1

Filed 10/31/22 Semon v. County of Colusa CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Colusa)

----

WILL SEMON,

Plaintiff and Appellant,

v.

COUNTY OF COLUSA,

Defendant and Respondent.

C094475

(Super. Ct. No. CV24391)

Twenty-six years after discovering that a roadway deviates from an existing 

easement and encroaches onto his property, plaintiff Will Semon sued the County of 

Colusa (County) in an effort to realign the roadway. The trial court granted County’s 

motion for summary judgment finding that Semon’s claims were barred by the statute of 

limitations and that County had a vested right of public use in the existing roadway. 

Semon appeals that ruling, arguing that, due to County’s continuous trespass, his action is 

not time-barred. He further argues that the trial court erred in rejecting admissible 

evidence regarding the history of the easement and roadway and erred in granting 

summary judgment in light of the existence of a material fact with respect to whether 
2

County’s use of the encroaching portion of the roadway was with Semon’s consent. We 

conclude that there exist triable issues of material fact which prevent entry of summary 

judgment. Accordingly, we reverse the trial court’s order. 

FACTUAL AND PROCEDURAL BACKGROUND

A. The Property

In 1917, County created the Cherry Ranch subdivision, which includes a parcel 

known as Lot No. 9 and an adjacent parcel known as Lot B. A roadway lies in Lot B, 

and is known as “Wisconsin Avenue.” At some point in time, someone laid “chip seal”1

on a portion of “Wisconsin Avenue” which later became the roadway used by vehicles. 

However, the chip seal layer was not centered within the boundaries of “Wisconsin 

Avenue” as the avenue is described in official documents. Part of the chip seal, and thus 

part of the roadway, was laid on a portion of Lot No. 9.2 It is this portion of roadway that 

is the subject of dispute in this case.

In 1992, Semon purchased Lot No. 9; his residence is on “Wisconsin Avenue.” 

He recorded the deed to the property in January 1993. In early 1993, Semon noticed that

part of the chip sealed portion of the roadway encroached on his property. The 

encroaching portion of the chip sealed roadway did not show up on the title report for Lot 

No. 9.

1 According to County, chip seal is a two-step process which includes an application of 

an emulsion and then a layer of crushed rock to a compacted aggregate surface. Over 

time, it can become a hard compact surface.

2 We distinguish “Wisconsin Avenue” as it is described in official documents from the 

actual roadway created by the chip seal layer, as the roadway lies on a portion of 

“Wisconsin Avenue” and also on a portion of Lot No. 9. As explained infra, there is no 

evidence that the labels may be used interchangeably.
3

Semon claims that in 1993, he had a conversation with the previous owner of Lot 

No. 9, Kenneth Rominger, about the property.3 Rominger stated that prior to, and 

through most of the 1960’s, the roadway was a dirt tractor trail, which he used for 

farming operations. In 1960, Rominger granted County a 20-foot-wide expansion to an 

existing easement, and told Semon it was meant to be used for “roadway purposes.”4

Rominger told Semon that in the early 1960’s, Rominger had a conversation with County 

to discuss whether County would build and lay chip seal onto the easement. At that time, 

County represented to Rominger that County did not have funding or the need to do so 

because there was no need for public use in the area. In the late 1960’s, Rominger had 

another conversation with County about the roadway, after which County told Rominger 

that he could personally lay chip seal over the easement. Rominger further told Semon 

that County gave him permission because there was no public use of the road, and 

Rominger was going to lay the chip seal at his own personal expense. However, 

Rominger said, County instructed that he lay the chip seal outside of the easement at the 

southern end so that, in the future, the final road could be constructed by County in 

proper alignment with the easement. Rominger told Semon that he laid the chip seal for 

the roadway in compliance with County’s instruction and although he allowed County to 

use the newly surfaced area, there was no public use of the roadway until after 

development occurred on this area of the roadway. In 1977, the first residence on the 

roadway was constructed.

3 The trial court excluded Rominger’s statements as hearsay; we include them to provide 

background for the trial court’s ruling on the motion for summary judgment and the 

issues on appeal. 

4 County does not dispute that Rominger granted County an easement, separate and apart 

from any other property rights County held in the existing road. The parties agree that 

this easement is not the roadway that is the subject of this matter and is thus not relevant 

to any issue in this case.
4

In January 1993, Semon contacted County and requested realignment of the 

roadway. The public works director responded via letter, indicating it was his “desire” to 

realign the roadway when financially feasible but, at “the present time, there are no plans 

to realign the existing road to fall within the county road right of way.”5 Semon asserts 

that he “gave permission and consented to the County’s encroachment and use of the 

portion of [his property] and took no active steps to prevent and remove them because 

they promised re-alignment once budgeted.” He says he repeated his consent to a County 

representative in 1997, when he told the District 1 supervisor that County’s use of the 

road is “ok with him but that it just needs to be realigned within it[s] Easement 

boundaries.”

