Filed 5/23/22 Rancho Carlton Properties, LLC v. Radnor CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

RANCHO CARLTON 

PROPERTIES, LLC,

Plaintiff, Cross-defendant

and Appellant,

v.

JOSH RADNOR, as Trustee, etc., 

Defendant, Crosscomplainant and Respondent;

SCOTT ANDERSON et al., 

Cross-defendants and 

Appellants.

 B306473 & B309499

 (Los Angeles County

 Super. Ct. No. BC662602)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Dennis J. Landin, Judge. Reversed with 

directions. 
2

Macias Counsel and Sean E. Macias; Greines, Martin, Stein 

& Richland, Robert A. Olson and Jeffrey Gurrola; Fisher Wolfe 

and David R. Fisher for Plaintiff, Cross-defendant and Appellant.

Robie & Matthai, Edith R. Matthai, Kyle Kveton and Leigh 

P. Robie; Cunningham, Treadwell & Bartelstone and James H. 

Treadwell for Defendant, Cross-complainant and Respondent. 

____________________________

Plaintiff, cross-defendant, and appellant Rancho Carlton 

Properties, LLC, appeals from a portion of a judgment entered in 

favor of defendant, cross-complainant, and respondent Josh 

Radnor, as trustee of The Josh Radnor Trust, in this quiet title 

action. An express written easement allows Radnor to maintain 

certain improvements on Rancho Carlton’s property. On appeal, 

Rancho Carlton contends the trial court misinterpreted the scope 

of the easement and compounded the error by improperly 

imposing an equitable easement contrary to the terms of the 

deed.

We conclude the grant deed for Radnor’s property provides

an easement over Rancho Carlton’s property for specific physical 

improvements, namely, a barbecue, a walkway, and a retaining 

wall. The deed conveys an exclusive right to use the area where 

the improvements are located as a necessary incident of the 

easement. The deed also conveys a non-exclusive right to use the

remainder of the easement area to the extent the use is a 

necessary incident of the easement. The easement will terminate

when the barbecue, the walkway, the retaining wall, and the 

house on the dominant estate are demolished. Radnor’s repairs 

and renovations to the improvements located on Rancho Carlton’s 

property did not overburden the easement. Because the relief 

provided in the judgment was based on an erroneous
3

interpretation of the grant deed, the judgment must be reversed 

to allow the trial court to enter a new and different judgment 

providing relief to enforce Radnor’s rights under the easement.

FACTS

Creation of Easement

In 1965, Wallace Van Allen Jones owned a large property 

in the Hollywood Hills improved with a single-family house. In 

the backyard on the west side, a walkway connected the house to 

a barbecue area wedged into the hillside. In the backyard on the 

east side, stone steps led up to a small stone patio.

Prior to September of that year, Jones subdivided the 

property into multiple lots. As a result, the house is located on 

Lot 20 and has a street address 6387 Bryn Mawr Drive. To the 

west is Lot 19. North of these are Lots 93 and 94. The new 

property lines bisected the improvements in the backyard. Part

of the walkway and the barbecue ended up on the eastern corner 

of Lot 19. A small sliver of the barbecue area was on Lot 93. A

portion of the steps on the east side of the yard were now located

on Lot 94, which led up to the patio now located on Lots 93 and 

94. 

In September 1965, Jones sold the house on Lot 20 to 

Radnor’s predecessor-in-interest along with a handful of 

easement rights that allow the owner of the dominant estate (Lot 

20) to keep using portions of the surrounding properties (Lots 19, 
4

93, and 94) for the existing backyard improvements.

1 The grant 

deed conveyed five property interests to Radnor’s predecessor-ininterest as follows.

Parcel 1 was Lot 20, as recorded in the county records, in 

fee simple. The grantor reserved an easement for himself and his 

successors over the eastern 6 feet of Lot 20 for sewer purposes 

with a related right of ingress and egress

Parcel 2 was “An easement for barbecue, a walkway and 

concrete and brick retaining wall and incidental purposes” over a 

large portion of Lot 19 with specific metes and bounds. The 

improvements occupied a fraction of the easement area, in its

northeast corner. The deed additionally stated, “It is understood 

and agreed that the above easement will terminate when the 

improvements now located on the above described portions of 

Lots 19 and 20 . . . have been demolished.”

Parcel 3 addressed the portion of the barbecue located on 

Lot 93 by conveying “An easement for a barbecue and incidental 

purposes” over a narrow strip of Lot 93 adjacent to Parcel 2. The 

metes and bounds of Parcel 3 were 0.76 feet wide on the west end

and just 0.12 feet wide on the east end.

The improvements on the east side of the backyard, which

are not at issue in this case, were conveyed through Parcels 4 and 

5. Parcel 4 provided “An easement for a patio, concrete and brick 

retaining walls and incidental purposes” over a portion of Lot 93

that was described through metes and bounds.

Parcel 5 provided “An easement for concrete and brick 

retaining wall, steps and patios and incidental purposes” over a 

1 A copy of the 1965 grant deed and a diagram of the 

relevant portion of the property as it exists currently are

attached to this opinion as part of the appendix.
5

portion of Lot 94 that was described through metes and bounds. 

In addition, the deed provided that “the above easement will 

terminate when the improvements now located on the above 

described portions of Lot 20 . . . and Lot 94 . . . have been 

demolished.”

2

Construction on Lot 19 and Radnor’s Purchase of Lot 20

In 2005, construction began on Lot 19 for a house with the 

street address of 6393 Bryn Mawr Drive. Portions of the threelevel house, which included its own barbecue area, were built on 

the Parcel 2 easement. As part of the construction, the owner of 

Lot 19 built a substantial retaining wall in 2007 on the Parcel 2 

easement. The 2007 wall, topped with a wrought iron fence, runs 

between the new construction on Lot 19 and the old 

improvements all the way to the street with no opening for

access. A person can access the easement area on either side of 

the 2007 wall using a ladder. Audrina Patridge was the first 

occupant of the house on Lot 19 when she bought it in 2008. The 

seller and the realtor both informed her of the easement over Lot 

19 that was held by the owner of Lot 20. 

