Gion v. City of Santa Cruz

Decision Date19 February 1970
Docket NumberS.F. 22560,22703
Parties, 465 P.2d 50 Thomas GION et al., Plaintiffs and Appellants, v. CITY OF SANTA CRUZ, Defendant and Respondent. Lester J. DIETZ et al., Plaintiffs and Appellants, v. Robert B. KING et al., Defendants and Respondents.
CourtCalifornia Supreme Court

Lester J. Dietz and Lotus A. Dietz, in pro. per., Leo M. Cook, Ukiah, Sullivan, Roche & Johnson, Vincent J. Mullins, and Richard H. Wise, Jr., San Francisco, for plaintiffs and appellants.

Rodney R. Atchison, City Atty., Atchison & Haile, Donald R. Haile, Santa Cruz, Bell & Cox and Charles R. Bell, Ukiah, for defendants and respondents.

Thomas C. Lynch, Atty. Gen., Jay L. Shavelson, Asst. Atty. Gen., R. Frederic Fisher, Lillick, McHose, Wheat, Adams & Charles, San Francisco, as amici curiae on behalf of City of Santa Cruz and Lester J. Dietz and others.

James R. Christiansen, City Atty., (Carpinteria), as amicus curiae on behalf of City of Santa Cruz.

PER CURIAM.

We consider these two cases together because both raise the question of determining when an implied dedication of land has been made.

Gion v. City of Santa Cruz concerns three parcels of land on the southern or seaward side of West Cliff Drive, between Woodrow and Columbia Streets in Santa Cruz. The three lots contain a shoreline of approximately 480 feet and extend from the road into the sea a distance varying from approximately 70 feet to approximately 160 feet. Two of the three lots are contiguous; the third is separated from the first two by approximately 50 feet. Each lot has some area adjoining and level with the road (30 to 40 feet above the sea level) on which vehicles have parked for the last 60 years. This parking area extends as far as 60 feet from the road on one parcel, but on all three parcels there is a sharp cliff-like drop beyond the level area onto a shelf area and then another drop into the sea. The land is subject to continuous, severe erosion. Two roads previously built by the city have been slowly eroded by the sea. To prevent future erosion the city has filled in small amounts of the land and placed supporting riprap in weak areas. The city also put an emergency alarm system on the land and in the early 1960's paved the parking area. No other permanent structures have ever been built on this land.

Since 1880, the City of Santa Cruz has had fee title to a road at some location near the present road. Also since 1880, there has been an area south or seaward of the road area that has been in private hands. As the area south of the road eroded, the city moved its road a short distance to the north. In 1932, after moving the road to its present location, the city gave a quitclaim deed for the land previously covered by the road, but no longer used as a road, to G. H. Normand, the owner and developer of the surrounding property. The area presently under dispute, therefore, includes an old roadbed. Most of the area, however, has never been used for anything but the pleasure of the public.

Since at least 1900 various members of the public have parked vehicles on the level area, and proceeded toward the sea to fish, swim, picnic, and view the ocean. Such activities have proceeded without any significant objection by the fee owners of the property. M. P. Bettencourt, who acquired most of the property in dispute in 1941 and sold it to Gion in 1958 and 1961, testified that during his 20 years of ownership he had occasionally posted signs that the property was privately owned. He conceded, however, that the signs quickly blew away or were torn down, that he never told anyone to leave the property, and that he always granted permission on the few occasions when visitors requested permission to go on it. In 1957 he asked a neighbor to refrain from dumping refuse on the land. 1 The persons who owned the land prior to Bettencourt paid even less attention to it than did Bettencourt. Every witness who testified about the use of the land before 1941 stated that the public went upon the land freely without any thought as to whether it was public or privately owned. In fact, counsel for Gion offered to stipulate at trial that since 1900 the public has fished on the property and that no one ever asked or told anyone to leave it.

