Scher v. BurkeScher v. Burke
The question in this case concerns the application of section 1009 to a claim that private owners of noncoastal property have impliedly dedicated their land for use as a public road. Plaintiffs argue that the restriction on implied
I.
Plaintiffs Jaime Scher and Jane McAllister own land in the Topanga Canyon area of Los Angeles County. They would like to access their property by driving on two roadways that cross their neighbors’ land, rather than taking other, less convenient routes to their property. Some of those neighbors would prefer otherwise, however, and have blocked the roadways with gates.
Scher and McAllister sued. Among other things, they sought a declaration that their neighbors (or their neighbors’ predecessors) had “acquiesced to the dedication” of the routes as public roadways. The trial court agreed. As relevant here, the court concluded that the neighbors or their predecessors had impliedly offered to dedicate the roadways to public use. First, the court found that an offer to dedicate the roadways was “implied in fact,” based on several “Declarations and Grants of Easements,” as well as certain maps prepared by the federal government, which previously owned the land at issue. Second, the court found that an offer to dedicate was “implied in law,” because the public had used the roadways “for more than the period of prescription” of five years. (See Gion v. City of Santa Cruz, supra, 2 Cal.3d at p. 38 (Gion).) These offers of dedication, the court continued, had been “accepted by the public[’s] use of the property.”1
The Court of Appeal reversed. The court held that
We granted review to resolve the disagreement among the Courts of Appeal about whether
II.
This case concerns the law of dedication, under which a private landowner may transfer an interest in real property to the public. Under the common law, a
More than 40 years ago, we applied the doctrine of implied dedication in Gion, supra, 2 Cal.3d 29, which was consolidated for decision with Dietz v. King (Dietz). Both cases concerned whether an interest in private coastal property had been impliedly dedicated for public use. (Id. at pp. 34–39.) Dietz also concerned the claimed dedication of an unimproved dirt road leading to that coastal property. (Id. at p. 36.) In addressing these claims, we first resolved two general questions about the doctrine of implied in law dedication that had caused confusion in the lower courts. We explained that the law of implied dedication for public use, unlike the law of adverse possession or easement by prescriptive rights, does not require a showing of a personal claim of right. Rather, litigants “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” for more than the prescriptive period of five years. (Id. at p. 39.) When such a showing has been made, we further held, the law will not presume that the public has used the property under a license from the owner. (Id. at pp. 40–41.) An owner who seeks to negate a finding of intent to dedicate the lands therefore “must either
We next considered “whether the rules governing shoreline property differ from those governing other types of property, particularly roads.” (Gion, supra, 2 Cal.3d at p. 41.) We acknowledged that “[m]ost of the case law involving dedication in this state has concerned roads and land bordering roads. [Citations.]” (Ibid.) We held, however, that “[t]he rules governing implied dedication apply with equal force . . . to land used by the public for purposes other than as a roadway” (id. at pp. 41–42), citing cases concerning dedication of rights in park land, athletic fields, and beaches (id. at p. 42).
Putting all of these principles together, we held “that there was an implied dedication of property rights” in both Gion and Dietz, based on evidence of continuous use of the contested coastal property for public recreation purposes. (Gion, supra, 2 Cal.3d at p. 43.) In Gion, we noted, “the public use of the land [was] accentuated by the active participation of the city in maintaining the land and helping the public to enjoy it.” (Id. at pp. 43–44.) But in both cases, we considered it determinative that “the public used the land in public ways, as if the land was owned by a government, as if the land were a public park.” (Id. at p. 43.)
“Commentators were severe in their criticism” of the decision. (Berk, supra, 26 Cal.3d at p. 228 (dis. opn. of Clark, J.), citing sources.) Among other things, many commentators thought it inequitable that “[t]hose landowners who were neighborly and hospitable in permitting public use were penalized by Gion-Dietz by loss of their land, while those excluding the public by fencing or other means were rewarded by retention of their exclusive use.” (Id. at p. 229.) Commentators also criticized the decision as “counterproductive,” because it
The year after we decided Gion, the Legislature enacted section 1009. (Stats. 1971, ch. 941, § 2, p. 1846, chaptering Sen. Bill No. 504 (1971 Reg. Sess.).) Subdivision (a) of section 1009 recites the Legislature’s findings that “[i]t is in the best interests of the state to encourage owners of private real property to continue to make their lands available for public recreational use” (
In subdivisions (e) through (g) of section 1009, the Legislature addressed dedication of coastal property, defined as property that “lies within 1,000 yards inland” of certain markers. (
Subdivision (b) of section 1009, the focus of our inquiry here, applies to noncoastal property. (Cf.