Lot 20 had a series of owners before Radnor purchased the 

property in 2007, while construction was still underway on Lot 

2 When the property was sold again a few years later, the 

grant deed omitted the termination provision for the easement 

over Parcel 5. After the property changed hands a few more 

times, the termination provision for the easement over Parcel 2 

was omitted. The property was transferred four more times, with 

none of the grant deeds including the termination language, but 

there is no dispute in this case about the applicability of the 1965 

grant deed or the validity of the termination provisions.
6

19. The seller’s property questionnaire clearly stated that the 

seller was aware of surveys, easements, encroachments or 

boundary disputes, as well as the seller’s use of neighboring 

property. The seller noted, “Make sure easement is part of our 

title & title of property above on Quebec. See easements.” In a

section for other information, the seller wrote, “See title for 

historic usage easements.” 

Radnor’s business manager handled the purchase of the 

property, along with his real estate attorney. Radnor did not see 

the seller’s questionnaire. Radnor remembered a conversation

with the seller about a different easement, but that was his only 

memory of discussing easements with the seller. In 2009, Radnor 

transferred the property to his trust. The quitclaim deed 

identified Lot 20 and all of the easements, but did not contain the 

termination provisions. Radnor signed the documents without 

reading them.

Radnor did not understand that he had an easement over 

the property to the west of his house for specific improvements. 

He believed his property line started at the 2007 wall. He would 

have paid less or not bought the property if he knew the area to

the west of the house was not part of his property. 

On the west side of the backyard, a brick barbecue area 

was carved into the hillside. A substantial brick structure was 

built into the hillside around a rusted silver barbecue grill. The 

barbecue was not functional. The structure had brick 

countertops on either side of the grill with open space under the 

counters, and was recessed within a brick retaining wall. A 

substantial concrete retaining wall rose up a few feet behind the 

brick structure. 
7

A brick walkway the width of the barbecue structure

extended from the barbecue toward the front of the house. At the 

point near the barbecue, the brick platform was easily wide

enough for a table and chairs, and had decorative mosaic tiles

inset in the brick, although some of the tiles were broken.

From the barbecue area, one branch of the walkway 

connected to the back of the house, while the other branch 

extended the full length of the west side of the house to the front 

building line. The bricks in the walkway were uneven, loose, 

cracked, and broken. Some were overturned from the ground in 

places. At the end of the brick walkway near the front of the 

house was a simple wooden guardrail from which to look out over

the hillside, but the guardrail was rotted and unsafe for young 

visitors. 

A continuous brick retaining wall approximately three- or 

four-feet high ran the entire west side of the walkway, as well as 

on either side of the barbecue and a short portion of the east side 

of the walkway near the barbecue. The slope of the hillside rose

behind the wall on all sides. Radnor referred to this wall as the

garden wall. The garden wall was bulging from the hillside, 

however, as aggressive trees roots forced the wall out. Another

brick wall existed a few feet to the west of the barbecue area, 

although it was not clear from the evidence whether this was a 

retaining wall, or simply for privacy and landscaping purposes. 

Bamboo grew in the hillside between the garden wall and the 

privacy wall. 

Attached between the house and the brick walkway was a 

redwood deck with a sunken seating area that had rotted from 

water damage and termites. The edge of the deck had been 

placed on top of the brick walkway, creating a step from the deck 
8

to the brick. If Radnor went on the deck without shoes, he got 

splinters. 

Repair and Renovation

Radnor hardly ever used the area on the west side of the 

house. When he did, he sat outside, read a book, or entertained 

guests. He thought the area could be repaired to be more 

enjoyable, so he hired a landscape designer in 2014. 

Radnor removed the existing wood deck and a section of the 

brick walkway along the west side near the front of the house. 

He replaced it with a new wood deck covering both areas. He 

excavated the ground so the deck sat at one level, flush with the 

house and the rest of the brick walkway. The deck construction

required site and soil preparation, grading, extension of the deck

beyond existing tree roots, and the addition of small piles for

support on the outside. At the suggestion of the designer, when 

Radnor replaced the southern portion of the brick walkway with 

wood, he added a cantilever lookout deck to the end of the 

walkway, which extended the footprint of the walkway by three 

feet toward the street. Tubes were placed underneath to support 

the cantilever deck. The company that installed the new deck, 

including the additional three feet for the cantilever portion, 

considered the work to be repairing and re-supporting an existing 

deck, which did not require permits. The new configuration of 

the surface allowed him to add a long table to dine in the area. 

Radnor also replaced broken bricks in the walkway and had 

the existing brick pressure washed. He installed lighting, 

removed a dead tree, and installed a new tree with a tree box. 
9

Radnor had the old silver barbecue grill and portions of the 

brick barbecue structure removed. Some of the existing brick 

structure was filled in, a gas line was installed, and a new brick 

barbecue with a chimney was built into the existing brick

foundation, reusing many of the old bricks as building material. 

The new structure can operate as a fireplace or a barbecue, fueled 

by wood or gas. There is an area in the brick structure for wood 

storage. Radnor has couches in front of the structure for an area 

to sit.

The brick garden wall and the brick privacy wall were not 

demolished in the remodeling. A second, shorter brick wall with 

a footing was constructed next to the garden wall to strengthen it 

where it was leaning away from the hillside. Radnor’s

remodeling did not change the way the space was used. 

Sale of Lot 19 to Rancho Carlton

In February 2016, Patridge intended to sell her property. 

She sent a notice of termination of the easement to Radnor, 

which she stated was based on Radnor’s demolition of the brick 

improvement originally constructed on or about 1965. She 

claimed that he had demolished the only remaining improvement 

for which the easement was originally granted. She notified him 

to remove the original brick improvement and all other building 

debris in the area from her property, or she would be forced to 

remove it and hold him liable for the cost.

Radnor learned of the easement when he received 

Patridge’s notice. He gave the letter to his attorney, who 

responded to Patridge that her notice was legally defective. The 

attorney warned that her notice constituted slander of title and 
10

any modification of Radnor’s easement area would create 

substantial liability for her, and in addition, she now needed to 

advise her broker and all prospective buyers of the potential to 

inherit her liability. 

Scott Anderson and his mother own Rancho Carlton.

3 

When Scott and his wife Diana Anderson viewed the property for 

sale at 6393 Bryn Mawr Drive, the realtor explained the 

existence of the easement. Rancho Carlton made an offer on 

February 25, 2016. Patridge rescinded the notice of termination, 

which Rancho Carlton acknowledged in writing during the 

escrow closing, and Rancho Carlton completed the purchase on 

March 10, 2016.

