Tentative Ruling In Falossi Vs. Koenig Case Holds Hoot Owl Trail Easement Exists

The judge overseeing Falossi vs. Koenig, one of two interrelated civil suits testing the extent industrial uses can fit into desert neighborhoods, has entered a tentative judgment in that matter. Judge David Cohn ruled, essentially, that David Falossi, whose art studio engages in the fabrication of oversized sculptures involving the use of industrial processes including welding, stone grinding and glass grinding, long ago established a prescriptive easement allowing him to travel over property now owned by his neighbors Fritz Koenig and Nora Fraser. That easement allows Falossi to access his land, upon which his home, which houses six of his seven children and his art studio, is situated.
Koenig and a lawyer for Fraser, Louisa Pensanti, have asserted that Koenig and Fraser had through “neighborly accommodation” permitted Falossi and his family members to transit over Hoot Owl Trail, a dirt road that winds through the rustic neighborhood Falossi, Koenig and Fraser share in the town of Yucca Valley. Hoot Owl Trail along two spots passes entirely over separate properties Koenig and Fraser own. Koenig and Fraser maintained that Falossi and his family were permitted to utilize the portion of Hoot Owl Trail on their property only because they had granted them permission and that Falossi and his family did not have an established right – or easement – to use the road without limit or restriction. Koenig and Fraser maintained that they were at liberty to withdraw the permission they had granted Falossi and his family at any time.
An easement is a right to use and/or enter onto the real property owned by someone else. In January 2013, Falossi filed suit against Koenig and Fraser, seeking to obtain the permanent right to transit over the portions of Hoot Owl Trail which stretch across their properties and prevent both Koenig and Fraser from stopping his forklift or loaded or unloaded ten-ton transport truck from traversing their land.
Koenig has long taken issue with what he characterizes as the industrial nature of Falossi’s fabricating operation that is central to his sculpturing and artwork, which involves industrial processes. Koenig maintains that such activity is incompatible with a rural residential neighborhood and out of compliance with the town’s codes that were in effect since shortly after the town’s incorporation. Moreover, Koenig has objected to Falossi utilizing the dirt road across his property to drive forklifts and a large truck to transport both the raw material Falossi uses in his fabrication process as well as the finished artwork, which in some cases weighs in excess of ten thousand pounds, to and from his home studio.
After Falossi filed suit against him and Fraser, Koenig upon investigation responded with a lawsuit of his own against Falossi, charging the sculptor with operating a nuisance and engaging in violations of the business and professions code and unlawful business practices, maintaining in his suit that Falossi was operating his home-based studio without a home occupation permit for the previous three-and-one-half years and at other times since 1989.
Falossi’s case against Koenig and Koenig’s case against Falossi is being heard by Cohn, who is conducting both cases as a bench trial in which no jury has been impaneled. Instead of a jury, it is Cohn who will render the verdict in the matter. Cohn heard Falossi’s case against Koenig and Fraser first, beginning on July 13. The presentation of evidence in that case and closing arguments concluded last week. On Wednesday of this week, August 12, Cohn entered his tentative opinion which found that Falossi, who has occupied his property since 1989, established a prescriptive easement by continuous use of the road for the statutorily required five year period needed to establish such an easement. In making his finding, Cohn rejected theories propounded by both Koenig and Pensanti
based upon an entire column of cases starting with the 1901 Clarke v Clarke seminal case that asserted for a prescriptive easement to be established, the property in question had to be used in a fashion that is “adverse” or “hostile” to the title and a claim of right had to be asserted. In his testimony, Falossi stated he had not been “hostile” in his use of the road and had made no claim of right to it while he was using it.
Key points argued by Koenig and Pensanti but rejected in Cohn’s tentative ruling is that the “use adverse to the title” and the claim must be communicated to the landowner(s) in order to have the prescriptive period begin. Koenig and Pensanti took the position that the existence of a dirt trail used by many people did not communicate that David Falossi is claiming any right. Central to the defense presented in Koenig and Fraser’s behalf was that the “notice of adversity” must be more explicitly communicated than just through the existence and use of the driveway.
Koenig, and Pensanti on behalf of Fraser, asserted that all of Falossi’s use and all the use since 1989 by the various neighbors in the enclave of others’ property took place as an extension of neighborly accommodation, an informal working system among those living in the area and that Koenig’s and Fraser’s predecessors’ in interest likewise gave “permission by silence” just as the Supreme Court in Clarke v Clarke 1901 discussed.
Case law in California with regard to easements is contradictory, with some court rulings holding that a forthright claim to the easement must be made by the eventual easement holder for five years prior to the easement being granted and other case law saying continuous use and occupation of another individual’s land constitutes a claim.
Koenig had stated that he had no objection to Falossi or his family using the road to reach their destinations while using passenger vehicles but that he drew the line at the use of large scale and heavy vehicles not normally associated with typical residential use.
In his ruling, Cohn held that Falossi’s continuous use of the road for the aforementioned but unspecified five year period, including that by his family’s cars and the truck used to transport the raw materials he used to fashion his artwork and the completed large scale pieces of sculpture, qualified him to continue to use the road in that fashion. Cohn’s tentative ruling, however, did not explicitly reference Falossi’s forklift or his crane.
Both sides have until August 22 to file responses to Cohn’s tentative ruling.
This week the courtroom action moved on to the matter of Koenig vs. Falossi. In an early ruling in that case, Cohn dismissed the causes of action pertaining to Falossi’s violations of the Business & Professions Code and unlawful business practices, but allowed the nuisance claim to proceed.

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