SCHER v. BURKE

Appellants, Jaime Scher and Jane McAllister, Petition for Review

Cal.October 22, 2015

§280104 si SUPREMEgout OCT: 2 2 2015 Se Frank A. McGuire Clerk IN THE SUPREME COURT OF THE Deputy STATE OF CALIFORNIA JAIME A. SCHER and JANE McALLISTER Petitioners, Vv. JOHN F. BURKE; GERMAINE BURKE; RICHARD ERICKSON; CHRISTINA ERTESZAK; BENNETT KERNS, TRUSTEE OF THE A.S.A. TRUST, DATED JUNE 28, 2005; WENDIE MALICK; GEMMA MARSHALL; NORTHERN TRUST BANK N.A.; ANDREA D. SCHRODER;and RICHARD B. SCHRODER Respondents. On Review From The Court OfAppeal For the Second Appellate District, Division Three, 2nd Civil No. B235892 After An Appeal From the Superior Court For The State of California, County of Los Angeles, Case Number BC 415646, Hon. Malcolm Mackey PETITION FOR REVIEW ALESHIRE & WYNDER, LLP JUNES. AILIN, STATE BAR NO.109498 jailin@awattorneys.com 2361 ROSECRANS AVE., SUITE 475 EL SEGUNDO, CALIFORNIA 90245 Tel: (310) 527.6660 - Fax: (310) 532.7395 Attorneysfor JAIME A. SCHER and JANE McALLISTER S IN THE SUPREME COURT OF THE STATE OF CALIFORNIA JAIME A. SCHER and JANE McALLISTER Petitioners, Vv. JOHN F. BURKE; GERMAINE BURKE; RICHARD ERICKSON; CHRISTINA ERTESZAK; BENNETT KERNS, TRUSTEEOF THE A.S.A. TRUST, DATED JUNE28, 2005; WENDIE MALICK; GEMMA MARSHALL; NORTHERN TRUST BANK N.A.; ANDREA D. SCHRODER;and RICHARD B. SCHRODER Respondents. On Review From The Court Of Appeal For the Second Appellate District, Division Three, 2nd Civil No. B235892 After An Appeal From the Superior Court For The State of California, County of Los Angeles, Case Number BC 415646, Hon. Malcolm Mackey PETITION FOR REVIEW ALESHIRE & WYNDER, LLP JUNE S. AILIN, STATE BAR NO. 109498 * jJailin@awattorneys.com 2361 ROSECRANSAVE., SUITE 475 EL SEGUNDO, CALIFORNIA 90245 Tel: (310) 527.6660 - Fax: (310) 532.7395 Attorneysfor JAIME A. SCHER and JANE McALLISTER TABLE OF CONTENTS Page L. ISSUES PRESENTED FOR REVIEW1.0... ccceeseeeeeese tect e setae eaeeseeteaeeneens 1 I. INTRODUCTION o.oo cecccceccccceescceerenceeeecenecscesseessenssesssesstastsseaceseeenasenserses 1 lI. ARGUMENT IN SUPPORT OF PETITION..uWW.eeeeeeeseetneereeees 4 A. The Basics of Implied Dedication Prior to Gion-Dietz«0.0.0.0...4 B. The Perceived Problem of Gion-Diet7z.......cccccccccccccee eeceeeeeereseeeteees 6 C. Civil Code Section 1009 as Legislative Response to Gion-Dietz ......9 D. This Case Creates A Conflict of Authority and Improperly Interprets Civil Code Section 1009 as Prohibiting Implied Dedication ofA Road for Non-Recreational Use...16 TV. CONCLUSION(000... eceecceeccccceceeecceeceneeceeeeeecearesessnessaeesasesseaesanenseneensaeeeees20 09999.0003/272268.3 il TABLE OF AUTHORITIES Page CASES Baldwin v. City ofLos Angeles, (1999) 70 Cal.App.4” 819 ...cccccececcscccesscscssessseseensecsesssesssessesesesersvssesserecees 6 Burch v. Gombos, | (2000) 82 Cal.App.4th 352, 98 Cal.Rptr.2d 119.0... eeeeeeeeeeeeeseeenees 17 Bustillos v. Murphy h (2006) 96Cal,App.4" 1277, 117 Cal.Rptr.2d 895 ......cccccsessssesseneseseeeeees 19 County ofLos Angeles v. Berk, (1980) 26 Cal.3d 201, 161 Cal.Rptr. 742, 605 P.2d 381oe5, 8,9 Friends ofthe Trails v. Blasius, (2000) 78 Cal.App.4th 810, 93 Cal.Rptr.2d 193.00eeeteeees 5,9, 17 Gion v. City ofSanta Cruz, (1970) 2 Cal.3d 29 ooo cecccccccccesseecseceeseseeseeeseeeseeeeseeceeeecseeereeseeneeesees 3,5, 7,8 Hanshaw v. Long Valley Road Ass'n, (2004) 116 Cal.App.4th 471,11 CalRptr.3d 357...eeseereteeeeees 17, 18 Hughes Electronics Corp.v. Citibank Delaware, (2004) 120 Cal.App.4" 251, 15 Cal.Rptr.3d 244.000. ceccceesesessecnseeeeee 16 People v. Watson, (2007) 42 Cal.4th 822, 68 Cal.Rptr.3d 769 occceeceeceeeeeeeeecenceeseeeseeeens 14 Pulido v. Pereira, h (2015) 234Cal.App4 L246 ooccccccecessssesssscsesesescsesceeseseseceessstsesesecerscesesenees 19 Union Transp. Co. v. Sacramento County, (1954) 42 Cal.2d 235, 267 P.2d 10 ooo... cece ce ceeeececsecesneeeseresseeeneesaseesatenennaes 5 STATUTES Civil Code Section 813 occcccccecceessssesesseeseeeseeeeeeeeeseeeeeseeeestneseaseeneeeees 10, 13 Civil Code Section 1008 oo... ccccccccssecesseeeeeeessaeeceeeesceeeeseceeesseeseateseneenens 11, 13 Civil Code Section 1009.0...eee 1, 2,3, 4, 9, 10, 14, 15, 16, 17, 18, 19, 20 09999,0003/272268.3 iil Government Code Section 6066 .0..........ccceceeeecececesscceseececcesssecessccssstnsseecescenererssenes 13 Government Code Section 7050 o..c..cccceccccscsececceccceeeescessssaeeceeensetesessssseeeeeers 11,15 RULES California Rules of Court, Rule 8.504(G)(1) ..... cece eeeeeeeececeeeeeeenseeeeseeseesseesnees 22 09999.0003/272268.3 iv 1. ISSUES PRESENTED FOR REVIEW Civil Code section 1009 appears to provide use of non-coastal private property cannot ripen to confer upon the public or any government body or unit a vested right to continue such use of the property. Prior cases from the Third and Fourth Districts of the Court of Appeal have held Section 1009 applies only to recreational use of property. In the case at issue, the Second District Court ofAppeal held that Section 1009 also encompasses non-recreational use of a road on non-coastal property, giving rise to the following issues: l. Does Civil Code section 1009 preclude non-recreational use of non-coastal private property from ripening into a public road? 2. Did the enactment of Civil Code section 1009 change the law ofimplied dedication by prohibiting implied dedication ofa road on non-coastal property? Il. INTRODUCTION The aboveissues regarding the scope and impact of Civil Code section 1009 arise in the context of a dispute among neighboring property owners regarding the use of two roadsin the Topanga area of Los Angeles County, Henry Ridge Motorway and Gold Stone Road. Plaintiffs below, Jaime Scher and Jane McAllister,filed suit to establish accessto their homevia a public right-of-wayor a private easement over these roads, which neighboring property owners had blocked off, years into plaintiffs’ and the public’s useofthese roads, the public’s use in fact dating back more than a century. Asthelitigation progressed, the scope and impact of Civil Code section 1009 came to dominate the case. Plaintiffs were partially successful at the trial court level, obtaining a judgmentthat the roadsin question had been impliedly dedicated as public right-of-way,but failing to obtain a judgmentin their favor on private easement theories. The trial court concluded the use of the roads in question was a non- recreational use and therefore Civil Code section 1009 was not applicable and did not prevent use of the roads from npening into a public right. The defendant property owners appealed, prompting plaintiffs to file a cross-appeal. The Second District Court of Appeal, focusing on Civil Code section 1009 and dismissing contrary decisions of the Third and Fourth Districts (Slip Opinionat 31, 33, copy attached as Exhibit 1), concluded that, under Civil Code section 1009, no use, recreational or non-recreational, could ripen into an implied dedication of a road acrossprivate property. 09999,0003/272268.3 Theresulting opinion creates a conflict of authority regarding the interpretation and application of Section 1009. Moreover, it expandsthe scope of Section 1009 so asto obliterate the law ofimplied dedication as it relates to roads, even wherea prior property owner’s intent to dedicate the road wasexpressly stated in recorded documents, and even where the current property ownersaretrying to establish legal access to their own home. The Legislature adopted Civil Code section 1009 in responseto a decision of this Court regarding whethercertain privately owned beach properties long used by the public had been impliedly dedicated to public recreational use. (Gion v. City ofSanta Cruz (1970) 2 Cal.3d 29, 84, Cal.Rptr. 162 (consolidated with Dietz v. King (“Gion-Dietz”’).) Viewed at the time as a major departure from prior law, Gion-Dietz waslater recognized by this Court as consistent with prior law,and notthefirst or only application of implied dedication to something other than a road. The courts have reacted to the Legislature’s response to Gion-Dietz by focussing on whether non-recreational use ofproperty is within the scope of Section 1009, even in cases involving roads. The focus in the cases on the recreational versus non-recreationaluse issue has obscured a more fundamental issue - whether Section 1009 applies to prohibit implied dedication of roads under any circumstances. To date, there is no 09999.0003/272268.3 Re te R A A T published case addressing whether Section 1009 wasintendedto affect implied dedication ofroads on non-coastal private property, as opposed to more general use of private property by the public. More than forty years after the enactment of Section 1009,this case shines a spotlight on the incomplete understanding of Gion-Dietz and Section 1009. What began as an effort to encourage owners of private property, whose land has become woveninto the State’s coastal recreational resources, to allow that use to continue while they retain their private property rights, has been reshaped by the Second District Court of Appeal to prevent even daily users of roads in a subdivision from establishing a public right-of-way if there were somefailure or defect in formal acceptance of the dedication of those roads. This expansion of the impactofa statute of limited scope must be checked before it spreads beyondthis case. Il. ARGUMENTIN SUPPORT OF PETITION A. The Basics of Implied Dedication Prior to Gion-Dietz It is hornbook law that an “easement may becreated by either statutory or common law dedication.” (6Miller & Starr, Cal. Real Estate (4th Ed. 2015) Easements, § 15:43, p. 15-154.) “A common law dedication may be accomplished in any mannerin which a property owner evidencesan intention to offer his or her property for a public use 09999.0003/272268.3 by his or her acts or conduct, and the public evidences an intention to accept the offer. Use ofthe property by the public maybesufficient, by itself, to indicate both the property owner’s intention to dedicate his or her property and the public’s acceptanceofthe offer.” (/d.) There are two types of implied dedications. Under an implied in law dedication, an offer to dedicate is made by an act or circumstance, such as public use knownto the property owner which exceeds the period for prescription, which implies the owner’s intent to dedicate. (See Friends ofthe Trails v. Blasius (2000) 78 Cal.App.4th 810, 824-25, 93 Cal.Rptr.2d 193.) An implied in law dedication can be found where public use of a roadway continues for more than the period of prescription, which is five years in California, irrespective ofthe intent to offer or not to offer the road for dedication to public use, which may be deduced from the acts or omissions of the owner. (County ofLos Angeles v. Berk (1980) 26 Cal.3d 201, 214, 161 Cal.Rptr. 742, 605 P.2d 381.) Under an implied in fact dedication, an offer to dedicate is made by anact or omission ofthe landowner, such as recording a map showing roads to be dedicated to public use. (See Union Transp. Co. v. Sacramento County (1954) 42 Cal.2d 235, 241, 267 P.2d 10; Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810, 821, 93 Cal.Rptr.2d 193.) Acceptance of an implied in fact dedication may occur by formal 09999.0003/272268.3 action of a governmentbody, or less formally by use of the roads. (10 Miller & Starr, Cal. Real Estate (4th ed. 2011) Dedication §22:22,p. 26- 5; Baldwin v. City ofLos Angeles (1999) 70 Cal.App.4" 819, 837.) B. The Perceived Problem of Gion-Dietz In 1970, the California Supreme Court in Gion-Dietz decided that certain beach properties and roads leading to them, though privately owned,had been impliedly dedicated to public recreational use because they were used bythe public for a period ofmore than five years without significant objection from the property owner. While roads madeup part of the property at issue in Gion-Dietz, what generated concern was the application of implied dedication to establish a public use on open land that could prevent the property owner from using the property for some other purpose. Implied dedication ofroads predominated in the case law priorto Gion-Dietz, but was not the exclusive situation in which implied dedication had been recognized. A final question that has concerned lowercourts is whether the rules governing shoreline property differ from those governing other types of property, particularly roads. Most of the case law involving dedication in this state has concerned roads and land bordering roads. [Citations.] 09999.0003/272268.3 This emphasis on roadwaysarises from the ease with which one can define a road, the frequent need for roadways through private property, and perhaps also the relative frequency with which express dedications of roadways are made. The rules governing implied dedication apply with equal force, however, to land used by the public for purposes other than as a roadway. In this state, for instance, the public has gained rights, through dedication, in park land [citations] in athletic fields [citations] and in beaches[citations]. (Gion-Dietz, supra, 2 Cal.3d at 41-42 [emphasis added].) This Court went on to find further support for application of implied dedication to public use of shoreline recreational areas in the state Constitution and otherlegislative enactments. (/d., at 42-43.) “Even ifwe were reluctant to apply the rules ofcommon-law dedication to open recreationalareas, we must observe the strong policy expressed in the constitution and statutes of this state of encouraging public use of shoreline recreational uses.” (/d., at 42 [emphasis added].) In light ofthose constitutional and statutory provisions, and other more practical realities, this Court concluded a change in the application of implied dedication in the context of recreational use of beach areas was necessary. 09999.0003/272268.3 This court has in the past been less receptive to arguments of implied dedication when open beach lands were involvedthan it has been when well-defined roadways are at issue [citations]. With the increased urbanization of this state, however, beach areas are now as well-defined as roadways. This intensification of land use combinedwith the clear public policy in favor of encouraging and expanding public accessto and use of shoreline areas leads us to the conclusion that the courts of this state must be as receptive to a finding of implied dedication of shoreline areas as they are to a finding of implied dedication of roadways. [Citation.] (d., at 43 [emphasis added].) The Gion-Dietz case solely dealt with use of open land, not 39 66specifically roads, “for public recreation purposes,” “various kinds of 37 66recreationalactivities,” “public recreation purposes, and usesincidental,” “recreational uses,” and “recreational purposes.” (/d., at 35, 36, and 42, 84 Cal.Rptr. at 166,171.) In County ofLos Angeles v. Berk, supra, 26 Cal.3d at 213, this Court rejected claims Gion-Dietz gave birth to a major change in the law. “Gion-Dietz, far from signaling the momentous‘redefinition ofproperty 09999.0003/272268.3 rights’ which defendant would depict, simply represents a restatement and clarification of well-established former law and an application of that law, as so restated and clarified, to a unique pattern offactual © circumstances.” {Emphasis added.] Gion-Dietz was a departure from prior law,if at all, in the application of implied dedication doctrine to something other than a roadway. (/d., at 214-215.) C. Civil Code Section 1009 as Legislative Response to Gion-Dietz In direct response to Gion- Dietz’s holding regarding recreational public use ofbeach property, the California Legislature enacted Section 1009 of the Civil Code. (Friends of the Trails v. Blasius, supra, 78 Cal.App.4th at 822-823, 93 Cal.Rptr.2d 193.) While establishment ofa public easement for recreational use over an entire parcel of property could prevent the owner from making any useofthe propertyatall, the same cannot be said of an implied dedication of a road. Implied dedication of a road does not appearto havehistorically interfered with private property rights to such a degree it would preventall other use of an entire parcel of property. Depending on what the property owner wants to do with the property, a road could even facilitate a productive use. Moreover, the location ofsuch a road could be changed,ifneed be, to facilitate use of the remainder ofthe property. There was no need to changethe law of implied dedication ofroads to address the application 09999.0003/272268.3 of the law of implied dedication in Gion-Dietz to open land used for recreational purposes. Civil