 1989. The second page of parcel map No. 88-117 states that it depicts a division of, inter alia, “parcel 2 as shown on [a] map filed in book 58, page 28, [of] parcel maps in the office of the County Recorder of said Orange County.” (Capitalization omitted.) The third page of parcel map No. 88-117 depicts what it describes as a “20’ easement for private road purposes” running along the southerly portion of resubdivided parcel 2.

In short, the Bateses were on notice of the twenty-foot easement due to the fact that the deed by which they acquired title referenced parcel map No. 88-117 which both depicted a twenty-foot easement thereon and made reference to parcel map No. 58-28. The Bateses cite no authority for the proposition that the easement shown on parcel map No. 58-28 was extinguished when the property was further subdivided, particularly when the map accomplishing the further subdivision of the property continued to make reference to parcel map No. 58-28 and a twenty-foot easement. They also provide no authority for the proposition that a deed must continue to refer to an older parcel map once the parcels shown thereon have been further subdivided. In addition, their argument that no implied easement was created in favor of Martin upon recordation of parcel map No. 88-117, because Martin did not then own each of parcels 1, 2, 3, and 4, is misplaced. The implied easement arises out of parcel map No. 58-28.

The Bateses and the Larks have additional arguments as to why there can be no implied easement. They insist that the requirement that the use giving rise to the easement “‘“shall have been . . . so obvious as to show that it was intended to be permanent . . .”’” is not satisfied. (Mikels, supra, 232 Cal.App.3d at p. 357.) Not so. The recorded parcel map No. 58-28, as noted above, is one method of making the easement obvious; that is to say, it provides constructive notice. In other words, “the roadways are obvious (on the map) and by . . . the fact of the sales of lots clearly intended to be permanent . . . .”^[4] (Id. at p. 358.)

Indeed, Richard Bates testified that he read his preliminary title report before purchasing his property. The report described the property by reference to the map recorded in book 242, pages 48 through 50 of parcel maps in the office of the Orange County, California Recorder. That map (parcel map No. 88-117), as we have previously discussed, reflects an easement for roadway purposes across the southerly twenty feet of the property. Thus, not only did the recorded maps provide constructive notice of the easement, but in addition, the preliminary title report put Richard Bates on notice to enquire as to the content of parcel map No. 88-117.

The Larks, in fact, had actual notice of the existence of the easement before purchasing their property. At trial, Charlotte Lark testified that she knew when they bought parcel 4 that there was an easement across the southerly twenty feet. In fact, there was a fence that separated the easement line from the southerly property line. She believed the easement to be for road and utility purposes. Bradley Lark testified that before they purchased the property, the realtor informed them that the property was subject to an easement. Indeed, the realtor said that the property was larger than it looked, because it actually extended beyond the fence that marked the easement area. Bradley Lark further testified that before they purchased their property, he looked at the plot plan and saw that it showed a dashed line indicating the twenty-foot southerly easement. He also said that the first or second day they lived on the property, when they were moving in, Martin told them he had an easement on the south side.

The record shows no shortage of notice to the purchasers of the properties in question. This evidence pertaining to notice notwithstanding, the Bateses and the Larks assert “that Martin never intended the . . . easement to become part of a master plan by which all parcels . . . would become part of [an] expressed design permitting free movement through and between all parcels . . . .” The record shows substantial evidence to the contrary, however. Martin specifically testified that when he recorded parcel map No. 58-28, it was his intention to create easements in favor of all four parcels. He made clear that he intended for each one of the easements, including the southerly one, to be used for the benefit of each of the parcel owners. In addition, where his personal objectives were concerned, Martin testified that he planned to build a new house on parcel 3 and that he intended to have a road easement between parcel 1 and parcel 3, to connect up the parcels of his estate. He said he planned it that way for 20 or 30 years.

Despite Martin’s testimony, the Bateses and the Larks contend that other evidence indicates a different intent. They point to evidence showing that, over the years, Martin permitted trees to be planted in the easement area and a utility pole to be placed within it as well, and that the easement is overgrown and impassible for road purposes. In addition, they assert that Martin put a dog kennel, a trailer and an alfalfa lean-to on a portion of the easement area. Also, they cite evidence indicating that Martin placed a retaining wall across a portion of the easement area, near Mohler Drive. Martin explained that he built the retaining wall near Mohler Drive after a flood and that, in any event, to the extent the wall blocked access to Mohler Drive that made no difference because one would have to traverse a “deadly curve” to access that street.

