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.”