In Scher v. Burke, 3 Cal.5th 136 (2017), the California Supreme Court held that the limitation on implied public dedications set forth in Civil Code section 1009(b) applies to both recreational and nonrecreational uses of non-coastal property.
The issue arose from a California Supreme Court case, Gion v. City of Santa Cruz, (1970) 2 Cal.3d 29, which held that private owners of certain coastal property who allowed the public to use the property for recreational purposes over a period of years thereby impliedly dedicated to the public the right to use the owner’s private property. The consequence of Gion was that fewer property owners allowed the public to use their property because of this new risk that the public would obtain a vested right to use the property in perpetuity.
The California Legislature then responded by adopting Civil Code section 1109. Section 1109 provides that no use of private property by the public can ever ripen into a vested public right to use the property unless the owner makes an express written offer to dedicate the property, which is formally accepted by a public entity; EXCEPT that, for certain coastal property (e.g., property within 1,000 yards of the mean high tide line), the public can still perfect a vested right by implied dedication UNLESS the property owner posts or publishes a notice that reads, “Right to pass by permission and subject to control of owner.”
In 1971, in response to Gion, the California Legislature proposed, and subsequently, in 1972, adopted Civil Code section 1009 in order to restrict implied dedications to the public. Subdivision (b) of the section states “no use of such property by the public after the effective date of this section shall ever ripen to confer upon the public or any governmental body or unit a vested right to continue to make such use permanently, in the absence of an express written irrevocable offer of dedication of such property to such use, made by the owner thereof in the manner prescribed in subdivision (c) of this section, which has been accepted by the county, city, or other public body to which the offer of dedication was made … .”
In Scher v. Burke, the plaintiffs were using two roads across their neighbor’s (non-coastal) land that they believed they had the right to use, and a conflict arose when the neighbors blocked Plaintiffs’ access. Plaintiffs brought an action for declaratory relief and quiet title, alleging in part, that the two roads were open to the public because they were impliedly dedicated to the public by use. The Defendant argued that there was no implied dedication under Civil Code section 1009. The Plaintiffs argued in response that the limitation on implied dedications set forth in section 1009(b) only applied to recreational use, and not to simple road/ingress-egress use. The California Supreme Court rejected all of the Plaintiffs’ statutory interpretation arguments and held that section 1009(b) applied to any use of the property, no just recreational use. In so doing, the Court’s opinion rejected a number of appellate opinions that described section 1009(b) as applying only to recreational uses. (Hanshaw v. Long Valley Road Assn., (2004) 116 Cal.App.4th 471, 484–85; Pulido v. Pereira, (2015) 234 Cal.App.4th 1246, 1252; Bustillos v. Murphy, (2002) 96 Cal.App.4th 1277, 1280–81).)
©2017 Miles J. Dolinger. This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship.
Miles Dolinger
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