1

Filed 10/23/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

TIBURON/BELVEDERE 

RESIDENTS UNITED TO SUPPORT 

THE TRAILS,

Plaintiff and Appellant,

v.

MARTHA COMPANY,

Defendant and Respondent.

 A157073

 (Marin County

 Super. Ct. No. CIV 1703276)

Tiburon/Belvedere Residents United to Support the Trails 

(TRUST) appeals from a judgment entered in respondent Martha 

Company’s (Martha) favor after a court trial. TRUST argues that, 

nearly 50 years ago, the public’s use of trails on Martha’s property 

established a recreational easement under the doctrine of implied 

dedication and that the trial court erred in reaching a contrary result. 

We disagree, conclude the trial court’s findings are supported by 

substantial evidence, and affirm.

BACKGROUND

A.

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 (Scher); Friends of Hastain Trail v. Coldwater 

Development LLC (2016) 1 Cal.App.5th 1013, 1027 (Hastain Trail).) A 
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dedication may be express or implied, but both require an offer of 

dedication and acceptance of that offer. (Scher, supra, 3 Cal.5th at p. 

141.) An offer to dedicate may be implied in fact when there is proof 

that the owner consented to the dedication. (Ibid.) An offer may be 

implied by law when the public has used the land openly and 

continuously, as if the users believed the public had a right to do so, 

without objection by the landowner. (Ibid.; Gion v. City of Santa Cruz 

(1970) 2 Cal.3d 29, 38-39 (Gion).) Significant, longtime use by the 

public provides constructive notice to the landowner that the property 

is at risk of dedication; if the landowner takes no serious steps to 

discourage the use, the law conclusively presumes that the landowner 

has agreed to the dedication. (See Gion, 2 Cal.3d at pp. 38-41.)

In Gion, our Supreme Court held that an implied by law

dedication is established when “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.’ ” (Gion, supra, 2 Cal.3d at p. 38.) Civil Code 

section 1009, subdivision (b),1 abrogated the Gion decision 

prospectively, which is why the dispute before us centers on the fiveyear period preceding section 1009’s effective date (March 4, 1972). 

(Stats. 1971, ch. 941, § 2; Scher, supra, 3 Cal.5th at p. 147; Hastain 

Trail, supra, 1 Cal.App.5th at p. 1028.) Once a dedication is 

established, “[n]othing can be done . . . to take back that which was 

previously given away.” (Gion, supra, 2 Cal.3d at p. 44.)

1 Undesignated statutory references are to the Civil Code.
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B.

Martha owns 110 acres of undeveloped land on the Tiburon 

peninsula, near the communities of Tiburon and Belvedere. The 

property was used for cattle grazing until 1959. Martha has owned the 

property since the 1920s, and the company has at all relevant times 

been owned and controlled by members of the Reed family. 

The property is bounded by Paradise Drive to the north and east, 

a residential neighborhood (Hillhaven) to the south, and what is now 

the Old St. Hilary’s Open Space Preserve to the west. Four roads 

essentially dead-end at the property: Spanish Trail Road, Ridge Road, 

Mountain View Drive, and Straits View Drive. The property affords 

views of Angel Island, San Francisco, and the Golden Gate Bridge.

In 2017, TRUST filed a complaint to quiet title, in favor of the 

public, to recreational easements over four trails on the property—the 

Ridge Trail, the Spanish Trail, and northern and southern trails that 

connect the two named trails. The trails can be accessed from 

approximately seven points at the boundary of the property. TRUST

proclaims its mission is to “save these trails, not only for the present, 

but to save them into the future and combine them with other trails to 

form a network for the public to enjoy.” 

C.

The case proceeded to a bench trial. TRUST’s 28 witnesses

testified generally that, during the five-year period preceding March 4, 

1972, they, and their occasional guests, used the trails for various 

forms of recreation, including hiking, running, dog walking, motor 

biking, biking, horseback riding, bird watching, cardboard sledding, 

and picnicking. TRUST witnesses testified that they saw others, some 
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of whom they knew and others whom they did not know, frequently 

using the trails in similar ways. 

Although a few of TRUST’s witnesses lived in other parts of 

Tiburon or Belvedere at the time they used the trails, the vast majority 

lived in the Tiburon neighborhoods immediately surrounding the 

property. Only one of TRUST’s witnesses lived outside of Tiburon or 

Belvedere, but when he used the trails he was a neighbor’s guest. 

