Rights of the Public

[Brad Luken]

I work for a municipality that has property that it wants to enclose by a fence. Several portions of this property have been used by the public as parks and by other municipalities and corporations for access for 10+ years. We've maintained these areas but have not tried to limit the access to these certain areas.

My question is can the public obtain some right to a municipality's land? I know adverse possession is not possible and it appears that prescriptive easements, since requiring many of the same elements, are not possible either. But could the public inherit some right to the land or can we fence up our boundary and be done with it. For PR purposes, I believe we would still give access to the areas used as parks, but I know we want to stop non-granted ingress/egress over our land.

Any feedback or insight would be great.

[land butcher]

Seems like the general idea everywhere is FENCE IT OFF.

I remember being able to use the fields and playgrounds at schools in off hours now they all have 8ft fences - not liking it.

[Stephen Johnson]

The standard of precedence is that "adverse possession may not run against the sovereign". This has also been held as to prescriptive and subscriptive rights.

It seems you understand that part of the problem. What you have here is a political and a public perception problem, not a legal one.

[E_Page]

It may depend upon what capacity the city holds the property in and if there was a specific stated purpose for it when it was acquired, or any resolutions since being acquired that dedicated it to a specific purpose or set of purposes.

If it is held in a proprietary manner, such as a municipal DPW equipment and material storage yard might be, then it is not a problem to exclude members of the general public.

If it has always been held in a public trust capacity, such as a park or or road RW, then restricting access and use such that it is consistent with the public use purpose is not a problem, but converting the manner in which they hold the land from public usage to proprietary (open or limited use by general public to exclusion of general public) may be problematic.

The basic principle is that AP and prescriptive easements can work against properties held by public entities in a proprietary manner but cannot work against properties held by public entities in a public trust capacity. I don't know at this time how that is addressed specifically in CA law (except for how it relates to waterways and to the abandonment of public RW), but I would expect that it is addressed somewhere and that there is some sort of procedure that the governing body would have to go through, similar to that for abandoning road RW, to change the manner in which the municipality holds the property. It would probably be found in either the Public Resources Code, the Government Code, or maybe the Streets & Highways Code (RW abandonment procedures are there - perhaps a reference there may lead you to the code applicable to your situation). Better yet, City Counsel should research the matter if they haven't already done so.

If you find the answer, please post it.

[dmi]

Thnis is not a surveying question. it is a legal question. We are not talking about an individual interest attempt to perfect a claim against the people, but rahter the people attempting to prefect a claim against the people. what comes to mind is the PEOPLES' PARK IN BERKELY. As far as I know the people prevailed against themselves and there is a park there to this day when the UC reagents would have prefered office space. they were successful in preventing the public from using a portion of the park as a parking lot. If you resort to self help and fence it off, then you probably will wind up in court. I recommend having a meeting of the stakeholders and making an attempt to arrive at a consensus and then fence off as much as you can.

[Brad Luken]

I sincerely appreciate everyone’s comments and do agree that this is more of a PR/legal issue than a boundary issue. Legal wanted to the survey section to determine where potential boundary conflicts may occur, i.e non-granted access (by us or others), encroachments (private, public, utility), potential rights (public, private). We believe we have identified some issues with the potential conflicts discussed above.

Evan, I believe this property was purchased for wetland mitigation but was never used for that purpose, at least not this portion. For this portion of property there is access and parking for another city’s park and a road name on most internet maps. Google Earth even has street view images on this property. As far as the deed, easement, statute research as gone, I cannot find any document granting an easement or right-of-way here for this use. So this is what caused my original post. Thank you for the guidance into researching the Codes you listed, I will check into those further.

I wanted to ask the issue involving public rights versus public property because we are not a municipality keeping its own residents off the public's property, but rather another municipality that has purchased property within another City and County for our use. This property is an island in another County surrounded by other Cities.

I have a meeting with risk management today, I have a feeling they will continue to allow the use by the public. If anything interesting does arise. I will make sure to post that information.

Thank you all again.

[E_Page]

If the City created the parking area, they may have also created an implied easement for public use.

Oh wait. I just re-read the second paragraph. The access and parking is for ANOTHER CITY'S PARK? That puts a different spin on that part. Was there any agreement between the city governments for that or is it just something that evolved by people just driving across and parking on the property without any indication by signage or improvements that the area was purposed for parking and access to the park?

Is a parking lot there now or are people parking on the bare ground? Is there an improved driveway or road? If so, how long has it been in use and has your city ever taken any action to exclude public use of the area for parking, access or travel?

With the utilities, if there are any encroachments, your city would probably be able to either compel them to move their facilities into the area actually covered by their easements, which are presumably on neighboring properties, or compel them to obtain easements from your city to cover the utilities in place.