Opinion
This case concerns a conflict over the use of a parcel, “Parcel B,” owed by plaintiff M.F. Farming Co. (MF) but subject to an easement that plaintiff had granted to defendant Couch Distributing Company, Inc. (Couch Distributing), decades earlier along with two adjoining parcels, “Parcel A” and “Parcel C.” Parcel B is an approximately 60-foot-wide strip of land, which plaintiff MF retained, over which defendant Couch Distributing was granted “a nonexclusive right of way for ingress and egress and for all utility purposes.” Over the years, the distributing business of defendant Couch Distributing was built on the adjoining parcels and the easement was used as an essentially private road to service the business. More recently, plaintiff
Plaintiff MF appeals from an order granting an anti-SLAPP motion brought by defendant Couch Distributing as to three causes of action: slander of title (second cause of action), cancellation of cloud on title (third cause of action), and injunctive relief (fourth cause of action) pursuant to Code of Civil Procedure section 425.16.
I
Relevant Procedural History
On May 18, 2010, plaintiff MF filed a complaint for quiet title, slander of title, cancellation of cloud on title, and injunctive relief.
On July 30, 2010, defendant Couch Distributing filed a special motion to strike (anti-SLAPP motion) pursuant to section 425.16 requesting that the court strike the complaint’s second and third causes of action. The declaration of George W. Couch, III (George Couch or Couch), the president and chief executive officer of defendant Couch Distributing, was filed in support of the anti-SLAPP motion.
By request filed on July 30, 2010, defendant Couch Distributing requested that the court take judicial notice of certain recorded documents or maps.
On September 13, 2010, plaintiff filed a first amended complaint for quiet title, slander of title, cancellation of cloud on title, and injunctive relief.
On October 1, 2010, defendant Couch Distributing filed an amended notice of its anti-SLAPP motion to strike the second, third and fourth causes of action of the first amended complaint. The court was asked to refer to the previously filed declaration of George Couch, which was attached.
On October 14, 2010, defendant Couch Distributing filed the second amended notice of its anti-SLAPP motion.
On November 2, 2010, defendant Couсh Distributing filed a supplemental declaration of George Couch. It also filed hearsay objections to Jemison’s declaration.
On November 9, 2010, defendant Couch Distributing filed the third amended notice of its anti-SLAPP motion.
On November 17, 2010, plaintiff MF raised certain evidentiary objections and filed supplemental declarations together with correspondence.
On December 6, 2010, plaintiff MF filed the declaration of Charles D. Eadie, a land use consultant, and a supplemental declaration of Jemison.
On December 14, 2010, the court heard the anti-SLAPP motion. By order filed January 5, 2011, the court granted defendant Couch Distributing’s anti-SLAPP motion. It concluded that the second, third, and fourth causes of action of the first amended complaint arose from protected activities and plaintiff MF failed to establish a probability that it would prevail on any of those causes of action and dismissed them without leave to amend.
On January 27, 2010, defendants Couch Distributing and Couch Family Partnership filed a cross-complaint for quiet title, declaratory relief, and injunctive relief.
Also on January 27, 2010, defendants Couch Distributing and Couch Family Partnership filed an answer to plaintiff’s first amended complaint.
Facts
In deciding an anti-SLAPP motion, courts must “consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).)
The first amended complaint alleged the following. Plaintiff MF and defendant Couch Distributing entered into a written agreement in about November 1974 in which MF agreed to sell Parcels A and C to defendant Couch Distributing and to grant the company ingress and egress over Parcel B. These parcels were on the ocean side of and abutted Highway 1. By grant deed recorded on June 5, 1975, plaintiff MF granted two parcels, Parcel A and Parcel C, to defendant Couch Distributing and also granted it “a nonexclusive right of way for ingress and egress and for all utility purposes ovеr Parcel B.” Defendant Couch Distributing purchased Parcel A for purposes of constructing and operating its Budweiser distribution center. Defendant Couch Distributing subsequently “sold or otherwise transferred Parcels A and C” to the Couch Family Partnership, which leases the parcels to Couch Distributing.