4 

Scott and Diana live part of the year at the property on Lot 

19 and part of the year in Tempe, Arizona. Rancho Carlton pays 

the property taxes and the insurance costs for Lot 19. To access 

the area east of the 2007 wall, the Andersons have to step over 

the back of their own barbecue or use a ladder to reach the top of 

the 2007 wall, climb around the wrought iron fence on the top, 

and step onto the hillside. After crossing the hillside between the 

homes, they have to climb down over the garden wall to reach the 

walkway and the barbecue area. The parties cannot simply shift 

the property line dividing Lots 19 and 20 to the west between 

Rancho Carlton’s house and the brick improvements, because the 

remaining area of Lot 19 would be too small to constitute a legal 

lot. 

3 Because more than one party shares the last name 

Anderson, they will be referred to individually by their first 

names for ease of reference.

4 No description of the easement held by the owner of Lot 

20 is stated in the grant deed for Lot 19. 
11

In 2018, the owners of both properties received notices from 

the City of Los Angeles that the wood deck, brick fireplace, 

electrical lighting, and appurtenances were constructed without 

required permits and approvals. Each was ordered to correct the 

violations and pay an inspection fee. The City did not consider 

the conditions to be dangerous or a hazard to health or safety; 

certain items simply needed to have a permit.

PROCEDURAL HISTORY

Pleadings and Jury Trial

On May 24, 2017, Rancho Carlton filed a complaint against 

Radnor. On August 20, 2019, Rancho Carlton filed the operative 

fourth amended complaint against Radnor for declaratory relief, 

quiet title, injunctive relief, trespass, and nuisance. Radnor filed 

a cross-complaint against Rancho Carlton, Scott, and Diana, for 

interference with easement, declaratory relief, quiet title, and 

injunctive relief.

A jury trial was held over 10 days between January 22 and 

February 4, 2020, on the causes of action for trespass and 

nuisance. The jury found that Radnor did not demolish all of the

improvements on Lot 19 that were set forth in the 1965 grant 

deed. As a result, he was not liable for trespass. The jury also 

found that Radnor did not create or permit a condition to exist 

that was harmful to health, so was not liable under the nuisance 

claim. 
12

Statement of Decision

During trial, the court interpreted the Parcel 2 easement to 

be nonexclusive. After further evidence and argument on the 

remaining issues in the case, including quiet title, declaratory 

relief, and injunctive relief, the trial court issued its statement of 

decision. 

The court found the most equitable solution was to give

Radnor exclusive use of the portion of the easement that was east 

of the 2007 wall. Allowing the owner of the servient estate to use 

the deck, walkway, seating area and barbecue grill would be 

appropriate if the properties were on flat ground, the barbecue 

area was larger, and it was further from Radnor’s living area. A

large portion of the easement area, however, was on a steep 

slope. There would be scheduling disputes between the parties 

that could only be resolved if the parties could work together. 

The owner of the dominant tenement would not want neighbors 

and their guests cooking and socializing within a few feet outside 

the living room at any time of day without permission. Radnor 

would not have assumed this was a shared area when he 

purchased his property. Restricting Rancho Carlton’s access to 

the easement on the east side of the 2007 wall would avoid future 

conflicts and litigation between the owners of the subject 

properties.

The court found the easement was not simply for the use of 

a barbecue grill and a walkway. The word “barbecue” in the 

phrase “[a]n easement for barbecue, a walkway and concrete and 

brick retaining wall and incidental purposes” meant the area 

may be used for “a social gathering.”
13

The court also found the easement could not be terminated 

simply by demolition of the improvements in the barbecue area

on Lot 19. If the only improvements relevant to termination were 

located on Lot 19, then the grantor did not need to refer to Lot 20 

in the termination provision. The court found, therefore, that 

termination of the easement will only occur when the 

improvements on both Lots 19 and 20 are demolished.

The court concluded that Rancho Carlton had not provided 

sufficient evidence from which to determine a monetary amount 

that would properly compensate for awarding Radnor exclusive 

use of the area east of the 2007 wall. Rancho Carlton was aware 

of the easement when the property was purchased, but Radnor 

was not aware of the easement when he purchased the dominant 

tenement and did not learn of it until after he had renovated the 

barbecue area. Even assuming Radnor had constructive notice of 

the easement, Radnor was not on notice that he would be forced 

to share the deck and barbecue area immediately outside his 

living room with unknown neighbors. It was reasonable to 

assume no one else would use the area without his permission.

The court concluded its prior ruling that the language of 

the 1965 grant deed provided a non-exclusive easement over Lot 

19 did not foreclose its equitable ruling on Radnor’s causes of 

action for declaratory relief, injunctive relief, and quiet title. The

court made additional rulings about taxes and permits, and found 

Radnor was the prevailing party.

Amended Judgment

On May 7, 2020, the trial court entered judgment against 

Rancho Carlton on the fourth amended complaint. The court 
14

entered judgment in favor of Radnor on the causes of action in 

the cross-complaint for declaratory relief and quiet title, but in 

favor of Rancho Carlton, Scott, and Diana on the cause of action 

for interference with easement.

Based on the jury’s finding that the improvements on Lot 

19 were not demolished, the court found that the easement 

burdening Lot 19 had not been terminated under the express 

terms of the 1965 grant deed. Further, there was no evidence 

that the single-family residence located on Lot 20 has been 

demolished, so the conditions required for termination of the 

easement had not occurred.

The court found that the current uses do not overburden 

the easement and are within the intended uses of the easement. 

The court ruled that Radnor and his successors-in-interest, as a 

necessary incident and as necessary to protect his rights as an 

easement holder, would have the sole use and exclusive control of 

the portion of the easement area east of the 2007 wall for its 

intended use and purpose. The court found the intended use and 

purpose of the easement included, but was not limited to, 

barbecue, defined as a social gathering at which barbequed food 

is eaten, walkway, concrete and brick retaining wall and 

incidental purposes. Radnor and his successors-in-interest must 

maintain the improvements in his area of control in good repair, 

and would be solely responsible for all costs and expenses 

associated with the maintenance and repair of the existing 

barbecue structure, all walls, decks, brick areas, railings, and the 

like, specifically located within the area east of the 2007 wall.

