SCHER v. BURKE

Appellants, Richard Erickson, Wendie Malick, Richard Schroder, and Andrea Schroder, Appendix of Bar Journal Articles

Cal.May 26, 2016

5230104 In The Supreme Court of California JAIME A. SCHER,etal., PILEDURT Plaintiffs and Respondents, L Th US. MAY 26 2016 JOHN F. BURKE,et al., Frank A. McGuireClerk Defendants and Appellants. Deputy After a Decision by the Court of Appeal Second Appellate District, Division Three—Case No. B235892 On Appeal from the Los Angeles Superior Court Hon. Malcolm Mackey, Judge—Case No. BC415646 APPENDIX OF BAR JOURNAL ARTICLES IN SUPPORT OF ANSWER BRIEF ON THE MERITS OF RICHARD ERICKSON, WENDIE MALICK, RICHARD B. SCHRODER, and ANDREA D. SCHRODER GARRETT & TULLY, P.C. LEVINSON ARSHONSKY *Ryan C. Squire, SBN 199473 & KURTZ, LLP Zi C. Lin, SBN 236989 Richard I. Arshonsky, SBN 155624 Motunrayo D. Akinmurele, SBN 299868 Jason J. Jarvis, SBN 230158 225 South Lake Avenue, Suite 1400 15303 Ventura Blvd., Suite 1650 Pasadena, California 91101 Sherman Oaks, CA 91403 (626) 577-9500 * Fax (626) 577-0813 (818) 382-3434 * Fax (818) 382-3433 rsquire@garrett-tully.com rarshonsky@laklawvers.com Attorneys for Defendants and Appellants RICHARD ERICKSON, WENDIE MALICK, RICHARD B. SCHRODER, and ANDREA D. SCHRODER 5230104 In The Supreme Court of California JAIME A. SCHER,et al., Plaintiffs and Respondents, US. JOHN F. BURKE,et al., Defendants and Appellants. After a Decision by the Court of Appeal Second Appellate District, Division Three—Case No. B235892 On Appealfrom the Los Angeles Superior Court Hon. Malcolm Mackey, Judge—Case No. BC415646 APPENDIX OF BAR JOURNAL ARTICLES IN SUPPORT OF ANSWERBRIEF ON THE MERITS OF RICHARD ERICKSON, WENDIE MALICK, RICHARD B. SCHRODER, and ANDREA D. SCHRODER GARRETT & TULLY,P.C. LEVINSON ARSHONSKY *Ryan C. Squire, SBN 199473 & KURTZ, LLP Zi C. Lin, SBN 236989 Richard I. Arshonsky, SBN 155624 Motunrayo D. Akinmurele, SBN 299868 Jason J. Jarvis, SBN 230158 225 South Lake Avenue, Suite 1400 15303 Ventura Blvd., Suite 1650 Pasadena, California 91101 Sherman Oaks, CA 91403 (626) 577-9500 + Fax (626) 577-0818 (818) 382-3434 + Fax (818) 382-3433 rsquire@garrett-tully.com rarshonsky@laklawyers.com Attorneys for Defendants and Appellants RICHARD ERICKSON, WENDIE MALICK, RICHARD B. SCHRODER, and ANDREA D. SCHRODER For the Court’s convenience, defendants and appellants Richard Erickson, Wendie Malick, Richard B. Schroder, and Andrea D. Schroder, hereby submit copies of the following bar journal articles, which may be difficult to locate, in support of their answerbrief on the merits: A. Jay L. Shavelson, Asst. Atty Gen., Gion v. City of Santa Cruz, Where do We Go From Here?, Calif. State Bar J. 416, Sept.—Oct. 1972, attached hereto as Exhibit A. B. John Briscoe & Jan S. Stevens, Gion After Seven Years: Revolution or Evolution? (1977) 53 L.A. Bar No. J. 207, attached hereto as Exhibit B. DATED: May 1G, 2016 Respectfully submitted, GARRETT & TULLY,P.C. Ryan C. Squire Zi C. Lin MotunraygD. “(2 By: “— Ryan C\Bquire TY Attorneys for Defendants and Appellants Richard Erickson, Wendie Malick, Andrea D. Schroder, and Richard B. Schroder 12LIS Hucttano 8, YouraetEditor and Charman Suite 270061 Wost Sixth St.Los Angeles,California 10017 McuRL LiptayManaging Editor Eowasn1, Lasoten ‘Articles Editor PO. Box At Ventura 93001 Journal Committee Rowan L, Bauer ‘Santa Ana Steven P, Feronan Tos Angeles 43. Ricisanp Giang Sacramento Rrcttagp H. Goan Sun Diego Watren H, Harneveron,Jn, Redwood City Rosser B, Kxueces Sas Angeles Aurieo P, Masai Santa Rosa Ove Muten Beverly Pilla Evarne B, Sonasors, Jr,San Pranciseo Hanay ©, Stowan Los Angeles Sou Sueveairan Ban Franciseo0 Iby Te stateBaeMoore Bautany SeeeR NS appealPo Fableadt, So gemdee Batis galas"Asti det sates Hiode mete Berne TEMBER - Ocrosex 1072 SEPTEMBER. OCTOBER 1072 SYMPOSIUM ISSUE . . . California's Coastline ARTICLES. Coastal Zone Management: The California ExperienceRobert 8. Krueger ee é 402Title to Lands ia the Coastal Zone: Their Complexities andImpact on Real Estate Transactions Thomes E. McKnight 2.0.00... seeeeeeees 408Gion x. City of Santa Cruz: Where Do We GoFrom Here? Jay L. Shavetsan ....., Pattee beens dtdPotented Tidelonds: A Naked Fee?Marks ¥. Whitney and the Public Trust EasementN. Gregory Taylor... .... 2... sreersceaeny 420Regional Planning: The CoastalZone IoiliativeAnalyzed In Light of the BCDC Experiunce Harry 8, Jackson and Alvin Boum... .....6. eee, 426Bourd Highlights Thomas M. Jenkins 0.0... veeees 49Annual Report of the Board of Govuenors Dawid K ROBIION ee ceeeeeeeeeescenenee SOTThe Franchise Concept Under tha Franchise lavestment LawHans A. Mattes, Corréetion ......, ae 54aEffective Estote Planning: Some Procedlural ObservationsK. Bruce Friedman, Correction... begtepasca B44 DEPARTMENTS.Editor's Viewpoint . . bees deans 396President-Elect’s Message; Year in Review 398loscher At Lorge ws... 433,Conference of Barristers 1.1... 442 STATE BAR NEWS Bar Examinations Statistics Fi caeees pee c v he we, B36Discipline Imposed pews ated 2 542 LOVER PHOTOGRAPH. Yiow of Monterey Bay. looking north. Photographby courtesyof Montarey Penicaula Chamber of Commerce 398 a l l d GION v. CITY of SANTA CRUZ WHERE DO WE GO FROM HERE? By Jay L. Shavelson* Assistunt Attorney General Slale of California JAY L. SHAVELSONattended MoatHolt, whore he raseived his ELA.in 1858, and hie Magtore in 1055, atwhich time he joined theCalifornia Attorney General's offer,He became Assistant AttorneyGeneral and statewide head of theLanil Law Section in 1965. He wrote theamicus eurine brief ond arguedbefora the California SupremeCourt in the Gianease Surrenanx « Gcroupn 1972 IN FEBRUARY OF 1970, an earthquake of major proportions occurred in California real prop- erty law. Its tremors have been felt by the Legislature, the bar, private landowners, the land title industry, and the public atlarge. ‘This was the celebrated consoli- dated action of Gion v. City of Santa Cruz and Dietz ¥. King.) ‘The California Supreme Court considered in the consolidated ac- tion {hereinafler called “Gion")? whether there had been an implied dedication of the two heach areas, The Court summarized its holding in the folowing simple sentences: “,.. In each easethe trial court found the elements necessary to imptied dedication were present —use by the public for the pre- seriptive period [five years] without asking or receiving per- mission from the fee owner. ‘There is no evidence that the re- “The views stated herein are’ purelythose ofthe author and do not necessarilyFopresent the pasition of the office of theAliorney’ Gonorul. 12 Cal.td 29 (1970). *Rhymes with “Ryan.” 418 a l d spectivefee owners attempted to prevent or halt this use. It fol- place.” The importance of the case lies in the fact that the Court expressly . repudiated the presumption of ear- | - lier decisions that public use of un-.: enclosed and uncultivated land was attributable to a license on the part of the owner, rather than his intent to dedicate. This was said to be par- ticularly true where the user ex- ‘tended over an entire tract, rather thari a definite ‘and specified line, so that dedication would practically _ destroy the value of the property to the owner himself.? ‘The decision has evoked a flurry ofarticles in California periodicals,. * whose titles and content reflect — everything from sober analysis to~ righteous indignation.‘ To avoid fields already plowed, this article is limited to the follow- ing: 1. What. the Legislature has al- ready done as a result of the Gion decision; 2. What further legislative steps: are under consideration; 3. Absentlegislative abrogation, how will the Gion doctrine be applied in future cases. _ Legislation Enacted in 1971 Despite a number of proposals, the Legislature enacted only one bill during the 1971 Legislative Session directly traceable to Gion.® This bill amended section 813 of the Civil Code and added section 1009. Briefly stated, the legislation does two things: a. Abrogates, with certain ex- ceptions, the doctrine of im- plied dedication as to all in- land areas; i.e., lands more 416 y:lows .as a matter of law that a. :: ‘dedication to the public - took than 1,000 yards from the mean high tide line of thePa- : cific Ocean andi-its ‘bays’ and.: . inlets.° = ne : b. Establishes a liberalized pro- cedure by which owners of ' coastal properties can avoid implied dedication arising from future public use. The legislation applies only to public use after its effective date (March 4, 1972). It does not pur- port to affect implied dedications existing as of that date.” Its basic purposeis to give owners a method 3Manhattan Beach v. Cortelyou, 10 Cal. . 2d 653 (1938); Whiteman v. City of San Diego, 184 Cal. 163 (1920); City. of San Diego y. Hail, 180 Cal. 165 (1919); F. A. Hihn Co. v. City of Santa Cruz, 170 Cal. 436, 448 (1915). u, : 4Armstrong, Gion v. City of Santa Cruz; Now You Own It.— Now You Don't; or The Case of the Reluctant Phi- lanthropist, 45 L.A. Bar Bull. 529 (1970); Comment, This Land Is My Land: The Doctrine of Implied Dedication and its Application to California Beaches, 44 So. Cal. L.Rev. 1092 (1971); Comment, A Threat to the Owners of California’s Shoreline, 11 Santa Clara Law 327 (1971); Comment, Publie or Private Ownership of Beaches: An Alternative to Implied Dedication, 18 UCLA L.Rev. 795 (1971); Note, Californians Need Beaches—Maybe Yours!, 7 San Diego L. Rev. 605 (1970); Note, Implied Dedica- tion in California: A Need for Legisla- tive Reform, 7 Cal. Western L, Rev. 259 (1970); Note, The Common Law. Doc- trine of Implied Dedication and Its Effect on the California Coastline Property Owner, 4 Loyola U. L.Rev. 438 (1971); Note, Public Access to Beaches, 22 Stan. L.Rev. 564 (1970); Note, 59 Calif. L.Rev. 231 (1971). SSenate Bill 604 (Lagomarsino) en- acted as Statutes of 1971, Chapter 941. 6Some question has been raised as to the constitutionality of the distinction between coastal and inland properties. However, the validity of the classification would appear to be assured by the fact that it was adopted in the Gion decision itself. 2 Cal.3d at 41-43. If the statute were found unconstitutional, the “sever- ability clause” would purportedly pre- serve the distinction set forth therein up to the time of judicial determination. Statutes of 1971, Chapter 941, § 4. 