# Lawyers? Man buys land that includes public road, bars access to the public.
**URL:** https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572
**Category:** Great Debates
**Created:** [October 29, 2013, 5:56pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572 "2013-10-29T17:56:26Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@hotflungwok](https://boards.straightdope.com/u/hotflungwok)
#### Post date: [October 29, 2013, 5:56pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/1 "2013-10-29T17:56:26Z")
[Vinod Khosla, California, Half Moon Bay, 1848 Treaty of Guadalupe Hidalgo](http://valleywag.gawker.com/venture-capitalist-wins-fight-to-exempt-his-land-from-c-1454066602/@maxread)
Is that how this is supposed to work? The treaty gives land parcels granted by the Mexican government immunity to the law so this guy can take a California State road and claim it as his own?
I hope I’m explaining this wrong, so what’s the deal here?
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### Author:  [@kanicbird](https://boards.straightdope.com/u/kanicbird)
#### Post date: [October 29, 2013, 6:10pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/2 "2013-10-29T18:10:33Z")
> [@hotflungwok](#):
>
> [Vinod Khosla, California, Half Moon Bay, 1848 Treaty of Guadalupe Hidalgo](http://valleywag.gawker.com/venture-capitalist-wins-fight-to-exempt-his-land-from-c-1454066602/@maxread)
>
> Is that how this is supposed to work? The treaty gives land parcels granted by the Mexican government immunity to the law so this guy can take a California State road and claim it as his own?
>
> I hope I’m explaining this wrong, so what’s the deal here?
Wow, so ironic in so many ways. In some ways I like this to see what could happen if vast tracks of land can be actually exempt from state authority, and what this means for the many Native American treaties that have been ignored.
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### Author:  [@Rachellelogram](https://boards.straightdope.com/u/Rachellelogram)
#### Post date: [October 29, 2013, 6:13pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/3 "2013-10-29T18:13:17Z")
Great PR stunt.
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### Author:  [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)
#### Post date: [October 29, 2013, 6:13pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/4 "2013-10-29T18:13:52Z")
I have seen things about this case off and on for a few years, but I hadn’t heard about the recent ruling. The previous articles I had read about it indicated it was not a “California State Road” so much as it was a pathway that had been used to provide the public access to the beach. I’m not a lawyer but I know in many States if your property blocks access to something the public is entitled to access then the public has some right to go through your property in order to get to the public property.
What many land owners will do is create a pathway to steer the public through so the public doesn’t just roam all over their property getting to wherever it is they are going.
It was my understanding the previous owner of the estate had such a pathway, and that is what was closed off by a gate when this guy purchased the estate. So it was a right of way to facilitate public access, but I don’t think it was quite a State road maintained by the State or anything.
Now as for how this has turned out, I do believe that in general Treaties signed by the Federal Government generally would trump any State laws, they are I believe the highest law in the land aside from the Constitution itself (so treaties also trump Federal law where they conflict, is my understanding.)
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### Author:  [@Procrustus](https://boards.straightdope.com/u/Procrustus)
#### Post date: [October 29, 2013, 6:15pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/5 "2013-10-29T18:15:13Z")
I see (in a way) the argument about how the state Constitution doesn’t create this right to access because of the Treaty. But this was a public road, and I would think there would be a valid easement for use by the public to get to the beach, regardless of the Treaty of 1848.
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### Author:  [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)
#### Post date: [October 29, 2013, 6:20pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/6 "2013-10-29T18:20:38Z")
I don’t actually believe it’s a public road, based on my previous knowledge of this case and the LA Times article linked to as the source for the gawker article in the OP.
As the LA Times article explains the previous owners, for many decades, allowed public access to the beach. But they charged a nominal admissions fee and maintained public restrooms and a concessions stand. So that really doesn’t sound like it was ever a “public road”, but a “road on private property” that the previous owners retained the right to charge a toll for using.
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### Author:  [@Ravenman](https://boards.straightdope.com/u/Ravenman)
#### Post date: [October 29, 2013, 6:28pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/7 "2013-10-29T18:28:18Z")
What I don’t understand from the linked articles is how the treaty in any way relates to the use of the land.
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### Author:  [@hotflungwok](https://boards.straightdope.com/u/hotflungwok)
#### Post date: [October 29, 2013, 6:29pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/8 "2013-10-29T18:29:17Z")
I’m going to buy a boat capable of getting very close to shore, and run a ferry business to and from that beach. I’m going to call the boat ‘Fuck You Rich Asshole’.
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### Author:  [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)
#### Post date: [October 29, 2013, 6:38pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/9 "2013-10-29T18:38:53Z")
I’m kind of confused about how the property he bought is still considered a Mexican land-grant. I would think the first time the property was sold that the waiver would not apply anymore.
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### Author:  [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)
#### Post date: [October 29, 2013, 6:49pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/10 "2013-10-29T18:49:30Z")
> [@Saint\_Cad](#):
>
> I’m kind of confused about how the property he bought is still considered a Mexican land-grant. I would think the first time the property was sold that the waiver would not apply anymore.
This. I can see a land grant and the rights associated with it being inherited, but can such rights be sold?
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### Author:  [@Great\_Antibob](https://boards.straightdope.com/u/Great_Antibob)
#### Post date: [October 29, 2013, 6:56pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/11 "2013-10-29T18:56:41Z")
IANAL, but aren’t there laws in California about easements for access to public beaches?
FWIW, in Texas, some of the laws dealing with land rights and waterway rights date back to the days when Spain owned the land. To this day, navigable waters belong to the state because of it. But public easements still apply. Reasonable accommodation to allow access has to be there, historic land grant or not.
Are land grants really treated that differently in California?