The court ruled that Rancho Carlton and its successors-ininterest, as a necessary incident to and as necessary to protect its 

rights, would have sole use and exclusive control of that portion 
15

of the easement area west of the 2007 wall. Rancho Carlton and 

its successors-in-interest were responsible for all costs and 

expenses associated with the maintenance and repair of 

improvements west of the 2007 wall, including the 2007 wall, the 

adjacent staircase, and the portions of the residence that were 

built in the easement area west of the 2007 wall.

Radnor was ordered not to interfere with maintenance or 

repair of the 2007 wall. Rancho Carlton was prohibited from 

creating a gate or passageway through or around the 2007 wall. 

Rancho Carlton, Scott, Diana, and their successors-in-interest 

were enjoined from obstructing or interfering with the sole use 

and exclusive control of Radnor and his successors-in-interest 

from the area east of the 2007 wall. However, the court provided 

Rancho Carlton with access to an area five feet east of the 2007 

wall for maintenance or repair of utility lines located on the east 

side of the 2007 wall that service Rancho Carlton’s property, 

including an irrigation pipe, low voltage electrical line, gas line, 

water line, and drainage pipe. 

Radnor was ordered to work with the City of Los Angeles to 

get proper permits for any items east of the 2007 wall that 

required permits. Radnor was also assigned responsibility to pay 

any fines or fees associated with the permitting process. Rancho 

Carlton and its successors-in-interest were required to cooperate 

in obtaining permits.

In the event that the Los Angeles County Tax Assessor 

increases the property tax assessment on Lot 19 as the direct 

result of any repairs or improvements completed in 2014 and 

2015 on the area east of the 2007 wall, the supplemental property 

tax assessments would be paid by Radnor or his successors-ininterest until such time as Rancho Carlton transfers all or any 
16

interest in the subject property. Nothing in the judgment was to 

cause a lien to be imposed on either property related to any tax 

consequences.

Radnor was the prevailing party. He was to provide the 

court with the legal description of the location of the 2007 wall.

Rancho Carlton filed a timely notice of appeal from the May 7, 

2020 judgment. 

On November 12, 2020, the trial court entered a second 

amended judgment by inserting a legal description of the location 

of the 2007 wall and awarding costs of $29,262.73 to Radnor.

Rancho Carlton filed a timely notice of appeal from the second 

amended judgment as well. The two appeals have been 

consolidated.

DISCUSSION

General Law of Easements

“‘An easement is a restricted right to specific, limited, 

definable use or activity upon another’s property, which right 

must be less than the right of ownership.’ [Citation.]” (Scruby v. 

Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702 (Scruby).) 

The easement holder does not own the property, but simply 

possesses a right to use another person’s land for a specific 

purpose. (Blackmore v. Powell (2007) 150 Cal.App.4th 1593, 1599 

(Blackmore).) An easement “appurtenant” attaches to the 

dominant tenement and burdens the servient tenement. (Ibid.)

Every easement includes “secondary easements” to 

accomplish the things necessary for full enjoyment of the 

easement, such as the right to make repairs on the servient 
17

tenement. (Dolnikov v. Ekizian (2013) 222 Cal.App.4th 419, 428

(Dolnikov).) “The owner of the dominant tenement must use his 

or her easements and rights in such a way as to impose as slight 

a burden as possible on the servient tenement. [Citation.]” 

(Scruby, supra, 37 Cal.App.4th at p. 702.) “‘“It is well settled that 

the owner of an easement cannot change its character, or 

materially increase the burden upon the servient estate, or 

injuriously affect the rights of other persons, but within the

limits named he may make repairs, improvements, or changes 

that do not affect its substance.”’ [Citations.]” (Dolnikov, supra, 

222 Cal.App.4th at p. 429.)

“Every incident of ownership not inconsistent with the 

easement and the enjoyment of the same is reserved to the owner 

of the servient estate. [Citations.]” (Scruby, supra, 37 

Cal.App.4th at p. 702.) “The owner of the servient estate may 

make continued use of the area the easement covers so long as 

the use does not ‘interfere unreasonably’ with the easement’s 

purpose. [Citations.]” (Scruby, supra, 37 Cal.App.4th at pp. 702–

703.)

“‘Neither party can conduct activities or place obstructions 

on the property that unreasonably interfere with the other 

party’s use of the property. In this respect, there are no absolute 

rules of conduct. The responsibility of each party to the other and 

the “reasonableness” of use of the property depends on the nature 

of the easement, its method of creation, and the facts and 

circumstances surrounding the transaction.’ [Citation.]” 

(Dolnikov, supra, 222 Cal.App.4th at pp. 428–429.) “‘In 

determining whether the holder of the servient estate has 

unreasonably interfered with exercise of an easement, the 

interests of the parties must be balanced to strike a reasonable 
18

accommodation that maximizes overall utility to the extent 

consistent with effectuating the purpose of the easement . . . and 

subject to any different conclusion based on the intent or 

expectations of the parties . . . .’ (Rest.3d Property, Servitudes, 

§ 4.9, com. c, p. 583, italics added.)” (Id. at p. 430.)

Standard of Review

The language of an express easement determines the scope 

of the easement. (Blackmore, supra, 150 Cal.App.4th at p. 1599.) 

If the language is clear and explicit in the conveyance, 

interpretation of the easement is a question of law that we review 

de novo. (Ibid; Southern California Edison Co. v. Severns (2019) 

39 Cal.App.5th 815, 822 (Severns).)

“In construing an instrument conveying an easement, the 

rules applicable to the construction of deeds generally apply.” 

(Scruby, supra, 37 Cal.App.4th at p. 702.) “The recorded 

conveyances ‘must be interpreted as a whole, with each clause 

aiding the interpretation in the attempt to give purpose to every 

part, and the interpretation should, where possible, give effect to 

every part so that no clause is redundant.’ (Super 7 Motel 

Associates v. Wang (1993) 16 Cal.App.4th 541, 546; 

see Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1507 

(Brandwein) [‘when interpreting a contract, we strive to interpret 

the parties’ agreement to give effect to all of a contract’s terms, 

and to avoid interpretations that render any portion superfluous, 

void or inexplicable’].)” (Severns, supra, 39 Cal.App.5th at pp.

823–824.)