7See Statutes of 1971, Chapter 941, § 3. CALIFORNIA STATE BAR JOURNAL : x g= « « « € € & P E C I S ! A T I N V V E I N T E N T C E D V I C E » : o d / of avoiding future implied dedica- tions, short of excluding the public from the land. As to inland properties, the doc- trine of implied dedicationstill ap- plies to lands improved, cleaned or maintained at public expense, in such a manneras to put the owner on reasonable notice. Civ. Code § 1009(d). Coastal owners are given a wide, almost bewildering, variety of ways to protect them- selves against implied dedications arising from future use. At least superficially the most attractive al- ternative is Civil Code § 813, amended to eliminate some glaring . weaknessesin its formerlanguage.® Under this section, the owner re- cords a notice (revocable at any time) saying that any use whatso- ever by the public is by permission, and subject to the control of the owner. Posting The new legislation also makes it clear that compliance with Civil Code § 1008 (relating to posting of signs) prevents future implied ‘dedication.® It gives the owner the option of publishing, rather than posting, the language set forth in that section.’ Civil Code § 1009(f) (1). : If the owner uses signs, he must post them at each: entrance or at . intervals of not more than 200 feet along the boundary. If anyone re- moves them, they must be renewed at least once a year. Publication must be made annually and in ac- cordance with Government Code § 6066 (i.e., two publications with- in a two week period). The obvious advantages of cheapness and con- venience offered by section 813 are perhapsoffset by the fear of dam- aging exceptions in title policies. . arising from any notice which ap- pears in the record chain oftitle. SEPTEMBER - OCTOBER 1972 .: Furthermore, regardless of the method used, the owner must not “prevent any public use appropri- ate under the permission granted.” Civil Code § § 1009(f) and 813. It. may well be argued that the “ap- propriate” uses are wider under § 818 (which refers to “any use whatsoever’) than under § 1008 (which refers only to the “right to pass”). All things considered, many attorneys may well advise posting or publication, rather than recordation. Future Developments Gion has raised questions which will have to be answered by. the * Legislature and the courts. A de- tailed discussion of pending Bills would not be fruitful because they may be substantially altered or even defeated by the timethis ar- ticle appears in print. However, since the issues raised by pending legislation will be with us in any case, some brief commentis appro- priate. . The most urgent issue is whether the Gion doctrine should be re- 8This section formerly provided for the recordation by the owner of a notice of consent to the use of his land “for the " purpose described in the notice.’ The re- corded notice was evidence that subse- quent use of the Jand “for such purpose” was permissive and with consent. The - problem, of course, was that while the : owner protected himself against dedica- tion for the relatively harmless uses he ‘was likely to specify (e.g., hiking), he was not protected against dedication for more damaging uses (e.g., a garbage dump). *Section 1008 provides that upon com- pliance with its provisions, no use by any person or persons “shall ever ripen into an easement by prescription.” Since Gion (2 Cal.3d at 39) draws a sharp distine- tion between easements by prescription and those arising from implied dedica- tion, the former applicability of section 1008 to implied dedication was at least in - doubt. 10“Right to pass by permission, and subject to control, of owner: * Section 1008, Civil Code.” a) 417 f Q N M N R A R 1 0 1 7 { E R I C A T I N V E I N I T E N I T C E D P V I C E no d] tained. at all. Senate Bill 742" .“ would create a presumptionthatall publicuse of unenclosed land prior . to 5 years before the effective date . of theact, without objection or in- | _terference by the owner, shall be presumed permissive and with the consent of the owner. Exceptions "are made as to: lands which have. been improved, cleaned or main- tained at public expense, and as to litigation pendingas ofthe effective date of theact and involving public entities. Arguments Pro Since the abrogation of this very presumption is the heart of the Gion decision, this Bill, where ap-— . Plicable, would reinstate the law as ‘many thoughtit to be prior to Gion. We mayexpect arguments such as the following from the proponents of the Bill: 1. That decisions prior to Gion lulled property owners into a false sense of security about the consequencesof failing to exclude the public; 2. That Gion penalizes the be- nevolent property owner and protects the ‘Scrooge’ who maintained fences and guards; 3. That the public should not be rewarded for trespassing on _ Private lands; and, - 4, That a dedication arising sole- ., ly from use by membersof the public (as distinguished from a public agency) has one of two undesirable consequences; ‘it either (a) imposes an obli- gation on the local public en- tity (city or county) against its will, or (b) creates a “floating” dedication as to which no public entity has re- sponsibility; eg.,-for main- taining safe and sanitary con- ditions, etc. 418 Arguments Con Those opposing’ 8.B. 742 ‘would - contend: 1. That the presumption created by the Bill would be virtually irrebuttable in a practical sense. The Legislature would, in effect, be relinquishing pub- lic beach and recreational areas which are already much too limited; 2. That such relinquishment would be of questionable con- stitutionality under section25 of Article XIII of the Califor- nia Constitution (the “sift clause’) ;12 a 3. That, as applied to beaches and other dedicated areas af. fording access to. navigable waters, the Bill is of doubtful 11As amended on June 15, 1972. this Bill reads as follows: “The people of the State of Califor- nia do enact as follows: Section 1. Section 647 is added to the Evidence Code, to read: . 647. (a) Public use prior to 5 years before the effective date of this section of unenclosed private land without ob- jection or interference by the owner of such land or by the person in lawful ossession thereof shall be presumed to e@ permissive and with the consent of the owner or person in lawful posses- ‘sion thereof, except where a govern- mental entity has expended public funds on substantial visible improve- ments.on or across such land, or the cleaning or maintenance related to the public use of such land, in such a man- ner that the owner knows or should know that the public is making a use of his land which is reasonably related to such improvements, cleaning or maintenance. _ (b) The presumption created by this section shall affect the burden of pro- ducing evidence and not the burden of “proof, Section 2. This act shall not apply to any action pending on its effective date in which the state, a city, a county, or a city and county, is a party on such effective date.” 12“Section 25. The Legislature shall have no power .. . to make any gift or authorize the making of any gift, of any public money or thing of value to any in- dividual, municipal or other corporation whatever, ...” CALIFORNIA STATE Bar JOURNAL f Q N M \ B R A 1 0 1 7 P E C r i c l h A T A / E I N I T E N I T C E R V I C E ~ 3 Or a constitutionality under sec- tion 2 of Article XV of the California Constitution.18 This section was one of the - bases of the Gion decision ;14_ 4. That Gion and Dietz on their facts involved a large degree of equity in the public, and it should not be assumed that future courts will apply the - precedent unfairly or oppres- sively; 5. That less drastic legislation can mitigate the hardship on © private owners without dam- aging the public interest ;'5 6. That thefive year provision in. Senate Bill No. 742 specifical- ly rewards those owners whose response to Gion was to erect illegal fences and to plough over paths and other evidenceof public use; and, 7. That public entities should at least have the opportunity of assuming the responsibilities . properly attributable to dedi- cations arising solely from use by membersof the public. Difficult Decision The arguments on both sides have powerful appeal, requiring Solomon-like wisdom for their res- olution. Fortunately for the author, | ‘his obvious prejudice as a public lawyer disqualifies him from mak- ing such an attempt. Far more complex, but less dras- tic, legislation has been proposed at the 1972 Legislative Session in Senate Bill No. 82 and Assembly Bill No. 1410. These Bills are in- tended to accomplish a number of laudable objectives, although their precise content is a matter of sub- stantial controversy. Among these objectives are the following: 1. The designation of the state and local public entities havy- ing the right and responsibil- SEPTEMBER + OCTOBER 1972 ity for representing the public interest in dedicated areas;16 2. The creation ofa procedure by which an owner can sue to clear his title or define the Scope of any alleged implied dedication; continued on page 4x2 13See. 2. No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laivs ag will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always at- tainable for the people thereof.” (Em- phasis added.) 14Senate Bill No. 742 is much more vulnerable to attack under section 2, Ar- ticle XV than Senate Bill No. 504 of the 1971 Session (discussed above). This be- cause S.B, 604 may inerease public access by encouraging owners to keep their lands open to the public by climinating the fear of dedication by implication, while S.B. 742 appears to have the sole effect of diminishing public access. 15See discussion of Senate Bill No. 82 and Assembly Bill No. 1410, infra. 