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In Alamo, Contra Costa County, California, one of the most 
affluent communities in the U.S., residents at the end of 
Las Trampas Road, which has been used for over 40 years by 
the public as one of the few accesses in the area to Las 
Trampas Regional Wilderness, have begun construction of an 
unlawful gate to keep the public out.

Loss of park access over roads and trails across property 
which is in private ownership, yet in public use for many 
years, is a serious problem all over the nation today.  
Developers move into an undeveloped area, build houses 
across roads and trails used to access parks by local 
residents, and effectively close the access.

In most cases this is unlawful, and could be prevented if 
only the parties involved, both the developers and the park 
users, knew the law, and the park users asserted the law.  
The following letter explains some of the questions of law 
which usually occur in such cases.  If more people knew the 
law and asserted it, more park access could be saved from 
developers.

JK

=====================

Monday, 15 September 1997

An open letter to the residents and property owners of Las 
Trampas Road concerning the gate in progress:

I am now in the process of obtaining public records, and 
contacting persons who have used the entirety of what is now 
Las Trampas Road, and beyond, for many years, and collecting 
affidavits from such persons, to be filed with the Contra 
Costa County Recorder together with a Notice of Intention to 
Preserve Interest, pursuant to Title 5 (commencing with 
Section 880.020) of Part 2 of Division 2 of the Civil Code 
(Marketable Record Title).

The evidence now available indicates that under current and 
well settled California law, the entirety of Las Trampas 
Road is what the law calls a highway, notwithstanding that 
it passes over private property. This means that it is 
unlawful for any gate to be erected to restrict the use of 
Las Trampas Road in any way, and that all persons have a 
permanent and irrevocable right to use the road at any time.

I am sympathetic to the concerns I have heard expressed on 
behalf of Las Trampas Road residents. I have been a rural 
property owner myself, and I'm all too familiar with the 
problems trespassers can cause. I know it can be difficult 
to understand why the public has a right to travel over 
private property, so here is a brief summary of the law 
creating the public right to use the entirety of Las Trampas 
Road, and on highways in general:

Because the public has used the "way" (the entirety of what 
is now Las Trampas Road and beyond) regularly and openly 
without any interference from the private owners of the land 
for so many years, it has become a "highway" under the law, 
and no person can put up any gate on it or restrict it in 
any way. Understanding why requires some background 
knowledge.

The law in California today, as in all states of the U.S. 
except Louisiana, is based on the common law of England. 
Section 22.2 of the Civil Code provides that the common law 
of England shall be the rule of decision of the courts of 
the State of California, except where it conflicts with the 
U.S. Constitution, or California Constitution, or laws 
passed by the California Legislature. When the Legislature 
doesn't pass any laws otherwise, the courts use the common 
law of England as the law of the State of California. 
Present California law on highways closely follows English 
common law, sometimes modified. For instance under common 
law, use by the public for seven years is required to create 
a prescriptive right, but under statute passed by the 
California Legislature, the period of time is five years, 
rather than seven.

In the terms used in the law, a "way" is any way used for 
travel, as in, "Get out of the way". A way can be over land 
or water, it can be major or minor. It can be a foot trail, 
a dirt road, gravel road or paved road, a navigable 
waterway. It makes no difference. There are two kinds of 
ways, "private ways" and "highways". A highway is any way 
used by the public for travel or transportation by any 
means, including motorized or non-motorized means. A public 
footpath is a highway as well as a ten lane freeway. The law 
makes no distinction among highways of different kinds, and 
gives equal sanctity and protection to the largest and the 
smallest. All highways are public and there are no private 
highways, so the term "public highway" is redundant.

Who owns title to the land over which it passes, or who 
maintains the roadway of a highway, has no effect on its 
status as a highway, or the public's right to use it, and 
the ownership of title to land over which a highway passes 
conveys no right to regulate or restrict a highway in any 
way.

All persons, not only citizens, have a right under the U.S. 
Constitution to use all highways. No highway can ever be 
restricted to use by certain persons or certain classes of 
persons.

Highways are created in two ways, "dedication", and "implied 
dedication", sometimes erroneously referred to as 
"prescription". Dedication occurs when the state or one of 
its subdivisions sets aside public land for use as a 
highway. The public land can be that already owned by the 
state, or purchased on the open market, or condemned through 
the state's power of imminent domain.

Implied dedication is like prescription, which is the 
process of acquiring a right to someone else's land, either 
to travel over it, or to use it in other ways, or even to 
have title to it, simply by using it openly for a certain 
number of years, historically seven years, five by 
California law.