Between 1993 and 2008, Semon repeatedly contacted County to check on the 

status of the realignment. Needless to say, the road was never realigned. 

In July 2008, County informed Semon via letter that County had a prescriptive 

right to the roadway. In October 2008, county counsel sent Semon a letter that stated, in 

part: “Everyone has agreed . . . that [the roadway’s] current location deviates from the 

deeded easement” but that “County has obtained a prescriptive easement to maintain the 

road for the benefit of the public in perpetuity in its present location. It is the County’s 

intention to continue maintaining the road at its present location into the foreseeable 

future.” This letter also explicitly stated that reconstruction and/or relocation of the 

roadway is “not anticipated now or at any time in the foreseeable future”; it is the 

County’s intent to continue to maintain the road in its current location.

5 The letter acknowledges a deviation from the established right of way. The trial court 

sustained County’s objection to this evidence as inadmissible hearsay pursuant to 

Evidence Code section 1200. We note the contents for purposes of clarity; we do not rely 

on the truth of the matter asserted in the statement.
5

Semon alleges that he contacted County twice a year between 2008 and 2017 to 

determine whether the road realignment had been placed in the budget. County does not 

dispute that Semon repeatedly contacted County regarding the realignment. In 

September 2017, Semon spoke with the assistant public works director, who told him that 

the road was not going to be realigned. A week later, the public works director told 

Semon, “sorry but the issue is dead as of [the] 2008 letter from County Counsel.”

In April 2018, Semon’s attorneys contacted County, alleged County was now 

trespassing and demanded the realignment of the road.

B. Legal Action

In May 2019, Semon filed a complaint against County. County then filed a 

demurrer, which the trial court sustained with leave to amend. On October 23, 2019, 

Semon filed a first amended complaint seeking declaratory relief and alleging the 

following causes of action: quiet title, continuing trespass, and ejectment. On 

December 31, 2019, the trial court overruled County’s demurrer to the first amended 

complaint and ordered County to file an answer.

County denied the allegations of the complaint as a whole, and specifically stated 

that it lacked any information or belief “as to whether ‘Rominger laid the asphalt for the 

Road,’ ” denied that it used the encroaching portion of the roadway with Semon’s 

permission or consent and raised several affirmative defenses. In particular, County 

alleged that Semon’s claims are time-barred under Code of Civil Procedure sections 318, 

319, 320 and 338. County asserted it had a right to continued use and possession of the 

roadway through an implied dedication as well as a prescriptive easement pursuant to 

Civil Code sections 1006, 1007 and 1009.6

6 Undesignated statutory designations are to the Civil Code.
6

County also filed a motion for summary judgment or adjudication on the basis that 

(a) County owns an easement through implied dedication for public use since it has been 

certified as a public County highway since 1953, (b) County has a prescriptive easement 

because County has maintained and improved the public road since 1953, and (c) 

Semon’s claims are untimely.

In support of its motion for summary judgment or adjudication, County argued

that “Wisconsin Avenue has been at its present location since at least 1953 when any 

potential claim arising from an alleged trespass accrued.” Accordingly, County claimed

the three-year statute of limitations applicable to a permanent trespass ran out in 1956. 

County also pointed out that after Semon came to believe that the roadway encroached on 

his property in 1993, he waited over 26 years to bring this action when the time for doing 

so had long expired. County further contended that the untimely action is not “save[d]” 

by Semon’s assertion that County used the roadway through permission, as there is no 

“real or admissible evidence” that County did so, especially since County does not 

generally operate a designated highway on a private road through consent or permission, 

and “consent” requires “some type of agreement.”

County also argued that because “Wisconsin Avenue” has been used and 

maintained as a public road between 1953, when it was a certified as a County highway, 

to 1971, it owns an easement for the roadway through an implied dedication for public 

use, a prescriptive easement for the current configuration of the roadway pursuant to 

section 1007, and a vested right of continued use of the roadway pursuant to section 

1009, subdivision (d).