1SThe confusion in this regard is ji- lustrated by the following multiplicity of theories expressed or implied in litigation and agreements following Gion: a. The rights reside in the “public” and no governmental entity, or com- : bination of entities, has the power to relinquish or clarify such rights. b. All rights reside in the local entity wherein the lands are located, i.e., the municipality, where the lands are in an incorporated area, or the county, if theyare located in an unincorporated area. . e. The rights reside in tha loca] en- tity, as stated above, but only where it as participated in the acquisition of ‘the rights, e.g., by maintaining or im- proving the lands with public funds or personnel. : : d. The rights reside in the State un- der Civil Code section 670 or Govern- ment Code section 182, as property of which there is no owner. , -e@. Rights adjacent to navigable wa- ters reside in the State acting through the State Lands Commission under sec- tions 6216 and 6301 of the Public Re- ‘sources Code, as easements appurte- nant to the lands underlying such wa- ters. ‘ : 419 - f A N M N R A R 1 0 1 7 L E C I c l A T I V E I N T E N T C E D V A I C E a n d ] HEINONLINE Citation: 53 L.A. B.J. 207 1977 Provided by: Need Help with HeinOnline?Visit help -heinonline.org! Content downloaded/printed from HeinOnline (http://heinontine.org) Thu Apr 14 14:54:26 2016 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditionsofthe license agreementavailable at http://heinonline.org/HOL/License - The searchtextof this PDF is generated from uncorrected OCRtext. HEINONLINE Citation: 53 L.A. B.J. 207 1977 Provided by: Need Help with HeinOnline?Visit help.heinonline.org! Content downloaded/printed from HeinOnline (http://heinonline.org) Thu Apr 14 14:54:26 2016 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditionsof the license 2 agreementavailable at http://heinonline.org/HOL/License -- The search text of this PDF is generated irom uncorrected OCRtext. GION AFTER SEVEN YEARS: REVOLUTION OR EVOLUTION? By JGHN BRISCOE AND JAN S. STEVENS 4 Deputy California Attorney General since his LEB. (Boattat from the 4972, Landfiw Section, San Francisco, Mr. Briscoe specializes in coostal and offshore boundary titigation. He received his J the University of San Francixer Me. Stevens has been an ssinant California ‘Attorney General since 1959. He specializes in inland water-boundary litigation. He recebved Intversity of California The views expressed in this articleare thote of the writers and lo not necesrarilyreflect the siews ar polictes afthe Department of Fustice OARROSOOPSAPAMORAVCURAAIPGSRHOTRPIAIIEAIPANGLALIIALND In 1970, when the California Su- preme Court in Gion y. City of Santa Cruz! held that coastal property in Santa Cruz and Mendocino Counties had been impliedly dedicated to the public, its decision’ was promptly met with predictions of disaster and legisla- tive efforts for repeal. Largely over- looked in the furor over the alleged Joss of coustline owners’ property rights were four considerations: 1. The tidelands havehistorically be- longed to the State, and are held in tenst for public purposes.® 2, Case law has long recognized ac- quisition of public rights by implied dedication, particularly in coastal areas. 3. ‘The public policyof this State, as expressed in the Constitution and vari- ous statutes, is aimed al insuring the 19. Ca.3d 29(1970) (hereinaer “Gion"”) OCTOBER 1977 rights of individuals’ access to the coastline and navigable waters, Thus section 4 of article X. of the California Constitution (first adopted in 1879) providesthat: “Noindividual, parmership, or corporation, claimingor possessing the frontage or tidal lands of a har- bor, bay, inlet, estuary, or other nav- igable water in this State, shall be permitted to exclude the rightof way to such water wheneverit is required for any public purpose, nor to de- stroy or obstruct the [ree navigation. of such water ....”” Section 4 further dircets the Legisla- ture to providefor suchcontinued ac- cess. 4, Judicial protection of public rights in shoreline areas has been far more zealous in other states. 2People v. California Fish Co., 166 Cal. 576 (19). 207 Seven years have passed since the Gion decision, and muchof the hyste- ria it originally engendered has abated. Now a more considered analysis shows that the Gion decision did not represent the surrenderto radicalism and revolu- tion that it was sometimes represented to be. The Evolution of the Principles of Dedication at Common Law The ability to dedicate lands to pub- lic use has been long recognized as necessary to a society. In 1836 the United States Supreme Court ob- served: “That property may be dedicated to public use, is a well-established principle of the common law.Itis founded in public convenience, and has been sanctioned by the experi- ence of ages. Indeed, without such a principle, it would be difficult, if not impracticable, for society in a state of advanced civilization, to enjoy those advantages which belongto its condition, and which are essential to its accommodation. The importance of this principle may not always be appreciated, but we are in a great degree dependentonit for our high- ways, the streets of our cities and towns, and the grounds appropriated as places of amusementor ofpublic business, which are found in all our towns, and especially in our popu- lous cities.’ Perhaps the most concise and accu- rate modern definition of dedication is ‘‘the setting aside of land for a public use. 4 Dedications have been classed asei- ther statutory or commonlaw,and as either express or implied. “ [E]xpress dedications are manifested by some outward act of the owner, while ithplied dedications usually arise by acts or conduct not directly mani- festing the intention to dedication, but from which the law will imply the in- tent.’’6 Today express dedication is most frequently effected by a formal deed or other instrument,’ or by the recording of a map showing public areas together with the acceptance by the municipal authorities of the “‘offer’’ to dedicate.8 Implied dedication is to a greater ex- tent a creature of the commonlaw. A review of the legal antecedents of im- plied dedication, particularly as it has evolved in California, will show that the Gion holding was not a radical de- parture from the common law but merely a timely articulation ofit. The cases differ in their suggestions as to the doctrinal genesis of dedica- tion. Express dedication has beensaid to have developed by analogy to the contract theory of offer and accept- JNew Orleans v. United States, 35 U.S. (10 Pet.) 662, 712-713 (1836). 423 Am. Jur. 2d Dedication § 1 at 4( 1965). 5]d.§ Sat 5. 626 Cal. Jur. 3d Dedication § 4 at 157 (1976). 7See 6 Powell. Real Property 367 n. 10 (1976 208 ed.) (hereinafter ‘‘ Powell’). 8The procedures for effecting a dedication by means of a subdivision map or other record of survey are generally provided for by statute. For a collection of representative statutes, see Powell at 366, n. 5. LOS ANGELES BAR JOURNAL ance.9 Dedication arising from public user has been said to act in the nature of an estoppelin pais,!° or ofa bastard progeny of prescription,!! and there are the suggestions thatit is akin to the common-law doctrine of customary rights.12 Interestingly, Blackstone felt it ap- propriate to distinguish title by pre- scription from customs ‘‘or immemo- rial usages. ’’!5 Dedication was well known to the English common law. Althoughit had perhaps been recognized earlier,!4 the first reported cases employing the doc- trine appeared in 1732.!5 The nextre- ported case of dedication does not ap- pear until 1790,18 but in subsequent years the contours of the doctrine were developed.!” Wewill here scan someofthis coun- try’s early dedication cases, particu- larly those decided in the United States Supreme Court. From this cursory re- view of the decisions, three inferences can be drawn: 1. Dedication appears to have devel- oped as a doctrine independently of prescription, estoppel and customs, but attaining attributes of those three prin- ciples. 2. Although lip service is paid throughout to a supposed requirement of an intent to dedicate or of a ‘“‘lost grant,”’ from the earliest cases public use has been evidence equally proba- tive of a dedication as an actual prant. 3. Waterfront-access cases in particu- lar have nourished the developmentof “implied’’ dedication. Early American Development In the 1827 case of McConnell v. Lexington,’® the appellant had broughta bill to compel the towntrust- 9See Note, 28 S.Cal.L.Rev. 100 (1954); com- pare Carter Oil Co. v. Myers, 105 F.2d 259 (7thCir, 1939). 10Morgan v. Railroad Co., 96 U.S. (6 Otto) 716 (1877); Prescott v. Edwards, L117 Cal. 298, 303 (1897); People v. Laugenour, 25 Cal.App. 44 (1914): Schmitt v. San Francisco, 100 Cal. 302 (1893) (‘Dedication is but a phase ofestop- pel.’’); Smith v. City of San Luis Obispo, 95 Cal. 463 (1892); 18 C.J. § 129 at 111; 8 R.CL. 906, § 31. Contra: Angell, Angell on Highways 172, 173 (1857 ed.); 13 Cyc. 438, 439; 2 Tiffany, Real Property § 484 (1881 ed.). 11 See State ex rel. Thornton v. Hay, 462 P.2d 671, 679 (Ore. 1969). ‘‘Confusion’’ of dedication and prescription criticized, Comment, 33 Yale L.J. 329 (1923). Distinction also drawn in Postv. Pearsall, 22 Wend. 425, 444 (N.Y. 1839). l2Cf, Valentine v. City of Boston, 39 Mass. (22 Pick.) 75 (1839); Seaway Co. v. Attorney Gen- eral, 375 5.W. 2d 923, 929-930 (Tex. Civ. App. OCTOBER 1977 1964); State ex rel. Thornton v. Hay, 462 P.2d 671, 676 (Ore. 1969}. 134 Cooley’s Blackstone 645 (1899 ed.). 149 Tiffany, Real Property 1854, n. la (1920 ed.). 'SRex v. Hudson, 93 Eng.Rep. 935 (K.B. 1732); Lade v. Shepherd, 93 Eng.Rep. 997 (K.B. 1735) (hereinafter “‘Lade’’). l6Rugby Charity v. Merryweather, 103 Eng. Rep. 1049 (K.B. 1790). 7Rex v. Lloyd, | Camp. 260 (K.B, 1808); Rex v. Barr, 4 Camp. 16 (K.B. 1814); Poole v. Hus- kinson, 11 M.& W. 827 (Ex. 1843); Reginav. East Mark, 116 Eng.Rep. 701 (1848); Bateman v. Bluck, L18 Eng.Rep. 329 (1852); Regina v. Broke, 1 F.& F. 514 (Nisi Prius 1859); Vernon v, Vestry of St. James, Westminster, 16 Ch.D. 457 (1880). 1895 U.S. (12 Wheat.) 582 (1827) (hereinafter ““McConnell’’). 209 ees of Lexington to convey to him a certain lot, on which was a large spring. Plaintiff was the heir of his de- ceased brother, whom healleged had been granted the lot. The evidence was contradictory as to whether a grant had ever been made; an entry in the town’s ill-kept records indicated there had been a grant, but oral testimony dis- puted its accuracy. The public had al- ways used the spring as if it were the property of the public. Chief Justice Marshall resolved the dispute in these words: **,.. The reasonableness of reserv- ing a public spring for public use; the concurrent opinion ofall the set- tlers, that it was so reserved; the uni- versal admission of all, that it was never understood, that the spring lot was drawn by any person; the early appropriation of it to public pur- poses; the fact that James McCon- nell actually claimed a differentlot, added to the length of time which has been permitted to elapse, with- out any assertion oftitle to this lot, are, we think, decisive against the appellant. ’’!9 Barclay v. Howell,?