By Glen C. Hansen
In Scher v. Burke (2015) 240 Cal.App.4th 381, the Court of Appeal for the Second Appellate District held, in the published portion of the decision: (1) that Civil Code section 1009 bars all use of non-coastal private real property, not simply recreational use of such property, from ever ripening into an implied dedication to the public after the March 4, 1972 effective date of that statute; and (2) that evidence about the use of a road on private property after that date cannot support a finding that the road was impliedly dedicated to public use prior to that date. (In the unpublished portion of the decision, the Court of Appeal examined extensive historical evidence and affirmed the trial court’s judgment that Plaintiffs had not established their right to an express, prescriptive, or equitable easement for access across Defendants’ properties. A copy of the entire Court of Appeal decision can be found here.)
In Scher, Plaintiffs owned property along Henry Ridge Motorway, which is located in the unincorporated Topanga Canyon area in the Santa Monica Mountains in Los Angeles County. Plaintiffs purchased their property along Henry Ridge Motorway in 1998 with an easement that only gave them access to the north. Defendants’ properties were located south of Plaintiffs’ property along Henry Ridge Motorway and/or along an adjacent road. Plaintiffs alleged in their complaint that Defendants’ properties are burdened, and Plaintiffs’ property is benefitted, by express easements for ingress and egress along Henry Ridge Motorway and the adjacent road. Plaintiffs’ complaint sought to quiet title to the easements and sought declarations that: (1) Plaintiffs are the beneficial owners of express, prescriptive, and equitable easements to use Henry Ridge Motorway and the adjacent road; (2) Defendants have acquiesced to the dedication to public use of the entirety of Henry Ridge Motorway and the adjacent road across defendants’ properties; and (3) Plaintiffs are entitled to use Henry Ridge Motorway and the adjacent road as a public street.
Much of the litigation concerned whether and in what manner Henry Ridge Motorway and the adjacent road were used by the public. In her deposition (admitted at trial) Pauline Stewart, the “matriarch of Henry Ridge,” testified that when she moved to Henry Ridge Motorway in 1977, it was merely a “fire road.” But in 1984, the Los Angeles County Fire Department notified Stewart that it would no longer maintain the road because the “County had designated it as a private road.” Stewart described in a 1988 letter that Henry Ridge Motorway is “a road on private property so it is considered a private road, it is not a public thoroughfare, even though it is open to the public for all practical purposes.” At trial it was shown that several Defendants had recorded irrevocable offers to dedicate easements to the public for a hiking and/or an equestrian trail over those portions of Henry Ridge Motorway that crossed over Defendants’ properties. Defendants also testified that they sought to limit public access over Henry Ridge Motorway and the adjacent road south of Plaintiffs’ property, including locking gates, “religiously” stopping drivers on those roads that they did not recognize, and placing signs along the adjacent road that stated “No access to Henry Ridge Road. Locked gates ahead.” After trial, Plaintiffs amended their complaint according to proof to add a cause of action for implied easement.
In part of its judgment, the Superior Court for Los Angeles County held that Henry Ridge Motorway and the adjacent road had been impliedly dedicated as public streets under Civil Code section 1009. The trial court ruled that section 1009 prevents only recreational use of property from developing into a permanent vested right, following Hanshaw v. Long Valley Road Assn. (2004) 116 Cal.App.4th 471, and dicta in Bustillos v. Murphy (2002) 96 Cal.App.4th 1277, 1280-1281. Indeed, the Third District Court of Appeal in Pulido v. Pereira (2015) 234 Cal.App.4th 1246, recently stated that the words “‘use of such property’” in subdivision (b) of section 1009 “refers back to subdivision (a)(1), which explains that the subject of the statute is the public recreational use of private real property.” (Id. at p. 1252 (emphasis added).) Thus, the trial court quieted title to easements over the two roads in favor of Plaintiffs. Defendants appealed that part of the judgment. The Court of Appeal reversed that part of the judgment in the published portion of its decision.
