A brief survey of the doctrine of implied-in-law dedication on which the claim of a public easement is predicated:
Dedications may occur pursuant to statute or the common law. (See 26 Cal.Jur.3d (1976) Dedication, § 2). Here we are concerned with the common law.
Doctrinal impediments have barred the application of the common law of prescription to justify the acquisition of a public easement. (See, e.g., Bruce & Ely, the Law of Easements and Licenses in Land (rev. ed. 1995) P 5.09, pp. 5-45 to 5-46).
For this reason in California it is said that "a public easement arises only by dedication." ( People v. Sayig (1951) 101 Cal. App. 2d 890, 896 226 P.2d 702; see also Bolger v. Foss (1884) 65 Cal. 250, 251 3 P. 871; Smith v. Kraintz (1962) 201 Cal. App. 2d 696, 701 20 Cal. Rptr. 471).
"Dedication has been defined as an appropriation of land for some public use, made by the fee owner, and accepted by the public.
By virtue of this offer which the fee owner has made, he is precluded from reasserting an exclusive right over the land now used for public purposes.
American courts have freely applied this common law doctrine, not only to streets, parks, squares, and commons, but to other places subject to public use. California has been no exception to the general approach of wide application of the doctrine." (Gallagher et al., Implied Dedication: the Imaginary Waves of Gion-Dietz (1973) 5 Sw. U. L.Rev. 48, 52, fns. omitted (hereafter Implied Dedication)).
A common law dedication may be express or implied. Express dedication arises where the owner's intent to dedicate is manifested in the overt acts of the owner, e.g., by execution of a deed.
An implied dedication arises when the evidence supports an attribution of intent to dedicate without the presence of such acts. (See 26 Cal.Jur.3d, supra, Dedication, § 4; Implied Dedication, supra, 5 Sw. U. L.Rev. at p. 53).
A dedication is implied in fact when the period of public use is less than the period for prescription and the acts or omissions of the owner afford an implication of actual consent or acquiescence to dedication. (See, e.g., Union Transp. Co. v. Sacramento County (1954) 42 Cal. 2d 235, 241 267 P.2d 10.) a dedication is implied by law when the public use is adverse and exceeds the period for prescription. (Ibid).
In Gion-Dietz, supra, 2 Cal. 3d 29, 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).
B. a Public Easement Acquired Under Gion-Dietz Was Not Affected by Civil Code Section 1009 Which Prospectively Restricts Such Acquisition
The Gion-Dietz opinion was controversial. (See Implied Dedication, supra, 5 Sw. U. L.Rev. at pp. 48-49.) In March 1971, Senate Bill No. 504 (1971 Reg. Sess.) was initially introduced as urgency legislation 2 in response to the controversy. the bill was the vehicle for the enactment of Civil Code section 1009 and the amendment of Civil Code section 813.
Before the amendment, section 813, as enacted in 1963, provided for the recording of a notice of consent to public use for a described purpose by the owner of land.
The notice was deemed "evidence that subsequent use of the land for such purpose is permissive and with consent." (Stats. 1963, ch. 735, § 1, p. 1749).
The 1971 amendment provides that recording the prescribed notice that any use is by permission is conclusive evidence that subsequent use of the land is permissive "for purposes of a finding of implied dedication." (Stats. 1971, ch. 941, § 1, p. 1846).
The new section 1009 declares that owners of private real property should be encouraged to continue to make their lands available for public use and that such owners were threatened with loss of rights in and impairment of title to their property if they did so.
The statute then provides that, notwithstanding lack of a notice pursuant to section 813, public use of private real property after its effective date shall never ripen to confer vested rights to continue such use under the implied dedication doctrine unless:
(1) a government entity expended public funds to improve or maintain the land for public use or (2) the land lies within 1,000 yards of coastal waters.
The Landowners submit "the Legislature abrogated Gion prospectively by enacting Civil Code Section 1009." They submit further that "Gion marks a departure from settled approaches" to the law of dedication, that it was a "troubling" holding, and that we should not "exacerbate and extend its malignant effects."
The thrust of these claims is the suggestion that Gion-Dietz is a dubious precedent and that we are both free to evade the decision and ought to do so. We are invited to ignore a settled precedent. We decline to do so.
It is accurate to say the enactment of section 1009 and the related amendment of section 813, in large part, abrogates the holding in Gion-Dietz--prospectively. However, there is no public policy manifest in this enactment which restricts the application of that holding to claims preceding March 4, 1972.
An uncodified section of the enactment explicitly states: "nor shall this act be construed to affect, diminish or extinguish any right or rights vested as of the effective date hereof by reason of express or implied dedication, or otherwise." (Stats. 1971, ch. 941, § 3, p. 1848).
This is consistent with the wholly forward-looking rationale of the enactment, to prevent a possible change in future conduct of owners of real property in restricting access to their land.
Nor can we accept the implication that Gion-Dietz is reprehensible as a "departure from settled approaches" to the doctrine of implied dedication.
"On the contrary . . . Gion-Dietz, far from signaling the momentous 'redefinition of property rights' which defendant would depict, simply represents a restatement and clarification of well-established former law . . . ." (County of Los Angeles v. Berk (1980) 26 Cal. 3d 201, 213 161 Cal. Rptr. 742, 605 P.2d 381).
The implication that the application of Gion-Dietz to a claim of implied dedication of rights-of-way for pedestrian, equestrian, and bicycle travel is an "extension" of the doctrine is also incorrect.
Well within the ancient reach of the common law of dedication is the establishment of a public footway. (See Annot., Dedication of Footway by Permissive Use (1920) 7 A.L.R. 125; cf., e.g., People v. Ocean Shore Railroad (1948) 32 Cal. 2d 406, 415-416 196 P.2d 570, 6 A.L.R.2d 1179; see generally Hallinan v. Committee of Bar Examiners (1966) 65 Cal. 2d 447, 473 55 Cal. Rptr. 228, 421 P.2d 76 noting bar applicant's conviction "of the crime of blocking a footpath").
There is no principled basis for not applying the rule of implied dedication to any "highway," within the generic usage of that term, to all sorts of public ways, e.g., to a bridle way, bicycle path, or any combination of such use as a right-of-way. (See generally City of Long Beach v. Payne (1935) 3 Cal. 2d 184, 189 44 P.2d 305).