In any event, the evidence indicating that the southern easement has not yet been developed as a roadway does not mean that the easement does not exist. “Trees planted on a way may indicate nothing more than the property owners’ intent not to use the way as a way until some time in the distant future . . . .” (Tract Development Services, supra, 199 Cal.App.3d at p. 1385.) The same goes for the other items of evidence showing that the easement area has not yet been developed into a passable roadway. While one may argue that the evidence shows a lack of intent on the part of Martin to preserve the easement for roadway purposes, there is contrary evidence in the form of Martin’s own testimony as to his intentions with respect to the easement.

“The trial court’s decision is predominantly based upon questions of credibility, weighing conflicting evidence and drawing reasonable inferences from the voluminous evidence presented. Our role as a reviewing court is well known. We resolve all evidentiary conflicts in favor of the prevailing parties, and indulge all reasonable inferences possible to uphold the trial court’s findings. [Citation.] Our power ‘“ . . . begins and ends . . . ”’ with a determination whether any substantial evidence exists, contradicted or uncontradicted, which will support the findings. [Citation.] This court is without power to substitute its deductions for those of the trial court when the trial court could reasonably deduce two or more inferences from the facts. [Citation.] The testimony of a witness, even though a party, may be sufficient to support the trial court. [Citation.]” (Jordan v. City of Santa Barbara (1996) 46 Cal.App.4th 1245, 1254-1255.)

In this case, Martin’s own testimony, together with the parcel map he recorded, provide substantial evidence in support of the court’s implied determination that Martin intended to make easements for roadway purposes available to the owners of each of the four parcels. Despite the protestations of the Bateses and the Larks to the contrary, these items also provide substantial evidence in support of the court’s implied determination that the easement is reasonably necessary to the beneficial enjoyment of the subdivided land. As stated above, the recordation of a map satisfies the reasonable necessity prong of the implied easement test because “the easements are reasonably necessary to the lot owners’ beneficial enjoyment of their land, in that they enable the owners to move freely among and between the various lots within the subdivision as well as onto the adjoining city streets.” (Mikels, supra, 232 Cal.App.3d at p. 358.)

Of course, the court in Mikels, supra, 232 Cal.App.3d 334 cautioned that the rules applied when an easement appurtenant to a purchaser’s lot is at issue may be different from the rules applied when the easement at issue is a purported reservation in favor of the party recording the map. (Id. at pp. 359-360.) Indeed, it stated that “a court may refuse to find an implied easement in favor of the grantor even though the circumstances surrounding the conveyance would be sufficient to justify an implied grant had the grantor conveyed the dominant tenement.” (Id. at p. 360.) In the case before us, however, the court did not refuse to find an implied easement. It heard the Bateses’ and the Larks’ evidence and concluded that an implied easement in favor of Martin had indeed been created. Again, substantial evidence supports this determination.

(4) Expert witness testimony

Next, the Bateses and the Larks contend that the court abused its discretion in relying upon the testimony of Martin’s expert witness, Keith Pearson, when that witness was called out of order during their case-in-chief. The reporter’s transcript reflects that the Bateses and the Larks consented to the witness being called out of order, so they have no grounds to complain about that. However, the order in which the witness was called does not appear to be their primary complaint.

When Pearson, a title insurance expert, was called to testify, the plaintiffs objected. They asserted that he should not be testifying as to the legal effect of parcel map No. 58-28, because it was the court’s role to make that determination. The court overruled the objection, stating that the issue was not whether Pearson’s testimony was admissible, but rather the weight to be given to it. Inasmuch as the Bateses and the Larks do not cite authority for the proposition that the testimony was inadmissible, they waive any argument to that effect. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)

Pearson stated that parcel map No. 58-28 showed twenty-foot wide private road easements running along the southern boundaries of parcels 2, 3, 4 and a portion of parcel 1. He explained that the easements continued along the eastern boundaries of parcels 3 and 4 and along the northern boundaries of parcels 2 and 3, connecting up to Martin Place. Pearson also testified that in order for the easements to come to life, the parcel map had to be recorded and one parcel needed to be deeded out by the subdivider. He also said that each of those conditions had occurred, so that each parcel owner, including Martin, had come to have an easement as reflected on the map.

