The black box of my ethics module says that donut/donut hole is 'cheating' and that a genuine 'get off my land' is not. But I need to analyze what the code is inside the black box that leads me to those conclusions. Thank you for the discussion, Zenpharmy.

Jan

Jan yes, I'm sorry I didn't explain myself sufficiently. The terminology of 'donut hole' isn't one I'd thought of, but it's a good description. Examples that come to mind in the West have centered around water. A small rancher has a piece of property with a spring that his ancestors settled and gained title to. It's the only water within miles. He and his neighbors have worked out arrangements with each other including travel ways, access, sharing or selling water, etc and they've done so for decades.

Another more wealthy rancher wants that water, but the first won't sell--it's been in his family forever, he wants to leave it to his kids, he makes a living selling the water to others, etc. The second rancher buys up all the land around the first and using trespass, shuts off all access to the first, even for trips to town for shopping, etc. But more particularly to make the land worthless for selling the water or operating a small ranch business. (The reverse has also happened with flowing water, i.e. creeks being dammed, etc)

The first rancher has in fact just lost his land and it's extrinsic value. He's left with the options of abandonment or doing a forced sale to the second rancher at a drastically reduced price, who now has just increased the value of his own property multifold. Under the basis of pure trespass, the second rancher might be seen to have the right to do as he wants with his property and granting or denying access to his property. Courts in these cases have looked at the history of access for the property and ruled in favor of the first rancher. But they've ruled the other way against public access in a lot of the environmental/wilderness/wild animal passage vs public cases. Thus the Hague's and Bundy's in Nevada and eminent domain abuses in city/developer vs private owners. Even dozens of cases that are happening now for off-the-grid property owners vs public/private utility.

Actually, I think that this is worthy of a discussion topic. The property that I am thinking of in my opinions is property that is bought by an owner for the purpose of owning that bit of land - and then bad things happen to the concept of 'ownership'. What you are indicating is that the idea of buying up a 'donut' of land for the express purpose of denying customary access to the 'donut hole' in the middle is cheating on the basic idea of owning property.

I really have not thought about this and how it dovetails (or not) with the idea that I can own a piece of land and say, "Get off my property!" to someone who is trespassing.

Jan

I think the answer is 'all the time'. Anyone who owns a piece of property may be 'in the way' of something of value behind it. This does not mean that the government gets to declare that people have the inherent right to tromp through your property to get to the uranium mine or pretty waterfall or whatever the value item is that is behind your back yard. (It does mean that a negotiated settlement of easement rights is appropriate.)

Plus, I would like to contest the idea that the government can rewrite the rules at whim - such as the EPA is doing with ponds and puddles. If the government changes the rules to take something away from you, you are at least entitled to recompense - or a good fight. People who have ponds in their backyards have now forfeit their right to control those waters - and the government has taken over that right. They get nothing in return.

How many people in the US have homes along rivers? Along shores? The statement 'barring access to navigable waters is not allowed' makes it sound as if this is an eternal commandment. But I recall it not being so when I was a child. So, in the past, a property owner along the coast (or a river, or a lake) was considered to actually have bought the beach and own it. (As I mentioned before, I dimly recall the grownups saying that we used to own some of the ocean - 100 yards out or something like that.) These are all laws that are made by mankind, and subject to reinterpretation, revision, and argument.

Jan

khalling, I agree that there was no contractual public easement, but there was an historical public access usage. Public use access is seldom if ever detailed in a property contract.

And before anyone accuses me otherwise, I'm a strong supporter of private property rights, but I'm equally a strong opponent of predatory and coercive attempts to control other property by the purchase of surrounding property to gain value or profit of property that can't be otherwise bought for what ever reason. That is a tactic being utilized by such groups as the Sierra Club, Nature Conservatancy, Wildlife Conservatancy, and many others such as Ted Turner and celebrity purchasers throughout the West simply for the purpose of denying historical access and use of huge tracts of public lands.

it was never a public easement. show me the documents to show such. It was always private property

what did he purchase that was not private? show me the contract...

khalling; 'being a bad neighbor' doesn't quite cover it. The new owner is attempting to gain value or property through coercive force that he can't gain otherwise through the normal means of purchasing. I don't think it's a question of forcing a new owner to continue a business. I don't think the court is doing that in this case. I suspect the previous owner simply saw an opportunity to profit from doing something he knew he'd have to do anyway. We don't know who controlled the closing of the gate, the property owner or the government in cases of dangerous weather.

Jan; the beach was determined to not be property since at times it's under water from the tide of the sea, and as db reminded me in kh's comment above, barring access to navigable waters is not allowed. But this example aside, when does allowing a buyer to gain the benefit or value of something like a beach or any other property that he can't buy, by buying property of lesser value in order to prevent access and use by anyone else to that primary property, coercive and therefor gaining value through force?

Yes, the EPA, a true waking nightmare!

I agree. I sometimes have nightmares of a near-future world where the US declares Imminent Domain over all of our yards and homes - and said that the price was $0. Then I wake and remember the EPA has already done this for puddles and ponds...

