California high court to decide if its bad law remains a dead letter


Last week, PLF, California Farm Bureau Federation, and the California Cattlemen’s Association applied to file an amicus curiae brief in the California Supreme Court case Scher v. Burke (S230104). Today, the Court granted our application and accepted our brief. In the brief, we argue that the California Supreme Court should reject arguments that the court should resuscitate California’s short-sighted doctrine of implied-in-law public dedication.

There is no public access to Martin's Beach in Unincorporated San Mateo County, Calif., photographed on Thursday, July 19, 2012. Vinod Khosla, a co-founder of Sun Microsystems and a green venture capitalist, bought the beach land in two lots in 2008 and has closed the public access to the beach. The San Mateo County chapter of Surfrider Foundation is holding a protest Saturday regarding the decision by the owner of Martin's Beach to deny access to the public. (John Green/Staff)

Under California’s now-defunct doctrine of implied-in-law public dedication, courts held, essentially, that if the general public uses private property for five years, the public gets a right to keep on using that property, forever. The problem with the doctrine is that it disregards whether the owner actually intends to permanently give up–or dedicate–his or her property to the public or, rather, merely intends to allow the public to use it with permission. By conclusively presuming that a landowner intends to permanently dedicate based only on the fact that the public has used the land for a period of five years, the doctrine disregards the landowner’s actual consent. And if the owner didn’t actually intend to give up the land, then what the doctrine actually accomplishes is the taking of private property for public use without compensation.

When the California Supreme Court extended this doctrine to apply to shoreline property in the 1970 case Gion v. City of Santa Cruz, the shortsightedness of the doctrine became palpable immediately. The Gion court held that the need for public beach access was a policy consideration supporting its ruling, but as many had predicted would happen, coastal property owners immediately began shutting the public out from their shore-front property for fear that they would lose their land by continuing to allow public access. Seeing how counterproductive and destructive of property rights implied dedication doctrine had become, the California Legislature quickly passed California Civil Code § 1009, which superseded the doctrine’s calamitous effect.

Section 1009 requires actual written evidence of an owner’s consent before a dedication will be deemed effective: “no use of [real] 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.”

While the statute uses clear and broad language, some California courts have adopted strained readings that would still allow implied dedication to arise from non-recreational public use. These decisions, like implied-in-law public dedication itself, are bad law and bad policy. The plaintiffs in the Scher v. Burke case are relying on that flawed reasoning in their current case before the California Supreme Court. Our brief urges the court to reject their claims, or landowners will once again be subjected to the threat of uncompensated takings and will have to shut out their neighbors with gates and fences just to keep their property rights secure.