The Bateses and the Larks insist that the court should not have relied on this testimony in reaching its decision. They contend that Pearson’s testimony was contrary to evidence supporting their claim that the reason the southerly easement was shown on parcel map No. 58-28 was to document the existing easement in favor of the Curries, not to create a private roadway easement appurtenant to each of the four parcels. The Bateses and the Larks state that, according to Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, the court was required to accept as true the evidence most favorable to themselves as plaintiffs and to disregard conflicting evidence. In other words, they maintain that the court was bound to accept their characterization of the evidence and to disregard Pearson’s opinion to the contrary.

As we indicated at the outset, however, the Bateses and the Larks are relying on the wrong standard of review. Alpert v. Villa Romano Homeowners Assn., supra, 81 Cal.App.4th 1320 expressed the standard of review applicable when a judgment is entered upon the granting of a motion for nonsuit following the close of the plaintiffs’ case-in-chief. (Id. at p. 1327.) As we have already made clear, what we have here is a motion for judgment following the close of the plaintiffs’ case-in-chief. Code of Civil Procedure section 631.8 requires the court to weigh the evidence and does not require that the court accept as true the evidence most favorable to the plaintiff. (Jordan v. City of Santa Barbara, supra, 46 Cal.App.4th at p. 1255.)

True, some of the documentary evidence could support the theory that the depiction of the southerly easement as shown on parcel map No. 58-28 was simply a historical reference to an existing easement, not intended to create new easement rights in persons not originally parties to the existing easement. However, Pearson’s testimony supported the position that the depiction of the roadway easements on recorded parcel map No. 58-28 served to create access easements for the owners of each of the four parcels, once the first of those parcels was conveyed. This testimony is consistent with the rules of law expressed in Tract Development Services, supra, 199 Cal.App.3d 1374 and also with the testimony of Martin himself as subdivider. The court was at liberty to consider all of this evidence, not just the evidence favorable to the Bateses and the Larks. (Jordan v. City of Santa Barbara, supra, 46 Cal.App.4th at p. 1255.) The court’s ruling will not be reversed when, as here, its findings are supported by substantial evidence. (Ibid.)

(5) Remand for determination of damages

The Bateses and the Larks request that if this court determines that Martin has no easement interest in their properties, the case be remanded to the trial court for further proceedings to determine the damages caused when Martin entered the easement area. Because we have determined that Martin does have an easement interest, we decline to grant the Bateses’ and the Larks’ request.

III

DISPOSTION

The judgment is affirmed. Martin shall recover his costs on appeal.

MOORE, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.

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^[1] Code of Civil Procedure section 631.8, subdivision (a) provides in pertinent part as follows: “After a party has completed his presentation of evidence in a trial by the court, the other party . . . may move for a judgment. The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party . . . , or may decline to render any judgment until the close of all the evidence. The court may consider all evidence received, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party. . . .”

^[2] The Bateses’ parcel, although designated “parcel 2” on parcel map No. 88-117, is apparently only a portion of the original “parcel 2” as shown on parcel map No. 58-28. The ownership of the remaining parcels comprising the original “parcel 2” as shown on parcel map No. 58-28 is unknown to us and irrelevant in any event.

^[3] The recording information and many of the notations on the copy of the record of survey as contained in the record on appeal are unclear.

^[4] In their reply brief, the Bateses and the Larks note that the Martins did not sign parcel map No. 58-28, although the surveyor’s certificate states that the map was prepared at the request of Paul Martin. Without quoting the provision, the Bateses and the Larks raise the issue of the effect of former Business & Professions Code section 11625, and argue that, under that provision, no easement interests arose on the recordation of the map because the property owners did not sign it. We decline to address this issue inasmuch as it was raised for the first time in the Bateses and Larks’ reply brief. (Akins v. State of California (1998) 61 Cal.App.4th 1, 17, fn. 9.)