Almost half of TRUST’s witnesses were under the age of 18 in 1967. 

Most of TRUST’s witnesses testified that they never requested or

received permission to use the trails and that during the relevant 

period no one ever objected to their use. Some of TRUST’s witnesses 

believed the public owned the trails, some did not know whether 

anyone owned them, and still others knew the land was privately 

owned but felt no need to seek permission from the owner to use the 

trails. One witness explained, “Tiburon was pretty open and relaxed, 

and we could go anyplace we wanted to[.]” Another witness said he was 

“[t]oo young . . . to consider whether I would ask permission.” 

Some of TRUST’s witnesses stated there had been no barriers 

blocking access to the trails. The majority remembered that there had

been gates or old fences of some kind where the property line

intersected the trails, but these did not block their access to the 

property. With only a couple of exceptions, TRUST’s witnesses testified 

that they did not remember seeing “no trespassing” or “private 

property” signs on the property. 

TRUST’s aerial photography expert, David Ruiz, testified that 

aerial photos taken of the property between 1946 and 1972 showed that

the trails appeared between 1953 and 1963 and that trail use increased 
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between 1967 and 1972, as development increased in the surrounding 

neighborhoods. According to Ruiz, the four trails were well established

and continuously used in the latter period. Ruiz opined that many

people, coming from a variety of access points, used the trails daily 

during the relevant period. However, Ruiz conceded he had no way of 

knowing how many people used the trails with the owner’s permission 

or the number who trespassed. 

D.

Martha’s witnesses, including several members of the Reed 

family, painted a different picture. They testified that, during the 

relevant period, fences, gates, and “no trespassing” signs were in place 

at trail access points. Trespassers frequently cut wires in the fencing 

and removed signs, necessitating continual repairs. 

Edgar Reed was the caretaker of the property in the 1960s and 

1970s. He lived across the street with his wife and three children—

Patricia, Mark, and Richard. Between 1967 and 1972, the Reed family 

gave permission to certain friends and neighbors to camp and ride 

minibikes or horses on the property. Martha also leased portions of the 

property for grazing and corralling horses. 

Edgar died in 1989, but his children and other relatives testified 

that for decades, including the relevant period, he regularly patrolled 

the property, posted “no trespassing” signs, maintained fencing, 

removed improvements installed by trespassers, and asked trespassers

to leave. Other members of the family, including Patricia, Mark, and 

Richard, assisted in that effort, and photographs corroborated the 

existence of fencing and signs. Martha produced witnesses who used 

the property as children during the relevant period and recalled that 
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Edgar Reed patrolled the property and, if he saw them, would kick 

them off. 

E.

The trial court concluded TRUST failed to show that the public’s 

use of the trails was sufficient “to make a ‘conclusive and undisputable 

presumption of knowledge and acquiescence.’ ” In its statement of 

decision, the court reasoned: “It is a high standard to take away a 

party’s land in favor of a public dedication. Hastain Trail, supra, 1 

Cal.App.5th at p. 1032. In this case that standard has not been met.

[¶] The evidence from 28 individuals on behalf of TRUST was that the 

trails were being used without permission, some trails more than 

others, during the five-year period. The evidence was also clear that 

most of these witnesses were nearby neighbors to the property and 

many were children at the time.” 

The trial court continued: “There was also credible evidence that 

the property’s owners regularly repaired the fences surrounding the 

property and repeatedly posted ‘No Trespassing’ signs (many of which

were apparently removed by trespassers). There was also evidence 

that the owners asked unpermitted trespassers to leave. In addition, 

there was evidence that the one person responsible for this property 

during the relevant period regularly patrolled it. Of course, one person 

patrolling 110 undeveloped acres could not effectively encounter every 

trespasser. The court believes that these efforts were sufficient; and 

that the owners should not be reasonably expected to take greater

actions . . . to avoid the presumption of public dedication.” It was 
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unnecessary for the trial court to decide whether a laches defense 

applied. The court entered judgment for Martha. 

DISCUSSION

A.

Whether a public dedication can be implied by law is highly fact 

dependent (County of Los Angeles v. Berk (1980) 26 Cal.3d 201, 216; 

Gion, supra, 2 Cal.3d at p. 41; Friends of the Trails v. Blasius (2000) 78 

Cal.App.4th 810, 822 (Blasius)), and we review the trial court’s decision 

for substantial evidence. (Hastain Trail, supra, 1 Cal.App.5th at p. 

