In a prior post, Implied Dedication of Private Property to the Public: the Law is Unsettled, we saw that California courts have struggled with the interpretation of Civil Code section 1009, which generally makes it more difficult for the public to prove it has obtained a “vested right” to continue using privately owned property — i.e., that the property has been “dedicated” to the public.
But section 1009 does not apply to coastal property.
A recent decision from the California Court of Appeal (First District, in San Francisco) — Friends of Martin’s Beach v. Martin’s Beach 1 LLC — addresses coastal property, and the common law doctrine of dedication of private property to the public.
Facts: beach property, a road leading to it, and a history of public use
Martin’s Beach, the property at issue, sits a few miles south of the City of Half Moon Bay in San Mateo County. Martin’s Beach is secluded, with high cliffs extending into the water to the north and south forming a barrier to access. The only means of access are by water, or by Martin’s Beach Road, which runs from the beach inland to Highway 1. The court referred to Martin’s Beach, the road, and the property surrounding the road as the “Property.”
Since around 1900, the Property was owned by the Deeney family. In 2008, the Deeneys sold the Property to Martin’s Beach 1, LLC and Martins Beach 2, LLC (the “LLCs”).
During the Deeneys’ ownership, the public openly used the Property for picnics, barbeques, fishing, surfing, and general fun-having. Since at least the 1930s, the Deeneys (or their lessees) encouraged such public use — they erected a billboard on the nearby highway inviting the public to use the beach and they set up a general store, public toilets, and a parking area near the beach that catered to the public visitors. For some of that time (the duration was unclear from the record), the Deeneys charged a fee to the public.
After buying the Property in 2008, the LLCs initially continued to allow the public, for a fee, to use the road, the parking area, and the beach. But in 2009, the LLCs barred the road with a locked gate and a “No Trespassing” sign, and hired security to prevent the public from using the road or the beach.
The lawsuit: trial court grants summary adjudication in favor of the LLCs
An unincorporated citizens’ group called Friends of Martin’s Beach (“Friends”) sued, asserting rights to continue using the beach and the road leading to it.
The trial court granted the LLCs’ motion for summary adjudication, holding that under the undisputed facts, there was no “dedication” of private property to the public as a matter of law.
The trial court held that a dedication is ordinarily based on a history of use and access that is not permissive and not pursuant to the payment of a fee. The court also ruled that the Deeneys’ maintenance of the convenience store, toilets, and parking constituted “commercial advertising” in furtherance of their private ownership rights, and not a dedication. The court also noted the absence of a “recorded grant deed” reflecting a dedication.
The court of appeal’s opinion
The court of appeal reversed the trial court’s ruling, and reinstated the claim for dedication.
On appeal, the parties largely repeated their legal arguments from the trial court.
The LLCs argued that an “express dedication,” as alleged in the complaint, required specific elements of proof, such as a recorded grant deed conveying the dedication to public entity, and acceptance by a public entity (not just “the public”). The LLCs argued that the Deeneys’ prior conduct (erecting the billboard, maintaining the store, toilets, and parking, and charging a fee to the public) did not satisfy these requirements, and instead demonstrated only “permissive use of the Property pursuant to a license.”
Friends argued that a dedication required only offer and acceptance without the formalities urged by the LLCs — i.e., the offer may be reflected by conduct alone without any written instrument, and the acceptance could occur by the public’s mere use rather than through a formal writing issued by a public entity.
The court of appeal sided with Friends. The court held that dedication of private property to the public is established by proof of only two basic elements: “intention to dedicate by the owner, and acceptance by the public,” and “no particular formality of either word or act is required.” Both elements can be satisfied by any form of evidence bearing on intent, including words, conduct, and use. The court rejected the LLCs contentions that dedication required a formal grant deed, and written acceptance by a public entity.
The court concluded that Friends had alleged facts sufficient to establish a common law dedication claim (either “express” or “implied”), and that the claim could not be dismissed before trial as a matter of law.
The fact that the Deeneys had charged a fee to the public during some periods was not dispositive; rather, it was one factor that should be considered by the fact-finder at trial. The court noted that the evidence presented with the LLC’s motion regarding the fee was very limited — it was not clear whether the fee was charged for access to the road, use of the beach, or some other purpose, and it was also unclear how long the practice of charging a fee persisted.
Further, the court held, the potential “profit motive” behind the fee did not necessarily defeat the dedication claim: “our own research indicates that operation of a commercial enterprise by an owner who reaps benefits from allowing the public to use its property does not negate, and may even support, a finding of intent to dedicate.”
The court of appeal held that the trial court should not have resolved these “many unanswered questions about the fee” in a pre-trial motion.
Abrupt changes in the status quo — especially those affecting the public — get attention. And that attention is usually not the good kind. (Just ask “pharma bro” and similar players associated with abruptly jacking up prices for life-saving drugs.)
California has a long-standing public policy favoring coastal access for all. When a beach previously used by the public gets cut off from access by locked gates and “No Trespassing” signs, courts will take notice. Real estate investors are better off not drawing such sour and negative attention.
Investors in coastal property should pay close attention to the public’s historical and ongoing use of the area. If there is evidence of longstanding and ongoing public use, the risks are substantial that the property has been dedicated to the public.