This complaint stated on information and belief that “on a parcel map dated December, 1979, as well as subsequent parcel maps submitted to the City of Watsonville by Couch [Distributing] as part of its application for building permits, Couch [Distributing] knowingly showed parcel B as a right of way rather than as a separate parcel in order to obtain permits which were otherwise not legal.” At some unspecified time, defendant Couch Distributing constructed a railroad spur across Parcel B to its rear loading dock. It also created “minor encroachments on the edges of Parcel B, including trees, lights and lamp posts,” which were discovered by plaintiff MF in about 1984.
The complaint further stated that plaintiff MF now desires to develop and use its property that abuts the inland side of Highway 1 and intends to use Parcel B for access. Couch Distributing contends that MF “has in some manner lost the right to use Parcel B for ingress and egress . . . .”
The slander of title cause of action alleged that, “on or about June 20, 1988 and June 1, 1998 and possibly on various dates thereafter,” defendant Couch Distributing published, without privilege or justification, false maps and plot plans that cast doubt on plaintiff’s title. The cancellation of cloud on title
In his declaration in support of the anti-SLAPP motion, George Couch stated that since its purchase of the parcels, defendant Couch Distributing “has built, developed, and operated a major regional beverage distribution warehouse and related facilities and operations” on its parcels. A copy of a parcel mаp, recorded December 26, 1979, was attached to Couch’s declaration and he stated on information and belief that this map was the December 1979 parcel map referred to in the complaint.
According to George Couch, at the time of the property purchase and “continuing for many years thereafter, both [plaintiff MF] and Couch Distributing and their respective principles [sic], understood and intended that Couch Distributing would develop Parcel B as the main entrance to its warehouse operations and [it] would have unobstructed use of Parcel B for purposes of ingress, egress, loading, turning, backing, and parking of large beverage delivery trucks, as well as for railroad access, employee parking, storage, and for any and all such similar uses related to [its] warehouse and distribution operations (‘Easement Purposes’).” The Couch declaration further stated that “Couch Distributing has developed and paved Parcel B as the main entrance to its warehouse operations and has had unobstructed use of Parcel B .... In addition, Couch Distributing has enclosed substantially all of Parcel B and the Couch Property with a security fence and gates which Couch Distributing keeps closed and locked after hours. For nearly 35 years Couch Distributing has had continuous, unrestricted use of Parcel B at all hours of the day and night . . . .”
George Couch further stated that, in about May 2008, he became aware of an administrative process pending in the City for the adoption of a specific plan to develop a light industrial/business park and residence on plaintiff MF’s property and the adjacent property on the inland side of Highway 1. The proposed specific plan for the proposed development provided for “a
Couch disclosed that defendant Couch Distributing had opposed the use of Parcel B as a public access road in the City’s administrative proceedings. George Couch or defendant Couch Distributing’s attorney appeared at several noticed hearings to testify in opposition to the road and the attorney also wrote two letters to the City expressing the company’s strong opposition to the road.
The second letter from Couch Distributing’s attorney, dated April 27, 2010, informed the City that defendant Couch Distributing had used Parcel B as “an integral part of the Company’s operations” and it had “broad legal rights to use Parcel B,” which “serves as the main entrance to the Company’s warehouse and offices for large delivery trucks, Company employees, and persons having business with the Company.” The letter further stated: “Parcel B and the surrounding Company property are used for a variety of intensive uses related to the Company’s warehouse and distribution operations, including employee parking, storage, and large truck turning, backing, loading, unloading, and parking. The Company developed a railroad spur over Parcel B to serve its warehouse and has enclosed Parcel B and most of the Company’s property with a security fence and gates, which the Company keeps closed and locked after hours. Consistent with the Company’s rights to Parcel B, the Company has had continuous, unobstructed, and virtually unfettered use of Parcel B for its operations at all hours of the day and night for the past 35 years.”
