Scher v. Burke
Scher v. Burke
Opinion
*139
In
Gion v. City of Santa Cruz
(1970)
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 dedication in section 1009, subdivision (b) does not apply to property used by the public for nonrecreational vehicle access, as opposed to property used for recreational purposes. We agree with the Court of Appeal that the statute draws no such distinction, and we accordingly affirm its judgment.
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 *140 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,
The trial court also considered whether section 1009 barred any finding of implied dedication. The court concluded that section 1009 is inapplicable because the land at issue is not coastal property, and because " section 1009 does not restrict the implied dedication of public roads for nonrecreational uses."
The Court of Appeal reversed. The court held that section 1009, subdivision (b) unambiguously "bars
all
public use, not just recreational
**683
use, from developing into an implied public dedication." In so holding, the court disagreed with other cases that had described section 1009, subdivision (b) as applying only to recreational uses. (
Hanshaw v. Long Valley Road Assn.
(2004)
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 dedication may be made either expressly or by implication. (
People v. Marin County
(1894)
More than 40 years ago, we applied the doctrine of implied dedication in
Gion
,
supra
,
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,
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,
"Commentators were severe in their criticism" of the decision. (
Berk
,
supra
, 26 Cal.3d at p. 228,
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" (§ 1009, subd. (a)(1) ); that "[o]wners of private real property are confronted with the threat of loss of rights in their property if they allow or continue to allow members of the public to use, enjoy or pass over their property for recreational purposes" ( id. , subd. (a)(2)); and that "[t]he stability and marketability of record titles is clouded by such public use, thereby compelling the owner to exclude the public from his property" ( id. , subd. (a)(3)).
*143 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. (§ 1009, subd. (e).) Of particular significance, subdivision (f) instructs that, following the statute's 1972 effective date, "[n]o use" of coastal property "by the public ... shall constitute evidence or be admissible as evidence that the public or any governmental body or unit has any right in such property by implied dedication if the owner" posts signs (see Civ. Code, § 1008 ), publishes a notice in a local newspaper (see Gov. Code, § 6066 ), records a notice (see Civ. Code, § 813 ), or enters into a written agreement with a governmental agency "providing for the public use of such land." ( Id. , subd. (f)(1)-(3).)
Subdivision (b) of section 1009, the focus of our inquiry here, applies to noncoastal property. (Cf. § 1009, subd. (e).) It instructs that "[r]egardless of whether or not a private owner of real property has recorded a notice of consent to use of any particular property pursuant to Section 813 of the Civil Code or has posted signs on such property pursuant to *649 Section 1008 of the Civil Code, except as otherwise provided in subdivision (d), no use of such property by the public after the effective date of this section shall ever ripen to confer upon the public or any governmental 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...." ( Id. , subd. (b).) 3 **685 III.
A.
The question in this case is whether section 1009, subdivision (b) applies to nonrecreational use of roadways for vehicle access as it applies to recreational use of other private noncoastal property. We begin, as always, by examining the text of the statute, as " 'the statutory language is generally the most reliable indicator' " of legislative intent. (
People v. Castillolopez
(2016)
In arguing that section 1009, subdivision (b) nevertheless applies only to recreational uses, plaintiffs point to the legislative findings in section 1009, subdivision (a). As plaintiffs emphasize, the findings make clear that the Legislature's primary concern in enacting section 1009 was to "encourage owners of private real property to continue to make their lands available for public
recreational
use." (§ 1009, subd. (a)(1), italics added.) Plaintiffs argue that subdivision (b)'s reference to the use of "such property" must be understood to refer to these findings, and thus should be interpreted to mean " 'private real property made available for public recreational use' (paraphrasing subdivision (a)). (
Hanshaw v. Long Valley Road Ass'n
,
supra
, 116 Cal.App.4th at p. 485,
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 section 1009, subdivision (b) -"real property" and "any particular property," neither of which connotes any limitation to *650 property made available for public recreational use-and reach all the way back to section 1009, subdivision (a). We would, moreover, have to accept plaintiffs' invitation to rely on a "paraphras[e]" of subdivision (a), rather than on the actual text of the subdivision-which also refers to "private real property" in general terms. This argument bends the usual rules of textual interpretation past their breaking point.