Code section 1009, the Legislature’s “solution” to the “problem” created by Gion-Dietz, reads as follows: | (a) The Legislature finds that: (1) It is in the best interests of the state to encourage owners ofprivate real property to continue to make their lands availablefor public recreational use to supplement opportunities available on tax-supported publicly owned facilities. (2) Owners of private real property are confronted with the threat of loss of rights in their property if they allow or continue to allow members of the public to use, enjoy orpassovertheir propertyfor recreationalpurposes. (3) Thestability and marketability of recordtitles is clouded by such public use, thereby compelling the owner to exclude the public from his property. (b) Regardless of whether or not a private owner of real property has recorded a notice of consentto use ofany particular property pursuant to Section 813 of the Civil Code or has posted signs on such property pursuant to 09999.0003/2722683 10 Section 1008 of the Civil Code, except as otherwise provided in subdivision (d), no use ofsuch property by the public after the effective date ofthis section shall ever ripen to confer upon thepublic or any governmental body or unit a vested right to continue to make such usepermanently, in the absence of an express written irrevocable offer of dedication ofsuch property to such use, made by the owner thereofin the mannerprescribed in subdivision (c) ofthis section, which has been accepted by the county, city, or other public body to which the offer of dedication was made, in the mannersetforth in subdivision (c). (c) In addition to any procedure authorized by law and notprohibited by this section, an irrevocable offer of dedication may be made in the manner prescribed in Section 7050 ofthe Government Code to any county,city, or other public body, and may be acceptedor terminated,in the mannerprescribed in that section, by the county board of supervisors in the case of an offer of dedication to a county, by the city council in the case of an offer of e dedicationto a city, or by the governing board ofany other 09999.0003/272268.3 1] public body in the case of an offer of dedication to such body. (d) Where a governmental entity 1s using private lands by an expenditure of public funds on visible improvementson or across such landsor on the cleaning or maintenancerelated to the public use of such lands in such a manner so that the owner knowsor should knowthat the public is making such use ofhis land, such use, including any public use reasonably related to the purposes of such improvement, in the absenceof either express permission by the owner to continue such use or the taking by the owner of reasonable steps to enjoin, remove or prohibit such use, shall after five years ripen to confer upon the governmental entity a vested right to continue such use. (e) Subdivision (b) shall not apply to any coastal property which lies within 1,000 yards inland of the mean high tide line of the Pacific Ocean, and harbors, estuaries, baysand inlets thereof, but not including any property lying inland ofthe Carquinez Straits bridge, or between the mean high tide line and the nearest public road or highway, whicheverdistanceis less. 09999.0003/272268.3 12 (f) No use, subsequent to the effective date of this section, by the public ofproperty described in subdivision (e) shall constitute evidence or be admissible as evidence that the public or any governmental body or unit has any right in such property by implied dedication if the owner does any ofthefollowing actions: (1) Posts signs, as provided in Section 1008, and renewsthe same,if they are removed,at least once a year, or publishes annually, pursuant to Section 6066 of the Government Code, in a newspaperofgeneralcirculation in the county or counties in which the land is located, a statement describing the property and reading substantially as follows: “Right to pass by permission and subject to control of owner: Section 1008, Civil Code.” (2) Records a notice as provided in Section 813. (3) Enters into a written agreement with anyfederal, state, or local agency providing for the public use of such land. After taking any ofthe actionssetforth inparagraph (1), (2), or (3), and during the time such actionis effective, the owner shall not prevent any public use which is 09999.0003/272268.3 13 appropriate underthepermission granted pursuantto such paragraphs by physical obstruction, notice, or otherwise. (g) The permission for public use of real property referred to in subdivision (f) may be conditioned upon reasonable restrictions on the time, place, and manner of such public use, and no usein violation of suchrestrictions shall be considered public use for purposesofa finding of implied dedication. [Emphasis added.] Viewed individually, the various subdivisions of Section 1009 point in a variety of directions. None, however, point downthe path of completely eliminating implied dedication of roads on non-coastal property for non-recreationaluse. In subdivision (a), the Legislature states its intention to encourage the continued use of private property for recreational use by ensuring that property owners whodo sowill not lose their property entirely to the public. In People v. Watson (2007) 42 Cal.4th 822, 828, 68 Cal.Rptr.3d 769, this Court states, “[t]he objective of a court construinga statute is ‘to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose ofthe law.’ [Citations.]” Here, it is easy to “ascertain the intent of the enacting 09999.0003/272268.3 14 legislative body” because the Legislature insertedits intent directly into the language of the statute. What the Legislature did not say is as important was whatit did. In distinguishing between recreational use and non-recreational use, and in distinguishing between coastal property and non-coastal property, the Legislature did not evidence anyintentto changethe law of implied dedicationasit relates to roads. In subdivision (b), the Legislature appears to state that the only method of dedicating property to public use is the methodset forth in subdivision (c). Subdivision (c) states that, in addition to anyprocedure authorized by law and notprohibited bythis section, an irrevocable offer of dedication may be madeand accepted pursuant to Government Code section 7050. Confusion reigns here. Subdivision (b) appears to say Government Code section 7050 is the only meansofdedicating property to public use, but subdivision (c) makes that method permissive, not mandatory, and provides other procedures exist as well. The introductory clause of subdivision (c) must mean other methods of dedication are not completely eliminated by Section 1009. If subdivision (b) is interpreted to completely obliterate the concept of implied dedication, whether the public use is recreational or non-recreational, whether the use is for a road or for some other purpose, then the introductory clause ofsubdivision (c) is rendered surplusage,contrary to 09999.0003/272268.3 15 principles of statutory construction. (Hughes Electronics Corp. vy. Citibank Delaware (2004) 120 Cal.App.4" 251, 270 n. 18, 15 Cal.Rptr.3d 244.) Subdivision (d) addresses the circumstances in which a governmententity can obtain a vested right to continued useofprivate property. Subdivision (e) defines “coastal property” and states subdivision (b) does not applyto it, leaving open the potential for implied dedication of coastal property to public use, preserving the holding of Gion-Dietz with respect to coastal property. Subdivisions (f) and (g) establish the means by which owners of coastal property can permit use of their property and protect their rights. Howeverone looksat Section 1009, though,there is nothing in the statute, and nothing in the Gion-Dietz decision, that expressly or necessarily eliminates implied dedication ofroads. D. This Case Creates A Conflict of Authority and Improperly Interprets Civil Code Section 1009 as Prohibiting Implied Dedication of A Road for Non-Recreational Use Cases regarding the application of Civil Code section 1009 to roads have focused on the recreational versus non-recreational use issue rather than addressing the related question whether roads - which mayor 09999.0003/272268.3 16 may notbe a recreational use - are a use affected by that section. Prior published cases, however, conclude, one wayor another, that implied dedication of roads is not prevented by Section 1009. In Burch v. Gombos (2000) 82 Cal.App.4th 352, 356, n. 1, 361, n. 12, 98 Cal.Rptr.2d 119, and Friends ofthe Trails v. Blasius (2000) 78 Cal.App.4” 810, 817, the court concluded use ofa road prior to the effective date of Section 1009 had resulted in implied dedication. Because Section 1009 applied prospectively only, the court found it unnecessary to addressthe statute atall. In Hanshaw v. Long Valley Road Ass’n (2004) 116 Cal.App.4th 471, 475, 482,11 Cal.Rptr.3d 357, there was an explicit dedication ofa road, and the court concluded use ofthe road constituted acceptance of the dedication, even though the use began after the effective date of Section 1009. The court found Section 1009 inapplicable because the road use wasnota recreational use. Civil Code Section 1009 involves the inability to establish a public road by public recreational uses of private property. .. . [T]ha statute was enacted to limit the scope of Gion ... which had found an implied dedication of shoreline access for recreational purposes . . . [T]he purpose ofthe statute is to allow owners to open land for 09999.0003/272268.3 17 recreational use without fear of losing land due to public user. [There are no cases cited] construing Civil Code Section 1009 as applying to nonrecreational use ofland. (Ud., at 484-485 [italics in original].) The Hanshawcourt went on to concludethat “Civil Code Section 1009 - whichallows a landownerto open land for public recreational use without fear of an implied dedication finding - hasno application to nonrecreationaluse ofland.” {Emphasis added.] (/d., at 474.) A third published decision follows the same route as Hanshaw. Thestatute “must be given a reasonable and commonsense interpretation consistent with the apparent purpose and intention ofthe Legislature, practical rather than technical in nature, and which, when applied, will result in wise policy rather than mischiefor absurdity.” (Beaty v. Imperial Irrigation Dist. (1986) 186 Cal.App.3d 897, 902, 231 Cal.Rptr. 128.) [§] There is no needto interpret the words ofSection 1009in orderto ascertain the Legislature’ s intent because the Legislature itselfin the statute expressly stated its intent, i.e., to encourage land ownersto allowtheir land to be used for recreational purposes without having to 09999.0003/272268.3 18 worry about membersofthe public obtaining an interest in the property as a result of that use. The statute effectuates this purpose byprovidingthat no recreationaluse ofprivate property “shall ever ripen to confer upon the public ... a vested right to continue to make such use permanently” unless the property owner dedicates the land to public use and the dedication of property is accepted by the government. (Bustillos v. Murphy (2006) 96 Cal.App.4™ 1277, 1280-1281, 117 Cal.Rptr.2d 895 [emphasis added]; see also Pulido v. Pereira (2015) 234 Cal.App.4" 1246, 1252-1253, citing Bustillos on the limitation of | Section 1009 to recreational use, but concluding the statute was | inapplicable becausetheplaintiffwas seeking a prescriptive easement.) In the caseat issue here, the Court ofAppeal consciously rejected existing case law (Slip Op. at 31, 33) and concluded that Civil Code Section 1009 prevents the implied dedication of non-coastal property, regardless of whether the use is recreational or non-recreational, and regardless of whether the use is a road or something that potentially could prevent the defendants from making any use atall of their property. (Slip Op. at 26-30.) In the Court ofAppeal’s view,the law of implied dedication has been completely obliterated by Section 1009, 09999.0003/272268.3 19 leading the court to also reject arguments that recorded easements and maps could serve as an expressionofintent to dedicate roads. (Slip Op. 9-10, 42.) This is an extension of Section 1009 that goes far beyond the perceived issue created by Gion-Dietz and far beyond what the genesis and language of Section 1009 indicate the Legislature intended. Extension of this reasoning would result in owners of lots in a subdivision having no legal accessto their homesin the eventoffailure of a government bodyto accept a dedication ofroads in a subdivision,or some defect in the acceptance, Just as it prevents plaintiffs here from accessing their home. This 1s clearly not the result the Legislature intended to achieve in adopting Section 1009. IV. CONCLUSION Review should be granted because the expansion of the scope of Civil Code section 1009 resulting from the Court of Appeal’s opinion results in a complete rejection of the law ofimphed dedication ofroads that was neverintendedby the Legislature. Use of Section 1009 as the " basisfor preventing a property ownerfrom establishing a publicright-of- wayproviding accessto his own homehighlights the necessity ofa close examination of Section 1009 by this Court. Petitioners respectfully 09999.0003/272268.3 20 request that this Court grant review to address the questions posed above regarding the scopeofthe statute. DATED: October}, 2015 Respectfully submitted, ALESHIRE & WYNDER, LLP JUNES. ATLIN JANE McALLISTER 09999.0003/272268.3 21 CERTIFICATE OF WORD COUNT I certify that pursuant to Rule 8.504(d)(1) ofthe California Rules of Court, the attached Petition for Review was produced on a computer and contains 4,193 words, excluding coverpages, tables of contents and authorities and signature lines, as counted by the Microsoft Word 2010 word-processing program used to gencrate the Petition for Review. June S. Ailin 09999.0003/272268.3 22 Filed 9/11/15 . CERTIFIED FOR PARTIAL PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE JAIME A. SCHERetal., B235892 Respodoe Appellants and (Los Angeles County Super. Ct. No. BC415646) V. JOHN F. BURKEet al., Defendants, Appellants and Respondents. APPEAL from a judgment of the Superior Court of Los Angeles County, Malcolm H. Mackey, Judge. Reversedin part, affirmed in part. Law Offices of Robert S. Gerstein, Robert S. Gerstein; Law Offices of Bennett Kerns and Bennett Kerns for Defendants, Appellants and Cross-respondents John Burke, Germaine Burke and Bennett Kerns. Levinson Arshonsky & Kurtz, Richard I. Arshonsky, Jason J. Jarvis; Garrett & Tully, Ryan C. Squire and Zi C. Lin for Defendants, Appellants and Cross-respondents Richard Erickson, Wendie Malick, Andrea D. Schroder and Richard B. Schroder. Ferguson Case Orr Paterson, Wendy C. Lascher and Joshua S. Hopstone for Defendant, Appellant and Cross-respondent Gemma Marshall. * Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for partial publication. The portions of this opinion to be deleted from publication are those portions enclosed within double brackets,[[ ]]- Cunningham & Treadwell, James H. Treadwell and Steven F. Kuehl for Plaintiffs, Respondents and Cross-appellants. INTRODUCTION This is a dispute between landowners aboutthe right to vehicular access over two roads in the unincorporated Topanga Canyon area of Los Angeles County. Aftertrial to the bench,the court ruled that the two roads had been dedicated as public streets, and that plaintiffs, Jame A. Scher and Jane McAllister, had an implied easement over the roads for access to their property. Defendants,' all of whom ownland alongthe two roads south of plaintiffs’ property, appeal from the portion of the judgment burdening their land and enjoining them from obstructing vehicular access. The court also found that plaintiffs had not established their right to an express, prescriptive, or equitable easement for access along the roads and across defendants’ properties. Plaintiffs appeal from this part of the judgmentin favor of defendants. In the published portion of this opinion, we hold that Civil Code section 1009 bars all use of non-coastal private real property, not simply recreational use of such property, from ever ripening into an implied dedication to the public after the effective date ofthat statute. Hence,the trial court erred in considering evidence aboutuse of the subject roads after March 4, 1972 to support its finding that the roads were impliedly dedicated to public use. In the unpublished portion of this opinion, we hold that the trial court misapplied the law when it ruled that plaintiffs have an implied easementthat arose before 1902, while the land wasstill owned by the federal government. Wealso conclude that the court erred in ruling that the two roads were dedicated to public use during that time. There is no evidence of the roads’ use before 1972 such as would support a finding that Defendants are Gemma Marshall, Richard Erickson and Wendie Malick, Richard B. and Andrea D. Schroder, Christina Erteszak, Northern Trust Bank, N.A., Bennett Kerns, Trustee of the A.S.A. Trust, dated June 28, 2005 “on behalf of John Burke & Germaine Burke,” John F. and Germaine Burke. they were impliedly dedicated as public streets. With respectto plaintiffs’ appeal, we concludethatthetrial court did noterr in ruling that plaintiffs failed to prove they had an express easement or an easementbyprescription, or were entitled to an equitable easement. Accordingly, the portion of the judgment against defendants is reversed and the portion of the judgmentagainst plaintiffs is affirmed. FACTUAL AND PROCEDURAL BACKGROUND For simplicity, we will not identify the parties’ predecessorsin title. (Cf. Jonesv. Tierney-Sinclair (1945) 71 Cal.App.2d 366, 368 [declining to distinguish acts done by the parties from those committed by predecessors in interest].) |. The land in the area at issue In the late 1700s, the federal government began surveying the western United States pursuant to the Public Land Survey System.” The government divided the land into “townships,” and split each township into 36 square-mile “sections.” At issue here are Sections 1, 7, and 12, in a township located in the Santa Monica Mountains. The two roadsat issue are Henry Ridge Motorway and Gold Stone Road.? Henry Ridge Motorway runs approximately north/south along Henry Ridge, above Topanga Canyon, from Alta Drive in Section | in the north to near its southern end whereit connects with Gold Stone Road in Section 12. The junction between Henry Ridge Motorway and Gold Stone Roadis a hairpin turn where Henry Ridge Motorway measures about 12 feet wide. Gold Stone Road runs from Henry Ridge Motorway easterly into Section 7 where it terminates at Greenleaf Canyon Road, a public street. 