Petition — Daugherty v. City of Long Beach

IN THE

SUPREME COURT OF THE UNITED

ne. #471603

CATHERINE A. DAUGHERTY,

Petitioner,

vs.

CITY OF LONG BEACH, CALIF.,

a municipal corporation, and

STATE OF CALIFORNIA,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APPEAL, SECOND

APPELLATE DISTRICT, DIVISION FOUR

JERROLD A. FADEM

MICHAEL M. BERGER

of FADEM, BERGER & NORTON

A Professional Corporation

501 Santa Monica Boulevard

Suite 600

P. O. Box 2148

Santa Monica, CA 90406

(213) 451-9951

Attorneys for Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1977

No.

CATHERINE A. DAUGHERTY,

Petitioner,

Vs.

CITY OF LONG BEACH, CALIF.,

a municipal corporation, and

STATE OF CALIFORNIA,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APPEAL, SECOND

APPELLATE DISTRICT, DIVISION FOUR

JERROLD A. FADEM

MICHAEL M. BERGER

of FADEM, BERGER & NORTON

A Professional Corporation

) 501 Santa Monica Boulevard

Suite 600

P. O. Box 2148

Santa Monica, CA 90406

(213) 451-9951

Attorneys for Petitioner

TOPICAL INDEX

Table of Authorities

Opinion Below 4

Jurisdiction 5

Questions Presented For Review 5

Constitutional Provisions 7

STATEMENT OF THE CASE 8

VESTED PROPERTY RIGHTS CANNOT -

CONSISTENT WITH DUE PROCESS OF

LAW - BE SWEPT ASIDE BY SUDDEN

CHANGES IN THE LAW THAT (IN THE

WORDS OF THE TRIAL JUDGE) "TOOK

THE WHOLE [LEGAL] PROFESSION

[BY SURPRISE] ” 12

GION-DIETZ, BY RADICALLY AND

RETROACTIVELY CHANGING THE

LAW OF "IMPLIED DEDICATION",

UNCONSTITUTIONALLY IMPARIED

THE OBLIGATION OF CONTRACTS,

IN CONFLICT WITH DECISIONS

OF THIS COURT 22

TABLE OF AUTHORITIES

CONCLUSION 25

APPENDIX A - OPINION Court of

of Appeal, Dated

Dec. 16, 1977

APPENDIX B

PETITION FOR REHEARING

DENIED, Dated

JAN 3- 1978

APPENDIX C - ORDER, HEARING DENIED,

Dated FEB 9 1978

APPENDIX D - NOTICE OF INTENDED

DECISION, Dated

8/1/74

APPENDIX E - JUDGMENT QUIETING

TITLE TO REAL PROPERTY,

Dated, 1/13/75

ii.

~ Nt A

TABLE OF AUTHORITIES

Page

Cases

Chicago, B. & Q. R. Co. v.

Chicago (1897) 166 U.S. 266 12

City of San Diego v. Hall (1919)

180 Cal. 165 20

Gion v. City of Santa Cruz (1970)

2 Cal.3d 29, 84 Cal.Rptr. 162

465 P.2d 50 Passim

F.A. Hihn Co. v. City of Santa

Cruz (1915) 170 Cal. 436 19, 20

Hughes v. Washington (1967)

389 U.S. 290 12, 13, 16, 20

Manhattan Beach v. Cortelyou (1938)

10 Cal.2d 653 20

Muhlker v. New York & Harlem R.R.

(1905) 197 U.S. 544 12, 24, 25

Sotomura v. Co. of Hawaii (D.H

(D. Hawaii 1975)

402 F.Supp. 95 15. 16

iii.

Stovall v. Denno (1967)

388 U.S. 293 21

Whiteman v. City of San Diego (1920)

184 Cal. 163 20

Statute

28 U.S.C. § 1257(3) 5

Constitution

United States Constitution

Article l, §10 Ge Fe She OO

Fifth Amendment 7, il

Fourteenth Amendment Fe be

Texts

The Supreme Court of California

1969-1970 (1971) 59 Calif. L.

Rev. 30, 231-232 18

This Land is My Land: The Doctrine

of Implied Dedication and Its

Application to California Beaches

(1971) 44 S. Cal. L. Rev. 1092,

1093 18, 20

iv.

Page

Public or Private Ownership of

Beaches: An Alternative to

Implied Dedication (1971)

18 U.C.L.A. L. Rev. 795, 802 18

Lascher, Tips For the Overburdened

Reader (1971) 46 Cal. St. B. J.

13, 16 17

Shavelson, Gion v. City of Santa

Cruz: Where Do We Go From Here?

(1972) 47 Cal. St. B. J. 415 17

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1977

No.

ee

CATHERINE A. DAUGHTERY,

Petitioner,

vs.

CITY OF LONG BEACH, CALIF.,

a municipal corporation, and

STATE OF CALIFORNIA,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APPEAL, SECOND

APPELLATE DISTRICT, DIVISION FOUR

Petitioner Catherine A. Daugherty re-

spectfully prays that a writ of certiorari

issue to review the decision of the Cali-

fornia Court of Appeal, Second Apvellate

District, Division Four, ir the case at

bench and, upon such review, the decision

be reversed.

This case represents a particularly

cruel illustration of the problem which can

accompany the use of extreme "solutions"

l.

iii i

to problems perceived as "environmental"

in nature.

One can endorse the general public

goal of preservation of coastal resources

and provision of public access to the

shore. Such agreement, however, does not

lead to approval of the means chosen by

the California courts to accomplish it.

Confiscation of Mrs. Daugherty's prop-

erty based on events which occurred de-

cades ago, and under legal rules which

gave no warning of the confiscation which

would occur decades later, is the product

of this case's movement towards that goal.

Uncounted others occupy the same unfortu-

nate situation.

The general solution devised by the

California Supreme Court in its decision

in Gion v. City of Santa Cruz (1970) 2 7

Cal.3d 29, 84 Cal.Rptr. 162, 465 P.2d 50,-

was a radical and unexpected expansion of

the doctrine of "implied dedication" based

upon a series of fictional presumptions.

