# 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:** 2
### Author:  [@Yllaria](https://boards.straightdope.com/u/Yllaria)
#### Post date: [October 29, 2013, 11:52pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/21 "2013-10-29T23:52:18Z")
> [@Ravenman](#):
>
> 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.
> [@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.
It’s not the treaty - it’s the previous court case. This land grant was disputed by the US government years after the treaty. The Supreme Court decided against the US and something in that decision is being used. The rationale can’t be used for all land grants, although if the judgement stands, it may apply to other grants that the US government disputed.
It’s not Mexican law vs. US law because of the treaty, it’s something in that judgement.
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### Author:  [@Yllaria](https://boards.straightdope.com/u/Yllaria)
#### Post date: [October 30, 2013, 12:09am UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/22 "2013-10-30T00:09:38Z")
OK. I think[this](http://www.law.cornell.edu/supremecourt/text/64/318)is the case.
The summary doesn’t seem to have anything that would apply to the current case, at least to a layperson. The District Court was appealing a decision on the basis of a time lapse of some sort. The Supreme Court declined to reverse the previous judgement.
Didn’t learn much besides the name of the granted land: La Canada de Verde y Arroyo de la Purissima. (Rancho of Green Glen and the Creek of the Purest? With Purest meaning the purest conception aka the Virgin Mary?)
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### Author:  [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)
#### Post date: [October 30, 2013, 12:57am UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/23 "2013-10-30T00:57:33Z")
> [@Yllaria](#):
>
> Didn’t learn much besides the name of the granted land: La Canada de Verde y Arroyo de la Purissima. (Rancho of Green Glen and the Creek of the Purest? With Purest meaning the purest conception aka the Virgin Mary?)
Affirmative.
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [October 30, 2013, 1:06am UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/24 "2013-10-30T01:06:57Z")
I haven’t read all of the applicable decisions and treaties, but my first impression is that this court is reaching far too high. The 1848 treaty contemplated that the fee simple owners would not be uprooted from their property as a result of the cessation of hostilities. I can’t imagine that governmental rules of general applicability like eminent domain or various regulations wouldn’t apply in the U.S. like they do in Mexico.
The U.S. saying that they will honor a land grant surely can’t be given a higher status than how the U.S honors its own land grants. This court’s ruling will result in any owner of that property holding it in fee simple in perpetuity; something that Mexico doesn’t guarantee to its own citizens, nor to my knowledge does any government in the world.
What if the property owner wants to mortgage it and the state of California records and enforces the mortgage? Is that a violation of the treaty? After all, California can’t step in and deprive the owner (through its legal process) his free and clear ownership under the land grant.
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### Author:  [@Xema](https://boards.straightdope.com/u/Xema)
#### Post date: [October 30, 2013, 2:55am UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/25 "2013-10-30T02:55:22Z")
> [@Yllaria](#):
>
> 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.
It looks as if the rules for Prescriptive Easement aren’t met here. If the previous owner was charging a small admission fee, there’s no way to conclude that access was without permission.
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### Author:  [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)
#### Post date: [October 30, 2013, 2:30pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/26 "2013-10-30T14:30:13Z")
> [@jtgain](#):
>
> I haven’t read all of the applicable decisions and treaties, but my first impression is that this court is reaching far too high. The 1848 treaty contemplated that the fee simple owners would not be uprooted from their property as a result of the cessation of hostilities. I can’t imagine that governmental rules of general applicability like eminent domain or various regulations wouldn’t apply in the U.S. like they do in Mexico.
>
> The U.S. saying that they will honor a land grant surely can’t be given a higher status than how the U.S honors its own land grants. This court’s ruling will result in any owner of that property holding it in fee simple in perpetuity; something that Mexico doesn’t guarantee to its own citizens, nor to my knowledge does any government in the world.
>
> What if the property owner wants to mortgage it and the state of California records and enforces the mortgage? Is that a violation of the treaty? After all, California can’t step in and deprive the owner (through its legal process) his free and clear ownership under the land grant.
