Code of Civil Procedure (CCP) Section 873.080 - Designation of Public and Private Ways

Code of Civil Procedure section 873.080 allows the referee to make a part of the property a public or private way. This statute is important because occasionally there may be a road or other way to access the property that must be shared or made public.

Code of Civil Procedure section 873.080 states

(a) In selling or dividing the property, the referee may, if it will be for the advantage of those interested, designate a portion of the property as a public or private way, road, or street. In connection therewith, the referee may also recommend the closure of any or all other roads on the property and allocation of the portion of the property occupied by such roads to the parties.

(b) Upon making such a designation and recommendation that is adequate to accommodate public and private needs, the referee shall report that fact to the court.

(c) Upon confirmation of the referee's report by the court, subject to any necessary action by the appropriate public entities:

(1) The portion of the property designated as a public way, road, or street shall not be allocated to any of the parties or sold but shall be an open and public way, road, or street.

(2) The property designated as a private way, road, or street shall be a private way for the use of the parties interested.

(3) The roads recommended to be closed shall be deemed abandoned upon the terms stated in the order of confirmation.

(Amended by Stats. 1976, c. 73, p. 110, § 6.)

“Shawn” and “Julie” are an unmarried couple. They decide to buy a home as joint tenants and move in together. The home is in a rural area, and the only way to access the property is a winding road.

Unfortunately, Shawn and Julie’s relationship doesn’t work out, and they break up. They cannot agree on what to do with the property. Shawn wants to sell the home and move on, so he sues for partition by sale.

Eventually, the court orders the property to be sold and the sale proceeds distributed. The court also appoints the referee to oversee the partition. Pursuant to CCP § 873.080 the referee designates the road as a private road and reports this to the court.

The court confirms the referee’s report. The designated road will now be a private way for any potential buyer.

1976 Addition

Section 873.080 is new. It makes clear that the actions of the referee in disposing of the property and of the court in confirming the referee's actions must conform to any applicable laws.

As is the case for most of the partition statutes, section 873.080 does not include a an “official” Assembly Committee Comment from the California Legislature. But this is because the Legislature endorsed an overall adoption of the Law Revision Commission suggestions when it passed the new partition statutes in 1976.

In fact, the introduction to Assembly Bill 1671 (the bill that contained the new partition laws) states that the Revision Commission’s recommendations “reflect the intent of the Assembly Committee… in approving the various provisions of Assembly Bill 1671.” This demonstrates that the intent of the Legislature was substantially in line with that of the Revision Commission.

As to how this statute actually functions, case law interpreting the previous version suggests that it operates to allow the referee to create an easement where necessary. It operated not to prevent complete partition of the lands involved, but was to authorize referees in partition to create an easement for a private or public way, instead of limiting their authority as formerly to the creation of an easement on behalf of one parcel of land partitioned over another parcel also partitioned. (Machado v. Title Guarantee & Trust Co. (1940) 15 Cal.2d 180, 184.)

This statute also further reflects the broad authority of the court, and by extension the referee, during the pendency of a partition. “In the conduct of the action, the court may hear and determine all motions, reports, and accounts and may make any decrees and orders necessary or incidental to carrying out the purposes of this title and to effectuating its decrees and orders.” (CCP § 872.120.)