1029.) “In doing so, we accept as true all evidence tending to establish 

the correctness of the trial court’s findings, take into account all 

reasonable inferences that could lead to the same conclusion, and 

resolve every substantial conflict in the evidence in favor of the 

findings.” (Ibid.) We review de novo the trial court’s interpretation of

law. (See Prout v. Department of Transportation (2018) 31 Cal.App.5th 

200, 211.)

B.

TRUST argues that the trial court applied the wrong legal 

standard by discounting the testimony of neighbors and of witnesses 

who were children during the relevant period. We disagree.

To establish an implied dedication, the general public must use 

the property. The ultimate question is “whether the public has 

engaged in ‘long-continued adverse use’ of the land sufficient to raise 

the ‘conclusive and undisputable presumption of knowledge and 

acquiescence.’ ” (Gion, supra, 2 Cal.3d at p. 38, italics added.) The 

public must demonstrate “through its actions that its members believed 

that they had a right to use the property as they did” and that belief 
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was reasonable in light of the circumstances. (County of Los Angeles v. 

Berk, supra, 26 Cal.3d at p. 216.) The use “must ‘clearly indicate to the 

owner that his property is in danger of being dedicated.’ ” (Hastain 

Trail, supra, 1 Cal.App.5th at p. 1029.) A plaintiff must show “that ‘the 

public has engaged in “long-continued adverse use” ’ ” that negates “ ‘

“the idea of a mere license” ’ or neighborly accommodation.” (Id. at p. 

1035; accord, Gion, supra, 2 Cal.3d at p. 38.) 

While neighbors are members of the general public, and their 

testimony is relevant, use by neighbors is not equivalent to use by the 

general public. As our Supreme Court has stated, a plaintiff must 

demonstrate that “various groups of persons,” not a “limited and 

definable number of persons,” have freely and openly used the land. 

(Gion, supra, 2 Cal.3d at pp. 39, 40.) When the predominant users are 

neighbors, the landowner may have simply tolerated their use as a 

neighborly accommodation. (See id. at pp. 39-40; Hastain Trail, supra, 

1 Cal.App.5th at p. 1029.) When, on the other hand, the owner 

tolerates (for five years without objection) use that is substantial, 

diverse, and sufficient to convey notice that the general public believes 

it has a right to use the property, the law deems it fair to presume 

conclusively that the owner had notice of the public use and acquiesced 

to it. (See Gion, supra, 2 Cal.3d at p. 39; Blasius, supra, 78 

Cal.App.4th at pp. 825-826, fn. 7.)

The risk of dedication should be more obvious to a landowner

when large numbers of people, coming from diverse groups within the 

general public, are using the landowner’s property. For example, 

widespread public use indicates a more common belief in the 

community that the property is available for public use; it may include
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more visitors that the owner does not recognize; and it may be more 

visible because, unlike locals, the general public may need to use cars 

and parking to visit the property. 

Children present a similar problem. We need not dispute that 

they are members of the public and that their testimony is relevant. 

(But see Hastain Trail, 1 Cal.App.5th at p. 1041 (Chaney, J., 

concurring) [children are “born trespassers” who cannot establish a 

reasonable belief by the public of its right to use property].) The 

children here all lived locally; they were a subset of the neighbors. 

They do not supply the missing diversity. 

The trial court did not err. It pointed out the limitations in

TRUST’s evidence, which demonstrated public recreational use that 

was not diverse or substantial because the trails were primarily used 

by a relatively small group of neighbors, a significant number of whom 

were children. In doing so, the trial court did nothing more than fulfill 

its duty to decide whether the public’s use of the four trails was 

sufficient to put Martha on notice of a risk of dedication. (See Gion, 

supra, 2 Cal.3d at pp. 39-40; Hastain Trail, supra, 1 Cal.App.5th at pp. 

1029, 1035.) 

C.

Substantial evidence supports the trial court’s finding that the 

trails were insufficiently used by the public. 

The trails were no doubt used by local individuals, families, and 

groups of children, along with their occasional guests, for hiking, bike 

riding, picnicking, and other recreational pursuits. But substantial

evidence suggests there were never more than a few people on the 

trails at any given time. Indeed, several of TRUST’s witnesses testified 
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they used the trails to be alone or to engage in activities that would 

have been dangerous in more crowded settings, such as riding 

motorcycles. 

