Hubbard v. Brown

Opinion

PANELLI, J.—

I. Introduction

A motorcycle rider was injured as a result of colliding with a barbed wire gate which had been erected across a road in a national forest by the holder of a federal grazing permit. The injured rider sued the permit holder for negligence. Citing section 846 of the Civil Code (hereafter section 846), which immunizes owners of interests in real property from liability arising out of recreational use of the property, the trial court granted summary judgment for the holder of the grazing permit. A divided Court of Appeal reversed, the majority observing that the regulations governing federal grazing permits declare that the granting of such a permit creates no property *192 “right, title, or interest” in the permittee. We granted review to decide whether the holder of a federal grazing permit is entitled to immunity under section 846.

In section 846 the Legislature expressed a strong policy that land should be open to recreational use. Section 846 accomplishes this purpose by immunizing persons with interests in property from tort liability to recreational users, thus making recreational users responsible for their own safety and eliminating the financial risk that had kept land closed. The Legislature adopted an exceptionally broad definition of.the types of “interest” in property which will trigger immunity. Under the statute, immunity extends to the “owner of any estate or any other interest in real property, whether possessory or nonpossessory.” (§ 846.) In contrast, the federal regulation relied on by the Court of Appeal is designed simply to assure that a grazing permittee acquires no interest in federal land that is compensable in eminent domain proceedings. Because the Court of Appeal incorrectly relied on this inapposite regulation to defeat the purpose of section 846, we reverse.

II. Facts

Defendant Ben Brown, Jr., occupies some 40,000 acres in the El Dorado National Forest under a United States Forest Service (Forest Service) grazing permit. Under the permit, Brown was authorized to graze approximately 600 head of livestock in exchange for the payment of a grazing fee. By the terms of his agreement with the Forest Service, Brown was obligated to carry out the provisions of an “Allotment Management Plan” (Plan). The Plan, among its other provisions, specified when cattle would be placed on and taken off the range, required placing of salt for livestock and made Brown responsible for maintaining all improvements, including fences, on the allotted range. The permit was effective for nearly 10 years, and gave Brown priority consideration for renewal. Brown’s annual grazing fee was approximately $1,000.

Brown left the grazing area open to persons for recreational purposes. In July 1984, plaintiff Wayne K. Hubbard rode his off-road motorcycle on a Forest Service road in the vicinity of Brown’s permitted grazing area. Hubbard was injured when he struck an unmarked barbed wire gate which was strung across the roadway. Brown had erected a barbed wire fence and the gate in order to control movement of his cattle on the land.

Hubbard and his wife (Hubbard) sued Brown on a negligence theory, seeking damages for personal injury and loss of consortium. Claiming immunity under section 846, Brown moved for summary judgment. The trial court granted Brown’s motion and dismissed, ruling that “under current *193 law, the permit held by moving parties does constitute an interest in land for purposes of Civil Code section 846.” The Court of Appeal reversed. The court agreed with Hubbard that federal grazing permit holders do not acquire an interest in real property within the meaning of section 846. In so holding, the court cited federal regulations which provide that a grazing permittee acquires no right, title or interest in the land.

III. Discussion

A. Section 846

Section 846 was enacted in 1963. It immunizes the “owner of any estate or any other interest in real property, whether possessory or nonpossessory,” from liability arising from the recreational use of the property. 1

Section 846 was enacted to encourage property owners to allow the general public to engage in recreational activities free of charge on privately owned property. (Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707-708 [ 190 Cal.Rptr. 494 , 660 P.2d 1168 ], cert. den. 464 U.S. 915 [ 78 L.Ed.2d 257 , 104 S.Ct.277 ].) The statutory goal was to constrain the growing tendency of private landowners to bar public access to their land for recreational uses out of fear of incurring tort liability. (Pacific Gas & Electric Co. v. Superior Court (1983) 145 Cal.App.3d 253, 256 [ 193 Cal.Rptr. 336 ]; Parish v. Lloyd (1978) 82 Cal.App.3d 785, 787-788 [ 147 Cal.Rptr. 431 ].)

Contrary to the position of the Court of Appeal, we believe the legislative history of section 846 clearly demonstrates that a federal grazing *194 permit is an interest in real property sufficient to qualify its holder for the immunity provided by that statute.