1/ The Gion case was consolidated with

Dietz v. King and is sometimes referred

to as thé Gion-Dietz decision.

2.

—————-

_— :

The Court presumed that long use of prop-

erty by “the public" meant that the owner

knew of the use being made and acquiesced

in it (2 Cal.3d at 38, 84 Cal.Rptr. at 167,

465 P.2d at 55). It further presumed

that “public use" for five years meant

that the use was adverse (2 Cal.3d at 39,

84 Cal.Rptr. at 168, 465 P.2d at 56) .2/

And it further presumed that this presum-

ably adverse use in which the owner pre-

sumably acquiesced meant that the owner

presumably intended to dedicate his prop-

erty to "the public" (2 Cal.3d at 38-39,

84 Cal.Rptr. at 167-168, 465 P.2d at 55-

56).

The California Supreme Court impliedly

presumed that there are no "nice guys"

who would allow members of “the public”

to use their vacant property, and ex-

pressly refused to recognize that a gen-

eral license to "the public” would or

could knowingly be granted (2 Cal.3d at

41, 84 Cal.Rptr. at 169, 465 P.2d at 57).

2/ It is a bit troublesome to reconcile

the conclusions that five years of

“use by the public" is presumptive proof

of simultaneous acquiescence and adversity.

3.

ee

;

After five years of such use, the prop-

erty is dedicated to "the public”.

Based on testimony of “public use”

half-a-century ago (before Mrs. Daugherty's

home was built), the trial court ordered a

"public recreation easement” impressed ="

her entire property - including her home -—

To the "nice guys” in the world, confisca-

tion is their reward. The only California

beach owners who escaped Gion-Ditez are

the misanthropes who fenced "the public”

out.

Opinion Below

The opinion of the California Court of

Appeal presented for review by this peti-

tion is reported as City of Long Beach v.

Daugherty (1977) 75 Cal.App.3d 972,

Cal.Rptr. =. A copy of the opinion is

attached as Appendix A.

3/ On appeal, the City and State requested

~ that the easement be relinquished as

to the home itself, and the Court of

Appeal did so.

= ll lt

Jurisdiction

The judgment of the California Court

of Appeal was filed and entered December

16, 1977. A timely Petition for Rehear-

ing was denied by that Court January 3,

1978. A copy of the order is attached as

Appendix B. A timely Petition for Hear-

ing in the California Supreme Court was

denied February 9, 1978. A copy of the

order is attached as Appendix C. A copy

of the Superior Court's Notice of Intended

Decision is attached as Appendix D, and

its Judgment as Appendix E.

This Court's jurisdiction is invoked

pursuant to 28 U.S.C. § 1257(3).

Questions Presented For Review

1. When a state Supreme Court reverses

a long-standing rule of property which

sets up the requirements for establishing

the prescriptive dedication of private

property to public use, and then the

courts of that state retroactively apply

the new rule in such a manner that prop-

erty which was private under the old rule,

ipso facto, eo instanti, becomes public

Se

under the new rule - without the payment

of any compensation to the former owner,

and without any opportunity for private

property owners to adjust their actions

to fulfill the requirements of the new

rule - has the former owner been deprived

of proper.y without due process of law,

in violation of the Fifth and Fourteenth

Amendments to the United States Consti-

tution?

2. Can a state, without violating the

Fifth and Fourteenth Amendments to the

United States Constitution, take private

property for public use without compensa-

tion, by means of a sudden change in

judicially declared property law?

3. Does it violate the contract clause

of the United States Constitution (Article

1, §10), for a state supreme court ‘to

radically alter property rights and then

retroactively apply its new decision to

property acquired and protected pursuant

to previously-settled law?

MO nam

4. Is a litigant afforded due process

of law when a state court establishes

presumptions about the effect of human

behavior - which have no basis in fact -

which are applied so conclusively that

once evidence of that behavior has been

introduced, the opponent can do nothing

to rebut its impact?

Constitutional Provisions

The following Constitutional provisions

are involved in this petition:

U.S. Const., Art. 1, §10, Cl. ls:

"No State shall .. . pass any.

law impairing the obligation of

contracts .. ."

U. S. Const., 5th Amentment:

- « « nor shall private property be

taken for public use, without just

compensation.”

U.S. Const., 14th Amendment:

" . . nor shall any State deprive

any person of life, liberty, or

property, without due process of

Dame «2 6

STATEMENT OF THE CASE

Since 1922 there has been a home on the

25 foot wide lot now owned by Petitioner

Catherine Daugherty. Mrs. Daugherty's

tiny lot is located near the easterly end

of an eight and half mile long ocean beach

in Long Beach, California.

Before 1922, some members of the gen-

eral public had used part of the eight

and a half mile beach for recreation.

There was no testimony that anyone used

Mrs. Daugherty's 25 foot portion of that

eight and a half miles. Mrs. Daugherty's

home was constructed in 1922. The home

covers approximately 95 feet of the lot's

155 foot depth. The remainder of Mrs.

Daugherty's lot, what would normally be

called one's front yard, had no fence

separating it from the seaward public

8.

beach (just as most people do not fence

their front yards).

Before 1922 (indeed, before 1970's

Gion-Dietz decision), the law of Califor-

nia was clear from a series of California

Supreme Court decisions beginning in 1915

that the fact that the owner of undevel-

oped beach property failed to object to

"public" use was presumed to show that a

license had been granted for such use.

This licensed use would not result in the

prescriptive acquisition or "implied dedi-

cation" of the property to the public.

Then in 1970, the California Supreme

Court stunned the legal community4/with

its decision in Gion v. City of Santa

Cruz [consolidated with Dietz v. King]

(1970) 2 Cal.3d 29. Gion-Dietz turned

the law around. Under the new Gion-Dietz

rule, five years of “public” use no longer

resulted in a presumption of a license,

but instead of an intent to dedicate the

4/ Commentators referred to it as a "bomb-

shell", and likened its impact on real

property law to both an “earthquake” and

a “hurricane.” (See text accompanying

notes 6-7, infra.)