2 Wegrant defendants’ motion filed on July 6, 2012,to take judicial notice of an article from the United States Departmentofthe Interior’s website concerning the Public Land Survey System, . 3 Gold Stone Roadis identified in the record variously as “Goldstone” Road and “Gold Stone” Road. For consistency, and following the parties’ lead, we will use the two-word name. Greenleaf Canyon Road endsin the south at Topanga Canyon Boulevard, which eventually leads further south to the town center of Topanga. From the north, Henry Ridge Motorway maybe reached from Mulholland Boulevard via Adamsville Avenueand Alta Drive, both public roads, or Oldfield Ranch Road and Summit to Summit Road. From the south, Henry Ridge Motorway was accessible from School Road until the early 1990s when the schooldistrict installed gates. Now,the only outlet from the southerly part of Henry Ridge Motorwayis through Gold Stone Road to Greenleaf Canyon Road. Plaintiffs’ land is the northernmost of the parties’ properties on Henry Ridge Motorwayin Section 1; all of defendants’ properties lie to the south of plaintiffs’ land. From Alta Drive south throughplaintiffs’ property, Henry Ridge Motorwayis paved. Immediately south of plaintiffs’ property lie four successive parcels owned by non- parties where Oldfield Ranch Road branchesoff to the east. At somepoint, the pavement ceases and HenryRidge Motorwayis indicated on a local mapas a “trail.” Defendant Marshall ownsthe next southerly parcel on the unpavedtrail, also in Section 1. Abutting Marshall to the south, where Section 12 commences,lie two parcels on Henry Ridge Motorway ownedby defendants Erickson and Malick. (We will refer to these parcels as Erickson/Malick north and Erickson/Malick south, respectively.) Henry Ridge Motorway divides the Erickson/Malick south parcel to the west from the Schroder defendants* property to the east. Henry Ridge Motorwayturns into Gold Stone Roadasit bends generally eastward through the Schroder property toward Section 7. There,it cuts across land owned by defendant A.S.A. Trust, Kerns Trustee, and crosses onto the Burke defendants’ property. The Burkes’ driveway opens onto Greenleaf Canyon Road. Plaintiffs also own an undeveloped lot off of Old Topanga Canyon Road in Section 12 that does not touch on Henry Ridge Motorway or Gold Stone Road. [[Begin nonpublished portion}] [[2. The evidence ofthe roads’ existence a. the 1895 survey plat Soon after California becamea state, the federal government surveyed the Topanga Canyonarea. A surveyplat dated 1895 is divided into section squares,like graph paper. In Sections 1 and 12, the 1895 survey plat shows a dotted line lying next to a solid-line “Road,” located generally in the area of Henry Ridge Motorway wending roughly alongthe ridge line, across the land corresponding to property now owned by Marshall, Erickson/Malick, and Schroder. Exactly where the “Road”lay in 1895 cannot be established. At the time, the property belonged to the United States Government. The 1895 surveyplat also reflects a dotted-line identified as a “Trail” lying to the east of the “Road,” and located in Section | generally where Greenleaf Canyon Road lies now. Plamtiffs’ title expert Anya Stanley inferred from the surveyplat that in 1895, the “Road” along Henry Ridge was more established than the “Trail.” Viewing a composite map that she compiled from the 1895 survey plat, Stanley surmised, although acknowledging it was difficult to decipher, that while still federal land, the “Road” extended along what is now Henry Ridge Motorway, through Marshall’s, Erickson/Malicks’, and Schroders’ land, and may “possibly, depending upon how accurate this [composite] map is,” have crossed land now ownedby the Burkes. Stanley acknowledged that her compilation map did not actually showthis “Road” connecting to Greenleaf Canyon. Bycontrast, defendants’ expert surveyor John MacNeil explained that the surveyors’ task in 1895 wasto set the section corners, not survey roads. MacNeil pointed out that the 1895 survey plat upon which Stanley relied was not intended to plot the course of a road, but only to show that it existed. Stanley did not know whobuilt the “Road”along the ridge line or whether the federal government improved the “Road”before 1911. Stanley postulated that early native American traders may have used the “Trail.” b. the United States Government homesteadpatents Theparties in this case trace their titles to grants issued underthe federal Homestead Act (Act of May 20, 1862, ch. 75, §§ 1-8, 12 Stat. 392; Act of Mar. 3, 1855, ch. 207, 10 Stat. 701; Act of Apr. 24, 1820, ch. 51, 3 Stat. 566; Murphy v. Burch (2009) 46 Cal.4th 157, 168, citing Granite Beach Holdings v. State (Wash.App. 2000) 11 P.3d 847, 854) (the Homestead Act). The Homestead Act required those seeking to own land to occupy and cultivate or mine up to 160 acres for at least five years and thenfile an application to the United States Governmentfor a patent. A patentis the official documentreflecting the federal grant conferring fee simpletitle to public land. (Murphy v. Burch, supra, at p. 162 & fn. 1 (Murphy).) Records from the Federal Bureau of Land Managementand the Los Angeles County Recorder’s Office show that the United States issued a patent for the Erickson/Malick north property in 1902. The patent covering the Erickson/Malick south property and the Schroder property was issued in 1903. The patent for plaintiffs’ land is dated 1907. The predecessors of Marshall and of the Burkes each obtained their patents in 1911. The parties own only portions of the properties originally patented to their predecessors. Over the past century and a half, all of the homesteaded land has been subdivided into smaller parcels. The patents in this case specifically reserved to the United States previously vested and accrued water rights, previously granted mineral rights, and rights-of-way for ditches and canals. c. the 1908 map A map ofTopanga in 1908, derived by MacNeil from earlier maps, labeled the “Road”from the 1895 survey plat as the “Ridge Trail,” while the 1895 “Trail” became “Greenleaf Road.” The 1908 map doesnotclarify the locations of the 1895 “Road” or the 1908 “Ridge Trail.” Stanley testified the route ofthe “Ridge Trail” has changed since the 19th century. For example, the 1908 “Ridge Trail” is not identical to what is now Henry Ridge Motorway because the modern road extends farther north than in 1895, and was reconfigured in the south to follow a straighter path into what is now School Road. MacNeil created the 1908 map from the 1895 surveyplat, never intendingit to constitute 6 a survey ofthe location of Henry Ridge, and so hetestified it was “never established that it was [Henry Ridge] Motorwayall the way to [Greenleaf Canyon Road].” The 1895 survey plat and the 1908 map donotidentify the roads’ actual locations a century ago, and there is no other evidence to indicate whether today’s Henry Ridge Motorwayexists in the samelocation as “Ridge Trial” did on the 1908 map,or in 1902 whenthefirst patent wasissuedin this case. d. mapsfrom the 1930s No roadortrail is identified in that area on the “Early subdivisions and points of interest map ofTopanga Canyon in the 1930s.” What wasidentified as the “Trail”in the 1895 surveyplat and “Greenleaf Road” in 1908, became “Greenleaf Canyon Road” on the 1930s map. “Henry Ridge Motorway”first appears by that name in CSB mapsfrom the 1930s. CSB mapsare County of Los Angeles surveys that define alignments of proposed as well as existing roads. The CSB maps from 1935 and 1937 depict “Henry Ridge Motorway” as extendingnorth all the way to Mulholland Drive, which was a “major public street” then. In the 1930s, Cal-Trans considered a “motorway”to be a banked road that either was or would be graded to accommodate motor vehicles, as opposed to a horse-drawn carriages or stage coaches. More recently, the County defined “Motorway”as “[a] truck trail or trail through mountainousterrain, usually forfire equipment usage or service access; e.g., powerlines, Nike sites, etc. Notfor public use.’ (Italics added.) In the late 4 Wegrant defendants’ request to take judicial notice of the Street Name Policy of the County of Los Angeles Department of Public Works as of June 28, 1999, and the House Numbering and Street Naming Manualof the Los Angeles Department of Public Works, dated April 1999. Plaintiffs oppose the request on the ground this document was not before thetrial court. However, the naming ofa street is a legislative act (Gov. Code, § 34091.1) and the question of what “Motorway” meansis a question of law, which we independently decide, regardless of whether the issue was before the trial court. (Burden v. Snowden (1992) 2 Cal.4th 556, 562 [“As the matter is a question of law, we are not bound by evidence on the question presented below or by the lower court’s interpretation.”}.) 1930s, the County Fire Department built and graded Henry Ridge Motorwayfrom Adamsville Road to School Roadin case of brushfire. e. the 1949 Easement - Sections 7 & 12 In 1949, a predecessor-in-interest of the Burkes granted to the prior ownerof the Schroder and Erickson/Malick south properties an “appurtenant” easement “for roadway purposes”for “ingress to and egress from the said Greenleaf Canyon Roadto the property of” the Schroder and Erickson/Malick south parcels in Sections 7 and 12 respectively. (The 1949 Easement) The 1949 Easement over Burke’s property ran generally where Gold Stone Road today crosses the Burke land, and was“just a drive, private driveway” then. The grant further provided that “in the event” the state or county “accept[ed] the roadwayas a public road,” then the grantor and her successors in interest “consent[ed] to the dedication of the said road.” (Italics added.) The record contains no acceptance by a public entity. The 1949 Easement burdens Burkes’ property and benefits the Erickson/Malick south and Schroder properties, but does not benefit plaintiffs’ Section 12 property. f. the 1950 maps Witnessestestified that Henry Ridge Motorway’s route has changed overthe years. There have been minor changesin the road’s alignment. It wasstraightened out and paved in part. The road previously went overthe top of a ridge onplaintiffs’ property. Henry Ridge Motorway was movedto the west as much as 150 feet to a location downalongthe side of a hill. Also, the road once camewithin 40 feet of plaintiffs’ house. MacNeil! did a comparison of Henry Ridge Motorwayin 1952 to the 1895 survey plat and found that in some places the road had moved fourto five hundred feet. The first time “Goldstone Road” was shown on a map, was in a 1952 CSB map. g. the 1960s maps and the Thomas Brothers’ Guide Maps Henry Ridge Motorwaywasstill not muchof a road in the 1960s despiteits depiction on the 1930s CSB maps. Two government maps from 1967reflect “Henry Ridge” as a nameless, “unimproved dirt” road. Although the phrase “HENRY RIDGE”appearsin all capital letters on the 1967 maps, all of the roads in the 8 area, including large roads such as Topanga Canyon Boulevard,are identified in lower case letters. One of the 1967 mapsindicates an unimproveddirt road in the general vicinity of what is now Gold Stone Road. ThomasBrothers’ Guide maps from 1960 and 1966 show a road identified as “Henry Ridge Road” and “Henry Ridge Motorway.” Neither shows Gold Stone Road or a road where Gold Stone Road lies today. The ThomasBrothers’ Guide mapsin 1983 list Gold Stone Roadas a private dirt road. Gold Stone Road wasfirst paved around 1987. The Thomas Brothers maps in 1996 and 2001 show “Henry Ridge Mtwy”and “Gold Stone Road.” Stanley acknowledged that Thomas Brothers Guides sometimes contained errors and showedroadsthat do not actually exist. h. the 1968 Declaration ofEasement - Section 12 In 1968, the owner of the property comprised of the Schroder and Erickson/Malick’s southern parcels in Section 12, decided to subdividethe land into four parcels, A through D. To provide the new parcels with access to a public street, 1.e., Greenleaf Canyon Road,the grantor recorded a “Declaration and Grant of Easements” for “road purposes and to be appurtenantto all land in said Sec. 12” as depicted on an attached map (1968 Declaration). The 1968 Declaration specifies that its easement offer would “tak{e] effect upon” the recording by any Section 12 fee owner of an “acceptance.” Additionally, the 1968 declaration mimics the language of the 1949 Easementas it was also made “with the understanding that in the event a final tract map or parcel map [were recorded] over any portion ofthis division dedicating . . . to public usc streets . .. which are accepted by the County,” the easement “shall no longer be of any force or effect.” (Italics added.) Neither an acceptance of the easement by the fee owner, nor a final tract or parcel map was ever recorded. The easement’s route as depicted on the map attachedto the 1968 Declaration differs considerably from the route of Gold Stone Road today. Also, as there is no evidence of any consent to change the easement’s route to conform to the current road, there are portions of southerly Henry Ridge Motorway and Gold Stone Road over which the 1968 Declaration does not appear to grant an easement. 