Filed 6/28/23 Louderback v. Walking U Ranch CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Plaintiffs’ complaint sought to enforce a right of way 

easement across defendants’ land. Defendants cross-complained 

to quiet title against the claim of easement. The trial court 

awarded judgment to defendants and against plaintiffs. Why? 

Because the easement was terminated by merger. We affirm.

FACTS

This appeal concerns two large parcels of real property in 

rural Santa Barbara County. In 1972, Roger and Willa Morehart 

JOHN R. LOUDERBACK et al.,

 Plaintiffs, Cross-defendants

and Appellants,

v.

WALKING U RANCH, LLC, et 

al.,

 Defendants, Crosscomplainants and Respondents.

2d Civ. No. B318275

(Super. Ct. No. 17CV05630)

(Santa Barbara County)
2

(the Moreharts) owned the Walking U Ranch (the Ranch). The 

Morehart’s children and a daughter-in-law (collectively the

Morehart Children) owned an undivided 25 percent interest in a 

neighboring property known as the “793 Acres.”

In 1972, the Moreharts granted a right of way easement 

(the easement) across the Ranch to the Morehart Children for 

access to the 793 acres. The Morehart Children were the sole 

grantees of the easement, and no other owners of the 793 Acres 

were included in the grant.

In 1972, the Moreharts sold the Ranch to Theodore and 

Katherine Okie (the Okies). In 1973, the Morehart Children sold 

their 25 percent interest in the 793 Acres to the Okies. Theodore 

Okie testified that he and his wife purchased the Morehart 

Children’s 25 percent interest to prevent anyone from claiming a 

right to cross the Ranch.

In 2006, Glen Goldin purchased the Okie’s 25 percent 

interest in the 793 Acres. No easement was included in the 

transfer.

In 2010, Goldin sold the 25 percent interest in the 793 

Acres to John Louderback. Louderback acquired the remaining 

75 percent interest in the 793 Acres in 2013. He subsequently 

transferred co-ownership to his wife, Jacqueline Louderback.

Kathleen March and Patrick Bright acquired the Ranch in 

2010. John Louderback was the managing agent for the entity 

that sold the Ranch to March and Bright. Louderback signed a 

disclosure statement that did not mention the easement. March

and Bright transferred their interest in the Ranch to Walking U 

Ranch, LLC.1

1 Hereafter “the Ranch” includes March, Bright, and 

Walking U Ranch, LLC, collectively.
3

In March 2016, March challenged the Louderbacks’ use of 

the easement. In March 2017, a lock was placed on the northern 

entrance gate to the Ranch, preventing the Louderbacks from 

using the easement.

Lawsuit

After negotiations proved unsuccessful, the Louderbacks 

filed suit against the Ranch. The Louderbacks’ second amended 

complaint includes causes of action for: 1) quiet title to the right 

of way by express easement or in the alternative easement by 

implication, prescription, equity, or necessity; 2) declaratory 

relief; 3) interference with easement; 4) nuisance; 5) slander of 

title; 6) unfair competition and unfair business practices; and 7) 

interference with prospective economic relations.

The Ranch filed a cross-complaint. The second amended

complaint alleges causes of action for 1) quiet title; 2) declaratory 

relief; 3) fraudulent concealment in violation of Civil Code2

section 1102; 4) violation of common law duty to disclose; 5) 

negligent concealment; and 6) financial elder abuse of Bright. 

The matter proceeded to a court trial, at which time the Ranch 

was named the prevailing party.

Statement of Decision

At the Louderbacks’ request, the trial court issued a 

statement of decision. 

At trial the Ranch argued that the easement was only a 

personal right in the Morehart Children that did not transfer to 

their successors. The court did not reach that issue. Instead, the 

court assumed it was a valid easement. The court found, 

however, that the easement had been terminated by merger 

2 All further references are to the Civil Code unless 

otherwise indicated.
4

when the Okies acquired both the Ranch and the Morehart 

Children’s 25 percent interest in the 793 Acres.

