California Supreme Court Settles Split of Authority re Implied Dedication of Private Property to the Public
In a 2015 post on Money and Dirt, we reviewed a then-recent Court of Appeal decision, Scher v. Burke, and discussed the split of authority among California courts on the topic of “implied dedication” of private property to the public.
The California Supreme Court has now resolved that split.
Implied Dedication — the Split of Authority
In the 2015 Scher decision, the Court of Appeal addressed a claim that a roadway running through private property had been impliedly dedicated to the public based on its history of use by the public for vehicular access.
Prior case law held that Civil Code section 1009(b) prevented implied dedication only for property used for recreational purposes. Under those decisions, the public’s use of private property for other purposes — like vehicle roadway access — could still ripen into an implied dedication without the owner’s express consent.
The Scher court parted ways with that prior authority and interpreted Civil Code section 1009(b) more broadly, holding that no use of private property by the public would result in dedication of the property to the public unless the owner had made an express, irrevocable written offer of dedication that had been accepted.
Under this broad interpretation of section 1009(b), the Scher court ruled that the roadway’s historical use by the public for vehicular access did not result in an implied dedication.
At the conclusion of the Money and Dirt post, we noted:
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.
California Supreme Court Resolves the Split of Authority
Sure enough, the California Supreme Court granted review of the Scher v. Burke decision.
In its recently published opinion, the Supreme Court affirmed the decision of the Court of Appeal.
The Supreme Court held that while the beginning of the statute (section 1009(a)) reciting the Legislative findings refers to recreational use, the operative portion of the statute (section 1009(b)) was written in categorical terms, stating broadly that “no use” by the public would ripen into an implied dedication of property to the public.
Thus, the Supreme Court held that the public’s historical use of the private roadway for vehicular access did not result in an implied dedication of the property to the public. In other words, the owner of the private property was free to exclude the public from using the roadway by erecting gates.
Lesson
The prior split of authority has now been settled by the California Supreme Court. Civil Code section 1009(b) prevents any use of private property from ripening into an “implied dedication” of that property to the public.
Note that the Scher opinion did not address a statutory exception under section 1009(d), addressing a governmental entity’s use of private lands for public improvements or maintenance.