Subject: Re: Brush Road
From: <Michael McNamara>
Date: Tue, 12 Aug 2008 17:32:22 -0700
To: <Matthew Hurley (LGR Atty)>
CC: <Salvatore Giovannotto>, <Carrie Martin>, <Scott Landstrom>, <Mark Strombotne (BRC Atty)>, <Kurt Anslinger>
Excellent questions, this is a good dialog. I believe this is an
effective way to bring you up to speed on the situation in a rapid
Perhaps you should visit the site. It has helped others
tremendously to understand the issues.
Absent such a journey on your part, I have attached some pictures I
took last winter. Pictures IMG_1942
and IMG_1944 are looking from the top
of the dam, at the position marked A on the map below, looking
towards the yellow area which is the approximately 35 foot deep hole.
As you can see in the map, the Giovionato Land is marked, and is
bordered on the North by Brush Road, and on the south by the straight
line. This is a topographical map, so you can see the stream bed
where the water flows. The culvert failure site is shown in yellow,
and then the dam with the road passing over it, and then heading to
the edge of Sal's land. The picture IMG_1945 is also taken from the spot
marked A, but looking more to the left, towards highway 17, and you
can see a car coming up the road. In this picture you can see on the
right the vertical part of drainage structure, and the relative size
of the car, and you get the sense that you could pack four or five
cars into this hole; and that there is no fence or barrier to slow
down such cars. In 2006 a grandmother visiting her kids home up here
failed to make the turn and drove into the edge of the hole, but
stopped in time. Back on picture 1942
you can see the edge of the dirt where it has caved in, and the brown
markings on the vertical pipe. Originally, the dirt covered the
vertical structure up to the brown markings.
So this section marked in yellow is the "water trapped behind the
dam", which is eroding the bank, and threatens to eat under the road
from the up stream, yellow side, not the downstream side; that section
(marked 'c') is fine.
Picture IMG_1946 is taken after we
walk down the road in the direction that yellow car came from, and we
get to the edge of your clients property (marked B on the map).
Picture 1947 is taken from point B, but
looking to the left of the road, to the point where the water comes
out of the pipe; this point is marked c. Picture IMG_1951 is
the view the person in the yellow car would have if she got out of her
car and looked towards the culvert.
So, I hope this virtual tour has helped you understand more the
site, the depth of the hole, and the magnitude of the problem.
[Editor's note: See also an
Aerial view of the site.]
I answer your other questions inline.
From: <Matthew Hurley (LGR Atty)>
Sent: Tuesday, August 12, 2008 10:19 AM
To: <Michael McNamara>
Cc: <Salvatore Giovannotto>
Subject: Re: Brush Road
Thank you for your assurance of cooperation with regard to this
serious and complicated matter. I trust that we will all work toward
a satisfactory result in good faith.
I still am looking for a basic verification that the property
corners for the areas in question have been adequately identified.
You state that since 2005 there has been no question as to the fact
that the drainage structure resides on my client's property. I am not
so quick to come to these types of conclusions without the information
necessary to back it up. I simply have asked if a survey had been
completed and field markers installed so that the circumstances can be
readily identified both of record and in the field. I have reviewed a
proposed easement document forwarded to my client that was prepared by
a civil engineer. Did he provide field markers of the points he
described in a manner that can be reviewed in the field? What
benchmarks did he use in establishing his legal description?
We get into a cost situation here. Your client has not contributed
any money to the culvert discovery project. [Editor: Sal's check
arrived later that day] The Brush
Road Company maintains the road which begins after the area where the
problem exists; not this section. Members of the Brush Road Company
do have an easement for ingress and egress over this section of
Road. The 27 other members of the Corporation have advanced funds in
2005 to give us the ability to engage surveyors, lawyers, hydrologists
and engineers to study the problem and come up with solutions. Your
client has not contributed to this fund; despite the fact that he has
a deed obligation to do so.
The Brush Road Corporation has no authority to permit our agent to
go beyond our twenty foot easement on to your client's property and
ascertain where on his property this structure exists. That said,
there are existing field marks at the corners of the State's property,
which someone from the State has highlighted by attaching plastic tape
into the trees above their position. This is not a certified survey,
and we have asked, and the State has agreed as a part of the
settlement to install clear, permanent property boundary markers at
the edges of their property.
We would encourage you to hire a certified surveyor and have him
find the property corners and mark them (perhaps installing a 4x4
redwood post, so that they are easily discernable, in order to make
all of the boundaries of your clients property very clear; and further
to determine where on your clients land the drainage structure
I also would like verification that the drainage structure was
installed at the same time as the road improvements for this
section of Brush Road.
And we would like this also. Ideal would be to find the contract
between the builder and the owner, and the cancelled check showing who
paid for it. As I stated previously, the road was built from 1938
until 1940. The best verification we have is the Highway 17 As Builts
we obtained from the California Department of Transportation, where
page 4 shows the right of way they obtained, and shows the old
alignment of the Ridge Road and Ranari Road, and then page 6 (the As
Built) shows that Ranari Road access is gone, the new Brush Road
access road is built, and the culvert is detailed. So we have the
before (1938) with no road or drainage structure, and the after (1941)
with both in place.
