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Court of Appeal, Fourth District, Division 2, California.

ENCHANTED VILLAGE ESTATES, et al., Plaintiffs and Appellants, v. Alan H. SETTLES, et al., Defendants and Respondents.

No. E006179.

Decided: April 06, 1990

Paul K. Duffy, Rancho Cucamonga, for plaintiffs and appellants. Clayson, Mann, Arend & Yaeger, Roland C. Bainer and Sallie Barnett, Corona, for defendants and respondents.


In this case we decide that the Legislature prospectively eliminated the doctrine of common law dedication in noncoastal areas by enacting Civil Code section 1009 in 1971.   Accordingly, we find that the trial court erred when it decided that Nelson Street, a north-south street in the southeast part of the City of Corona, became a public street by common law dedication.

Nevertheless, we find that the trial court was correct in three of its other rulings and we affirm the judgment as modified.



Plaintiffs Enchanted Village Estates and Enchanted Village Mutual Water Company brought this action for trespass and conversion against defendants Alan, Florence, Paul, Bobbie, Don, and Patrick Settles (Settles).   The trespass cause of action was based on the theory that the Settles were trespassers because Nelson Street is a private street.   The conversion cause of action was based on the theory that defendants were taking plaintiffs' water without permission.   The trial court disagreed with both theories.

Defendants cross-complained for an injunction, for a prescriptive easement, for damages for nuisance and for declaratory relief.   The Settles also filed a first amended cross-complaint which alleged that Nelson Street is a public street.

The trial court found that Nelson Street is a public street or, alternatively, that the Settles have an easement by prescription and an easement by necessity over it.   The trial court also found that the Settles are entitled to the water they took, and that they paid their proportionate share of the cost of producing the water.   The trial court granted an injunction which required repairs and maintenance to the water and electrical facilities.   Damages for the nuisance of $2,500 were also awarded against plaintiffs.



Since early 1973, Enchanted Village Estates has owned a number of parcels in a subdivision known as Overlook Addition No. 2 in the City of Corona.   The subdivision map for this subdivision was recorded in 1925.   A public street, Courtney Lane, runs across the north side of the subdivision.   Nelson Street runs along the west side of the subdivision and crosses the boundary of the city at Keith Street.   Keith Street and a portion of Nelson Street south of the city boundary were designated as public streets by the County of Riverside in 1982.   The disputed portion of Nelson Street is in the city between Courtney Lane and Keith Street.

Nelson Street was constructed in 1973.   As built, it did not follow the route on the subdivision map but instead curved into Courtney Lane at its north end.   The curve passed through parcel 1, owned by plaintiff Enchanted Village Estates Mutual Water Company.   In 1983, the north end of the road was rebuilt to intersect Courtney Lane at a 90–degree angle.   The rebuilt road is also located on parcel 1.

The Settles' property is outside the subdivision at its southwest corner.   The Settles' families purchased their property in 1981 and 1984.   The electrical and water facilities are located on the Settles' property pursuant to a recorded easement.   Between 1985 and 1987, the Settles connected a water line to the water facilities to service their property without the permission of plaintiffs.



 This court applies the substantial evidence rule to determine whether the trial court was correct in its factual rulings on conflicting evidence.   Accordingly, all facts will be viewed most favorably to the prevailing party and all conflicts will be resolved in favor of the prevailing party.  (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925–926, 101 Cal.Rptr. 568, 496 P.2d 480.)   Since the trial court viewed the property, the view is independent evidence to support the trial court's findings.  (Code Civ.Proc., § 651;  Applegate v. Ota (1983) 146 Cal.App.3d 702, 712, 194 Cal.Rptr. 331;  2 Witkin, Cal.Evidence (3d ed. 1986) § 851, pp. 816–817.)