The Couch declaration, together with a copy of an attached staff report prepared for the May 4, 2010 hearing of the City of Watsonville’s Planning Commission, showed that City staff had recommended to the commission that the commission recommend approval of the Manabe-Ow Specific Plan to the City Council. The staff report stated: “The original concept of the plan considered a third access along an existing property owned by MF Farming across the Couch Distribution [sic] property. Couch Distribution [sic] has an easement for access to his distribution business over this property.” The City had tried to resolve “significant legal issues” concerning use of that property as an access route to the proposed development but its efforts had been unsuccessful.
George Couch reported in his declaration that, following the public hearing at the May 4, 2010 planning commission meeting, the planning commission
In his declaration, George Couch claimed that he had consistently acknowledged MF’s fee ownership of Parcel B. He provided a survey map, recorded in 1999 in Santa Cruz County, showing a boundary adjustment of the original Parcel A. The name “MF Farming Co.” appears on Parcel B.
Couch also referred to a letter, dated July 31, 2008, from defendant Couch Distributing’s attorney to MF’s attоrney. In that letter, it was asserted that defendant Couch Distributing had “never denied [plaintiff MF] access to the MF Parcel known as Parcel B” and never denied that “MF has a right to make certain uses of Parcel B in a manner that does not unreasonably interfere with the Company’s easement rights to Parcel B, as those rights are established by the recorded easement and by the Company’s historic pattern of use of Parcel B.” The letter stated that, based on MF’s representations, defendant Couch Distributing understood “Parcel B would be used only for an emergency access road to MF property across Highway 1 if and when the need for such emergency access arose from the development of that property.” The company claimed to have relied on those representations in purchasing the property and developing its facilities. The letter indicated that a key to Couch Distributing’s security gates on Parcel B was enclosed as requested.
George Couch also stated that MF had represented that it “would use Parcel B, if ever, only for emergency access to the M.F. Farming Parcels if and when [its parcels] were ever developed” and MF would not otherwise “use Parcel B in any way that would interfere with Couch Distributing’s warehouse and distribution operations . . . .” He asserted that MF had “made negligible use of Parcel B and ha[d] not interfered with Couch Distributing’s use of Parcel B for Easement Purposes for the past 35 years.” He indicated that “Suyeo ‘Soup’ Manabe” had negotiated the sale of Parcels A and C on MF’s behalf and repeatedly stated that Parcel B’s “intended use was only for emergency access . . . .” The attorney, who had represented both parties in the transaction, was deceased.
Jemison’s initial declaration indicated that he was then MF’s president. In about November 1974, MF and Couch Distributing entered intо a written
Jemison stated that “[i]n 1984, MF discovered that Couch [Distributing] had constructed minor encroachments on the edges of Parcel B, including trees, lights and lamp posts.” In apparent response to expressed concerns with regard to Parcel B, defendant Couch Distributing’s president wrote a letter to MF, dated December 10, 1984, specifying that Couch Distributing had no claims to the property by prescriptive rights or adverse possession. On or about June 29, 1985, Couch Distributing and MF executed a licensing agreement, in which MF granted Couch Distributing “a License to maintain said trees, lights and lamp posts” on the property and clarified that Couch Distributing was “not claiming any prescriptive rights whatsoever by said encroachment nor claiming any rights by adverse possession.” The agreement provided that upon giving written notice terminating the license as provided, Couch Distributing would remove those encroachments at its sole expense.
Eadie’s declaration, filed on behalf of plaintiff MF, stated that he was a land use consultant with the consulting firm of Hamilton Swift and Associates, which had been retained by MF in regard to the proposed Manabe-Ow development project. MF had sought to use Parcel B, which abutted Lee Road and connected to a right-of-way under Highway 1, to create an alternative access route to the proposed development. In reviewing dоcuments related to Parcel B in the City’s microfiche files in July 2009, Eadie discovered two documents that Couch Distributing had filed with the City: (1) a site plan dated June 20, 1985, and (2) a site plan dated June 1, 1998, copies of which were attached to his declaration.