° the Pittsburgh waterfront case, was decided by the Supreme Court after the McConnell decision. In this case, the Penn family’s attorney, Tench Francis, had autho- rized George Woods to survey the town of Pittsburgh for immediatesale. The survey, completed in 1784,left a strip of land between the north bank of the Monongahela River(nearits con- fluence with the Allegheny River) and the southerly line of a row of lots. In this space the surveyor had designated ‘““Water Street’’ but had neglected to give the street a specific southerly boundary. The plaintiff claimeda lot lying between Water Street and the River under a grant from the town pro- prietors made in 1814 to one Wilson. The defendants alleged that the entire strip from the northerly boundary of Water Street to the River had been dedicated to public use.2! The Court concluded that the lapseofthirty years, the public use during the period, and the need of the public for the land (for access to the river), all militated in fa- vor of the public. Significantly, the Court added: ‘In some cases, a dedication of property to public use, as, for in- stance, a street or public road, where the public has enjoyed unmolested use of it for six or seven years, has been sufficient evidence of dedica- tion.... “If it were necessary, an unmo- lested possession for thirty years would authorize the presumption of a grant. Indeed, under peculiarcir- cumstances, a grant has been pre- sumed from a possession less than the numberof years required to bar the action of ejectment, by the stat- ute of limitations. ’”22 Cincinnati v. White,*5 decided with Barclay in 1832, is known best for hav- 197d. at 586. 2031 U.S. (6 Pet.) 498 (1832) (hereinafter “ Barclay’’). 27a. at 501-502, 512. 210 27d. at $12-513. 2331 U.S. (6 Pet.) 431 (1832) (hereinafter *‘Cincinnati’’). LOS ANGELES BAR JOURNAL ing rejected the argument that because the public is not a proper grantee,at- tempted dedications to public use are ineffective. But of interest here are the several unequivocal statements that support the doctrine of “‘implied’’ ded- ication as it was enunciated by the Gion court in 1970. A plan for the town of Cincinnati had been madeand ap- proved by the town proprietors in 1789. It designated the land lying be- tween Front Street and the River, which land included the property here in dispute, as a commondedicated to public use. Plaintiff’s lessor traced his title to a 1791 grant from one of the original town proprietors.74 Although the Court concernsitself primarily with questions such as the authority ofthe town proprietors to dedicate land while they possessed but an equitable title (the Congressional patent was notis- sued until 1794), its discussion of dedi- cation generally is noteworthy. The Court relies on the 1735 English case of Lade v. Shepherd,*5 (elsewhere re- ferred to, apparently erroneously, as the “earliest reference to dedica- tion’’)?8 for the proposition “that no deed or writing was necessary to con- stitute a valid dedication of the ease- ment.’”2? The criticism that Gion worked a radical change in the law of dedication is belied by the discussion that follows the Cincinnati Court’s analysis of Lade. The Court first cites with ap- proval Jarvis v. Dean,?8 in which it was ruled that although the roadway in that case had been used by the public only four or five years, nonetheless the jury was entitled to presume that the use was pursuant to an intent of the landowner to dedicate. When the pub- lic user had been shown, the Court ob-: served, ‘“‘the mere naked fee of the land remained in the owner of the soil... .”’ The Court concludes the discussion with this statement: “There is no particular form or ceremony necessary in the dedica- tion of land to public use. All thatis required is the assent of the owner of the land, and the fact of its being used for the public purposes in- tended by the appropriation. This was the doctrine in the case of Jarvis v. Dean, already referred to, with re- spect to a street; and the samerule must apply to all public dedications; andfrom the mere use of the land, as public land, thus appropriated, the assent of the owner may bepresumed. In the present case thére having been an actual dedication, fully proved, a continued assent will be presumed, until a dissent is shown; and this should be satisfactorily es- tablished by the party claiming against the dedication. In the case of Rex v. Lloyd, | Camp. 262, Lord El- lenborough says, if the owner of the soil throws open a passage, and nei- ther marks by any visible distinction that he means to preserve all his rights over it, nor excludes persons from passing throughit by positive 247d at 433-435. 232 Str. 1004. 26Note, 42 Harv.L.Rev. 832 (1929); compare OCTOBER 1977 Comment, 10 Cal.L.Rev. 419, 420 (1922). 2731 U.S. (6 Pet.) 431, 437. 283 Bing. 447. 211 prohibition, he shall be presumed to have dedicatedit to the public.’’®8 Allowing dedication to be presumed from public user, then, is by no means a radical innovation of the law. The 1836 decision in New Orleansv. United States*° was upon a petition by the United States to prohibit New Or- leans from selling certain waterfront lots, alleging the lots to belong to the United States. New Orleans answered that at the time of cession of Louisiana to the United States, the land was not that of the king of either Spain or France but of the inhabitants of New Orleans. In 1724 and again in 1728, maps” were made of the town of New Orleans which designated the disputed prop- erty as a “‘quay,’ a vacant space be- tween the water’s edge and the first row of buildings. (The Court further noted that the term “‘quay”’ was under- stood in all commercial countries to mean a space for the public use as commerce requires.). While Louisiana was chartered to the Western Com- pany, a plan for New Orleans incorpo- rating these maps was adopted and the city was established?! The United States objected that any purported dedication of these lands as a quay was not done in compliance with the laws of France. To this objec- tion the Court responded that it ought to presumein favor of more than one hundred years of public use.°? “Does not this long acquiescence of the monarch, and enjoyment of the property by thecity, afford some evidence of right?... “If a grant from the king were necessary [under French law] to confirm the claim ofthe city, mightit not be presumed, under such circum- stances?’’33 The Court held the lands to have been dedicated to public use, and re- jected other arguments advanced by the Government. It concluded, ‘‘nei- ther the fee of the land in controversy, nor the right to regulate the use, is vested in the federal govern- ment... .’’34 Parenthetically, the New Orleans de- cision is compelling authority for the proposition, yet undeclared judicially in California, that beach and beach-ac- cess lands dedicated undera prior sov- ereign retained their trust character upon cession to the United States.35 Thus dedication by public user alone, though notat all times accepted by all courts,°® had been a prevalent concept in American property law long before the admission of California to 2931 U.S. (6 Pet.) 431, 439 (emphasis added). 3935 U.S. (10 Pet.) 662 (1836) (hereinafter ““New Orleans’’). SUd. at 744-715. 327d at 720. 337d, at 721. 212 347d. at 737. 35See Comment, California Beach Access: The Mexican Law and The Public Trust, 2 Ecol.L.Q. 571 (1972), 38See cases collected at 4 Tiffany. The Lawof Real Property, § 1102 at 339 n. 41. LOS ANGELES BAR JOURNAL the Union.37 Thus too, while in several cases the fact of public user was uti- lized simply to infer an intent to dedi- cate§ or a public acceptance ofan of- fer of dedication,®® in many othersit became as compelling an index of ded- ication as a formal offer to dedicate and a formal acceptance combined.4° The California Doctrine Develops The California cases treating implied dedication are too many to examinein- dividually. For this reason, only certain salient decisions will be discussed. As early as 1854, the State Supreme Court recognized public use as evi- dence from which an intent to dedicate could be presumed in City of San Francisco v. Scott.*) Scott, the agent of Price, had razed a structure on Price’s property after a city ordinance ex- tended Commercial Street through the lands. The lot appeared to be an exten- sion of the street. Despite Scott’s decla- ration that the lot was not to be public until he received compensation, the public used the land four to five months before he obstructed passage. The City then sued him. From this brief period of public use the trial court found that the lot had been dedicated; but the Supreme Court reversed, holding the length of public use too short to warrantinferring an in- tent to dedicate.* In its opinion the Court expoundedthree circumstances from which a dedication could arise: (1) by deed or overt act of the land- owner; (2) by presumption from long- continued public use; and (3) by pre- sumption from the acquiescence of the landownerin the public use. As to the second means, the court wrote that no specified length of use established the presumption of dedication, that in cer- tain cases twenty years had been neces- sary while in others a briefer time had sufficed.43 To raise a presumption of dedication, it was later held that the public use must endure for the period of limitations to recover real prop- erty.44 Smith v. San Luis Obispo,45 decided in 1892, is significant for the proposi- tion that paymentof taxes does not ne- 37Jn addition to the cases discussed above, see, e.g., Valentine v. City of Boston, 39 Mass. (22 Pick.) 75, 81 (1839): “And the general direc- tions, ‘that a way might be acquired by dedica- tion or user, that twenty years’ use of land as a way would raise a presumption that it had been dedicated by the owner to the public for a way, and that forty years ‘use of the land as a way would give the public a right of way overit, are in themselves correct and all that the case re- quired... .’’ (emphasis added). 38B. F. Trappey’s Sons, Inc. v. City of New Iberia, 73 So.2d 423, 424 (1954); Seaway Co.v. Attorney General, 375 $.W. 2d 923, 936 (Tex. Cir.App. 1964); Folkstone Corporation v. Brock- man, [1914] A.C. 388; Poole v. Huskinson, 11 M.& W, 827 (Ex. 1843). OCTOBER 1977 39Eltinge v. Santos, E71 Cal, 278. 282 (1915); Phillips v. Stamford, 71 A, 361, 363-364 (Conn. 1908). See, e.g. Valentine v. City of Boston, 39 Mass. (22 Pick.) 75 (1839); New Orleans v. United States, 35 U.S. (10 Pet.) 662 (1836). 414 Cal. 114 (1854). 427. at 117. 437d at 116. 44See Hartley v. Vermillion, 141 Cal. 339, 348- 349 (1903); Bolger v. Foss, 65 Cal. 250, 251 (1884). 4595 Cal. 463, 468 (1892); accord, Manhattan Beach v. Cortelyou, 10 Cal.2d 653, 670 (1938): Schwerdtle v. County of Placer, 108 Cal. 589, 596 (1895). 