9.

laud to the “public.”

If Gion-Bietz were applied prospec~

tively only, property owners would have

time to adjust their actions to the new

rule.

But in the case at bench, the Califor-

nia courts retroactively applied Gion-

Dietz. They held that the innocent pre-

1922 acts, which were presumed to have

been performed under a license from the

owner (and thus could not result in the

"public's" prescriptive acquisition of

rights), were now to be judged by the

post-1970 law, which presumes the contrary.

The trial court, referring to the Gion-

Dietz rule as having been given ”". . .

judicial birth . . . after an unduly long

and substantially unknown and uneventful

pregnancy... ," remarked:

"Here we are concerned that a Gion

recreational easement was established

in the public prior to 1922. By the

same token, before the Gion decision

was announced recently (1970), no one

knew it existed.” (Notice of Intended

Decision, Appendix D., pp- 8,5.)

10.

~~ eee Se ee Pa _

|

|

The result is that Mrs. Daugherty's

property has been taken from her for pub-

lic use without any compensation, by a

sudden and unexpected change in state

property law, in violation of Article l,

§10 and the Fifth and Fourteenth Amend-

ments to the United States Constitution.

These U.S. Constitutional issues were

raised by Mrs. Daugherty in each level

of the California Court system. They ap-

pear in her Answer to the Complaint and

her Cross-Complaint, as well as her Motion

for New Trial in the Superior Court, the

Appellants’ Opening Brief and Petition

for Rehearing in the Court of Appeal, and

the Petition for Hearing in the Supreme

Court. Each court has closed its eyes

to these unconstitutional incursions.

ll.

VESTED PROPERTY RIGHTS CANNOT -

CONSISTENT WITH DUE PROCESS OF

LAW - BE SWEPT ASIDE BY SUDDEN

CHANGES IN THE LAW THAT (IN THE

WORDS OF THE TRIAL JUDGE) “TOOK

THE WHOLE [LEGAL] PROFESSION [BY

SURPRISE] "

This Court has consistently held that

the 14th Amendment prohibits state courts

from establishing or changing rules of

law relating to vested property rights in

such a way that the rights are taken for

public use without just compensation.

(Muhlker v. New York & Harlem R.R. [1905]

197 U.S. 544, 570-571; Hughes v. Washing-

ton [1967] 389 U.S. 290, 296-299 [con-

curring opinion]; Chicago, B.&Q. R. Co.

v. Chicago [1897] 166 U.S. 266, 241.)

Two cases quite similar to the case at

bench arose recently in Washington and

Hawaii. They show the correct rule. Like

the California Supreme Court in Gion-

Dietz, the Supreme Courts of Washington

and Hawaii were concerned with preserving

their shoreline areas for “the public”.

But federal courts have refused to allow

this to be done by confiscatory means.

12.

In the Washington case, the Supreme

Court of Washington decided for the first

time in 1966 that the Washington Consti-

tution of 1889 vested in the State, title

to all accretions to the shore. The

Constitution did not expressly say that.

In Hughes v. Washington (1967) 389 U.S.

290, this Court - on certiorari to the

Washington Supreme Court - held that fed-

eral law determined ownership of the ac-

retions, and the owner was Mrs. Hughes,

not the State. The concurring opinion

of Mr. Justice Stewart illuminates the

issue at bench:

"To the extent that the decision

of the Supreme Court of Washington

on that issue arguably conforms to

reasonable expectations, we must

of course accept it as conclusive.

But to the extent that it constitutes

a sudden change in state law, unpre-

dictable in terms of the relevant

precedents, no such deference would

be appropriate. For a State cannot

be permitted to defeat the constitu-

tional prohibition against taking

property without due process of law

by the simple device of asserting

retroactively that the property it

has taken never existed at all.

Whether the decision here worked an

unpredictable change in state law

13.

thus inevitably presents a federal

question for the determination of

this Court.

« . *

"There can be little doubt about

the impact of that change upon Mrs.

Hughes: The beach she had every

reason to regard as hers was declared

by the state court to be in the pub-

lic domain. Of course the court did

not conceive of this action as a tak-

ing. As is so often the case when

a State exercises its power to make

law, or to regulate, or to pursue a

public project, preexisting property

interests were impaired here without

any calculated decision to deprive

anyone of what he once owned. But

the Constitution measures a taking

of property not by what a State says,

or by what it intends, but by what

it does. Although the State in this

case made no attempt to take the ac-

Creted lands by eminent domain, it

achieved the same result by effecting

a retroactive transformation of pri-

vate into public property - without

paying for the privilege of doing so.

Because the Due Process Clause of the

Fourteenth Amendment forbids such con-

fiscation by a State, no less through

its courts than through its legisla-

ture, and no less when a taking is un-

intended than when it is deliberate,

I join in reversing the judgment.”

(389 U.S. at 296-299.)

14.

j

4

:

j

;

In Sotomura v. County of Hawaii (D.

Hawaii 1975) 402 F.Supp. 95, Mr. and Mrs.

Sotomura owned coastal property with a

metes and bounds description on the ocean

side, rather than a fluctuating tide line

boundary. This had keen confirmed by the

Hawaii Land Court (402 F.Supp. at 99).

Years later, the Hawaii Supreme Court

decided to change the rules applicable to

coastal boundaries, and established new

presumptions relating to coastal bounda-

ries (see 402 F.Supp. at 99, 100) .2/

Based on its new presumptions, the

Hawaii Supreme Court - at the urging of

the County of Hawaii - ordered the sea~

ward boundary of the Sotomura property

be moved so as to transform part of the

Sotomura property into public property.

The Sotomuras then filed suit in U.S.

District Court to restrain the enforce-

ment of the State Supreme Court's deci-

sion, because of its retroactive destruc-

tion of property rights by definitional

sleight-of-hand. The District Court

found serious constitutional questions:

5/ Just as the California Supreme Court in-

voked new presumptions in Gion-Dietz.