As factual support, County cited to a declaration from County’s Public Works 

Director Michael Azevedo. Azevedo declared that since 1953, County has certified that

“Wisconsin Avenue” is a County maintained highway, which generally means County 

performs all appropriate maintenance on the road and the road is included in County’s 

certification for miles of maintained highways. Azevedo declared that “Wisconsin 
7

Avenue’s location as depicted in the County’s 1953 Certification and Road System Map 

appears to match its current location as depicted on current maps. In that regard, the 

Public Works Department does not have any records indicating that Wisconsin Avenue 

has ever been moved from its location in 1953.” Azevedo further declared that it has 

never been County’s practice to allow a landowner to unilaterally pave, grade, repair or 

apply asphalt to County roads; such work requires an encroachment permit and the public 

works department does not have such a record for the encroaching portion of the 

roadway. Azevedo also stated that he is familiar with County road standards. He has 

inspected the chip seal on the encroaching area of the roadway; “it is typical of a road 

constructed and maintained by the County of Colusa.”

In granting the motion for summary judgment, the trial court focused on whether 

the alleged trespass was permanent or transitory. Citing to Starrh & Starrh Cotton 

Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583 at page 592, the trial court 

agreed with County that the nature and the character of the road, i.e., that it was paved, is

an established intrusion and the intended use of the roadway as part of a public roadway

network demonstrated as a matter of law that the trespass was permanent. In light of this, 

the trial court held that the complaint fell outside the three-year statute of limitations 

under Code of Civil Procedure section 338. The trial court acknowledged a dispute about 

who may have installed some or all of the chip seal pavement but found that Semon was 

aware of the trespass since 1993 and waited until long past the three-year limitations 

period to file the lawsuit. The court found that Semon could not establish a permissive 

use agreement between Semon and County by relying on County’s purported promise to 

realign the road at some point in the future, and that Semon’s reliance on this purported 

promise was insufficient to justify his inaction or to toll the statute of limitation. The 

court stated, “[i]f all that was necessary to toll the running of the limitations period was 

the assertions of a permissive use agreement between parties in a trespass action on the 

basis of a vague statement by one side giving rise to complacency and inaction on the 
8

other side, then the limitations period would be meaningless.” The court found there was 

no evidence that Semon communicated or asserted permissive use to County or that 

County agreed to such an arrangement. The court concluded that because each cause of 

action is based on the underlying trespass, the expiration of the statute of limitations bars 

the suit.

In addition, the trial court found Semon’s causes of action were barred by section 

1009, subdivision (d), which states: “Where a governmental entity is using private lands 

by an expenditure of public funds on visible improvements on or across such lands or on 

the cleaning or maintenance related to the public use of such lands in such a manner so 

that the owner knows or should know that the public is making such use of his land, such 

use, including any public use reasonably related to the purposes of such improvement, in 

the absence of either express permission by the owner to continue such use or the taking 

by the owner of reasonable steps to enjoin, remove or prohibit such use, shall after five 

years ripen to confer upon the governmental entity a vested right to continue such use.” 

The trial court found that the roadway is graded and paved to a degree, making 

improvements visible and the “evidence indicates that the county repeatedly represented 

to the state that the roadway was being maintained as a public roadway, hence public 

expenditure is established.” The court found that the evidence was clear that, since 1993, 

Semon has been aware of the public use of his land, never made any express or implied 

grant or permission to County to use the land, did not take legal action to enjoin, remove 

or prohibit the use of his property, and more than five years has lapsed. As a result, the 

trial court held that as of June 12, 1998, County acquired a vested right in the use of 

Semon’s land.

Finding all causes of actions time-barred and that County had a complete defense 

as to each of the causes of action, the trial court dismissed all causes of action with 

prejudice.
9

DISCUSSION

“Wisconsin Avenue” is a County highway, originally designated to lie on a 

dedicated easement adjacent to Semon’s property. The problem, and the subject of this 

lawsuit, is that the chip seal pavement that created the disputed roadway covers a portion 

of “Wisconsin Avenue” and a portion of Semon’s property. Semon seeks to quiet title 

against that claim and to eject County from the encroaching portion of the roadway. 

Finally, Semon seeks declaratory relief in the form of a judicial determination that the 

true easement, without the encroaching portion, is the actual and proper location for 

County’s roadway. Stated simply, Semon seeks to remove the encroaching portion of the 

roadway such that Semon can begin to personally use that portion of his property. In 

response, County argues Semon’s delay in challenging its trespass means that the lawsuit 

is time-barred and allowed County to obtain a prescriptive right of use. 

On appeal, Semon contends that the trial court erred in finding statements made by 

Rominger in 1993 regarding an agreement Rominger had with County in which 

Rominger would lay the chip seal outside of the easement so that County could later 

realign the road, were inadmissible hearsay. He further argues that his claims are not 

time-barred because the trespass to his parcel of property is continuous and not subject to 

the statute of limitations. Finally, Semon argues that the trial court improperly decided 

issues of fact while simultaneously determining there were none in dispute, especially 

regarding the nature of County’s use of the property, whether such use was permitted by 

Semon, and whether County actually expended funds in maintaining the roadway.

