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Rights of Passage 

With gates and fences, private property owners are increasingly cutting off traditional paths to public lands. State law offers some recourse, but not much.

Wednesday, Sep 15 1999
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Johnny King reaches out the window of his matte-blue Mazda RX-7 and holds his hand inches from a keypad mounted near the gate blocking Las Trampas Road. He doesn't touch it. "What we'll do is pretend to be entering our code and wait," says King, a smallish, self-possessed, 56-year-old handyman. "It shouldn't be long."

Soon, an Airborne Express delivery truck rolls toward the gate and slows down. The driver punches a button on his remote opener, and the gate rolls aside. As the delivery truck picks up speed again, King puts both hands on his steering wheel.

"Here we go," he says, gunning his car and slipping through the opening, past a thicket of No Trespassing signs, and into East Bay hills dressed in black sage, chaparral, bay laurel, and live oak. He rolls past one tastefully appointed house -- a mansion, really -- then another, and another, and after a mile or so reaches the eastern trailhead and staging area of the Las Trampas Wilderness, 3,798 acres of parkland managed by the East Bay Regional Parks District about 20 miles east of San Francisco.

King engaged in his bit of subterfuge because the owners of the 19 new houses along Las Trampas Road last spring decided to seal off their luxury subdivision. They built a Beverly Hills-style electronic gate across the privately owned Las Trampas Road, posted a security guard, and planted dozens of No Trespassing and No Parking signs along the lane leading up to the gate. They retained a law firm to fend off the lawsuits from nearby residents, who for decades had driven up the road to hike, picnic, and walk their dogs in the wilderness area. With the gate, park visitors must now leave their cars a mile from the trailhead and walk through the subdivision.

The gate outrages King, an avid horseman accustomed to riding the network of trails that traverses the Las Trampas Wilderness. He's now made the campaign to remove the gate a centerpiece of his life, augmenting his ninth-grade education with a deep trove of knowledge about local, state, federal, and English common law concerning rights of way. He has waged a prolific letter-writing campaign with the homeowners and their lawyers. And he is a driving force behind a brewing court battle over whether the gate is an illegal breach of Californians' ability to use historic rights of way or a legitimate exercise of basic private property rights by the homeowners. A trial is expected to begin this month.

On its face, King's crusade might seem to be the conceit of a deeply eccentric man. But King's obsession isn't really obscure at all. It's one of consequence to anyone who has ever stepped on a piece of public land.

As regional urban sprawl tucks itself into ever more corners of the Bay Area, new homeowners are growing increasingly prickly about locals using historic routes of access across private property to reach the region's abundant public lands. This is true all over California, but is an issue of critical importance in the Bay Area, known by residents for its vast expanses of easily accessible urban wilderness. Joggers or cyclists in San Francisco can, within 15 minutes of most points in the city, find themselves in the middle of the woods -- Mount Sutro, Golden Gate Park, the Presidio, the Marin Headlands, and beyond. Residents of downtown Oakland, Palo Alto, San Jose, Santa Rosa, and Fairfield likewise live minutes away from tens of thousands of acres of unspoiled parklands. These urban amenities have come at the expense of many millions of dollars in public money spent by regional open space districts, parks departments, municipal watershed authorities, and city governments. Private environmental land trusts have kicked in additional millions of dollars to help make a certain aspect of life luxurious for even the poorest of local residents. Of the Bay Area's 4.5 million acres, approximately 731,000 are urbanized and the remaining 3.75 million acres are wild, according to the Greenbelt Alliance.

But as the region's sprawl pushes into more nooks and crannies, citizens and private landowners are waging a largely silent battle over whether the public has the right to continue traversing private land to reach public parks, wilderness areas, beaches, trails, and, in one case in Marin County, a Boy Scout camp.

Sometimes quietly, sometimes not, private landowners are shutting off points of access to the Bay Area's hundreds of thousands of acres of open space. Gates, fences, No Parking signs, and other impediments are being used to close off increasingly greater segments of California's coastline -- contrary to the spirit of state law that prohibits such limits on beach access.

The balance has been tipped in favor of private landowners over the past decade because former Attorney General Dan Lungren, whose office was responsible for defending public access, was largely indifferent to the matter, says Mark Massara, a Sierra Club attorney.

"He outright refused to recognize public access," Massara says.

There are laws on the books affording some protection for people's right to continue using historically traversed trails across private land. But few people know about them. So hikers, cyclists, horsemen, and motorists are as likely as not to turn back when they find a fence blocking a favorite lane. Local governments are often loath to go on record as opposing property owners in such land-use disputes. State agencies have been known to avoid enforcing such laws. In rare cases, members of the public have pooled their money, hired a lawyer, and taken the landowners to court. Sometimes they have won, sometimes not.

Most of these disputes rest on obscure pieces of California law remnant of English common law which say that roads, pathways, and other routes of access that have been used openly and without permission for more than five years enter the public domain, and stay there. The right to move about freely is as basic and precious as the right to private property, defenders of this legal doctrine say. These laws guaranteeing historical ways of travel derive from the Latin legal maxim Sic utere tuo ut alienum non laedas: "Use your own thing so as to not harm that of another."

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Matt Smith

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