213 gate the presumption of dedication from public use, at least whenit is not the entire assessed parcel that has been assertedly dedicated. Schwerdtle v. Placer County: Public Use For The Statutory Period California’s law of implied dedica- tion coalesced in Schwerdtle v. Placer County.4§ Schwerdtle sought to enjoin the county from trespassing on his property, which had been used by the public some thirty-seven years. The trial court ruled that public use for this period as a matter of law effected a dedication and the Supreme Court af- firmed. The high court held that ad- verse use for the period of limitations (five years) established a conclusive presumption of assent in the dedica- tion, and negated any claim that the use was undera license.47 In so hold- ing, the Court analogized to the person who obtains a prescriptive easement; by using land for the prescriptive pe- riod he establishes the presumption of a grant.48 The Schwerdtle court also traced the elements of what the Gion opinion called ‘‘implied in fact’’ dedication. Whena dedication is sought to be es- tablished by use over a short time the actual consent or acquiescence of the landowneris necessary.*° A significant aspect of the opinionis the Court’s approving citation of nu- merous cases and texts holding that public use for the period of limitations establishes the presumption of dedica- tion; no presumption ofa license is em- ployed whatever.5° The 1897 case of People v. Sperry?! was decided in favor of the landowner from a failure of proof of implied-in- fact dedication (i.e., acquiescence). The court held that the defendant’s un- recorded map depicting a street was in- sufficient evidence of an intent to dedi- cate.o2 No question was raised of a dedication arising from public use for the prescriptive period. In fact the Court observed, ‘During all of the time the street was never opened throughoutits length to public use as a street, and the defendants constantly maintained visible obstructions across it.’’53 There was apparently the mini- mum use necessary to ‘“‘accept’’ the de- fendants’ acquiescence, had it existed, for the Court observes that ‘‘while the use by the publicis sufficiently estab- lished, that use was not referrable to any offer of dedication upon the part of the owner. ’’°4 Again in 1903, the Court reaffirmed that a dedication may occur from pre- scriptive public use, holding that public use without objection of the landowner negates any asserted presumption of permissionorlicense. In Hartley v. Ver- 46108 Cal. 589 (1895) (hereinafter ‘Schwerd- tle’’). 47]d. at 593, 596. This statement appears to be the first use in California of the concepts of **ad- verse’ user and license in a discussion of dedica- tion. 48id. at 595-596. 214 49Id at 593. 507d at 594-596. 51116 Cal. 593 (1897). 52fd at 595. 537d at 595-596. 544d. at 595. LOS ANGELES BAR JOURNAL million,the Court wrote: ‘“*Here the finding ts... that for more thanten years last past before the commencementofthis suit the plaintiff has, with the general public, used the said road and highway as a public road and highway, withoutlet or hindrance of any kind, until the erection by the defendantofthe gate upon the third of August, 1899. These findings expressly negate the presumption that the use of the road was by licence or permission, but, on the contrary, as a matter of right and without permission of any one... .”°56 F. A. Hihn Co. v. City of Santa Cruz; Presumption of License as a Divergence From Emerging Law In a paragraph of dictum in 1915, the Supreme Court expressed views of implied dedication at antipodes withits holding in Hartley and in Schwerdtle. In F. A. Hihn Co. v. City of Santa Cruz,57 the Court stated, “‘where land is unenclosed and uncultivated, the fact that the public has been in the habit of going upon the land will ordinarily be attributed to a license on the part of the owner, rather than to his intent to dedicate .. . .’°8 In the support of this proposition the Court ignoredits recent previous holdings and cited only a case digest of the time. That this statement is a dictum is plain from a reading of the very para- graph in which it is found. The City had tried to establish an adverse pos- session, had not met its burden of proof, and had apparentlytried to ar- gue a dedication at the close of evi- dence. The Supreme Court opened the paragraph in which the above-quoted Statement is found with this sentence: “Whetherthe facts shownestablish a dedication of the land to the public use for pleasure grounds is a question that might be dismissed with the simple statementthat the answerdid notset up a dedication and that thefinding in this regard was outside of the issues... .°59 People v. Southern Pacific R.R. Co.,8° decided nine years after Hihn,is noteworthy because, while the evi- dence showed simply that people used the road for various purposes for the statutory period, the Court(citing both Hihn and Schwerdtle) nonetheless held that this evidence was sufficient to sup- port a finding of adverse use, and therefore dedication.§1 Like People v. Sperry,®2 Manhattan Beach v. Cortelyou® was decided ad- versely to the public because of a fail- ure to show an implied-in-fact (acqui- escence) dedication. As in Sperry, the question of whether an implied dedica- tion had occurred by virtue of public use for the prescriptive period did not arise. In fact the city admitted ‘‘that there were comparatively few people along the beach in those early years....’’ Additionally, signs placed 55141 Cal. 339 (1903) (hereinafter ‘Hart- ley’’). 58Jd. at 349. 57170 Cal. 436 (1915) (hereinafter ‘‘Hihn*’). 587d. at 448. OCTOBER 1977 597d. at 447. 6968 Cal.App. 153 (1924). Sl7d, ut 165. 82116 Cal. 593 (1897) (hereinafter “Sperry ‘’). 9310 Cal.2d 653 (1938). 215 near the bathhouse and picnic booths read “‘Private property; permission to pass over revocable at any time.’’64 The Court relied upon the dubious lan- guage in Hihn that public use of prop- erty will ordinarily be attributed to li- cense;® this language, even if it were correct in implied-in-fact dedication cases, is plainly inaptin cases of dedi- cation by prescriptive public user.®§ Union Transportation: Implied-in- Law Dedication Union Transportation Co. v. Sacra- mento®! was thelast principal implied dedication case decided by the Su- preme Court before Gion. It is signifi- cant for its reiteration of the California law of implied dedication, particularly the distinctions between implied-in- fact and implied-in-law dedications. Implied-in-fact dedication occurs, the Court notes, when the owner has long acquiesced in public use of the prop- erty ‘“‘under circumstances which nega- tive the idea that the use was under a license.’*68 Implied-in-law dedication, analogized to the doctrine of prescrip- tion, is said to occur when the public has used the property for a period of more than five years with full knowl- edge of the owner, without asking or receiving permission and without ob- jection being made by anyone. When these elements exist, the court held, ‘‘a conclusive presumption of dedication to the public arises.” Citing O’Banion y. Borba,”a prescriptive easementcase, the Court held that ‘“‘whether the user was adverse is a question of fact to be determined from all of the circum- stances of a case.’! The Court made no no reference to the Hihn dictum that in implied-in-fact cases, public user is “ordinarily”? attributed to a license on the part of the owner. Moreover, one could infer from its reference to O’Banion that the dictum was banished forever, for in that decision the Court dissolved any notion that useris pre- sumed to be pursuantto a license from the owner, even on unenclosed, uncul- tivated lands.72 In conclusion, in Union Transporta- portation the Court held: ‘From these facts, as well as the general appearance,location and ev- ident purpose of the road and bridge it could be inferred either that the landowners intended by acquiescing in their user to dedicate them to the public or that the user was adverse and that it continued so for a period 847d. at 665. 857d. at 668. 66See, e.g. People v. Southern Pacific R.R. Co., 68 Cal.App. 163, 165 (1924); Hartley v. Vermillion, 741 Cal. 339, 349 (1903); Schwerd- tle v. Placer County, 108 Cal. 589, 595-596 (1895). 8742 Cal.2d 235 (1954) (hereinafter ‘* Union Transport'’). 887d. at 240. 897d. at 240 (emphasis added). 216 7032 Cal.2d ““O’Banion’’). 742 Cal.2d at 240-241. 145 (1948) (hereinafter 72Q’Banion at 149-150; see also MacDonald Properties, Inc. v. Bel-Air Country Club, 72 CalApp.3d 693, 701-704 (1977), a prescriptive- easement case, in which the court held that use of another’s property is presumed adverse unless the owner posts permissive-use signs or takes other steps to communicate permission, such as suggested by Civil Code § 1008. LOS ANGELES BAR JOURNAL greaterthan five years.’”73 The Gion Decision andits Aftermath The Supreme Court consolidated for decision Gion v. City of Santa Cruz and Dietz v. King" and decided them February 19, 1970. Gion concerned coastline property in Santa Cruz, and the Dietz dispute involved public rights in Navarro Beach in Mendocino County and a dirt road leading to the beach. Thesignificance of the decision is its restatement of the California law of implied dedication and its emphasis on the particular applicability of the doctrine to shorelineareas. The Court first summarized the two types of implied dedication as they had been expounded in Union Transporta- tion. It then observed thatin the instant case Only adverse user was being urged as a basis for finding implied dedica- tions. Significantly, it added that evi- dence of acquiescence (implied-in-fact dedication) was present in each case, plainly implying that with the given facts an implied dedication could be found under both theories. This obser- vation illuminates the meaning of ‘‘ad- versity”’ as used in implied-in-law ded- ication cases, for “‘adversity’’ here does not denote a character of public use that occurs against the landowner’s wishes.It simply refers to the character of public use when the landowner has inadequately notified the public that he intends to retain his right of exclusive possession. This observation also serves to dis- tinguish that acquiescence whicheffects an implied-in-fact dedication from the permission orlicense that vitiates an implied-in-law dedication. ‘‘Acquies- cence’’ connotes a passive disinterest, whereas the latter concept implies an express assertion both of ownership and tolerance of the public use. (“‘Ac- quiescence’’ may also mean any con- duct evincing an intent to dedicate that falls short of express dedication.) Granting a permission or a license is an affirmative