The Court of Appeal rejected the trial court’s application of Civil Code section 1009 in ruling that the two roads were dedicated to public use. Common law implied dedication arises when evidence of the landowner’s conduct or acquiescence supports the attribution of intent to dedicate. Dedications can be implied in law and implied in fact. A dedication is implied in law when the public’s use is adverse and exceeds the period for prescription. A dedication is implied in fact when the period of public use is less than the period for prescription and the acts or omissions of the owner afford an implication of actual consent or acquiescence to dedication. In addition to an offer to dedicate, the record must show an acceptance by the public. An express acceptance is a formal acceptance by the proper authorities. Implied acceptance occurs when the public has made use of the property for a period of time which demonstrates an intention to accept dedication or where actions by the responsible public officials indicate an assumption of control over the property.
In 1971, the Legislature enacted Civil Code section 1009 to restrict those common law implied dedications to the public. Subdivision (b) of that section declares that
“no use of such property by the public after the effective date of this section shall ever ripen to confer upon the public or any governmental body or unit a vested right to continue to make such use permanently, in the absence of an express written irrevocable offer of dedication of such property to such use, made by the owner thereof in the manner prescribed in subdivision (c) of this section, which has been accepted by the county, city, or other public body to which the offer of dedication was made … .”
That statutory restriction was made effective March 4, 1972.
The Court of Appeal disagreed with the trial court and those other courts and held that section 1009 prevents all public use after 1972, not just recreational use, from ripening into an implied dedication to public use. The court explained:
“Subdivision (b) broadly declares that ‘no use’—not ‘no recreational use’—shall ‘ever’ ripen into a vested right in the public, absent a written offer…. The absence of the word ‘recreational’ from the phrase ‘no use’ in subdivision (b) indicates that the Legislature’s aim was to comprehensively preclude implied public dedications from arising from any kind of public use of private real property.”
The court added:
“Indeed, nowhere in the operative provisions of the statute is the word ‘recreational’ found; ‘recreational’ is only employed in the legislative findings in subdivision (a) of Civil Code section 1009. … As noted, no ambiguity exists in the statute and so it is unnecessary to import the word ‘recreational’ from the legislative findings into the operative portions of the statute when the Legislature has declined to do so. The Legislature clearly intended Civil Code section 1009 to have broader application than solely to recreational use.”
Thus, the Second Appellate District rejected the statutory interpretation adopted or stated in Hanshaw, Bustillos and Pulido.
The Scher court also rejected the trial court’s reliance on evidence of public vehicular ingress and egress after March 4, 1972, to find that Henry Ridge Motorway and the adjacent road were impliedly dedicated as public streets. No witness testified about using or seeing anyone else use those roads for vehicular access before March 1972. Stewart’s testimony that the roads have been used for fifty years failed to describe the number and variety of use that is required to find an implied dedication to public use.
The Court of Appeal also held that the trial court erred in also relying on the express irrevocable offers to dedicate trail easements, which were executed after 1972, as evidence that Defendants and their predecessors impliedly devoted those two roads to the public as vehicular thoroughfares. An exception to the ban on post-1972 implied dedications occurs when the landowner records an express, written, and irrevocable offer to dedicate that is accepted by a governmental entity. However, in this case, the irrevocable offers dedicated easements for trail purposes only, and nothing about Henry Ridge Motorway or the adjacent road being used as public streets. The express dedication of property for public use for horses and pedestrians alone does not result in implied dedications of the same land as a street for cars. Nor was the witness testimony about vehicular ingress and egress for general purposes after 1972 admissible to transform the express offer of a trail for public use into a dedication of the roads as public streets. In short, the trial court erred in relying on post-1972 evidence of public use, and the record contains no express, written, irrevocable offer to dedicate the subject roads as public thoroughfares.
So at the end of the litigation, the Court of Appeal essentially followed the testimony of the “matriarch of Henry Ridge.” Stewart testified that she was unaware of facts that would show that the general public had used Henry Ridge Motorway, over the adjacent road, to access a public road. She added: “I don’t know anybody in their right mind that would even try to go that way.” The Court of Appeal’s decision cemented that result, thereby placing the Plaintiffs back into their right mind.
Glen Hansen is Senior Counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or 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, or 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.