The trial court also found that the Louderbacks did not 

carry their burden to prove an easement by necessity, an implied 

easement, prescriptive easement, or equitable easement. The

court found for the Ranch on its causes of action for negligent 

concealment and breach of the common law duty to disclose. But 

the court found that the Ranch suffered no damages. Finally, the 

court found that Bright had not proven his cause of action for 

elder abuse.

Judgment

On the Louderbacks’ second amended complaint, the trial

court gave judgment in favor of the Ranch and decreed that the 

Louderbacks take nothing on any of their causes of action.

On the Ranch’s cross-complaint, the trial court quieted title 

in favor of the Ranch and declared that the Louderbacks and all 

persons unknown have no easement to cross the Ranch and no 

right to enter the Ranch. The court found for the Louderbacks on 

the Ranch’s causes of action for intentional concealment and 

elder abuse. The court awarded costs to the Ranch as the 

prevailing party.

DISCUSSION

I. Merger

The Louderbacks contend the trial court erred in 

concluding that the easement was terminated by merger.

An easement is an interest in the land of another that 

allows the easement owner a limited use of the other’s land. 

(Zissler v. Saville (2018) 29 Cal.App.5th 630, 638; see 12 Witkin, 

Summary of Cal. Law (11th ed. 2017) Real Property, § 396,

p. 454.) The land benefited by an easement is called the 
5

dominant tenement; the land burdened by the easement is called 

the servient tenement. (§ 803.) It follows from the definition of 

an easement as an interest in the land of another that a property 

owner cannot have an easement in his own land. (§ 805 [“A

servitude thereon cannot be held by the owner of the servient

tenement”].) Thus when the same person or persons obtains both 

the dominant and servient parcels, the easement is terminated 

by merger. (§ 811 [“A servitude is extinguished: 1) [b]y vesting of 

the right to the servitude and the right to the servient tenement 

in the same person”]; see 12 Witkin, Summary of Cal. Law (11th 

ed., p. 502.) An easement once terminated by merger does not 

come into existence again merely by severing the united estates. 

(Zanelli v. McGrath (2008) 166 Cal.App.4th 615, 634.)

Here in 1973, the Okies owned both the Ranch (servient 

tenement), and the Morehart Children’s 25 percent interest in 

the 793 Acres, (dominant tenement). The trial court correctly 

concluded that the easement was extinguished by merger.

The Louderbacks argue that the Morehart Children were 

not the sole owners of the easement. They rely on language in 

the easement language in the easement deed allowing use of the 

right of way by “tenants and occupants of the premises now held 

by Grantee.” In context the language applies only to tenants and 

occupants under the Morehart Children’s title. The Morehart 

Children are the only parties listed under “Grantee” in the 

easement deed. The Louderbacks point to no evidence the 

Moreharts intended to benefit anyone other than their children in 

creating the easement. The easement created no rights 

independent of the Morehart Children’s title. All right, title, and 

interest in the Morehart Children’s 25 percent interest was 

transferred to the Okies.
6

The Louderbacks argue that merger does not apply where 

either the dominant or servient tenements are held in 

fractionalized ownership. The argument is supported by neither 

logic nor the law.

As to logic, the Morehart Children were the sole grantees of 

the easement. It was not appurtenant to any other interest in 

the 793 Acres. The Okies acquired full fee simple title to the 

Morehart Children’s 25 percent interest in the 793 Acres. Thus, 

the Okies held full fee simple title to the entire dominant and 

servient tenements. There was no longer any land of another to 

which the easement could remain appurtenant. The easement

was terminated by merger.

As to law, the authorities on which the Louderbacks rely do 

not support their argument.

In Beyer v. Tahoe Sands Resort (2005) 129 Cal.App.4th 

1458, 1473-1478, the Court of Appeal held that merger did not 

apply where the plaintiffs held full title to the dominant 

tenement and only a beneficial interest in an adjoining servient 

tenement with legal title held by a trustee. That is not remotely 

similar to this case. In this case, the Okies acquired full fee 

simple title to both the dominant and servient tenements. 

