Bustillos v. Murphy

In Bustillos v. Murphy (2002) 96 Cal.App.4th 1277, the plaintiff sued a landowner, seeking a prescriptive easement to use a network of trails for recreational purposes. (Id. at p. 1279.) The trial court granted the landowner's motion for summary judgment on the ground that section 1009 barred the plaintiff's claim for an easement for recreational purposes. (Bustillos, at p. 1279.) The Court of Appeal agreed with the trial court's application of section 1009 and affirmed the judgment. (Bustillos, at p. 1282.) In Bustillos, the plaintiff and other people had used since 1973 a network of trails that criss-crossed an undeveloped piece of the defendant's property next to a residential development. (Bustillos, supra, 96 Cal.App.4th at p. 1279.) The trails were used for walking, riding motorcycles and horses, and walking dogs, and were clearly visible from aerial photographs. (Ibid.) The plaintiff had repaired a number of the trails and had never seen anyone else making repairs. (Ibid.) The plaintiff in Bustillos argued that section 1009 did not apply because he was seeking a private easement rather than an easement on behalf of the public in general. (Bustillos, supra, 96 Cal.App.4th at p. 1281.) The appellate court rejected this argument, stating the plaintiff's claim was "exactly the type of claim addressed by the Legislature in section 1009, i.e., an attempt by a member of the public to obtain permanent recreational use of private property. The Legislature has made it clear that recreational use by a member of the public cannot ripen into a permanent right to use the property for recreational purposes." (Bustillos, at p. 1281.)