act and is best accom- plished by the legislatively prescribed methodsof posting the property orre- cording a notice of consent to public use.75 The Gion decision treated three questions: ““(1) Whenis a public use deemed to be adverse? (2) Must a litigant representing the public prove that the ownerdid not granta license to the public? (3) Is there any differ- ence between shoreline property and other property?’’76 As to the first question, the Court held thatit is merely necessary that the public has used the land as it would use public land of the same character (e.g., park lands, beaches, roads), and that its use was without objection orin- terference for more than five years. Whenthese facts have been shown, no additional finding of “‘adversity’’ is necessary. ’7 Union Transport at 241. M4Hereinafter ‘Dietz."" TCiv. Code §§ 1008, 843. OCTOBER 1977 78Gion v. City of Santa Cruz, 2 Cal.3d 29, 39 (1970). TI. 217 The second issue arose, the Court noted, because of the language from Hihn: ’ “(Where land is unenclosed and uncultivated the fact that the public has been in the habit of going upon the land will ordinarily be attributed to a license on the part of the owner, rather than to his intent to dedi- cate. ’’78 The Court observed that such a view had already been rejected in O’Banion, and held that no reason existed to pre- fer landowners in implied dedication cases over those in prescriptive-ease- ment cases. The questionis one of fact: ‘““We will not presume that owners of property today knowingly permit the general public to use their lands and grant a license to the public to do so. For a fee owner to negate a finding of intent to dedicate based on uninterrupted public use for more than five years, therefore, he must either affirmatively prove that he has granted the public a license to use his property or demonstrate that he has made a bonafide attemptto pre- vent public use.’’79 With respect to the Hihn language, the Court could have added, of course, that the statement was dictum, and that Hihn was, unlike Gion, a case of implied-in-fact (acquiescence) dedica- tion. In discussing the third question, the Court cited California’s long continued policy of encouraging public use of and access to the shore. Thus, it concluded, ‘(The ] intensification of land use combined with the clear public pol- icy in favor of encouraging and ex- panding public access to and use of shoreline areas leadsus to the con- clusion 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. ’’80 In the course of its decision the Court made several other observations that are useful in analyzing future cases: L. “Evidence that the users looked to a governmental agency for mainte- nance of the land is significant in es- tablishing an implied dedication to the public. 8} 2. Diverse groups of people must have used the land, and not simply ‘“‘a limited and definable number of persons... .”8? 3. The mere fact that public use fluctuated seasonally does not negate an implied dedication.88 4. As discussed above, once five years of public use has been shown,the landowner must then affirmatively prove he has granted the public a li- cense or that he has made ‘‘signifi-. cant’’ efforts to prevent the use. If he has made no ‘‘significant”’ efforts, “‘it will be held as a matter of law that he intended to dedicate the pro- 78F_ A. Hihn Co. v. City of Santa Cruz, 170 Cal. 436, 448 (1915). 79Gion v. City of Santa Cruz, 2 Cal.3d 29, 40- 44 (1970). 50fd. at 43. 218 8lid, at 39, 827dat 39. 83 Jd. at 40. LOS ANGELES BAR JOURNAL perty....°’34 5. Whether people affirmatively be- lieved the land to be public is not as significant as whether they used it as if it were, or ignored claimsof the true owner.85 6. “Ifa constantly changing group of personsuse [sic] land in a public way without knowing or caring whether the owner permits their presence, it makes no difference that the owner hasin- formed a few personsthat their use of the land is permissive only. ’’86 7. Once five years of public use have occurred, no subsequent acts of the owneror his successor can rescind the dedication.8” Interestingly, overlooked by the Gion court and by the critics who have charged it with tampering with the rules of real property law wasa line of cases holding that public use is pre- sumed adverse and not permissive. In 1951, Justice Peters had written in an implied dedication case: ‘There is a general presumption that a use by other than the owneris adverse and not permissive. While this presumption is not as strong when the land is open and unculti- vated and remote, as whenit is en- closed, cultivated and developed [citing Hihn, inter alia] the pre- sumptionexists in eithercase.’’8 Gion Criticized The Court’s holding in Gion was criticized principally on two policy grounds: inequity to the hospitable landowner and the threat of wide- spread closings of hitherto open land. It was argued that a landowner who had permitted the public to use coastal and other unimproved property under the assumptionthat he wasnotlosing his property rights should not be penal- ized for opening his land. The critics predicted that prudent landowners would, as a result of the decision, close their land to the public, and that by the summer of 1971 some nine million acres of land would beclosed.89 The decision was also criticized on legal grounds for having assertedly changed the law of implied dedication in California. The two principal as- serted criticisms were: (1) Gion abol- ished a presumption that public use ts by permission of the landowner and substituted for it a contrary presump- tion and (2) it eliminated adversity as a necessary elementof the principle of 847d atl. 85d. at 44; compare id. at 39. 867d. at 44. 87id. 88People v. Sayig, 101 Cal.App.2d 890, 897 (1951); cf. Laguna Beach v. Consolidated Mig. Co., 68 CalApp.2d 38, 44-46 (1945). OCTOBER 1977 89Weekly Newsletter No. 15 from the office of Senator Robert J. Lagomarsino (May 7, 1971). Cf. Staff analysis of Senate Bill 504, Assembly Committee on Planning and Land Use (June 8, 1971), concluding that the bill would have only an ‘‘indirect’’ effect on incentive to allow the public use of land: ‘Good will and public reta- tions will remain the major factor in allowing the public use of private lands for recreational pur- poses.”’ 219 implied dedication.The charges have been met and adequately disproved elsewhere,9! and will thus be but briefly discussed here. Gion did not overrule a presumption of permissive use. First, the statement in Hihn that public use of unenclosed landsis ordinarily to be attributed to a license was, as we have shown above, pure dictum. Moreover, Hihn was a case of implied-in-fact dedication; Gion was an implied-in-law dedication decision. Thirdly, the critics ignore the line of cases holding that public useis presumed adverse.9? The assertion that the court substi- tuted a presumption of adverse useis without sense. First, the Court ex- pressly stated that the question of the character of public use is one of fact and to be resolved without the use of presumptions.9° Secondly, in the na- ture of things public use is either pursu- ant to a license or not;if not it is said to be ‘‘adverse.’’ Adversity is not some- thing that is proved by certain facts; it is a state that exists when certain facts—permission or a license—do not exist. Adversity is then akin to the con- cept of malice in the criminal law of homicide; malice is simply a state that is said to exist when mitigating circum- stances such as heat of passion are not present. It is of no little significance too that evidence ofa license, orof ‘‘sig- nificant efforts’’ to halt public use, is singularly within the possession of the putative landowner. The criticism that the Gion court abolished the requirement that the public use be adverse is similarly with- out reason. Whatthe court held was that when the public has used private property as it would have used public property for a five year period, without asking or receiving permission to do so, a separate finding of adversity is un- necessary.°4 Again, adversity is that character of public use when the public (1) has used the property as it would use public property, and (2) has nei- ther asked nor received permission to do so. A separate finding of adversity would of course be superfluous; requir- ing it would only risk confusing theliti- gants and the trial courts into thinking another elusive element must be proved. Armstrong, Gion y. City of Santa Cruz: Now you Own It~Now You Don't; or The Case of the Reluctant Philanthropist, 45 L.A. Bar Bull. 529, 545 (1970); Berger, Nice Guys Finish Last—At Least They Lose Their Property: Gion v. City of Santa Cruz, 8 Cal. Western. L.Rev. 75 (1971); Comment, This Land Is My Land: The Doctrine ofImplied Dedication andits Application to Cali- fornia Beaches, 44 Cal.L.Rev. 1092, 1103 (1971); Comment, Public or Private Ownership of Beaches: An Alternative to Implied Dedica- tion, 18 U.C.L.A. L. Rev. 795, 809 (1971); Note. Californians Need Beaches—Maybe Yours, 7 San Dicgo L.Rev. 605, 614 (1970). 220 ®1Gallagher, Jure and Agnew, Implied Dedica- tion: The Imaginary Waves of Gion-Dietz, 5 Sw. U. L.Rev. 48, 63-82 (1973). 92See, e.g., People v. Sayig. 101 Cal.App.2d 890, 897 (1951); cf. Laguna Beach v. Consoli- dated Mtg. Co., 68 Cal.App.2d 38, 44-46 (1945). BGion at 41. 94gel at 39. LOS ANGELES BAR JOURNAL The Post-Gion Cases Richmond Ramblers Motorcycle Club v. Western Title Guaranty Co.,9° de- cided in 1975, was the next reported implied-dedication decision after Gion. The case was brought by a motorcycle club whose members(and occasionally the general public) used the inland property for motorcycle riding and or- ganized events. The Ramblers’ club- house stood on adjoining property. The club alleged both an implied dedica- tion to the public as well as a prescrip- tive easementin itself. The court found substantial evidence that the club’s and the public’s use of the subject property was by permission of the landowners, and held, therefore, that no implied dedication had resulted. This evidence included club members’ awareness that the property was privately owned, that their right to use it could be re- voked, and that they had the ‘‘con- sent”’ of the ownersto use the land.96 Although the appeal was plainly de- cided at this point, the court went on to hold “‘that the rules and rationale of Gion extend no further than to roads, beaches and shoreline areas and that they are inapposite to the open field and hillsides of the inland areas of the defendants in the case at bench.’’87 In so holding, the court apparently over- looked the following language from Gion: ‘“*Most of the case law involving dedication in this state has con- cerned roads and land bordering roads. [Citations.]