Nice guys (get to keep their property after all)

TAKINGS TALK

Nearly half-a-century ago, the California Supreme Court decided Gion v. City of Santa Cruz, 2 Cal. 3d. 29 (1970). In that case, the court expanded the concept of “implied dedication” beyond the bounds that had previously contained it. After Gion, evidence that, for a period of five years, miscellaneous members of the public had used private property in some way (e.g., for recreation or access) led to a conclusive finding that the underlying property owner had an implied intent to dedicate the property to the public. This donative intent was presumed in spite of the fact that the owner may simply have been allowing the public to use land that was not then needed by the owner for other use and in spite of the fact that the owner had no actual intent to give the property to the general public or to anyone else.

Commentators were generally outraged by the decision and said so in no uncertain terms. The dissent in a Supreme Court case a decade later collected many such critiques, including one by the author of this column. See County of Los Angeles v. Berk, 26 Cal. 3d 201, 228 (1980) (dissenting opinion), citing Michael M. Berger, “Nice Guys Finish Last — At Least They Lose Their Property,” 8 Cal. West. L. Rev. 75 (1971). The substance of those negative analyses was that Gion was both bad law and bad policy. It was bad law because it upended the protection provided private property owners by both the California and U.S. Constitutions and allowed fiction to create an intent to donate property that did not exist in fact. Moreover, it made a radical change in the law without giving property owners any opportunity to adjust to the new dedication rules. It was bad policy because it punished property owners who generously allowed members of the public to use their land while rewarding those who walled off their property from the public. The former were held to have given their land away while the latter were protected.

The Legislature reacted swiftly, aligning itself with the critics of the Gion opinion. A scant one year later (lightning fast in legislative terms) the Legislature declared that, “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.” Civ. Code Section 1009 (emphasis added). Notwithstanding the clarity and forcefulness of this Legislative language, some lower courts continued to apply the severe Gion rule, confiscating private property in the process. Other courts took the Legislature at its word, creating confusion in the law of dedication.

The Supreme Court finally granted review in one of the cases to bring some order out of chaos, and two weeks ago the decision in Scher v. Burke, 2017 DJDAR 5694 (June 15, 2017), clarified matters. Firmly. Scher expressly cabins the old Gion decision and holds that the clear Legislative language must prevail. In the process, the court relied on the reasoning in those contemporaneous criticisms of Gion cited earlier. The factual setting for Scher involved neighboring properties in Topanga Canyon, with the owners of one set of properties claiming an impliedly dedicated access easement over their neighbors’ land. They claimed that the Legislative correction of Gion applied only to recreational property, not access roads. Wrong, said the Court of Appeal; it applies to all public uses, not merely recreational uses. The Supreme Court upheld that common sense reading of the statute.

Although not needed, the Supreme Court said that the Legislature’s intent to severely restrict Gion was clear and provided support for the language which was plain enough to stand on its own in any event. As Legislatures are wont to do, this Legislature made findings that explained and supported the statutory enactments. In a nutshell, the Legislature agreed with Gion’s critics, finding, in essence, that it is a good idea to encourage property owners to be good neighbors and to make their unused land available for use by others so long as there is no danger that such kindness will be construed as an offer to make a gift to the general public. Building on its findings that the law preferred a system that encouraged property owners to allow others to use land that was not currently needed by its owners without risk of forfeiture, the Legislature provided several alternative ways for property owners to demonstrate their lack of donative intent: posting signs (Civ. Code Section 1008), recording a notice (Civ. Code Section 813), publishing notice in a local newspaper (Govt. Code Section 6066), or entering into a written agreement with a government agency allowing public use (Civ. Code Section 813).

The plaintiffs relied heavily on the group of cases decided since Gion that applied its expansive use of the concept of dedication. They urged that the Legislature must have acquiesced in that interpretation as it did nothing to alter it. That was wrong on at least three counts. First, the cases since Gion were hardly consistent with its extreme holding. Even the plaintiffs had to concede that those cases cited on the pro-Gion side of the scale were not uniform in their analysis or conclusion. Second, even if the Legislature had been inactive, inactivity “alone does not necessarily imply legislative approval.” Third, the Legislature had in fact acted. Indeed, it took a lot of gall to argue that the Legislature had been silent. As noted above, it adopted legislation on the very heels of Gion that directly contradicted the case. That several courts of appeal had disregarded this legislative rejection could not be taken as approval.

Leaving nothing to chance, the opinion ends thus: “the case [is] remanded to the trial court for entry of judgment in favor of defendants.” R.I.P. Gion.