Date: Tue, 9 Apr 2002 10:32:20 -0800
From: Russell Towle
Subject: Trails: legal action?
A local real estate attorney was along for the Nevada County Land Trust hike last Saturday, and was interested to learn of the uncertain legal status of the Canyon Creek Trail; for there is no formal, deeded public easement on that trail, or on the Paleobotanist Trail, only an untested "prescriptive" public right to use the trails.
It was suggested that legal action might be pursued in this case to demonstrate the public's right to use these trails. Now, since I myself hope that the BLM will be able to buy the parcels (now for sale) which contain these trails, and since this purchase would fully establish the public's rights to use the trails, I worry whether legal action at this point might antagonize the owners of the property, whose good will may be important in the purchase process.
These trails are only a few among many which suffer from such uncertain status. The Stevens Trail (Iowa Hill side), Blue Wing Trail, Ford's Bar Trail, Green Valley Trail, Lost Camp Trail, and others are similarly complicated by private inholdings.
Tahoe National Forest is taking, I think, a rather passive approach to such trails. For instance, on my recent ski tour from Big Bend into Huysink Lake, I took note of a battered old Forest Service sign marking the trail as the "Big Granite" trail, and remarked, in my email to y'all, that originally this trail started at Cisco, a mile west, but that TNF had likely re-routed the trail from Big Bend after private property owners at Cisco had shut off the original trail.
Now, this particular trail does not show on current TNF maps. So I called Bill Haire at TNF yesterday to inquire as to the precise TNF policy with regard to this and other such trails.
As I feared, TNF has abandoned this trail. Why? Because it crosses private lands. Now, in this case, the private lands are old railroad lands, deeded to the Central Pacific Railroad by President Lincoln in the early 1860s. This railroad was purchased by Southern Pacific long ago. Then, following a corporate take-over attempt in the 1980s, the Southern Pacific Land Co. sold off these railroad lands to lumber companies (this is an approximation of the general pattern; in this particular case, the details may differ).
Now, the lands along the line of this trail, especially after it crosses the divide into the North Fork American basin, have been heavily impacted by logging. It is quite a shame that this very special part of Placer County's high country, in the basins of Big Valley, Little Granite, and Big Granite creeks, has been so thrashed. And in the course of that thrashing the old trails were either obliterated outright or turned into roads over parts of their courses. Along with the Big Granite Trail I cite the Sugar Pine Point Trail and the Big Valley Trail.
I bring these instances up in order to suggest a possible broader scope to legal action. For it seems to me that TNF and CDF (which administers logging on private properties) could be sued for their failure to protect the public's interest in these old trails.
When we recall also that Placer County allowed a subdivision at the beginning of the Fords Bar Trail, near Gold Run (part of the old trail from Gold Run to Iowa Hill), and allowed the historic road to be renamed "Knobcone Road," and that the inevitable consequence was that the road was gated off and the public barred from using the trail, well, it seems to me that in this as with many other actions by Placer County, there may be a basis to bring suit against the county itself.
Well, such are some thoughts about old trails.
Date: Tue, 9 Apr 2002 13:33:23 -0800
From: Russell Towle
Subject: Prescriptive Rights
Joel Baiocchii called my attention to Section 1009 of the CA Civil Code, which apparently attempts to limit the public's acquisition of prescriptive rights to use trails etc. Here are Sections 1008 and part of 1009:
1008. No use by any person or persons, no matter how long continued, of any land, shall ever ripen into an easement by prescription, if the owner of such property posts at each entrance to the property or at intervals of not more than 200 feet along the boundary a sign reading substantially as follows: "Right to pass by permission, and subject to control, of owner: Section 1008, Civil Code."
1009. (a) The Legislature finds that:
(1) It is in the best interests of the state to encourage owners of private real property to continue to make their lands available for public recreational use to supplement opportunities available on tax-supported publicly owned facilities.(b) Regardless of whether or not a private owner of real property has recorded a notice of consent to use of any particular property pursuant to Section 813 of the Civil Code or has posted signs on such property pursuant to Section 1008 of the Civil Code, except as otherwise provided in subdivision (d), no use of such property by the public after the effective date of this section shall ever ripen to confer upon the public or any governmental body or unit a vested right to continue to make such use permanently, in the absence of an express written irrevocable offer of dedication of such property to such use, made by the owner thereof in the manner prescribed in subdivision (c) of this section, which has been accepted by the county, city, or other public body to which the offer of dedication was made, in the manner set forth in subdivision (c).
(2) Owners of private real property are confronted with the threat of loss of rights in their property if they allow or continue to allow members of the public to use, enjoy or pass over their property for recreational purposes.
(3) The stability and marketability of record titles is clouded by such public use, thereby compelling the owner to exclude the public from his property.
(c) In addition to any procedure authorized by law and not prohibited by this section, an irrevocable offer of dedication may be made in the manner prescribed in Section 7050 of the Government Code to any county, city, or other public body, and may be accepted or terminated, in the manner prescribed in that section, by the county board of supervisors in the case of an offer of dedication to a county, by the city council in the case of an offer of dedication to a city, or by the governing board of any other public body in the case of an offer of dedication to such body.
Lupine Season, 2003