I

Standard of Review

“We review a grant of summary judgment de novo; we must decide independently 

whether the facts not subject to triable dispute warrant judgment for the moving party as 

a matter of law.” (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) We construe the 

moving party’s evidence strictly, and the nonmoving party’s evidence liberally, in 
10

determining whether there is a triable issue. (Alex R. Thomas & Co. v. Mutual Service 

Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72, citing D’Amico v. Board of Medical 

Examiners (1974) 11 Cal.3d 1, 20.)

A defendant moving for summary judgment “must satisfy the initial burden of 

production and make a prima facie showing that ‘one or more elements of the cause of 

action . . . cannot be established, or that there is a complete defense to the cause of 

action.’ ” (Donohue v. AMN Services, LLC (2021) 11 Cal.5th 58, 79, quoting § 437c, 

subd. (p)(2).) If the defendant satisfies this burden, then the burden of production shifts 

to the plaintiff “to show that a triable issue of one or more material facts exists as to the 

cause of action or a defense thereto.” (§ 437c, subd. (p)(2).) But the ultimate burden of 

persuasion remains with the defendant to show that no genuine issue of material fact 

exists and that it is entitled to judgment as a matter of law. (Donohue v. AMN Services, 

LLC, supra, at p. 79.) Summary judgment is granted when there is no triable issue as to 

any material fact and the moving party is entitled to judgment as a matter of law. 

(§ 437c, subd. (c).) 

As to whether the trial court erred in sustaining objections to evidence of the prior 

landowner’s statements, which rulings Semon directly challenges on appeal, “if a party’s 

position depends on patently inadmissible evidence admitted over a proper objection,” or 

conversely if a party was prejudiced by the exclusion of admissible evidence, “a 

reviewing court would be empowered, and indeed obliged, to acknowledge the error” and 

review the evidence within the context of ruling on a motion for summary judgment. 

(Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 711.) Because we 

conclude that there exist triable issues of material fact without relying on the evidence to 

which the trial court sustained objections, we need not review whether the objections 

were properly sustained. This should not be construed as stating any opinion on the 

evidentiary rulings the trial court will necessarily have to make during a trial. However, 

we note that the trial court failed to address Semon’s arguments that Rominger’s 
11

statements are admissible as statements concerning property boundaries under Evidence 

Code section 1323. That statute vests trial courts with broad discretion to evaluate the 

entire record in a given case to determine whether “ ‘the statement was made under 

circumstances such as to indicate its lack of trustworthiness,’ ” including a declarant’s 

potential interest in a disputed border and any motive to lie. (McDermott Ranch, LLC v. 

Connolly Ranch, Inc. (2019) 43 Cal.App.5th 549, 559-560.) This is similar to the 

trustworthy requirements for the admission of statements relevant to the declarant’s state 

of mind under Evidence Code sections 1250 and 1252. For purposes of trial, we 

encourage the trial court to consider the statements’ admissibility under Evidence Code 

section 1323 and, if appropriate, under Evidence Code sections 1250 and 1252. 

II

Status of Property from 1993 to Semon’s Lawsuit

In this case, there is a dispute as to when County’s trespass began. As the trial 

court noted, there is a dispute as to when and by whom the chip seal layer was laid, 

thereby creating the roadway and the encroachment. County claims that it has been 

certifying “Wisconsin Avenue” as a “County Highway” subject to its maintenance since 

1953 and any trespass began that year. Semon alleges the trespass began in April 2018, 

when he sent a letter to County withdrawing his consent to use the encroaching portion of 

the roadway and demanding realignment of the road. The trial court found the trespass 

began in 1993, when Semon recorded his deed to Lot No. 9 and promptly discovered the 

encroaching roadway. We first address the arguments relevant to the time frame 

beginning in 1993 through 2018. 

A. Trespass

The right to exclude persons from using private property is a fundamental aspect 

of private property ownership. (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 

17 Cal.App.5th 245, 258, citing Loretto v. Teleprompter Manhattan CATV Corp. (1982) 

458 U.S. 419, 435.) To bring a claim for trespass, an entry must be without permission 
12

and an unlawful interference with that right of possession of property. (Cobb v. City of 

Stockton (2011) 192 Cal.App.4th 65, 73; Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 

1406.) The elements of trespass are: (1) the plaintiff’s ownership or control of the 

property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; 

(3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the

defendant’s conduct was a substantial factor in causing the harm. (Ralphs Grocery Co. v. 

