Real Estate and Land Use

California Supreme Court Restricts Implied Dedication Rule

Scher v. Burke (June 15, 2017, S230104)

By Michael M. Berger, Partner, Appellate

Why It Matters: Many large private landowners record notices under the provisions of the Civil Code in order to ensure that public use of their property does not morph into an implied dedication of their land to the public. Those landowners can rest more securely in the wake of this decision. The Scher opinion seriously restricts the reach of an earlier California Supreme Court case that allowed a fictional theory of “implied” dedication to convert private land into public land and that created considerable confusion in the lower courts. Those courts had inconsistently applied statutes designed to allow property owners to protect themselves against claims that they had, by implication (albeit not by actual words), given their property to the public either for recreation or for access to other public property. Although the statutes (Civ. Code Secs. 813, 1008 and 1009) were clear, some—but not all—lower courts often ignored their plain words and upheld “dedications” where none were intended. Serious hardships resulted. The California Supreme Court granted review in this case to resolve the conflicts. It did so by disapproving several of the expansive opinions and holding that the plain words of the legislature meant exactly what they said when they restricted the ability of the public to commandeer property interests through “dedication” by mere implication.

Legal Background: Nearly half a century ago, the California Supreme Court decided two consolidated appeals dealing with ways in which members of the public could act as though private property were public property and, ipso facto, it would become so (Gion v. City of Santa Cruz and Dietz v. King). The cases involved beachfront property (Gion) and an access road (Dietz), thus providing a broad backdrop to create a broad rule—and the opinion created as broad a rule as possible. It set the stage for broad-scale loss of private property by many innocent landowners. Numerous commentators (including the author of this article) were highly critical of the court’s recognition of the overly expansive ability of individuals to claim private land for public recreation or access, criticizing the opinion as being both bad law and bad policy. (See, e.g., County of Los Angeles v. Berk [dissenting opinion, collecting commentaries including Michael M. Berger, Nice Guys Finish Last—At Least They Lose Their Property].) Almost immediately, the legislature responded by enacting statutes that strongly restricted the reach of Gion-Dietz. In the decades since then, the courts of appeal have been inconsistent in applying the statutes—some restricting the dedication concept and others opening the gates wide.

Facts: This case represents the collision of the plaintiffs’ desire for convenience and the defendants’ private property rights. The properties involved are neighbors in Topanga Canyon. The plaintiffs wanted to access their property by using two roadways across their neighbors’ land. Preferring to retain their solitude, the neighbors placed gates across the roads, precipitating this suit. The trial court held that an offer to dedicate the roadways as public access easements was implied both “in fact” (based on some declarations and maps) and “in law” (based on use by the public for more than five years). These “offers” to dedicate were said to have been “accepted” by the public when it used the property.

At the heart of the dispute was whether Civ. Code Section 1009 barred a finding of implied dedication. The trial court said no and the Second District Court of Appeal reversed, setting the stage for the California Supreme Court.

The Decision: The question was what the legislature accomplished when it adopted Section 1009. What it intended to do was clear from the findings that it made. Echoing the commentators who had pilloried the California Supreme Court for its Gion-Dietz decision, the legislature found, in essence, that it is a good idea to encourage property owners to be good neighbors and to make their land available for use by others so long as there is no danger that such kindness be construed as an offer to make a gift of the land to the general public. Thus, in addition to recording a notice of permissive use (Civ. Code Sec. 813), entering into an agreement with a local governmental body allowing public use (Civ. Code Sec. 1008) or posting signs granting permission (Civ. Code Sec. 1008), owners are protected by the operative language of Section 1009, which provides this: “[N]o 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, in the absence of an express written irrevocable offer of dedication of such property to such use” (emphasis added). The opinion then provides a paean to the joys of reading statutory words the way they are written, especially when (as here) the legislative history supports those words. When the legislature said “no use … shall ever ripen,” it meant what it said. The random use of implied gifts of property to the public will no longer be countenanced. In this, by the way, the California Supreme Court’s opinion neatly parallels the U.S. Supreme Court’s decision three days earlier in Henson v. Santander Consumer USA Inc., No. 16-349, in which a unanimous Court likewise enforced the plain words of a plainly drafted statute in Justice Gorsuch’s first opinion for the Court.

Practice Pointers:

  • Use statutory means to protect property rights when at all possible.
  • Be vigilant in monitoring strangers using your land.
  • Do not shy away from using the courts. They are not self-starters and do not know when bad things are happening if no one brings such things to their attention.


pursuant to New York DR 2-101(f)

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