September 2017

Implied Dedication

Whether recreational or nonrecreational, public’s use of noncoastal private property after 1972 may never ripen into implied public dedication under CC §1009.

Scher v Burke (2017) 3 C5th 136

Plaintiffs owned property in a remote area in Los Angeles County and wanted to access their property by driving on two roadways that crossed defendants’ land. After defendants blocked the roadways with gates, plaintiffs sued, seeking a declaration that defendants’ predecessors impliedly dedicated the routes as public roadways. The trial court ruled for plaintiffs, finding nonrecreational use of private noncoastal property is not subject to CC §1009 and may give rise to implied dedication. The court of appeal reversed, holding that §1009 does not distinguish between recreational and nonrecreational use.

 

The California Supreme Court affirmed, holding that §1009 precludes any post-1972 use, whether recreational or nonrecreational, of private noncoastal property from ever ripening into implied dedication. In relevant part, §1009 provides that “no use” of private noncoastal property after its 1972 effective date may give rise to “a vested right” in the public to continue the using the property permanently, absent an express offer to dedicate the land. CC §1009(b). Examining the plain language of the text, the court noted that it makes no distinction between recreational or nonrecreational use. Instead, it declares unambiguously that “no use” after 1972 “shall ever ripen” into an implied dedication.

Moreover, although the legislative findings indicate a primary concern in encouraging owners to continue making their lands available for public recreational use (CC §1009(a)(1)), that concern does not require the court to infer a distinction when none was written. Indeed, the fact that the legislature referred to “recreational use” in §1009(a), yet chose to refer to “use” alone in §1009(b), further suggests that it did so intentionally. For instance, the legislature may have reasonably determined that unless the prohibition applied to all uses of private noncoastal property, owners may have difficulty discerning between recreational and nonrecreational use and decide to exclude any use altogether. The court also found that the legislative history behind §1009’s enactment supported a strict reading, as many of the materials indicate an intent to prohibit any use of private land, except in coastal zones, from conferring a vested public right.

In reaching its holding, the court disapproved Pulido v Pereira (2015) 234 CA4th 1246, reported at 38 CEB RPLR 74 (May 2015), Hanshaw v Long Valley Road Ass’n (2004) 116 CA4th 471, reported at 27 CEB RPLR 76 (May 2004), and Bustillos v Murphy (2002) 96 CA4th 1277, reported at 25 CEB RPLR 131 (May 2002), to the extent they were inconsistent.

THE EDITOR’S TAKE: The operation of CC §1009 makes more sense to those who understand the bizarre history of the doctrine of implied dedication in California.

The public needs roads—to get from one place to another—and our courts have cooperated in making creation of them easier by providing governments with an augmentation of the doctrine of dedication (whereby a landowner expressly offers a right-of-way over his or her land to the public (or a public entity), which then accepts it)—with a correlative doctrine of implied dedication, whereby fictional offers of dedication (and acceptance) thereof are held to have arisen through not express but cooperative conduct. The classic example of this is when the owner offered to dedicate some land by virtue of simply allowing the public to pass over it, and the public accepted that offer by thereafter just passing over it—a kind of fictional public counterpart to the old private lost grant theory in prescriptive easements without including the inconvenient additional requirement of exclusiveness or hostility (i.e., it wouldn’t matter that no members of the public ever believed they had actual rights to cross or that they alone were entitled to do so).

This doctrine of implied dedication for roads functioned more or less innocuously until the California Supreme Court suddenly held, in Gion v Santa Cruz (1970) 2 C3d 29, that its principles also applied to all public recreational activities, including on California’s coast. Civic-spirited owners of coastal properties who had previously allowed members of the public to frolic on their lands now realized that their generosity could thereafter cause them to lose their lands under this doctrine and, worse, could mean that they had already lost their rights to exclude by having failed to prohibit the public during the past 5 years, while those rights were maturing! Panic set in and fences started to go up.

The legislature came to the aid of the property owners (and to discourage mass walls and fences), but such legislative assistance had only limited effectiveness because of the unique origin of this new variant implied dedication doctrine—it came from common law (court decisions) rather than from statute, meaning that it had technically always been so (because courts don’t make new law—they just announce what always had been the law). The public, in many cases, had therefore already acquired the beaches where its members were now frolicking, which rights could not thereafter be taken or given away, even though they looked like they had just arisen! Outright repeal of Gion might amount to a taking of property.

Thus, CC §1009 ended up containing the peculiar syntax and language that it now has—as a way to protect different kinds of property and different property interests in different ways. The Scher decision shows some of the complexities involved: Beaches are treated differently from roads, and recreational activities differently from others. The court’s new decision was unanimous, indicating that all the justices probably thought this was good policy as well as a technically correct reading of the statute.—Roger Bernhardt

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40 Real Property Law Reporter 114 (Cal CEB Sep 2017), © The Regents of the University of California, reprinted with permission of CEB.

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