“The grant of an easement must ‘be interpreted liberally in 

favor of the grantee.’ [Citation.]” (Dolnikov, supra, 222 
19

Cal.App.4th at p. 428.) “If the language is ambiguous, extrinsic 

evidence may be used as an aid to interpretation unless such 

evidence imparts a meaning to which the instrument creating the 

easement is not reasonably susceptible. [Citation.]” (Scruby, 

supra, 37 Cal.App.4th at p. 702.) “When there is any ambiguity 

or uncertainty about the scope of an easement grant, the 

surrounding circumstances, including the physical conditions and 

character of the servient tenement and the requirements of the 

grantee, play a significant role in the determination of the 

controlling intent. [Citation.]” (Scruby, supra, 37 Cal.App.4th at 

p. 705.) “‘“It is a ‘cardinal rule of construction that when a 

contract [or conveyance] is ambiguous or uncertain the practical 

construction placed upon it by the parties before any controversy 

arises as to its meaning affords one of the most reliable means of 

determining the intent of the parties.’ [Citation.]”’ [Citations.]” 

(Severns, supra, 39 Cal.App.5th at pp. 824–825.)

To the extent that the material facts are not in dispute, we 

conduct a de novo review of the rulings regarding the easement. 

(Blackmore, supra, 150 Cal.App.4th at p. 1598, fn. 2.) “To the 

extent resolution of the appeal turns on the trial court’s factual 

findings, we review such findings under the substantial evidence 

standard. [Citation.]” (Severns, supra, 39 Cal.App.5th at p. 822.) 

In evaluating challenges to the court’s factual findings, we 

consider all of the evidence in the light most favorable to the 

prevailing party, giving it the benefit of every reasonable 

inference, and resolving conflicts in support of the judgment. 

(Tribeca Companies, LLC v. First American Title Ins. Co. (2015) 

239 Cal.App.4th 1088, 1102.) Under these principles, an 

appellate court “‘“must presume that the record contains evidence 

to support every finding of fact . . . .”’ [Citations.] It is the 
20

appellant’s burden . . . to identify and establish deficiencies in the 

evidence. [Citation.] This burden is a ‘daunting’ one.” (Huong 

Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.)

“Whether a particular use by the servient owner of land 

subject to an easement is an unreasonable interference with the 

rights of the dominant owner is a question of fact for the trier of 

fact, and its findings based on conflicting evidence are binding on 

appeal. [Citation.]” (Scruby, supra, 37 Cal.App.4th at p. 703.)

We review a court’s decision whether to recognize an 

equitable easement under the abuse of discretion standard. 

(Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 

Cal.App.5th 982, 1005–1006.) This standard “includes a 

substantial evidence component: ‘We defer to the trial court’s 

factual findings so long as they are supported by substantial 

evidence, and determine whether, under those facts, the court 

abused its discretion. If there is no evidence to support the 

court’s findings, then an abuse of discretion has occurred.’” (Id. at 

p. 1006.)

Scope of Express Easement

Our review of the judgment in this case quieting title and 

ordering declaratory relief begins with the interpretation of the 

language granting the easement. Rancho Carlton contends the

express easement was nonexclusive, limited to specific physical 

improvements that were listed in the grant deed in connection 

with Parcel 2, and terminates when those improvements on 

Parcel 2 are demolished. The parties did not present any

extrinsic evidence that was in conflict to aid the court’s 

interpretation of the grant deed, so we independently review the 
21

language of the instrument and the evidence in the record to 

determine the intent of the original drafters of the easement 

grant.

A. Improvements Allowed

We agree with Rancho Carlton that the grant deed provides 

the owner of Lot 20 with the right to have specific physical 

improvements located on Lot 19. The grant deed gives Radnor 

“an easement for barbecue, a walkway and concrete and brick 

retaining wall and incidental purposes over that portion of Lot 

19” described in the deed. The easement area described in the 

deed covers approximately 40 percent of Lot 19, and the grant 

deed does not specify the location of the improvements. The deed 

states, however, that the easement will terminate when the 

improvements “now located” on the portions of the lots described 

in the deed are demolished, from which it can be inferred, and all 

of the parties have assumed, that the easement for “barbecue, a 

walkway and concrete and brick retaining wall” referred to 

improvements in existence at the time the easement was 

created.

5 

5 The result would be the same if the improvements on Lot 

19 were not in existence at the time the easement was created, 

but instead constructed later. “‘An easement granted in general 

terms, nonspecific as to its particular nature, extent or location, 

is . . . perfectly valid. It entitles the holder to choose a 

“reasonable” location and to use such portion of the servient 

tenement as may be reasonably necessary for the purposes for 

which the easement was created. The use actually made by the 

holder over a period of time fixes the location and the nature and 

extent of the use. [Citation.] Such an easement necessarily 
22

In context, the easement for “barbecue” refers to a physical 

improvement that was in existence at the time of the grant. The 

easement terminates when the existing physical improvements 

are demolished. Parcel 3 provides an easement over a sliver of 

property less than a foot wide for “a barbecue and incidental 

purposes,” which the parties agree refers to a physical 

improvement. The most logical explanation for the awkward 

configuration of the easements is that the grant deed referred to 

an existing fixed improvement, which was bisected by the 

property lines created in 1965. This interpretation is consistent

with the evidence at trial that a built-in brick barbecue structure 

straddles the easement areas provided in Parcels 2 and 3. In the 

context of the adjacent easements and the extrinsic evidence, we 

interpret the “barbecue” on Parcel 2 to refer to the other portion 

of the physical improvement authorized on Parcel 3.

The word “barbecue” does not restrict Radnor’s use of the 

easement to social gatherings. Barbecue is the first item in a list

of physical improvements, not a limitation on Radnor’s use of 

them. The other easements in the grant deed refer to physical 

improvements, not activities. Just as the word “patio” does not

describe an activity permitted on Parcels 4 and 5, the words 

“barbecue” and “walkway” do not describe activities permitted on 

Parcel 2. The easement holder may keep and maintain certain 

physical improvements on Parcel 2 in their existing locations, but 

the language of the grant deed does not restrict the easement 

holder to a particular use of those improvements. Radnor may

carries with it not only the right but also the duty to maintain 

and repair the structure or facility for which it was created.

[Citations.]’ [Citations.]” (Severns, supra, 39 Cal.App.5th p. 823.)
23

conduct activities that make any reasonable use of the 

improvements.

