Opinion
B235892
09-11-2015
Jaime A. SCHER et al., Plaintiffs, Appellants and Respondents, v. John F. BURKE et al., Defendants, Appellants and Respondents.
Law Offices of Robert S. Gerstein, Robert S. Gerstein ; Law Offices of Bennett Kerns and Bennett Kerns, for Defendants, Appellants and Cross-respondents John Burke, Germaine Burke and Bennett Kerns. Levinson Arshonsky & Kurtz, Richard I. Arshonsky, Jason J. Jarvis ; Garrett & Tully, Ryan C. Squire and Zi C. Lin, for Defendants, Appellants and Cross-respondents Richard Erickson, Wendie Malick, Andrea D. Schroder and Richard B. Schroder. Ferguson Case Orr Paterson, Wendy C. Lascher and Joshua S. Hopstone, for Defendant, Appellant and Cross-respondent Gemma Marshall. Cunningham & Treadwell, James H. Treadwell and Steven F. Kuehl, for Plaintiffs, Respondents and Cross-appellants.
Law Offices of Robert S. Gerstein, Robert S. Gerstein ; Law Offices of Bennett Kerns and Bennett Kerns, for Defendants, Appellants and Cross-respondents John Burke, Germaine Burke and Bennett Kerns.
Levinson Arshonsky & Kurtz, Richard I. Arshonsky, Jason J. Jarvis ; Garrett & Tully, Ryan C. Squire and Zi C. Lin, for Defendants, Appellants and Cross-respondents Richard Erickson, Wendie Malick, Andrea D. Schroder and Richard B. Schroder.
Ferguson Case Orr Paterson, Wendy C. Lascher and Joshua S. Hopstone, for Defendant, Appellant and Cross-respondent Gemma Marshall.
Cunningham & Treadwell, James H. Treadwell and Steven F. Kuehl, for Plaintiffs, Respondents and Cross-appellants.
ALDRICH, J.
INTRODUCTION
This is a dispute between landowners about the right to vehicular access over two roads in the unincorporated Topanga Canyon area of Los Angeles County. After trial to the bench, the court ruled that the two roads had been dedicated as public streets, and that plaintiffs, Jaime A. Scher and Jane McAllister, had an implied easement over the roads for access to their property. Defendants, all of whom own land along the two roads south of plaintiffs' property, appeal from the portion of the judgment burdening their land and enjoining them from obstructing vehicular access. The court also found that plaintiffs had not established their right to an express, prescriptive, or equitable easement for access along the roads and across defendants' properties. Plaintiffs appeal from this part of the judgment in favor of defendants.
Defendants are Gemma Marshall, Richard Erickson and Wendie Malick, Richard B. and Andrea D. Schroder, Christina Erteszak, Northern Trust Bank, N.A., Bennett Kerns, Trustee of the A.S.A. Trust, dated June 28, 2005 “on behalf of John Burke & Germaine Burke,” John F. and Germaine Burke.
In the published portion of this opinion, we hold that Civil Code section 1009 bars all use of non-coastal private real property, not simply recreational use of such property, from ever ripening into an implied dedication to the public after the effective date of that statute. Hence, the trial court erred in considering evidence about use of the subject roads after March 4, 1972 to support its finding that the roads were impliedly dedicated to public use.
In the unpublished portion of this opinion, we hold that the trial court misapplied the law when it ruled that plaintiffs have an implied easement that arose before 1902, while the land was still owned by the federal government. We also conclude that the court erred in ruling that the two roads were dedicated to public use during that time. There is no evidence of the roads' use before 1972 such as would support a finding that they were impliedly dedicated as public streets. With respect to plaintiffs' appeal, we conclude that the trial court did not err in ruling that plaintiffs failed to prove they had an express easement or an easement by prescription, or were entitled to an equitable easement.
Accordingly, the portion of the judgment against defendants is reversed and the portion of the judgment against plaintiffs is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
For simplicity, we will not identify the parties' predecessors in title. (Cf. Jones v. Tierney–Sinclair (1945) 71 Cal.App.2d 366, 368, 162 P.2d 669 [declining to distinguish acts done by the parties from those committed by predecessors in interest].)
1. The land in the area at issue
In the late 1700s, the federal government began surveying the western United States pursuant to the Public Land Survey System. The government divided the land into “townships,” and split each township into 36 square-mile “sections.” At issue here are Sections 1, 7, and 12, in a township located in the Santa Monica Mountains.
We grant defendants' motion filed on July 6, 2012, to take judicial notice of an article from the United States Department of the Interior's website concerning the Public Land Survey System, < http://nationalmap.gov/small_scale/a_plss.html>.
The two roads at issue are Henry Ridge Motorway and Gold Stone Road. Henry Ridge Motorway runs approximately north/south along Henry Ridge, above Topanga Canyon, from Alta Drive in Section 1 in the north to near its southern end where it connects with Gold Stone Road in Section 12. The junction between Henry Ridge Motorway and Gold Stone Road is a hairpin turn where Henry Ridge Motorway measures about 12 feet wide. Gold Stone Road runs from Henry Ridge Motorway easterly into Section 7 where it terminates at Greenleaf Canyon Road, a public street. Greenleaf Canyon Road ends in the south at Topanga Canyon Boulevard, which eventually leads further south to the town center of Topanga.
Gold Stone Road is identified in the record variously as “Goldstone” Road and “Gold Stone” Road. For consistency, and following the parties' lead, we will use the two-word name.