For the reasons explained above, the users were not diverse 

because they were primarily neighbors and, frequently, neighborhood

children. Finally, in contrast to Gion, TRUST does not rely on any 

evidence that a public entity maintained the trails or any associated 

facilities. (See Gion, supra, 2 Cal.3d at pp. 35, 43-44 [city paved part of 

property for parking, maintained trash cans, took measures to prevent 

erosion].) 

TRUST’s expert witness did not fill the evidentiary void. The 

expert opined, after reviewing aerial photographs, that the four trails 

were used frequently and continuously between 1967 to 1972. But his 

opinion was of limited assistance, as the existence of the trails was not 

in dispute, and TRUST’s expert had no way of knowing whether the 

trails were used by diverse groups or whether they were used with the 

owner’s permission. 

TRUST did not meet its burden. Substantial evidence supports 

the trial court’s finding of insufficient use by the general public. (See 

Gion, supra, 2 Cal.3d at pp. 39, 40; Hastain Trail, supra, 1 Cal.App.5th 

at p. 1035; Blasius, supra, 78 Cal.App.4th at pp. 825-826, fn. 7.)

D.

We reject TRUST’s argument that the trial court imposed a 

higher burden of proof than required by law or exhibited “hostility” 

toward the doctrine of implied dedication. In its statement of decision, 

the trial court merely referred to the high legal standard that public 

use must meet in order to put a landowner on notice of the risk of
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implied dedication. (See, e.g., Gion, supra, 2 Cal.3d at p. 38 [“the 

question is whether the public has engaged in ‘long continued adverse 

use’ of the land sufficient to raise the ‘conclusive and indisputable 

presumption of knowledge and acquiescence’ ”]; Hastain Trail, supra, 1 

Cal.App.5th at p. 1032 [“ ‘If a landowner’s intent to dedicate property to 

public use is to be implied, that purpose must clearly appear from the 

surrounding circumstances’”], italics added; Hanshaw v. Long Valley 

Road Assn. (2004) 116 Cal.App.4th 471, 482 [“where an intent to 

dedicate is implied as a legal fiction from the nature of public usage, 

the caselaw requires a high standard of usage, lest private property 

rights be too easily diminished”], italics added & disapproved on 

another point by Scher, supra, 3 Cal.5th at pp. 149-150 & fn. 5.) 

E.

Even if we assume, for the sake of argument, that TRUST 

showed substantial, diverse, and sufficient public use, substantial 

evidence also supports the trial court’s finding that Martha made 

adequate bona fide attempts to prevent public use. (Gion, supra, 2 

Cal.3d at p. 41.)

1.

Once a plaintiff has shown the requisite public use, the burden 

shifts to the landowner to “either affirmatively prove that he has 

granted the public a license to use his property or demonstrate that he 

has made a bona fide attempt to prevent public use.” (Gion, supra, 2 

Cal.3d at p. 41.) 

While an owner’s efforts may have been so minimal as to be 

inadequate as a matter of law, ordinarily the question is factual. 

(County of Los Angeles v. Berk, supra, 26 Cal.3d at p. 216; Gion, supra, 
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2 Cal.3d at p. 41 [when owner “has not attempted to halt public use in 

any significant way, . . . it will be held as a matter of law that he 

intended to dedicate the property”].) “Whether an owner’s efforts to 

halt public use are adequate in a particular case will turn on the means 

the owner uses in relation to the character of the property and the 

extent of public use. Although ‘No Trespassing’ signs may be sufficient 

when only an occasional hiker traverses an isolated property, the same 

action cannot reasonably be expected to halt a continuous influx of 

beach users to an attractive seashore property.” (Gion, supra, at p. 41.)

An owner’s efforts suffice if, considering all the circumstances, they 

would put a reasonable member of the public on notice that her use is 

unauthorized. (County of Los Angeles v. Berk, supra, 26 Cal.3d at p. 

216.)

2.

TRUST, in effect, asks us to ignore the trial court’s weighing of 

conflicting evidence. According to TRUST, we should disregard the 

Reed family’s evidence of signs, fences, gates, and patrols prior to the 

Gion decision (March 4, 1972) as self-serving and not credible. The 

argument is unpersuasive. 

