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 Bowman v. California Coastal Commission, (2014) —Cal.Rptr.3d– (2014 WL 5390057), the court held that the Coastal Commission and the trial court erred in imposing a lateral coastal access easement as a condition of approval of a coastal development permit (CDP) for the reconstruction of a barn, the remodel of a house, and installation of a new septic system.  This case involved two, successive CDP applications to make certain improvements at a single, 400-acre coastal property in San Luis Obispo County.  

In Pulido v. Pereira, (2015) 234 Cal.App.4^th 1246, the court of appeal upheld the trial court’s determination that a prescriptive easement existed and that the public recreation exception (Civ. Code § 1009), did not apply.  Pulido purchased some undeveloped property in Calaveras County.  For six years, the Pulido always accessed the property via a road called Quartz Hill Drive (which was a private road owned by Pereira), by disconnecting a chain strung between two posts at the entrance to the road.  One day, Pereira installed a gate and lock across the road entrance and told Pulido that he could no longer use the road.  Unfortunately, locking the gate affected several other neighbors who also used the road to access their properties, and the neighbors sued.  The trial court held that the neighbors had a prescriptive easement, satisfying the elements that the use of the property was open, notorious, continuous and adverse for an uninterrupted period of five years.