Victory Consultants, Inc., supra, at pp. 261-262; see also CACI No. 2000.) “The essence 

of the cause of action for trespass is an ‘unauthorized entry’ onto the land of another. 

Such invasions are characterized as intentional torts, regardless of the actor’s motivation. 

Where there is a consensual entry, there is no tort, because lack of consent is an element 

of the wrong.” (Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16-

17.) 

In California, the statute of limitations for bringing a trespass claim is three years. 

(Code Civ. Proc., § 338, subd. (b).) Because the injury in a trespass is an injury to the 

property rather than to the property owner, “the running of the statute of limitations 

against a claim bars the owner and all subsequent owners of the property.” (Beck 

Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 

1216.) “In other words, the statute of limitations does not commence to run anew every 

time the ownership of the property changes hands.” (Ibid.) Whether a trespass claim is 

barred by the statute of limitations turns on whether the wrongdoing is permanent or 

continuing in nature. (See Starrh & Starrh Cotton Growers v. Aera Energy LLC, supra,

153 Cal.App.4th at p. 592.) A permanent trespass is an intrusion on property under 

circumstances that indicate an intention that the trespass shall be permanent. The cause 

of action accrues and the statute of limitations begins to run at the time of entry. (Ibid.) 

Examples of permanent trespassing recognized by the courts include the 

encroachment of buildings (Castelletto v. Bendon (1961) 193 Cal.App.2d 64; Troeger v. 

Fink (1958) 166 Cal.App.2d 22), walls, foundations, pipes, and vents erected on 
13

another’s property (Tracy v. Ferrera (1956) 144 Cal.App.2d 827), and railroad tracks 

(Williams v. Southern Pacific R.R. Co. (1907) 150 Cal. 624). In Polin v. Chung Cho

(1970) 8 Cal.App.3d 673, the court stated, “with respect to buildings or railroads 

tortiously placed on a plaintiff’s land, California cases have not permitted the plaintiff to 

consider the trespass continuing, but have required the plaintiff to consider the trespass 

permanent as of the date of completion of construction and thus have held plaintiff’s 

cause of action barred if not brought within three years of that date. [Citations.]” (Id. at 

pp. 677-678.)

The trial court found the trespass to be permanent and in place since 1993. We 

agree that the roadway here is similar to those structures which the courts have 

determined are permanent for the purpose of the running of the three-year statute of 

limitation for trespass. The roadway is asphaltic in nature and was meant to ease travel 

through the area for a sustained period of time. The continued use for such purposes, 

however, does not render the trespass continuing. Where, as here, the impact of the 

trespass does not vary over time, the trespass is permanent. (See Field-Escandon v. 

DeMann (1988) 204 Cal.App.3d 228, 233-234.) Yet we find it premature, and therefore 

unnecessary to resolve this question. Instead, we find the critical question to be when the 

trespass began. Because the date of encroachment and thus the underlying trespass is a 

triable issue of material fact, even if we concluded the trespass was permanent, without 

the date the trespass began, we are unable to determine when the statute of limitations 

would run.

It is undisputed that the chip seal layer was on the roadway at the time Semon 

purchased his property and recorded the deed in 1993. County asserts that at the latest,

County’s trespass began when he discovered the encroachment in 1993. However, 

Semon states that there was no trespass at that time because, after he alerted County that 

the chip seal layer created a roadway that encroached on his property, Semon “gave 

permission and consented to the County’s encroachment and use” of that portion of the 
14

roadway. Although Semon admitted in his deposition that he did not communicate his 

consent in writing nor did he enter into an “agreement” with County, Semon said that he 

had established a verbal agreement of sorts where he had a good working relationship 

with County representatives and was led to believe through the informal process that 

County would realign the roadway. Semon also states that in 1997, he reaffirmed his 

consent when he told County “that using the Road is ok but that it just needs to be realigned within it[s] Easement.”

If Semon consented to County’s use of the encroaching roadway, County did not

trespass until Semon withdrew his consent in April 2018, the statute of limitations did not 

expire, and County cannot establish a defense pursuant to Code of Civil Procedure 

section 338. County attempts to show it is undisputed that there was no consent by

relying solely on Semon’s deposition testimony of his understanding of an implied 

“verbal agreement” he had with County. However, we find Semon’s declaration that he 

verbally consented on multiple occasions to County’s use, raises a disputed issue as to a 

material fact as to whether County’s use of the encroaching roadway was with Semon’s 

permission. (Cf. Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 106 [when a 

witness’s deposition is squarely controverted by a plaintiff’s declaration, the witness’s

statement is not a “material fact”].) 

