Land may be dedicated for public use, as a road for example, by express dedication, or it may be implied. The process is described as implied in fact if the public uses the property and the acts of the owner indicates that they consent; or implied by law if the public has openly and continuously used the property for five years. Implied by law is similar to the process for a prescriptive easement, but it is not the same. What was required was established under the common law (court decisions) up through the Gion decision, which resulted in the Legislature passing new law to protect landowners. However, the new legislation acted prospectively, meaning that, for uses occurring up through 1971 when the law was passed, Gion governs implied dedication. If a party wants to establish the public’s rights to use private property based on five years of use prior to 1972, they should contact a Sacramento real estate attorney. My next post, Part 2, will cover the 1972 legislation and what is now required to establish an implied by law dedication to the public,
Gion v. City of Santa Cruz involved an old roadbed on the seaward side of West Cliff Drive, between Woodrow and Columbia Streets in Santa Cruz, that had been quitclaimed to the owner and developer of the surrounding property by the city. Most of the area, however, had never been used for anything but the pleasure of the public. Since at least 1900, various members of the public parked vehicles on the level area and proceeded toward the sea to fish, swim, picnic and view the ocean. The city had filled in small amounts of the land and placed supporting riprap in weak areas. The city also put an emergency alarm system on the land and in the early 1960’s paved the parking lot.