The City of Santa Cruz has taken a growing interest in this property over the years and has acted to facilitate the public's use of the land. In the early 1900's, for instance, the Santa Cruz school system sent all the grammar and high school students to this area to plant ice plant, to beautify the area and keep it from eroding. In the 1920's, the city posted signs to warn fishermen of the dangers from eroding cliffs. In the 1940's the city filled in holes and built an embankment on the top level area to prevent cars from driving into the sea. At that time, the city also installed an emergency alarm system that connected a switch near the cliff to an alarm in the firehouse and police station. The city replaced a washed out guardrail and oiled the parking area in the 1950's, and in 1960--61 the city spent $500,000 to prevent erosion in the general area. On the specific property now in dispute, the city filled in collapsing tunnels and placed boulders in weak areas to counter the eroding action of the waves. In 1963, the city paved all of the level area on the property, and in recent years the sanitation department has maintained trash recepticles thereon and cleaned it after weekends of heavy use.

The superior court for the county of Santa Cruz concluded that the Gions were the fee owners of the property in dispute but that their fee title was 'subject to an easement in defendant, City of Santa Cruz, a Municipal corporation, for itself and on behalf of the public, in, on, over and across said property for public recreation purposes, and uses incidental thereto, including, but not limited to, parking, fishing, picnicking, general viewing, public protection and policing, and erosion control, but not including the right of the City or the public to build any permanent structures thereon.' This conclusion was based on the following findings of fact:

'The public, without having asked or received permission, has made continuous and uninterrupted use of the said property for a period of time in excess of five (5) years preceding the commencement of this action, for public recreation purposes.

'The City of Santa Cruz, through its agents and employees, has continuously for a period in excess of five (5) years preceding the commencement of this action, exercised continuous and uninterrupted dominion and control over the said property, by performing thereon, grading and paving work, clean-up work, erosion control work, and by maintaining a planting program, and by placing and maintaining safety devices and barriers for the protection of the public using said property.

'Plaintiffs and plaintiffs' predecessors in title had full knowledge of the dominion and control exercised over said property by the City of Santa Cruz, and of the public user of said property throughout the period of said public user, for a period of time in excess of five (5) years preceding the commencement of this action.'

In Dietz v. King, plaintiffs, as representatives of the public, asked the court to enjoin defendants from interfering with the public's use of Navarro Beach in Mendocino County and an unimproved dirt road, called the Navarro Beach Road, leading to that beach. The beach is a small sandy peninsula jutting into the Pacific Ocean. It is surrounded by cliffs at the south and east, and is bounded by the Navarro River and the Navarro Beach Road (the only convenient access to the beach by land) on the north. The Navarro Beach Road branches from a county road that parallels State Highway One. The road runs in a southwesterly direction along the Navarro River for 1,500 feet and then turns for the final 1,500 feet due south to the beach. The road first crosses for a short distance land owned by the Carlyles, who maintain a residence adjacent to the road. It then crosses land owned by Mae Crider and Jack W. Sparkman, proprietors of an ancient structure called the Navarro-by-the-Sea Hotel, and, for the final 2,200 feet, land now owned by defendants.

The public has used the beach and the road for at least 100 years. Five cottages were built on the high ground of the ocean beach about 100 years ago. A small cemetery plot containing the remains of shipwrecked sailors and natives of the area existed there. Elderly witnesses testified that persons traveled over the road during the closing years of the last century. They came in substantial numbers to camp, picnic, collect and cut driftwood for fuel, and fish for abalone, crabs, and finned fish. Others came to the beach to decorate the graves, which had wooden crosses upon them. Indians, in groups of 50 to 75 came from as far away as Ukiah during the summer months. They camped on the beach for weeks at a time, drying kelp and catching and drying abalone and other fish. In decreasing numbers they continued to use the road and the beach until about 1950.

In more recent years the public use of Navarro Beach has expanded. The trial court found on substantial evidence that 'For many years members of the public have used and enjoyed the said beach for various kinds of recreational activities, including picnicking, hiking, swimming, fishing, skin diving, camping, driftwood collecting, firewood collecting, and related activities.' At times as many as 100 persons have been on the beach. They have come in automobiles, trucks, campers, and trailers. The beach has been used for commercial fishing, and during good weather a school for retarded children has brought its students to the beach once every week or two.

None of the previous owners of the King property ever objected to public use of Navarro Beach Road. The land was originally owned by a succession of lumber and railroad...

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    ...and an implied dedication resemble each other in some ways, they are not the same thing. (See Gion v. City of Santa Cruz (1970) 2 Cal.3d 29, 39, 84 Cal.Rptr. 162, 465 P.2d 50 [analogies between implied dedication and prescription "can be misleading."].)15 As the Gas Company points out, the ......
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