Jan

Indeed herein lies the rub -- the negotiation of price. Eminent domain says that the state will determine the price not the free market. And this is yet another place where I part company with them. If the state truly believes that beach access is so valuable let them bid accordingly. Bringing "eminent domain guns" into play is not a trade , merely more thuggery.

Thank you. I clicked through and read the various links extolling the virtues of public access and found this sentence: "California law provides that under certain conditions, long term public access across private property may result in the establishment of a permanent public easement. This is called a public prescriptive right of access."

Ya know, it would maybe make a lot more sense if the State did not punish people for being nice. If the State said, "We guarantee not to take away your private property if you let the public on it." a lot more property owners would look favorably on this. What is more, if the State offered a 'fair trade' as in, "If you allow the public on your lands, we will maintain the road for you.", why - that would be even nicer.

As it is, as long as we keep the gate locked and are not 'nice' we will seem to be OK.

Jan
(If one could believe the State...)

We are living in a socialist country now. Things like this are commonplace within a socialist framework. Since most of the people support things they can get for free, it really is time for the wealthy and productive to abandon ship and wait for the socialist economy to crash, as in venequela

But Zenpharmy - the beach used to belong to the owner of the property. That ownership was taken away from the private owner by the government.

Jan

But the owners of the property do not want to sell their land. Does the State then invoke Imminent Domain to force them to sell?

Jan

It seems to me that the state should simply purchase the access property. Simply forcing property owners to provide access is clearly wrong as it asserts ownership of the property without the associated responsibility.

I spent much of my childhood on this beach. There is a photo of my mom, brother and I stacked on each other in a triangle with the big rock there in the background. Many memories. But, several years ago I saw that the sign was down. Then, I heard that the beach had been closed to the public. This confused me because I always thought it was a public beach. I still think it is probably a question of the right-of-way for the road from highway 1, through the ag field, to the beach. Last time I was there I noticed several new private residences built right up to the sand. Nice little places.

I think there's probably more to this story than what Fox News is reporting. I plan to take my wife and kids there and recreate that photo (40 years later) on the sand.

Here on the west coast I have seen beaches really taken over by very wealthy, with access greatly limited. I'm torn over that because being on the beaches was a major part of my childhood. Now, I rent big, expensive beach houses just south of this location. Both have keyed gates, not allowing public access to the beach, near Capitola. I hope to own a property there eventually (and have a key of my own). Wish me luck.

I must add that life in California without beach access equals hell...

Khosla has been and continues to be a big donor to the DNC as well as individual Democratic Party campaigns. It appears his protection payments were not enough. He didn't consider what his support has been doing to regular folks but now that it's biting him, he is paying attention. Too late.

Thanks. Maybe something will come up that enlightens the discussion, but for now it sure seems arbitrary/politically motivated...

well db agrees that you cannot prevent people access from navigable waters and therefore a reasonable amount of beachfront. and because you did not develop the beach, keeping people from getting to it is at the very least being a bad neighbor. But in this case, much more was happening including the maintenance of a road and a parking lot. At what point do you demand the new owner of a commercial enterprise has to keep his doors open for the same business? why is it unreasonable for him to say, no, that business is I will not pursue and so the access ends up being a larger burden than a simple footpath down to the beach. It forces you to perhaps maintain some security you might not otherwise need. It was gated, after all, which leads me to believe the gate had been closed at times over the last 70 or so years.

It's long been the case that the courts enforce historical usage of travel ways without eminent domain. It's even the case that if a property owner permits a neighbor to erect a fence that intrudes onto his property and allows that fence to remain for a certain number of years, whether he knows about it or not, that property title within the fence has been transferred to the intruder.

Yet we all accept imposed easements on our property out to 1/2 of an alley or for a public sidewalk and for city, county, and state owned utilities whether in place or for possible future use as well as for privately owned utilities again whether in place or for possible future use, even if we don't access those utilities; and injuries incurred within those easements by government or private utility employees if determined to be due to improper property maintenance or improper construction can impose liability on the property owner.

There are numerous court cases throughout the country going back numbers of years that grant continued historical use even in the absence of an easement detailed in purchase contracts, particularly in the cases of transport and the continuation of county and rural travelways.

In this particular case, I seriously doubt that the new owner has any concern over liabilities but rather just wishes to prevent access to the beach in front of his 89 acres (which he can't own past the historical high tide) by preventing use of an historical roadway. In any case he has available court ordered indemnity and I would guess that such is a part of the court's ruling. Certainly if the previous property owners had allowed the usage for a century (?), they must have had some such indemnification in place. Regardless, I think this is simply a case of 'Buyer beware'. This is the wrong case for argument of private property rights.

They'd probably try to find some agent of that vanishing, and sue said agent.

I gather the owner hasn't made up his mind what to do next.

Pathetic!

Next it will be his liability when someone falls on the path because it is poorly maintained and unlit!