... The rules gov- ering implied dedication apply with equal force, however, to land used by the public for purposes other than as a roadway.In this state, for in- stance, the public has gained rights, through dedication, in park land [ci- tations], athletic fields [citations], and in beaches{citations}. ‘Even if we were reluctant to ap- ply the rules of common law dedica- tion to open recreational areas, we must observe the strong policy ex- pressed in the Constitution and stat- ues of this state of encouraging pub- lic use of shoreline recreational areas. "98 The Richmond court also overlooked the plain language of an earlier appel- late decision: ‘‘Naturally, more evidence of an intent to dedicate to public use is re- quired in an open country where the public has been in the habit of going at will, without any clearly defined roadways, than in the case of a 9547 Cal.App.3d 747 (1975) (hereinafter “Richmond’’). 96Jd at 753-754. 977d at 759, BGion at 4{-42 (emphasis added). Richmond too seemed to have misupprehended the differ- ence between implicd-in-fact and implicd-in-iaw dedication. It noted that Gion stated that the question of acquiescence of the landowner wis nat before the court. and assumed that this state- OCTOBER 1977 ment meunt the partics had agreed that the use had been adverse, Richmond Ramblers Motor- eycle Club v. Western Title Guaranty Co.. 4? CalApp.3d 747. 758 (1975). This of caurse was not what was meunt. On the contrary, the ques- tion of the churacter of the use was central to the Gion decision, and one principal holding of the case concerned whether a finding of adversity was necessary to suppart a judgment of implied- in-law dedication. Gion v. City of Santa Cruz. 2 Cal.3d 29. 39 (1970). 221 boardwalk. 99 In the most recent California deci- sion treating implied dedication, County of Orange v. Chandler-Sher- man Corp.,'©the issue was the quan- tum of use needed to support a finding of implied dedication. Observing that rarely did more than 12 to 15 people at one time use the 2,000-foot beach, the court upheld the trial court’s finding that insufficient public use had occur- red. “T]he use must be substantial rather than casual and even though the use need not be otherwise ad- verse to the interests of the owner, the scope and continuity of the use must be great enoughto clearly indi- cate to the ownerthat his property is in dangerofbeing dedicated. ’”!0! The Legislative Response When the California Supreme Court made an affirmative response to the ‘felt necessity’’ for public access, its decision was promptly met with pre- dictions of disaster and legislative ef- forts—successful in part--for repeal. The story is a microcosm of environ- mental issues. It is an illustration of the problems that arise in legislatures whentheirresistible force of public ne- cessity meets the immovable object of an alleged vested right. Initial reaction to the cases was, in many quarters, one of horrified nega- tivism. The holding caused an immedi- ate uproar on the part of agricultural, forest, and other holders of unim- proved land held in large tracts which, for reasons of hospitality, economy, public relations or simply impossibility, had historically been opened to the public. It led to the introduction of a number of bills designed to remedy what were alleged to be the drastic consequences of the decision. The court’s holding wascriticized princi- pally on two grounds: inequity to the hospitable landowner and the threat of widespread closings of hitherto open land. It was argued that a landowner who had permitted the public to use coastal and other unimproved property under the assumption that he is notlos- ing his property rights should not be penalized for opening his land to the public. Prospectively, it was alleged that prudent landowners would, as a result of the decision, close their land to the public, and that by the summer of 1971 some nine million acres of land would be closed. }02 Legislative responses took roughly four forms: 1. Proposals for outright repeal of the decision, both prospectively and retroactively, by establishing a pre- sumption against implied dedication in all areas where there had been no im- 98.aguna Beach v. Consolidated Mtg. Co., 68 Cal.App.2d 38, 44 (1945). 1005 4 CaLApp.3d 561 (1976). ll7d. at 565. lW2Weekly Newsletter No. 15 from the office of Senator Robert J. Lagomarsino (May 7, 1971). Cf. Staff analysis of Senate Bill 504, As- 222 sembly Committee on Planning and. Land Use (June 8, 1971), concluding that the bill would have only an “‘indirect”’ effect on incentive to al- low the public use of land: “Good will and pub- lic relations will remain the major factorin al- lowing the public use of private lands for recrea- tional purposes.” LOS ANGELES BAR JOURNAL provementat public expense.!09 2. Legislation to repeal the doctrine prospectively, thus permitting the es- tablishment of public easements al- ready in existence (so long as witnesses and proof remained available) butter- minating the operation of the doctrine for future purposes. 14 3. Legislation to provide protection for landowners who madetheir prop- erty available to the public by more specific recordation and notice provi- sions.105 4. Legislation sponsored by the land title companies to cope with the me- chanical problemsarising from the de- cision, i.e., identification of the public agency which would administer and maintain the public easement, a re- verse prescription provision, and au- thority for a landownerto quiettitle.0¢ All but the third alternative met with early attack from representatives of conservation organizations. A consensus approach to the Gion/ Dietz decisions rapidly developed. On March 9, 1971, fourteen legislators led by Senator Robert Lagomarsino intro- duced Senate Bill 504, a vehicle which the lead author described as ‘‘a com- posite approach to resolving the issues of public rights and private property rights ... .”” Lagomarsinosaid, “Oneof the things that the Gion case did was to punish these small “good guys,’ the ones who had been making their land available to public use over the years, and reward the ‘bad guys’ who had fenced off their lands. With this bill, we hope to give assurance to the ‘good guys’ that they cancontinueto allow the public to use their lands without thereby losingtitle. ’’!07 The bill, introduced at the request of the California Chamber of Com- merce,!98 quickly won the support of the California Farm Bureau Federa- tion and numerousother organizations representing agricultural, forest and land title interests. But even the relatively modest pro- posal of Senate Bill 504 for prospective abrogation of the doctrine was criti- cized in that, ‘<... as a practical matter the bill results in the loss of rights that have already vested in the public. Since no public use after the effective date of the act would count for dedication purposes, as the years pass there will be less and less evidence available to prove pre-existing public use. ”’ It was suggested, for instance, that a landowner intent on denying public rights could accomplish it by allowing public use until no witnesses were left to testify.1!0 Under continued pressure, the bill was amended in the Assembly to be inapplicable to any coastal prop- 103Senate Bill 1204 (1971 Reg. Sess.). \04Senate Bill 504 (1971 Reg. Sess.). 105Assembly Bill 2885 (1971 Reg.Sess.). W6Senate Bill 1132 (1971 Reg. Sess.). 107Press Release No. 18, Office of State Sena- tor Robert J. Lagomarsino, March 9, 1971. OCTOBER 1977 108Enrolled Bill Memorandum to Governor, October 7, 1971. 8Letter, Robert J. Lagomarsino to Hon. Ronald Reagan, September 27, 1971. ‘101etter, Reverdy Johnson, Attorney at Law, to George Miller III, Administrative Assistant to Senator Moscone (March 30, £971). 223 erty for 1,000 yards inland. The recor- dation approach was further adopted in part by permitting use of property after the effective date of the bill with- out the acquisition of rights in the pub- lic, provided the owner did any ofthe following: 1. Posted specified signs or pub- lished a specified statement. 2. Recorded a specified notice. 3. Entered into a written agreement with any federal, state, or local agency providing for the public use of the land, 111 Implied dedication remained availa- ble where a governmental entity ex- pended public funds on visible im- provements on oracross the lands orin the cleaning or maintenance related to public use of the lands in such a man- ner that the owner knew, or should have known,that the public was mak- ing such use of his land.!!2 In this form, Senate Bill 504 was signed into law as Civil Codesection 1009. Although the coastline exception in the bill caused withdrawal of support of the California Land Title Associa- tion,!13 apparently on the groundthat the classification established would be held unconstitutional, a subsequent opinion of the Legislative Counselaf- firmed the validity of the distinction. !14 The ‘‘public improvement excep- tion’’ under which implied dedication remains was designed to maintain a useful and historical purpose for the doctrine. Since early times in Califor- nia, this theory has served to protect the public from unscrupulousreal es- tate developers who would subdivide land and tell prospectice buyers that non-existent public parks or streets were to be located in the development. Whenthe subdividers later tried to put the alleged “‘park land”’ to other uses, the court would hold that notwith- standing recordtitle, the land had been impliedly dedicated as a_ public park.!!5 Representationsto theeffect that roads would be public streets were dealt with similarly,!!® and the doc- trine has been invoked to preserve remedies against local governmentin tort liability.}!7 Other responses came pursuant to the procedural problemsthat this mat- ter raised. For instance, the Office of the Attorney General supported As- sembly Bill 1446 by then Assembly- man John Dunlap. This bill would MICiy. Code § 1009 (f). M2Ciy. Code § 1009 (d). 113.$¢¢ memorandum from William G. Barker and Peter J. Laden, Law Clerks, to Robert G. Rove, Vice President, Assistant Senior Title Counsel, and John F. Forward HI, Associate Counsel, (August 19, 1971). 114]epistative Counsel Opinion No. 17692 (August 3. 