15.

" . . it is well established that

courts are not immune from the con-

stitutional prohibitions against

taking property without just compen-

sation when their unpredictable

changes of state law operate to pro-

duce such a result. [citations]

Here, this court has been called upon

to determine, inter alia, whether the

application of the Ashford standards

to plaintiffs' Land Court property

constituted an unpredictable or radi-

cal departure from established state

law." (402 F.Supp. at 101)

The same principles deserve application

here. The California Supreme Court's

Gion-Dietz decision was (in the words of

Hughes and Sotomura), a sudden, unpre-

dictable and radical departure from

established law.

One need hardly go beyond the tran-

scripts herein. As the trial judge him-

self acknowledged:

“THE COURT: Before you leave that,

if I can interrupt, instead of rehash-

ing it at some later time, we had for

the first time in what? 1971? A rule

of law enunciated in this state by the

Supreme Court with reference at least

to recreational easements, took the

whole [legal] profession [by surprise],

admittedly, and even the City Attorney

prosecuting this case, because up to

16.

—s

pn, 2 ha ial ite RA NORE 8 APS ewe

~ ~ sate’.

pe

that point they were paying valuable

money, thought they were doing it be-

cause they had to for these very

rights." (RT 549)

"Here we are concerned that a Gion

recreational easement was established

in the public prior to 1922. By the

same token, before the Gion decision

was announced recently (1970), no one

knew it existed." (Notice of In-

tended Decision, Appendix D, p. 5.)

The practicing bar agrees.

Assistant California Attorney General

Jay Shavelson, one of the counsel in

Gion-Dietz, called Gion-Dietz ". .. an

earthquake of major proportions . .. in

California real property law. "9/

Edward L. Lascher (currently a member

of the State Bar's Board of Governors)

thought it akin to both a "bombshell" and

a “hurricane”. _/

While student commentators have been

somewhat more restrained, they too, echo

this thought:

6/ Shavelson, Gion v. City of Santa Cruz:

Where Do We Go From Here? (1972) 47

Cal.St.B.J. 415.

7/ Lascher, Tips For the Overburdened

Reader (1971) 46 Cal.St.B.J. 13, 16.

17.

". . . an important extension of the Court's decision in F.A. Hihn Co. v. City

law of implied dedication by adverse of Santa Cruz (1915) 170 Cal. 436.12/ In

use . . ."8/ 1

n9/

Hihn, the City claimed that property (un-

". + » movel use of doctrine. . . used by the fee owner) adjoining public

beach property, had been dedicated for

a ee

". . . excessively expanded an already

muddled variation of the doctrine of public recreational purposes because the

implied dedication." 10/ | public had long used the land as if it

". . . the legal foundation for this were public land, and the 137 nevez

| decision is equally obscure." 11/ ! objected (170 Cal. at 447).— The Cali-

fornia Supreme Court curtly rebuffed the

notion:

All of the characterizations are true.

—

"Where land is uninclosed and unculti-

vated, the fact that the public has

| Before Gion-Dietz, the basic law with been in the habit of going upon the

| land will ordinarily be attributable

respect to implied dedication of coastal to a license on the part of the owner,

property was clearly stated in the Supreme rather than to his intent to dedicate.

(13 Cyc. 484). This is more particu-

§/ Note, The Supreme Court of California larly true where the user by the pub-

™ 1969-1570 T1871) 59 Calif. L. Rev. 30, lic is not over a definite and speci-

231-232. fied line, but extends over the entire

surface of the tract. (13 Cyc. 484).

It will not be presumed from mere

9/ Note, This Land is My Land: The Doc- failure to object, that the owner of

~ trine of Implied Dedication and Its Such land so used intends to create

Application to California Beaches (1971) in the public a right which would

| . Cal. L. Rev. 1092, 1093. ,

}

| 10/ Ibid.

{ a" ere 12/ Note that Hihn expressed the law at

} 11/ Comment, Public or Private Ownership the time the easements at bench were

~ Of Beaches: An Alternative to Implied purportedly acquired.

Dedication (1971) 18 U.C.L.A. L. Rev. 13/ The facts are remarkably similar to

’ . Gion and Dietz.

18. 19.

|

practically destroy his own os as

use any part o property.

Cal. at 448) fiahbsts ead

Hihn was followed by the California

Supreme Court in the later beach cases

of City of San Diego v. Hall (1919) 180

Cal. 165, 168; Whiteman v. City of San

Diego (1920) 184 Cal. 163, 173; and Man-

hattan Beach v. Cortelyou (1938) 10 Cal.

2d 653, 668.

Until Gion-Dietz, the implied dedica-

tion rule had been applied exclusively to

roads. (See Note, This Land is My Land:

The Doctrine of Implied Dedication and Its

Application to California Beaches [1971]

44 S.Cal. L. Rev. 1092, 1099.)

This rationale of the Hihn line of

cases was never judicially questioned until

Gion-Dietz (see Shepard's California cita-

tions).

What happened in Gion-Dietz - as in

Hughes arid Sotomura - was a drastic re-

definition of property rights. That which

was private property was declared by the

California Supreme Court - under newly is-

sued rules - to have become public.

20.

See ae le ai ee et eee a a eae,

The rules which everybody thought

were the rules before 1970, are no longer

the rules. The means by which an ocean-

front property owner reasonably believed

he could protect his property rights be-

fore 1970, were declared insufficient.

But those settled, pre-1970 rules formed

the basis of property law before 1970.

Those who relied on what the courts -

including the California Supreme Court -

had said before 1970, should not be placed

in the position of having their prop-

erty confiscated because they could

not predict what the Supreme Court would

do. To so so is to deprive them of their

property without any legal process - much

less due process of law. Retroactive ap-

plication of Gion-Dietz was erroneous and,

until now, monstrously prejudicial at

to Mrs. Daugherty.

