Legal Question in Real Estate Law in California

It is true that a public easement can be found to exist in a court proceeding. However, it is fairly rare that a lawsuit is initiated by the public users -- after all, they are there to hike and not to get involved in paperwork. Among the steps that can be taken are (a) negotiation with the landowner, (b) involvement of a nonprofit organization, such as one of the conservation organizations, (c) involvement of a public agency, to whom the owner would dedicate an easement, (d) a lawsuit filed by individuals who had sufficient legally recognized interests to "quiet title" to the claimed public easement.

Keep in mind, though, that landowners-- and their heirs and lenders -- often see public "prescriptive right" easements as encumbrances on title and a loss of value of their property. And, government agencies cannot be charged with maintenance of such easements -- nor have liability for accidents -- unless they have formally accepted any kind of donation or implied donation.

I have some research and analysis papers that are available for free. See www.arnoldlp.com. This is an evolving area of the law, and up to date legal advice backed by current legal research is always necessary.

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Such easements are a subspecies of prescriptive easement. Most commonly, the existence, scope, permitted uses and users, and other aspects of prescriptive easements are established by a quiet-title suit by the benefitted party against the burdened party. As Mr. Arnold points out, a benefitted party, or group, or its representatives may be able to avoid a contested suit if the property owner can be induced to grant an easement. In some counties, including Marin and Sonoma, there are land trusts that pay for (or accept donations of) easements for land conservation, prevention of development, preservation of agriculture, trails, beach access, and other purposes. Their funding and goals differ from county to county. Also note Civil Code sections 815 to 816 which provide a statutory basis for conservation easements. See also Civil Code sections 801 through 813 for general background, and note 813 which allows an owner to record revocable permission for public use (and thereby prevent the use from ripening into a prescriptive easement if that hasn't already happened).