As originally enacted, section 846 immunized only “[a]n owner of any estate in real property.” (Stats. 1963, ch. 1759, § 1, p. 3511.) In 1980, the Legislature amended section 846 to its present form by inserting the words “or any other interest” and “whether possessory or nonpossessory” into the section’s first paragraph. (Stats. 1980, ch. 408, § 1, p. 797.) As the Court of Appeal recounted in its opinion in this case, the purpose of the amendment was to negate limitations placed on section 846 by that court in two previous opinions. Those opinions, Darr v. Lone Star Industries, Inc. (1979) 94 Cal.App.3d 895 [ 157 Cal.Rptr. 90 ], and O’Shea v. Claude C. Wood Co. (1979) 97 Cal.App.3d 903 [ 159 Cal.Rptr. 125 ], held that section 846 immunized only the holders of possessory interests in real property.

Darr involved an easement to cross the American River granted to a private gravel company by the State of California. The company constructed a low-level bridge on the easement, from which the plaintiff dove and was injured. The Court of Appeal said that because the easement was a nonpossessory interest in real property, 2 it was not an “estate in real property” such that section 846 applied to immunize its holder. (Darr v. Lone Star Industries, Inc., supra, 94 Cal.App.3d 895, 900-901 .) O’ Shea, supra, 97 Cal.App.3d 903 , involved an action against an earth removal contractor and others by a motorcyclist who was injured while riding in an area in which the contractor had stockpiled removed earth, pursuant to a license from a private property owner allowing him to do so. The trial court had granted the contractor’s motion for summary judgment. Reversing, the Court of Appeal held that in enacting section 846, the Legislature did not intend to disturb the common law rule of limited liability to owners and possessors; hence, “[t]he statutory limitation applies to those who have a possessory interest, which includes the right to exclusive occupation as against the injured user.” ( 97 Cal.App.3d at p. 911 .) Because the contractor had failed to establish that his license entitled him to possession of the premises as against plaintiff and other third parties, a triable issue of fact remained. (Id., at p. 912.)

It is clear that the Legislature intended, when amending section 846, to broaden the scope of the statute so that it would apply to the Darr *195 and O’Shea contexts in future cases. Assembly Bill No. 1966, 1979-1980 Regular Session, which amended section 846, was introduced just three months after the decision in O’Shea . As the Court of Appeal in this case noted, reports by both legislative committees that considered the bill cited Darr and O’Shea as the impetus for the amendment. (See Legis. Counsel’s Dig., Assem. Bill No. 1966, 4 Stats. 1980 (Reg. Sess.) Summary Dig., p. 110; Liability-Recreational Use of Land, Sen. Com. on Judiciary 1979-1980 (Reg. Sess.) Feb. 11, 1980.) By amending section 846, the Legislature indisputably intended to remove the Darr and O’Shea limitations and to immunize the owner of any interest in real property regardless of whether the interest includes the right of exclusive possession. Though acknowledging these facts of legislative history and intent, the Court of Appeal nevertheless found that certain provisions of the federal regulations governing grazing permits overrode the Legislature’s intention as regards federal lands. We disagree.

B. Federal Grazing Permit Regulations

The majority opinion of the Court of Appeal rests on the premise that the federal government has paramount authority to determine whether an “interest in real property” is created in federal lands. Because title 36 of the Code of Federal Regulations, section 222.3(b) (1989) (section 223.3(b)) states that “[gjrazing permits and livestock use permits convey no right, title, or interest held by the United States in any lands or resources,” the Court of Appeal reasoned that defendant did not possess an interest in land for the purposes of section 846.

It is true that the holder of a federal grazing permit is, for the purpose of eminent domain proceedings, a licensee without compensable property rights. (Osborne v. United States (9th Cir. 1944) 145 F.2d 892, 895-896 ; Tidwell v. State ex rel. Herman (1973) 21 Ariz.App. 3 [ 514 P.2d 1260, 1262-1263 ]; Acton v. United States (9th Cir. 1968) 401 F.2d 896, 899 , cert. den. 395 U.S. 945 [ 23 L.Ed.2d 463 , 89 S.Ct. 2018 ].) But section 222.3(b), relied on by the Court of Appeal, merely ensures that the holder of a grazing permit does not acquire rights in federal land which are compensable in a Fifth Amendment “taking” context. (U.S. Const., 5th Amend.; United States v. Cox (10th Cir. 1951) 190 F.2d 293, 296 , cert. den. 342 U.S. 867 [ 96 L.Ed.2d 652 , 72 S.Ct. 107 ]; Placer County Water Agency v. Jonas (1969) 275 Cal.App.2d 691, 696 [ 80 Cal.Rptr. 252 ].)

