Scher v. Burke—the Doctrine of Implied Dedication to a Public Use for Roadways and Recreational Use in California; Implications for Public Policy and Private Real Property Rights

• Publication year: 2017
• Author: Douglas W. Borchert

Scher v. Burke—The Doctrine of Implied Dedication to a Public Use for Roadways and Recreational Use in California; Implications for Public Policy and Private Real Property Rights

Douglas W. Borchert

Douglas Borchert has been in the title insurance industry in a variety of capacities for over forty years. He is currently one of the California state underwriting counsels for the FNF group of title insurers in Walnut Creek.

I. INTRODUCTION

In June 2017, the California Supreme Court published its decision in Scher v. Burke,¹ a long-awaited decision in which the Court concluded its analysis of the doctrine of implied dedication to public use that it had begun over four decades earlier in Gion v. City of Santa Cruz, Dietz v. King ("Gion").²

This article discusses the evolution of the doctrine in California in both contexts—recreational and non-recreational (in particular, roads), and the clarification of the doctrine based on several recent cases that culminated in the Scher decision. First, this article reviews the doctrine of implied dedication of private lands for public purposes as applied by the United States Supreme Court, then by the California Supreme Court, and tracks the differences between dedication implied in law, in fact, or by adverse use. Next, this article reviews the California Supreme Court's differentiation between implied dedication for public roads and public shorelines or other recreational uses, the scope of those easements, and the effect of subordination to other easements in favor of a public entity. In 1972, the California Legislature responded to Gion by enacting Civil Code section 1009.³ Courts of Appeal have struggled with the application of section 1009, but in the Scher v. Burke decision, the California Supreme Court has clarified the doctrine of implied dedication to a public purpose on non-shoreline lands.

II. THE UNITED STATES SUPREME COURT AND THE CALIFORNIA SUPREME COURT DISTINGUISH BETWEEN A PRESCRIPTIVE RIGHT OBTAINED BY AN INDIVIDUAL AND AN ADVERSE RIGHT ACQUIRED BY THE PUBLIC

The doctrine of implied dedication of property to a public use has a legal history in both the United States and England, predating California's admission to the Union in 1865. The United States Supreme Court discussed the doctrine some fifty-two years earlier in Barclay v. Howell.⁴ The William Penn family of Pennsylvania had authorized a survey of the town of Pittsburg in order to facilitate their sale of land in the new city. The completed survey depicted a strip of land between the north bank of the Monongahela River and a row of lots also depicted on the survey. The surveyor labeled the strip "Water Street" but did not show its southerly boundary on the survey.

The plaintiff in the action asserted ownership of a lot that supposedly lay between Water Street and the Monongahela. The defendants argued that the entire strip from the northerly line of Water Street to the river had been dedicated to public use by virtue of the public's use of the strip for over thirty years. The United States Supreme Court agreed, noting: "In some cases a dedication of property to a public use, as for instance a street or public road, where the public has enjoyed unmolested use of it for six or seven years has been a sufficient evidence of dedication."⁵ The Court concluded that mere public use in and of itself without objection on the part of the actual or purported landowner may be sufficient to give rise to a dedication for public use.

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John Briscoe and Jan S. Stevens observed in their article in the Los Angeles Bar Journal that in Cincinnati v. White,⁶ a case the United States Supreme Court decided contemporaneously with Barclay, the Court rejected the argument that the public is not a proper grantee for an attempted dedication to a public use and that such attempted dedications are ineffective. The Barclay court turned to the English case of Lade v. Shepherd⁷ for support of the proposition that "no deed or writing [was] necessary to constitute a valid dedication of the easement."⁸ In Barclay, the United States Supreme Court concluded,

There is no particular form or ceremony necessary in the dedication of land to public use. All that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended for the appropriation. This was the doctrine in the case of Jarvis v. Dean . . . with respect to a street; and the same rule must apply to all public dedications; and from the mere use of the land, as public land, thus appropriated, the assent of the owner may be presumed.⁹

