Tiburon/Belvedere Res. United to Support the Trails v. Martha Co.

<p>Filed 10/23/20 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE TIBURON/BELVEDERE RESIDENTS UNITED TO SUPPORT THE TRAILS, A157073 Plaintiff and Appellant, (Marin County v. Super. Ct. No. CIV 1703276) MARTHA COMPANY, Defendant and Respondent. Tiburon/Belvedere Residents United to Support the Trails (TRUST) appeals from a judgment entered in respondent Martha Company’s (Martha) favor after a court trial. TRUST argues that, nearly 50 years ago, the public’s use of trails on Martha’s property established a recreational easement under the doctrine of implied dedication and that the trial court erred in reaching a contrary result. We disagree, conclude the trial court’s findings are supported by substantial evidence, and affirm. BACKGROUND A. A private landowner may transfer (the legal term is dedicate) an interest in land to the public for no compensation. (Scher v. Burke (2017) 3 Cal.5th 136, 141 (Scher); Friends of Hastain Trail v. Coldwater Development LLC (2016) 1 Cal.App.5th 1013, 1027 (Hastain Trail).) A 1 dedication may be express or implied, but both require an offer of dedication and acceptance of that offer. (Scher, supra, 3 Cal.5th at p. 141.) An offer to dedicate may be implied in fact when there is proof that the owner consented to the dedication. (Ibid.) An offer may be implied by law when the public has used the land openly and continuously, as if the users believed the public had a right to do so, without objection by the landowner. (Ibid.; Gion v. City of Santa Cruz (1970) 2 Cal.3d 29, 38-39 (Gion).) Significant, longtime use by the public provides constructive notice to the landowner that the property is at risk of dedication; if the landowner takes no serious steps to discourage the use, the law conclusively presumes that the landowner has agreed to the dedication. (See Gion, 2 Cal.3d at pp. 38-41.) In Gion, our Supreme Court held that an implied by law dedication is established when “the public has used the land ‘for a period of more than five years with full knowledge of the owner, without asking or receiving permission to do so and without objection being made by anyone.’ ” (Gion, supra, 2 Cal.3d at p. 38.) Civil Code section 1009, subdivision (b), 1 abrogated the Gion decision prospectively, which is why the dispute before us centers on the five- year period preceding section 1009’s effective date (March 4, 1972). (Stats. 1971, ch. 941, § 2; Scher, supra, 3 Cal.5th at p. 147; Hastain Trail, supra, 1 Cal.App.5th at p. 1028.) Once a dedication is established, “[n]othing can be done . . . to take back that which was previously given away.” (Gion, supra, 2 Cal.3d at p. 44.) 1 Undesignated statutory references are to the Civil Code. 2 B. Martha owns 110 acres of undeveloped land on the Tiburon peninsula, near the communities of Tiburon and Belvedere. The property was used for cattle grazing until 1959. Martha has owned the property since the 1920s, and the company has at ...</p><br>
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