cthenn

I did a ride up SG last night after work and it looks like the cut through that many cyclists use through the Diablo Country Club is being fenced off permanently. There were brand new steel fence posts being installed between the existing wall and the next property over, covering the entire stretch of that vacant lot. There was also a "security guard" in a golf cart parked there, assuming he was keeping people out. Unfortunately this appears to be the end of this cut through, hopefully they build that proposed bike lane on Diablo Rd soon because it's a dangerous route. I will still use Alameda Diablo to bypass the majority of Diablo Rd, but it looks like no more hole in the wall bypass.

DiabloScott

My first purchase when I win the lottery will be that property to the south so I can install my own cut through and let everyone use it. Say hi as you pass.

DiabloScott

https://www.change.org/p/us-bank-ope...ablo-diablo-ca

Petition to restore the Hole in the Wall. (and donate to the cause)

Joe Bikerider

I don’t get it. US Bank has decided to put up the fence and endanger cyclists? And advertise with a big sign? I live on the North Side so haven’t really cared as this battle has proceeded for many years. I always thought it was an example of “rich people are a** holes” that has played out for these last several years. Sigh.

DiabloScott

It's not a sign, it's a photo caption. Apparently the south property is semi-owned by a developer who wants to build a mansion there without the inconvenience of the easement path, USBank is funding him, the lawsuit about the easement was dropped (not sure why), so the bank told the developer to go ahead.

Inusuit

Interesting. One of my routes has a cut through the local country club golf course. I'm always respectful of other users and hope they don't close it.

bikingshearer 

There was a lawsuit and it was dropped? I wonder why. My guess: money. Lawsuits are expensive and there is no organized "deep pocket" to fight this. Anybody know more about this?

This is sounding like an example of there being two answers: the law school answer and the real-life answer. The law school answer is there is almost certainly an easement there. The real world answer is that it cost a lot to enforce that right. it's the Golden Rule; he who has the gold, makes the rules.

blt

Since none of us can afford the lawsuit to protect the easement, and since I value my life and don't really want to be on the horrible stretch of Diablo Rd., what is the best way to approach Mt. Diablo Scenic Blvd. from Diablo Rd. and Green Valley, and what is the best way to get back to that intersection from Mt. Diablo Scenic Blvd., minimizing my time on the dangerous stretch of Diablo Rd.?

bikingshearer 

From Diablo Road, veer left onto Alameda Diablo as always. Go slightly right onto La Cadena instead of bearing straight/slightly left to stay on Alameda Diablo (the way toward the old Hole in the Wall). Turn right onto Ave Nueva. (If you miss the veer right onto La Cadena, you can also turn right on Ave Nueva from Alameda Diablo, but it's a little bit further). Ave Nueva will take you back to Diablo Road, but you will be quite close to Mt. Diablo Scenic Blvd (which becomes Southgate) and will have missed the worst of Diablo Road..

Coming down, just reverse. Or just bomb down Diablo Road if you can go fast enough to justify talking the lane.

DiabloScott

The best way is to come from the east (from the Blackhawk side) rather than from Danville. There's a nice bike lane all the way to MDSB. That'll require some major re-configuration of your ride though.

blt

Thanks, bikingshearer, sounds like that misses the most dreadful part.

DiabloScott, most of the time I go up South Gate, I come from Blackhawk Rd., it is the most direct way from where I am off Santa Rita. I had gone Blackhawk Rd. both to and from Mt. Diablo Scenic Blvd. the first 5 or 6 times I went up South Gate. Then one day my son had to be at Monte Vista High on a Saturday for around 3 hours, so I took my bike in the car, parked at Monte Vista and dropped him off. I went Diablo Rd. because a) I didn't know about the hole in the wall and b) I didn't know how terrifying it was, and rerouting to Blackhawk would have left me too little time for Diablo (I'm a slow truck up that mountain). It wasn't so bad going back to Monte Vista the other direction on Diablo, but still not ideal.

Shortly after that trip, I learned on this site about the hole in the wall. Since then, I've often gone back home out the hole, I don't really like Tassajara traffic on a Saturday afternoon, whereas early Saturday morning heading north tends to be fine. And besides, I'm pretty wiped after a summit, if I go through Diablo I can ride pretty much flat all the way home, and the Iron Horse much of the way so if my exhausted brain makes a mistake I'm less likely to be killed. On the other hand, if I have to take Diablo Rd. back out west instead of the hole in the wall, my exhausted brain may be as likely to get me killed, so it is nice to have the bikingshearer alternative. If I'm mostly worried about my exhausted brain and Tassajara traffic, and not worried about riding (relatively) easy uphills, I have gone Blackhawk Rd./Crow Canyon to Iron Horse, which is, I think, a hair longer than going out through Diablo, but not much, that isn't a bad re-routing.