From the north, Henry Ridge Motorway may be reached from Mulholland Boulevard via Adamsville Avenue and Alta Drive, both public roads, or Oldfield Ranch Road and Summit to Summit Road. From the south, Henry Ridge Motorway was accessible from School Road until the early 1990s when the school district installed gates. Now, the only outlet from the southerly part of Henry Ridge Motorway is through Gold Stone Road to Greenleaf Canyon Road.
Plaintiffs' land is the northernmost of the parties' properties on Henry Ridge Motorway in Section 1; all of defendants' properties lie to the south of plaintiffs' land. From Alta Drive south through plaintiffs' property, Henry Ridge Motorway is paved. Immediately south of plaintiffs' property lie four successive parcels owned by non-parties where Oldfield Ranch Road branches off to the east. At some point, the pavement ceases and Henry Ridge Motorway is indicated on a local map as a “trail.” Defendant Marshall owns the next southerly parcel on the unpaved trail, also in Section 1. Abutting Marshall to the south, where Section 12 commences, lie two parcels on Henry Ridge Motorway owned by defendants Erickson and Malick. (We will refer to these parcels as Erickson/Malick north and Erickson/Malick south, respectively.) Henry Ridge Motorway divides the Erickson/Malick south parcel to the west from the Schroder defendants' property to the east. Henry Ridge Motorway turns into Gold Stone Road as it bends generally eastward through the Schroder property toward Section 7. There, it cuts across land owned by defendant A.S.A. Trust, Kerns Trustee, and crosses onto the Burke defendants' property. The Burkes' driveway opens onto Greenleaf Canyon Road.
Plaintiffs also own an undeveloped lot off of Old Topanga Canyon Road in Section 12 that does not touch on Henry Ridge Motorway or Gold Stone Road.
See footnote *, ante .
3. The irrevocable offers to dedicate trail easements
a. Marshall's hiking and equestrian trail dedication on Henry Ridge Motorway
To develop her land in Section 1, Marshall was required to obtain a permit from the California Coastal Commission. As a condition to granting the permit, the Coastal Commission required Marshal to “record” an instrument “irrevocably offering to dedicate ... an easement for a hiking and equestrian trail for public use” of the Topanga–Henry Ridge Trail, which crosses part of Henry Ridge Motorway on her land. Marshall's 1989 irrevocable offer “dedicate [d] to the People of California an easement in perpetuity for the purposes of hiking and equestrian trail. ...” (Italics added.) The attached Coastal Commission Staff Report and Recommendations found and declared that “The Topanga–Henry Ridge Trail traverses the private access road (Henry Ridge Motorway)....” (Italics added.) Continuing, the report states, “these privately maintained roads have become commonly used recreational links between growing centers of development in the mountains. While currently unimproved, these roads ... functioned as public thru-ways and have historically been open to unobstructed vehicular and pedestrian traffic. It is likely that demand for this particular trail will increase as the immediate area is built out.” (Italics added.) “Henry Ridge Motorway is commonly used by equestrians, hikers, and joggers. Formal dedication may not be necessary to continue the use of this trail, because as in the case of other commonly used trails in the mountains, there is strong likelihood that prescriptive rights have been established.” (Italics added.)
b. trail dedication on Henry Ridge Motorway by predecessors of the Schroders and Erickson/Malicks
In 1992, prior owners of the Schroder and Erickson/Malick south properties in Section 12 recorded an “Irrevocable Offer to Dedicate Trail Easement and Declaration of Restrictions,” the purpose of which was to “allow[ ] public pedestrian and equestrian ingress and egress and for public recreational purposes.” (Italics added.) The Dedication affected a 20–foot wide strip of property that was contiguous with, and over the portion of Topanga–Henry Ridge Trail that lies within the owner's parcel, and specifically limited the “right of public use of the easement” “to daylight hours, from one hour before sunrise to one hour after sunset.” The offer did not involve Gold Stone Road.
As reflected in the document, this trail dedication was a condition of a Coastal Commission development permit. The Dedication states that “the Property is a parcel traversed by a trail used for public recreation and access....” The declaration contained the condition that the grantors would not interfere “with [the] present public use of this road.” (Italics added.) The restriction provides that the offer of dedication shall not be “construed to allow anyone, prior to acceptance of the Offer, to interfere with any rights of public access acquired through use which may exist on the Property.” (Italics added.)
The attached staff report reflects the Coastal Commission's mounting concern about the effects of increased development in the area on recreational use. The report notes that Henry Ridge Trail provides access and helps to connect areas with the “remainder of the trail system.” These trails “have become important and commonly used recreational assets and a means of providing access to and links between natural, scenic, and recreational areas in the mountains.” However, “[r]esearch has shown that a major deterrent to public use of recreational trails and similar public recreation areas and facilities is a perception by the public that the areas involved are private.” The report observes that “development tends to preempt public access, partly due to the ‘feeling of trespass' engendered by the predominance of private development” and notes the necessity of placing conditions on development “to formalize the public's right to continued use of these trails .” (Italics added.) 4. Use of Henry Ridge Motorway and Gold Stone Road by plaintiffs and others
Plaintiffs introduced into evidence numerous other documents and instruments in defendants' various chains of title. We will not include these exhibits here because they are not cited by the trial court and the evidence does not show that these instruments affect the result here.
Much of this lawsuit concerns whether and in what manner Henry Ridge Motorway and Gold Stone Road were used by the public.