 Here, however, the respective contentions of the parties are based largely upon recorded documents.   In such a case we defer to the trial court's interpretation of the documents to the extent that conflicting extrinsic evidence has been considered, and we independently determine the meaning of the documents when there is no conflicting extrinsic evidence.  (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865–866, 44 Cal.Rptr. 767, 402 P.2d 839;  9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, §§ 292–295, pp. 303–306.)

IV ***



The trial court found that Nelson Street is a public street.   Factually, the trial court's finding is supported by evidence that the offer to dedicate contained in the recorded subdivision map was accepted by public use.1  Legally, the trial court's finding is based on principles of common law dedication.  (Miller & Starr, Cal.Real Estate 2d, Dedication, §§ 21:3, 21:4, 21:10 & 21:21, pp. 461–465, 473–475 & 492–494.)

Plaintiffs contend, however, that Civil Code section 1009 precludes a finding of common law dedication in this situation.  Section 1009 was adopted as a legislative response to the landmark case of Gion v. City of Santa Cruz (1970) 2 Cal.3d 29, 84 Cal.Rptr. 162, 465 P.2d 50.

In Gion, our Supreme Court considered the question of when an implied dedication has been made.   The land in that case was shoreline property which had been used by the public for many years.2  In addition, the city had exercised control over the property by maintaining it.   The court reviewed the principles of common law dedication and found that long-term continued adverse use by the public led to such dedication.   Specifically, “a common law dedication of property to the public can be proved either by showing acquiescence of the owner in the use of the land under circumstances that negate the idea that the use is under a license or by establishing open and continuous use by the public for the prescriptive period.”  (Id., at p. 38, 84 Cal.Rptr. 162, 465 P.2d 50.)   To show such dedication, the litigants need only show that the land was used as if it were public land.  “If a road is involved, the litigants must show that it was used as if it were a public road.”  (Id., at p. 39, 84 Cal.Rptr. 162, 465 P.2d 50.)

“The importance of the case lies in the fact that the Court expressly repudiated the presumption of earlier decisions that public use of unenclosed and uncultivated land was attributable to a license on the part of the owner, rather than his intent to dedicate.”  (Shavelson, GION v. CITY OF SANTA CRUZ Where Do We Go From Here?  (1972) 47 State Bar J. 415, 416;  see, also, County of Orange v. Chandler–Sherman Corp. (1976) 54 Cal.App.3d 561, 126 Cal.Rptr. 765.)

The court also considered whether the rules of dedication are different between shoreline property and other property, specifically including roads.   (Gion v. City of Santa Cruz, supra, 2 Cal.3d 29, 41, 84 Cal.Rptr. 162, 465 P.2d 50.)   The court found that “[t]he rules governing implied dedication apply with equal force ․ to land used by the public for purposes other than as a roadway․  [¶] Even if we were reluctant to apply the rules of common law dedication to open recreational areas, we must observe the strong policy expressed in the Constitution and statutes of this state of encouraging public use of shoreline recreational areas.”  (Id., at pp. 41–42, 84 Cal.Rptr. 162, 465 P.2d 50.)   The court therefore found that, although the basic rules of dedication had evolved in the road context, the state policy of encouraging public use of shoreline recreation areas justified application of the dedication rules to such areas.

Gion therefore supports the trial court's determination that the inland road here has been impliedly dedicated to public use, and is therefore a public road.

In response to Gion, the Legislature amended Civil Code section 813 and enacted section 1009 in 1971.  Section 813 now provides that the owner of the property may record a notice that public use is permissive.   If such a notice is recorded, public use will generally not be considered evidence of implied dedication.   There was no evidence that such a notice was recorded in this case.

Civil Code section 1009, subdivision (b), provides that “Regardless of whether or not a private owner of real property has recorded a notice of consent to use of any particular property pursuant to Section 813 of the Civil Code or has posted signs on such property pursuant to Section 1008 of the Civil Code, except as otherwise provided in subdivision (d), no use of such property by the public after the effective date of this section shall ever ripen to confer upon the public ․ 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 ․ which has been accepted by the county, city, or other public body to which the offer of dedication was made․”  (Emphasis added.)   Later subdivisions provide an exception if public money is used to clean, maintain, or improve the property (subd. (d)) and different rules are established for coastal properties (subds. (e), (f) & (g)).