The grant deed allows a walkway on Lot 19. At trial, the

parties treated the brick improvements that existed when Radnor 

purchased the property as corresponding to the improvements 

described in the grant deed. No evidence or argument 

established otherwise. The walkway that extended from the 

brick barbecue at the back of the house was the width of the 

barbecue structure, broad enough for a couch or table. Extending 

from that area, one branch of the walkway wrapped around the 

back of the house, while the other branch extended the length of 

the west side of the house to the front building line. We note that 

although the deed referred to the improvement as a walkway, the 

evidence showed the improvement shared characteristics of a 

walkway, a patio, and even a deck. It could have been reasonably 

described in the deed as a walkway or a patio, although neither 

term provides a complete description of the existing 

improvement.

The grant deed also provides Radnor with an easement for

“concrete and brick retaining wall.” It is not clear from the deed 

or the evidence at trial which of the existing walls, if any, are

referred to in the deed. At the time of Radnor’s purchase, there 

was a brick garden wall that was contiguous with the walkway. 

A few feet west of the garden wall is another brick wall. A stucco 

retaining wall at the street level extends between Lots 19 and 20. 

No issue was raised, however, about the retaining wall described 

in the deed.
24

B. Exclusive Use of Property at Location of

Improvements

Rancho Carlton contends that under the terms of the grant 

deed, the easement conveyed over Lot 19 is not exclusive, and

Rancho Carlton may engage in any activity in the easement area 

that does not unreasonably interfere with Radnor’s easement 

rights. We conclude the trial court’s interpretation of the deed as 

allowing shared use of Radnor’s improvements was incorrect. 

Although the instrument does not expressly provide for either 

exclusivity or shared use, extrinsic evidence of the surrounding 

circumstances shows the deed necessarily grants the easement 

holder exclusive use of the land on which the improvements are 

located, because Rancho Carlton cannot use the land where the 

improvements are located without unreasonably interfering with 

Radnor’s easement rights.

“The extent of a servitude is determined by the terms of the 

grant . . . .” (Civ. Code, § 806; City of Pasadena v. CaliforniaMichigan Land & Water Co. (1941) 17 Cal.2d 576, 578

(Pasadena).) An “exclusive” easement confers the right to exclude 

others. (Gray v. McCormick (2008) 167 Cal.App.4th 1019, 1024

(Gray).) The degree of exclusivity provided by a particular 

easement may range from conferring no right to exclude anyone 

whose use does not unreasonably interfere with the easement

rights, to conveying the right to exclude everyone from any use of 

the land within the easement boundaries, including the owner of 

the servient tenement. (Ibid.) 

An intent to convey an exclusive easement tantamount to a 

fee interest cannot be attributed to the grantor without a clear 

indication of the intention. (Pasadena, supra, 17 Cal.2d at pp. 
25

578–579.) Whether an easement amounts to ownership in fee 

depends on the circumstances, including the terms of any grant 

deed. (Blackmore, supra, 150 Cal.App.4th at p. 1600.) A deed 

granting unlimited use of the servient estate would effectively 

confer ownership, not an easement. (Ibid.) “In contrast, an 

easement incorporating a right of exclusive use may fall short of 

ownership in fee when the easement is restricted in scope. 

[Citation.]” (Ibid.)

“Where the easement is founded upon a grant, as here, 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 may make any use of the land 

that does not interfere unreasonably with the easement. 

[Citations.] It is not necessary for him to make any reservation 

to protect his interests in the land, for what he does not convey, 

he still retains. [Citation.] Furthermore, since he retains the 

right to use the land reasonably himself, he retains also the 

power to transfer these rights to third persons. [Citations.]” 

(Pasadena, supra, 17 Cal.2d at p. 579.)

Whether a particular use of the land by the servient owner 

is an unreasonable interference is generally a question for the 

trier of fact, unless the language of the grant is so clear and 

definite that the court can define the parties’ rights as a matter of

law from the instrument alone, without resorting to conflicting 

evidence. (Pasadena, supra, 17 Cal.2d at pp. 579–580.)

The grant deed at issue in Blackmore, supra, 150 

Cal.App.4th 1593, provided an express easement for “‘parking 

and garage purposes’” over a specified area that had no existing 

garage. (Id. at p. 1597.) The Blackmore court held that 
26

construction of a two-car garage on 11 percent of 

the easement area was within the scope of the easement. (Id. at 

p. 1599.) In addition, the easement holder was entitled to 

exclusive use of the garage, even though the grant deed did not 

use the term “exclusive,” because exclusive control was necessary 

to protect the easement holder’s rights. (Id. at pp. 1599–1600.) 

Shared control of the garage would result in conflict over the 

allocation of the parking spaces, security for the structure, and 

maintenance costs. (Ibid.) As a result, the court concluded that 

exclusive use of the garage was a necessary incident of the 

easement. (Ibid.) The deed did not contain any language 

expressly addressing exclusivity, but the court construed it to 

provide exclusive rights by necessity, because “it made no sense 

to construe a garage as being for anything other than exclusive 

use.” (Gray, supra, 167 Cal.App.4th at p. 1029.) 

In this case, we conclude the grantor intended to convey 

exclusive use of the barbecue and walkway on Parcel 2 to the 

owner of the dominant estate as a necessary incident of the 

easement. The improvements were originally constructed for the 

benefit of a single-family home before the property was 

subdivided into multiple lots. The barbecue and walkway are a

continuous brick improvement connected to the home on the 

dominant estate, and there is no access to the improvements from 

the street or the surrounding properties. The owner of the 

servient tenement would have to clamber down the hillside to 

drop over the garden wall into the backyard to use the 

improvements on Parcel 2. To allow the owner of the servient 

tenement use of the barbecue or the walkway would 

unreasonably interfere with the easement rights of the dominant 

estate, because anyone using the improvements would be in the 
27

yard of the dominant estate, mere feet from the doors of the 

home. As the trial court found, shared use of the improvements 

would cause myriad disputes, including issues of privacy, 

scheduling, noise, and maintenance costs. Rancho Carlton 

contends that an easement for a barbecue and walkway is not 

inherently exclusive, because neighbors often use common 

walkways and barbecues, such as in developments with common 

areas. Based on the circumstances, however, we disagree that 

the improvements in this case were intended for, or are amenable 

to, shared use. (Cf. Haley v. Casa Del Rey Homeowners Assn.