Unless I'm forgetting something (possible at my age), I think I've only gone through the hole to go up South Gate once, and only on a weekday, because just getting to Tassajara can be scary on a weekday morning, and Tassajara is also scary part of the way on weekday mornings, so I took the Iron Horse much of the way, hopped off shortly after Sycamore Grove and worked my way to the hole in the wall. It sounds like the alternative bikingshearer describes will miss the really bad stuff if I ever decide to take that route again, which I may not, at least until I retire. I've never ridden up Crow Canyon from the Iron Horse on a weekday morning, but based the times I've been driving up on weekday mornings, I suspect I'd rather take the bikingshearer alternative route through Diablo.

In any event, I'll miss the hole in the wall. A bike trail along Diablo Rd. would be nice. I hope the owner who has closed off the hole in the wall gets stuck many, many times behind bikes riding as slow as I went the one time I went up Diablo Rd.

DiabloScott

Update 20231013:

Path/Easement Update: A Legal Complaint was Filed yesterday in Contra Costa County Superior Court. Visit the link below to read the Legal Complaint. Please Share this post with ALL your friends!! Special Thanks to Dave Hammond and Hal Seibert for Filing the Complaint!

https://bikedanville.org/legal-complaint-quiet-title.../


Also included is the parcel map with the easement highlighted
​​​​​​​

bikingshearer 

This is excellent news. I will be watching this with great interest. The Complaint certainly makes a compelling case. It will be interesting to see what the Answer says.

If US Bank and the other parties chose to fight this out, do not expect a quick resolution. Lawsuits like this can take one or more (sometimes quite a bit more) years to resolve, especially if it actually goes to trial. I expect that the defendants will try to drag this out to bleed the plaintiffs' financial resources and force the plaintiffs to cave entirely or at lest settle on unfavorable terms. I sure hope the cynical version of the Golden Rule, stated above, does not apply here.

blt

Unless the facts stated in the complaint about the recordation of the expressly dedicated public trail easement are wrong, I don't see how the easement could have been extinguished. I don't believe there is any dispute it has continually been in use since the recordation. Even without the express easement, there is a compelling case, but the recordation of the express easement? Seems like a slam dunk (although there is no such thing as a slam dunk in court cases). There is a recorded public trail easement and it was never abandoned.

The only real hope of the defendants is to bleed the plaintiffs' resources. Hal Siebert is an attorney acting in pro per, so he doesn't have crazy attorney's fees to pay, although with his low state bar number, he must be pretty old, hopefully he is healthy enough to survive a case that drags out a long time. The Patton Sullivan Brodehl firm has good attorneys, I don't know what their deal is with Hammond, but since, on its face, the complaint would seem to be a winner, the fact that there is a pretty clear statutory attorney's fees right may help offset the Golden Rule, and who knows what the deal is with Hammond and Patton Sullivan Brodehl, and maybe the deal involves Siebert providing a lot of work -- maybe he's retired and has time on his hands.

On the attorney's fees front, one of the code sections cited in the complaint, Code of Civil Procedure 731.5, provides, "Whenever any person unlawfully closes any public trail, any person who uses such trail or would use such trail, and any association, corporation or other entity whose membership as a whole is adversely affected by such closure may bring an action to enjoin such closure. The prevailing party in such action shall be entitled to recover reasonable attorney’s fees, in addition to court costs. As used in this section, a public trail is any trail to which the public in general has a right of access, which right is established pursuant to a recorded document conveying to a political corporation or governmental agency, specifying the nature of such public trail, specifically describing the location thereof, and naming the record owners of the real property over which such trail exists if created by a license, permit or easement. It includes, but is not limited to, pedestrian, equestrian, and boating trails, but does not include any public street, road, or highway." Note that CCP 1021.5, also cited in the complaint as basis for attorney's fees, does not provide mandatory fees like 731.5 and is not as clear cut.

But assuming the facts about the recorded easement in the complaint are correct, I don't see how plaintiffs lose and they are ENTITLED to recover attorney's fees and court costs under CCP 731.5 if they win. Not good for defendants.

I don't know why U.S. Bank would be passionate about fighting it. They may have thought they were legally okay if an earlier suit got dropped. But before the fence was built, the facts for declaratory or other relief may not have been there without the easement actually being blocked, which may have been reason for it being dropped, as opposed to a lack of will. In the face of the easement being blocked and an actual suit, it would seem logical for U.S. Bank to come to a reasonable resolution that will leave in place the recorded easement - I don't think the plaintiffs can reach a settlement that can reduce the public's right to use the trail. The plaintiff's sue for themselves as users, they aren't taking place of the public and don't get to screw the public with a settlement. Not that the plaintiffs would want to do that, but the defendant's can't really try to get that in settlement. If the defendants can get these plaintiffs to quit, some other plaintiffs could come along, so long as others don't wait too long, so what's the point of U.S. Bank fighting? If I'm a shareholder of U.S. Bank, I don't want that. U.S. Bank might be even more encouraged to settle if people started protesting at a U.S. Bank location, but I'm not sure anyone is passionate enough for that.