Since all public use here was after the effective date of Civil Code section 1009, plaintiffs contend that subdivision (b) eliminates the principles of common law dedication for noncoastal areas.

The trial court found section 1009 inapplicable but it did not state its reasons.   One possibility is that it thought that the Legislature only intended to eliminate common law dedication resulting from recreational uses of private property by the public.   This argument follows from the declaration of legislative intent stated in subdivision (a).   Subdivision (a) first states a legislative finding that:  “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.”  (Civ.Code, § 1009, subd. (a)(1).)   The section also recites that landowners are threatened with loss of rights, presumably as a result of Gion, if they allow such recreational uses, and that such use threatens to cloud titles to property.  (Civ.Code, § 1009, subds. (a)(2) & (a)(3).)

Under this reading, subdivision (b)'s use of the unrestricted term “such use” would be read to mean “such recreational use.”   Since recreational uses are not involved here, the statute would not apply if read in this manner.   This limited reading is supported by Miller & Starr:  “Although the statute is ambiguous, it is clear that the legislature intended the provisions of that section to apply only to recreational use of private property by the public.   While the body of CC § 1009 commencing with subsection (b) only uses the terms ‘use’ and ‘public use,’ the recitations in subsection (a) make it clear that the legislature intended the section to induce private owners to make their lands available to the public for ‘recreational use,’ and to protect private owners from the loss of rights arising from the public use of the property for such purposes.”  (7 Miller & Starr, op. cit. supra, at § 21.17, p. 485, fn. 38.)

We disagree with this interpretation for several reasons.   First and foremost, the language used in section 1009, subdivision (b), is not ambiguous and is not limited to recreational uses.   Rather, it applies to all uses of private noncoastal real property by the public.   Second, the available legislative history indicates that a legislative compromise was reached to the effect that the implied dedication doctrine would be prospectively eliminated for noncoastal properties unless a governmental entity has spent funds on cleaning or maintaining the property for public use (Civ.Code, § 1009, subd. (d)).  (Briscoe & Stevens, Gion After Seven Years:  Revolution or Evolution? (1977) 53 L.A.Bar J. 207, 222–225.)   Third, is the difficulty of distinguishing between recreational and nonrecreational uses of noncoastal property.

In County of Los Angeles v. Berk, (1980) 26 Cal.3d 201, 214, the majority opinion rejected the argument that the principles of common law dedication had always been limited to roadways, and the application of these principles to other property was unanticipated.   The majority opinion undercuts any distinctions based on the type of property involved but does not discuss Civil Code, section 1009.

In dissent, Justice Clark considered the legislative response to Gion in some detail and summarizes the legislative history by saying that Civil Code sections 813 and 1009 “clearly reflect the legislative judgment that the policy of public access to recreational areas is best served by encouraging landowners to allow the public to use their land․  Thus, the general rule in California is again that, absent public improvement or maintenance, the gracious landowner who permits the public to use his property is in no worse position than he who excludes the public.”  (Id., at pp. 230–231, 161 Cal.Rptr. 742, 605 P.2d 381 (dis. opn.).)   He also states:  “As to the noncoastal properties, prescriptive dedication is available only where governmental agencies have improved, maintained or cleaned the land by expenditure of public funds.”  (Id., at p. 231, 161 Cal.Rptr. 742, 605 P.2d 381 (dis. opn.).)

In Richmond Ramblers Motorcycle Club v. Western Title Guaranty Co. (1975) 47 Cal.App.3d 747, 121 Cal.Rptr. 308, the court upheld a trial court finding that the motorcycle club's use of defendants' property was with the permission of defendants.   The motorcycle club based its argument on Gion.   The court responded:  “We accordingly hold that the rules and rationale of Gion extend no further than to roads, beaches and shoreline areas, and that they are inapposite to the open fields and hillsides of the inland areas of the defendants in the case at bench.”  (Id., at pp. 758–759, 121 Cal.Rptr. 308.)   The court also noted that Civil Code section 1009 only acted prospectively.  (Id., at p. 755, fn. 2, 121 Cal.Rptr. 308.)

