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A California Court of Appeals sitting in San Francisco ruled Monday that four hiking trails on the 110-acre Martha Company property in Tiburon have not been dedicated to the public by its owner.

The ruling is a blow to the citizen group referred to as TRUST — short for Tiburon/Belvedere Residents United to Support the Trails — that brought an action in 2017 to establish that the popular trails had been “impliedly dedicated” to the public because the owners were aware of the community’s use and failed to object.

TRUST’s suit did not argue that the entire property was dedicated to the public, just the trails.

The organization’s stated 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.”

The court’s ruling affirmed a finding by the trial court to the effect that TRUST had not met its burden of proving that the property had been used openly and continually by the public for a substantial period of time with the owner’s knowledge and without objection.

The property in question is the largest undeveloped privately-owned parcel in Tiburon, according to the owners’ filings with the court.

The owners currently have the property listed with Sotheby’s for $95 million.

The property is bounded by Paradise Drive to the north and east, the residential neighborhoods of Hill Haven and Lyford Cove/Old Tiburon within the Town of Tiburon to the south, and the Old St. Hilary’s Preserve to the west.

The view from above

The trails involved are the Ridge Trail, the Spanish Trail, and northern and southern trails that connect the two named trails. Hikers on the trails enjoy sweeping views of the Bay including the Golden Gate Bridge and the city skyline.

The court’s opinion explored the situation on the property during a five-year period from 1967 to 1972. California law with respect to dedication of land to public use changed thereafter, so the question was whether the property had been impliedly dedicated to the public before the change of law. According to the court, “Once a dedication is established, (n)othing can be done … to take back that which was previously given away.”

Plaintiffs presented 28 witnesses who testified that they used the trails openly and regularly without objection during the time in question and their use was significant enough that the owners were aware the trails were being used by the public. They used the trails for various forms of recreation, including hiking, running, dog walking, motor biking, biking, horseback riding, bird watching, cardboard sledding, and picnicking.”

According to Richard Wodehouse, President of the board of TRUST, people have been hiking those trials for more than 50 years. TRUST also presented an aerial photography expert who testified that “the four trails were well established and continuously used in the latter period.”

The court said that property could be dedicated to the public under California law at the time and when that happened no compensation was due to the owner.

Quoting from a 1970 Supreme Court opinion, the court said, “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.'”

High standard of proof

Nonetheless, the court said that it takes a high standard of proof to “take away a party’s land in favor of a public dedication.” In this case, it said that TRUST’s proof did not meet that high standard.

Most of the 28 witnesses were neighbors and use by neighboring property owners “is not equivalent to use by the general public.”

The court stated, “When the predominant users are neighbors, the landowner may have simply tolerated their use as a neighborly accommodation.”

Moreover, many of the witnesses were minors during the period in question. The court quoted an earlier decision that described children as “born trespassers who cannot establish a reasonable belief by the public of its right to use the property.”

The court also reviewed the testimony of the property owner about steps taken during the time in question to put signage and fencing around the area to prevent public use, and concluded that plaintiffs had not met their high burden that there had been implied consent.

Eric Buescher of Cotchett Pitre & McCarthy LLP argued the appeal on behalf of TRUST. Buescher said the decision was “unfortunate” and “not what we were hoping for.”

He said no decision had been made whether to petition the California Supreme Court for discretionary review. Wodehouse said that he hopes that the owners will sell the property to public entities and nonprofit groups who would preserve the open space.