Nevertheless, County asserts that as a matter of law there was no consent because 

there was no mutual agreement with County as to the continued use of the road. As 

support for this proposition, County cites to authorities involving contract law. (§§ 1550, 

1565; Sieck v. Hall (1934) 139 Cal.App. 279, 291.) County cites no authority, and we are 

aware of none, that a mutual agreement or contract is necessary to establish consent 

within the context of an allegation of trespass. Instead, it has long been established that 

the property owner possesses the right to consent to another’s entry into the owner’s 

property. “One who is on the land of others without their consent and against their will, 

is a ‘trespasser.’ ” (MacLeod v. Fox West Coast Theatres Corp. (1937) 10 Cal.2d 383, 
15

387, italics added.) Accordingly, we reject County’s argument that there was no consent 

because County did not agree to the consent. 

We therefore conclude that there is a triable issue as to whether Semon consented 

to County’s use of the encroaching portion of the roadway from 1993 to 2018, just prior 

to the filing of the lawsuit. 

B. Civil Code section 1009

As relevant to Semon’s discovery of the encroachment in 1993, County asserts 

that it has obtained a prescriptive easement pursuant to section 1009. Semon disagrees, 

arguing there is a triable issue of material fact as to whether County expended any public 

funds for maintenance of the roadway. We agree with Semon.

A private landowner may transfer (the legal term is dedicate) an interest in land to 

the public for no compensation. (Scher v. Burke (2017) 3 Cal.5th 136, 141.) This could 

occur through either the common law or statute. (Friends of the Trails v. Blasius (2000) 

78 Cal.App.4th 810, 820; Mikkelsen v. Hansen (2019) 31 Cal.App.5th 170, 176.) Prior to 

the enactment of section 1009 on March 4, 1972, there were various ways to obtain such 

a dedication: the process generally included an examination of the owner’s intent to offer 

the land (either through overt acts or other evidence that supports an attribution of intent 

to dedicate) and an acceptance of that offer by the public (either formally by the proper 

public officials or through a sustained use of the property by the public). (Mikkelsen v. 

Hansen, supra, at pp. 175-176.) However, the landscape surrounding dedications of 

property changed with the enactment of section 1009.

Section 1009 provides that “. . . except as otherwise provided in subdivision (d), 

no use of [private real property] by the public after the effective date of this section shall 

ever ripen to confer upon the public . . . a vested right to continue to make such use 

permanently” without an express dedication by the owner. (§ 1009, subd. (b); see 

Friends of the Trails v. Blasius, supra, 78 Cal.App.4th at p. 823.) To reiterate, 

subdivision (d) permits dedication by prescription where “a governmental entity is using 
16

private lands by an expenditure of public funds on visible improvements on or across 

such lands or on the cleaning or maintenance related to the public use of such lands . . . in 

the absence of either express permission by the owner to continue such use or the taking 

by the owner of reasonable steps to enjoin, remove or prohibit such use, shall after five 

years ripen to confer upon the governmental entity a vested right to continue such use.” 

(§ 1009, subd. (d).) Thus, as of March 4, 1972, for noncoastal properties used by the 

public for nonrecreational use, a prescriptive right of use is available only where 

governmental agencies have improved, maintained, or cleaned the land by expenditure of 

public funds. (Scher v. Burke, supra, 3 Cal.5th at p. 144; County of Los Angeles v. Berk 

(1980) 26 Cal.3d 201, 231 (dis. opn. of Clark, J.).)

Here, County asserts it meets the requirements of section 1009 because since 1953 

it has certified to the State of California that “Wisconsin Avenue” is a County maintained 

public highway. In support of this assertion, County cites a provision of the Highway 

Users Tax Account statutes, which requires counties to submit the mileage of highways it 

maintains. (See Sts. & Hy. Code, § 2121.) However, the encroachment is not necessarily 

“Wisconsin Avenue” as County has certified. Indeed, the disputed portion of the 

roadway is that portion which abuts Wisconsin Avenue and encroaches upon Semon’s 

property. County offers no evidence that it actually expended funds for visible 

improvements, maintenance or cleaning related to the public use of the encroaching 

portion of the roadway. County’s failure to provide this evidence defeats, for purposes of 

summary judgment, its claim that it has acquired a vested right of use under section 1009. 

III

Status of Property prior to 1993

County argues that it has complete defenses to Semon’s claims based on the status 

of the property prior to 1993. Specifically, County claims that because “Wisconsin 

Avenue” existed as a permanent fixture since 1953, any trespass began at that time and 

the statute of limitations for bringing this claim expired in 1956. County also claims that 
17

prior to 1971, it obtained an easement through implied dedication and a prescriptive 

easement under section 1007. Semon disagrees, arguing that there is a triable issue of 

material fact as to whether the public ever used the roadway prior to 1971. We agree 

with Semon.