14/ Ordinarily, such drastic substantive

changes are prospectively applied, in

order to prevent the kind of unfair result

reached at bench. That the Gion-Dietz

decision was itself applied in a retro-

active fashion was, as this Court has re-

marked, necessary in order to provide a

justiciable controversy. See, e.g. Stovall

v. Denno (1967) 388 U.S. 293, 301:

(Cont'd. )

21.

GION-DIETZ, BY RADICALLY AND

ACTIVELY CHANGING THE

LAW OF "IMPLIED DEDICATION",

UNCONSTITUTIONALLY IMPAIRED

THE OBLIGATION OF CONTRACTS,

IN CONFLICT WITH DECISIONS

OF THIS COURT

When Mrs. Daugherty acquired her home

in 1961, the law of California was clear

that there could be no "implied dedica-

tion of open beach property simply be-

cause the owner failed to take action to

evict "public" users.

14/ (Cont'd)

"Sound policies of decision-making,

rooted in the command of Article III

of the Constitution that we resolve is-

sues solely in concrete cases or con-

troversies, and in the possible effect

upon the incentive of counsel to ad-

vance contentions requiring a change

in the law, militate against denying

Wade and Gilbert the benefit of today's

decisions. Inequity arguably results

from according the benefit of a new

rule to the parties in the case in which

which it is announced but not to other

litigants similarly situated in the

trial or appellate process who have

raised the same issue. But we regard

the fact that the parties involved are

chance beneficiaries as an insignifi-

cant cost for adherence to sound prin-

ciples of decision-making." (Emphasis

added. )

22.

ne atte. asad 25) >

Nine years later, in 1970, the C lifor-

nia Supreme Court changed all that. In

Gion-Dietz, it held that such benign in-

action led to a presumption of dedication.

That presumption is virtually irrebut-

table. 15/

In the case at bench, the California

courts retroactively applied Gion-Dietz

so that random actions of unknown persons

half a century before, as well as private

inactions at the same time, which would

NOT have resulted in an "implied dedica-

tion" at the time of their occurrence,

had eo instanti transformed Mrs.

Daugherty's front yard into a public beach.

Such a radical change in the law,

which not only impairs, but destroys, the

rights Mrs. Daugherty acquired by her

contract of purchase of the property, con-

flicts with this Court's enforcement of

Article 1, §10 of the Constitution.

15/ This case is the proverbial Exhibit

~~ A. Once evidence had been introduced

of five years of such use, there was

nothing Mrs. Daugherty could introduce to

change the result. (See the Court of Ap-

peal’'s decision, Appendix A. p. 5.)

23.

Perhaps the clearest example is

Muhlker v. New York & Harlem R.R. (1905)

197 U.S. 544. There, by settled New York

law, the plaintiff had an easement appur-

tenant to his property for light, air

and view. An elevated railroad was built

which obstructed his easement. The lower

New York courts - consistent with settled

law - awarded him compensation for the

damage inflicted by obstruction of his

easement. The New York Court of Appeals

reversed. This Court refused to permit

such confiscation by a sudden change in

the law:

"The new principle based upon the

public interest destroys all distin-

ction between the surface of the soil

of a street and the space above the

surface, and, seemingly, leaves re-

maining no vital remnant of the doc-

trine of the Elevated Railroad Cases.

However, we need not go farther than

the present case demands. When the

plaintiff acquired his title those

cases were the law of New York, and

assured to him that his easements of

light and air were secured by contract

as expressed in those cases, and could

not be taken from him without payment

of compensation.

"And this is the ground of our de-

cision. We are not called upon to

discuss the power, or the limitations

24.

aes iy

upon the power, of the courts of New

york to declare rules of property or

change or modify their decisions, but

only to decide that such power cannot

be exercised to take away rights which

have been acquired by contract and

have come under the protection of the

Constitution of the United States.

And we determine for ourselves the

existence and extent of such contract.

This is a truism; and when there is a

diversity of state decisions the first

in time may constitute the obligation

of the contract and the measure of

rights under it. Hence the importance

of the Elevated Railroad Cases and the

doctrine they had pronounced when the

plaintiff acquired his property. He

bought under their assurance, .. ."

(197 U.S. at 570-571.) (Emphasis added.)

The same is true at bench. To redefine

rules of property, and then apply them to

interests acquired and protected under

different rules, is unfair. As in

Muhlker, such retroactive application

unconstitutionally impairs the obligations

of contract.

CONCLUSION

At the conclusion of the difficult

proceedings below, the trial judge, as he

was about to declare the Daughtery yard,

home and bedroom subject to a public

25.

recreation easement, said to Mrs.

Daugherty's attorney:

“THE COURT: I will go along with

you. I happen to believe in property

rights. I happen to believe in the

capitalist system. I am not a Com-

munist, but when rights are taken

away from property owners who don't

know that they are giving up rights

in the course of time, what am I to

say? I have no alternative.”

Mrs. Daugherty believes that the trial

court had an "alternative", one obediant

to the United States Constitution. She

prays that a writ of certiorari issue,

and that the judgment be reversed, so

that the primacy of the United States

Constitution is preserved.

Respectfully submitted,

JERROLD A. FADEM

MICHAEL M. BERGER

FADEM, BERGER & NORTON

A Professional Corporation

Attorneys for Petitioner

26.

APPENDIX A

eo | Pa 2 To4e

ows

[Civ. No. 48399 Second Dist. Div. Four

Dec. 16, 1977]

CITY OF LONG BEACH, Plaintiff and

Respondent, v. CATHERINE A. DAUGHERTY

et al., Defendants and Appellants;

STATE OF CALIFORNIA, Defendant and

Respondent.

OPINION

4 KINGSLEY, J. — Defendants Daugherty and

Sheehan appeal from a judgment declaring

that there exists a public easement for

recreational purposes over certain prop-

erty owned by them. With a modification

requested by the city and state, we

affirm the judgment.

Defendants own property, in the City

of Long Beach, located on the ocean

beach of that city. Originally, the

state's answer sought to determine the

boundary between the city-owned submerged

tideland and the property of the defen-

dants. During the course of the trial,

the parties entered into agreements fix-

ing the seaward boundary of their prop-

erties at what is commonly known as the

A-l.

