Dedications
A “dedication” is an uncompensated transfer of an interest in private property to the public. Dedications can occur pursuant to statute or common law. Statutory dedications follow the path set forth in the Subdivision Map Act. Common law dedications involve elements of offer and acceptance, and historically both elements could be shown by either express evidence or implied evidence.
Civil Code section 1009
Under California Civil Code section 1009, enacted in 1971, the public’s use of private property alone cannot ripen into a vested right for the public to permanently use that property. This statute was enacted in response to a California Supreme Court opinion Gion v. City of Santa Cruz, which held that a “common law dedication” could occur with both an implied offer of the property by its owner and implied acceptance through public use.
The Legislative backlash to Gion is explained in section 1009 — the Legislature found 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” without being threatened with the permanent “loss of rights in their property if they allow” such use. (Section 1009(a).)
After this statute was enacted, for a common law dedication to occur, the property owner must make some type of “express written irrevocable offer of dedication” while acceptance may still be shown by implication (i.e., public use). The statute describes one type of such an express written offer of dedication — an offer to a public agency under Government Code section 7050. But the statute also recognizes that other forms of express written offers of dedication exist, stating that such an express offer can also be made by “any procedure authorized by law and not prohibited by this section[.]” (Section 1009(c).)
One example of another type of express dedication authorized by law is an express dedication to a public agency on a recorded subdivision map. That type of dedication, even if not formally accepted by the public agency, can still be accepted by the public through sufficient use.
Cases based on facts arising after the enactment of section 1009 highlight the statute’s impacts. In short, if the common law dedication claim is based on an implied dedication offer with implied acceptance, it will almost certainly fail. If, however, the common law dedication claim is based on an express dedication offer with implied acceptance, it will succeed if the evidence of both offer and acceptance is strong enough.
Common law dedications based on implied offer and implied acceptance are extinct
Case law confirms that section 1009 bars common law dedications where the dedication offer itself is implied – either “in fact” or “in law” – and the acceptance is also implied by public use.
Authorities addressing this type of common law dedication include: Scher v. Burke (2017) 3 Cal.5th 136, Mikkelsen v. Hansen (2019) 31 Cal.App.5th 170, and Gion (discussed above).
In Mikkelsen, the court emphasized that section 1009 bars only common law dedications based on implied dedication offers – “such dedications only arise where an express offer is lacking….” (Id. at 179, emphasis added.) The court also noted that while public use alone can no longer supply both the offer and acceptance, public use remains “a proper mode of acceptance at common law” for express dedication offers. (Ibid.)
Common law dedications based on express offer and implied acceptance are alive and well
But section 1009 does not categorically bar common law dedications where the dedication offer is express and the acceptance is implied by public use.
Authorities addressing this type of common law dedication include:
- Prout v. Dept. of Transportation (2019) 31 Cal.App.5th 200, 212-213 [published 48 years after the enactment of Civil Code section 1009; finding common law dedication based on an express dedication offer combined with implied acceptance]
- Biagini v. Beckham (2008) 163 Cal.App.4th 1000, 1009-1010 [published 37 years after the enactment of Civil Code section 1009; reaffirming principle that a common law dedication can be established by an express dedication offer combined with implied acceptance]
- Hanshaw v. Long Valley Road Assn. (2004) 116 Cal.App.4th 471, 474-485 [published 33 years after the enactment of Civil Code section 1009; finding common law dedication based on an express dedication offer combined with implied acceptance and noting such a finding was not inconsistent with section 1009 because “the Legislature intended to allow methods of acceptances of written offers of dedication recognized at common law prior to enactment to continue. Such methods included acceptance of written offers of dedication by public user”], emphasis added, disapproved on other grounds in Scher, 3 Cal.5th 136. (Scher, addressing an implied dedication offer, disapproved Hanshaw only as to Hanshaw’s distinction between recreational and nonrecreational use of land.)
- McKinney v. Ruderman (1962) 203 Cal.App.2d 109, 115 [featuring a common law dedication based on an express dedication offer combined with implied acceptance; has been widely cited both before and after the passage of Civil Code section 1009, including in Prout and Biagini]
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