9 i. the 1970 Easement Declarations - Sections 1 & 12 On July 16, 1970, the owner of land now held by Marshall, the previous ownerof Erickson/Malick’s northern parcel, and the predecessor of McCoy whois not a party to this lawsuit, executed identical instruments, all signed by the same person and recorded on the same day, entitled “Declaration and Grant of Easements” (the 1970 Declarations). Using almost the same language as the 1968 Declaration, the three 1970 Declarations were designed to facilitate a proposed division ofthe relevant land in Sections 1 and 12 into smaller parcels. Accordingly, the 1970 Declarations created strips of land shown on attached mapsto be “easementsfor roadpurposes and to be appurtenant to all land”in the respective sections, namely Section | for the Marshall property, and Section 12 for the Erickson/Malick north property, “the vesting oftitle to said easements to take effect upon recording . . . by any fee ownerof a portion of said Sec. . . . of an acceptance of said easements.” (Italics added.) The record contains no acceptance. Thereis conflicting evidence about the route of the easements and dedicated road created by the 1970 Declarations. The 1970 Declarations also state: “OWNER makesthis declaration with the understanding that in the eventafinal tract map orparcel map is causedto befiled with the County Recorderover any portion of this division, dedicating or deeding to public use streets and highways for said map which are accepted by the County of Los Angeles,this declaration insofar as said lands are affected by said final tract map or parcel map,shall no longer be of any force or effect.” (Italics added.) The legends on two of the maps attached to the three 1970 Declarations indicate a solid line representing “Dedicated roads, per attached declaration ....” No acceptance of any of the 1970 Declarations was recorded. Neither the Marshall nor the Ericson/Malick north properties was subdivided according to the 1970 Declarations. ]] {{End nonpublished portion]] 10 3. The irrevocable offers to dedicate trail easements a. Marshall’s hiking and equestrian trail dedication on Henry Ridge Motorway To develop her land in Section 1, Marshall was required to obtain a permit from the California Coastal Commission. As a condition to granting the permit, the Coastal Commission required Marshal to “record” an instrument“irrevocably offering to dedicate . . . an easement for a hiking and equestriantrail for public use” of the Topanga-Henry Ridge Trail, which crosses part of Henry Ridge Motorway onherland. Marshall’s 1989 irrevocable offer “dedicate[d] to the People of California an easementin perpetuityfor the purposes ofhiking and equestriantrail .. ..” (Italics added.) The attached Coastal Commission Staff Report and Recommendations found and declared that “The Topanga-Henry Ridge Trail traverses the private access road (Henry Ridge Motorway)... .” (Italics added.) Continuing, the report states, “these privately maintained roads have become commonlyusedrecreational links between growing centers of development in the mountains. While currently unimproved, these roads . . . functioned as public thru-ways and havehistorically been open to unobstructed vehicular and pedestriantraffic. It is likely that demandfor this particular trail will increase as the immediatearea is built out.” (Italics added.) “Henry Ridge Motorwayis commonly used by equestrians, hikers, and joggers. Formal dedication may not be necessary to continue the useofthis trail, because as in the case of other commonly used trails in the mountains, there is strong likehhood that prescriptive rights have been established.” (Italics added.) b. trail dedication on Henry Ridge Motorway by predecessors ofthe Schroders and Erickson/Malicks In 1992, prior owners of the Schroder and Erickson/Malick south properties in Section 12 recorded an “Irrevocable Offer to Dedicate Trail Easement and Declaration of Restrictions,” the purpose of which wasto “allow[] public pedestrian and equestrian ingress and egress and for public recreational purposes.” (Italics added.) The Dedication affected a 20-foot wide strip of property that was contiguous with, and over the portion of Topanga-Henry Ridge Trail that lies within the owner’sparcel, and specifically limited 11 39 66 the “right of public use of the easement” “to daylight hours, from one hourbefore sunrise to one hourafter sunset.” The offer did not involve Gold Stone Road. Asreflected in the document, this trail dedication was a condition of a Coastal Commission development permit. The Dedication states that “the Property is a parcel traversed bya trail used for public recreation and access ....” The declaration contained the condition that the grantors would not interfere “with [the] present public use ofthis road.” (Italics added.) The restriction provides that the offer of dedication shall not be “construed to allow anyone, prior to acceptance of the Offer, to interfere with any rights of public access acquired through use which may exist on the Property.” (Italics added.) Theattached staff report reflects the Coastal Commission’s mounting concern about the effects of increased development in the area on recreational use. The report notes that Henry Ridge Trail provides access and helps to connect areas with the “remainderofthe trail system.” These trails “have become important and commonly used recreational assets and a meansof providing access to and links between natural, scenic, and recreational areas in the mountains.” However, “[r]esearch has shown that a major deterrent to public use of recreational trails and similar public recreation areas and facilities 1s a perception by the public that the areas involved are private.” The report observesthat “development tends to preempt public access, partly due to the ‘feeling of trespass’ engendered by the predominance ofprivate development”and notes the necessity of placing conditions on development“to formalize the public’s right to continued use ofthese trails.” (Italics added.) 4. Use ofHenry Ridge Motorway and Gold Stone Roadbyplaintiffs and others Muchofthis lawsuit concerns whether and in what manner Henry Ridge Motorway and Gold Stone Road were used bythe public. > Plaintiffs introduced into evidence numerous other documents and instrumentsin defendants’ various chainsoftitle. We will not include these exhibits here because they are not cited by the trial court and the evidence does not show that these instruments affect the result here. 12 [[Begin nonpublished portion]] [[a. Pre-1972 Unable to locate eyewitnesses from the 1800s through the early 1900s,plaintiffs relied on inferences from photographs, lot books, the parties’ chainsoftitle, historical- society documents, and the above-described maps and instruments. The 1908 map reflects some development in the Topanga Canyonarea, such as houses, a tavern, a post office, inns, campsites, a general store, and a school. A tavern with cabins operated in 1908 on Chaney’s Road, east of Greenleaf Road. Automobiles were photographed at the Topanga General Store in the 1920s. Photographs showthe evolution of the arca’s developmentstarting with mail delivery in 1880, although plaintiffs’ expert Stanley admitted “it [the photography] doesn’t prove anything.” No developmentis depicted along the “Ridge Trail” in 1908. Instead, all of the developmentis accessible from other roads, including the “Topanga to Calabasas Road,” now called Old Topanga Canyon Road. Pauline Stewart conveyed her Section | property to plaintiffs in 1998.° She testified that Henry Ridge Motorwaywasboth public and private. She stated that the roads at issue “have been usedfor fifty years” and “there wasn’t any question”that “those roads had been public property for so long.” Yet, Stewart admitted she did not personally know of anyone driving Gold Stone Road to Henry Ridge Motorway.]] [{End nonpubhished portion]] b. After March 4, 1972 When Pauline Stewart, the “matriarch of Henry Ridge,” moved to Henry Ridge Motorwayin 1977, it was merely a “fire road.” In 1984, the Los Angeles County Fire Department notified Stewart that it would no longer maintain the road because the “County had designatedit as a private road.” (Italics added.) Stewart described Henry Ridge in a 1988 letter as “a road on private property so it is considered a private road, it 6 Aged 91 at the time oftrial, Stewart was unavailable to testify and so her deposition wasread into the record. 13 is not a public thoroughfare, even thoughit is open to the public for all practical purposes.” (Italics added.) Stewart’s own travel on Henry Ridge Motorway was almost exclusively northbound from plaintiffs’ property and not southerly through defendants’ land. The only roads that were continuously uscd for access to and from plaintiffs’ property were Adamsville and Alta to the north. Stewart used Gold Stone Road twice in 20 years. She had no personal knowledge of anyone using Gold Stone Road to Henry Ridge Motorway; she did not even know whether her husband used Gold Stone Road. Nor did Stewart know whether any property owners on Henry Ridge Motorwayor Gold Stone Road dedicated those roads to public use. She was unaware of facts that would show that the general public had used Henry Ridge Motorwayto Gold Stone Road to Greenleaf Canyon on a regular basis. She stated, “/ don’t know anybody in their right mind that would even try to go that way.” (Italics added.) Plaintiffs called a series of witnesses who described their use of Henry Ridge Motorway and Gold Stone Road. These witnesses, including plaintiffs, their neighbors, defendants, friends, handymen,tenants, and others in the area, also described who they saw driving along the two roads. None ofthe witnesses described use oforactivity on the two roads before March 4, 1972. Plaintiffs purchased their Section 1 property in 1998. They have an easement, recorded in 1948, giving them access northerly along “that certain road only, now known as a fire road and connected with proposed Mulholland Blvd.” Plaintiffs’ tenants’ leases specify that the tenants may use Henry Ridge Motorwayto the north for access but not to the south, except “in case of dire emergency.” Plaintiff Scher testified that since purchasing his Section 1 property he intendedto establish rights south along Henry Ridge Motorway and Gold Stone Road. Plaintiffs bought their Section 12 property off of Old Topanga Canyon Road in 2007. Undeveloped, plaintiffs’ Section 12 lot measures 1,250 square feet and does not touch Henry Ridge Motorwayor Gold Stone Road. Schertestified he bought the 29>Section 12 lot “ ‘partially to stick a thorn in my neighbor’s side’ and becauseplaintiffs 14 wanted to claim a right to use the two roads at issue under the Declarations of Easements, which plaintiffs believed benefitted Section 12 owners, but notplaintiffs’ Section 1 property. Marshall purchased herproperty in 1987. In 1990,after recordinghertrail dedication and obtaining a Coastal Commission developmentpermit, Marshall began constructing a residence located 24 feet from Henry Ridge Motorway. Marshall posted signs on the northern and southern boundaries of her property declaring “Private Road permission to pass subject to control of owner. Penal Code 602 and Section 1008 Civil Code.” Marshall hung the signs to prevent people from gaining prescriptive rights on her property. In 1991, Marshall installed a locked gate across Henry Ridge Motorway on the northern boundaryofher land andlater electrified it. Marshall gave gate keys for emergenciesto the fire department and her neighbors, including Stewart, who passed one on to plaintiffs when they bought the property. When closed, the gate prevents only vehicular access; hikers and equestrians can circumnavigateit. Erickson and Malick,attracted by the quiet and privacy, purchased their north parcel in 1996 and their south parcel in 2000. Erickson “religiously” stops drivers on Gold Stone Road and Henry Ridge Motorway whohe does not recognize. Erickson once challenged Scher’s right to use the road on the Erickson/Malick south property. Malick has “often” stopped pcople on Gold Stone Road because they were following the Thomas Brothers’ Guide to Henry Ridge Motorway. In 2008, Erickson and Malick recorded two declarations granting consent to use Henry Ridge Motorwayontheir two parcels pursuant to Civil Codesection 813. The Schroders have lived on their land since 2005, in part because of the privacy it afforded. Their seller and realtor told them there were no ingress and egress easements on Gold Stone Road. Schroderhas been vigilant about keeping drivers off Gold Stone Road. He “always” stops drivers and redirects them unless they are guests of the Erickson/Malicks. There are two gates across Gold Stone Road. 15 The Burkes bought their Section 7 land in 1993. In 2005, they bought the unimproved land now held by the A.S.A. Trust to prevent development and ensure privacy. Thereis a sign at the intersection of Greenleaf Canyon Road and Gold Stone Road declaring the latter to be “Private.” Another sign reads, “ ‘No access to Henry Ridge Road. Locked gates ahead.’ ” On a woodengate at the junction of Gold Stone Road, Greenleaf Canyon, and the Burkes’ drivewaystandsa sign since at least 1993 that forbids trespassing, parking, dumping,and loitering. The Burkes posted the signs pursuant to Civil Code section 1008 so that people would know they were permissively driving on Gold Stone Road. Since they moved into their Section 7 property, the Burkes have stopped passersbyto re-direct those not entitled to use Gold Stone Road. 5. Alternative routes Plaintiffs calculate that traveling Henry Ridge Motorwaysouth to Gold Stone Road is more convenient becausethis route to Topanga center takes 7 to 10 minutes. There are numerous roads connecting to Henry Ridge Motorwayin the north to Topanga center, but those routes take plaintiffs 18 to 20 minutes. Plaintiffs claim they are unable to use Henry Ridge Motorwayand Gold Stone Road to evacuate to the south in case of emergency. In 2005, plaintiffs discovered that the lock on Marshall’s gate was jammed. Plaintiffs sent Marshall letters demanding a new key and claiming an express easement to use Henry Ridge Motorway. Plaintiffs also sent letters to Erickson/Malick and discussed the issue of access to the two roads with Schroder. People consulted with theirtitle insurers. 6. The litigation Plaintiffs filed their complaint alleging that defendants’ properties are burdened, and plaintiffs are benefitted, by express easements for ingress and egress along Henry Ridge Motorway and Gold Stone Road. The complaint sought to quiettitle to the easements and sought declarationsthat: (1) plaintiffs are the beneficial owners of express, prescriptive, and equitable easements to use Henry Ridge Motorway and Gold 16 Stone Road; (2) defendants have acquiesced to the dedication to public use of the entirety of Henry Ridge Motorway and Gold Stone Roadacross defendants’ properties; and (3) plaintiffs are entitled to use Henry Ridge Motorway and Gold Stone Road as a public street. The complaint also sought to enjoin defendants from interfering with plaintiffs’ use of the two roads. Aftertrial, plaintiffs amended their complaint according to proofto add a cause ofaction for implied easement. [{Begin nonpublished portion]] [[Thetrial court issued a 19-page statement of decision finding:(1) plaintiffs had an implied easement for vehicular ingress and egress that arose before the federal Governmentconveyed the land by patents in 1902; (2) Henry Ridge Motorway and a portion of Gold Stone Road at Greenleaf Canyon Road were dedicated to the public when the land wasstill owned by the United States Government; (3) the public has vested rights to use the roads underthe doctrines of implied-in-law and implied-in-fact dedication; and (4) plaintiffs failed to prove they had an express, prescriptive, or equitable easement.]] [[End nonpublished portion] ] Thetrial court entered judgment declaring that Henry Ridge Motorway and Gold Stone Road had been impliedly dedicated as public streets and quietingtitle to easements over the two roadsin favorof plaintiffs. The judgment enjoined and restrained defendants from obstructing the roads. The court also entered judgment against plaintiffs on their theories of express, prescriptive, and equitable easement. Defendants appeal and plaintiffs appeal. CONTENTIONS Defendants’ appeals challenge the portions of the judgment against them and plaintiffs’ appeal challenges the portion of the judgment against them. 17 DISCUSSION J DEFENDANTS’ APPEAL [{Begin nonpublished portion]]} [{Implied Easement Based On Federal Patents 1. The elements ofimplied easements Defendants contendthatthe trial court erred as a matter of law in ruling that the federal patents created an implied easement over Henry Ridge Motorway because the common ownership element was lacking.’ The trial court found the evidence “manifest” that Henry Ridge Motorwayexisted and was used beforethefirst division oftitle in 1902 whenthe federal governmentissued the first patent. The law will imply an intent to create an easement by grant or reservation in the absence of.a written document evincing intent. (6 Miller & Starr, Cal. Real Estate (3d ed. 2011) § 15:19, p. 15-18.) Easements will be implied if the following conditions exist at the time of the conveyance: “!) the owner of property conveysor transfers a portion of that property to another; 2) the owner’s prior existing use of the property was of a nature that the parties must have intended or believed that the use would continue; meaningthat the existing use must either have been knownto the grantor and the grantee, or have been so obviously and apparently permanentthat the parties should have known of the use; and 3) the easement is reasonably necessary to the use and benefit of the quasi-dominant tenement.” (Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 141, 7 Wedo not read the judgment as finding an implied easement for access over Gold Stone Road,plaintiffs’ suggestion to the contrary notwithstanding. To the extent that the statement of decision could be read as having declared an implied easement over a portion of Gold Stone Road, our holding as it relates to the ruling concerning an implied easement for access on Henry Ridge Motorwaylikewise applies to Gold Stone Road. 18 fn. omitted (Tusher); see also Civ. Code, § 1104:8 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property § 392, p. 460.) Thegrantee is said to have a grant of a right of way when an access easement by implication benefits the conveyed parcel. Conversely, the grantor has impliedly reserved an access easementacross the grantee’s property when the easement by implication is retained for the benefit of the grantor’s parcel. (Murphy, supra, 46 Cal.4th at p. 163.) “ * “The law does not favor the implication of easements. Such implication can only be madein connection with a conveyance, and in view ofthe rule that a conveyance is to be construed against the grantor .... Whether an easement arises by implication on a conveyanceofreal estate depends on the intent ofthe parties, which must clearly 99 9°59appearin order to sustain an easement by implication. (Thorstrom v. Thorstrom (2011) 196 Cal_App.4th 1406, 1420,italics added (Thorstrom).) “ ‘ “The purpose ofthe doctrine of implied easementsis to give effect to the actual intent of the parties as shown by all the facts and circumstances.” [Citation.]’ ” (/bid.; cf. Moores v. Walsh (1995) 38 Cal.App.4th 1046, 1049.) Thus, an easement by implication will only be found when there is “clear evidence”that the parties intended it “at the time ofthe original transfer of the property” by the common grantor. (Tusher, supra, 68 Cal.App.4th at p. 143,italics added; Thorstrom, supra, at p. 1420; Fristoe v. Drapeau (1950) 35 Cal.2d 5, 8.) The claimant has the burden of proving each elementof the cause of action for an implied easement by a preponderanceof the evidence. Thetrial court’s factual findings are binding on the appellate court if supported by substantial evidence. (6 Miller & Starr, Cal. Real Estate, supra, § 15:19, p. 15-82, citing Tusher, supra, 68 Cal.App.4th at p. 145.) However, whether common ownership maybe established by reference to 8 Civil Code section 1104 reads: “A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whoseestate is transferred in the same mannerand to the same extent as such property was obviously and permanently used by the person whoseestateis transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.” 19 federal patents presents a legal question which we review de novo. (Kellogg v. Garcia (2002) 102 Cal.App.4th 796, 802-803.) 2. Common ownershipis lacking. Thefirst required elementis that the dominant and servient tenements were held by the same ownerat the time of the conveyance givingrise to the implied easement. (Tusher, supra, 68 Cal.App.4th at p. 141.) The United States Governmentcan be the common owner of land conveyed by a federal patent. (Murphy, supra, 46 Cal.4th at p. 161.) However, “conveyances involving a sovereign as a common ownertypically do not give rise to implied reservations of easements.” (/d. at p. 165.) In Murphy, the plaintiff seeking to establish an implied access easement by necessity argued that the relevant conveyance wasthefirst one in 1929, when the federal governmentdeeded the parcel containing the defendants’ servient property, reasoning the governmentimpliedly retained ownership ofplaintiff's dominant land and hence impliedly reserved an access easementforitself. (Murphy, supra, 46 Cal.4th at pp. 167- 168.) Conversely, the defendants fighting the easementacross their land asserted that common ownership could not be established because the relevant conveyance wasthe later 1932 patent deeding the plaintiff's dominant tenement, by which time the governmentno longer ownedthe servient property. (/d. at p. 168.) The Supreme Court in Murphy stated, “We agree that an easement by necessity cannot arise by implication from the 1932 conveyance because common ownership waslacking.” (/bid.) Thus,the conveyancegivingrise to the reservation of an easement by implication is the one transferring the dominant tenement. Here,just as in Murphy, the relevant conveyanceis the patentto plaintiffs’ Section 1 ancestor because plaintiffs seck to establish their right, as the domimant tenement holders, to use Henry Ridge Motorwayasit crosses defendants’ servient properties. However, plaintiffs’ property was patented in 1907, by which time the northerly Erickson/Malick property had already been conveyed by patent in 1902 and the Schroder and southerly Erickson/Malick property had already been conveyed in 1903. Thus, no easementcan arise by implication because by the time the federal government 20 issued the patent to plaintiffs’ predecessor in 1907, the United States no longer owned any of these servient tenements. (Murphy, supra, 46 Cal.4th at p. 168.) The common ownership element is missing. Plaintiffs point out that Murphy concerned an easement by necessity, not at issue here. Nonetheless, the Supreme Court’s holding still applies. Common ownership is an element of both implied easements in general and implied easements by necessity. (Compare Tusher, supra, 68 Cal.App.4th at p. 141 & Murphy, supra, 46 Cal.4th at p. 167.) If the Murphy court declined to find an implied easement even though necessity mayhavejustified it, then certainly no easement should be inferred here where necessity is not even claimed. Weare mindful ofthe fact that the patent to Marshall’s predecessor in 1911 is later than the patent to plaintiffs’ Section 1 land. Thus, the federal government wasthe common ownerof Marshall’s and plaintiffs’ land at the time of relevant conveyance. However, even if plaintiffs might have an implied easement across Marshall’s property, that is the extent of their right. Stated otherwise, plaintiffs’ implied easement for access would end at the boundaries of Marshall’s land, and plaintiffs could travel no farther south without encroaching on the lands of Erickson/Malick and Schroder. We decline to otherwise imply an access easement by necessity over Marshall’s property as there is no showingofstrict necessity. Plaintiffs’ land is by no meanslandlocked. (See, e.g., Murphy, supra, 46 Cal.4th at p. 164.) 3. Plaintiffs produced no evidence that thefederal government intended to reserve an access easement whenit issued its patents. Common ownershipaside,the trial court erred in finding an easement by implication across Marshall’s or any other defendant’s parcel becausethereis no clear evidence that the federal government intended to reserve an easement for access. The parties dispute whether the record shows the government’s intent to reserve an access easement. They focus on the use element of the cause of action. Plaintiffs argue the homesteaders’ use is sufficient evidence; defendants counter that our focus should be on the government’s actions. Again, Murphy controls. 2} The purpose of the doctrine of implied easementsis to give effect to the actual intent of the parties based onall of the facts and circumstances. (Thorstrom, supra, 196 Cal.App.4th at p. 1420.) However, courts must be particularly vigilant “when common ownershipis traced back to a federal grant made without an express reservation for access.” (Murphy, supra, 46 Cal4th at p. 161.) “[C]onveyances involving a sovereign as the common ownertypically do not give rise to implied reservations of easements or other property interests in conveyed land. [Citations.]” (/d.at p. 165, italics added.) “[T]he distinctive nature and history of federal land grants and the government’s power of eminent domain” have madecourts reluctant “to interfere with the certainty and predictability of land titles conferred by a sovereign without any express reservation of rights. [Citations.]” (Ud. at pp. 161, 165, italics added.) Therefore, our Supreme Court instructs that “extreme caution must be exercised 1n determining whether the circumstances surrounding a governmentlandgrant are sufficient to overcomethe inference prompted by the omission of an express reference to a reserved right of access. [Citation.]” (Ud. at p. 167, italics added.) “[W]hen a claimant traces common ownership back to the federal governmentand seeks to establish an implied reservation of an access right-of-way, the intent ofCongress is paramount” and the “easement claimant bears the burden of producing evidence on the issues regarding the government’s intent to reserve an easement and the government’s lack of power to condemn.” (/bid., italics added.) The patents here were issued pursuant to the federal Homestead Act. “The pertinent inquiry .. . is the intent of Congress whenit granted land.” (Leo Sheep Co.v. United States (1979) 440 U.S. 668, 681 [involving Union Pacific Railroad Charter Act of 1862, Act of July 1, 1862, 12 Stat. 489].) Plaintiffs have not pointed us to anywhere in the Homestead Actorits legislative history that mentions reservations of access easements. The patents likewise are silent about access casements,as plaintiffs acknowledge. Normally, federal patents contain no express reservation of easements for access. (Leo Sheep Co. v. United States, supra, 440 U.S.at p. 687 [Generations of land patents have issued without any expressreservation of the right” for an access easement].) Here, 22 each patent explicitly “reserve[s] from the lands hereby granted a right ofway thereonfor ditches or canals constructed by the authority of the United States.” (Italics added.) “Given the existence of such explicit exceptions, this [Supreme] Court has in the past refused to add to this list by divining some ‘implicit’ congressional!intent.” (Leo Sheep Co. v. United States, at p. 679.) The omission from the patents in this case of a reservation of a right-of-way for access compels the conclusion that the federal government had no intent to reserve an access easementon anytrail or road that existed along Henry Ridge. (See Hash v. U.S. (2005) 403 F.3d 1308, 1314 [no patent mentions reserving to U.S. any title, ownership interest, or reversionary right in land underlying previously-granted railroad right-of-way].) Plaintiffs argue that defendants had the burden to show an intent of Congress not to reserve aright of way. They quote Horowitz v. Noble (1978) 79 Cal.App.3d 120 that an easementwill be implied unless the parties have expressed their intention to the contrary. (/d. at pp. 132-133.) Horowitz is inapplicable becausethe litigants there were private parties. Where, as here, the common owneris the sovereign whose patents did not expressly reserve access easements, the burdenfell on plaintiffs as easement claimants to produce evidence about the government’s intent. (Murphy, supra, 46 Cal.4th at p. 167.) Plaintiffs failed to carry their burden to adduce anyevidence,let alone clear evidence, that Congress intended to reserve an access road in these patents. Thetrial court’s finding of an implied easement over Henry Ridge Motorway based on the federal patents resulted from its misapplication of the law with respect to common ownership, and plainuffs adduced no “clear evidence” of Congressional intent to reserve an access easement. Thus, the portion of the judgment establishing an implied easement must be reversed. Weturn to the trial court’s three bases for finding the roads were dedicated to public use: (1) the patent theory, and (2) implied in law and (3) implied in fact dedication.]] [[End nonpublished portion]] Dedication To Public Use Defendants challengethetrial court’s interpretation and application of Civil Code section 1009 in ruling that the two roads were dedicated to public use. 1. The law ofpublic dedication A dedication is the voluntary application of land “ ‘for some public use, made by the fee owner, and acceptedbythe public. By virtue of this offer which the fee owner has made,he is precluded from reasserting an exclusive right over the land now used for public purposes.’ ” (Friends ofthe Trails v. Blasius (2000) 78 Cal.App.4th 810, 820-821 (Blasius); 10 Miller & Starr, Cal. Real Estate, supra, § 26:1, pp. 26-3 to 26-4.) ‘Dedications may occur pursuantto statute or the common law. [Citation.]” (Blasius,at p. 820.) Commonlaw dedicationsare either express or implied. Express dedication occurs whenthe landowner’s intent to dedicate is manifested by overt acts, such as by an instrument. Implied dedication arises when,in the absence of overt acts, the evidence of the landowner’s conduct or acquiescence supports the attribution of intent to dedicate. (Blasius, supra, 78 Cal.App.4th at p. 821.) Dedications can be implied in law and implied in fact. A dedication is implied in law when the public’s use is adverse and exceedsthe period for prescription. (Blasius, supra, 78 Cal.App.4th at p. 821; Cherokee Valley Farms, Inc. v. Summerville Elementary Sch. Dist. (1973) 30 Cal.App.3d 579, 585 (Cherokee).) A dedication is implied in fact “when the period of public use is less than the period for prescription and the acts or omissions of the owner afford an implication of actual consent or acquiescenceto dedication.” (Blasius, at p. 821, citing Union Transp. Co. v. Sacramento County (1954) 42 Cal.2d 235, 241.) In addition to an offer to dedicate, the record must show an acceptancebythe public. (10 Miller & Starr, supra, § 26:1, p. 26-5; Baldwin v. City ofLos Angeles (1999) 70 Cal.App.4th 819, 837.) Acceptance mayalso be express or implied. (Baldwin, supra.) An express acceptanceis a formal acceptanceby the proper authorities. Implied acceptance occurs when “ ‘the public has made useofthe property for a period of time 24 which demonstrates an intention to accept dedication [citation] or where actions by the responsible public officials indicate[ ] an assumption of control over the property.’ [Citation.]” (Jbid.) Courts require an “unconditional and unqualified acceptanceofthe offer” to dedicate. (10 Miller & Starr, supra, § 26:1, p. 26-5.) The evidence required for finding that a road was impliedly dedicated to public use was delineated in Gion v. City ofSanta Cruz (1970) 2 Cal.3d 29 (Gion). Under Gion, “tw]hat must be shownis that persons used the property believing the public had a right to such use. This public use may not be ‘adverse’ to the interests of the ownerin the sense that the word is used in adverse possession cases. If a trial court finds that the public has used land without objection or interference for more than five years, it need not makea separate finding of ‘adversity’ to support a decision of implied dedication.” (Ud.at p. 39.) Asfor the type of use, those advocating implied public dedication must demonstrate that people have “used the land as they would have used public land.” (Gion, supra, 2 Cal.3d at p. 39.) Proponents of implied public dedication must show that “various groups” of people “have used the land,” not merely “a limited and definable numberof persons.” (/bid.) “ ‘[T]he thing of significance is that whoever wanted to use {the land] did so... when they wished to do so without asking permission and without protest from the land owners.’ [Citation.}” Ud. at p. 40.) Therefore, the use must be “substantial, diverse, and sufficient, considering all the circumstances, to convey to the ownernotice that the public is using the passageasifit had a right so to do.” (Blasius, supra, 78 Cal.App.4th at p. 826, fn. 7.) Whetherthere has been a dedication for public use is a factual question. (10 Miller & Starr, Cal. Real Estate, supra, § 26:4, p. 26-11; Cherokee, supra, 30 Cal.App.3d at p. 585.) Whether express or implied, “the fundamental requirementfor dedication 1s the clear and unequivocalintent by the property ownerto dedicate his or her property [for] public use” (10 Miller & Starr, supra, at p. 26-9) and the unconditional and unqualified acceptanceofthat offer. (/d., § 26:1, p. 26-5.) 25 2. Civil Code section 1009 prevents all public use after 1972, notjust recreational use, from ripening into an implied dedication to public use, and thus the trial court’s interpretation and application ofthat statute was legalerror. On the heels of Gion, the Legislature enacted Civil Code section 1009, effective March 4, 1972 to prospectively abrogate that decision. (Blasius, supra, 78 Cal.App.4th at pp. 822-823.) Subdivision(a) of section 1009 is a statementof the Legislature’s findings that “[i]t is in the best interests of the state to encourage ownersofprivate real property to continue to maketheir lands available for public recreational use;”that landownersface the “threat of loss of nghts in their property if they allow ... the public to use, enjoy or pass overtheir property for recreational purposes;” and that the “stability and marketability of record titles is clouded by such public use, thereby compelling the ownerto exclude the public from his property.” (Civ. Code, § 1009, subd.