See footnote *, ante .
b. After March 4, 1972
When Pauline Stewart, the “matriarch of Henry Ridge,” moved to Henry Ridge Motorway in 1977, it was merely a “fire road.” In 1984, the Los Angeles County Fire Department notified Stewart that it would no longer maintain the road because the “County had designated it as a private road. ” (Italics added.) Stewart described Henry Ridge in a 1988 letter as “a road on private property so it is considered a private road, it is not a public thoroughfare, even though it is open to the public for all practical purposes.” (Italics added.)
Stewart's own travel on Henry Ridge Motorway was almost exclusively northbound from plaintiffs' property and not southerly through defendants' land. The only roads that were continuously used for access to and from plaintiffs' property were Adamsville and Alta to the north. Stewart used Gold Stone Road twice in 20 years. She had no personal knowledge of anyone using Gold Stone Road to Henry Ridge Motorway; she did not even know whether her husband used Gold Stone Road. Nor did Stewart know whether any property owners on Henry Ridge Motorway or Gold Stone Road dedicated those roads to public use. She was unaware of facts that would show that the general public had used Henry Ridge Motorway to Gold Stone Road to Greenleaf Canyon on a regular basis. She stated, “I don't know anybody in their right mind that would even try to go that way .” (Italics added.)
Plaintiffs called a series of witnesses who described their use of Henry Ridge Motorway and Gold Stone Road. These witnesses, including plaintiffs, their neighbors, defendants, friends, handymen, tenants, and others in the area, also described who they saw driving along the two roads. None of the witnesses described use of or activity on the two roads before March 4, 1972.
Plaintiffs purchased their Section 1 property in 1998. They have an easement, recorded in 1948, giving them access northerly along “that certain road only, now known as a fire road and connected with proposed Mulholland Blvd.” Plaintiffs' tenants' leases specify that the tenants may use Henry Ridge Motorway to the north for access but not to the south, except “in case of dire emergency.” Plaintiff Scher testified that since purchasing his Section 1 property he intended to establish rights south along Henry Ridge Motorway and Gold Stone Road.
Plaintiffs bought their Section 12 property off of Old Topanga Canyon Road in 2007. Undeveloped, plaintiffs' Section 12 lot measures 1,250 square feet and does not touch Henry Ridge Motorway or Gold Stone Road. Scher testified he bought the Section 12 lot “ ‘partially to stick a thorn in my neighbor's side’ ” and because plaintiffs wanted to claim a right to use the two roads at issue under the Declarations of Easements, which plaintiffs believed benefitted Section 12 owners, but not plaintiffs' Section 1 property.
Marshall purchased her property in 1987. In 1990, after recording her trail dedication and obtaining a Coastal Commission development permit, Marshall began constructing a residence located 24 feet from Henry Ridge Motorway. Marshall posted signs on the northern and southern boundaries of her property declaring “Private Road permission to pass subject to control of owner. Penal Code 602 and Section 1008 Civil Code.” Marshall hung the signs to prevent people from gaining prescriptive rights on her property.
In 1991, Marshall installed a locked gate across Henry Ridge Motorway on the northern boundary of her land and later electrified it. Marshall gave gate keys for emergencies to the fire department and her neighbors, including Stewart, who passed one on to plaintiffs when they bought the property. When closed, the gate prevents only vehicular access; hikers and equestrians can circumnavigate it.
Erickson and Malick, attracted by the quiet and privacy, purchased their north parcel in 1996 and their south parcel in 2000. Erickson “religiously” stops drivers on Gold Stone Road and Henry Ridge Motorway who he does not recognize. Erickson once challenged Scher's right to use the road on the Erickson/Malick south property. Malick has “often” stopped people on Gold Stone Road because they were following the Thomas Brothers' Guide to Henry Ridge Motorway. In 2008, Erickson and Malick recorded two declarations granting consent to use Henry Ridge Motorway on their two parcels pursuant to Civil Code section 813.
The Schroders have lived on their land since 2005, in part because of the privacy it afforded. Their seller and realtor told them there were no ingress and egress easements on Gold Stone Road. Schroder has been vigilant about keeping drivers off Gold Stone Road. He “always” stops drivers and redirects them unless they are guests of the Erickson/Malicks. There are two gates across Gold Stone Road.
The Burkes bought their Section 7 land in 1993. In 2005, they bought the unimproved land now held by the A.S.A. Trust to prevent development and ensure privacy. There is a sign at the intersection of Greenleaf Canyon Road and Gold Stone Road declaring the latter to be “Private.” Another sign reads, “ ‘No access to Henry Ridge Road. Locked gates ahead.’ ” On a wooden gate at the junction of Gold Stone Road, Greenleaf Canyon, and the Burkes' driveway stands a sign since at least 1993 that forbids trespassing, parking, dumping, and loitering. The Burkes posted the signs pursuant to Civil Code section 1008 so that people would know they were permissively driving on Gold Stone Road. Since they moved into their Section 7 property, the Burkes have stopped passersby to re-direct those not entitled to use Gold Stone Road.
5. Alternative routes
Plaintiffs calculate that traveling Henry Ridge Motorway south to Gold Stone Road is more convenient because this route to Topanga center takes 7 to 10 minutes. There are numerous roads connecting to Henry Ridge Motorway in the north to Topanga center, but those routes take plaintiffs 18 to 20 minutes. Plaintiffs claim they are unable to use Henry Ridge Motorway and Gold Stone Road to evacuate to the south in case of emergency.