Here’s my understanding. Originally the Mexican government wanted the US to guaranty land grants. I’m not exactly sure what that entails because I can’t find a full copy of Article X online. That being said, the US Senate threw out Article X anyways so treaty supremacy under the Constitution does not apply. When California became a state in 1850, they tried to affirm ownership of official land grants through the courts, so there may be a guaranty of the land grants but it’s under California law and not the Treaty of G-H. Also, I don’t think California affirmed any special rights in perpetuity, just ownership as of 1850.
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### Author:  [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)
#### Post date: [October 30, 2013, 2:47pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/27 "2013-10-30T14:47:35Z")
> [@Saint\_Cad](#):
>
> Here’s my understanding. Originally the Mexican government wanted the US to guaranty land grants. I’m not exactly sure what that entails because I can’t find a full copy of Article X online. That being said, the US Senate threw out Article X anyways so treaty supremacy under the Constitution does not apply. When California became a state in 1850, they tried to affirm ownership of official land grants through the courts, so there may be a guaranty of the land grants but it’s under California law and not the Treaty of G-H. Also, I don’t think California affirmed any special rights in perpetuity, just ownership as of 1850.
It seems this is the Original Article X before it was removed:
> [@](#):
>
> Original ARTICLE X
>
> All grants of land made by the Mexican government or by the competent authorities, in territories previously appertaining to Mexico, and remaining for the future within the limits of the United States, shall be respected as valid, to the same extent that the same grants would be valid, to the said territories had remained within the limits of Mexico. But the grantees of lands in Texas, put in possession thereof, who, by reason of the circumstances of the country since the beginning of the troubles between Texas and the Mexican Government, may have been prevented from fulfilling all the conditions of their grants, shall be under the obligation to fulfill the said conditions within the periods limited in the same respectively; such periods to be now counted from the date of the exchange of ratifications of this Treaty: in default of which the said grants shall not be obligatory upon the State of Texas, in virtue of the stipulations contained in this Article.
>
> The foregoing stipulation in regard to grantees of land in Texas, is extended to all grantees of land in the territories aforesaid, elsewhere than in Texas, put in possession under such grants; and, in default of the fulfillment of the conditions of any such grant, within the new period, which, as is above stipulated, begins with the day of the exchange of ratifications of this treaty, the same shall be null and void.
From [this](http://academic.udayton.edu/race/02rights/guadalu.htm#Original%20ARTICLE%20X) source.
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### Author:  [@Shodan](https://boards.straightdope.com/u/Shodan)
#### Post date: [October 30, 2013, 4:22pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/28 "2013-10-30T16:22:00Z")
> [@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?
What does “adverse” mean in this context?
Regards,
Sho-damned
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### Author:  [@Learjeff](https://boards.straightdope.com/u/Learjeff)
#### Post date: [October 30, 2013, 4:40pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/29 "2013-10-30T16:40:38Z")
> [@Sho-damned](#):
>
> What does “adverse” mean in this context?
It means “against the will of the landowner.”
Google “adverse possession”.
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### Author:  [@septimus](https://boards.straightdope.com/u/septimus)
#### Post date: [October 30, 2013, 4:50pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/30 "2013-10-30T16:50:44Z")
Across the road from me lives an extremely poor propertyless family. Two or three decades ago they built a tiny shack, which they’ve since upgraded to a medium-sized shack. The title to the land was held by a different, much richer person. A decade ago or so, we heard that that landowner tried to evict the poor family. _Sorry_ was the answer. There is some “common” law that after seven(?) years without eviction, the family had a “natural” right to their “property.”
This happened in Thailand, a country famed for corruption, where one of the mottos is “You can buy anything you want if you have money.” But some people claim _Thailand_ translates as _Land of the Free_.
In the “authentic” _Land of the Free_™ an easement whose common-law existence is surely far far more ancient than seven years is abrogated. Why not? Why should _Homo sapiens_ challenge the supremacy of _Pecuniam omnipotens_?
