Mikkelsen v. Hansen
Facts: A path is located on portions of two separate noncoastal subdivisions. The developer of both subdivisions formally dedicates one section of the path for public use, but not the other. Both sections of the path have been in use by the public for years, including by owners of property in both subdivisions. The owner of the property on which the undedicated portion of the path is located builds a wall obstructing public use of the path.
Claim: The owner’s neighbor seeks the removal of the owner’s wall, claiming the walled-off section of the path was impliedly dedicated to the public since the developer signaled an intent to do so based on its dedication of the adjacent pathway.
Counter claim: The owner claims the path on their property is not dedicated for public use since noncoastal property is exempt from implied dedication.
Holding: A California appeals court holds the owner’s wall may remain in place since the property is not in a coastal area and thus exempt from implied dedication. [Mikkelsen v. Hansen (January 10, 2019) _CA5th_]
Editor’s note — This is a reversal of a trial court ruling which held the path was in fact impliedly dedicated to the public. The appeal court’s decision was largely based on the California Supreme Court’s ruling in Scher v. Burke, in which the court found that rules governing the dedication of coastal property could not be applied to noncoastal property.