In 2005, plaintiffs discovered that the lock on Marshall's gate was jammed. Plaintiffs sent Marshall letters demanding a new key and claiming an express easement to use Henry Ridge Motorway. Plaintiffs also sent letters to Erickson/Malick and discussed the issue of access to the two roads with Schroder. People consulted with their title insurers. 6. The litigation
Plaintiffs filed their complaint alleging that defendants' properties are burdened, and plaintiffs are benefitted, by express easements for ingress and egress along Henry Ridge Motorway and Gold Stone Road. The complaint sought to quiet title to the easements and sought declarations that: (1) plaintiffs are the beneficial owners of express, prescriptive, and equitable easements to use Henry Ridge Motorway and Gold Stone Road; (2) defendants have acquiesced to the dedication to public use of the entirety of Henry Ridge Motorway and Gold Stone Road across defendants' properties; and (3) plaintiffs are entitled to use Henry Ridge Motorway and Gold Stone Road as a public street. The complaint also sought to enjoin defendants from interfering with plaintiffs' use of the two roads. After trial, plaintiffs amended their complaint according to proof to add a cause of action for implied easement.
See footnote *, ante .
The trial court entered judgment declaring that Henry Ridge Motorway and Gold Stone Road had been impliedly dedicated as public streets and quieting title to easements over the two roads in favor of plaintiffs. The judgment enjoined and restrained defendants from obstructing the roads. The court also entered judgment against plaintiffs on their theories of express, prescriptive, and equitable easement. Defendants appeal and plaintiffs appeal.
CONTENTIONS
Defendants' appeals challenge the portions of the judgment against them and plaintiffs' appeal challenges the portion of the judgment against them.
DISCUSSION
I
DEFENDANTS' APPEAL
See footnote *, ante .
Dedication To Public Use
Defendants challenge the trial court's interpretation and application of Civil Code section 1009 in ruling that the two roads were dedicated to public use.
1. The law of public dedication
A dedication is the voluntary application of land “ ‘for some public use, made by the fee owner, and accepted by the public. By virtue of this offer which the fee owner has made, he is precluded from reasserting an exclusive right over the land now used for public purposes.’ ” (Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810, 820–821, 93 Cal.Rptr.2d 193 (Blasius ); 10 Miller & Starr, Cal. Real Estate, supra, § 26:1, pp. 26–3 to 26 –4.) “Dedications may occur pursuant to statute or the common law. [Citation.]” (Blasius, at p. 820, 93 Cal.Rptr.2d 193.)
Common law dedications are either express or implied. Express dedication occurs when the landowner's intent to dedicate is manifested by overt acts, such as by an instrument. Implied dedication arises when, in the absence of overt acts, the evidence of the landowner's conduct or acquiescence supports the attribution of intent to dedicate. (Blasius, supra, 78 Cal.App.4th at p. 821, 93 Cal.Rptr.2d 193.)
Dedications can be implied in law and implied in fact. A dedication is implied in law when the public's use is adverse and exceeds the period for prescription. (Blasius, supra, 78 Cal.App.4th at p. 821, 93 Cal.Rptr.2d 193 ; Cherokee Valley Farms, Inc. v. Summerville Elementary Sch. Dist. (1973) 30 Cal.App.3d 579, 585, 106 Cal.Rptr. 467 (Cherokee ).) A dedication is implied in fact “when the period of public use is less than the period for prescription and the acts or omissions of the owner afford an implication of actual consent or acquiescence to dedication.” (Blasius, at p. 821, 93 Cal.Rptr.2d 193, citing Union Transp. Co. v. Sacramento County (1954) 42 Cal.2d 235, 241, 267 P.2d 10.)
In addition to an offer to dedicate, the record must show an acceptance by the public. (10 Miller & Starr, supra, § 26:1, p. 26–5 ; Baldwin v. City of Los Angeles (1999) 70 Cal.App.4th 819, 837, 83 Cal.Rptr.2d 178.) Acceptance may also be express or implied. (Baldwin, supra. ) An express acceptance is a formal acceptance by the proper authorities. Implied acceptance occurs when “ ‘the public has made use of the property for a period of time which demonstrates an intention to accept dedication [citation] or where actions by the responsible public officials indicate[ ] an assumption of control over the property.’ [Citation.]” (Ibid. ) Courts require an “unconditional and unqualified acceptance of the offer” to dedicate. (10 Miller & Starr, supra, § 26:1, p. 26–5.)
The evidence required for finding that a road was impliedly dedicated to public use was delineated in Gion v. City of Santa Cruz (1970) 2 Cal.3d 29, 84 Cal.Rptr. 162, 465 P.2d 50 (Gion ). Under Gion, “[w]hat must be shown is that persons used the property believing the public had a right to such use. This public use may not be ‘adverse’ to the interests of the owner in the sense that the word is used in adverse possession cases. If a trial court finds that the public has used land without objection or interference for more than five years, it need not make a separate finding of ‘adversity’ to support a decision of implied dedication.” (Id. at p. 39, 84 Cal.Rptr. 162, 465 P.2d 50.)
