Scher v. Burke
Facts: A residential property owner’s noncoastal property contains a road which provides direct access to a neighboring property. The neighbor uses this road to access their property for a period greater than five years. The owner blocks access to the road.
Claim: The neighbor seeks the right to drive through the owner’s property, claiming the owner consented to the dedication of the route as a public roadway by implication since the neighbor used the road for a period greater than five years.
Counter claim: The owner claims the neighbor has no right to use their property since noncoastal property is exempt from the implied dedication requirement.
Holding: The California Supreme Court holds the neighbor has no right to use the owner’s property since the property is not in a coastal area and thus exempt from the implied dedication requirement. [Scher v. Burke (June 15, 2017) _CA4th_]
Editor’s Note — In cases like this, an easement might be a simpler and more appropriate route than dedication. An easement is the right of a property owner to use another’s property. In this case, the easement would be for the purposes of ingress and egress, or the right of one property owner to traverse a neighbor’s property to access their own. An easement may be created either through writing, such as an easement agreement or a court order, or through implication. For an easement to be created by implication, there must be a reasonable necessity for the easement to apply — for example, if a property is landlocked.
Dedication, on the other hand, confers the right to use a private property to the general public. Like an easement, property may be dedicated to the public in writing or by implication. Implied dedication exists when a parcel of coastal property has been used by the public for recreational purposes for a period of at least five years. However, noncoastal property cannot be dedicated through implication.