A. Trespass

As previously mentioned, the parties dispute when the trespass began. County 

repeatedly relies on the fact that “Wisconsin Avenue” has existed since at least 1953, thus 

the basis for any claim began in 1953. Yet County officials admitted that prior to 1993 

County did not survey the portion of “Wisconsin Avenue” (south to north), adjacent to 

Semon’s property but that “[e]veryone has agreed . . . that [Wisconsin Avenue’s] current 

location deviates from the deeded easement.” Thus, it appears from the record before us 

that “Wisconsin Avenue” as it exists on official documents is different than the chip 

sealed roadway. Moreover, only the portion of the chip sealed roadway that encroaches 

on Semon’s land serves as the basis for Semon’s trespass claim. County has offered no 

evidence that County actually laid the chip seal or that it was laid in 1953. In fact, the 

parties dispute when and by whom the chip sealed roadway was created. Because the 

earliest date the trespass could begin is when the chip seal was laid, without that date, we 

cannot conclude as a matter of law that a trespass began in 1953 and that the statute of 

limitations expired in 1956. County’s failure to show that the portion of the chip sealed 

roadway that encroaches onto Semon’s property and abuts “Wisconsin Avenue” has 

existed since 1953 results in a failure to meet its burden, for purposes of summary 

judgment, to show there is a complete defense to Semon’s cause of action for trespass as 

time-barred as of 1956. 

B. Implied Dedication

County asserts that it obtained an implied dedication of the land used for the 

roadway prior to 1971, long before Semon purchased Lot No. 9. “ ‘Dedication has been 

defined as an appropriation of land for some public use, made by the fee owner, and 
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accepted by the public. By virtue of this offer which the fee owner has made, he is 

precluded from reasserting an exclusive right over the land now used for public purposes. 

American courts have freely applied this common law doctrine, not only to streets, parks, 

squares, and commons, but to other places subject to public use. California has been no 

exception to the general approach of wide application of the doctrine.’ ” (Friends of the 

Trails v. Blasius, supra, 78 Cal.App.4th at p. 820.)

As previously mentioned, the law regarding dedications of private land for public 

use changed in 1972 through the enactment of section 1009. “The provision also 

operates prospectively only, forbidding reliance only on post-1972 public use to support a 

claim of implied dedication.” (Scher v. Burke, supra, 3 Cal.5th at p. 147.) This means 

the statute does not affect rights that vested before March 4, 1972. (Friends of the Trails 

v. Blasius, supra, 78 Cal.App.4th at p. 823.) As relevant here, to prove a common law 

dedication of property to the public prior to the change in law in 1972, a litigant must 

establish open and continuous use by the public for the prescriptive period. (Gion v. City 

of Santa Cruz (1970) 2 Cal.3d 29, 38, superseded by statute as stated in Scher v. Burke, 

supra, 3 Cal.5th at p. 139.) For those actions, the question is whether the public has used 

the land “ ‘for a period of more than five years with full knowledge of the owner, without 

asking or receiving permission to do so and without objection being made by anyone.’ ”

(Union Transp. Co. v. Sacramento County (1954) 42 Cal.2d 235, 240.) Litigants seeking 

to show that land has been dedicated to the public need only produce evidence that 

persons have used the land as they would have used public land. “If a road is involved, 

the litigants must show that it was used as if it were a public road. Evidence that the 

users looked to a governmental agency for maintenance of the land is significant in 

establishing an implied dedication to the public.” (Gion v. City of Santa Cruz, supra, at 

p. 39.) The evidence must also demonstrate that “various groups of persons,” not a 

“limited and definable number of persons,” have used the land “ ‘when they wished to do 
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so without asking permission and without protest from the land owners.’ ” (Id. at pp. 39, 

40.) 

County argues that because “Wisconsin Avenue” has been a certified highway 

maintained by County for public use for almost 70 years, County has shown that the road 

has been used as a road for more than five years and that County has continuously 

provided all appropriate maintenance for that road over that time. As a result, County 

argues, it has acquired an easement through implied dedication. In that sense, County 

asserts that this case is similar to Bess v. County of Humboldt (1992) 3 Cal.App.4th 1544, 

1550. We disagree on both counts. 

In Bess, there was evidence that the general public used the road at issue to gain 

access to a river. The plaintiffs were also notified that their purchases of the parcels of 

property were subject to the rights of the State of California in the nearby river, and of the 

public to use the road. (Bess v. County of Humboldt, supra, 3 Cal.App.4th at p. 1548.) 