It might be amusing to hear the Board’s Libertarians opine on this matter.
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### Author:  [@kanicbird](https://boards.straightdope.com/u/kanicbird)
#### Post date: [October 30, 2013, 5:00pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/31 "2013-10-30T17:00:30Z")
After recently leaning about the 1849 gold rush it does make me wonder if there is not a previous precedent that negates this claim. Samuel Brannan secured such property rights from this treaty in hopes of turning a healthy profit with the companies which wished to buy mining rights, yet these companies lobbied for statehood for California which negated his land claim.
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [October 30, 2013, 5:08pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/32 "2013-10-30T17:08:03Z")
Adverse possession and easement by prescription are not the same. Adverse possession results in a transfer of title to land. An easement is just the right to _use_ land. The elements are basically the same, except that California requires payment of applicable taxes on land to establish adverse possession.
> [@](#):
>
> In order to perfect title by adverse possession, the possession of a claimant must be hostile and adverse. This requirement does not mean that the parties have an actual dispute over the title, but merely that the claimant’s possession is without recognition of any rights of the true owner.
>
> “‘ **Adverse use’ means only that the claimant’s use of the property was made without the explicit or implicit permission of the landowner**.” The possession under a color of title is deemed to be adverse and hostile to the rights of any other person, and it is not necessary to offer any further proof that the claim is hostile or adverse. Continuous use over a long period of time can be a sufficient communication of a claim of right without the necessity of further proof that occupancy is hostile rather than permissive.
>
> Question of fact. It is a question of fact whether the possession is of sufficient hostile and adverse character to ripen into a prescriptive title.
>
> Occupancy must be wrongful. To make a claimant’s possession adverse and hostile under a claim of right, it must be wrongful as to the true owner, without authority, consent, or permission, against the owner’s will, and without recognition of the owner’s rights. The use and occupation of the property must invade the rights of the true owner and give the owner a cause of action to prevent it and to remove the claimant. For example, possession of property and renting it to others is possession that is hostile to the interests of the true owner.
>
> When permissive use becomes hostile and adverse. Possession with permission and consent of the owner is neither hostile nor adverse.8 Possession that commences with the owner’s permission does not become hostile or adverse until the possessor has disclaimed the interests of the owner and has given the owner distinct notice of the hostile character of the possession.
>
> 6 Cal. Real Est. § 16:13 (3d ed.)
The short version is that to establish adverse possession (or easement by prescription) you have to actually be trespassing. In other words, it’s a principle of law designed to benefit assholes.
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### Author:  [@mhendo](https://boards.straightdope.com/u/mhendo)
#### Post date: [October 30, 2013, 5:19pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/33 "2013-10-30T17:19:46Z")
> [@Saint\_Cad](#):
>
> 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.
Ain’t that the truth. I teach California History at a state university, and [this is an image](http://hendo.smugmug.com/photos/i-dbzs9Nb/0/O/i-dbzs9Nb.jpg) i use in my lecture on the Mexican period to show the extent of the land grants. Imagine if all that land—some of the most valuable real estate in the country—suddenly became immune from California’s constitution and laws.
That said, it’s still not quite clear to me from the linked news reports what the connection is in the court decision between the provisions of the Treaty of Guadalupe-Hidalgo, on the one hand, and the court case of 1859, on the other. I’d be interested to see the judge’s reasoning, and while i think i’ve found the case on the San Mateo County Court website, i can’t seem to find the actual ruling in the case.
If anyone wants to help me out here, this is the [court website](https://www.sanmateocourt.org/online_services/online_case_access.php), and i think the case is CIV517634 FRIENDS OF MARTIN’S BEACH VS MARTINS BEACH1. I can’t link directly to the case, because you have to accept the terms and conditions first.