Has the State acknowledged that all of these drainage
improvements were constructed as part of their Highway 17
improvements or has that been assumed from the circumstances?
The State could find no evidence that they built it, or that they
did not build it. They are taking the position that since it is not
on their land, that they did not build it. We took the position that
the later acquisition of the Logan land (in 1941) shows that perhaps
they in the spirit of "Get it Done" built the highway and necessary
roads and drainage structures where it made sense to do so on the
field, and then later did the paperwork back in the office to clean up
any property issues later, and that perhaps this one fell through the
cracks. Then they advanced the thought that perhaps Logan was willing
to sell them his land, but Foster was not, and perhaps Foster agreed
to maintain the structure even though possibly the State's contractor
built the structure. Or perhaps Foster built the structure, and had no
desire to give the state any of his land.
Then early this spring they dug into your client's title, and
discovered the existence of the Foster-Steinbeck agreement, where the
entire length of the road, including the length crossing the dam and
drainage structure is called out, and it is stated that Steinbeck paid
for the construction, repair, maintenance of the road, that he
retained rights to continue to use and repair the road, and that
Foster has no responsibility to pay for any of these repairs as long
as he lives (therefore implicitly, after his death (or he sells the
land), this guarantee from Steinbeck expires). This Agreement
establishes the right of the Brush Road Corporation to cross Sal's
land and use the road, as well as to maintain the road (it is an
ingress & egress easement). No mention is made of the drainage
We could compel the State via discovery to share with us all of
their records, and go on a witch hunt through their files. The Brush
Road corporation is not in a position to do this, because we do not
have standing to file a lawsuit (The structure is not on land that is
owned by the company. Perhaps when and if the structure's failure
destroys the road, we would have standing, but it is not clear that
the defendant would be the State of California at that point; and in
such a scenario we would be flying helicopters to get to our land).
You need to advise your client, but I am not entirely sure if your
client has standing either; as it is presumed by the courts that when
one purchases property one accepts it in the condition as it is
disclosed to you. Sal might have a disclosure issue with the person
who sold him the land. Perhaps the person who purchased the property
from Foster had some standing to file a suit against the State of
California, but it is my understanding that the successive owners get
it the way it is when it is conveyed to them (I believe this is called
estoppel by deed).
What maintenance has been done to the drainage structure since
its installation? Has the State acknowledged any maintenance to
these structures during their "friendly neighbor" duration?
The State fully acknowledges that they have been continuously
maintaining the structure from 1938 until 2005. Long time residents
of Brush Road confirm this, reporting that CalTrans workers would
regularly inspect the drainage, and once every few years excavate
around the structure to avoid too much build up of silt and other
debris. Please again recognize that CalTrans has an imperative to
keep the State Highways open, and they do an excellent job of doing
the maintenance necessary to make this happen. We presume that in
doing such a cleanup, it is likely that they damaged or weakened the
structure (perhaps they hit it with a backhoe or front end loader),
and that subsequent storm water runoff found the weakened point, and
has precipitated the ongoing failure of the structure. Or
alternatively, the structure is 70 years old and was only rated to
last for 50 years, so it is outside of its service life.
We believe that their fear that our argument would carry weight
with a jury led them to offer the $42,000 to fix the problem. Again,
we would need your client to advance the suit, as he is the only
currently injured party (Sal owns the structure that would be alleged
the State damaged); Brush Road Corporation would gain standing by
suffering damage when and if the failure precipitated a partial or
complete collapse of Brush Road.
I note that the Ridge Road owners have been singled out for
direct participation. I presume that they are not members of the
Brush Road Corporation.
This is correct.
It would seem that they would need to become members if the
road segment in question becomes the obligation of the Corporation
since without a right to use this section they will be landlocked.
One way for them to gain clear title would be as you describe, for
them to join the Brush Road Corporation, and hence get access to its
easements.. Alternatively, your client could grant to each of them an
ingress-egress easement over just this road segment. As is clear from
the Foster-Steinbeck Agreement, such access has not been granted in
the past as the Agreement required this to be recorded, and approved
by Steinbeck or his grantees. I have seen no evidence that
restriction has been eliminated.
With the formation of the Brush Road Corporation in 1988, all of
the easements each member held were granted to the corporation for the
use of all the other members. One of these easements is the
Foster-Steinbeck Agreement, and as such, you client's granting of
access over this portion of the road to the Ridge Road parcels well
may require the approval of the Brush Road Corporation. In any case,
it is my sense that the feeling of the BRC is that it would be best
from our perspective that your client grant to the Ridge Road folks
access just to the road segment that they need to get access to their
homes. If indeed we still have this right of approval, we would need
a vote of the members, which I would be happy to conduct.
In any case, once they have access, we would either require them to
contribute to a BRC fund that is designated specifically for the
maintenance of the structure and the short road segment; or we would
form a second corporation (perhaps a subsidiary of BRC) to administer
this road segment, and have them join that entity.
