In order to establish a right of the general public to use private property for recreational purposes, by prescription, a party must submit "reasonably clear and convincing proof of open, notorious, continuous, uninterrupted use, under a claim of right, with the knowledge of the owner of the servient tenement, for the prescriptive period. The prescriptive right cannot arise, however, if the use of the land is with the permission of the owner.
Appellant state sought recovery from respondent property owners to establish public rights to their water front property, to force them to remove a retaining wall, and to permanently enjoin them from interfering with the public use of the areas enclosed by the retaining wall. The district court determined that the public had no right or interest in the property and gave judgment to respondents. Appellant sought review claiming that the public had rights to the property by means of an easement by prescription. The state supreme court affirmed the lower court's judgment in favor of respondents.
Could the public have rights to a private property by means of an easement by prescription?
Absent specific statutory authorization, the general public, as distinguished from specific individuals, could not acquire prescriptive rights to private property because such rights were personal and were confined to the adverse user. Moreover, there was no implied dedication of the property because appellant state did not establish that respondent property owners intended to make a dedication of the disputed area to public use. Furthermore, the public did not acquire rights to the property by customary usage because the requisite elements were not established, and the appellant's claim based on the public trust doctrine was inapposite because no natural resource owned by appellant was involved in the instant case.