California Supreme Court upholds plain language of statute protecting property owners

June 16, 2017 | By JAMES SCHULTZ

Last July, PLF, the California Farm Bureau Federation, and the California Cattlemen’s Association filed an amicus brief in the California Supreme Court case Scher v. Burke.The dispute in this case was between two neighboring property owners. The plaintiff property owners had been driving their vehicles onto their neighbors’ property. After repeated trespasses, the neighbors erected gates to restrict the plaintiffs’ ability to access their property. The plaintiffs sued, asking the court to order the neighbors to grant access, arguing that there was an “implied-in-law public dedication.”

Under the doctrine of “implied-in-law public dedication,” the public may gain an interest in privately owned real property, by using it openly, and continuously, in a way that is hostile to the owner’s interest. The doctrine reached its extreme in the 1970 case Gion v. City of Santa Cruz. In Gion the Court held that the public can obtain property rights in certain privately owned coastal properties when the owners of the property allow the public to use it for recreational purposes for five years.

The decision in Gion, however, was limited by subsequent legislation. In response to the decision, the state legislature enacted California Civil Code § 1009, which limits when a court may find that a property owner has impliedly dedicated property. Under the statute, “no use” of private noncoastal property may give rise to “a vested right” in the public to continue using the property, unless the owner has made an express dedication.

Contrary to the plain language of the statute, the Scher plaintiffs argued that the code allows findings of implied-in-law dedications for nonrecreational use of roadways. They argued that because the legislature’s primary concern in passing § 1009 was encouraging property owners to keep their lands open for public recreational use, the statute should be limited to recreational use.

The court rejected that argument. The court assumed that the use of the phrase “recreational use” in one part of the statute and “use” alone in another part of the statute was a deliberate choice by the legislature meant to convey two different meanings.The plain meaning argument made by the court tracks PLF’s amicus brief. In addition to the statutory argument, PLF had also explained the state and federal constitutional protections against uncompensated takings of property. But, given, the statute’s plain meaning, the court did not reach any constitutional issues.