Let’s say you own private property including a roadway that connects to public streets on either end. The public has, for a couple of decades, used your private roadway for vehicular ingress and egress to and from the public streets.
Has your private roadway been impliedly dedicated to the public?
California courts have provided inconsistent answers.
Civil Code Section 1009
On March 4, 1972, Civil Code section 1009 became effective.
Subdivision (a) of section 1009 sets forth the Legislative findings underlying the statute, including:
- it is in the best interests of the state “to encourage owners of private real property to continue to make their lands available for public recreational use to supplement opportunities available on tax-supported publicly owned facilities.”
- private property owners are “confronted with the threat of loss of rights in their property if they allow or continue to allow members of the public to use, enjoy or pass over their property for recreational purposes.”
- such public use clouds the stability and marketability of record titles, compelling the owner to exclude the public from his property.
Subdivision (b) of section 1009 goes on to state that regardless of whether or not a private property owner has recorded a notice of consent to use of private property pursuant to section 813, or has posted signs on such property pursuant to section 1008, “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” unless the owner has made an express written irrevocable offer of dedication which has been accepted.
(Subdivision (e) clarifies that the statute does not apply to coastal property.)
Notice how subdivision (a) — the Legislative findings supporting the statute — consistently refers to “recreational use” while subdivision (b) — the actual operative portion of the statute — simply states “no use” without qualification?
Such legislative inconsistencies breed confusion among the courts.
Prior Court of Appeal Opinions: “Recreational Use”
Several Court of Appeal opinions have held that section 1009(b) applies only to recreational use. See, e.g., Pulido v. Pereira (2015) 234 Cal.App.4th 1246 (Third District in Sacramento); Hanshaw v. Long Valley Road Assn. (2004) 116 Cal.App.4th 471 (Third District); and Bustillos v. Murphy (2002) 96 Cal.App.4th 1277 (Fourth District, Division One in San Diego).
These opinions essentially held that because section 1009(a) only refers to recreational use, section 1009(b) must also address only recreational use. In other words, section 1009 only precludes implied dedications to public recreational use, but not implied dedications to other uses such as vehicular ingress and egress.
Scher v. Burke: “Any Use”
But in a recently published opinion from the Second District Court of Appeal (Division Three in Los Angeles) — Scher v. Burke — the court held that section 1009(b) applies to any use.
In Scher, only non-recreational use (vehicular ingress/egress) was at issue in a lawsuit between neighboring land owners. The trial court, apparently following prior authority, found that two private roads had been impliedly dedicated as public streets and enjoined the defendants from obstructing the roads.
The Court of Appeal reversed, holding that section 1009 prevents any public use after 1972, not just recreational use, from ripening into an implied dedication to public use.
The court relied on the plain language of section 1009(b), which refers to “no use” without qualification. That broad language, the court held, “indicates 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 declined to follow prior authority holding to the contrary.
The answer to the question at the beginning of this post apparently depends on which California jurisdiction you’re in.
Splits of authority like this often get the attention of the California Supreme Court. So, sooner or later, look for the Supreme Court to provide guidance on how section 1009 should be interpreted.
[Update: The California Supreme Court issued its opinion in the Scher v. Burke case on June 15, 2017. See here for treatment on Money and Dirt: “California Supreme Court Settles Split of Authority re Implied Dedication of Private Property to the Public”]