In Zanelli v. McGrath, supra, 166 Cal.App.4th 615, the 

Court of Appeal concluded that an easement was terminated by 

merger. In so concluding the court stated in dicta: “[E]ven when 

common ownership of a fee simple absolute estate exists in both 

the dominant and servient tenements, that ownership must be of 

the entire dominant and servient tenements and not merely a 

fractional share.” (Id. at p. 629.) The court gave as examples

cases where an easement served more than one parcel. The 

acquisition of less than all of the parcels by the servient owner 
7

did not extinguish the easement as to the parcels not acquired. 

(Id. at p. 629-630, citing Leggio v. Haggerty (1965) 231 

Cal.App.2d 873, 881-884; Cheda v. Bodkin (1916) 173 Cal.7 16-17; 

Crease v. Jarrell (1924) 65 Cal.App. 554, 560.) That is not the 

case here. The Okies acquired fee simple title to all of the 

interest to which the easement was appurtenant. 

The Louderbacks claim the trial court failed to address the 

inequitable result that would prevail if the merger doctrine is 

applied. They cite Hamilton Court, LLC v. East Olympic, L.P.

(2013) 215 Cal.App.4th 501, 505 (Hamilton Court), for the 

proposition that the doctrine of merger will not be applied where 

it will be inequitable to do so.

In Hamilton Court, a loan was secured by an easement 

giving the owner of the dominant tenement the exclusive right to 

occupy a portion of the servient tenement. The deed of trust 

securing the loan contained a provision stating that a transfer of 

the easement will not affect the priority of the deed of trust. 

Parties who acquired both dominant and servient tenements, 

sued the lender to quiet title to the easement. The Court of 

Appeal held that the doctrine of merger did not apply because it 

was contrary to the agreement that a transfer would not affect 

the priority of the deed of trust. A merger would result in the 

lender having no security. (Hamilton Court, supra, 215 

Cal.App.4th 501, 506.)

Here there was no agreement to preserve the easement. 

The Morehart Children agreed to sell and the Okies agreed to 

buy, the 25 percent interest in the 793 Acres. Neither party 

claimed that the transaction was in any way inequitable. 

The Louderbacks claim that the transaction was financed

by the Morehart Children who took back a security interest on 
8

the parcel they sold. The Louderbacks argue that the 

termination of the easement impaired the Morehart Children’s 

security interest.

But the Morehart Children are not complaining, and the 

Louderbacks are not successors to their security interest. The 

Louderbacks cite no authority giving them standing to complain 

about the impairment of the Morehart Children’s security 

interest, if indeed it still exists.

Moreover, the transaction that terminated the easement 

occurred in 1973. We are not inclined to undo the result of a 

transaction that occurred a half-century ago and has remained

unchallenged until now.

II. Necessity

The Louderbacks contend that the trial court refused to 

fully adjudicate their alternative claim of easement by necessity.

An easement by necessity arises when a grantor conveys a 

portion of his land in such a way that either the retained or 

conveyed parcel would be landlocked in the absence of a right of 

way. (See Murphy v. Burch (2009) 46 Cal.4th 157, 162-163.) 

When no such right of way is conveyed or reserved, an easement 

by necessity arises. (Ibid.) An easement by necessity requires: 

1) “strict necessity,” that is, the parcel would be landlocked 

without a right of way; and 2) common ownership at the time of 

the conveyance giving rise to the necessity. (Id. at p. 163.) In the 

absence of common ownership an easement will not be based on 

necessity alone. (Id. at p. 164.) The failure of the original 

grantee to assert an easement by necessity does not preclude a 

subsequent grantee from asserting it. (Lichty v. Sickels (1983) 

149 Cal.App.3d 696, 700.)
9

The Louderbacks argue that the statement of decision is 

inadequate. At trial there was a question -- whether the 

Louderbacks would be required to add neighboring property 

owners as parties to establish an easement by necessity. The 

Louderbacks did not do so. In its statement of decision, the trial 

court wrote: “This issue having been fully tried the court finds 

that the plaintiff has failed to prove that facts necessary to 

prevail on this cause of action and has perhaps also not satisfied 

procedural pre-requisites to state a prima facie cause of action for 

said relief. To the greatest extent possible the court incorporates

into reference herein the factual findings relevant to this cause of 

action contained in the defendants’ post-trial papers which the 

defense argued and makes all such said findings.”