(2007) 153 Cal.App.4th 863, 875 [finding unrestricted use of a 

common area for a walkway and other purposes mere feet from 

the patios and living spaces of individual condominium units 

would impermissibly invade the owners’ privacy].)6 

The property owners’ historic use of the improvements on 

Parcel 2 supports our interpretation that the grant deed

conferred exclusive use to the dominant estate. There is no 

evidence that any neighbor attempted to use the barbecue or

walkway prior to Rancho Carlton. When a home was built on the 

servient estate, the home’s design did not connect to the existing 

walkway and barbecue. In fact, a separate barbecue area was 

constructed for the home on the servient estate, and a retaining 

wall was erected that prevents access to the portion of the 

6 We note that in common interest developments, patios 

and balconies located in a common area that are designed to 

serve a single separate interest are considered “exclusive use 

common area” and allocated by statute for the exclusive use of 

the separate interest unless the declaration for the common 

interest development provides otherwise. (Civ. Code, § 4145, 

subds. (a) & (b).)
28

easement where Radnor’s improvements are located. The 

barbecue and the walkway on Parcel 2 had already deteriorated

substantially when Radnor purchased the property, but the 

owner of the servient tenement did not conduct any maintenance,

and there is no evidence that the owner of the servient tenement

offered to share the cost of the extensive repairs that Radnor 

subsequently completed.

Conferring exclusive use of the improvements on Parcel 2 

was not tantamount to conveying a fee estate in this case, 

because the scope of the easement is limited in several important 

ways. The improvements cover only a portion of the easement 

area. Radnor may use the improvements for backyard activities, 

but he does not have unlimited use of the property because he 

cannot change the character of the improvements, such as by

constructing a guest house or installing a hot tub. And the 

easement is of limited duration, because it terminates when 

specified improvements are demolished.

C. Remainder of Easement Area over Lot 19

The trial court ruled in its statement of decision that the 

language of the grant deed conveyed a non-exclusive easement 

over Lot 19, but the court, sitting in equity, awarded exclusive 

use of the property east of the 2007 wall to Radnor. The

judgment prepared by Radnor and entered by the court, however,

states that Radnor and his successors-in-interest have exclusive 

use of the portion of the easement east of the 2007 wall as a 

necessary incident of his easement rights. To the extent the 

court’s ruling is based on construction of the grant deed, it is 

incorrect. 
29

The deed does not provide the easement holder with the

right to exclusive use of every inch of the easement area. The 

dominant estate may use the easement area for the physical 

improvements listed in the grant deed and rights necessarily 

incident thereto, but must use these rights in such a way as to 

place as little a burden on the servient estate as possible. There 

is no indication from the deed or the circumstances surrounding 

the creation of the easement that the grantor intended to convey

exclusive use of the entire easement area as a necessary incident 

to having a barbecue, a walkway, and a retaining wall on a 

corner of the easement area. Every incident of ownership that is 

not inconsistent with the easement is reserved to the owner of 

the servient estate, and neither party may conduct activities in 

the easement area that unreasonably interfere with the other 

party’s right to use the property. Undisputed facts show

exclusive use of the entire easement area was not a necessary 

incident of the easement. The owner of the servient tenement 

constructed a home that invaded the easement area and installed

a substantial retaining wall that effectively excludes the owner of 

the dominant tenement from the west end of Parcel 2. There is 

no evidence these activities unduly burdened Radnor’s use of the 

easement; in fact, Radnor expressly did not object to the 

encroachment. We construe the grant deed as allowing Rancho 

Carlton to use the easement area outside of the location of the 

barbecue and walkway for any activity, as long as it does not 

unreasonably interfere with Radnor’s use of the easement for the

improvements listed in the deed.
30

D. Termination

Rancho Carlton contends that the trial court’s 

interpretation of the termination provision of the grant deed was 

erroneous. We conclude that the trial court placed the proper 

construction on an ambiguous provision. 

There are several ambiguities in the termination provision 

for the easement on Parcel 2, which states “the above easement 

will terminate when the improvements now located on the above 

described portions of Lots 19 and 20 . . . have been demolished.” 

As a result of these ambiguities, it is not clear which 

improvements trigger termination when they are demolished. 

The grant deed describes a portion of Lot 19. It does not describe 

a portion of Lot 20 in the same manner. It conveys all of Lot 20

in fee simple, reserving an easement to the grantor for sewer 

purposes. 

At first glance, it appears the termination language refers 

to the improvements expressly listed within the same provision 

for the easement on Parcel 2, namely, the barbecue, the walkway,

and the retaining wall. The grant deed provides a specific legal 

description of the portion of Lot 19 where these improvements 

are located. But the termination language also refers to 

improvements located on Lot 20. If the drafter intended the 

easement to terminate based solely on demolition of 

improvements on Lot 19, there was no need to mention Lot 20. 

In construing the deed, we give purpose to every part and do not 

construe any term to be superfluous. The provision must require 

demolition of more than just the improvements existing on Lot 

19.
31

The provision could potentially refer to the improvements 

listed on Lot 19, but also include the part of the walkway that is 

located on Lot 20, since the walkway is located on Lots 19 and 20. 

But the termination language concerns improvements on the 

“above-described portions” of Lot 19 and Lot 20. There is no legal 

description of Lot 20 that is limited to the location of the 

walkway.

The legal description of Lot 20 in the grant deed covers the 

entire property in fee simple, reserving an easement to the 

grantor for sewer purposes. The deed does not describe the 

improvements existing on Lot 20, but extrinsic evidence 

establishes that the house on Lot 20 existed at the time the 

property was divided and the easements were created. In 

context, the termination provision can be construed to refer to the 

improvements listed on the portion of Lot 19 described in the 

deed and the improvements on Lot 20 other than the sewer 

easement. In other words, the easement will terminate when the 

barbecue, the walkway, the retaining wall, and the house are 

demolished, but it is not necessary for the sewer improvement on 

Lot 20 to be demolished before the termination provision applies.

Under the rules of construction, we interpret the easement 

grant liberally in favor of the grantee. Requiring demolition of all 

the improvements controlled by the owner of the dominant estate 

on Lots 19 and 20 is a reasonable liberal interpretation of the 

provision. In addition, it is a logical interpretation under the 

circumstances of this case. If the easement were to terminate 

when only the improvements located on Lot 19 are demolished, 

the existing house on Lot 20 would be wedged into the hillside 

without access to outdoor living space. The existing house on Lot 

20 would still have a need for an easement in order to have a 
32

barbecue, walkway, and retaining wall. However, if the 

improvements on both Lot 19 and Lot 20 are demolished, 

termination of the easement makes sense: there would be no 

continuing need for an easement on Lot 19, as any new 

construction on Lot 20 could reconfigure the design of the home

and the yard to build within the boundaries of Lot 20. We 

conclude the trial court correctly interpreted the termination 

provision to require demolition of the existing home on Lot 20.

