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Posts Tagged ‘easement’

California Supreme Court Clarifies That The Restriction On Implied Public Dedications On Non-Coastal Property Set Forth In Civil Code Section 1009(b) Is Not Limited to Recreational Uses Only.

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.”

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CASE UPDATE: Court Rejects “Equitable Easement” Claim

Court rejects property owner’s claim that he had an “Equitable Easement” to use an improved patio area on his neighbor’s property and remanded the case back to the trial court to adjudicate the plaintiff’s prescriptive easement claim.

In Shoen v. Zacarias, (2015) 237 Cal.App.4th 16, the court of appeal overturned the trial court and rejected plaintiff’s claim that she had an “equitable easement” to use a patio area on her neighbor’s property that was only accessible from the plaintiff’s property.   The equitable easement doctrine evolved to give courts discretion to balance hardships in neighbor disputes over the use of property, and it can be used when a party cannot satisfy all the elements for an actual or prescriptive easement.  The court summarized the current rule as follows:

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CASE UPDATE: When The Language Of An Easement Is General The Extent Of Its Use Is Established By Past Use.

The case of Rye v. Tahoe Truckee Sierra Disposal Company, Inc., (3rd Dist. 2013) 2013 WL 6578784, –Cal.Rptr.3d–, involved a fairly common dispute about the extent of an easement.

A garbage company had an easement, created by reservation in a deed, to use a certain parcel for “parking, ingress, egress, utilities and storage” related to its business. The subject parcel contained a paved area and an unpaved area, and the garbage company used the paved area.

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Who Is Responsible When Uphill Stormwater Causes Downhill Damage?

Introduction

Stormwater issues are not new to residents of hillside and mountain areas. Because winter storms often bring voluminous amounts of rain, sometimes for weeks on end, it is important to know how and where all that stormwater is flowing through your property in order to protect structures from damage and to protect the land from erosion. Sometimes stormwater needs to be collected, concentrated and discharged elsewhere through pipes or culverts, especially following new construction or the creation of impermeable surfaces (like roads and driveways).

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Miles J. Dolinger
Attorney at Law

314 Capitola Avenue Capitola, CA 95010
Phone: (831) 477-9193
FAX: (831) 477-9196
miles@dolingerlaw.com

“I would definitely go with Mr. Dolinger again, and I would recommend him in a heartbeat to anyone who is looking for representation. He knows his business and he is very good at it.”

Richard. February 8, 2015
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