Implied Dedication Doctrine in Public Easements of Right of Way

In Gion v. City of Santa Cruz (consolidated with Dietz v. King) (1970) 2 Cal. 3d 29 (Gion-Dietz), the California Supreme Court applied the doctrine of implied dedication by law to find public easements of right of way and for recreational uses to two shoreline properties. The opinion identified three significant questions "with respect to proof of dedication by adverse use: (1) When is a public use deemed to be adverse? (2) Must a litigant representing the public prove that the owner did not grant a license to the public? (3) Is there any difference between dedication of shoreline property and other property?" (Gion-Dietz, supra, 2 Cal. 3d at p. 39.) As to the first question, the court cautioned that analogies from the law of adverse possession can be misleading and explained the nature of adversity in this context, in pertinent part, as follows. "What must be shown is that persons used the property believing the public had a right to such use. This public use may not be 'adverse' to the interests of the owner in the sense that the word is used in adverse possession cases. If a trial court finds that the public has used land without objection or interference for more than five years, it need not make a separate finding of 'adversity' to support a decision of implied dedication. "Litigants, therefore, seeking to show that land has been dedicated to the public need only produce evidence that persons have used the land as they would have used public land. If the land involved is a beach or shoreline area, they should show that the land was used as if it were a public recreation area. If a road is involved, the litigants must show that it was used as if it were a public road." (Gion-Dietz, supra, 2 Cal. 3d at p. 39.) The second question is whether a presumption arises that public use of unenclosed and uncultivated land is under a license by the fee owner. (Gion-Dietz, supra, 2 Cal. 3d at p. 40.) The Supreme Court answered as follows: "No reason appears for distinguishing proof of implied dedication by invoking a presumption of permissive use. The question whether public use of privately owned lands is under a license of the owner is ordinarily one of fact. We will not presume that owners of property today knowingly permit the general public to use their lands and grant a license to the public to do so. For a fee owner to negate a finding of intent to dedicate based on uninterrupted public use for more than five years, therefore, he must either affirmatively prove that he has granted the public a license to use his property or demonstrate that he has made a bona fide attempt to prevent public use." (Gion-Dietz, supra, at p. 41.) In this regard, the court relied on its earlier analysis in O'Banion v. Borba (1948) 32 Cal. 2d 145, 148-149 195 P.2d 10. " 'The preferable view is to treat the case the same as any other, that is, the issue is ordinarily one of fact, giving consideration to all the circumstances and the inferences that may be drawn therefrom. The use may be such that the trier of fact is justified in inferring an adverse claim and user and imputing constructive knowledge thereof to the owner. There seems to be no apparent reason for discussing the matter from the standpoint of presumptions.' " (Gion-Dietz, supra, 2 Cal. 3d at pp. 40-41.) Lastly, the court in Gion-Dietz answered, in essence, that there is no difference between dedication of shoreline property and other property. (Gion-Dietz, supra, 2 Cal. 3d at pp. 41-43.)