Applying a recreational use immunity statute to grazing permit holders does not undermine this purpose. More specifically, applying section 846 in this case would not have the effect of limiting or restricting any right, title or interest of the United States in the land involved. As the dissent in the Court of Appeal persuasively and, in our view, correctly argued, the *196 limitation of an interest in federal lands for purposes of avoiding compensation in eminent domain need not be extended to preclude finding a property interest for purposes of a state immunity statute.

California recognizes that lack of an interest in property for purposes of compensation is nonetheless compatible with a recognizable interest for other legislative purposes. For example, “[t]he concept of ‘property interests’ for taxation purposes is entirely different from that of compensable interests in eminent domain.” (Placer County Water Agency v. Jonas, supra, 275 Cal.App.2d at 698 .) This concept has been applied to federal grazing permits. (Board of Supervisors v. Archer, supra, 18 Cal.App.3d at 725-726.) More significantly, a license to do an act or acts on private property has been held to constitute a property interest for section 846 immunity purposes (see Colvin v. Southern Cal. Edison Co. (1987) 194 Cal.App.3d 1306, 1312-1314 [ 240 Cal.Rptr. 142 ] [license or easement to place utility poles]; O’Shea v. Claude C. Wood Co., supra, 97 Cal.App.3d 903, 911 [license to pile dirt]), despite the fact that California eminent domain law, like federal law, declares licenses to be noncompensable in eminent domain proceedings. (People ex rel. Dept. Public Works v. Giumarra Vineyards Corp. (1966) 245 Cal.App.2d 309, 314 [ 53 Cal.Rptr. 902 ]; People ex rel. Dept. Pub. Wks. v. Lundy (1965) 238 Cal.App.2d 354, 358 [ 47 Cal.Rptr. 694 ]; Eastman v. Piper (1924) 68 Cal.App. 554, 560-564 [ 229 P. 1002 ].)

We conclude that the Court of Appeal was in error when it found section 222.3(b) and related federal provisions to be determinative when construing section 846. The phrase “interest in real property” should not be given a narrow or technical interpretation that would frustrate the Legislature’s intention in passing and amending section 846. (In re Smith (1928) 88 Cal.App. 464, 467 [ 263 P. 555 ].) Rather, we believe section 846 should be construed so as to effect the intention of the Legislature in its enactment. (Title Ins. & Trust Co. v. County of Riverside (1989) 48 Cal.3d 84, 95 [ 255 Cal.Rptr. 670 , 767 P.2d 1148 ]; People v. Belton (1979) 23 Cal.3d 516, 526 [ 153 Cal.Rptr. 195 , 591 P.2d 485 ]; People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 40 [ 127 Cal.Rptr. 122 , 544 P.2d 1322 ].)

The Court of Appeal discusses the case of Pacific Gas & Electric Co. v. Superior Court, supra, 145 Cal.App.3d 253 , as support for the proposition that section 846 was not intended to immunize owners of interests in land not subject to closure to recreation. But Pacific Gas & Electric Co. is inapposite. In that case, plaintiff, boating on Shasta Lake, was injured when his aluminum mast came into contact with Pacific Gas and Electric Company (P.G. & E.) power lines overhanging the water. P.G. & E. owned the land over which its power lines ran, subject to a perpetual right of the federal government to overflow the property with water impounded by Shasta dam. *197 Finding section 846 inapplicable to immunize P.G. & E., the court first held that because plaintiff’s injury took place, not on the P.G. & E. land underneath the lake, but on the navigable waters of Lake Shasta, there was no “entry” or “use” of the P.G. & E. “premises” by plaintiff within the meaning of that statute. ( 145 Cal.App.3d at p. 257 .) The court reasoned alternatively that because all navigable waterways are held in trust by the state for the benefit of the public, and because plaintiff as a member of the public had a right to navigate the lake in his boat, the legislative purpose of section 846 would not be served by applying the statutory immunity to P.G. & E. as against persons using the public waterways whom it had no right to exclude. (Id. at pp. 258-259; see also Charpentier v. Von Geldern (1987) 191 Cal.App.3d 101 [ 236 Cal.Rptr. 233 ] [explaining Pacific Gas & Electric Co., supra].) However, as we have explained previously, the legislative intent in amending section 846 was to immunize owners of any interest in real property, regardless of whether the interest includes the right of exclusive possession. Thus, to the extent that the Court of Appeal in Pacific Gas & Electric Co., supra, 145 Cal.App.3d 253 , relied on P.G. & E.’s lack of a right to exclude recreational users as a basis for denying the immunity of section 846, it is disapproved.