"Chapter 138 line."2/ The trial court

found that the entire property of the —

defendants' shoreward of that line, in-

cluding improved portions thereof, to

be subject to an easement in favor of

the public. At the motion for new trial

and here the city and state waived and

abandoned any claim to an easement over

the improved portions of the property.

In accordance with that present position,

we modify the judgment as hereinafter

provided.

The properties herein involved are

located on a sandy beach in the City of

Long Beach, lying between Ocean Boulevard

and the Pacific Ocean. In the past, the

shoreline was eroded and half or more of

the properties were covered by water.

In 1954, the city began to make sand

1/ As recited in the judgment, the

"Chapter 138 line, refers to that

certain line described in section 7 of

Chapter 138, Statutes of 1964, lst Extra-

ordinary Session, a survey map which was

recorded March 11, 1968, as Document No.

1498 in Book M-2796, Page 449, Official

Records in the office of the County Re-

corder of Los Angeles County and filed

therein as No. F-1267."

A-2.

.

i

=

q

4

:

‘vas Pa ee ee eee ey eT een ait

L pri ke DGS cate

fills to alleviate the erosion and the

city spent more than $2 million to stabi-

lize the beach. Sandfill was placed on

the seaward 38 feet for the Sheehan lot

and the seaward 64 feet of the Daugherty

property.

The court found the public had made

continuous use of the properties for 60

years. The public used the beach for

hunting, fishing, swimming, shell col-

lecting, ball playing, picnicking, with-

out asking permission from the owners.

The public used the “entire” beach as if

it were a public beach. Captain Miller,

a lifeguard from 1922 to 1966, was asked

whether the public used "the areas in

front of the houses on the beach," and

he responded, "All of the time." He

said, "Regardless of where the house

was, they laid in front of the house,

spread their blankets out and that was

their place."

The city put up a restroom in the

vicinity of the beach, there were life-

guard services, and between 250 to 350

A-3.

ee ee

people a day used the beach2/ during the

perid& between 1924 and 1935. Beginning

in 1924, the city maintained the beach

by cleaning and grading, including main-

taining the area in front of the houses,

and between the houses, and the owners

were aware of the city's maintenance.

The subject properties are between

Granada Avenue on the west and 55th

place on the east. The city caused a

series of sandfills on the subject prop-

erty from 1945 to 1960. These sandfills

widened the beach so that it extended

approximately 500 feet southerly or sea-

ward of the Chapter 138 line. On the

Sheehan parcel, the fill extended north-

erly to within 95 feet of Ocean Boulevard

and on the Daugherty parcel, the fill ex-

tended northerly to cover the seaward 64

feet of the property. The fill was paid

for by public funds and later out of

tideland trust revenue. Part of the

Sheehan property and Daugherty property

is improved.

2/ The record on this point appears to

refer to the entire beach and not the

defendants' property alone.

A-4.

ee eee Te ee ee

;

4

|

&

5

a4

Appellants’ photographs showed no one

on the beach near the subject properties

on beach-type holidays such as Labor Day

and the Fourth of July. (Some homes had

signs which said, "Private Property -

Permission to Pass Revocable at any

Time.") However, there is no citation

in the long record as to which homes had

the signs and at what dates the signs

were up.

The trial court found the recreational

easements were dedicated before 1922 and

the trial court concluded the Mansell

case (City of Long Beach v. Mansell

(1970) 3 Cal.3d 462 [91 Cal.Rptr. 23,

476 P.2d 423]) established only fee

title and boundaries and did not preclude

the finding of a public recreational

easement. The lower court relied on

Gion v. City of Santa Cruz (1970) 2 Cal.

3d 29 [84 Cal.Rptr. 162, 465 P.2d 50),

which held that use by the public for

the prescriptive period without asking

or receiving permission from the fee

owner resulted in implied dedication of

a recreational easement to the public.

I

One of the issues in the case at bench,

as stated by appellants, is whether the

subject beachfront properties were im-

pliedly dedicated to public use under

Gion v. City of Santa Cruz, supra, 2

Cal.3d 29, or whether that implied dedi-

cation was precluded by the decision in

City of Long Beach v. Mansell, supra, 3

Cal.3d 462, which fixed the boundaries

of specific properties in the case at

bench.

Appellants' first argument is that the

judgment below undermined the Mansell

decision which had settled the boundaries

of the land in question and also had

settled matters of title in the land. As

a reading of the opinion in that case

discloses, Mansell was a proceeding to

validate an agreement, entered into be-

tween the city and various property

owners, seeking to settle long-standing

and complicated disputes over the tide-

lands in Alamitos Bay. The agreements

involved purported to settle the boun-

dary line between the tidelands that

were the property of the city as

A-6.

iS. Rn, Anbeee m e

<

:

;

transferee from the state and the upland

areas, adjoining those tidelands, which

were thereby recognized as the private

property of the upland owners. The

lands herein involved were among those

involved in those agreements and in that

decision. Nothing in the agreements or

the decision is directed to the existence

of any easements over any of the land

therein involved. Nor was there any need,

in view of the purpose of the agreements

involved, to consider any issue as to

easements. Ownership of an easement has

no necessary relationship to ownership

of a fee title. An easement is defined

as an interest in the land of another

which entitled the owner of the easement

to a limited use or enjoyment of the

servient tenement. (See Eastman v. Piper

(1924) 68 Cal.App. 554 [229 P. 1002].)

Nothing in the agreements involved in

Mansell, or in that decision, relates to

or affects the existence of a recreational

easement in the lands therein involved .2/

3/ The quitclaim deeds involved in

Mansell, and the deeds given to ef-

fect that decision expressly involve only

(continued)

A-7.

i IE ree 2 Te

od =

a

Il

Appellants argue that the case at bar

is distinguishable from Gion v. City of

Santa Cruz, supra, and Dietz v. King

(1970) 2 Cal.3d 29 [84 Cal.Rptr. 162,

465 P.2d 50], in both matters of policy

and on its facts. Appellants also point

to legal articles suggesting that the

decision of Gion and Dietz should not be

expanded beyond their facts and should

not be applied to the facts at bar.