As for the type of use, those advocating implied public dedication must demonstrate that people have “used the land as they would have used public land.” (Gion, supra, 2 Cal.3d at p. 39, 84 Cal.Rptr. 162, 465 P.2d 50.) Proponents of implied public dedication must show that “various groups” of people “have used the land,” not merely “a limited and definable number of persons.” (Ibid. ) “ ‘[T]he thing of significance is that whoever wanted to use [the land] did so ... when they wished to do so without asking permission and without protest from the land owners.’ [Citation.]” (Id. at p. 40, 84 Cal.Rptr. 162, 465 P.2d 50.) Therefore, the use must be “substantial, diverse, and sufficient, considering all the circumstances, to convey to the owner notice that the public is using the passage as if it had a right so to do.” (Blasius, supra, 78 Cal.App.4th at p. 826, fn. 7, 93 Cal.Rptr.2d 193.)
Whether there has been a dedication for public use is a factual question. (10 Miller & Starr, Cal. Real Estate, supra, § 26:4, p. 26–11 ; Cherokee, supra, 30 Cal.App.3d at p. 585, 106 Cal.Rptr. 467.) Whether express or implied, “the fundamental requirement for dedication is the clear and unequivocal intent by the property owner to dedicate his or her property [for] public use” (10 Miller & Starr, supra, at p. 26–9) and the unconditional and unqualified acceptance of that offer. (Id., § 26:1, p. 26–5.)
2. Civil Code section 1009 prevents all public use after 1972, not just recreational use, from ripening into an implied dedication to public use, and thus the trial court's interpretation and application of that statute was legal error.
On the heels of Gion, the Legislature enacted Civil Code section 1009, effective March 4, 1972 to prospectively abrogate that decision. (Blasius, supra, 78 Cal.App.4th at pp. 822–823, 93 Cal.Rptr.2d 193.) Subdivision (a) of section 1009 is a statement of 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;” that landowners face the “threat of loss of rights in their property if they allow ... the public to use, enjoy or pass over their property for recreational purposes;” and that the “stability and marketability of record titles is clouded by such public use, thereby compelling the owner to exclude the public from his property.” (Civ.Code, § 1009, subd. (a).)
The Legislature also amended Civil Code section 813. (Blasius, supra, 78 Cal.App.4th at p. 822, 93 Cal.Rptr.2d 193.) That statute now provides that a recorded notice of the landowner's consent to public use for a described purpose constitutes conclusive evidence that subsequent use of the land is permissive. (See Blasius, at pp. 822–823, 93 Cal.Rptr.2d 193.)
Subdivision (b) of Civil Code section 1009 declares that, notwithstanding lack of Civil Code sections 813 and 1008 notices [that use is permissive] by “a private owner of real property,” “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, made by the owner thereof in the manner prescribed in subdivision (c) of this section, which has been accepted by the county, city, or other public body to which the offer of dedication was made....” (Civ.Code, § 1009, subd. (b), italics added.) Subdivision (e) exempts coastal property, not at issue here, from subdivision (b). Subdivision (f) sets forth the steps that a coastal landowner may take to prevent the public use of coastal property from being used as evidence to support an implied dedication to the public, such as posting signs, recording Civil Code section 813 notices, or entering into an agreement with a governmental agency providing for the public use of the land. (Civ.Code, § 1009, subd. (f)(1)-(3).)
Civil Code section 1009 reads in relevant part, “(a) The Legislature finds that: [¶] (1) It 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 to supplement opportunities available on tax-supported publicly owned facilities. [¶] (2) Owners 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. [¶] (3) The stability and marketability of record titles is clouded by such public use, thereby compelling the owner to exclude the public from his property.
“(b) Regardless 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 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, made by the owner thereof in the manner prescribed in subdivision (c) of this section, which has been accepted by the county, city, or other public body to which the offer of dedication was made, in the manner set forth in subdivision (c). [¶] ... [¶]
“(e) Subdivision (b) shall not apply to any coastal property which lies within 1,000 yards inland of the mean high tide line of the Pacific Ocean, and harbors, estuaries, bays and inlets thereof, but not including any property lying inland of the Carquinez Straits bridge, or between the mean high tide line and the nearest public road or highway, whichever distance is less.
“(f) No use, subsequent to the effective date of this section, by the public of property described in subdivision (e) 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 does any of the following actions: [¶] (1) Posts signs, as provided in Section 1008, and renews the same, if they are removed, at least once a year, or publishes annually ... in a newspaper of general circulation in the county or counties in which the land is located, a statement describing the property and reading substantially as follows: ‘Right to pass by permission and subject to control of owner: Section 1008, Civil Code.’ [¶] (2) Records a notice as provided in Section 813.[¶] (3) Enters into a written agreement with any federal, state, or local agency providing for the public use of such land. [¶] After taking any of the actions set forth in paragraph (1), (2), or (3), and during the time such action is effective, the owner shall not prevent any public use which is appropriate under the permission granted pursuant to such paragraphs by physical obstruction, notice, or otherwise.
“(g) The permission for public use of real property referred to in subdivision (f) may be conditioned upon reasonable restrictions on the time, place, and manner of such public use, and no use in violation of such restrictions shall be considered public use for purposes of a finding of implied dedication.”
Here, the trial court ruled that Civil Code section 1009 prevents only recreational use of property from developing into a permanent vested right. Based on its statutory interpretation, the court relied on evidence of public vehicular ingress and egress after March 4, 1972 to find that Henry Ridge Motorway and Gold Stone Road were impliedly dedicated as public streets. Defendants contend that the trial court erred as a matter of law. They read Civil Code section 1009, subdivision (b) to preclude all use, not simply recreational use, of private property from ever ripening into public dedications by implication after the statute's enactment.