As previously discussed, the Legislature clearly intended, when amending section 846, to immunize private owners of easements and of revocable licenses from tort liability to recreational users. Although the land in question in this case is publicly owned and evidently already open to the public for recreational purposes, it does not follow that application of section 846 would fail to serve a legislative purpose. As we have seen, the Legislature in amending section 846 clearly expressed its intention to expand the statutory immunity to the holder of an interest in real property irrespective of his right to exclude the plaintiff or other third parties. (See also Lostritto v. Southern Pac. Transportation Co. (1977) 73 Cal.App.3d 737, 749 [ 140 Cal.Rptr. 905 ].) We hold, therefore, that the holder of a permit to graze livestock on federal lands in California is an owner of an interest in real property sufficient to come within the immunity afforded by section 846. 3

*198 IV. Disposition

The judgment of the Court of Appeal is reversed with directions to remand the cause to the trial court to reinstate its judgment of dismissal.

Lucas, C. J., Broussard, J., Eagleson, J., Kennard, J., and Kaufman, J., * concurred.

At all times relevant herein, section 846 provided in pertinent part: “An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures or activities on such premises to persons entering for such purpose, except as provided in this section, [fl] A ‘recreational purpose,’ as used in this section, includes such activities as . . . all. . . types of vehicular riding . . . . [fl] An owner of any estate or any other interest in real property, whether possessory or nonpossessory, who gives permission to another for entry or use for the above purpose upon the premises does not thereby (a) extend any assurance that the premises are safe for such purpose, or (b) constitute the person to whom permission has been granted the legal status of an invitee or licensee to whom a duty of care is owed, or (c) assume responsibility for or incur liability for any injury to person or property caused by any act of such person to whom permission has been granted except as provided in this section, []J] This section does not limit the liability which otherwise exists (a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner. [j|] Nothing in this section creates a duty of care or ground of liability for injury to person or property.”

It is not necessary that we decide whether a federal grazing permit gives its holder a possessory or a nonpossessory interest in the permitted land, because section 846, as amended in 1980, applies to all interests in real property, whether possessory or nonpossessory. (See fn. 1, ante, p. 193.) It may be noted, however, that grazing permits have been held to be possessory interests for the purposes of taxation. (Board of Supervisors v. Archer (1971) 18 Cal.App.3d 717, 725 [ 96 Cal.Rptr. 379 ].)

Our holding is not affected by the fact that the land involved in this case is owned by a governmental entity. Our determination in Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d 699, 707-708 , that section 846 does not immunize state governmental entities (because to so interpret it would be irreconcilable with provisions of the California Tort Claims Act), does not affect the analysis of this case, which involves a private interest in federal land. Nor is the federal government a defendant in this case. We note, however, that the Federal Tort Claims Act makes the United States liable for negligence in the same manner and to the same extent as a private individual would be in similar circumstances. ( 28 U.S.C. § 2674 .) Therefore, section 846 applies to the United States in the same manner it applies to a private property owner. (Simpson v. United States (9th Cir. 1981) 652 F.2d 831, 833 ; Von Tagen by and Through Von Tagen v. United States (N.D.Cal. 1983) 557 F.Supp. 256, 259 .)

Retired Associate Justice of the Supreme Court sitting under assignment by the Acting Chairperson of the Judicial Council.