Subject: RE: Brush Road
From: <Michael McNamara>
Date: Mon, 11 Aug 2008 19:28:30 -0700
To: <Matthew Hurley (LGR Atty)>
CC: <Salvatore Giovannotto>, <Carrie Martin>, <Scott Landstrom>, <Kurt Anslinger>, <Mark Strombotne (BRC Atty)>
Please do not assume lack of data is any sort of delaying tactic!
I have a full time job as a software executive, and am also husband
and father to a high school student, and run a small ranch. Serving
as part time President of the road company as an unpaid service to the
neighborhood fits into the tiny cracks that remain of my time.
I sent to you what I had easily at hand.
I guess I naturally assumed that your client would share with you
the many and various communications we have sent to him.
I was elected president of the road company in August of 2005, and
I attach the annual letters we sent to all of the members, including
your client in 2005, 2006 and 2007. This is typically sent with the
bill for the membership dues. Sal or his staff received these and
made the basic payments. Sal is a member of the brushroad yahoogroups
mailing list, and gets all of these communications and updates.
I also forward the direct letter we sent specifically to Sal on 2
September 2007, informing him of the facts as we knew them at the
time, and seeking his direct involvement to help. It would have been
wonderful if he had involved you at that time; but we are where we
are, now nearly twelve months later.
Since 2005, it has never been in question that the structure is on
Sal's land. The question has been as to who built the structure.
As you can see from the title report on Sal's land (attached), the
agreement about (presumably) the road and the drainage structure is
shown as item 5 "The terms and provisions contained in the document
entitled Agreement, executed by and between Fred Lewis Foster,
recorded February 11, 1941 in Book 1028, Page 80 of Official Records."
I sent you this agreement such as it is in my previous email.
I answer your other questions in line.
From: <Matthew Hurley (LGR Atty)>
Sent: Monday, August 11, 2008 12:24 PM
To: <Michael McNamara>
Cc: <Salvatore Giovannotto>
Subject: Re: Brush Road
In response to your telephone call to my home on the
morning of August 11, 2008, I hereby confirm receipt of your
email and the attachment which was forwarded to my email
mailbox on Friday, August 8, 2008. I have downloaded the
attachment and it contained three files which are 1) an
easement deed, 2) a quiet title judgement, and 3) a series of
letters and other communication relative to the drainage
culvert near Brush Road and the Highway 17 intersection.
I have reviewed what you sent, and it appears to me that
most of that negotiation was continuing even after it was
determined that the land in question is apparently owned by my
client. My client indicates that his involvement has been
pretty recent....which causes me to wonder why his involvement
We have been attempting to get Sal involved. See letter dated "2
September 2007" where we ask for his direct assistance. After sending
him that letter I spoke with him on the phone and he said for us to do
what we thought needed to be done, and let him know, that he is very
busy with many other activities (as we all are), and can not be more
Likewise, there must have been a survey performed by one of
the parties wherein the proper property corners were
established as an update to the previously mistaken
assumptions under which the State had historically acted. Do
you have a copy of the survey or know where the survey
documentation resides which supports this new "finding" by the
State that it has historically acted as a "good neighbor"
instead of as an obligor with respect to the culvert?
When the State observed the failure, they went to the site with a
GPS device, and determined that the failure was well outside of their
jurisdiction. As you can see from the correspondence, we tried hard
to establish that some part of it is on their land. Finally, we met
personally with the Cal Trans Director of Rights of Way (who is also a
certified surveyor) at the site in late April of this year, and he
demonstrated where the corners of the property are. All that was in
question at the time was whether there was any portion of the
structure (say the last 5 feet of the pipe) which extends on to State
lands. Unfortunately, there is not. We have asked for, and the state
agrees in their assignment and release form (also attached) to place
permanent property markers at the corners of their property, and road
signs at the end of their road stating "Private Road, No Exit" to make
this clear going forward.
