State of California v. Superior Court (Lyon)

CLARK, J., Concurring and Dissenting.

The majority opinion overwhelmingly establishes that by statute, case authority and practice California historically has not claimed title to land between the high and low water marks of inland bodies of water. I thus concur in the majority holding that Lyon has fee title to lands above the low water mark of Clear Lake.

However, I must dissent from the holding that lands lying along navigable streams and lakes between high and low water levels are subject to the tidelands and submerged lands trust. That trust should be limited to tidelands as its name implies—lands covered and uncovered by the flow and ebb of the tide—and submerged lands. Historically, the trust has not been applied to land between high and low water mark on navigable lakes and streams (the shorezone). To the contrary, millions of acres have been reclaimed between high and low water for residential, agricultural, and general governmental uses—uses which would have been and are improper if the trust doctrine is applicable. History establishes it would have been against public policy—greatly impeding the development of the resources of our state—to have applied the trust doctrine. To apply that doctrine for the first time today casts clouds on thousands if not millions of land titles and uses, and jeopardizes agricultural and residential uses of millions of acres which are presently so used and are far more valuable for farm and home tha.ii for trust uses. While public recreational and ecological uses of the shorezone are important considerations, the state has and is providing for such uses. Application of the trust to millions of acres historically and presently within the shorezone is overkill, contrary to public policy, and an inequitable infringement on long-settled and vested titles.

I. The Trust

The common law trust at issue has repeatedly been described by our courts as applying to tide and submerged lands. (E.g., City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 518-519, fn. 1 [ 162 Cal.Rptr. 327 , 606 P.2d 362 ]; Marks v. Whitney (1971) 6 Cal.3d 251, 257, fn. 1 *234 [ 98 Cal.Rptr. 790 , 491 P.2d 374 ]; City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 482 [ 91 Cal.Rptr. 23 , 476 P.2d 423 ]; San Diego County Archaeological Society Inc. v. Compadres (1978) 81 Cal.App.3d 923, 925 [ 146 Cal.Rptr. 786 ].) The Clear Lake lands now at issue are not tidelands—they are not daily covered and uncovered by the flow and ebb of tide water. (See Marks v. Whitney, supra, 6 Cal.3d 251, 258; People v. Kerber (1908) 152 Cal. 731, 733 [ 93 P. 878 ].) Unlike tidelands the instant shorezone is uncovered for long periods of time— often the better part of a year. Tidelands unlike the instant lands are covered and uncovered twice each day by salt water, which—unlike the waters of Clear Lake—severely limits use of underlying lands for agricultural purposes. The instant shorezone land is obviously not submerged land.

Before considering historical matters requiring rejection of the majority’s extension of the trust to shorezones, we should first consider the trust as it applies to true tide and submerged lands.

Tidelands and submerged lands owned by the state are held in trust for public purposes of navigation, commerce and fisheries. (City of Long Beach v. Mansell, supra, 3 Cal.3d 462, 482 ; People v. California Fish Co. (1913) 166 Cal. 576, 584 [ 138 P. 79 ].) Tidelands subject to the trust may not be alienated into absolute private ownership; an attempted conveyance of such land transfers “only bare legal title,” and the property remains subject to the public trust easement. (Id.) The decisions of this court have established that the trust is a limitation on governmental as well as private reclamation activities. (City of Long Beach, supra, 3 Cal.3d 462, 482-486 ; Atwood v. Hammond (1935) 4 Cal.2d 31, 38 [ 48 P.2d 20 ]; City of Oakland v. Williams (1929) 206 Cal. 315, 327-328, 330-331 [ 274 P. 328 ].)

The uses permitted within the trust are described in Marks v. Whitney (1971) 6 Cal.3d 251, 259-260 [ 98 Cal.Rptr. 790 , 491 P.2d 374 ], as follows: “Public trust easements are traditionally defined in terms of navigation, commerce and fisheries. They have been held to include the right to fish, hunt, bathe, swim, to use for boating and general recreation purposes the navigable waters of the state, and to use the bottom of the navigable waters for anchoring, standing, or other purposes. [Citations.] The public has the same rights in and to tidelands. [U] The public uses to which tidelands are subject are sufficiently flexible to encompass changing public needs. In administering the trust the state is not burdened with an outmoded classification favoring one mode of uti *235 lization over another. [Citations.] There is a growing public recognition that one of the most important public uses of the tidelands—a use encompassed within the tidelands trust—is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area. It is not necessary to here define precisely all the public uses which encumber tidelands.”

