Offers of Dedication and Public Acceptance; How Much is Enough and Reconciliation of Common Law Revocation with Express Provisions of the Subdivision Map Act
By William W. Abbott
A common scenario in California counties involves the concurrent recording of a subdivision or parcel map, coupled with the subdivider’s offer of dedication of a road easement to the County. Frequently, the offer to dedicate goes unaccepted by the County. Pursuant to the Subdivision Map Act ("SMA"), this offer remains open and can be accepted by the Board of Supervisors at a later date. Government Code section 66477.2. Official action is not always required for the public to gain rights of use. Roads can also be informally dedicated to the public by public use, the question being, how much public use is required?
The recent decision of Biagini v. Beckham (2008) 163 Cal.App.4th 1000, wrestles with this issue. The facts can be distilled down to the recording of a parcel map with an offer of dedication in 2001, which the County of Nevada elected not to accept. In subsequent years, the roadway, a dead-end road for which there were private easement rights (albeit narrower compared to the express offer of dedication) by the various owners (five), their guests, invitees and business clients. A dispute emerged between the underlying property owner and road users. The issue for the appellate court in Biagini was whether or not the use of the roadway was within the easement rights, and if so, could this level of use also rise to the level of a public dedication as well? Reviewing prior precedent, the appellate court concluded that the level of use in the facts of the case was consistent with the express easement rights, but that the level of use did not rise above use within the allowed scope of the easement. In other words, no public dedication.
The appellate court turned next to a relatively untested legal issue, that being common law revocation of a statutory offer of dedication insofar as the offer could be accepted by the public. The trial court also found that the owners burdened by the offer of dedication, had taken actions to repudiate claims of acceptance by the public by objecting to the use pre-litigation, building a fence, and by the litigation itself. Biagini argued that the SMA provisions pertaining to dedications abrogated common law rights of revocation. The court of appeal disagreed, ruling that the SMA offer of dedication can be accepted two different ways: by formal acceptance and by common law. The rights of the County to accept a dedication at a later date remain intact, however, inconsistent acts of the offeror could constitute a revocation of the offer to the public to the extent it was subject to potential acceptance by public use.
The upshot of this case is to permit owners of private land to take actions to restrict access to foreclose claims of dedication to the public at large, knowing however, that at a future point in time, the board of supervisors can still formally express the offer.
Bill Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.