The trial court resolved the conflict in favor of Martha when it 

found that Martha “regularly repaired” fences and “repeatedly posted” 

no trespassing signs at trail access points. That finding was 

adequately supported by evidence that members of the Reed family 

repaired gates or fences to block access to the trails at the property line, 

posted no-trespassing signs, and ejected some (but certainly not all) 

trespassers during the relevant period. Photographs corroborated their 

testimony. 
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No doubt, Martha’s efforts were imperfect. Numerous witnesses 

testified that the fencing was frequently cut or otherwise easy to 

circumvent and that trespassers often removed “private property” and 

no-trespassing signs. And, trespassers did access the trails. 

However, an owner’s efforts to prevent public access need not be 

wholly effective to be adequate, especially if the area is undeveloped

and public use is light. (See County of Orange v. Chandler-Sherman

Corp. (1976) 54 Cal.App.3d 561, 566-567 [substantial evidence supports 

trial court’s no dedication finding when no more than 12 to 15 people

used the 2,000-foot beach at any given time, no government role in 

maintenance, and owner “took reasonable and significant, although not 

necessarily effective, measures to control [public] use”].) 

Here, the property has always been large, undeveloped, and 

heavily vegetated. It also has steep slopes, making it difficult to see the 

entire property from any one vantage point. At the relevant time, 

Tiburon was “very rural” and had experienced “very little

development.” The geography of the Tiburon peninsula itself made 

these trails even more remote and inaccessible to anyone who did not 

live immediately nearby. It also bears repeating that the amount and 

variety of public use in this case was significantly less than that 

involved in Gion or Blasius. (See Gion, supra, 2 Cal.3d at pp. 34-37; 

Blasius, supra, 78 Cal.App.4th at p. 819.) In these circumstances, 

Martha’s maintenance of fences, gates, and signs at trail access points 

is significant. 

The trial court could reasonably find that Martha’s efforts put 

trespassers on notice that their use was unauthorized. Particularly 

with a rural property, fences and gates across a trail can make the 
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owner’s intent clear, even without “no trespassing” signs. And even 

when a particular fence or gate was in disrepair, users could not 

reasonably believe they had the right to use the trails if they ducked 

through openings in barbed wire fencing or stepped over chains, gates, 

or downed fence wires, near a “no trespassing” sign, to do so. There 

was also a running battle between some users, who took down signs 

and fences, and the Reed family, who repaired them, which further 

indicates both that the users did not believe that they had a right to 

use the property and that the Reeds made bona fide efforts to deter 

them. 

In short, this is not a case in which the landowner was indifferent 

to public use of its property or its efforts were so anemic that we can 

impute to it an intention to dedicate the trails as a matter of law. (See 

Gion, 2 Cal.3d at p. 41; cf. City of Long Beach v. Daugherty (1977) 75 

Cal.App.3d 972, 978 [landowner’s attempts to remove only “ ‘rowdy’ ”

users from beach inadequate to negate implied dedication].) 

Substantial evidence supports the trial court’s finding that Martha’s 

attempts to deter trespassers showed it did not acquiesce to public 

dedication. We need not reach the parties’ remaining arguments.2

DISPOSITION

The judgment is affirmed. Martha Company is awarded its costs 

on appeal.

2 Martha asks us to take judicial notice of excerpts from Marin 

County’s Draft Environmental Impact Report prepared for proposed 

development on the property. We deny the request for judicial notice 

because Martha fails to show the excerpts are relevant to the implied

dedication question. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 

544, fn. 4.)
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_______________________

BURNS, J. 

We concur:

____________________________

NEEDHAM, ACTING P.J.

____________________________

REARDON, J.*

A157073

* Judge of the Superior Court of Alameda County, assigned by 

the Chief Justice pursuant to article VI, section 6 of the California 

Constitution.
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Superior Court of Marin County, No. CIV1703276, Hon. Roy Chernus

Lukens Law Group, William M. Lukens; Cotchett Pitre & McCarthy 

LLP, Joseph Winters Cotchett, Eric J. Buescher, and Alison E. Cordova 

for Plaintiff and Appellant.

Cox Castle & Nicholson LLP, Andrew B. Sabey, Jonathan S. Kitchen, 

and James M. Purvis for Defendant and Respondent. 

Shute, Mihaly & Weinberger, Fran M. Layton and Lauren Mary Tarpey 

for The Sierra Club and Marin Conservation League as Amici Curiae 

on behalf of Plaintiff and Appellant. 

Burke Williams & Sorensen LLP, Benjamin Louis Stock and Joanne 

Leah Castella for Town of Tiburon as Amicus Curiae on behalf of 

Plaintiff and Appellant.