Implied dedication is the same as prescription in that it 
causes a right to be created when someone uses someone 
else's land, but prescription is when a right is created by 
use by one person, or certain persons, which favors only 
those persons, and implied dedication is when the use, and 
the right created by it, is by and for the public at large. 
"Private easements" are created over private land by 
prescription. Highways are created over private land by 
implied dedication. Prescription and implied dedication, 
which convey "prescriptive rights" can only occur on private 
land, not on public land. By provisions of California law 
enacted by the Legislature, no use of public land can ever 
create any prescriptive right.

Once a highway has been created, it can only be extinguished 
by a process called "vacation", where a public "vacation 
hearing" is held before the governing board of the city or 
county which has jurisdiction, and it must be determined 
that the highway is no longer needed.

A highway is not a road or a roadway, a physical thing. A 
highway is an intangible interest in real property, a public 
right, a public easement, and who owns title to the land 
over which a highway passes is irrelevant to its use. 
Highways can pass over public land or private land.

Because highways are essential to travel and communication 
and commerce, and because they are the matrix of 
civilization itself, they enjoy the highest sanctity and 
protection of the laws. Historically most highways were 
created not by official dedication, but by common use. Once 
in common use for some time, the potential disruption in the 
functions of society caused by a highway's interruption can 
be not only a public nuisance but a public crisis. For this 
reason the law gives very great weight to long common use of 
a way by the public, even putting it above the property 
rights of the owner of the title to the land.

So, notwithstanding the fact that it is private property, or 
who paid for improvements to the road or built the roadway, 
the fact that the public have been traveling the route of 
present Las Trampas Road freely, "openly and notoriously", 
"adverse to the interest of the owner", in the terms of the 
law, for so many years, has created a public easement, a 
highway, and no one may restrict it in any way, any more 
than anyone may restrict Highway 680.

I repeat my request that if you dispute the prescriptive 
rights asserted above, and assert a contrary right under law 
to erect a gate on Las Trampas Road, that you have your 
attorney provide me with citations to supporting authority 
in the law, and probative facts, or evidence such as a 
recorded notice of use by permission and control of owner, 
pursuant to Sec.813 Civil Code. Anyone who erects any gate 
on any road should be prepared to do this readily and 
without hesitation.

It was alleged that one park user spoke to a resident about 
the gates, and said something like, "Well what about my use 
of the road?", to which the resident allegedly responded 
something to the effect of "That's your problem, isn't it". 
This is the kind of thing people say when they think they 
hold all the cards. But this is a mistake, and just the 
reverse of what this resident thinks is true.

Looking at the situation from the same selfish "that's your 
problem" attitude allegedly exhibited by the resident above, 
one finds that the present developer and the present 
homeowners bought and improved property with an existing 
highway over it, a permanent and irrevocable easement.

Such an unrecorded encumbrance on the property is just as 
binding as any recorded encumbrance, and it is the buyer's 
obligation to use due diligence to discover such 
encumbrances, both recorded and unrecorded, particularly 
when such clear evidence exists, as an obviously well-and- 
regularly-traveled way. The existence of such a well-and-
regularly- traveled way gives the buyer constructive 
knowledge of the probability of a prescriptive easement, and 
a buyer who ignores such evidence does so at his peril.

The developers here built a subdivision along a public way 
people use to reach a public park, and which people would be 
expected to continue to use because they had a right by law 
to do so, and the developers failed to provide the 
corresponding "additional width [of roadway] to accommodate 
reasonably expected on-street parking" required by paragraph 
5.A., Conditions of Approval for Subdivision 6419, as 
approved by the San Ramon Valley Area Planning Commission, 
15 February 1984.

Using the same selfish attitude allegedly exhibited by the 
homeowner above, in response to homeowners' complaints about 
the problems caused by the public's use of the road, it 
could be said, "That's your problem, you built (or bought) 
on a public thoroughfare, at the existing public entrance to 
a public park, and you didn't build your road wide enough to 
accommodate reasonably expected public parking, in violation 
of the Conditions of Approval for Subdivision 6419".

But there are legitimate conflicting interests here, and 
good people on both sides. The best resolution of the 
conflict should rely on good faith communication and 
cooperation, and compromise from all parties. 
Notwithstanding that such a gate may be strictly unlawful, 
if no one objects to such a gate, it may remain. This is a 
community problem, that may be resolved to the satisfaction 
of all parties with communication and cooperation, but 
confrontation may result in neither a gate, nor relief from 
the problems.

In conclusion, I ask you to please consider this as a 
community problem which needs to be addressed by consensus, 
rather than unilateral action, and meet and negotiate in 
good faith with interested parties, to reach that consensus.

Sincerely,

John L. King