What Civil Code section 1009 precludes is an issue of statutory construction. “Statutory construction is a question of law that courts review de novo. [Citation.] The judicial task in construing a statute is to ascertain and effectuate the legislative intent.... [Citations.] The words of the statute are given their ordinary and usual meaning and are construed in the context of the statute as a whole and the entire system of law of which it is a part. [Citations.] A court must harmonize a statute with other laws so as to give effect to all and avoid anomalies, if possible. [Citations.]” (Bostick v. Flex Equipment Co., Inc . (2007) 147 Cal.App.4th 80, 108, 54 Cal.Rptr.3d 28 (concurring opn. of Croskey, J.).)
“If the language of a statute is unambiguous, the plain meaning governs and it is unnecessary to resort to extrinsic sources to determine the legislative ... intent. [Citation.] If the statutory language does not yield a plain meaning, a court may consider extrinsic indicia of intent, including the legislative history of a statute enacted by the Legislature ... and the historical circumstances of the statute's enactment. [Citations.] ‘Finally, the court may consider the impact of an interpretation on public policy, for “[w]here uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation.” [Citation.]’ [Citation.]” (Bostick v. Flex Equipment Co., Inc., supra, 147 Cal.App.4th at p. 108, 54 Cal.Rptr.3d 28 (concurring opn. of Croskey, J.).)
Looking to the words of the statute, we conclude Civil Code section 1009 is not ambiguous. Subdivision (b) of Civil Code section 1009 bars all public use, not just recreational use, from developing into an implied public dedication. Subdivision (b) broadly declares that “no use”—not “no recreational use”—shall “ever ” ripen into a vested right in the public, absent a written offer. “ ‘[W]hen one part of a statute contains a term or provision, the omission of that term or provision from another part of the statute indicates the Legislature intended to convey a different meaning.’ [Citations.]” (Klein v. United States of America (2010) 50 Cal.4th 68, 80, 112 Cal.Rptr.3d 722, 235 P.3d 42.) The absence of the word “recreational” from the phrase “no use” in “subdivision (b) indicates that the Legislature's aim was to comprehensively preclude implied public dedications from arising from any kind of public use of private real property.”
Pulido v. Pereira (2015) 234 Cal.App.4th 1246, 184 Cal.Rptr.3d 754, concluded otherwise. Pulido stated that “use of such property” in subdivision (b) of Civil Code section 1009 “refers back to subdivision (a)(1), which explains that the subject of the statute is the public recreational use of private real property.” However, subdivision (b) of Civil Code section 1009 defines the property to which it refers. The first clause of subdivision (b) reads “Regardless 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 Section 1008 of the Civil Code....” (Italics added.) The second clause of the same sentence declares, “no use of such property ... shall ever ripen to confer” a vested right in the public by implication. (Italics added.) Reference back to subdivision (a) to define the type of property discussed in subdivision (b) is unnecessary because the operative sentence of subdivision (b) contains its own definition, namely “any particular” private property.
Indeed, nowhere in the operative provisions of the statute is the word “recreational” found; “recreational” is only employed in the legislative findings in subdivision (a) of Civil Code section 1009. “Legislative findings and statements of purpose in a statute's preamble can be illuminating if a statute is ambiguous. [Citation.] But a preamble is not binding in the interpretation of the statute.” (Yeager v. Blue Cross of California (2009) 175 Cal.App.4th 1098, 1103, 96 Cal.Rptr.3d 723, fn. omitted.) As noted, no ambiguity exists in the statute and so it is unnecessary to import the word “recreational” from the legislative findings into the operative portions of the statute when the Legislature has declined to do so. The Legislature clearly intended Civil Code section 1009 to have broader application than solely to recreational use.
We disagree with the dicta to the contrary in Bustillos v. Murphy (2002) 96 Cal.App.4th 1277, 117 Cal.Rptr.2d 895. After reciting the legislative intent to encourage recreational use in Civil Code section 1009, subdivision (a), Bustillos stated, “The statute effectuates this purpose by providing that no recreational use of private property ‘shall ever ripen to confer upon the public ... a vested right to continue to make such use permanently’ unless the property owner dedicates the land to public use and the dedication of property is accepted by the government. (Id. subd. (b).)” (Bustillos v. Murphy, at pp. 1280–1281, 117 Cal.Rptr.2d 895, italics added.) Bustillos inserted the word “recreational” into its reading of subdivision (b) of Civil Code section 1009 where that word does not actually exist in contravention of the rule that “[w]e may not make a silent statute speak by inserting language the Legislature did not put in the legislation. [Citation.]” (Yeager v. Blue Cross of California, supra, 175 Cal.App.4th at p. 1103, 96 Cal.Rptr.3d 723.)
Viewing the statute as a whole (Bostick v. Flex Equipment Co., Inc., supra, 147 Cal.App.4th at p. 107, 54 Cal.Rptr.3d 28 (conc. opn. of Croskey, J.)), reinforces our conclusion. Subdivisions (e) and (f) of Civil Code section 1009 treat coastal property differently than non-coastal land by exempting coastal property from the subdivision (b) comprehensive ban on implied dedication. Coastal land remains subject to the implied dedication doctrine. To prevent evidence of public use of coastal land from supporting a finding of implied public dedication, an owner must affirmatively act by taking one of the three steps listed in subdivision (f). “[C]ourts must strive to give meaning to every word in a statute and to avoid constructions that render words, phrases, or clauses superfluous. [Citations.]” (Klein v. United States of America, supra, 50 Cal.4th at p. 80, 112 Cal.Rptr.3d 722, 235 P.3d 42.) A construction of subdivision (b) to ban only recreational use from ripening into a permanent vested public right would eliminate the statute's disparate treatment of coastal and non-coastal land.