We have also had a survey done (attached) which delineates the
lands of the streambed which we are offering to serve as the party
responsible for the necessary occasional maintenance so that it does
not plug and flood the road.
Lastly, do you have any evidence, whether recorded or
otherwise, and for argument sake assuming that the culvert is,
in fact, on my clients property, that my client or my client's
predecessors were ever aware of a drainage problem which
resulted in the need for the installation of the culvert by
the State in the first place?
The evidence is incontrovertible that the culvert is on your
client's land. The structure is north of the first hairpin curve of
the road, and the entire hairpin curve of the road, and the land to
the south of the hairpin curve road is owned by your client.
The 2/11/1941 agreement (sent in the previous email) between Foster
(then owner of your client's land) and Steinbeck (yes, this is the
John Steinbeck) is the evidence that the road & culvert are on your
client's property, and that the previous owner of your client's land
was quite aware of, and permitted the construction and maintenance of
the structure. History is otherwise quiet on the circumstances; we do
not have as-builts, blueprints or name of contractor; and a reading of
the Foster-Steinbeck Agreement document shows this agreement was an
after the fact summation of rights and responsibilities, rather than a
"let's plan and then build" agreement.
Some historical context, and total conjecture: The State built
Highway 17 starting in 1938, and as one could imagine this opening up
of a quality access route through the mountains caused many people to
quickly do what made sense to re-align access routes to take advantage
of the high quality road. However, the nation was deep into the
depression, so few people had any money. So quite likely Steinbeck
paid to have the road & culvert built to give everyone access to the
new highway. In 1939-40 Steinbeck has an affair with the movie star
Gwen Conger, and in the spring of 1941 John separates from his first
wife, Carol Steinbeck, and that fall he moves to New York with Gwen.
Carol divorces in March of 1942. So viewed from this perspective, in
February of 1941, Steinbeck (or his agent) is cleaning up the title in
anticipation of possible divorce, and establishing rights over the
access route that in previous years he just paid for the building of
(Steinbeck bought the Biddle Ranch, on Brush Road, in August of 1938).
The drainage "problem" was created by the constructing the new
access road. The way they built the road was to construct dam across
the streambed which, as you say, had existed for tens of thousands of
years. When they built the road, they eliminated a drainage problem
by at the same time building a drainage structure to capture the water
which would have otherwise pooled up behind the road, and direct that
water under the new road. That structure worked well from 1939 until
If you look at the Hw17AsBuilts (attached), you can see on what is
the forth page of the PDF the right of ways they obtained, the
proposed alignment of the new highway, and a proposed access road that
would be built to give access to you client's property while
construction was occurring, and as they eliminated the traditional
access. Then you can see on the much busier sixth page of the PDF,
that same drawing with the new Brush Road entry way drawn in. At the
upper right hand corner the Ridge Road (which remains) and the old
road which goes across the lands of Helen W. Hawkins (which was
removed). The smooth dark curved line with the 1 2 3 4 on it is the
center line of the new Highway 17. If you look at the area labeled
William Logan, you see the area in question. This is the new Brush
Road access, and the State bought from Logan the trapezoid shaped
piece in 1942, which I believe you refer to as a land swap. Foster
kept the portion that has the right hand curve, and then goes off of
his land for the tightest hairpin left curve, and then the road comes
back on to Foster's land (now owned by your client).
The failing structure is the box & dotted line that has the words
"Mon. not set Rdwd Flume" next to it. As you can see this is clearly
on your clients land, and was documented in 1939
I see some casual references to a "land swap" at some point
in the historical past, but see no documentation that verifies
such a "land swap" actually occurred. Do you have anything
along those lines?
I will scan in and send you a copy of the William Logan to State
Deed which covers the transfer of the trapezoid. As you will see,
most of the concern is over retaining the oil rights to the land under
the road; and now with gasoline at $4 per gallon (versus the $0.12 gas
cost back then), perhaps we should be focusing on that !!!