Burden on Servient Tenement

Rancho Carlton contends Radnor overburdened the 

easement with improvements that were not contemplated by the 

grant deed, thereby extinguishing the easement. We conclude 

the trial court’s finding that Radnor’s repairs and renovation did 

not constitute an undue burden on the servient tenement is 

supported by substantial evidence. 

“The owner of a dominant estate may do that which is 

reasonably necessary to enjoy the easement and, as an incident 

thereto, keep it in repair and fit for use. [Citation.] But the 

easement may not be substantially altered without the consent of 

the owner of the servient estate. [Citation.]” (Scruby, supra, 37 

Cal.App.4th at pp. 706–707.)

When Radnor purchased his property, the barbecue and the 

brick improvements required substantial repairs. Radnor’s 

replacement of the rotting wooden deck adjacent to the house and 

a portion of the broken, uneven brick walkway with a seamlessly 

integrated wooden deck did not change the character of the 

walkway under the circumstances of this case. The garden wall 

next to the walkway was intact, the walkway area continued to 
33

be covered with a flat surface to walk upon, and the footprint of 

the improvement burdening Lot 19 did not increase, other than a 

small extension of the walkway approximately three feet by four 

feet for a cantilevered portion of the wooden deck. The minor

extension of the walkway protruding over the scrub on the 

hillside next to Radnor’s house did not significantly burden the 

servient tenement in this case. 

Before Radnor’s renovation, the brick walkway was

spacious enough to allow for normal backyard activities, 

including eating a meal at a table, reading a book in a chair, 

using exercise equipment, or socializing with guests at an outdoor 

gathering. Radnor did not change the walkway in the area near 

the barbecue, except to repair bricks. He replaced a nonoperational grill with a structure that was integrated into the 

existing brick and can operate as a fireplace or barbecue. Adding

lighting did not change the character of the improvements. He 

also replaced a dead tree that the owner of the servient tenement 

had not maintained. The court’s finding that Radnor’s repair and 

renovation did not exceed the scope of the easement is supported 

by substantial evidence.

Remedy

We must reverse the judgment because it is based on 

incorrect interpretations of the scope of the easement conveyed 

over Lot 19 in the 1965 grant deed. First, the judgment rests on 

the incorrect interpretation that the grant deed conveyed a 

nonexclusive easement over Lot 19. Second, the judgment also 

appears to be based on the incorrect interpretation that the deed

conveyed exclusive control of the entire easement area as a 
34

necessary incident to having a barbecue, a walkway, and a 

retaining wall on the property. We remand for the trial court to 

enter a new judgment providing relief based on our 

interpretation of the 1965 grant deed as conveying exclusive use 

of the area where the improvements are located as a necessary 

incident of the easement and conveying nonexclusive use of the 

remaining easement property.

“An easement owner may sue to enjoin an obstruction or 

an unreasonable interference with her specific, limited, definable 

use of the easement by the servient owner. [Citations.] Or 

the easement owner may bring a cause of action for declaratory

and injunctive relief to resolve a dispute regarding the nature 

and scope of that easement. [Citation.]” (McBride v. 

Smith (2018) 18 Cal.App.5th 1160, 1175.) 

We also note that the judgment must be reversed to the 

extent it is grounded in an equitable remedy, and not based on a 

correct interpretation of the grant deed. The cases that Radnor 

has cited on appeal to support the trial court’s equitable remedy 

have no application to the circumstances of this case. If a trial 

court finds a trespasser has encroached on another’s property and 

certain conditions are met, an equitable doctrine known as the 

“doctrine of relative hardships” or “balancing of the conveniences” 

allows the trial court to fashion an equitable property interest

that preserves the encroachment rather than granting injunctive 

relief compelling the trespasser to remove the encroachment.

(Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 758–759

(Hirshfield); Shoen v. Zacarias (2015) 237 Cal.App.4th 16, 19 

(Shoen); Ranch at the Falls LLC v. O’Neal (2019) 38 Cal.App.5th 

155, 183–184 (Ranch).) In this case, however, there was no 

finding that Radnor’s use of the easement constituted a trespass 
35

or an encroachment, which is a prerequisite to applying the 

doctrine. The house and the 2007 wall constructed by Rancho 

Carlton’s predecessor invaded the easement area, but the owner 

of the servient tenement was entitled to use the property for any 

purpose that did not unreasonably interfere with Radnor’s right 

to use the easement area for a barbecue, walkway, and retaining 

wall. “Further, ‘the equitable nature of this doctrine does not 

give a court license to grant easements on the basis of “whatever 

[a court] deems important,” even when [the] prerequisites are 

absent.’ (Shoen, supra, 237 Cal.App.4th at p. 19.)” (Ranch, 

supra, 38 Cal.App.5th at p. 183.)

In particular, the case of Hirshfield, supra, has no

application to the instant case. In Hirshfield, supra, 91 

Cal.App.4th 749, the owners of adjacent properties

misunderstood the location of the property line and each built 

improvements that encroached on the other’s property. “Under 

[the relative hardship] doctrine, once the court determines that a 

trespass has occurred, the court conducts an equitable balancing 

to determine whether to grant an injunction prohibiting the 

trespass, or whether to award damages instead. [Citation.]” (Id.

at p. 759.) The court in Hirshfield found there was an 

encroachment, but rather than grant injunctive relief compelling 

the parties to remove the encroaching improvements, the court 

applied the relative hardship doctrine to fashion an equitable 

property interest for each party in the other’s property akin to an 

easement. In contrast, in the instant case, Radnor’s rights to the 

improvements are protected by the written easement. There is 

no trespass on the easement area, so there is no basis to fashion 

an equitable interest to permit it under the authorities cited by 

Radnor.
36

DISPOSITION

The judgment is reversed with directions to enter a new 

and different judgment providing relief in accordance with this 

opinion. In the interests of justice, the parties are ordered to 

bear their own costs on appeal.

MOOR, J.

We concur:

BAKER, Acting P. J.

KIM, J.