I believe that, in the interim, my client will need an
acknowledgement from the Corporation and the Ridge Road owners
that any use of the segment of Brush Road previously believed to
have been on State property, but now believed to be on my
client's property, is with the permission of my client, and not
pursuant to any prescriptive rights.
The Brush Road Corporation parcel owners have clear deed rights by
easement granted under the Foster-Steinbeck agreement for egress and
ingress over this road, including the segment that many assumed was on
State land. This is a clear title, and it is shown as Parcel 2 on
your client's title report.
The Ridge Road people are in a murkier state. We have suggested
that your client grant specific easements to each of these parcels to
clear up any perception of prescriptive easement. This mostly is a
matter between your client and these owners; BRC (may) have a right to
deny such a grant, again based on the Foster Agreement; and we would
certainly approve your client granting to these parcels the right to
cross the minimal segment needed to access the State Highway from
I have also noted that it has been almost a given that
prescriptive rights may have accrued to the State and/or other
individuals as a result of the passage of time under the current
circumstances. Of course, the establishment of rights by
prescription requires that the establishing party or parties
knew of the open, notorious and hostile nature of their use and
that the property owners likewise knew, or should have known of
this open, hostile and notorious use. In the case at hand, it
appears to be quite clear that no one knew of the actual
circumstances surrounding the use of the land in question until
very recently. In fact, it is clear that the corporation and
the Ridge owners believed that the State owned the land and was
responsible for its maintenance......
That is also my read of the California code covering prescriptive
easements. I believe further that in California the party wishing to
establish prescriptive ownership rights must also demonstrate that
they have paid the property tax.
However, despite the fact, or possibility that some or all of the
Brush Road members incorrectly assumed that their rights to cross this
road segment were based on their common ownership as residents of the
State of California, it is the case that they have a clear, restricted
right to use the segment based since 1988 on their membership in the
Brush Road Corporation, and before that as grantees of various
properties carved out from the Steinbeck ranch, and the easement
granted to that land by the Foster-Steinbeck agreement.
Lastly, I once again ask if any inquiries have been made as
to alternative solutions to the drainage issues which do not
include maintenance of the current situation? For example,
has anyone inquired about installation of larger culverts
under the road segment,
We had a half dozen engineering contractors examine the site, and
propose possible fixes. The CalTrans Engineers examined the site, and
proposed inserting a 20 inch diameter plastic pipe into the existing
25 inch corrugated steel pipe as a fix. We then engaged (at Brush
Road Corporation's expense) an engineering design firm to design the
best solution based on these inputs, and what was designed is close to
what you describe. They inspected the site and determined that there
is significant erosion of the pipe walls under the road (the
horizontal segment is about 100 feet long), such that it would not be
possible to insert a 20 inch diameter pipe for the whole length; and
that a smaller diameter would not be sufficient to carry the entire
flow of water given a storm that happens once a century. They
recommended that the cheapest, best solution is to insert a 4 inch
pipe into the existing 25 inch CSP, and build essentially a french
drain at the base of the canyon (perforated pipe that would let water
flow in, but not be blocked by a few leaves or rocks), and then cover
this with rock and an binder to hold it all together, but still allow
water to seep down to the french drain. Then we would cover this with
dirt up to the grade level, and then build a channel on the surface
(or lay a pipe juts below grade) which is set up to accept the storm
runoff, and direct this through a large 4 foot diameter pipe that
would be just a few feet beneath the road surface, and take this water
out to a diversion road field which would slow down the water, and
continue it on its way to the next drain, which takes the water
underneath the State Highway.
We have bids in the range of $100 to 120k for this. (which I
attached in my first email to you).
bridge possibilities in the affected area,
This is also a possibility, although based on the expert's
opinions, it would cost a lot more to remove the existing dam,
relocate the soil somewhere, and build the replacement bridge. If
there is a catastrophic failure this winter (effectively removing the
soil, hopefully not blocking State Highway 17), then we would most
likely install an emergency bridge at great cost as a rush job.
or retention facilities on the downhill side of the road segment where the most problematic erosion has occurred?
Actually the failure is at the face of the dam, the uphill side of
the road; this is eroding and collapsing into the hole, and then the
dirt flows into the existing pipe and down the mountain. If we made
the face of the dam stronger, but did not shore up the integrity of
the pipe under the road, then if/when that pipe collapses and gets
blocked with debris, this would lead to a build up of a lot of water
behind the dam, which would make the situation worse, as that water is
heavy, and the dam is not designed to be strong enough to hold back
this weight of water, and it would collapse; and of course before that
it would flow over the top of the dam (where the road is) and make
access to our homes impossible.
Are we simply proceeding under the assumption that the current situation is the best solution to the problem?
We have spent about $10,000 to get considered engineering opinions
on the best solution; in addition we have gotten the free advice from
the State Department of Transportation and from the various
engineering contractors who have bid on the job. We could always get
more opinions, but perhaps this is enough?
Your response is appreciated.
Matthew H. Hurley
Attorney for Los Gatos Real LLC