Mountain Property Owner Wins Key Ruling on Public Access

BY HANS LAETZ

A Las Vegas radio tower entrepreneur who posted key sections of trails in the Santa Monica Mountains with signs demanding that hikers “get the hell off our land and don’t come back” has won an important decision from the California Court of Appeals.

His attorney said the ruling will prevent agencies like the California Coastal Commission from forcing landowners to allow public access to trails across private land or roads that, while traditionally open for general use, have never been formally deeded over by landowners.

“It’s a very basic right that has been affirmed here, to keep people off of your property,” said Encino attorney Fred Gaines who represented James Kay Jr., the owner of Castro Peak. The court opinion was released Tuesday by a three-member panel of state judges in Santa Ana.

Kay’s company, LT-WR, LLC, won a decision that a California property owner has the right to prevent others from crossing his or her land on what traditionally were held to be undeeded public trails. Common law allows someone to acquire a so-called “prescriptive easement” by openly using a trail for a set period of time, but Kay’s lawyer said the ruling requires easement claims to be proved in court.

The commission’s arguments were part of an effort by it and the National Park Service to maintain access to Castro Peak, a 2800-foot high promontory on the Santa Monica Mountains backbone above Latigo Canyon Road, east of Kanan-Dume Road.

The appellate court held that “inherent in one’s ownership of real property is the right to exclude uninvited visitors,” and ruled that fences and signs aimed at preserving the company’s ownership of the land must be allowed.

The Coastal Commission had argued that the signs would prevent people from using the trails and acquiring what are known as prescriptive rights to use the routes, which are basically the legal right to walk or drive across someone else’s land.

Enforcing such rights is an important tool for government agencies that are seeking to acquire access routes to beaches or scenic sites across private property owned by persons who might be forced to give up legal rights as they seek rezoning or building permits.

The trails at issue in this case had been used by hikers for years before Kay bought Castro Peak in 2002 and fenced it off. The commission argued that fences and signs might preclude the gaining of rights to cross the land in the future.

“If those people are going to try to claim a prescriptive right to that land, they are going to have to go to court and establish those rights,” Gaines said.

“It’s a very basic right, to be able to exclude people from your own land,” he said.

The ruling also held that Kay’s company was allowed to keep a mobile home on graded roads on the property.

Gaines said the caretaker on the property has been bothered by people knocking on his door seeking help, and that some small fires have been set by trespassers.

“It’s private property that is surrounded by public land, and if the public agencies want a trail there, they can either buy the land from my client or construct a trail around it,” Gaines said.

Spokespersons for the Coastal Commission and other recreation agencies could not be reached for comment.

The Los Angeles Times, in a 2004 report about Kay, said he had sued 23 of his neighbors for their reported refusal to grant him a prescriptive easement on the access road to Castro Peak. The federal government was also investigating whether Kay had mistakenly built his mountaintop radio relay facility on federal land at Castro Peak.

Gaines said Kay “is pleased with the decision.”