(a).) Subdivision (b) of Civil Code section 1009 declares that, notwithstanding lack of Civil Code sections 813 and 1008 notices [that use is permissive] by “a private owner of 7 6kreal property,” “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 bodyor 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, made by the owner thereof in the manner prescribed in subdivision (c) of this section, which has been accepted by the county, city, or other public body to which the offer of dedication was made....” (Civ. Code, § 1009, subd. (b), italics added.)'° ? The Legislature also amended Civil Code section 813. (Blasius, supra, 78 Cal.App.4th at p. 822.) That statute now provides that a recorded notice ofthe landowner’s consent to public use for a described purpose constitutes conclusive evidence that subsequent use of the land is permissive. (See Blasius, at pp. 822-823.) "0 Civil Code section 1009 reads in relevant part, “(a) The Legislature finds that: [9] (1) It is in the best interests of the state to encourage owners of private real property to continue to maketheir lands available for public recreational use to supplement opportunities available on tax-supported publicly ownedfacilities. [J] (2) Owners of private real property are confronted with the threat of loss of rights in their property if 26 Subdivision (e) exempts coastal property, not at issue here, from subdivision (b). Subdivision (f) sets forth the steps that a coastal landowner maytake to prevent the public use of coastal property from being used as evidence to support an implied they allow or continue to allow membersof the public to use, enjoy or pass over their property for recreational purposes. [| (3) The stability and marketability of recordtitles is clouded by such public use, thereby compelling the ownerto exclude the public from his property. “(b) Regardless of whether or not a private ownerofreal property has recorded a notice of consent to use of any particular property pursuant to Section 813 of the Civil Codeor 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 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, made by the ownerthereof in the manner prescribed in subdivision (c) of this section, which has been accepted by the county, city, or other public body to which the offer of dedication was made, in the mannerset forth in subdivision (c). [{]--- [9] “(e) Subdivision (b) shall not apply to any coastal property which lies within 1,000 yards inland of the mean hightide line of the Pacific Ocean, and harbors, estuaries, bays and inlets thereof, but not including any property lying inland of the Carquinez Straits bridge, or between the mean hightide line and the nearest public road or highway, whicheverdistanceis less. “(f) No use, subsequentto the effective date ofthis section, by the public of property described in subdivision (e) shall constitute evidence or be admissible as evidence that the public or any governmental bodyor unit has any right in such property by implied dedication if the owner does any of the following actions: [{] (1) Posts signs, as provided in Section 1008, and renews the same,if they are removed,at least once a year, or publishes annually . . . in a newspaperof general circulation in the county or counties in whichthe landis located, a statement describing the property and reading substantially as follows: ‘Right to pass by permission and subject to control of owner: Section 1008, Civil Code.’ [{] (2) Records a notice as provided in Section 813. [4] (3) Enters into a written agreement with any federal, state, or local agency providing for the public use of such land. [§] After taking any ofthe actions set forth in paragraph (1), (2), or (3), and during the time such action is effective, the owner shall not prevent any public use which is appropriate under the permission granted pursuant to such paragraphsby physical obstruction, notice, or otherwise. “(g) The permission for public use of real property referred to in subdivision (f) maybe conditioned upon reasonablerestrictions on the time, place, and manner of such public use, and no use in violation of such restrictions shall be considered public use for purposesofa finding of implied dedication.” 27 dedication to the public, such as posting signs, recording Civil Code section 813 notices, or entering into an agreement with a governmental agencyproviding for the public use of the land. (Civ. Code, § 1009, subd. (f)(1)-(3).) Here, the trial court ruled that Civil Code section 1009 prevents only recreational use of property from developing into a permanent vested right. Based onits statutory interpretation, the court relied on evidence of public vehicular ingress and egressafter March 4, 1972 to find that Henry Ridge Motorway and Gold Stone Road were impliedly dedicated as public streets. Defendants contendthatthe trial court erred as a matter of law. They read Civil Code section 1009, subdivision (b) to precludeall use, not simply recreational use, of private property from ever ripening into public dedications by implication after the statute’s enactment. WhatCivil Code section 1009 precludesis an issue of statutory construction. “Statutory construction is a question of law that courts review de novo. [Citation.} The judicial task in construinga statute is to ascertain and effectuate the legislative intent... . [Citations.] The wordsofthe statute are given their ordinary and usual meaning and are construed in the context of the statute as a whole and the entire system of law of whichit is a part. [Citations.] A court must harmonize a statute with other laws so as to give effect to all and avoid anomalies, if possible. [Citations.|” (Bostick v. Flex Equipment Co., Inc. (2007) 147 Cal.App.4th 80, 108 (concurring opn. of Croskey, J.).) “If the language ofa statute is unambiguous, the plain meaning governsanditis unnecessaryto resort to extrinsic sources to determinethelegislative . . . intent. {Citation.] If the statutory language does not yield a plain meaning, a court may consider extrinsic indicia of intent, including the legislative history of a statute enacted by the Legislature . . . and the historical circumstances ofthe statute’s enactment. [Citations.] ‘Finally, the court may considerthe impact of an interpretation on public policy, for “[w]here uncertainty exists consideration should begiven to the consequencesthatwill flowfrom particular interpretation.” [Citation.]’ [Citation.]” (Bostick v. Flex Equipment Co., Inc., supra, 147 Cal.App.4th at p. 108 (concurring opn. of Croskey,J.).) 28 Looking to the words of the statute, we conclude Civil Code section 1009is not ambiguous. Subdivision (b) of Civil Code section 1009 bars a// public use, not just recreational use, from developing into an implied public dedication. Subdivision (b) broadly declares that “no use” - not “no recreational use” - shall “ever”ripen into a vested right in the public, absent a written offer. “ ‘[W]hen onepart ofa statute contains a term or provision, the omission of that term or provision from anotherpart of the statute indicates the Legislature intended to convey a different meaning.’ [Citations.]” (Klein v. United States ofAmerica (2010) 50 Cal.4th 68, 80.) The absence of the word “recreational” from the phrase “no use” in subdivision (b) indicates that the Legislature’s aim wasto comprehensively preclude implied public dedications from arising from any kind ofpublic use ofprivate real property. Pulido v. Pereira (2015) 234 Cal.App.4th 1246, concluded otherwise. Pulido stated that “use of such property” in subdivision (b) of Civil Code section 1009 “refers back to subdivision (a)(1), which explains that the subject of the statute is the public recreational use ofprivate real property.” However, subdivision (b) of Civil Code section 1009 defines the property to whichit refers. The first clause of subdivision (b) reads “Regardless of whether or not a private owner of real property has recorded a notice of consentto 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... .” (Italics added.) The second clause of the same sentence declares, “no use of such property ... shall ever ripen to confer” a vested right in the public by implication. (Italics added.) Reference back to subdivision (a) to define the type of property discussed in subdivision (b) is unnecessary because the operative sentence of subdivision (b) contains its own definition, namely “any particular” private property. Indeed, nowhere in the operative provisions of thestatute is the word “recreational” found; “recreational” is only employed inthelegislative findings in subdivision (a) of Civil Code section 1009. “Legislative findings and statements of purposein a statute’s preamble can be illuminating if a statute is ambiguous. [Citation.] But a preamblicis not binding in the interpretation of the statute.” (Yeager v. Blue Cross 29 ofCalifornia (2009) 175 Cal.App.4th 1098, 1103, fn. omitted.) As noted, no ambiguity exists in the statute and so it is unnecessary to import the word “recreational” from the legislative findings into the operative portions of the statute when the Legislature has declined to do so. The Legislature clearly intended Civil Code section 1009 to have broader application than solely to recreational use." Viewingthe statute as a whole (Bostick v. Flex Equipment Co., Inc., supra, 147 Cal.App.4th at p. 107 (conc. opn. of Croskey, J.)), reinforces our conclusion. Subdivisions (e) and (f) of Civil Code section 1009 treat coastal property differently than non-coastal land by exempting coastal property from the subdivision (b) comprehensive ban on implied dedication. Coastal land remains subject to the implied dedication doctrine. To prevent evidence of public use of coastal land from supporting a finding of implied public dedication, an owner must affirmatively act by taking one of the three steps listed in subdivision (f). “[CJourts muststrive to give meaning to every word ina statute and to avoid constructions that render words, phrases, or clauses superfluous. [Citations.]” (Klein v. United States ofAmerica, supra, 50 Cal.4th at p. 80.) A construction of subdivision (b) to ban only recreational use from ripening into a permanentvested public right would eliminate the statute’s disparate treatment of coastal and non-coastal land. Wedisagree with the dicta to the contrary in Bustillos v. Murphy (2002) 96 Cal.App.4th 1277. After reciting the legislative intent to encourage recreational use in Civil Code section 1009, subdivision (a), Bustillos stated, “The statute effectuates this purpose by providing that no recreational use ofprivate property ‘shall ever ripen to confer upon the public . . . a vested right to continue to make such use permanently’ unless the property owner dedicates the land to public use and the dedication of property is accepted by the government. (/d., subd. (b).)” (Bustillos v. Murphy, at pp. 1280-1281, italics added.) Bustillos inserted the word “recreational” into its reading of subdivision (b) of Civil Code section 1009 where that word doesnotactually exist in contravention of the rule that “[w]e may not makea silent statute speak by inserting language the Legislature did not put in the legislation. [Citation.]” (Yeager v. Blue Cross ofCalifornia, supra, 175 Cal.App.4th at p. 1103.) 30 Although weconcludethat subdivision (b) of Civil Code section 1009 clearly applies to all uses of private property, we recognize that other cases have interpreted that section to apply only to recreational uses. (Pulido v. Pereira, supra, 234 Cal.App.4th at p. 1252 [statute is arguably ambiguous]; Bustillos v. Murphy, supra, 96 Cal.App.4th at pp. 1280-1281 [statute’s aim is clear]; Hanshaw v. Long Valley Road Assn. (2004) 116 Cal.App.4th 471.) Looking then to the Legislature’s intent, it reinforces our construction. The SupremeCourt in Gion clarified well-settled principles of implied dedication to the public for recreational purposes in a coastal area. (County ofLos Angeles v. Berk (1980) 26 Cal.3d 201, 213.) With the passage of section 1009, the Legislature adjusted the effect of Gion on land along the coast, and precludedall post-1972 public use of non-coastal private property from ripening into public dedication by implication. (See Civ. Code, § 1009, subds. (b) & (e).) The Legislature expressly designed Civil Code section 1009 to “treat the effect ofimplied dedication differently in the coastal zone than in the remainderofthe state.” (Assem. Com. on Planning and Land Use,Analysis of Proposed Amendments to Sen. Bil] No. 504, (1971 Reg. Sess.) July 20, 1971, p. 1, italics added.)'? With passageof section 1009, “[t]he doctrine ofimplied dedication would be deleted prospectively exceptfor the ‘coastal zone’ ....” (Ibid., italics added.) More important, the statute was written to “[p]rohibit[] any use of private land, except specified ocean frontage land,after [the] effective date of [the] actfrom conferring a vested right in [the] public .. . in [the] absence of [an] express written irrevocable offer [to dedicate made] by ownerof[the] property accepted by specified public agenc[ies]. With regard to v Wegrant the July 6, 2012 request of Erickson/Malick, joined by Burke and Marshall, to take judicial notice ofthe legislative history of Civil Code section 1009. Plaintiffs oppose the request on the ground these documents werc not beforethe trial court. However, the construction of a statute presents a purely legal question that we review independently. (Audio Visual Services Group, Inc. v. Superior Court (2015) 233 Cal.App.4th 481, 489; see Peart v. Ferro (2004) 119 Cal.App.4th 60, 81, citing Evid. Code, §§ 452 & 459 [taking judicial notice of legislative history notwithstanding respondents’ opposition on ground it was not introducedin trial court].) Defendants’ request, filed on July 6, 2012, to take judicial notice of exhibits I and J is denied. 31 specified ocean frontage property, [section 1009] makes use by public inadmissible to prove implied dedication ifspecified actions are taken by owner.” (Legis. Counsel’s Dig., Sen. Bill. No. 504 (1971 Reg. Sess. & 1971 Ist Ex. Sess.) Summary Dig., p. 136, italics added; accord, Enrolled Bill Memorandum to Governor for Sen. Bill. No. 504 (1971 Reg. Sess.) Oct. 7, 1971, p.1; Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1169-1170 {Legislative Counsel’ summaryare entitled to great weight].) As shown,the expresslegislative purpose of Civil Code section 1009 is to encourage recreational use of private property by preventing implied dedication of coastal property based on public use if the landownertakes one of the specified steps in subdivision (f), while eliminating all implied dedication of non-coastal property to public use after March 1972. A contrary construction of Civil Code section 1009 underminesthe Legislature’s findings and purpose, namely “to encourage ownersof private real property to continue to make their lands available for public recreational use” by enabling property ownersto allow recreational use of their land without fear of risking a cloud ontheirtitle. (Civ. Code, § 1009, subd. (a).) To read subdivision (b) to apply only to recreational use would discourage non-coastal landowners, unable to distinguish between recreational and nonrecreational users, from allowing any entry on their inland property for fear that “non- recreational” use would become permanent. Such a result would improperly thwart the statute’s declared purpose and return the law to the state it was under Gion,thus defeating the Legislature’s motive for enacting the statute. Thetrial court followed Hanshaw v. Long Valley Road Assn., supra, 116 Cal.App.4th 471, to find that Civil Code section 1009 only precluded common law dedications to public recreational use, but not to other uses such as vehicular ingress and egress. Hanshaw rejected the landowner’s argument that Civil Code section 1009 prevented application of a common law public dedication theory after 1972 in a case involving implied public dedication of an access road. Relying on the phrase “for recreational purposes” in the subdivision (a)(2) legislative findings, the Hanshawcourt held that the statute applies only to preclude the ripening of recreational use into a public 32 dedication. (Hanshaw,at pp. 484-485.) Wedecline to follow Hanshaw becauseit ignored the interplayofall of the statute’s subdivisions and limited subdivision (b)’s 37 66 broad prohibition that “no use” “shail ever ripen to confer upon the public” a vested right to continue the use. (Civ. Code, § 1009, subd.