I would think the plaintiffs might be more passionate than U.S. Bank, and if it seems they aren't going to be drive out by cost of litigation, then given their better legal position and right to fees, it would make sense for U.S. Bank to resolve this. The Wooten property owners may be as passionate as the plaintiff, but since apparently the trail isn't even on their property, and is on the U.S. Bank property, I don't know how they can stop a U.S. Bank resolution.

Maybe I am too optimistic about this, maybe there are logical arguments that defendants have to defeat the claim, but from reading the complaint and a few other things, I am hopeful the end resolution a) will restore access to the trail, and b) won't take too many years.

CliffordK

My parents used to have a lot at the Crooked River development near Redmond, OR. On the original plot layout, every lot had a 5' easement along the borders for horses, hikers, walkers, etc.

Mom & Dad were careful to set their fence back from the property line. Then at least one new neighbor came in and put his fence right up to their set back line, gobbling up the entire easement, as well as several feet into my parent's property. I don't know what happened to that as the property was sold (with the intrusion disclosed to the new buyers, I think).

The area won't ever be as high density as some of the California developments. However, I wonder what will happen 100 years in the future when those original easements are rediscovered.

It is quite possible that there will be owners that never signed contracts that mentioned the easement.

For the Diablo cut-through, were the property owners aware of the easement at the time they attempted to close access?

Joe Bikerider

Easements come and easements go. My house had an easement along the North side of our property for a street between us and the neighbor. Well the other property changed hands and the new owner started squeezing the boundary. After several years of legal bills he came up with a new version of the deed that “proved” he controlled the easement. It was claimed to be “exclusive” to him. To avoid even more legal bills I have just given up. My example is just to point out that lots of expensive lawyers can change a seemingly simple easement into whatever they want. Good luck.

DiabloScott

True - easements go away because they are not enforced - eventually somebody blocks them or moves the boundaries and it becomes unenforceable and therefore no longer valid. Happens a lot with driveways and fences. Hundreds of people every week using this path will be a hard thing to deny.

blt

Yep, hence my point, since recordation, it is undisputed there has been continuous use, so there seems to be no argument the easement was extinguished, which makes the case seem like a slam dunk. Of course, the defendants may have an argument to the contrary, I just don't know what it could be.

cthenn

The easement was dedicated on a recorded map, they are offered in perpetuity unless quitclaimed/abandoned by a recorded document. Considering the easement has been used continuously since its creation, clearly it is still viable.

DiabloScott

https://www.eastbaytimes.com/2023/10...rs-long-clash/

Subscriber only, but easy to hack.

​​​​​​​So the easement was recorded on some public documents but not all of them, specifically not the State Park maps.

cthenn

so then what's this new lawsuit all about if a judge as recently as july has already decided the easement has expired?

bikingshearer 

Good question. If I am reading this correctly (and it has been a quick read), the two lawsuits deal with different - adjacent but different - parcels of real property, the one to the south of the trail and the one to the north of the path. The prior lawsuit from which the July judgment springs appears to say there is no easement on the property to the south of the path (the "Wooten property" in both lawsuits). This new suit seeks to establish that there is an easement on the property to the north of the path (the "US Bank property" in the new lawsuit).

There are all kinds of possible legal issues here, not least of which how the findings in the prior suit affect this new one. The fact that new lawsuit deals with a different parcel of real property with a different easement claim should weigh in favor of the July judgment not being controlling, but it is hardly guaranteed the judge will agree. This whole mess would make a first-year Property class law school exam question - or worse yet, a bar exam question. Then there is the practical, real-life factor - which side has the funds and fire in the belly to fight this out?

It will be interesting to see how it all plays out.

cccorlew

It would be interesting to see what would happen (I'm not suggesting... just wondering) if someone, under cover of darkness, with their licence plates obscured, were to rip that fence out, thereby reopening a perhaps illegal blocking of a public right of way.

Also, isn't there some law that says if the public uses a path, uncontested , daily, for X years, that path becomes a public right of way?

bikingshearer 

Great to hear from you, Curtis! Best to Tricia. How's NY treating you two?

The doctrine yo are talkin about is a prescriptive easement. Yout have the general concept right, but in practice it can get very complicated, both legally and factually. If there is a paper trail that shows that there is an easement what the court documents are calling the US Bank Property, that is a much easier way to go.

DiabloScott

It occurred to me that the fence builders WANTED someone to vandalize it so that they could claim the users are a bunch of lawless vandals undeserving of any concessions. Sort of a legal fence gambit.