Laserfiche WebLink
To: City Council Fadlitles and Transportation Committee <br /> From: City Attorney <br /> Re: legal Questions Related to Discussion Regarding Private Sewer Lateral Replacement Policy <br /> Date: April 12, 2011 <br /> Page: 3 <br /> property, and it also requires an acceptance by either public use, or by an acceptance <br /> resolution of the governing body. <br /> Here, the facts do not support an implied -in -fact dedication of the DTSL because the Gty <br /> has no documents or other records of an explicit indication of any owner's intention to <br /> allow or accept a public use or utility easement, either through a reconded deed or otherwise, <br /> even though public use of the DTSL by the respective owners of the Dowling Triangle <br /> properties did occur. There is no Qty Council resolution accepting an implied-in-fact <br /> dedication of the DTSL or a public utility easement for the DTSL Thus, an implied -in -fact <br /> dedication most likelydid not occur, and even if one did, it was never accepted by the Gty. <br /> 1rr¢ li Ji ,LawDe6aatimi <br /> An implied -in -law dedication arises from continuous adverse public use without interference <br /> from the property owner. The adverse use must continue for at least five years with the full <br /> knowledge of the owner, and without any user, public or private, asking or receiving <br /> permission, and without the owner objecting to the adverse use. An implied -in -law <br /> dedication is very similar to a prescriptive easement. <br /> Here, there is an argument that the DTSL was dedicated through an implied -in -law <br /> dedication because there was continuous adverse use of the DTSL without interference from <br /> propeny owners and the City for at least five years; the Dowling Triangle property owners <br /> had full knowledge of the sewer line without objection, and no user, City or private, asked or <br /> received permission. <br /> Legal Effai arriInplicarions gran Inpliedin-LawDedication <br /> What is the scope of the dedication? At a minimum, it would include an easement over the <br /> property that contains the line, and the line itself. But does it also include access to the <br /> easement? When the City accepts a common law dedication, the dedication is limited to the <br /> use that gave rise to the dedication. In this case, the dedication is limited to a public sewer <br /> line and associated easement. But it likely does not include an access easement to that line. <br /> Therefore, if the Gty were to accept the dedication, it would have no ability to access the <br /> sewer line without property owner(s) consent(s). <br /> 6 Union man Co u Samnarao Cacwdy (1954) 42 CaL2d 235. <br /> r Gionv City 4 Cna (1970) 2 Cal. 3d 29. <br /> 8 Rafael l E rrpire u Garr& (2000) 82 Cal. App. 4th 352. <br /> A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA FRESNO <br />