Scher v. Burke

Supreme Court of California · 2017 · Property

218 Cal. Rptr. 3d 643

Updated July 9, 2026

propertyimplied dedicationpublic roadsnoncoastal propertypublic useroadwaysvehicle accessCivil Code section 1009

Facts

Plaintiffs owned land in Topanga Canyon and wanted to reach it by driving over two roadways crossing neighboring parcels rather than using less convenient alternative routes. Their neighbors blocked the roadways with gates. Plaintiffs sought a declaration that the routes had been dedicated as public roadways, and the trial court found implied offers to dedicate both in fact and in law, including based on public use for more than five years. The key dispute on review was whether Civil Code section 1009, subdivision (b) prevented reliance on post-1972 public use because the land was noncoastal and the use was nonrecreational vehicle access.

Issue

Does Civil Code section 1009, subdivision (b) apply to nonrecreational public use of private noncoastal property, including roadway use for vehicle access, so that post-1972 use cannot support implied dedication absent an express written irrevocable offer of dedication?

Rule

For private noncoastal property, Civil Code section 1009, subdivision (b) applies to all public use, not only recreational use. Thus, no post-1972 public use of such property may ripen into a vested public right to continue that use permanently through implied dedication unless there is an express written irrevocable offer of dedication, subject to the statute's stated exceptions.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In 1991, residents of a rural area outside Fresno began regularly driving across a privately owned dirt lane on Omar Vega's ranch to reach a shortcut to a county road. Vega never signed any document offering the lane to the public, but he also did not block access until 2022, when nearby landowners sued claiming the lane had become a public road.

Under the governing rule, what is the strongest argument against the neighbors' implied-dedication claim?

Explanation. For private noncoastal property, section 1009(b) bars reliance on post-1972 public use alone to establish an implied public dedication unless the owner made an express written irrevocable offer of dedication. The majority specifically rejected any roadway exception and any distinction between recreational and nonrecreational use.