Eadie stated that the 1985 site plan depicts Parcel B as an existing easement on Couch Distributing’s property and shows improvements constructed on Parcel B. Eadie made similar assertions with respect to the other site plan. Eadie indicated that “[i]n past discussions with representatives of
In a supplemental declaration, Jemison indicated that he had served as MF’s president until December 1, 2010. According to Jemison, plaintiff MF retained ownership of Parcel B when it sold Parcels A and C to defendant Couch Distributing and the “sole reason MF retained Parcel B” was to use it “as access to its adjoining property at such time as MF sought to develop such property.” He describes the Manabe-Ow project as a multimillion dollar project that includes development of an industrial park with approximately 1,000,000 square feet of industrial flex buildings and 25,000 square feet of commercial/retail space.
According to Jemison, during his interactions with the City concerning the development project, staff members referred to defendant Couch Distributing as the owner of Parcel B. The first time he recalled “the City referring in writing to Parcel B as a right-of-way rather than fee ownership was in 2006 in the Annexation agreement between the City and MF.” The agreement required the Manabe family, the primary owners of MF, to “grant to City a public pedestrian/bicycle and emergency access easement over the current access right-of-way extending westerly to Lee Road subject to existing deed restrictions.” Jemison stated that, after Eadie provided him with copies of the two site plans, he “realized for the first time the apparent source for the City’s confusion regarding the ownership of Parcel B.” Jemison maintained that “no aspect of the Ow/Manabe Specific Plan or the proposed Industrial Park . . . challenges the validity of any permit granted to Couch [Distributing].”
Jemison declared that “[n]ot only has Couch [Distributing] filed documents claiming ownership of Parcel B, but it has asserted that MF only has the right to use Parcel B for emergency access rather than for ingress and egress of all kinds as contractually agreed upon in the purchase agreement . . . .” According to Jemison, this contention “creates a significant impediment to MF’s ability to develop its adjoining property, significantly impairs the market value of Parcel B, and creates a cloud on its title since there is no practical use for Parcel B except for providing access to MF’s adjoining property.”
According to Jemison, the City had “requested that MF remove Parcel B from the Manabe/Ow Specific Plan as an alternative access to its planned industrial park due to the uncertainty regarding the ownership status and
III
Discussion
A. Legal Background
“A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1), italics added.) “The analysis of an anti-SLAPP motion thus involves two steps. ‘First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one “arising from” protected activity. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.’ (City of Cotati v. Cashman (2002)
Section 425.16 does not require a defendant to “demonstrate that the plaintiff brought the cause of action complained of with the intent of chilling the defendant’s exercise of speech or petition rights.” (Equilon Enterprises v. Consumer Cause, Inc., supra,
“We review an order granting or denying a motion to strike under section 425.16 de novo. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 [
1. Protected Activities
The activities protected by the anti-SLAPP statute include “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the сonstitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e).) “[A] defendant moving to strike a cause of action arising from a statement made before, or in connection with an issue under consideration by, a legally authorized official proceeding need not separately demonstrate that the statement concerned an issue of public significance.” (Briggs v. Eden Council for Hope & Opportunity (1999)
“[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation.] Moreover, that a cause of action arguably may have been ‘triggered’ by protected activity does not entail that it is one arising from such. [Citation.] In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant’s prоtected free speech or petitioning activity. [Citations.]” (Navellier v. Sletten, supra,
2. Stricken Causes of Action
Although defendants’ opposition to the City’s approval of Parcel B as an access road to the Manabe-Ow development might have been a trigger for the lawsuit, those activities were not the basis for the challenged causes of action. The complaint’s second and third causes of action concerned defendant Couch Distributing’s publication of allegedly false maps and documents. In the declarations submitted in opposition to the anti-SLAPP motion, plaintiff MF focused on the two site plans.
MF recognizes that the “site plans were submitted to the City of Watsonville as part of the development of [Couch Distributing’s] property.” Since the site maps were apparently submitted to the City in connection with its permitting
MF nevertheless argues that publication of each of these site plans was not a protected activity because each “falsely claim[ed]” that defendant Couch Distributing “owns Parcel B rather than merely having an easement therein.” “It is MF’s position that fraudulently claiming ownership of another[] person[’]s property is not within the free speech rights intended by the legislature to be protected by the SLAPP legislation.” MF contends that “[t]he gravamen of this property dispute is based upon Couch [Distributing]’s filing of allegedly fraudulent documents, not any right of free speech.” Case after case makes clear that the validity of the speech or petitioning activity is ordinarily not a consideration in analyzing the “arising from” prong.