The first California Supreme Court case on implied dedication was Bolger v. Foss,¹⁰ decided in 1884, in which the court discussed the type of right that the public might acquire that would be analogous to the prescriptive right an individual might acquire. When Bolger sought to enjoin Foss from travelling on a road across his land, Foss asserted that the road was in fact a public road. The trial court found that in the twenty-five years preceding the filing of the action, the public had used the road in question as if it were a public road. The California Supreme Court said that the term "prescription" could not be applied to a right of way acquired by the public by use over an extended period: The law allowed,

. . . prescriptions only to take the place of grants, and inasmuch as the public cannot take by grant, the term 'prescription' in its strict sense has no application to highways. The true doctrine would seem to be that immemorial use by the public is evidence of a dedication, just as use by an individual is evidence of a grant to him.¹¹

The California Supreme Court reasoned that a prescriptive right for personal use in the case of an individual is a substitute for a grant to the individual. Since the public cannot take by a grant or, in its stead, by prescription, the right of way for a road acquired by the public in such a scenario must be acquired by dedication.

III. COMMON LAW DEDICATIONS: IMPLIED-IN-FACT OR IMPLIED -IN-LAW

There are two kinds of common law dedications: implied-in-fact and implied-in-law. Dedications implied-in-law are also sometimes referred to as dedications by adverse use. The 1954 California Supreme Court case Union Transportation Co. v. Sacramento County¹² presents a useful discussion of these concepts. In Union Transportation, ranchers in Sacramento and El Dorado County travelled a dirt road that paralleled the boundary line between the two counties to access Highway 50. A bridge located on the road collapsed when a cattle truck went over it. The plaintiffs, the Smiths, who owned the cattle in the truck, and the trucking company (which owned the truck), sued both counties for damages. The parties presented evidence at trial that established that the bridge had been built about thirty years earlier although it was unclear by whom. The evidence also showed that El Dorado County's machinery was used at least twice a year to grade the road and that members of the public travelled the road as often as twenty times a day. The two sets of plaintiffs argued that the road of which the bridge was a part, although originally a private one, had become a public one. The long acquiescence of the adjoining landowners to the public's use of the road constituted an implied dedication of their land to a public use.

In its analysis, the California Supreme Court stated that a common law dedication has been characterized as a voluntary transfer of an interest in land that has aspects of both a gift and a grant.¹³ The California Supreme Court then referenced its distinction between implied-in-fact dedications and implied-in-law dedications, as set forth in Schwerdtle v. County of Placer.¹⁴ An implied-in-fact dedication arises if the public establishes the dedication by a use that has continued for a time shorter than the prescriptive period, and proves up the actual consent or acquiescence of the owner. Without this proof, no dedication can be demonstrated or presumed. But, if the public can prove actual consent or acquiescence, then the length of time of the use ceases to be of consequence. Once these elements are established, the public's rights become immediately vested via a dedication implied-in-fact.

In contrast, an implied-in-law dedication arises if the public's rights rest on continuous use for the prescriptive period or longer, such as in Union Transportation. In that situation, the lengthy continuous adverse use raises a conclusive presumption of consent by the landowner, which results in a dedication to the public. Courts refer to this as a dedication implied-in-law or dedication by adverse use. These conclusive presumptions of knowledge and acquiescence asserted against the owner also negate the idea that the public's use is merely pursuant to a license.¹⁵

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In Union Transportation, the California Supreme Court found that the public had used the bridge and the road for a period of twelve years with the knowledge and acquiescence of the landowners and that someone other than the landowner had performed maintenance on the bridge without interference or objection by the landowners.¹⁶ Therefore, an implied-in-law dedication had occurred.

The County of El Dorado argued that even if an offer to dedicate could be inferred from the evidence, it was not sufficient to show the offer had been accepted. The Union Transportation court acknowledged that courts from other jurisdictions did not agree on the circumstances under which a public body could be held responsible for failure to maintain a road when the public body's acceptance of the road had been established by the public's use of the road. While conceding that public policy required some official action consistent with the acceptance of the dedication, the court said no formal act of acceptance was necessary. Any action of a public official showing assumption of control would suffice. The court cited the evidence showing that the...