June 8, 2011

"Happy trails" are still private property

If it were up to the California Coastal Commission, it would seize all private property along the coast tomorrow and make it "public"--without paying a penny to affected landowners.  But recognizing that no court would countenance such an open attack on property rights, the Commission instead has been employing a more subtle means of achieving the same result.

Under California's "prescriptive rights" or "implied dedication" doctrine, if the public regularly traverses an area of private property for a period of at least five years, the public may obtain a permanent "right" to continued use of that area, even without the landowner's consent.  Through its Prescriptive Rights Program, the Commission has made this doctrine one of the most valuable tools in its anti-property-rights arsenal, enabling it to take trails and other easements from landowners, one parcel at a time.  The Commission spends taxpayer dollars recruiting members of the public to investigate, document, and report to it all alleged public uses of properties in the coastal zone.  If it acquires enough "evidence" that a continuous trespass on someone's property might support the public's claim to an easement over that property, the Commission asks the State Attorney General to sue the affected landowner to validate the claim--a costly process that most landowners never see coming, and that few can afford to defend against.

watch the video

The scheme provides perverse incentives to the public to surreptitiously trespass onto coastal landowners' properties for extended periods of time, and unfairly burdens property owners with the costly obligation to monitor and defend against so-called prescriptive rights claims.  PLF Attorney Luke Wake made this point to the Commission earlier this month.  Luke advised the Commission to be careful in its implementation of its Prescriptive Rights Program, and to be respectful of the rights of coastal landowners.

We've said it before, and we'll say it again:  We will restore our property rights in California and anywhere they're under attack, because at PLF, we never give up!

Paul J. Beard II
Principal Attorney
Pacific Legal Foundation