In Hansen v. Department of Corrections & Rehabilitation (2008)
In DuPont Merck Pharmaceutical Co. v. Superior Court (2000)
In Fox Searchlight Pictures, Inc. v. Paladino (2001)
In Navellier v. Sletten, supra,
This is not a case where the defendant conceded, or the evidence conclusively established, that the assertedly protected speech or petition activity was “illegal as a matter of law” and, therefore, the defendant was “precluded frоm using the anti-SLAPP statute to strike the plaintiff’s action” under Flatley v. Mauro (2006)
The fourth cause of action for injunctive relief appears to be predicated on both protected activity and unprotected activity. It incorporated the previous allegations and alleged that “[defendants have blocked plaintiff from the free use of its property and threaten to continue and block such use in the future.” It further alleged that “[defendants’ wrongful conduct, unless and until enjoined and restrained by order of this court will cause great and irreparable injury to plaintiff, in that plaintiff is restricted in the use of his property The prayer for relief requests a permanent injunction “enjoining defendants . . . from interfering with plaintiff’s use of Parcel B, including but not limited to plaintiff’s use of Parcel B as access to the industrial property.”
To the extent that the injunctive relief cause of action arises from defendant Couch Distributing’s protected speech and petitioning activities, it satisfies the first prong. But insofar as the cause of action arises from overuse of the easement or the alleged encroachments and other physical interference with MF’s property rights with respect to Parcel B, it does not arise from protected activities. Since the protected activity is not merely incidental, the first prong is satisfied and the burden shifts to plaintiff MF to show a probability of success on the merits. (See, e.g., Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010)
C. Second Prong—Probability of Success
1. Basic Principles
“In order to establish a probability of prevailing on the claim (§ 425.16, subd. (b)(1)),... the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff
2. Slander of Title—Second Cause of Action
MF did not show any probability of prevailing on the merits on the slander of title cause of action. “The elements of a cause of action for slander of title are ‘(1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss.’ [Citations.]”
“Slander of title is effected by one who without privilege publishes untrue and disparaging statements with respect to the property of another under such circumstance[s] as would lead a reasonable person to foresee that a prospective purchaser or lessee thereof might abandon his intentions. (Rest.,
The Supreme Court has recognized: “If the matter is reasonably understood to cast doubt upon the existence or extent of another’s interest in land, it is disparaging to the latter’s title where it is so understood by the recipient. (Rest. Torts, § 629.)” (Gudger v. Manton, supra, 21 Cal.2d at pp. 542-543, disapproved on another point in Albertson v. Raboff (1956)
Plaintiff never disputed that the parcel map that was recorded on December 26, 1979, was the December 1979 parcel map referred to in the complaint. That parcel map reflected a subdivision of Parcel A (previously granted to defendant Couch Distributing) into two smaller parcels. Parcel B is labeled as such and is also marked as a 60-foot right-of-way. The parcel map did not concern ownership of, or rights with respect to, Parcel B.
The two later site plans submitted by defendant Couch Distributing to the City show the parcel’s boundaries but do not label it as Parcel B or specify its owner. The June 20, 1985 site plan labels the area as an “existing easement” and the 1998 site plan leaves it unlabeled. But the site plans concerned building additions (an office addition and a warehouse addition) on defendant Couch Distributing’s land, not on Parcel B.