A third opinion cited under section 1009 is Brumbaugh v. County of Imperial (1982) 134 Cal.App.3d 556, 184 Cal.Rptr. 11.   In that case an inland road became a public road by implied dedication between 1948 and 1955, and was formally accepted by the county in 1956.   The court applied Gion and found implied dedication.3

 This case appears to be the first case in which all of the elements of common law dedication of noncoastal property occurred after 1971.   For the reasons discussed above, we find that the Legislature intended to and did prospectively eliminate common law dedication for such property.   The trial court therefore erred in finding that Civil Code section 1009, subdivision (b), is inapplicable here.

 Since the enacting legislation provides that section 1009 shall not “be construed to affect, diminish or extinguish any right or rights vested as of the effective date hereof by reason of express or implied dedication, or otherwise” (Stats.1971, ch. 941, § 3, p. 1848), the trial court may also have thought that acceptance of dedication had occurred by public use by defendants' predecessors prior to enactment of Civil Code section 1009 in 1971.   If so, the conclusion is unsupported by the evidence.   The only evidence in this regard was that the road was not constructed until 1973 and that the Settles' predecessors used it freely after that time.   Although a city engineer testified that the City regards Nelson Street as a public road, there was no evidence that the City has ever formally accepted the dedication in the required manner.4  There was also no evidence to support a conclusion that there had been a common law dedication before adoption of Civil Code section 1009 in 1971.

We therefore find that Civil Code section 1009 clearly applies to this situation.   Accordingly, we are required to agree with plaintiffs there has been no implied dedication and that Nelson Street in the City of Corona is not a public road.

VI–VII ***



The judgment is modified by deleting numbered paragraph two which states “Nelson Street between Courtney Lane and Keith Street within the City of Corona is a public road.”   The judgment is further modified by amending the phrase “an easement” in numbered paragraph three to read “a private prescriptive easement.”

The judgment as so modified is affirmed, respondents to recover their costs on appeal.


FOOTNOTE.   See footnote *, ante.

1.   Streets and Highways Code section 26 provides that dedication is one way in which a city can acquire a street.   Dedication “is the application of private real property to a public use by the acts of its owner which clearly manifest the intent that it be used for a public purpose.   The owner can dedicate either an easement or the fee title interest by either a statutory or a nonstatutory common-law dedication.”   (7 Miller & Starr, Cal.Real Estate 2d, Dedication, § 21:1, p. 458.)

2.   Gion was consolidated with the case of Dietz v. King.   Plaintiffs in Dietz requested an injunction to prevent defendants from interfering with the public's use of a road which led to the beach.   The trial court found that widespread public use of the road had not led to an implied dedication.   The Supreme Court reversed because it found implied dedication to the public.

3.   In ruling on plaintiffs' contention that the County's acceptance was invalid, the court alternatively found that there was implied dedication by public use in the 1960's and 1970's.   In reaching this conclusion, the court apparently overlooked the issue presented by the adoption of Civil Code section 1009 in 1971.

4.   The recorded map contains certified resolutions of the City of Corona adopting the map as the official map of the subdivision.   The resolution states, however, that “the streets as shown on said Map are hereby not accepted as public streets․”At trial, plaintiffs argued that the dedication offer in the 1925 map could not now be accepted because of Code of Civil Procedure section 771.010.   Since that issue is not before us, we express no opinion on the applicability of that section if the City were to formally accept the offer of dedication in the future.

FOOTNOTE.   See footnote *, ante.

HOLLENHORST, Acting Presiding Justice.

McDANIEL and DABNEY, JJ., concur.