Not so here. Here there is no evidence the public ever used the encroaching portion of 

the roadway. In this respect, this case is more like Friends of Hastain Trail v. Coldwater 

Development LLC (2016) 1 Cal.App.5th 1013, 1035-1036, where evidence that sporadic 

and inconsistent use of a trail by seven hikers throughout the prescriptive period was 

insufficient to support an implied dedication of an easement, because as the court held, 

the public’s use must be sufficient to put the owner on notice that their property is in 

danger of being publicly dedicated. (Id. at pp. 1029-1030.) Here, County has not 

provided any evidence of public use between 1953 and 1972. Nor are we inclined to 

presume that “various groups of persons” did so and that public use was “substantial” in 

light of the fact that the first residence on the road was purportedly not constructed until 

1977. (See Gion v. City of Santa Cruz, supra, 2 Cal.3d at p. 39; County of Los Angeles v. 

Berk, supra, 26 Cal.3d at p. 209; cf. Brumbaugh v. County of Imperial (1982) 

134 Cal.App.3d 556, 560 [dedication of land was proven when many witnesses testified 
20

to the use the road over the years for access to the nearby river in connection with 

recreational activities such as boating, fishing, camping, and hunting].) 

Also in Bess, Humboldt County recognized the road at issue was “a part of the 

county road system, certified to the state that it had an obligation to maintain the road 

and, in fact, performed routine maintenance on it over the years.” (Bess v. County of 

Humboldt, supra, 3 Cal.App.4th at p. 1548, italics added.) In contrast here, County has 

provided no evidence that it, in fact, performed routine maintenance on the roadway 

between 1953 and 1972.7 (See Aptos Seascape Corp. v. County of Santa Cruz (1982) 

138 Cal.App.3d 484, 502 [where, prior to 1972, there was no evidence of any 

governmental maintenance of the disputed area and evidence of only occasionally 

permitted use, the evidence did not support an implied dedication].) Accordingly, 

County has not shown, for purposes of summary judgment, that it has a complete defense 

to Semon’s claims through an implied easement. 

C. Prescriptive Easement

County also claims that it has a complete defense to Semon’s causes of action 

because, prior to 1972 when section 1009 was enacted, it acquired a prescriptive 

easement under section 1007. A prescriptive easement, if shown, is a defense to trespass, 

ejectment and quiet title causes of action. (See Kapner v. Meadowlark Ranch Assn.

(2004) 116 Cal.App.4th 1182, 1189 [a trespass is an invasion of the exclusive possession 

of land by entry upon it, which does not happen if a defendant meets the criteria for a 

prescriptive easement]; Wood v. Truckee Turnpike Co. (1864) 24 Cal. 474, 478 [“An 

action of ejectment will not lie against one claiming an easement in a parcel of land, to 

7 Although the record contains evidence that County placed stop signs along “Wisconsin 

Avenue,” County does not rely on this as evidence of public fund expenditure for 

maintenance. Indeed, it is unclear from the evidence that the stop signs are relevant to 

the encroaching portion of the roadway.
21

try his right to enjoy the same”]; Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1096 

[an action to quiet title to real property is considered one for the recovery of property, and 

subject to the limitations set forth in §§ 318 & 321].) 

To establish the elements of a prescriptive easement, County must prove use of the 

property, for the statutory period of five years, which use has been (1) open and 

notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under 

claim of right. (§ 1007; Code Civ. Proc., § 321; Mehdizadeh v. Mincer (1996)

46 Cal.App.4th 1296, 1305.) A claim of right does not require a belief or claim that the 

use is legally justified. (Lord v. Sanchez (1955) 136 Cal.App.2d 704, 707.) It simply 

means that the property was used without permission of the owner of the land. (Ibid.) 

As noted above, there exist several triable issues as to material factsthat defeat 

County’s request for summary judgment on this asserted defense. First, there is no 

evidence when or by whom the chip sealed roadway, and accordingly the encroachment, 

was created. In addition, whether the public actually used the encroaching portion of the 

roadway prior to 1972, and whether such use was hostile, are also disputed. As a result, 

we cannot conclude as a matter of law that the encroaching portion of the roadway 

existed or was used in a manner that was open and hostile for five years prior to the law 

change in 1972. 

Finding there are triable issues of fact pertaining to Semon’s causes of action and 

County’s defenses, we conclude that County is not entitled to judgment as a matter of 

law. As such, we reverse the trial court’s grant of summary judgment. 
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DISPOSITION

The trial court’s ruling granting the motion for summary judgment is reversed. 

Semon shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

 /s/

EARL, J.

We concur:

 /s/

HULL, Acting P. J.

 /s/

KRAUSE, J.