🚀 go-pugleaf

Michael Bender <bender@Sun.COM> wrote:
: So, how many people constitute "the public"? For example, if I walk through a
: section of private property every day for 5 years and the owner of the
: property doesn't ever say anything to me or put up any kind of "No
: Tresspassing" signs, does that make my path an implied easement, since I am
: a member of the public?

By common law, and former California law, this creates a private
prescriptive easement in your favor. However California law has changed.

In 1971 the Legislature passed an act intended to encourage private owners
of large parcels of land to allow the public to enter their lands for
recreational purposes, to reduce the load on public recreational
resources.  It provided that if the owner allowed such use of his
property, he was almost completely immune from liability for damages from
such use, creating the interesting situation where a landowner who puts up
no tresspassing signs and tries to keep people out is more likely to be
liable for damages to someone whe steps in a hole and breaks their leg,
than a person who allows people to use their land for recreation.  A
potential objection of the land owners to this legislation was if people
used the land for five years they would acquire prescriptive rights.  To
address this potential objection, the Legislature provided that after the
effective date of the act (1 January 1972), no such use would ever mature
into a prescriptive right, effectively eliminating the creation of any
such new prescriptive rights.  So any use alleged to create such a
prescriptive right must have been for a period of time of 5 years or more
prior to 1 January 1972.

A permissive use of land does not create any prescriptive right.  That's
why you see signs, "Right to pass by permission and control of owner,
revocable at any time.  Sec.1008 Civil Code".  This prevents




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johnny king
northern california usa
johnnyk@primenet.com
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