Although we conclude that subdivision (b) of Civil Code section 1009 clearly applies to all uses of private property, we recognize that other cases have interpreted that section to apply only to recreational uses. (Pulido v. Pereira, supra, 234 Cal.App.4th at p. 1252, 184 Cal.Rptr.3d 754 [statute is arguably ambiguous]; Bustillos v. Murphy, supra, 96 Cal.App.4th at pp. 1280–1281, 117 Cal.Rptr.2d 895 [statute's aim is clear]; Hanshaw v. Long Valley Road Assn. (2004) 116 Cal.App.4th 471, 11 Cal.Rptr.3d 357.) Looking then to the Legislature's intent, it reinforces our construction. The Supreme Court in Gion clarified well-settled principles of implied dedication to the public for recreational purposes in a coastal area. (County of Los Angeles v. Berk (1980) 26 Cal.3d 201, 213, 161 Cal.Rptr. 742, 605 P.2d 381.) With the passage of section 1009, the Legislature adjusted the effect of Gion on land along the coast, and precluded all post–1972 public use of non-coastal private property from ripening into public dedication by implication. (See Civ.Code, § 1009, subds. (b) & (e).) The Legislature expressly designed Civil Code section 1009 to “treat the effect of implied dedication differently in the coastal zone than in the remainder of the state.” (Assem. Com. on Planning and Land Use, Analysis of Proposed Amendments to Sen. Bill No. 504, (1971 Reg. Sess.) July 20, 1971, p. 1, italics added.) With passage of section 1009, “[t ]he doctrine of implied dedication would be deleted prospectively except for the ‘coastal zone ’....” (Ibid. italics added.) More important, the statute was written to “[p]rohibit[ ] any use of private land, except specified ocean frontage land, after [the] effective date of [the] act from conferring a vested right in [the ] public ... in [the] absence of [an] express written irrevocable offer [to dedicate made] by owner of [the] property accepted by specified public agenc[ies]. With regard to specified ocean frontage property, [section 1009 ] makes use by public inadmissible to prove implied dedication if specified actions are taken by owner.” (Legis. Counsel's Dig., Sen. Bill. No. 504 (1971 Reg. Sess. & 1971 1st Ex. Sess.) Summary Dig., p. 136, italics added; accord, Enrolled Bill Memorandum to Governor for Sen. Bill. No. 504 (1971 Reg. Sess.) Oct. 7, 1971, p. 1; Jones v. Lodge at Torrey Pines Partners hip (2008) 42 Cal.4th 1158, 1169–1170, 72 Cal.Rptr.3d 624, 177 P.3d 232 [Legislative Counsel' summary are entitled to great weight].) As shown, the express legislative purpose of Civil Code section 1009 is to encourage recreational use of private property by preventing implied dedication of coastal property based on public use if the landowner takes one of the specified steps in subdivision (f), while eliminating all implied dedication of non-coastal property to public use after March 1972.
We grant the July 6, 2012 request of Erickson/Malick, joined by Burke and Marshall, to take judicial notice of the legislative history of Civil Code section 1009. Plaintiffs oppose the request on the ground these documents were not before the trial court. However, the construction of a statute presents a purely legal question that we review independently. (Audio Visual Services Group, Inc. v. Superior Court (2015) 233 Cal.App.4th 481, 489 ; see Peart v. Ferro (2004) 119 Cal.App.4th 60, 81, citing Evid. Code, §§ 452 & 459 [taking judicial notice of legislative history notwithstanding respondents' opposition on ground it was not introduced in trial court].)
Defendants' request, filed on July 6, 2012, to take judicial notice of exhibits I and J is denied.
A contrary construction of Civil Code section 1009 undermines the Legislature's findings and purpose, namely “to encourage owners of private real property to continue to make their lands available for public recreational use” by enabling property owners to allow recreational use of their land without fear of risking a cloud on their title. (Civ.Code, § 1009, subd. (a).) To read subdivision (b) to apply only to recreational use would discourage non-coastal landowners, unable to distinguish between recreational and nonrecreational users, from allowing any entry on their inland property for fear that “non-recreational” use would become permanent. Such a result would improperly thwart the statute's declared purpose and return the law to the state it was under Gion, thus defeating the Legislature's motive for enacting the statute.
The trial court followed Hanshaw v. Long Valley Road Assn., supra, 116 Cal.App.4th 471, 11 Cal.Rptr.3d 357, to find that Civil Code section 1009 only precluded common law dedications to public recreational use, but not to other uses such as vehicular ingress and egress. Hanshaw rejected the landowner's argument that Civil Code section 1009 prevented application of a common law public dedication theory after 1972 in a case involving implied public dedication of an access road. Relying on the phrase “for recreational purposes” in the subdivision (a)(2) legislative findings, the Hanshaw court held that the statute applies only to preclude the ripening of recreational use into a public dedication. (Hanshaw, at pp. 484–485, 11 Cal.Rptr.3d 357.) We decline to follow Hanshaw because it ignored the interplay of all of the statute's subdivisions and limited subdivision (b)'s broad prohibition that “no use ” “shall ever ripen to confer upon the public” a vested right to continue the use. (Civ.Code, § 1009, subd. (b), italics added; Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1489, fn. 10, 71 Cal.Rptr.3d 714 [we are not bound by the contrary decision by another appellate court; “ ‘there is no “horizontal stare decisis” within the Court of Appeal’ ”].)