The principal thrust of plaintiffs' argument, however, relies less on the statutory text and more on a set of inferences about legislative intent based on the findings in section 1009, subdivision (a). Plaintiffs argue that because subdivision (a) reveals that the Legislature's primary concern was encouraging landowners to open their property to public recreational use, the prohibition in section 1009, subdivision (b) should be understood as implicitly limited to public recreational uses. This argument, too, is unavailing. As a general rule, when the Legislature uses a term in one provision of a statute
*145
but omits it from another-as it did when it referred to "recreational use" in subdivision (a), but referred to "use" alone in subdivision (b)-we generally presume that the Legislature did so deliberately, in order " 'to convey
**686
a different meaning.' " (
Klein v. United States of America
(2010)
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 subdivision (c) of section 1009, which provides that "[i]n addition to any procedure authorized by law and not prohibited by this section, an irrevocable offer of dedication may be made in the manner prescribed in Section 7050 of the Government Code," a provision authorizing property owners to make irrevocable offers of dedication for public purposes by recording the offer in the same manner as a conveyance of real property. (See Gov. Code, § 7050.) Based on this language, plaintiffs reason that "methods of dedication" that fall outside of Government Code section 7050 are not completely eliminated by subdivision (b) of Civil Code section 1009. This is true, but it does not help their case. No one doubts that the law continues to permit dedications of noncoastal
*651
property to the public under provisions of law other than Government Code section 7050. (See, e.g., Gov. Code, §§ 66475, 66477 ; see also
Plaintiffs also point to Civil Code sections 813 and 1008, which provide that landowners may record a specified notice (§ 813 ) or post signs at particular intervals (§ 1008 ) to indicate that the use of their property is permissive (and, thus, not adverse). Plaintiffs argue that if section 1009, subdivision (b) prohibits reliance on any use of noncoastal property, not just recreational use, then these provisions are superfluous. While we ordinarily construe enactments to avoid rendering any provision superfluous (
Dix v. Superior Court
(1991)
Finally, plaintiffs contend that interpreting section 1009, subdivision (b) to apply to the implied dedication of private property for public nonrecreational vehicle access would effectively abrogate a substantial body of case law concerning the dedication of roadways. In plaintiffs' view, this "would be a major departure from long-standing law without a clear expression of legislative inten[t] to do so." It is true, as we noted in
Gion
, that "[m]ost of the case law involving dedication in this state has concerned roads and land bordering roads. [Citations.]" (
Gion
,
supra
, 2 Cal.3d at p. 41,
*147
Subdivision (b) of section 1009 was clearly designed to alter this body of law, but it does not eliminate it entirely. Subdivision (b) contains an exception for situations in which a governmental entity engages in improvements or maintenance related to the public use of subject property (§ 1009, subd. (b) ; see
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)
For one thing, plaintiffs fail to identify a "well-developed body of law." (
Olson
,
supra
, 42 Cal.4th at p. 1156,
**688
(See
Hanshaw
,
supra
, 116 Cal.App.4th at p. 485,
For another thing, section 1009 has not been the subject of "numerous amendments." (
Olson
,
supra
, 42 Cal.4th at p. 1156,
B.
Where statutory text "is unambiguous and provides a clear answer, we need
*653
go no further." (
Microsoft Corp. v. Franchise Tax Bd.
(2006)
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. (§ 1009, subd. (d) ; see
Gion
,
supra
, 2 Cal.3d at p. 44,
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, **689 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 *654 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 Assembly committee analysis of proposed amendments advised that, if the amendments were included in the bill, "[t]he doctrine of implied dedication would be deleted prospectively except for [in] the 'coastal zone'...." (Assem. Com. on Planning and Land Use, Analysis of Proposed Amendments to Sen. Bill No. 504 (1971 Reg. Sess.) July 20, 1971, p. 1.)
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)
IV.
We affirm the Court of Appeal's judgment remanding the case to the trial court with directions to enter judgment in favor of defendants.
We Concur:
Cantil-Sakauye, C.J.
Werdegar, J.
Chin, J.
Corrigan, J.
Liu, J.
Cuéllar, J.
Scher and McAllister also sought a declaration that they should benefit from an easement across the roads. The trial court accepted their arguments in part, but the Court of Appeal did not. These claims are not now before us.
Given the limited scope of our review, we do not address any questions about the proper application of section 1009, subdivision (b) to a claim that an implied offer to dedicate a roadway was accepted by public use. Nor do we address plaintiffs' argument that the Court of Appeal erred in applying the substantial evidence standard in reviewing the trial court's judgment.
The exception in section 1009, subdivision (d), which is not relevant here, concerns private lands improved, cleaned, or maintained by public entities: "Where a governmental entity is using private lands by an expenditure of public funds on visible improvements on or across such lands or on the cleaning or maintenance related to the public use of such lands in such a manner so that the owner knows or should know that the public is making such use of his land, such use, including any public use reasonably related to the purposes of such improvement, in the absence of either express permission by the owner to continue such use or the taking by the owner of reasonable steps to enjoin, remove or prohibit such use, shall after five years ripen to confer upon the governmental entity a vested right to continue such use."
An analysis by the Assembly Committee on Planning and Land Use discusses, regarding the earlier version of the legislation that became section 1009, whether the doctrine of implied dedication should be "delete[d]" or instead "controll[ed]." (Assem. Com. on Planning and Land Use, Analysis of Sen. Bill No. 504 (1971 Reg. Sess.) July 20, 1971, p. 2.) The analysis observes that "[t]he use of ... implied dedication to control deceptive practices in subdivision sales (i.e. such as promised roads, etc.) may be an incidental benefit of the doctrine." ( Ibid .) This further suggests that the Legislature was aware that the legislation could affect implied dedication of roadways.
Accordingly, to the extent they are inconsistent with our opinion, we disapprove
Hanshaw v. Long Valley Road Assn.
,
supra
, 116 Cal.App.4th at pages 484-485,
Reference
- Full Case Name
- Jaime A. SCHER Et Al., Plaintiffs and Appellants, v. John F. BURKE Et Al., Defendants and Appellants.
- Cited By
- 40 cases
- Status
- Published