Code of Civil Procedure section 632 requires the trial court 

to issue a statement of decision upon a party’s timely request. 

Here the Louderbacks made a timely request. A statement of 

decision is adequate if it fairly discloses the court’s determination 

of the ultimate facts and material issues in the case. (Golden 

Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372,

1380.)

The Louderbacks complain that the trial court simply 

stated that they had failed to prove their cause of action for an 

easement by necessity, without providing any analysis or 

discussion of the ultimate facts.

First, the statement of decision requires only a fair 

disclosure of the trial court’s determination of the ultimate facts. 

The Louderbacks cite no authority requiring an analysis or 

discussion of the ultimate facts.

Second, if such analysis or discussion is required, the trial

court incorporated by reference the Ranch’s post-trial brief. (See 
10

Swars v. Council of City of Vallegio (1949) 33 Cal.2d 867, 872 [“A 

Court in making findings may, and commonly does incorporate by 

reference”].) That brief contains an extensive analysis of and 

discussion on why the Louderbacks cannot prevail, including a 

showing that there is no necessity.

Third, defects in the statement of decision are reviewed for 

harmless error. (See F.P. v. Monier (2017) 3 Cal.5th 1099, 1108.) 

The appellant has the burden not only to show error, but injury

from the error. (Robbins v. Los Angeles Unified School Dist. 

(1992) 3 Cal.App.4th 313, 318.) To obtain reversal the appellant 

must show a reasonable probability that in the absence of the 

error, a result more favorable to the appellant would have been 

obtained. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 

574.) The Louderbacks do not attempt to show prejudice.

III. Remaining Easement Claims

The Louderbacks contend that the statement of decision 

was inadequate on their other easement claims.

The statement of decision was limited to the statement that 

the Louderbacks failed to carry their burden of proof on an 

easement by implication, prescription, or by equity. Assuming 

that is not sufficient, the Louderbacks failed to show prejudice. 

They make no attempt to show that but for the alleged error, it is 

reasonably probable that they would have achieved a more 

favorable result. (Soule v. General Motors Corp., supra, 8 Cal.4th 

at p. 574.)

IV. Statute of Limitations

The Louderbacks contend that the Ranch’s cause of action 

for quiet title is barred by the statute of limitations.

The Louderbacks cite Muktarian v. Barmby (1965) 63 

Cal.2d 558, 560 (Muktarian), for the proposition that because the 
11

Legislature has established no statute of limitations for quiet 

title actions, it is ordinarily necessary to refer to the underlying 

theory of relief to determine which statute applies. The 

Louderbacks suggest that in this case a five-year limitation of 

action applies.

What the Louderbacks fail to disclose is that in the very 

next sentence to the sentence on which they rely, our Supreme

Court in Muktarian stated, “In the present case, however, it is 

unnecessary to determine which statute would otherwise apply, 

for no statute of limitations runs against a plaintiff seeking to 

quiet title while he is in possession of the property.” (Muktarian,

supra, 63 Cal.2d at p. 560.) See Levine v. Berschneider (2020) 56 

Cal.App.5th 916, 921. Here cross-complainants have been in 

possession of the Ranch since 2010. No statute of limitations 

applies.

V. No Harm Suffered

The Louderbacks contend that the Ranch’s cause of action 

for failure to disclose and negligent concealment are time barred 

and lack the essential element of damages. But the trial court’s 

finding that those causes of action result in no damages makes 

the issue moot. The Louderbacks do not demonstrate that they 

suffered any harm. We do not decide hypothetical issues. 

(Consolidated Vultee Corp. v. United Automobile, etc. (1946) 27 

Cal.2d 859, 862-863.)
12

DISPOSITION

The judgment is affirmed. Costs are awarded to the 

respondents.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

BALTODANO, J.
James F. Rigali, Judge

Superior Court County of Santa Barbara

______________________________

Williams Iagmin and Jon R. Williams for Plaintiffs and 

Appellants.

The Bankrupcy Firm, Kathleen P. March; Wagner, 

Anderson & Bright and Patrick F. Bright for Defendants and 

Respondents.