(b), italics added; Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1489, fn. 10 [we are not bound bythe contrary decision by coeanother appellate court; ‘there is no “horizontal stare decisis” within the Court of Appeal’ ”].) For the foregoing reasons, Civil Code section 1009, subdivision (b) barsall use of private real property after March 1972,not just recreational use, from ripening into a public dedication absent an express, written, irrevocable offer of such property to such use, made according to subdivision(c)."° Here, to find implied dedication of the two roads to public use for vehicular access,the trial court relied on witness testimony and recent photographs. Under Civil Code section 1009, subdivision (b), none of the testimony is admissibleas all ofit concerned vehicular use of Henry Ridge Motorway and Gold Stone Road between the late 1970sandthefirst decade of the 21" century. No witness testified about using or seeing anyoneelse use these roads for vehicular access before March 1972. Even the Matriarch of Henry Ridge, Stewart, only moved to Henry Ridge Motorwayin 1977. Although Stewart testified that the roads “have been usedfor fifty years,” this testimony does not begin to describe the numberand variety of use that Gion and Blasius require to find an implied dedication to public use. (Gion, supra, 2 Cal.3d at pp. 39-40; Blasius, supra, 78 Cal.App.4th at pp. 825-826, fn. 7.) Also, Stewart admitted that she had no personal knowledge of anyone driving Gold Stone Road to Henry Ridge Motorway. 8 The Los Angeles County Fire Department’s maintenance of the road until 1984 is not admissible evidence of acceptance by the County of a dedication to public use. (Civ. Code, § 1009, subd. (b).) Not only does the record lack evidence of an express, written, irrevocable offer to the County, but the County ccased maintaining Henry Ridge Motorway becauseit wasa private road. 33 Thetrial court additionally cited the express irrevocable offers to dedicatetrail easements, which were executed after 1972, as evidence that Marshall, and the predecessors of the Schroders and Erickson/Malicks impliedly devoted these two roadsto the public as vehicular thoroughfares. An exception to the ban on post-1972 implied dedications occurs when the landownerrecords an express, written, and irrevocable offer to dedicate that is accepted by a governmentalentity. (Civ. Code, § 1009, subd. (b).) We independently construe these instruments which were executed after 1972. (City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 238.) The landowners’ express dedication in these documents wasfor a “hiking and equestrian trail” a “trail easement,” and a “public accesstrails easement. . . limited to hiking and equestrian uses only.” (l\talics added.) The latter dedication wasalso limited to daylight hours. Nothing could be more manifest: Marshall and the predecessors of the Schroders and Erickson/Malicks madeirrevocable offers to dedicate easementsfortrail purposesonly; there is nothing in the trail dedications indicating the intent to devote the portionsofthe trail on their property that comcides with Henry Ridge Motorway or Gold Stone Roadas public streets. The express dedication of property for public use for horses and pedestrians alone does notresult in implied dedications of the same land as street for cars. (California etc. Co. v. Union etc. Co. (1899) 126 Cal. 433, 437 [express dedication of land for highway doesnot establish dedication of property for landing and wharves]; 26 Cal.Jur.3d (2008) Dedication, § 23, p. 46.) Thus, these instruments do not dedicate public roads for the unlimited vehicular access at anytime of the day and night that plaintiffs seek. Noris the witness testimony about vehicular ingress and egress for general purposesafter 1972 admissible to transform the express offer of a trail for public use into a dedication of the roads as public streets. (Civ. Code, § 1009, subd. (b).) The Coastal Commission reports attached to the trai] dedications require no more than public access for recreational purposes. The reports cite Public Resources Codesections 30210 through 30212, which concern access to the sea for recreational purposesand the findings are replete with references to public access to the Topanga-HenryRidge Trail. More 34 important, the reports reflect a concern about the “perception bythe public that the areas 2 involved are private” and a “ ‘feeling of trespass,’ contradicting the requirement of Gionthat people mustuse the roads “believing the public had a right to such use.” (Gion, supra, 2 Cal.3d at p. 39.) Finally, the trial court ruled that defendants’ acts of erecting gates and posting signs were in response to the “continued heavy use of Henry Ridge Motorway and Gold Stone Roadbythe public.” While that may be, no use ofprivate inland property may ripen into a permanent, vested, public right after 1972 “[rJegardless of whether or not a private ownerof real property has recorded a notice of consent . . . pursuant to Section 813 of the Civil Code or has posted signs on such property pursuant to Section 1008 of the Civil Code.” (Civ. Code, § 1009, subd. (b).) Thetrial court erred in relying on post-1972 evidence of public use, and the record contains no express, written, irrevocable offer to dedicate the subject roads as public thoroughfares. [[Begin nonpublishedportion]] [{Turning to pre-1972 use, as explained, the photographsthat predate 1972 show that the Topangaarea was developing, but none shows development along Henry Ridge Motorway. Rather,all of the sites depicted on the maps from before 1972 are connected to roads other than Henry Ridge Motorway. Thus, these photographs do notgiverise to a reasonable inference that the road was used during those years. Thetrial court also cited the 1949 Easement, as well as the 1968 and 1970 Declarationsas constituting offers to “dedicate these streets or other areas for public use” because these instruments used the word “dedicate” or evinced an intent to dedicate. The court quoted from Hays v. Vanek (1989) 217 Cal.App.3d 271, that “ ‘Dedicate’ is a term of art with a particularized legal meaning. [Citation.] It is highly unlikely [the grantor] would haveused the word in the . . . deed had he not intended the road to be a public road.” (Ud. at p. 282.) However, resolution of this issue requires construction of the documents, and the interpretation of deeds and other instrumentsis solely a judicial function unless the 35 interpretation turns on the credibility of extrinsic evidence. (City ofManhattan Beachv. Superior Court, supra, 13 Cal.4th at p. 238.) Upon inspection, none of the instruments cited by thetrial court effectuated a dedication of Henry Ridge Motorwayor Gold Stone Roadto the public, their use of the word “dedication”in the titles notwithstanding. Althoughthe grantors desired to subdivide and to provide the new parcels with access to 39 66a public street, each of the documents explicitly declared “appurtenant” “easements for road purposes” with the proviso that iffinal tract maps were recorded dedicating public streets, or in the case of the 1949 Easementthe state or county acceptedit as a public road, then the easements would no longer be effective. When a dedication is conditional, the conditions precedent must occuror the offer is inoperative. (Cal. Water & Tel. Co.v. Public Util. Com. (1959) 51 Cal.2d 478, 495.) The conditions in these instruments were neversatisfied: the “said map[s]” attached to the 1968 and 1970 Declarations are not final tract maps;'4 no acceptance was recorded for any ofthese instruments; and no testimony wasintroduced aboutpublic use before 1972 such as would constitute implied acceptance. Thus, neither the 1949 Easement, the 1968 Declaration, nor the 1970 Declarations constitutes a dedication of Henry Ridge Motorway and Gold Stone Road to use as publicstreets. Thetrial court also found that the quad maps showed the two subject roads existing in the same place they do today, and ruled that the roads’ very existence evinced an intent to dedicate them to the public. However, “the mere fact that a public map showslandto be laid out as a street is not evidence,in itself, of the owner’s dedication of the land.” (26 Cal.Jur.3d, supra, § 73, p. 307.) The simple placement on a map cannot constitute a dedication as a public road or there would be no private roads. Thus, if public dedication is claimed based on recorded maps, the evidence must show the i Thetrial court was influenced by the legend on the maps attached to two of the 1970 Declarations which identified a line as indicating “Dedicated roads per attached declaration.” Such a legend does not create a dedication to public use where the express conditions for the dedication were neversatisfied. (Cal. Water & Tel. Co. v. Public Util. Com., supra, 51 Cal.2d at p. 495.) 36 fandowner’s clear and unequivocalintent to so dedicate. (/bid.) We are mindful that “it is not a trivial thing to hold that private property has been dedicated to public use. [Citations.]” (Hays v. Vanek, supra, 217 Cal.App.3d at p. 281.) There 1s no evidence that the roadsidentified on the quad maps wereactually adversely used by, or accepted by, the public according to Gion, supra, 2 Cal.3d at page 39. Underthe circumstances, noneof the instruments or mapscited by thetrial court constitutes “clear and unequivocal proof” of an implied in law dedication of Henry Ridge Motorwayor Gold Stone Road to the public. 3. There is no evidence to support the trial court’s dedication theory based on the patents. Thetrial court ruled that Henry Ridge Motorwayand the portion of Gold Stone Roadthat lies on the Burkes’ property where it connects with Greenleaf Canyon Road were dedicated to public use before 1902, the date of the first patent, while the land was still held by the federal government. Forthis finding, the court relied on section 2477, United States Revised Statutes, title 43 United States Code former section 932 (July 26, 1866), 14 Stat. 2521, repealed by Pub.L. No. 94-579 (Oct. 21, 1976), 90 Stat. 2793 (RS 2477). Defendants contend this finding waserror. Enacted in 1866, RS 2477 read, “ ‘The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.’ ” (Ball v. Stephens (1945) 68 Cal.App.2d 843, 846 (Ball).) “ *The object of the grant was to enable the citizens . . . to build and construct such highwaysacross the public domain as the exigencies oftheir localities might require, without making themselves liable as trespassers.’ [Citation.]” (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 295 (Western Aggregates).) Under RS 2477,if a public road existed on the date the homesteadertooktitle, the patented land was taken subject to that road. (See Ball, supra, at p. 850.) To determine whether an existing road was public, RS 2477 referred to applicable state law governing dedications. (Western Aggregates, supra, 101 Cal.App.4th at p. 296; cf. Ball, supra, 68 Cal.App.2d at p. 846 [describing the law of RS 2477 as requiring 37 “evidence of public use of the described route as a roadway”}.) In California between 1883 and 1935, a road was deemed public if built by the government or “dedicated or abandonedto the public... .” (Ball, at p. 846, quoting from Pol. Code, former § 2618.) RS 2477 constituted the offer of dedication in California. (Western Aggregates, supra, 101 Cal.App.4th at pp. 296, 298.) Acceptance could be imphedbythe conduct of the public according to California’s law of dedication. (/bid., citing Ball, supra, 68 Cal.App.2d at p. 846.) As explained, proof of public use sufficient to constitute acceptance for purposes of RS 2477 involvesa substantial, diverse use of the land as public land would be used, by “various groups” ofpeople for five years. (Gion, supra, 2 Cal.3d at pp. 39-40; Blasius, supra, 78 Cal.App.4th at p. 826, fn. 7.) The period of acceptance by use ended when the homesteaderentered the land. (Knappv. Alexander Co. (1915) 237 U.S. 162, 167; United States v. Clarke (9th Cir. 1976) 529 F.2d 984, 986.)!* In Ball, cited by the trial court here, the evidence was that “the road was well defined and had been madeso by public use.” Witnessestestified about the transition of the route from trail to a road suitable for automobiles and trucks. (Ball, supra, 68 Cal.App.2d at pp. 847-848.) There was also evidence that “many people used the road s Ball stated that the period of acceptance by use ended when the patent was issued, i.c., five years after the homesteader’s entry. (Ball, supra, 68 Cal.App.2d at pp. 847- 848.) However, defendants convincingly argue that acceptance by use ended when a homesteader entered the land. Once a homesteader entered the land underthe Homestead Act, the land was no longer public because “entry for purposes of homesteading. . . separated the land from the public domain.” (United States v. Clarke, supra, 529 F.2d at p. 986.) The United States Supreme Court explained that upon entry, the homesteader had a “preferential” or inchoate right to the land and oncehe fulfilled the conditions of the Homestead Act, “and receive[d] a patent vesting in him the complete legal title, this title relates back to the date of theinitiatory act, so as to cut off intervening claimants.” (Knapp v. Alexander Co., supra, 237 U.S. at p. 167.) Thus, the period of acceptance of an RS 2477 offer to dedicate ended upon the homesteader’s entry and not, as Ball stated, “when the patent was issued.” (Ball, supra, 68 Cal.App.2d at pp. 847- 848.) Plaintiffs unpersuasively reject this limitations argument derived from United States Supreme Court authority, by noting that Ball, a state appellate court decision, states otherwise. Even under Baill’s limitations period, the result here is the same. 38 for different purposes” such as “hunters, miners and vacationists. About 1905 numerous mining claims were located above the land defendant homesteaded andthe locality attracted the attention of oil operators. A derrick was erected and work was done on a well which was located more than a mile from the land in question .... Materials and supplies were hauled to the well by a route which followed another canyon,butthetrail leading downfrom the vicinity of the well toward defendant’s land was madeinto a road over which a two-horse wagoncould pass.” This “[t]ravel was not merely occasional.” (/d. at pp. 848-849.) The evidence wassufficient to affirm the finding that the road was public. (/d.at p. 845.)'® Here,the relevant evidenceis that which showspublic use of Henry Ridge Motorway,and that portion of Gold Stone Road which connects with Greenleaf Canyon Road,for five years before 1897 when the homesteader must have entered the Erickson/Malick north land. The record is devoid of any such evidence. Thetrial court first cited the 1895 survey plat as evidence of public use. That survey depicts a “Road.” Thetrial court “inferred that it would not have been designated as a road where the current location of Henry Ridge Motorway exists absent use.” This is not a legally permissible inference: The mere existence of a road on a map does not showits use was public. “Whetherit also becamea public street did not depend upon the fact alone that the land appears on these mapsas a public street, but whether the proof showedthat it had been offered for dedication, and accepted as such by user or otherwise.” (Whelan v. Boyd (1892) 93 Cal. 500, 501; accord, Hays v. Vanek, supra, 217 Cal.App.3d 271, 281 [declining to infer public use from mere designation of road as “ ‘first class’ ” on map; “such useis just as consistent with private easements by prescription or necessity or with implied private licenses as with public dedication’”].) If mere existence on a map weresufficient evidenceofintent to dedicate a road to the "6 Plaintiffs are wrong when they arguethat the description of use in Ball was meant to show the evolution of the subject road. Ball distinguished the evidence predating the patent from the post-patent evidence, noting that only evidence of the former was relevant to a dedication finding. (Ball, supra, 68 Cal.App.2d at pp. 848-850.) 