1971). USS¢e Archer v. Salinas City, 93 Cal. 43 (1892); Phillips v. Laguna Beach Company, 190 Cal. 180 (1922); Morse v. E. A. Robey and Com- 224 pany, 214 Cal.App.2d 464 (1963); Morse vy. Miller, 128 Cal.App.2d 237 (1954); Washington Boulevard Beach Companyv. Los Angeles, 38 Cal.App.2d 135 (1940). 6See, e.g, Larkey v. City of Los Angeles, 70 Cal. App. 635 (1925). 17Thus in Union Transportation Companyv. Sacramento County, 42 Cal.2d 235 (1954), it was held that a cause of action existed against the county when a bridge collapsed under a truck because the bridge had been impliedly dedicated to public use. LOS ANGELES BAR JOURNAL have provided an orderly procedure for dealing with dedication by requir- ing multiple agencies to hold a public hearing and to post notices and adver- tise the hearing before granting ap- provals and permits for development adjacent to the Pacific Ocean. Thus, the public interest would have been protected by adequate notice and op- portunity to be heard. Recordation as the sole means of protection was discarded relatively early in response to advice from the State Chamber of Commerce that it did not adequately protect the land- owner whofailed to record all possible public uses, and in fact that land adja- cent to lands for which recordation had been made wouldstill be subject to the threat of implied dedication.1}8 Notwithstanding the pressure on the Legislature to repeal G/on, the effect of Civil Code section 1009 is an affirma- tion of the doctrine and ofthe strong public policy of this State aimed atin- suring individuals access to coastal areas, 119 Since the Gion decision, the Legisla- ture has consistently reaffirmed the doctrine and the policy enunciated by the Court}2° the most notable example being the recently enacted California Coastal Act of 1976,/21 which was re- sponse to the people’s mandate when they enacted the California Coastal Zone Conservation Act of 1972122 through the initiative process. The new coastal act specifically reaffirms public rights by virtue of implied dedication and provides: “Development shall not interfere with the public’s right of access to the sea where acquired through use or legislative authorization, includ- ing but not limited to the use of dry sand and rocky coastal beaches to the first line of terrestrial vegeta- tion, 77125 The Approach of Other States to Public Rights in Shoreline Areas The problems of growing urbaniza- tion pointed out in Gion have been dealt with far more drastically in other States. A Texas appellate court applied the implied dedication doctrine to uphold a public easement to a Gulf Coast beach six years before the California court’s decision in Gion, holding that, “*...the act of throwing open property to the public use without any other formality is sufficient to es- tablish the fact of dedication to the public... .""1%4 \8Letter, Larry Kiml, State Chamber of Com- merce, to R. Frederic Fisher, Legal Committee, Sierra Club, February 7, 1971. 8Gion at 42-43. 120See, e.g., 1975 Cal. Stats., ch. 54, § 2 and 1974 Cal. Stats. ch. 1484. § 4, which mandate that public right by reason of implied dedication be assessed prior to the expenditure of any funds for park acquisition. Govt. Code § 66478.11 re- OCTOBER 1977 quires that all subdivision maps provide access to land below the ordinary high water mark. Pub. Res, Cade § 6210.9 provides methods for acquir- ing access to tide and submerged lands. 1211976 Cal. Stats. chs. 1330, 1331 and 1441. 122Pub. Res. Code §§ 27000 ef seq. 23Pub. Res. Code § 30211. 24Seaway Co. v. Attorney General, 375 S.W.2d 923, 929-930 (Tex. Cir. App. 1964). 225 The Hawaii Supreme Court has up- held beach access based on ancient na- tive use,!25 and has held that the royal patents granted to private landowners ‘ma ke kai’’ (along the sea) carried with them title only to the debris or vegetation line of the shore, rather than to the more waterward line of meanhigh water.176 Perhaps more far-reaching was the decision of the Oregon Supreme Court, which rejected as inadequate the rules of implied dedication and prescription in favor of a uniform rule applicableto all the ocean front lands of the state based on the old English doctrine of custom. This decision gave the public rights to all of the dry-sand area of Oregon’s beaches.!27 It is interesting to conjecture on the possible results in California if this doctrine had been ap- plied. Application of Indian custom would conceivably have opened up beaches and foreshore for all 1,051 miles of coastline. Adoption of Mexi- can law and custom would apparently have increased public ownership up to the line of ‘“extraordinary,’’ rather than “mean,” high tide.128 Similarly, Spanish law had previously given ev- eryone the right to ‘‘fish and erect a cottage for shelter.’’!29 Conclusion Examining restrictions placed upon property rights as early as the twelfth century, Professor Richard Powell has concluded that the limits on property use become more circumscribed ‘as neighbors gain nearness.’’ Powell points out that with the growth of ur- banization, the police power has neces- sarily grown,at the expenseofthe pri- vate landowner, to encompassthe doc- trines of zoning, nuisance, redevelop- ment, and other principles affecting the use of private property.!9° Had Gion truly expanded the doctrine of implied dedication, then it very likely would have been found constitutional none- theless. But contrary to the then-prevalent belief nurtured byits critics, Gion was not a radical departure from existing law. One ofthe law’s oldest principles is set forth in the Institutes of Justinian: ‘By naturallaw itself these things are the cammon property of all: air, running water, the sea, and with it the shores ofthe sea.’’191 . The law has suffered ownership of many classes of things, even human life, but it has rarely permitted such ex- clusive dominion overthe shores ofthe 125Palama v. Sheehan, 440 P.2d 95, 97-98 (Hawaii 1968). 126Application of Ashford, 440 P.2d 76 (Ha- waii 1968). {27State ex rel Thornton v. Hay, 462 P.2d 671, 679 (Ore. 1969). The ‘‘dry sand area’’ was de- fined by the court as that shore between mean high tide and thevisible line of vegetation. /d, at 672-673. 28Valentine v. Sloss, (1894); Hihn at 443. 103 Cal. 215, 219 226 1293 Kent, Commentaries on American Law 342 (Da Capo ed. 1971). 139R, Powell, Property Rights and Civil Rights, 15 Hastings L.J. 135 (1963); see Berman v. Parker, 348 U.S. 26 (1954); Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Ayres y. City Council of Los Angeles, 34 Cal.2d 31 (1949), 13st. Justinian, Bk. 2, Tit 1. § 1. LOS ANGELES BAR JOURNAL oceans and inland waters. For what person lacking education in the niceties of law really expects that he may re- duce a portion of shoreline to his exclu- sive possession? A beach.or marsh or mud flat can be held exclusively only with great difficulty, because the waters that formed it erode and re-shape it CC)Se OCTOBER 1977 more quickly and violently than any other landform is re-shaped, except by seismic disturbances. By the sameto- ken, who hasnotfelt the innate sense that everyone may use the shores and beaches? The Gion decision was simply a modest attemptto protect that expec- tation. 227 1970 HI- JINKS eS ‘Break a Le -O/- ‘Here Lomes the Cast RESERVE THE DATE: FRIDAY - DECEMBER 16, 1977 6:00 P.M, BEVERLY WILSHIRE HOTEL CERTIFICATE OF MAILING I am and wasatall times herein mentioned over the age of 18 years and not a party to the action in which this service is made. Atall times herein mentioned I have been employed in the County of Los Angeles in theoffice of a memberof the bar of this court at whose direction the service was made. My business addressis 225 S. Lake Ave., Suite 1400, Pasadena, California 91101. On May16, 2016, I served an executed copy of the Appendix of Bar Journal Articles on Support of Answer Brief on the Merits of Richard Erickson, Wendie Malick, Richard B. Schroder, and Andrea D. Schroder Pursuant to the court’s e-Submissions procedures, a true and correct copy was uploaded through their on-line system. Theoriginal and eight copies were deposited in the facility regularly maintained by Federal Express, in a sealed envelope with delivery fees fully provided for and addressedas follows Clerk of the Supreme Court Supreme Courtof California Earl Warren Bldg. - Civic Center 350 McAllister Street, Ro 1295 San Francisco, CA 94102-4797 I caused such envelope with postage thereon fully prepaid to be placed in the U.S. mail at Pasadena, California. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. It is deposited with U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of a party served, service is presumedinvalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. Court of Appeal Second District, Div. 3 Ronal Reagan State Building 300 So. Spring Street 2>4 Floor, North Tower, Los Angeles, CA 90013 Superior Court of Los Angeles Hon. Malcolm Mackey, Dept. 55 111 No. Hill Street Los Angeles, CA 90012 June S. Ailin, Esq. ALESHIRE & WYNDER, LLP 2361 Rosecrans Ave., Ste 475 El Segundo, CA 90245 Tel (310) 527-6660 * Fax (310) 532-7395 E-mail: jailin@awattorneys.com Attorney for Plaintiffs Jaime A. Scher and Jane McAllister Bennett Kerns, Esq. LAW OFFICES OF BENNETT KERNS 2001 Wilshire Boulevard, Suite 200 Santa Monica, CA 90403-5789 Tel (310) 452-5977 + Fax (310) 828-2146 E-mail: kernslegal@yahoo.com Attorney for Defendants John Burke, Germaine Burke and Bennett Kerns, trustee of the A.S.A. Trust, Dated June 28, 2005 Robert S. Gerstein, Esq. LAW OFFICES OF ROBERTS. GERSTEIN 12400 Wilshire Blvd., Ste. 1300 Los Angeles, CA 90025 Telephone: (310) 820-1939 Facsimile: (310) 820-1917 E-mail: robert.gerstein]1@verizon.net Attorney for Defendants John Burke, Germaine Burke and Bennett Kerns, trustee of the A.S.A. Trust, Dated June 28, 2005 Wendy Cole Lascher, Esq. FERGUSON CASE ORR PATERSON 1050 South Kimball Road Ventura, CA 93004 Telephone: (805) 659-6800 Facsimile: (805) 659-6818 E-mail: wlascher@fcoplaw.com Attorney for Defendant Gemma Marshall Richard I. Arshonsky, Esq. Jason J. Jarvis, Esq. LEVINSON ARSHONSKY _ & KURTZ, LLP ~ 15303 Ventura Blvd., Suite 1650 Sherman Oaks, CA 91403 (818) 382-3434 * Fax (818) 382-3433 rarshonsky@laklawyers.com Attorneys for Defendants, Appellants, and Cross-respondents Richard Erickson, Wendie Malick, Richard B. Schroder, and Andrea D. Schroder I declare under penalty of perjury underthe lawsof the State of California that the above is true and correct and, that I am employed in the office of a memberof the bar of this court at whose direction the service was made. Executed on May 16, 2016 at Pasadena, California. otanarntil LORRAINEV. BILLE Bee ee Ber a