Permissible uses of tidelands whether by government or private citizens are numerous within the broad terms of the public trust for navigation, commerce, fishing and other purposes. For example, in City of Oakland v. Williams (1929) 206 Cal. 315, 319-323 [ 274 P. 328 ], this court upheld the use of such lands by a private party for a warehouse to be used for shipping, processing, and packing dried fruits. (See Atwood v. Hammond (1935) 4 Cal.2d 31, 40 [ 48 P.2d 20 ].)

Nevertheless, there are certain common land uses which are not included within trust uses, namely, residential, agricultural, and general governmental. Individuals as well as government may enforce the trust. (Marks v. Whitney, supra, 6 Cal.2d 251, 261-262 .)

Reclamation of tidelands does not in and of itself terminate the public trust. (Marks v. Whitney, supra, 6 Cal. 3d 251, 261 ; City of Long Beach v. Mansell, supra, 3 Cal. 3d 462, 483 ; Newcomb v. City of Newport Beach (1936) 7 Cal.2d 393, 402 [ 60 P.2d 825 ]; Atwood v. Hammond (1935) 4 Cal.2d 31, 40-41 [ 48 P.2d 20 ].) However, if the Legislature finds and determines that particular lands are no longer useful for trust purposes, it may free them from the trust. (Marks v. Whitney, supra, 6 Cal. 3d 251, 260 ; City of Long Beach v. Mansell, supra, 3 Cal.3d 462, 482 .) Statutes purporting to terminate the public use will be carefully scanned to determine whether that was the legislative intent. (City of Berkeley v. Superior Court, supra, 26 Cal.3d 515, 525.)

II. The Shorezone Historically

We were taught in elementary schools that geographical conditions encountered by early settlers of our great California valleys were significantly different from those presently existing. Winter and spring rains and snows melting in the Sierras created great inland seas in the center of California. The width of rivers measured by feet in summer *236 extended to miles during parts of the spring. 1 While the land regularly covered by water was as rich as any in the world, it could only be effectively farmed after the water receded. The flooding and short growing season limited production of crops and improvements which could be made.

Much of the history of California is tied to reclamation and farming of the state’s rich bottom land. Such reclaimed lands have become some of the world’s most productive farmland. Other large areas of reclaimed land have been used for urban development. For example, much of Sacramento is built upon reclaimed land. (E.g., Gray v. Reclamation District No. 1500 (1917) 174 Cal. 622, 626-631 [ 163 P. 1024 ] (Sacramento and Feather Rivers); Miller & Lux v. Madera Canal etc. Co. (1909) 155 Cal. 59 , 67 et seq. [ 99 P. 502 ] (San Joaquin River); Modoc L. & L. S. Co. v. Booth (1894) 102 Cal. 151 , 153 et seq. [ 36 P. 431 ] (Pitt River).)

In addition to tracts now protected from flood waters there remain large tracts that—while flooded in winter and spring—are naturally drained and farmed in the summer and fall. For example, the Yolo Basin, which is used during the annual runoff to reduce flood pressure on other areas (see, Gray v. Reclamation District No. 1500, supra, 174 Cal. 622, 631 ), is an area of many square miles and is put to productive farm use when the waters recede.

Similarly, not all homes built within the shorezones are free from regular flooding. Thousands of such homes remain, for example, along the Russian River. These shorezone homes are regularly flooded.

The acres of reclaimed land which have been put to productive agricultural and residential use number in the millions. So far as I am *237 aware, the Legislature has never found or determined such reclaimed lands useless for trust purposes or free of the trust. Indeed, it is by no means clear the Legislature could have found or could now find such reclaimed lands or even the greater portion thereof useless for trust purposes when we remember that among such purposes are recreational and ecological uses. While the lands may be extremely valuable for agricultural and residential purposes, a balancing of values is not the test under the trust doctrine. The test is lack of value for trust purposes. In addition, it must be pointed out that the government exacted a ransom of $783,500 to clear the title of the homeowners in the subdivision in the asserted tidelands area involved in City of Long Beach v. Mansell, supra, 3 Cal.3d 462, 475 .

Th'e history of development of our great agricultural valleys and related residential development is directly in conflict with the asserted common law trust the majority seek to impose.