39 public, then all roads depicted on all maps would be impliedly dedicated to public use rendering the “use” requirement a nullity. The 1895 survey plat is not evidence ofuse. Thetrial court inferred public use from the fact that patentees “and others” used the “Road”for five years to meet the requirements of the Homestead Act. Yet, there is no evidenceof “others.” Plaintiffs’ expert Stanley acknowledged that the only evidence of use wasan inference from the fact of the homesteaders’ patents that those homesteaders “used this road to get access.” Homesteaders alone do not constitute a “various group” or “diverse” use by the public as required by Gion and Blasius, and do not amountto the same assortmentof users cited as sufficient in Ball. Also, the record contains evidence of fewer than a dozen patentees along Henry Ridge Motorway, which is a “limited and definable numberof persons” and hencean insufficient amount. (Gion, supra, 2 Cal.3d at p. 39.) Moreover, a private homesteader’s use for the purposes of obtainingfeetitle to the land by patent cannotalso constitute public use that would divest the same homesteaderofhis rights to that same land. (See, e.g., United States v. Clarke, supra, 529 F.2d at p. 986.) For these reasons, the patentees are not evidence of public use. Thereis also insufficient evidence to support the trial court’s finding that the part of Gold Stone Road at the Burkes’ driveway and Greenleaf Canyon Road waspart of the “Road” in 1895 that later became Henry Ridge Motorway. “[W]e uphold the findingsif supported by substantial evidence. [Citations.}]” (Thorstrom, supra, 196 Cal.App.4th at p. 1417.) However, “[a] decision supported by a merescintilla of evidence need not be affirmed on appeal. [Citation.] Furthermore, ‘[w]hile substantial evidence mayconsist of inferences, such inferences must be “a product of logic and reason . . . ; inferences that are the result ofmere speculation or conjecture cannot support afinding [citations].’ [Citation.]” (Un re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394.) Thetrial court here relied on two maps, neither of which supports the court’s finding that before 1902, Henry Ridge Motorway was connected to what is now Gold Stone Road. The first map was a composite created by Stanley who admitted her creation did not show the 1895 “Road” connecting to Greenleaf Canyon Road, and who 40 testified only that “depending on how accurate this map1s, [it shows a road] possibly also going over a portion of the land owned by Burke.” (Italics added.) This is rank speculation. The second mapthe court cited was created by MacNeil, whotestified he derived it from 1930s CSB mapswhichreflect potential as well as existing road alignments. More important, hetestified that it was “never established that it was [Henry Ridge] Motorwayall the way to [Greenleaf Canyon Road].” Thus, the court had no solid evidence on whichto find that the Burkes’ portion of Gold Stone Road was once part of the 1895 “Road.” Finally, none of the other evidence relied on by thetrial court is substantial, and all of it postdates 1902. For instance, the 1908 map depicts a post office, two taverns, and a house. The mapis too recent, and all of the sites listed thereon are located on roads other than Henry Ridge Motorway. Similarly, none of Stanley’s photographs shows use on Henry Ridge Motorway. Indeed, the 1895 surveyplat and Stanley’s testimony only confirm that the 1895 “Road”did not connect to any destination-point, while there were other roads leading to the Section 1 and Section 7 patents. Consideringall of the evidence adduced here, it amounts to the mere fact that a road existed on the 1895 survey plat and may have been used by a handful of homesteaders whose entry cut off public use. Thesefacts are insufficient as a matter of law to constitute a public acceptance of the RS 2477 offer.'’ Therefore, the trial court erred in ruling that Henry Ridge Motorway and a portion of Gold Stone Road were impliedly dedicated to the public based on RS 2477. Theportion of the judgment declaring Henry Ridge Motorway and Gold Stone Road dedicated to public use must be reversed.'® "7 The Los Angeles County Fire Department’s maintenance ofthe road is not evidence of acceptance by the County of a dedication to public use. The County maintained the road after 1902. 8 Asthe result of our conclusion here that the portion of the judgmentfinding implied easement and implied dedication to public use must be reversed, we need not address defendants’ additional contentions on appeal. 4] II PLAINTIFFS’ APPEAL 1. No express easement Plaintiffs contend that the trial court erred as a matter of law in ruling that plaintiffs had failed to establish they had an express easement based on the 1968 and 1970 Declarations. Quoting from the express language of the 1968 and 1970 Declarations, these instruments state that the grantors “hereby grant said easementsto all owners, their heirs, successors and assigns in [Sections 12 and 1, respectively] as said owners’ fee interest appearofrecord, the vesting oftitle to said easements to take effect upon recording in the office of the County Recorder by any fee ownerofa portion of said Sec. [12 and 1, respectively] ofan acceptance ofsaid easements.” (Italics added.) There is no evidence that acceptances were ever recorded. Notwithstanding these instruments’ clear requirement of a recorded acceptance, plaintiffs contend the law does not require an acceptance andso that requirementis “repugnant to the grant itself.” Citing Stanley’s opinion testimony,plaintiffs also argue such “language was immaterial to the express grant of easementrights.” Interpretation of these instrumentsis solely a judicial function unlessit turns on credibility of extrinsic evidence. (City ofManhattan Beach v. Superior Court, supra, 13 Cal.4th at p. 238.) “Opinion testimony is inadmissible and irrelevant to adjudging questions of law. [Citations.]” (Adams v. City ofFremont (1998) 68 Cal.App.4th 243, 266.) The instruments’ requirementof a recorded acceptanceis clear and unassailable and so Stanley’s opinionis irrelevant. We cannotidly dismiss the acceptance language. Future ownersrely on the express languageof the grants for certainty. It is undisputed that no such acceptance of the easements in the 1968 and 1970 Declarations was recorded. Therefore,the trial] court did noterr in ruling that plaintiffs had not proven their right to an access easement by express grant. 42 2. No easement by prescription Plaintiffs contend the trial court erred in ruling they did not establish an easement for ingress and egress across Henry Ridge Motorway and Gold Stone Road by prescription. The prescriptive pcriod is an uninterrupted five years. (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570-571.) “[A] party seeking to establish a prescriptive easementhas the burden of proof by clear and convincing evidence. [Citation.]” (Grant v. Ratliff(2008) 164 Cal.App.4th 1304, 1310.) The court ruled, “As to the Prescriptive Easement, the Court’s concern is that it could not determine the exact 5 year period necessary to meet the elements.” Theevidenceis disputed. Scher testified he used the roads 1,400 times between 1998 and 2005. Plaintiff McAllister testified she used the road 6-14 times per week during this same period. In contrast, a witness who lived on the Schroders’ property between 1993 and 2005 did not believe these claims “for a moment.” Another resident on the Schroders’ property testified that the claimed use of “200 times per year” was impossible given that that resident watched the property carefully beginning in 1991 and turned people back. The Schroders never saw Scher or McAlhster drive along Gold Stone Road. Erickson saw Scher “twice in the 20 years that P’ve been there” and simply did not think it was possible that McAllister used the road as often as she claimed. Malick never saw either plaintiff use the subject roads. Marshall and the Burkes acknowledged only that they saw “people”on the roads. Plaintiffs argue the record contains adequate evidence oftheir use for the prescriptive period becausethetrial court found earlierin its statement of decision: “Here, until 2006, the continuous, unobstructed and unimpededuse of Henry Ridge Motorway and [Gold Stone] Road by Plaintiffs, other residents, the Defendants themselves, strangers, delivery drivers, workers, motorcyclists, lookie-loos, and teenagers, amongothers, constitutes sufficient public use to accept the implied dedication of the roads.” (Italics added.) This statement is irrelevant because it was made in conjunction with thetrial court’s finding of an implied dedication to use by the public, which requires a diverse collection of users. The statement does not segregate 43 plaintiffs’ use. By contrast, in declining to find a prescriptive easement,thetrial court found that plaintiffs’ use was not continuousfor five years. Plaintiffs filed no objections to the statement of decision and so the doctrine of implied findings applies. “The doctrine of implied findings requires the appellate court to infer the trial court madeall factual findings necessary to support the judgment. [Citation.]” (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.) Parties must “point out deficiencies in the trial court’s statement of decision as a condition of avoiding [the doctrine of] implied findings.” (Un re Marriage ofArceneaux (1990) 51 Cal.3d 1130, 1134.) Under the doctrine of implied findings, where the evidenceis in dispute, we must infer that the court did not believe plaintiffs’ assertion that their own use was continuousfor five years, or at the very least, that plaintiffs failed to demonstrate by clear and convincing evidence which continuousfive years they used the roads. 3. The trial court did not abuseits discretion in declining to declare an equitable easement. Plaintiffs challenge the trial court’s finding that they failed to provide sufficient evidence to support their claim for equitable easement. “Through the doctrine of ‘balancing conveniences’or ‘relative hardship,’ the trial court may create an easementby refusing to enjoin an encroachmentor nuisance.” (Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 265 (Linthicum).) “In appropriate cases in which the requirements for traditional easements are not present, California courts have exercised their equity powers to fashion protective interests in land belonging to another, sometimesreferring to such an interest as an ‘equitable easement.’ [Citations.]” (Tashakoriv. Lakis (2011) 196 Cal.App.4th 1003, 1008 (Tashakori).) Three factors must be present to create an equitable 70easement: “(1) [the trespasser’s] trespass was ‘ “innocent” rather than * “willful or cee ee(2) the public or the property owner will not be irreparabl[y]7negligent, injur[ed]’ ” ’ by the easement, and (3) the hardship to the trespasser from having to cease 6 6e 6the trespassis greatly disproportionate to the hardship caused [the owner] by the 44 continuance of the encroachment.’ ”’ [Citations.]” (Shoen v. Zacarias (2015) 237 Cal.App.4th 16, 19.) . “When reviewinga trial court’s exercise of its equity powers to fashion an equitable easement, we will overturn the decision only if we find that the court abusedits discretion. [Citation.]” (Tashakori, supra, 196 Cal.App.4th at p. 1008.) In Linthicum,the trial court found that the contested roadway “is the only access to the Butterfields’ parcels” and that the Butterfields would suffer “catastrophic loss” were the easementnot created. By contrast, the roadway did not affect Linthicum’s right to fully develop his parcel. (Linthicum, supra, 175 Cal.App.4th at p. 266,italics added.) Similarly, the Zashakori court applied the relative hardship test and found that the defendants would suffer virtually no harm from theplaintiffs’ use of the shared driveway, whereasthe plaintiffs would be irreparably harmed because the easement wasthe sole meansof accessing the property. (Jashakori, supra, 196 Cal.App.4th at p. 1010.) Here,plaintiffs contend they will be irreparably harmed, not because Henry Ridge Motorway and Gold Stone Roadis the only means of reaching their Section | property, as there are several other routes plaintiffs can use to travel from their Section | property to Topanga. Rather, plaintiffs argue Henry Ridge Motorway to Gold Stone Road“is the quickest and most convenient route.” (Italics added.) Convenienceis not sufficient under Linthicum or Tashakori, certainly not when compared to the irreparable harm to defendants by makingtheir private, secluded !and open to plaintiffs’ convenience. Plaintiffs contend they will suffer irreparable harm if they cannot use Henry Ridge Motorway and Gold Stone Road in case of emergency. However, we accept the representation of the Erickson/Malicks and Schroders that they would allow plaintiffs to use these roads in emergencies. Asforplaintiffs’ Section 12 lot, Henry Ridge Motorway and Gold Stone Road do not even touch it, with the result there are no equities in plaintiffs’ favor with respect to that land. Finally, considering the partics’ conduct to determine whois responsible for the dispute,plaintiffs are not innocent. (Tashakori, supra, 196 Cal.App.4th at p. 1009; Linthicum, supra, 175 Cal.App.4th at pp. 266-267.) Scher testified that since buying his 45 Section 1 property in 1998, he intended to establish rights across Henry Ridge Motorway oo 6 and Gold Stone Road and he purchased his Section 12 property ‘partially to stick a thorn in my neighbor’s side.’ ” Thetrial court did not abuse its discretion in declining to create an equitable easement.]] [{End nonpublished portion]] DISPOSITION The judgment in favor of defendants on plaintiffs’ causes of action for declarations of express, prescriptive, and equitable easementsis affirmed. In all other respects, the judgmentis reversed. Thetrial court is ordered to enter a declaratory judgmentin favor of defendants consistent with the principles set forth in this opinion. Defendants to recover costs on appeal. CERTIFIED FOR PARTIAL PUBLICATION ALDRICH,J. Weconcur: EDMON,P.J. KITCHING,J. 46 CERTIFICATE OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES Atthe time of service, I was over 18 years of age and not a partyto this action. I am employed in the County of Los Angeles, State of California. My business address is 2361 Rosecrans Ave., Suite 475, El Segundo, CA 90245. On October 21, 2015, I served true copies ofthe following document(s) described as PETITION FORREVIEW ontheinterested partiesin this action as follows: SEE ATTACHED SERVICE LIST BY OVERNIGHT DELIVERY: | enclosed said document(s) in an envelopeorpackage provided by the overnight service carrier and addressed to the personsat the addresseslisted in the Service List. I placed the envelope or packagefor collection and overnight delivery at an office or a regularly utilized dropboxof the overnightservice carrier or delivered such document(s) to a courier or driver authorized by the overnight service carrier to receive documents. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 21, 2015, at El Segundo, California. NU. ! Rosie i Ortiz \ ‘(> 09999.0003/2722683 23 SERVICE LIST Supreme Court of California Earl Warren Building - Civic Center 350 McAllister Street, Ro 1295 San Francisco, CA 94102-4797 Court of Appeal- Second District Division 3 Ronald Reagan State Building 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 1 Original 8 Copies 1 e-Submission Copy” California Superior Court Hon. Malcolm Mackey - Dept. 55 Stanley Mosk Courthouse - LASC 111 North Hill Street Los Angeles, CA 90012 1 Copy Robert S. Gerstein Law Offices of Robert S. Gerstein 12400 Wilshire Blvd., Ste. 1300 Los Angeles, CA 90025 Tel (310) 820-1939 Attorneys for John Burke, Germaine Burke, and Bennet Kerns, Trustee of the A.S.A. Trust, Dated June 28, 2005 1 Copy Bennett Kerns . Law Offices of Bennett Kerns - 2001 Wilshire Blvd., Ste. 200 _ Santa Monica, CA 90403 Tel (310) 452-5977 _ Attorneys for John Burke, Germaine | Burke, and Bennet Kerns, Trustee of | the A.S.A. Trust, Dated June 28, 2005 _1 Copy 09999.0003/272268.3 24 LEVINSON ARSHONSKY& KURTZ, LLP Richard I. Arshonsky Jason J. Jarvis 15303 Ventura Blvd., Suite 1650 Sherman Oaks, CA 91403 Tel (818) 382-3434 GARRETT & TULLY, P .C. Ryan C. Squire Zi C. Lin 225 South Lake Ave., Suite 1400 Pasadena, CA 91101 Tel (626) 577-9500 | Attorneys for Richard Erickson, _ Wendie Malick, Andrea D. Schroder _and Richard B. Schroder od Copy Attorneys for Richard Erickson, Wendie Malick, Andrea D. Schroder and Richard B. Schroder 1 Copy WendyC. Lascher Joshua S. Hopstone FERGUSON CASE ORR PATERSON LLP 1050 South Kimball Road, Ventura, CA 93004 Tel (805) 659-6800 09999.0003/272268.3 _ Attorneys for Gemma Marshall _1 Copy 25