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### Author:  [@Yllaria](https://boards.straightdope.com/u/Yllaria)
#### Post date: [October 29, 2013, 7:07pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/12 "2013-10-29T19:07:07Z")
Even without the access to beaches, there’s the laws regarding [prescriptive easement](http://www.dirtlawyer.com/pe-summary.html). That is, if the road has been used openly for five years it can’t be closed off.
I don’t know how the laws would be different because of the land being a rancho, but apparently there were over 600 ranchos certified after the treaty was signed. I’d like to see a map of California showing all of them.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [October 29, 2013, 7:12pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/13 "2013-10-29T19:12:31Z")
> [@Yllaria](#):
>
> Even without the access to beaches, there’s the laws regarding [prescriptive easement](http://www.dirtlawyer.com/pe-summary.html). That is, if the road has been used openly for five years it can’t be closed off.
The link you offer also says that the use has to be adverse:
> [@](#):
>
> The requirements to establish a prescriptive easement
>
> 1. Use that is actual and open
>
> 2. Use that is adverse to the owner (w/o permission)
>
> 3. Five years of continuous use
>
> 4. Must not exclude use by the owner
The use described by **Martin Hyde** doesn’t sound “adverse” to me. Does it sound “adverse” to you?
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### Author:  [@Yllaria](https://boards.straightdope.com/u/Yllaria)
#### Post date: [October 29, 2013, 7:22pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/14 "2013-10-29T19:22:14Z")
After the treaty, [A longer article.](http://www.mercurynews.com/breaking-news/ci_24380282/vinod-khosla-wins-key-martins-beach-battle)
> [@](#):
>
> The U.S. government challenged Alviso’s land patent, but the Supreme Court confirmed Alviso’s ownership in 1859.
>
> All that complicated history led Buchwald to a basic conclusion: The nation’s high court exempted this property from the full reach of California law.
The case is going to be appealed. It’s possible that the judgement is just weird. Or it may depend on an interpretation of what the SC said in the course of its judgement.
A second law suit will be tried in the spring. The friends of the beach contend that:
> [@](#):
>
> . . . locking the gate to the road off Highway 1 constituted development under California coastal law, requiring a California Coastal Commission permit,. . .
Unless the CCC can go jump as well.
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### Author:  [@Yllaria](https://boards.straightdope.com/u/Yllaria)
#### Post date: [October 29, 2013, 7:32pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/15 "2013-10-29T19:32:32Z")
> [@Bricker](#):
>
> The link you offer also says that the use has to be adverse:
> The use described by **Martin Hyde** doesn’t sound “adverse” to me. Does it sound “adverse” to you?
I hadn’t thought of that part. The last owner definitely didn’t mind and if he was charging for access, that would imply that he intended to keep ownership of the road.
Reading the article reminded me of my father complaining about those laws and not being able to remember the term was bugging me. My mind was more on scratching the itch than on checking how well it applied. Thanks for the correction.
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### Author:  [@Ravenman](https://boards.straightdope.com/u/Ravenman)
#### Post date: [October 29, 2013, 9:08pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/16 "2013-10-29T21:08:23Z")
Whatever the law may be, and I’m still not fully understanding what part of the treaty exempts this bit of coast from California law, let me just throw out there that I think the owner is an asshole.
There. I said it.
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### Author:  [@suranyi](https://boards.straightdope.com/u/suranyi)
#### Post date: [October 29, 2013, 9:35pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/17 "2013-10-29T21:35:46Z")
> [@Great\_Antibob](#):
>
> IANAL, but aren’t there laws in California about easements for access to public beaches?
>
> FWIW, in Texas, some of the laws dealing with land rights and waterway rights date back to the days when Spain owned the land. To this day, navigable waters belong to the state because of it. But public easements still apply. Reasonable accommodation to allow access has to be there, historic land grant or not.
>
> Are land grants really treated that differently in California?
In general, there are laws in California about access to public beaches.
However, what the court said is that this is an exception. In this particular case, the landowner has the right to block access to the beach. Apparently, the reason is that ownership of the land can be traced back to when the land was Mexican, and Mexican laws applied. According to the treaty that ceded the land to the United States in 1848, California law cannot supersede the landowners right to block access to the beach at this location. That’s what the court just decided, if I understand correctly.
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### Author:  [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)
#### Post date: [October 29, 2013, 9:46pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/18 "2013-10-29T21:46:02Z")
> [@suranyi](#):
>
> In general, there are laws in California about access to public beaches.
>
> However, what the court said is that this is an exception. In this particular case, the landowner has the right to block access to the beach. Apparently, the reason is that ownership of the land can be traced back to when the land was Mexican, and Mexican laws applied. According to the treaty that ceded the land to the United States in 1848, California law cannot supersede the landowners right to block access to the beach at this location. That’s what the court just decided, if I understand correctly.
If that’s the law then California is in even more trouble. Much of the state is property that can be traced back to Mexican land-grants.
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### Author:  [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)
#### Post date: [October 29, 2013, 9:55pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/19 "2013-10-29T21:55:51Z")
I think the judge screwed up big time. The part of the Treaty guarantying land grants aka Article X? It was taken out of the treaty by the Senate.
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### Author:  [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)
#### Post date: [October 29, 2013, 10:27pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/20 "2013-10-29T22:27:01Z")
> [@Saint\_Cad](#):
>
> I think the judge screwed up big time. The part of the Treaty guarantying land grants aka Article X? It was taken out of the treaty by the Senate.
This case has made me want to spend time actually looking into the text of the treaty itself and possibly the text of this decision if it’s easily available. If what you say is true then I’d suspect it accounts to a pretty obvious error that can easily be corrected on appeal.
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