Scher v. Burke
218 Cal. Rptr. 3d 643
Cal.2017Background
- Plaintiffs Jaime Scher and Jane McAllister own Topanga Canyon parcels and sued for declaratory relief after neighbors blocked two roadways they allege provide access to their property.
- Trial court found implied offers of dedication (both "in fact" and "in law") based on historical documents and more-than-prescriptive public use, and that the public accepted by use.
- Trial court concluded Civil Code §1009 did not bar implied dedication because the land is noncoastal and the statute, plaintiffs asserted, applies only to recreational uses, not to nonrecreational vehicular access.
- The Court of Appeal reversed, holding §1009(b) bars all post‑March 1972 public use (not just recreational use) from ripening into implied dedication for noncoastal property.
- The Supreme Court granted review to resolve whether §1009(b) applies to nonrecreational roadway uses of noncoastal private property and affirmed the Court of Appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ. Code §1009(b) forbids implied dedication based on post‑1972 nonrecreational public use (e.g., roadways) of noncoastal private land | §1009’s legislative findings focus on recreational use, so "use of such property" in §1009(b) should be read to limit the ban to recreational uses | §1009(b) text is categorical — "no use" after the effective date may not ripen into implied dedication absent an express written irrevocable offer; applies to all uses, recreational or not | Court held §1009(b) unambiguously bars reliance on post‑1972 public use (recreational or nonrecreational) to establish implied dedication of noncoastal private property |
Key Cases Cited
- Gion v. City of Santa Cruz, 2 Cal.3d 29 (Cal. 1970) (established principles for implied dedication, including that public recreational use can create dedication and acceptance by public use)
- County of Los Angeles v. Berk, 26 Cal.3d 201 (Cal. 1980) (criticized Gion’s effects and discussed property owner incentives to exclude the public)
- Union Transp. Co. v. Sacramento County, 42 Cal.2d 235 (Cal. 1954) (distinguished offers of dedication implied in fact and in law)
- Diamond Match Co. v. Savercool, 218 Cal. 665 (Cal. 1933) (requirement that dedication requires both offer and acceptance)
- People v. Marin County, 103 Cal. 223 (Cal. 1894) (discussed common-law dedication principles)
- Equilon Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53 (Cal. 2002) (canon that when legislature uses a term in one subdivision but omits it in another, the omission is deliberate)