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Scher v. Burke

Filed 6/15/17 IN THE SUPREME COURT OF CALIFORNIA JAIME A. SCHER et al., ) ) Plaintiffs and Appellants, ) ) S230104 v. ) ) Ct.App. 2/3 B235892 JOHN F. BURKE et al., ) ) Los Angeles County Defendants and Appellants. ) Super. Ct. No. BC415646 ____________________________________) In Gion v. City of Santa Cruz (1970) 2 Cal.3d 29, this court held that private owners of certain coastal property who allowed the public to use the property for recreational purposes over a period of years thereby impliedly dedicated property rights to the public. In response to that decision, the Legislature enacted Civil Code section 1009, which limits the circumstances in which courts may find implied dedication of private coastal property. (Civ. Code, § 1009 (section 1009); see id., subds. (e)–(g).) The statute further provides that “no use” of private noncoastal property after the statute’s 1972 effective date ordinarily may give rise to “a vested right” in the public to continue using the property permanently, unless the property owner makes an express, irrevocable offer to dedicate the property to public use. (Id., subd. (b).) The question in this case concerns the application of section 1009 to a claim that private owners of noncoastal property have impliedly dedicated their land for use as a public road. Plaintiffs argue that the restriction on implied 1 dedication in section 1009, subdivision (b) does not apply to property used by the public for nonrecreational vehicle access, as opposed to property used for recreational purposes. We agree with the Court of Appeal that the statute draws no such distinction, and we accordingly affirm its judgment. I. Plaintiffs Jaime Scher and Jane McAllister own land in the Topanga Canyon area of Los Angeles County. They would like to access their property by driving on two roadways that cross their neighbors’ land, rather than taking other, less convenient routes to their property. Some of those neighbors would prefer otherwise, however, and have blocked the roadways with gates. Scher and McAllister sued. Among other things, they sought a declaration that their neighbors (or their neighbors’ predecessors) had “acquiesced to the dedication” of the routes as public roadways. The trial court agreed. As relevant here, the court concluded that the neighbors or their predecessors had impliedly offered to dedicate the roadways to public use. First, the court found that an offer to dedicate the roadways was “implied in fact,” based on several “Declarations and Grants of Easements,” as well as certain maps prepared by the federal government, which previously owned the land at issue. Second, the court found that an offer to dedicate was “implied in law,” because the public had used the roadways “for more than the period of prescription” of five years. (See Gion v. City of Santa Cruz, supra, 2 Cal.3d at p. 38 (Gion).) These offers of dedication, the court continued, had been “accepted by the public[’s] use of the property.” 1 1 Scher and McAllister also sought a declaration that they should benefit from an easement across …
Original document
Source: California Supreme Court