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Scher v. Burke

Supreme Court of California

June 15, 2017

JAIME A. SCHER et al., Plaintiffs and Appellants,
JOHN F. BURKE et al., Defendants and Appellants.

         Superior Court Los Angeles County, Nos. BC415646, Ct.App. 2/3 B235892 Malcolm H. Mackey Judge

          Law Offices of Robert S. Gerstein, Robert S. Gerstein; Law Offices of Bennett Kerns and Bennett Kerns for Defendants and Appellants John F. Burke, Germaine Burke and Bennett Kerns.

          Levinson Arshonsky & Kurtz, Richard I. Arshonsky, Jason J. Jarvis; Garrett & Tully, Ryan C. Squire, Zi C. Lin and Motunrayo D. Akinmurele for Defendants and Appellants Richard Erickson, Wendie Malick, Andrea D. Schroder and Richard B. Schroder.

          Ferguson Case Orr Paterson, Wendy C. Lascher and Joshua S. Hopstone for Defendant and Appellant Gemma Marshall.

          Damien M. Schiff, Anthony L. Francois and Julio N. Colomba for Pacific Legal Foundation, California Farm Bureau Federation and California Cattlemen's Association as Amici Curiae on behalf of Defendants and Appellants.

          Cunningham & Treadwell, James H. Treadwell, Steven F. Kuehl; Aleshire & Wynder and June S. Ailin for Plaintiffs and Appellants.

          Michael T. Whittington; Miller Starr Regalia, Arthur F. Coon and Kenneth R. Styles for Keri Mikkelson, Jerome Friesenhahn, Bryan Bell, Alison Bell, Scott Hudlow, Kirstin Hudlow, Todd Irvine, Kimberly Irvine, Terry Kloth, Margaret Kloth, John Dover, Georgia Wages, Janice Lundy, Ronald Lundy and John Farnsworth as Amici Curiae.

          KRUGER, J.

         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 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.


         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]

         The trial court also considered whether section 1009 barred any finding of implied dedication. The court concluded that section 1009 is inapplicable because the land at issue is not coastal property, and because “section 1009 does not restrict the implied dedication of public roads for nonrecreational uses.”

         The Court of Appeal reversed. The court held that section 1009, subdivision (b) unambiguously “bars all public use, not just recreational use, from developing into an implied public dedication.” In so holding, the court disagreed with other cases that had described section 1009, subdivision (b) as applying only to recreational uses. (Hanshaw v. Long Valley Road Assn. (2004) 116 Cal.App.4th 471, 484-485 (Hanshaw); see also Pulido v. Pereira (2015) 234 Cal.App.4th 1246, 1252 (Pulido); Bustillos v. Murphy (2002) 96 Cal.App.4th 1277, 1280-1281 (Bustillos).) Having concluded that evidence of post-1972 use of the roadways was inadmissible, and finding no other adequate evidentiary basis for finding that the roadways had been impliedly dedicated to public use, the Court of Appeal directed the trial court to enter a declaratory judgment in favor of defendants.

         We granted review to resolve the disagreement among the Courts of Appeal about whether section 1009, subdivision (b) applies to ...

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