First, appellants point out that there

are means of access to the public beach

in question other than access by going

over the subject properties, whereas in

Gion and Dietz, which were bounded by

the high tideline, there were no means

of access beyond the public tidelands.

However, it does not appear from Gion-

Dietz that the public is entitled to a

recreational easement only in situations

where that easement is the only means of

access. Gion-Dietz is not so limited.

3/ (continued)

“sovereign” rights: they are expres~

sly limited to such rights and do not

apply to claims of easement in the public.

A-8.

2 ket tel ga: aed See aes

hit Bs a Rae ah EOS Si

wth

:

:

5

:

:

;

The Supreme Court in the Gion-Dietz cases

considered matters of governmental main-

tenance of the land and public use of the

land and not merely the question of

whether there were other means of access

to the beach.

Appellants argue that there were no

structures maintained by the owners on

the disputed property in Gion or in Dietz,

whereas appellants have structures on

their land. Since, because of the aban-

donment above discussed, the particular

portions of the Sheehan and Daugherty

properties that are now the subject of

this appeal are not improved, this argu-

ment does not aid appellants' position.

Because the case at bench, in light of

the modification sought by the city and

state, does not involve any claim to

property over which a public easement

may have existed in the past but which,

without opposition by any public body,

has later been improved or fenced, we

need not, and do not, consider the effect

of such a succession of events on a

present claim to an easement.

A-9.

_——e ee

ee

rom et

Appellants argue that, in Gion, the

property owners did not object to public

use, and the appellants in the case at

bar claim they did ask people to leave.

There is no showing that appellants’

predecessors in title asked people to

leave, and, although the testimony is

conflicting, there is a great deal of

evidence to show that people were not

asked to leave, and that no significant

efforts were made to get the public to

leave. Mrs. Sheehan merely asked people

to leave when they were "rowdy" and Mrs.

Daugherty said no one was ever on her

land. “If the owner has not attempted

to halt public use in a significant way,

however, it will be held as a matter of

law that he intended to dedicate the

property or an easement to the public,

and evidence that the public used the

property for the prescriptive period is

sufficient to establish dedication."

(Gion v. City of Santa Cruz, supra, 2

Cal.3d 29, 41.)

Appellants argue that in Gion-Dietz the

use by the public was current but in the

case at bar, the usage was not current.

A-10.

There is some testimony in the case at

bar to the effect that the public usage

was current and there was some testimony

concerning current cleaning and mainte-

nance by the city.

Appellants argue that, in Gion-Dietz,

the public rightly believed that the

property was public, but that the public

could not have held such a belief in the

case at bar, because the parcels in ques-

tion were improved with houses. That is

a misreading of the opinion in those

cases. Their holding is that it is the

intention of the property owner that

controls and, as stated in the quotation

above given from Gion, the existence of

an intention to dedicate may be inferred,

as a matter of law, from long

acquiescence.

Appellants argue that the court will

not presume that owners of the property

today knowingly permit the general public

to use their land. However, the court

has not made such a presumption. It was

only after the taking of evidence that

the court found a recreational easement,

and that finding was based on public use

A-1ll.

AO IM a

ee nn er ee

7)

—-_

“ - Sy.

of the beach, and maintenance of the

beach by governmental entities.

Appellants argue that a Gion-Dietz

easement is not created unless members

of the public used the property believing

that the public had a right to use it

asserting that a finding on belief is

essential. (Gion v. City of Santa Cruz,

supra, 2 Cal.3d 29, 39.) In Gion, the

court said that what must be shown is

that "[the] persons used the property be-

lieving the public had a right to such

use." However, the Gion court also said:

"Litigants . .. seeking to show that

land has been dedicated to the public

need only produce evidence showing that

persons have used the land as they would

have used public land." There is nothing

in the language of Gion to suggest that a

specific finding on a public's "rightful

belief" is essential.

II!

Appellants argue that the court find-

ings were not supported by substantial

evidence. Appellants argue that there

was insufficient evidence to show

A-12.

|

4

:

;

|

|

substantial use by diverse members of the

general public using the property for at

least five years. We do not agree.

Captain Miller, the lifeguard captain who

was in charge of the beach from 1922 to

1966, testified that, from 1924, the

public used the whole beach for recrea-

tional purposes including the area in

front of the houses.

People who used the beach did not ask

permission from the homeowners and the

property owners rarely objected to the

use although they were aware of the

public's use. The lifeguards raked the

whole length of the beach, including the

area up to and in front of and between

the houses, and the property owners were

aware that the city was cleaning the

beach. Several residents of the area

also testified to public use of the beach

immediately in front of the houses; and

that the use was without permission from

the homeowners and without objection. A

resident of the area also testified to

public use of the beach between the

houses in order to get to the water.

Public employees testified that they

A-13.

or we

RE RIT Ure goin eens:

SE RE tw

cleaned the beach going as close as one

or two feet of any house. Photographs

of the sand in front of the property

show heavy use indicated by many foot-

prints in the sand.

Thus, there is substantial evidence to

show public maintenance of the beach and

public use of the beach since and before

1924, continuing on for many years

beyond the necessary period.

Appellants rely on County of Orange v.

Chandler-Sherman Corp. (1976) 54 Cal.App.

3d 561, 566 [126 Cal.Rptr. 765], to show

that use must be substantial rather than

casual usage for the court to find a

recreational easement. That case is not

here applicable since the evidence and

the findings show much more than casual

usage by small numbers of the public.

Appellants complain that evidence on

public use of the beach in the case at

bar was not specifically directed to use

of the beach in front of the particular

subject parcels. It is true that some of

the city's evidence applied to the beach

as a whole rather than to the specific

area in question. However, the trial

A-14.

Hee Cikdte Vie SS a sx iced

PS UR AF

8

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3

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4

2

.

