NB:
Attorney Paul Ayers has sent this letter to the
neighbors who have effected the closure of the El Prieto
Fire Road on a canyon in the Arroyo Seco watershed.
June
18, 2002
Wayne
and Mary Traylor
4549
El Prieto Road
Altadena
CA 91001-3733
Re:
El Prieto Fire Road Closure
Our
File No.: 7103
Dear
Mr. and Mrs. Traylor:
I
have been retained to investigate and offer an opinion
regarding the legality of the closure of lower El Prieto
Fire Road ("the fire road"), which took place
in or around July 1999 ("1999 closure"). It is
my understanding that you, and two of your neighbors,
along with Lincoln Avenue Water Company, combined to
effect the closure.
The
purpose of this letter is to seek your input regarding
the closure. First, I will present you with the facts
regarding creation and use of the fire road, and of the
1999 closure, as I presently understand them, and then,
how I believe that the law would apply to these facts.
If, after review of this material, you find that I have
omitted anything, or am otherwise in error, I would ask
you to contact me and tell me how I am incorrect. I have
no preconceived notions or conclusions as to the whether
the closure was legitimate or not; with your help, I can
advise my clients as to what course is legally
appropriate.
I.
FACTUAL BACKGROUND:
The
history of the fire road begins with the arrival in
Pasadena of two sons of the abolitionist John Brown,
Jason and Owen Brown. Jason, along with the Browns’
sister, Ruth Thompson’s, family, moved to the Pasadena
area in 1884. Owen followed in 1885. Owen was the more
notorious of the two, having actually taken part in (and
survived) the famous Harpers Ferry Raid which was one of
the flash-points igniting the Civil War. In the 1880's,
Pasadena was home to a large number of well-off Union
veterans, and Owen and his brother became local
celebrities.
In
or around 1886, Owen and Jason, tiring of in-town life
began farming on cleared land in Las Casitas, a sloping
plateau between Millard and El Prieto Canyons, which is
now the site of "The Meadows" housing
development. Their real interest, however, was in hiking
and exploring the San Gabriels, and in attempting to
have one of the prominent peaks in the front range named
for their father. Ultimately, the "hump-back"
behind Las Casitas was christened Brown Mountain.
In
or around 1887, the brothers sold their interest in Las
Casitas and homesteaded a small plot at the head of El
Prieto Canyon. The brothers built a cabin at the current
site of the western-most of the two houses owned by
Theodore Clark at the top of the Risinghill Road
extension. They simultaneously built a wagon road to the
cabin. The research thus far indicates that this road is
the same road that currently runs from the end of El
Prieto, past the Clark structures and continues
thereafter into the Angeles National Forest
In
January 1889, Owen Brown contracted pneumonia, and died.
Jason ultimately moved back to his family home in Ohio,
and died there in 1904.
My
research indicates that wagon road built by the Brown
brothers, which eventually became the El Prieto Fire
Road, was in open and continuous use by pedestrians and
bicyclists, without interference, up until the closure
of the lower part of the road in July 1999. In July
1999, all access from the Meadows was blocked with a
6+’ fence and gate, erected in combination by Wayne
and Mary Traylor, Jerome and Verna Cooper and John and
Melody Mitchell, and with the permission and compliance
of Lincoln Avenue Water Company
II.
LEGAL ANALYSIS:
Under
California common law a prescriptive easement for public
access is established by five years of continuous use by
the public, under circumstances sufficient to place the
owner of the property on notice that the use was being
made. See, e.g., Union Transp. Co. v. Sacramento
County (1954) 42 Cal.2d 235, 241. With regard to the
El Prieto Fire Road, given a fully developed fire
road/trail, a well known historic site and over 100
years of continuous use, I believe the requirements of
the common law, for a finding of a prescriptive
easement, are easily met. See, e.g. Gion v. City of
Santa Cruz (Consolidated with Dietz v. King)
(1970) 2 Cal.3rd 29 (Gion-Dietz).
Following
the Gion-Dietz decision, the legislature, in an
attempt to protect the rights of private property,
passed, inter alia, Civil Code Section 1009. This
statute makes it extremely difficult for a public
easement to be created on private property, if the
easement was not established prior to March 4, 1972. See,
Friends of the Trails v. Blasius (2000) 78 Cal.
App. 4th 810, 823 [Section 1009 only
applies prospectively, not to access created before its
enactment]. Obviously, if this matter continues to
litigation, it will be plaintiffs position that a public
easement on the fire road was created in the 19th
century, and that the closure can be reversed by an
action to quiet title. It should be noted that, pursuant
to Friends of the Trails, supra, the parties that
effected the closure could be liable for plaintiffs
attorney’s fees pursuant to C.C.P. Section 1021.5
In
order to extinguish an easement for public access,
generally speaking, access has to be denied for the same
amount of time it takes to create the access, i.e., five
years. See, Sevier v. Locher (1990) 222 Cal. App.
3d 1082. Accordingly, any party wishing to reverse the
closure has until July 2004 to bring a quite title
action.
III.
CONCLUSION:
As
stated above, I am interested in any response you may
have to the facts and legal analysis presented above. If
I do not hear from you within 30 days, I will assume
that you have nothing to add to the material presented.
Thank
you for your consideration and cooperation in this
matter.
Very
truly yours,
LAW OFFICES OF MICHAEL THOMAS
PAUL
R. AYERS