Even if any of the published documents could be reasonably understood by a third party as casting doubt on MF’s title to Parcel B, MF did not present any evidence of proximately caused pecuniary loss, an essential element of the cause of action. (See Burkett v. Griffith (1891)
MF nevertheless argues that the essential element of pecuniary loss is satisfied because he is entitled to recover the expense of legal proceedings necessary to remove a cloud on title, citing Wright v. Rogers (1959)
3. Cancellation of Cloud on Title—Third Cause of Action
Suits to remove a cloud on title by judicial cancellation of an instrument or adjudication that the instrument is invalid are preserved by Civil Code section 3412. (Castro v. Barry (1889)
“A suit to quiet title must be distinguished from an action to remove a cloud on the title alleged to have been created by a designated instrument. In a suit to remove a cloud the complaint must state facts, not mere conclusions, showing the apparent validity of the instrument designated, and point out the reason for asserting that it is actually invalid. [Citations.]” (Ephraim v. Metropolitan Trust Co. (1946)
In any case, MF has not presented any evidence that the recorded December 1979 parcel map concerning subdivision of Couch Distributing’s property or either of the two unrecorded site plans concerning building additions on Couch Distributing’s property was legally void or voidable and, if not cancelled, threatens plaintiff’s title in Parcel B. Plaintiff has not met its burden of showing a probability of prevailing on the cause of action to “cancel the cloud on title.”
4. Injunctive Relief—Fourth Cause of Action
Defendant Couch Distributing argues that to prevail on the cause of aсtion for injunctive relief, plaintiff MF “must show a likelihood of prevailing on the merits of the second and third causes of action for slander of title and cancellation of cloud on title on which [its] claim for injunctive relief is based.” The language of the fourth cause of action is not so restrictive.
It alleged that “[defendants have blocked plaintiff from the free use of its property . . . .” It averred that plaintiff MF “has no adequate remedy at law for the injuries being suffered in that it will be impossible for plaintiff to determine the precise amount of damage that it will suffer if defendants’ conduct is not restrained and plaintiff will be forced to institute a multiplicity of suits to obtain adequate compensation for its injuries.” (See Civ. Code, § 3422; Code Civ. Proc., § 526.)
Defendant Couch Distributing evidently is asserting that plaintiff MF, the servient tenement owner, is entitled to use Parcel B for only emergency access to its property across Highway 1, a limitation not cоntained in the grant deed.
An injunction may be a proper remedy in connection with a quiet title action (see Brewer v. King (1956)
“The plaintiff need only establish that his or her claim has ‘minimal merit’ (Navellier v. Sletten, supra, 29 Cal.4th at p. 89) to avoid being stricken as a SLAPP. (Jarrow Formulas, Inc. v. LaMarche [(2003)] 31 Cal.4th [728,] 738 [
DISPOSITION
We reverse the order granting the special motion to strike the first amended complaint’s second, third and fourth causes of action under Code of Civil Procedure section 425.16. Upon remand, the court is directed to enter an order granting the motion as to only the cause of action for slander of title
Rushing, P. J., and Premo, J., concurred.
Notes
All further statutory references are to the Code of Civil Procedure unless otherwise stated. SLAPP is an acronym for “strategic lawsuit against public participation.” (Equilon Enterprises v. Consumer Cause, Inc. (2002)
Ordinarily, an anti-SLAPP motion is addressed to the current complaint and a plaintiff may not avoid the consequences of the motion by filing an amended complaint. (See Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004)
Defendant Couch Distributing admitted in its answer that defendant Couch Family Partnership currently owns that real property and leases it to defendant Couch Distributing.
The June 1, 1998 site plan is sometimes mistakenly referred to as the 1988 site plan but the exhibit clearly shows the date of June 1, 1998. The other site plan appears undated but Eadie states in his declaration that it was dated June 20, 1985. The complaint repeatedly refers to a publication on June 20, 1988, but this discrepancy is not explained. Defendants now raise evidentiary objections to the site plans, including the objection that they are incomplete copies. Defendants have not shown that these objections were preserved for appeal by objection below. (See Evid. Code, § 353.)
Publication does not require recordation. (See Seeley v. Seymour (1987)
MF does not challenge Couch Distributing’s permits.
“Where the easement is founded upon a grant, . . . only those interests expressed in the grant and those necessarily incident thereto pass from the owner of the fee. The general rule is clearly established that, despite the granting of an easement, the owner of the servient tenement