Donna Louise Payne v. United States Bureau of Reclamation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNA LOUISE PAYNE,
Plaintiff-Appellant,
v.
UNITED STATES BUREAU OF
RECLAMATION,
Defendant-Appellee.
No. 17-56829
D.C. No.
2:17-cv-00490-AB-MRW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Andre Birotte, Jr., District Judge, Presiding
Submitted May 14, 2019**
Pasadena, California
Before: LIPEZ,*** WARDLAW, and HURWITZ, Circuit Judges.
Donna Payne appeals the dismissal of this action seeking a vehicular easement
over land owned by the Bureau of Reclamation (“BOR”) for failure to state a claim
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
FILED
MAY 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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upon which relief can be granted. We have jurisdiction under 28 U.S.C. § 1291 and
affirm.
1. The district court correctly held that the documents cited in the operative
complaint do not grant an easement. “The intent to grant an easement must be so
manifest on the face of the instrument that no other construction can be placed on
it.” Fitzgerald Living Tr. v. United States, 460 F.3d 1259, 1267 (9th Cir. 2006)
(internal alteration marks omitted) (quoting 25 Am. Jur. 2d Easements and Licenses
in Real Property § 15 (2004)). The 2005 settlement agreement between the
homeowner’s association and the water districts did not purport to transfer a real
property interest, and in any event, the BOR was not a party to it. The 2009 license
agreement between the homeowner’s association and BOR’s agent has been
terminated and only authorized licenses “that do not grant an interest in real
property.”1
2. Payne has not alleged facts sufficient to establish an implied easement.
She has alleged neither prior use, see McFarland v. Kempthorne, 545 F.3d 1106,
1112 (9th Cir. 2008), nor that the BOR intended to convey an easement, see Lyon v.
Gila River Indian Cmty., 626 F.3d 1059, 1072–74 (9th Cir. 2010).
3. Nor do the alleged facts support an easement by necessity. The property
1 Payne’s motions to supplement the record on appeal and to take judicial notice
of a property diagram, Dkt. 21, 26, are GRANTED. The BOR’s motion to take
judicial notice of an aerial image, Dkt. 17, is also GRANTED.

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Payne purchased in 2007 is accessible from her previously owned property. The
mere fact that the easement Payne seeks would shorten her trip to a nearby access
road does not establish necessity. See McFarland, 545 F.3d at 1111.
4. The district court also correctly rejected Payne’s estoppel claim. The
operative complaint does not allege any affirmative misrepresentation or
concealment of a material fact. See United States v. Ruby Co., 588 F.2d 697, 703–
04 (9th Cir. 1978).
5. We decline to address Payne’s argument that the complaint states a claim
for reformation of the 2007 deed because it is raised for the first time on appeal. See
Peterson v. Highland Music, Inc., 140 F.3d 1313, 1321 (9th Cir. 1998).
AFFIRMED.

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