III.
A.
The question in this case is whether
In arguing that
As a textual matter, this is an implausible reading. To interpret the phrase “such property” as plaintiffs suggest, we would have to skip over its immediate antecedents in
Nor is plaintiffs’ proposed recreational use limitation implicit in the remaining provisions of section 1009 or other provisions of the statutory scheme. Plaintiffs point to
Plaintiffs also point to
Finally, plaintiffs contend that interpreting
Plaintiffs also contend that the Legislature has acquiesced in judicial opinions interpreting section 1009 to concern only recreational use. Arguments based on supposed legislative acquiescence rarely do much to persuade. (See, e.g., People v. Brown (2012) 54 Cal.4th 314, 327–328.) Regardless, while “it may sometimes be true that legislative inaction signals acquiescence when there exists both a well-developed body of law interpreting a statutory provision and numerous amendments to a statute without altering the interpreted provision, that is not the case here.” (Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1156 (Olson).)
For one thing, plaintiffs fail to identify a “well-developed body of law.” (Olson, supra, 42 Cal.4th at p. 1156.) Plaintiffs identify seven court opinions they
For another thing, section 1009 has not been the subject of “numerous amendments.” (Olson, supra, 42 Cal.4th at p. 1156.) Indeed, section 1009 has not once been amended since it was first enacted in 1971. The fact that the Legislature has not passed legislation for the sole purpose of addressing the holdings (much less the dicta) of Hanshaw, Bustillos, or Pulido is not particularly telling. As we have often observed, ” ‘legislative inaction alone does not necessarily imply legislative approval.’ ” (People v. Whitmer (2014) 59 Cal.4th 733, 741.) Legislative inaction may instead reflect nothing more than ” ’ “the sheer pressure of other and more important business, political considerations, or a tendency to trust . . . the courts to correct their own errors.” ’ ” (Ibid.) We cannot
B.
Where statutory text “is unambiguous and provides a clear answer, we need go no further.” (Microsoft Corp. v. Franchise Tax Bd. (2006) 39 Cal.4th 750, 758.) We observe, however, that the available legislative history and historical circumstances surrounding the enactment only buttress our reading of the statute. (See, e.g., Equilon Enterprises, supra, 29 Cal.4th at p. 61; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1119–1120.)
As all parties agree, section 1009 was enacted in response to this court’s decision in Gion. The Legislature’s response, it bears noting, was not simply to invalidate the decision wholesale. Rather, the Legislature affirmed certain aspects of the decision by, for example, recognizing the significance of active governmental participation in the maintenance of the property to determine whether an implied dedication has occurred. (
As the Court of Appeal noted, the available legislative history materials bear the point out. The Court of Appeal took judicial notice of three documents of particular significance. The first is the Legislative Counsel’s Digest, which advised that the legislation would “[p]rohibit[] any use of private land, except specified ocean frontage land, after effective date of act from conferring a vested right in public with specified exception for a public entity that makes visible improvement on such property . . . .” (Legis. Counsel’s Dig., Sen. Bill. No. 504 (1971 Reg. Sess.) 3 Stats. 1971, Summary Dig., p. 136, italics added.) The second, the enrolled bill memorandum to the Governor, likewise advised that “[t]he bill . . . prohibits any use of private land, except specified ocean frontage land, after the effective date of the bill from conferring a vested right in the public, with specified exceptions.” (Legis. Sec., Enrolled Bill Memorandum to Governor on Sen. Bill. No. 504 (1971 Reg. Sess.) Oct. 7, 1971, p. 1.) The third, an
These materials are by no means dispositive. But we have treated similar materials as entitled to some weight. (See Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1170 [Legislative Counsel’s summaries]; Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1399 [enrolled bill memorandum]; Horiike v. Coldwell Banker Residential Brokerage Co. (2016) 1 Cal.5th 1024, 1037 [Assembly Judiciary Committee bill analysis].) Plaintiffs, in any event, identify nothing in the legislative history that points in the other direction. In short, to the extent the legislative history is relevant to the analysis, it bolsters our conclusion that
The judgment of the Court of Appeal is affirmed and the case remanded to the trial court for entry of judgment in favor of defendants.
KRUGER, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.