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [October 30, 2013, 5:27pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/34 "2013-10-30T17:27:34Z")
It’s Surfrider Foundation v. Martin’s Beach 1, LLC, case no. 520336. The Complaint is [here](https://dl.dropboxusercontent.com/u/2494842/LEGAL/Surfrider%20v%20Martins%20Beach%201%20and%202%20-%20Complaint.pdf). The decision hasn’t been published, though.
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### Author:  [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)
#### Post date: [October 30, 2013, 5:57pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/35 "2013-10-30T17:57:55Z")
I looked up “land” in a law book. It said “see ‘Snatch’.”
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### Author:  [@aruvqan](https://boards.straightdope.com/u/aruvqan)
#### Post date: [October 30, 2013, 8:50pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/36 "2013-10-30T20:50:01Z")
Makes me want to get a [duck](http://en.wikipedia.org/wiki/DUKW) and run ‘tours’ for surfers and other low life scum to go hang out on the beach. As long as you can get to the beach from the water, as I recall it should be legal.
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### Author:  [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)
#### Post date: [October 30, 2013, 9:32pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/37 "2013-10-30T21:32:02Z")
> [@zombivqan](#):
>
> Makes me want to get a [duck](http://en.wikipedia.org/wiki/DUKW) and run ‘tours’ for surfers and other low life scum to go hang out on the beach. As long as you can get to the beach from the water, as I recall it should be legal.
The beaches I believe are unquestionably public land, and under typical laws any private property that fully prevents access to the public beaches, the public has a right to go through that property to get to the beach. This is true in many States with beach front property and many with lakefront property as well. The landowner would have little recourse to using the beach their property abuts in that manner. You wouldn’t need to use an exotic water car, though. Any boat and a bunch of surfers would work.
I’d be inclined to adopt a solution from “The Sopranos.” There’s an episode where Tony buys a waterfront house for the family, but then due to some familial issues decides he doesn’t want it. The man he bought it from lives next door, and is a high priced lawyer or broker or something who works in Manhattan. The guy is not at all intimidated by Tony being a mobster, and basically laughs Tony off and points to the ironclad contract they had already signed indicating Tony was forfeiting the deposit if he backed out of the sale (Tony wanted to back out of the purchase _and_ get his downpayment back.)
For a minute the viewers think maybe Tony is going to kill this guy/have him killed. Instead Tony’s goons bring a little yacht and park it right in front of this guy’s back deck that is right next to the water. It’s equipped with massive flood lights and an insanely loud speaker system, and it pipes recordings of I believe old style standups/crooners for hours on end. He calls the police several times for disturbance of the peace, but they always just sail away for awhile then come back. Finally the guy relents and lets Tony have his downpayment back, realizing he’s looking at a long period of not being able to think in his own home due to the extremely loud speaker system being directed directly at his back windows.
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### Author:  [@Yllaria](https://boards.straightdope.com/u/Yllaria)
#### Post date: [October 30, 2013, 10:04pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/38 "2013-10-30T22:04:04Z")
> [@mhendo](#):
>
> Ain’t that the truth. I teach California History at a state university, and [this is an image](http://hendo.smugmug.com/photos/i-dbzs9Nb/0/O/i-dbzs9Nb.jpg) i use in my lecture on the Mexican period to show the extent of the land grants. . . .
Thanks. I was trying to find a map like that on the internet and failing miserably.
Around here we run into property that was, or still is, part of Rancho Campo de los Franceses. When we fill out forms asking for the number of the general survey map it can be found on, we have to fit a reference to the rancho map into the space meant for a little number. Or we put in an asterisk and add a footnote.
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [October 30, 2013, 11:07pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/39 "2013-10-30T23:07:19Z")
Another thought: What if the owner refuses to pay property taxes? Does the land grant forbid California from taking his property?
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [October 30, 2013, 11:29pm UTC](https://boards.straightdope.com/t/lawyers-man-buys-land-that-includes-public-road-bars-access-to-the-public/672572/40 "2013-10-30T23:29:31Z")
I expect the treaty spells out what provisions of local law still apply.
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