The majority trust doctrine is not merely in conflict with the private assertion of fee interest to reclaimed lands, but it is abundantly clear the state has encouraged and provided for such uses. One need only examine the three volumes of West Publishing Company’s Appendix to our Water Code to note the collection of statutes enacted by our Legislature to establish reclamation districts which were obviously designed to further private agricultural use of reclaimed lands. While such districts may have also furthered navigational purposes on the concerned bodies of waters, it would be unreasonable to conclude that assessments against reclaimed lands to finance the costs of reclamation did not reflect increased values of properties as agricultural lands or that reclamation districts were not created with the intent the lands were to be used for agricultural purposes. Further, numerous municipalities in historical shorezone areas have approved subdivisions for residential development and have provided residential services, all of which activities are in conflict with the majority’s trust.

In concluding that in the past 130 years there has been a public policy to maintain land in its natural state or to limit historical shorezones to trust uses, the majority blind themselves to the historical development of controlling law. This law recognizes what highly productive members of our society undertook to forge, not only to serve their needs but also to serve the needs of society with the authorization, approval *238 and encouragement over the years of our Legislatures, Governors, and local governmental agencies.

Application of the trust doctrine to the shorezone is contrary to California public policy. Rather than precluding farming and residential use of the shorezone, the policy has been to encourage reclamation and farming and residential use of these properties.

Protection of parts of our historic shorezone for the purposes permitted by the trust is a worthy endeavor but it should not be accomplished with a blunderbuss that confiscates thousands—perhaps millions—of titles, and jeopardizes existing use of millions of acres of residential and farm lands. While, as the majority recognize (State of California v. Superior Court (Fogerty) (1981) post, p. 240 [ 172 Cal.Rptr. 713 , 625 P.2d 256 ]), the state must compensate the landowner for improvements should it choose to exercise the trust and take property for park or other purpose, it is not required to compensate for taking the land. From time immemorial landowners within the shorezone have conducted themselves in good faith as if they were owners in fee, and the land (apart from improvements) has been assessed and taxed as in the case of all fees not subject to the state’s assertion of a right to take under a trust. To impose the trust at this late date on all property within the shorezone so that the state may take it without payment is confiscation and constitutionally impermissible.

In concluding that the trust doctrine must extend to the shorezone the majority rely mainly upon Illinois Central Railroad v. Illinois (1892) 146 U.S. 387 [ 36 L.Ed. 1018 , 13 S.Ct. 110 ] where the Supreme Court held that a grant of submerged lands in Lake Michigan was subject to the trust. (Id., at p. 452 et seq. [ 36 L.Ed. at p. 1042 et seq.].) The court expressly recognized that it did not impose a trust on the shorezone. It stated: “If it be ascertained . .. and determined that such piers and docks do not extend beyond the point of practicable navigability, the claim of the railroad company to their title and possession will be confirmed; but if they or either of them are found on such inquiry to extend beyond the point of such navigability, then the State will be entitled to a decree that they, or the one thus extended, be abated and removed to the extent shown ....” (Id., at p. 450 [ 36 L.Ed. at p. 1041 ].) The court’s order was to the same effect. (Id., at p. 464 [36 L.Ed. at pp. 1046-1047].)

*239 Far from serving as authority to extend the trust to freshwater shore-zones, Illinois Central Railway reflects it is only navigable submerged lands that are subject to the trust.

I would deny mandate.

Richardson, J., concurred.

The petition of real parties in interest Raymond R. Lyon and Margaret L. Lyon for a rehearing was denied April 29, 1981. Richardson, J., was of the opinion that the petition should be granted.

Historically, the Sacramento River has carried off the annual spring flow of seasonal rains and melting snows which arise in surrounding mountains. Large basins were formed as vast amounts of water regularly overflowed river banks. During spring seasons, the total basin covered 1,250 square miles and in extraordinary years 1,700 square miles. When spring flood waters evaporated, the most fertile and productive agricultural land was exposed. (See, Rep. of A Board of Engineers Upon Examination of Sacramento, San Joaquin, and Feather Rivers, Cal., H.R. Doc. No. 262, 59th Cong., 1st Sess., p. 6 (1905); Rolle, California: A History (1969) pp. 370-371.) Similarly, the Fresno River (Miller & Lux v. Madera Canal etc. Co. (1909) 155 Cal. 59, 63-64 [ 99 P. 502 ], and the San Joaquin River (Herminghaus v. So. California Edison Co. (1926) 200 Cal. 81, 87-88 [ 252 P. 607 ]) have traditionally overflowed during the spring time to produce large marshland areas, which were subsequently highly productive.