For the foregoing reasons, Civil Code section 1009, subdivision (b) bars all use of private real property after March 1972, not just recreational use, from ripening into a public dedication absent an express, written, irrevocable offer of such property to such use, made according to subdivision (c).
The Los Angeles County Fire Department's maintenance of the road until 1984 is not admissible evidence of acceptance by the County of a dedication to public use. (Civ.Code, § 1009, subd. (b).) Not only does the record lack evidence of an express, written, irrevocable offer to the County, but the County ceased maintaining Henry Ridge Motorway because it was a private road.
Here, to find implied dedication of the two roads to public use for vehicular access, the trial court relied on witness testimony and recent photographs. Under Civil Code section 1009, subdivision (b), none of the testimony is admissible as all of it concerned vehicular use of Henry Ridge Motorway and Gold Stone Road between the late 1970s and the first decade of the 21st century. No witness testified about using or seeing anyone else use these roads for vehicular access before March 1972. Even the Matriarch of Henry Ridge, Stewart, only moved to Henry Ridge Motorway in 1977. Although Stewart testified that the roads “have been used for fifty years,” this testimony does not begin to describe the number and variety of use that Gion and Blasius require to find an implied dedication to public use. (Gion, supra, 2 Cal.3d at pp. 39–40, 84 Cal.Rptr. 162, 465 P.2d 50 ; Blasius, supra, 78 Cal.App.4th at pp. 825–826, fn. 7, 93 Cal.Rptr.2d 193.) Also, Stewart admitted that she had no personal knowledge of anyone driving Gold Stone Road to Henry Ridge Motorway.
The trial court additionally cited the express irrevocable offers to dedicate trail easements, which were executed after 1972, as evidence that Marshall, and the predecessors of the Schroders and Erickson/Malicks impliedly devoted these two roads to the public as vehicular thoroughfares. An exception to the ban on post–1972 implied dedications occurs when the landowner records an express, written, and irrevocable offer to dedicate that is accepted by a governmental entity. (Civ.Code, § 1009, subd. (b).) We independently construe these instruments which were executed after 1972. (City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 238, 52 Cal.Rptr.2d 82, 914 P.2d 160.)
The landowners' express dedication in these documents was for a “hiking and equestrian trail ” a “trail easement,” and a “public access trails easement ... limited to hiking and equestrian uses only .” (Italics added.) The latter dedication was also limited to daylight hours. Nothing could be more manifest: Marshall and the predecessors of the Schroders and Erickson/Malicks made irrevocable offers to dedicate easements for trail purposes only; there is nothing in the trail dedications indicating the intent to devote the portions of the trail on their property that coincides with Henry Ridge Motorway or Gold Stone Road as public streets. The express dedication of property for public use for horses and pedestrians alone does not result in implied dedications of the same land as a street for cars. (California etc. Co. v. Union etc. Co. (1899) 126 Cal. 433, 437, 58 P. 936 [express dedication of land for highway does not establish dedication of property for landing and wharves]; 26 Cal.Jur.3d (2008) Dedication, § 23, p. 46.) Thus, these instruments do not dedicate public roads for the unlimited vehicular access at anytime of the day and night that plaintiffs seek.
Nor is the witness testimony about vehicular ingress and egress for general purposes after 1972 admissible to transform the express offer of a trail for public use into a dedication of the roads as public streets. (Civ.Code, § 1009, subd. (b).) The Coastal Commission reports attached to the trail dedications require no more than public access for recreational purposes. The reports cite Public Resources Code sections 30210 through 30212, which concern access to the sea for recreational purposes and the findings are replete with references to public access to the Topanga–Henry Ridge Trail. More important, the reports reflect a concern about the “perception by the public that the areas involved are private” and a “ ‘feeling of trespass,’ ” contradicting the requirement of Gion that people must use the roads “believing the public had a right to such use.” (Gion, supra, 2 Cal.3d at p. 39, 84 Cal.Rptr. 162, 465 P.2d 50.)
Finally, the trial court ruled that defendants' acts of erecting gates and posting signs were in response to the “continued heavy use of Henry Ridge Motorway and Gold Stone Road by the public.” While that may be, no use of private inland property may ripen into a permanent, vested, public right after 1972 “[r]egardless of whether or not a private owner of real property has recorded a notice of consent ... pursuant to Section 813 of the Civil Code or has posted signs on such property pursuant to Section 1008 of the Civil Code.” (Civ.Code, § 1009, subd. (b).)
The trial court erred in relying on post–1972 evidence of public use, and the record contains no express, written, irrevocable offer to dedicate the subject roads as public thoroughfares.
See footnote *, ante .
DISPOSITION
The judgment in favor of defendants on plaintiffs' causes of action for declarations of express, prescriptive, and equitable easements is affirmed. In all other respects, the judgment is reversed. The trial court is ordered to enter a declaratory judgment in favor of defendants consistent with the principles set forth in this opinion.
Defendants to recover costs on appeal.
We concur:
EDMON, P.J.
KITCHING, J.