A centuries-old peculiarity of the English common
law has created a strange predicament for David and Catherine Mease,
who are now under pressure from hikers, equestrians, mountain bikers,
and county parks officials to relinquish control of a portion of their
Nicasio property.
The couple’s 39.5-acre plot on Moon Hill
is a gateway to one of the most popular trail networks in West Marin.
A fire road that crosses their land for less than half a mile connects
to the Dixon Ridge Trail, which in turn links to 40 miles of trails
leading west through Samuel P. Taylor State Park and the Point Reyes
National Seashore. From the entrance to the Meases’ driveway,
an intrepid walker could travel on foot to the Pacific Ocean.
After seven years of allowing the public free
access to their land, the Meases are being asked to turn over jurisdiction
of the fire road to the county’s Open Space District. Such a
move would reassure those who worry that the couple could one day
close the road, thus breaking the circuit of ridge-top trails running
through the north side of the San Geronimo Valley.
When planning commissioners convened last week
to consider Mease’s proposal to build a house, some 80 Valley
residents turned out to request that the road be turned over to the
county. The hearing was continued to Jan. 24 because extensive public
comment left little time for commissioners to deliberate.
"They’re just getting this whole wonderful
trail system together," San Rafael resident Judy Hall, who leads
hikes for the Sierra Club, said this week. "It would be a terrible
thing to close that ridge off just when other things are all getting
connected for the first time."
But David Mease says it’s never been his
intention to close the fire road. All that exists on the Kentfield
resident’s property now is a small vineyard of 1,500 pinot noir
vines, though he recently submitted an application to build two houses
(he only plans to build one, he said, but would like to maintain the
option of splitting the land into two lots). The fire road will stay
open, he said, regardless of future construction.
"The biggest misinformation that’s
out there is that we’re going to close off this fire road,"
Mease said. "What we’ve always said is we’re okay with
the local usage the way it is now. But we don’t want a thoroughfare."
Laws date to 15th century
Open Space officials are trying to acquire the
fire road through an agreement known as an "easement." Easements
are an aspect of the English common law grandfathered into the American
legal system by which one can dedicate the use of a piece of land
to another while remaining its nominal owner. One legal expert said
that easements probably came into being with the advent of private
property in the 15th and 16th centuries. At that time, an English
society in the first blush of capitalism balked at the notion of land
left unproductive.
Owners shirking their responsibility to work
the land were seen as ne’er-do-wells who deserved to have their
property taken by people who would put it to good use. Absentee landlords
who didn’t bother to check whether someone else was camped out
on their property curried little sympathy with the courts.
These mores were transferred to the United States.
But by the 1960s, when it was apparent that the frontier days were
over, a new attitude toward open tracts of wilderness was taking shape.
Wilderness preservation became a priority of the federal government
(as evidenced here by the creation of the Point Reyes National Seashore
in 1962) and low-impact outdoors pursuits such as hiking, biking,
and horseback riding came to be viewed as productive uses of the land.
This paved the way for trail easements, which are now widespread.
Today in California, access easements let members
of the public cut through private land on trails to state beaches;
utility easements enable companies to drape electrical and telephone
lines across property without buying it. Conservation easements have
become a prominent feature of modern-day agriculture in West Marin,
where the Marin Agricultural Land Trust has bought the development
rights to many ranches and farms, protecting the bucolic landscape
from future malls or subdivisions without stripping local families
of their property.
Squatters’ rights
Another type of easement, called "prescriptive,"
functions as an institutionalized version of squatters’ rights,
and can be gained only in court. From one point of view, this type
of easement rewards persistent trespassing: the plaintiff in a prescriptive-rights
lawsuit must show that he has used the land in question against the
owner’s will, or at least without her permission. Paradoxically,
property owners can protect themselves against prescriptive easements
by openly granting others permission to use their land. If owners
have given such permission, they can revoke it, the reasoning goes.
That’s why the sign prominently displayed
on the gate to the Meases’ driveway reads "Private property:
right to pass by permission, and subject to control, of owner."
Such notices afford better protection, in the long run, than "No
trespassing" signs.
Mease said he doesn’t want to grant a public-access
easement on his fire road for two reasons: increased traffic and greater
vulnerability to lawsuits. If the road were publicized as part of
the county’s trail system, he believes, it could see heavy traffic
from outdoors enthusiasts across the Bay Area. If any of them are
hurt biking, riding, or simply walking on his land, he noted, he could
be held liable.
Lawsuits loom
The county has promised the Meases decreased
liability in exchange for an easement, but David Hansen, planning
and acquisitions manager for the Open Space District, said that an
easement is "not an ultimate guarantee" against lawsuits.
Catherine Mease, an attorney, said she’d rather take her chances
with fewer visitors and greater liability.
"It’s a tradeoff between having some
local people use our property versus increased usage and people suing
us constantly," she said. "We don’t want to have to
spend our entire lives in lawsuits."
But the Meases might not be able to avoid time
in court. Frank Binney, a mountain biker, horseback rider, and board
member of the San Geronimo Valley Planning Group, this week said that
local residents might sue for prescriptive rights as "a last
resort" if the couple doesn’t willingly provide an easement.
Precedents for such action exist in the Valley: in 1990, county supervisors
successfully invoked prescriptive rights in a suit brought against
developers who blocked a trail children used to walk to Lagunitas
School.
To gain a prescriptive easement, members of the
public would have to show that they had used Mease’s trail without
his permission for at least five years. The signs Mease has posted
around his property protect him from such claims. But the law that
protects landowners who openly grant permission to use their property
is not retroactive; Valley residents could thus argue for an easement
if they can show that they used the trail for five years before 1972,
when the law was passed (the current rules governing prescriptive
easements are recorded in California Civil Code sections 1006-1009).
The San Geronimo Valley Planning Group is already
seeking affidavits testifying to such use from longtime Valley residents,
planning group chair Pamalah MacNeily said this week, adding that
she thinks the county has not worked hard enough to obtain an easement
from the Meases.
"I don’t know that the county has much
backbone about this," she said.
County negotiations
Hansen of the Open Space District said he first
met with Mease in 2000, two years after Mease had bought the property.
At that time, Hansen told Mease that the county would like to secure
an easement on the fire road. While Mease was noncommittal, Hansen
said, the exchange was "very pleasant."
"We’d always assumed that some day
he might" grant an easement, Hansen said.
But in 2003, when Mease first submitted proposals
to build on the property, he was "clearly reluctant to get into
[the subject of easements] or really consider it," Hansen said.
"He continued to allow people to cross his property, but he clearly
wanted people to know it was his property."
The Meases proposed at one point to reroute the
fire road to the south of their property, but Open Space officials
concluded that the work would be "costly" and "environmentally
detrimental," Hansen said.
Finally, Open Space staff consulted with county
planners to see if they could make granting an easement a condition
of approval for Mease’s plans. Such an arrangement, Hansen said,
"is often how we get trail rights."
US Supreme Court ruled on easements
Planners told Hansen that the meager scale of
the development proposed by Mease did not justify demanding a public-access
easement as a condition of approval. In two landmark decisions, Nollan
v. California Coastal Commission (1987) and Dolan v. City of
Tigard (1994), the US Supreme Court ruled that government planners
can only impose easements with an effect "roughly proportional"
to the public impact of a project.
This is a curious Catch-22 for Valley activists,
many of whom adhere to a strong tradition of no-growth environmentalism:
if the extent of Mease’s ridge-top development had been greater,
planners might have been able to guarantee public access to the trail.