Obviously, anything and everything you have will be helpful
to me. It is my understanding from my client that the State
has made a firm offer of settlement coupled with cash
consideration which you have not included in your
correspondence. I asked for everything you had, but it seems
we have started our conversation with a filtered set of
documentation.......I hope this isn't an indication of things
to come, as selective communication usually just slows down
Again, I would have hoped that your client would have provided this
information to you. I have attached this as well
In summary, there appears to be a process here that has
gone on for over three years that did not include my client
for a major portion of the discussions.
This is not true.
Instead your client was always informed by the BRC on status, and
he was also asked personally to participate directly in writting
twelve months ago, and he declined to assist. The Brush Road
Corporation is a very interested party in the continued existence of
the Brush Road as it traverses the streambed, as our members depend
upon the road for access to their properties. We have a recorded 20
foot wide easement to that road. We are willing to stand aside and
observe as Sal repairs the threat that his drainage structure, which
he obtained when he purchased this land, poses to the continued
existence of the road. We would then hope he proceeds quickly, as a
normal to wet winter could destroy the road. If he does not repair
the structure, despite three years of notice, and its failure prevents
access to these 30 parcels, one could be certain that his fellow
members of the Brush Road Corporation would take action.
Conversely, we offer what we feel would be a much better solution,
where he would join with these same neighbors, to effect a repair
which would cost in aggregate about $100k, hence with $42k from the
state, leaving the per parcel cost of just about $2,000. He would
grant a drainage easement to the Road so that its agents would effect
the occasional as needed timely cleanup and other maintenance of the
streambed and replacement drainage structure so that future failures
do not occur, or when and if such a failure does occur, our grantees
don't need to spend three years in digging through papers to see who
is responsible for such a repair.
He has recently been asked (in rather strong language from
my point of view) to provide easements and access to more than
20% of his parcel to solve a problem that he did not create
without being given the essential information he will need to
decide what his course of action should be.
Sal's property (APN is 544-35-002, see attached land plat) is 14.94
acres in size. The drainage easement covers 2.05 acres, which is 13.7%
of the parcel. This land has been streambed for tens of thousands of
years, and will continue to be this for thousands of years after we are
all gone; and with the current waterway laws there is nothing Sal would
be allowed to do with this land. What we are asking for is a recorded
easement so that if Brush Road hires contractors to clear brush or fix
pipe, should these folks be injured or die, there would be no liability
to your client.
It appears to be presumed that the current configuration
for the drainage culvert is the only viable method of
controlling the water which has passed down that drainage area
for hundreds of years and it suddenly has been assumed that my
client is responsible, in some manner, for any and all damage
that might result from losses to Brush Road, an ingress-egress
easement that his predecessors in interest granted WITHOUT
LIABILITY for any maintenance.
You are correct, that this is the way the water flows. We hired a
licensed hydrologist who researched the site and determined the flow
of water over the land, the amount that might flow during the maximum
flow over 100 years, and size the required pipes. His report was
attached in my previous email, and we sent this to Sal in the
September 2, 2007 letter.
As for the conditions of the grant for the ingress-egress easement,
you are correct, that the easement covers just the 20 foot wide right
of way, and there are no rights or responsibilities conveyed to the
drainage structure which starts on your client's land, runs under the
road, and continues back on to your clients land. You have my
conjecture above as to what I postulate might have been the
circumstances that lead to such a legal train wreck. Of course, this
is not the first time we have had to clean up the paper work later.
And, as you can for example in your clients title insurance document
Exceptions from coverage, Schedule B Part 1 (attached): EXCEPTIONS
FROM COVERAGE - Schedule B Part 1
This Policy does not insure against loss or damage (and the Company will
not pay costs, attorneys' fees or expenses] which arise by reason of:
2. Any facts, rights, interests or claims which are not shown by the
public records but which could be ascertained by an inspection of the
land or which may be asserted by persons in procession thereof.
3. Easements, liens or encumbrances, or claims thereof, which are not
shown by the public records.
