November 15, 2006, by
Under the common law of the State of California, where a private road has been offered for public dedication, the offer may be accepted by formal action of the public entity or by public use. In the recent case of Wright v. City of Morro Bay, 2006 DJDAR 14782, the California Court of Appeal affirmed a San Luis Obispo Superior Court's dismissal of a complaint for quiet title in which the plaintiffs' claimed to be the fee owners of a portion of the dedicated street abutting their property because the street was never opened or used for a public purpose and only existed on paper.
The dedication of the street occurred in 1888, and the City apparently adopted a resolution accepting the offer in 1935, but never opened the road. The City filed a demurrer to the plaintiff's quiet title action. Plaintiffs countered with a motion for summary judgment. The Superior Court sustained the demurrer without leave to amend and dismissed the summary judgment as moot.
Plaintiffs relied upon Code of Civil Procedure section 771.010, enacted in 1955, 20 years after the City formally accepted the offer to dedicate. Section 771.010 provides that there is a conclusive presumption a proposed dedication has not been accepted if the four conditions set forth in the statute are met, which include:: the proposal of dedication was made by filing a map only; no acceptance of the dedication was made or recorded and no public use within 25 years after the map was filed; and, finally, the property was sold to a third party after the map was filed, who used it as if it was free of the dedication.
The Court rejected the application of section 771.010 because the statute operated prospectively, the City formally accepted the dedication in 1935, and the complaint alleged that the land was not used for any purpose, public or private.