California landowners need to be concerned about public use of their property. A high level of public use may imply an offer of dedication for public use. Unlike a prescriptive easement, public recreational use rights may be created without regard to how much any one individual uses the property, but rather by the extent of use by the more general ‘public.’ However, since 1972, Civil Code section 1009 established that No recreational public use, after March 4, 1972, can establish a permanent public right of use of property by prescription or implied dedication unless the owner makes a specific written, irrevocable offer of dedication, or unless a governmental entity has made visible improvements on the land, or has cleaned and maintained it in such a manner that the owner should know of the public use. California real estate attorneys advise their clients as to how they can prevent rights from being establish by posting the property, resulting in a permissive use. In a recent case a landowner tried to invoke section 1009 to prevent rights being established to cross his property to use other property for recreation. He was disappointed when the court said no, the recreation has to be on your property for the statute to apply.
In Antonio Pulido et al., v. Alfred Robert Pereira, Jr., the Pulidos owned some bare land in Calaveras County. To reach it they took Hogan Dam Road and turned off onto Quartz Hill Drive to access their property. They intended to build a house on their property, but in the meantime were using the property to shoot at targets. In 2007 Pereira put a lock on the gate at the turn off to Quartz Hill Drive. The Pulidos claimed that they had established a prescriptive easement. The court first noted the requirements for a prescriptive easement:
“The party claiming such an easement must show use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years.”
Pereira argued that, under Civil Code section 1009, the public’s use of another’s property for “recreation purposes” can never result into a right to use that property prohibited the establishment of a prescriptive easement.
The court found that it was a matter of statutory interpretation, and determining the intent of the legislature. That intent was expressed in the introduction to the code section (set out below), which was to encourage landowners to allow recreational use of THEIR property without the threat of just such an easement being established. Here, there was no public use, This was a matter of an easement between adjoining landowners. The recreation taking place was not on Pereira’s property, nor was “the public” using Quartz Hill Drive to reach a public recreation area.
1009. (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.