4. Discrepancies, conflicts in boundary lines, shortage in area,
encroachments, or any other facts which a correct survey would disclose,
and which are not shown by the public records.
Even so, the above title exception does not apply - the Foster -
Steinbeck agreement which describes the ingress-egress easement is
listed in your client's title, and this 20 foot wide easement is
actually listed twice; once in the first description, and then as Parcel
Two. There is no easement or maintenance agreement recorded that covers
the drainage structure. Perhaps there was an unrecorded agreement
between Foster (or some later grantee) and the State Highway Association
that covers the drainage structure. A diligent search of the Cal Trans
(They took over the California Highway Authority) records did not reveal
this; nor did the various title reports your client has obtained. So
absent some recorded agreement showing someone else has responsibility
for this structure, the responsibility falls to your client.
These things can be complicated and they take time to
correctly assess and resolve. You have had considerably
more time on subject than my client. That does not change
the fact that he is entitled to, and will take, adequate
time to deal with your concerns. I suggest, as I did in my
initial email, that any and ALL correspondence relative to
this situation be forwarded to me at the address provided
so that I might have the opportunity to assess my clients
rights and responsibilities fully prior to advising him on
what his next course of action should be. Otherwise, the
process will begin with my contacting the State and
commencing discussions with them relative hereto. Now
THAT, I am certain you know, can be a long and frustrating
Again, We the members of the board of the Brush Road Corporation
are absolutely thrilled that Sal has engaged your involvement to
advance the process here. We have tried many times to get Sal to work
with us. (Please do note that most road members don't spend anytime
on these matters either; they are content to let the few do the work
of the many; so Sal is no different. However, in this case since the
structure is on his property, one might expect that he would be more
motivated to get to a good conclusion).
I and my fellow Board members have spent many hours of unpaid time
working on this matter, negotiating over the phone, via email, and
meeting face to face with CalTrans people three times in their Oakland
California offices, to try to get progress on this matter. We have
worked with our State Senator, Able Maldonado, to successfully obtain
his assistance in this matter multiple times, when CalTrans went radio
silent. This process has gotten to a great point. We have gotten an
amazing settlement from the State. Originally they were going to
contribute $20k, we got them to up this contribution to $42k, and got
this included in the allocation for the 2009 budget year; and as you
can see from the Sacramento news stories, getting anything in this
years budget is nearly impossible. As you well know, a law suit to
get to a ruling on this matter would cost more than this, and we would
not be able to prove culpability of the state, so we could not expect
for those legal fees to be reimbursed if we prevailed. The total one
time charge to Sal is around $2k to make this matter go away, and
eliminate any liability to him for future issues with the road, or the
water related to his land.
I personally hate it when someone tells me, "Don't worry, trust me,
just sign." And here I am appearing to ask your client to do this
very thing. This is not the case. We have shared with him all of the
details. We asked for his direct involvement one year ago. He
declined. He did not contribute to the funding for the project. We
have gotten a good agreement without his help.
Now I am sharing these details with you, who is the guy brought in
at the end, and the guy being asked to make a quick decision, while
still absorbing the facts. Please take the time you need (but only
this amount!) Please let me know anything else you need, and I will be
happy to provide it if I have it. Your client and we do have a
pressing need to get this fixed before the threat turns into a washed
We have a contractor who is ready to go; we have been asking for
him to slip out start date as Sal asks for additional data and
meetings. The next current start date is August 15th. The total job
will take about one week to complete. By California law, construction
in the mountains must be completed by October 15th, so as to avoid the
Your complete cooperation in this regard will be appreciated.
Indeed, and yours as well!
Matthew H. Hurley
Attorney for Los Gatos Real LLC
P.S. My home telephone number is probably not the best one
to use for me. For now, telephone discussions are probably
not productive. I find that a complete review of all
pertinent documentation always puts things in a better
perspective for fruitful conversation at a later date.
Fine. Do please indicate that you've received this communication so
that I know it has made it through the computer networks ( I know enough
about computers and networks to not trust to correct and timely