California Surveyors Forums

An interesting decision from the California Court of Appeal from late last year; there is now a split of authority as to whether prescriptive rights ever result from public use of any street after 1972.

Now on appeal to the State Supreme Court.

Lots of potential implications with that decision. There's a big difference between stating that prescriptive rights can't ripen if someone is using a trail across someone's property, but to apply that to any use, such as streets, water lines, and sewer lines that are being maintained by a public agency is a stretch. Obviously, said public agencies should have obtained easements for those improvements, but I know of many cases where the easements were never finalized for various reasons.

Civil Code section 1009 (d), was not discussed in that case. It covers dedkad's examples of public agency uses/maintenance:

"(d) Where a governmental entity is using private lands by an expenditure of public funds on visible improvements on or across such lands or on the cleaning or maintenance related to the public use of such lands in such a manner so that the owner knows or should know that the public is making such use of his land, such use, including any public use reasonably related to the purposes of such improvement, in the absence of either express permission by the owner to continue such use or the taking by the owner of reasonable steps to enjoin, remove or prohibit such use, shall after five years ripen to confer upon the governmental entity a vested right to continue such use."

I have a scenario like this now. Major city street where lands are vested private. How might we clear title?

Seems to me some quitclaim deeds and a record of survey would clean things up. SMA issues?

Input valued and appreciated...

LS_8750 wrote:I have a scenario like this now. Major city street where lands are vested private. How might we clear title?

Seems to me some quitclaim deeds and a record of survey would clean things up. SMA issues?

Input valued and appreciated...

If agency wants the road in fee, then you could do a deed and there would be no SMA issues because conveyances to or from a government agency are exempt from map act requirements. As an agency, if I was taking it in fee, I would not allow a quitclaim. I would require a grant deed. Most agencies don't want streets in fee, so an easement would be the appropriate mechanism in that case.

The Supreme Court is going to review the case according to the docket.

Scher v. Burke, 240 Cal. App. 4th 381 (2015)

NOTICE: NOT CITABLE—SUPERSEDED BY GRANT OF REVIEW

CERTIFIED FOR PARTIAL PUBLICATION*

Dave Karoly, PLS wrote:The Supreme Court is going to review the case according to the docket.

Scher v. Burke, 240 Cal. App. 4th 381 (2015)

NOTICE: NOT CITABLE—SUPERSEDED BY GRANT OF REVIEW

CERTIFIED FOR PARTIAL PUBLICATION*

I am glad to hear that. Their findings were contrary to other court decisions.

I picked up the case hoping for a diagram but there isn't one.

For those of you who are salivating for the very-soon-to-be-issued CA Supreme Court ruling on the Scher v Burke case, you might ease the hunger pangs a bit by reading this just published appellate level decision on closely related subject matter.
The justices went all out with their concurring and dissenting opinions. Very educational.

http://titleinsurancecenter.com/Title%2 ... rDevel.pdf