Real Property Law
New Ruling On Implied Dedications
In Volume 3/4 for Fall 2017 of the Real Property Journal, I wrote an article on the Doctrine of Implied Dedication to a Public Use for Roadways Recreational Use in California as enunciated in the California Supreme Court decision of Scher v. Burke, , 3 Cal. 5th 136 (2017) modified, reh’g denied. In Scher the California Supreme Court concluded that the higher standard established by Civil Code § 1009 adopted by the California legislature in 1972 for establishing an implied dedication by public use applied to dedications to roadways as well as recreational properties. The California Supreme Court had issued the decision to reconcile a split between the California Courts of Appeal as set forth in Hanshaw v. Long Valley Road Assn., 116 Cal. App. 4th471 (2004) and Scher v. Burke, 240 Cal. App. 4th 381 (2015).
The Court of Appeal for the Fifth Appellate District returned to this issue in a newly published case arising in Kern County, Mikkelsen v. Hansen, 2019 WL 15370619 Cal. Daily Op. Serv. 4752019 Daily Journal D.A.R. 277. Two cul-de-sacs in two separate subdivisions in Bakersfield both developed by the Tenneco Realty Development Company, Amberton and Stockdale Estates respectively, were connected by a footpath. Tenneco had dedicated the portion crossing Amberton to the City of Bakersfield in 1978 and the City had accepted the dedication. Tenneco did not offer to dedicate the Stockdale Estates portion of the footpath to the City and there was no formal acceptance by the City of the portion of the footpath lying within that Stockdale subdivision.
The Hansens erected a wall across the Stockdale segment obstructing access to the footpath between the subdivisions. The plaintiffs asked the Kern Superior Court to enjoin the Hansens from impeding public use of the path and argued that the Stockdale segment was the subject of a common law dedication implied both in law and in fact. The trial court agreed and issued a permanent injunction ordering the Hansens to remove the wall. The court had concluded that subdivision (b) of Civil Code § 1009 was applicable only to recreational use or if applicable at all could limit only an implied-in-law determination but not an implied-in fact determination which is dependent on the intent of the owner.
The Court of Appeal reversed and held that Civil Code § 1009 (b) generally prohibits implied-in-fact dedications of private non- coastal property. The Court of Appeal recited what it considered to be the relevant portion of Civil Code § 1009 (b):
“[No] use…by the public…shall ever ripen to confer upon the public or any government body or unit a vested right to continue to make such use permanently, in the absence of an express written irrevocable offer of dedication of such property to such use, made by the owner thereof …which has been accepted by the county, city, or other public body to which the offer of dedication was made…”
The plaintiffs argued that the language of § 1009 did not apply to “implied-in-fact” dedications because the word ‘ripen’ is a legal term of art that in real property law is used exclusively in the context of a prescriptive right including prescriptive easements and adverse possession, meaning that the prohibited “ vested right” necessarily refers to “a public prescriptive right.”
The Court of Appeal disagreed stating that the adjective ripe simply means fully matured or ready. The breadth of the statutory language covered implied-in-fact dedications. The Court of Appeal also noted that if the legislature had intended to limit the scope of § 1009 (b) only to implied-in-law dedications it could have used more specific language to that effect. The plaintiffs’ argument would also require the Court of Appeal to ignore the remaining text of the statute which refers to an irrevocable offer of dedication. The Court of Appeal could not ignore the remainder of the statute because all parts of a statute serve a purpose. Nothing is superfluous. It concluded that there was no need to resort to legislative history because the language of the statute was unambiguous and provided a clear answer.