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Prescriptive Rights: Recreational Trail Users Win Right to Access Dirt Road

A Nevada County landowner cannot prevent the public from using a dirt road across his property, as public access to the road was established prior to a 1972 state law that greatly limited prescriptive easements, the Third District Court of Appeal has ruled. The public acquired — under the manner outlined by State Supreme Court rulings — the right to walk, run, cycle and ride horses on a dirt road adjacent to a Nevada Irrigation District (NID) irrigation canal on property owned by Jon Blasius, the appellate panel ruled. The court rejected contentions that a public easement would conflict with the NID easement for the canal, and that Blasius and previous owners were prevented by NID from blocking public use of the road. The Rattlesnake Canal, one of many owned by the Irrigation District, was constructed during the 1920s. A nine-foot wide dirt road runs next to the ditch for many miles as the canal snakes through the Sierra foothills. A 240-foot-long section of the canal and adjoining road crosses Blasius' property near Grass Valley. From 1957 to 1981, a previous property owner allowed the public to use the canal road. Through a string of sales, deaths and marriages, Blasius and his wife, Robin, obtained the property in August 1996. They quickly blocked the road with locked gates at either end of their property. Only they and NID have keys, and the landowners denied passage to members of the public. A year later, a group called Friends of the Trails sued Blasius and the Irrigation District. Friends sought to quiet title to a public easement for recreational purposes, and sought injunctive and declaratory relief. During a trial, 19 witnesses testified that they and others used the canal road from the 1940s through 1971 for recreational walking and running, riding bicycles and horses, fishing and as a route to school. None of the witnesses had ever asked permission to use the road or had been asked not to use the road. Retired Nevada County Superior Court Judge Wayne Wylie, sitting by assignment, ruled that the public had acquired title to "an easement for public right-of-way and recreational purposes across the property presently owned by Jon and Robin Blasius." Wylie enjoined the landowners from obstructing access, but made no ruling against the Irrigation District Blasius and NID appealed on a variety of grounds. They argued that Judge Wylie improperly applied the California Supreme Court's Gion-Dietz doctrine concerning adverse possession. The Gion and Dietz cases, Gion v. City of Santa Cruz (consolidated with Dietz v. King) (1970) 2 Cal.3d 29, deal with public easements to shoreline properties. The state high court held that to prove adverse possession, a litigant need only "provide evidence that persons have used the land as they would have used public land" without interference for at least five years. For the landowner to prevent future public use, "he must either affirmatively prove that he has granted the public a license to use his property or demonstrate that he has made a bona fide attempt to prevent public use." Finally, the court said there is no difference between dedication of shoreline property and other property. The appellate panel noted that Gion-Dietz was controversial, as it led to legislation in 1972 that halted future use of the implied dedication doctrine unless the government maintained the land for public use or the property was within 1,000 feet of coastal waters. (See Civil Code §§1009, 813.) To Blasius and the Irrigation District, Gion-Dietz remained controversial, as they argued the decision was "troubling" and had "malignant effects." "We are invited to ignore a settled precedent," Justice Coleman Blease wrote for the unanimous three-judge appellate panel. "We decline to do so. It is accurate to say the enactment of §1009 and the related amendment of §813, in large part, abrogates the holding in Gion-Dietz — prospectively. However, there is no public policy manifest in this enactment which restricts the application of that holding to claims preceding March 2, 1972." The Nevada County case clearly satisfied the Gion-Dietz criteria, the court ruled. "There was a considerable body of testimony from members of the public who used the canal side right of way that they did so in the belief the public a had a right to do so. The owner of the property during the pertinent period conceded he was aware of public use of the berm road and that it was his belief the public had a right to use the trail," Blease wrote. "The Gion-Dietz opinion plainly contemplates that ‘adversity' for purposes of implied dedication may arise as to recreational pedestrians in rural areas," Blease continued. The court also rejected the argument that the doctrine of prescription does not apply to a public entity, such as NID, which has an easement on the same strip of land. The public's use of the dirt road does not interfere with the district's easement, the court said. The court also ruled that a state law protecting a public entity's property rights (Civil Code §1007) does not apply in this case because "it has no application to the loss of rights of an underlying private owner." Finally, the court rejected Blasius' argument that application of Gion-Dietz was unfair because the Irrigation District easement prevented previous landowners from blocking public use. The court said Blasius did not prove this contention. "Indeed, on the practical plane, the Landowners' predecessor in interest presumably could have obtained the same agreement from NID to install the gates in issue before the lapse of the prescriptive period," Blease wrote. The appellate panel rejected a Friends of the Trails' appeal seeking an injunction to prevent the Irrigation District from barring public access. The court simply concluded that, "the judgement is binding on NID. They are precluded from maintaining there is no public easement as described." The court also upheld the trial court's award of attorneys' fees to Friends of the Trail. The Cases: Friends of the Trails v. Jon E. Blasius, Nos. C031330, C032253, 00 C.D.O.S. 1583, 2000 Daily Journal D.A.R. 2193, filed February 28, 2000. The Lawyers: For Friends: John Bilheimer, Haley & Bilheimer, (530) 265-5524. For Blasius, Eric Grant, Pacific Legal Foundation, (916) 362-2833. For Nevada Irrigation District: William Spruance, Minasian, Spruance, Baber, Meith, Soares & Sexton, (530) 533-2885.