4

court could properly infer from that

testimony, which referred to the beach

as a whole, that the evidence related to

and included the subject properties. In

addition to the testimony about the beach

as a whole, there was specific testimony

concerning use of the beach by the public

in front of appellants’ houses and

between the houses.

IV

Appellants argue that it is unfair to

apply Gion "retroactively." Appellants

appear to argue that it is unfair to

apply Gion to facts that existed prior

to the Gion decision. But, in Gion it-

self, the facts existed prior to any

decision finding an implied dediction in

the particular situation that existed

before that court. Therefore, the argu-

ment is without mecit.

The judgment in superior court case

No. SO-C-23517 (Sheehan) is modified as

follows:

Delete in their entirety paragraphs l

and 2 of said judgment and substitute

therefor the following language:

A-15.

sa een ft st ie Ore

ee COO ——eeele eee a &

: ti el ee

Se ee

Ne ey AUER oem

"1. That at the time of the commence-

ment of this action, title to an easement

for recreational purposes in, over, upon

and across a portion only of the subject

parcel of real property, all as more

particularly hereinafter in this para-

graph described, was and now is vested

in the City of Long Beach, a municipal

corporation, as owner in fee of said

easement, for itself and on behalf of the

public generally. Said easement is

described as follows:

"An easement in, over, upon and across

the parcel of real property hereinafter

described for public recreation purposes,

and public uses incidental thereto, in-

cluding but not limited to parking,

picnicking, sunbathing, swimming, surf-

ing, strolling, fishing, boating, playing

sports, general viewing, access to the

beach and the Pacific Ocean, public pro-

tection and policing and maintenance, to

wit:

"The westerly 25 feet of Lot 7 in Block

44 of the Resubdivision of Part of

Alamitos Bay Townsite, in the City of

Long Beach, County of Los Angeles, State

A-16.

5 hatin er IES

‘ah caudal >? “Baba 1 se aoa bor at

RAR DR LER Pd eh de > Das

of California, as per map recorded in

Book 4 pages 75 and 76 of Maps in the

office of the County Recorder of said

County. Said parcel shall be deemed to

be bounded on its southerly or seaward

side by the Chapter 138 Line , on its

westerly side by the westerly line of

said Lot 7 and its prolongation southerly

to the Chapter 138 Line and on its east-

erly side by the easterly line of said

westerly 25 feet of Lot 7 and its pro-

longation southerly to the Chapter 138

Line.

"EXCEPT that portion of the westerly 25

feet of Lot 7 lying northerly of a line

parallel to and located southerly 123.50

feet, measured at right angles, from the

southerly line of Ocean Boulevard, a

public street, which public street abuts

said lot on its northerly side.

"*As used herein the Chapter 138 Line

refers to that certain line described in

Section 7 of Chapter 138, California Stat-

utes of 1964, lst Extraordinary Session,

Survey Map of which was recorded March ll,

1968 as Document No. 1498 in Book M-2796

Page 449. Official Records, in the office

of the County Recorder of said Los Angeles

County and filed therein as No. F-2167.

A-17.

oe

"Title to the northerly 123.50 feet re-

ferred to in the exception to the descrip-

tion set forth immediately hereinabove

was not and is not now subject to or

encumbered by any easement for public

recreational purposes in, over, upon and

across all or any portion thereof.

"2. That the defendant Genevieve

Sheehan, as owner of the underlying fee

title in and to the subject parcel of

real property, has no estate, right,

title, lien or interest whatsoever in or

to said easement, or in any part thereof,

and said defendant has no right to build,

use, occupy or maintain any permanent

structures, buildings or improvements on

or over said easement area, or any part

thereof, or otherwise make any use of

said westerly 25 feet of Lot 7 or any

part thereof which would in any way un-

reasonably interfere with the above des-

cribed rights of plaintiff and the public

under said easement."

The judgment in superior court case No.

SO-C-23518 (Daugherty) is modified as

follows:

A-18.

Delete in their entirety paragraphs 1

and 2 of said judgment and substitute

therefor the following language:

"1. That at the time of the commence-

ment of this action, title to an easement

for recreational purposes in, over, upon

and across a portion only of the subject

parcel of real property, all as more

particularly hereinafter in this para-

graph described, was and now is vested in

the City of Long Beach, a municipal corp-

oration, as owner in fee of said easement,

for itself and on behalf of the public

generally. Said easement is described as

follows:

"An easement in, over, upon and across

the parcel of real property hereinafter

described for public recreation purposes,

and public uses incidental thereto, in-

cluding but not limited to parking, pic-

nicking, sunbathing, swimming, surfing,

strolling, fishing, boating, playing

sports, general viewing, access to the

beach and the Pacific Ocean, public pro-

tection and policing and maintenance,

to wit:

EAI CR Fe OER SS ULTRACET O es

+ eyes eye oe *

"Lot 3 in Block 51 of Resubdivision of

Part of Alamitos Bay Townsite, in the

City of Long Beach, County of Los Angeles,

State of California, as per map recorded

in Book 4 pages 75 and 76 of Maps, in the

office of the County Recorder of said

County. Said parcel shall be deemed to

be bounded on its southerly or seaward

side by the Chapter 138 Line’, on its

westerly side by the westerly line of

said Lot 3 and its prolongation southerly

to the Chapter 138 Line and on its east-

erly side by the easterly line of said

Lot 3 and its prolongation southerly to

the Chapter 138 Line.

"EXCEPT that portion of Lot 3 lying

northerly.of a line parallel to and loca-

ted southerly 95 feet, measured at right

angels, from the southerly line of Ocean

Boulevard, a public street, which public

street abuts said lot on its northerly side.

"*As used herein the Chpater 138 Line

refers to that certain line described in

Section 7 of Chapter 138, California Stat-

utes of 1964, lst Extraordinary Session,

Survey Map of which was recorded March ll,

1968 as Document No. 1498 in Book M-2796

Page 449. Official Records, in the office

of the County Recorder of said Los Angeles

County and filed therein as No. F-2167.

A-20.

"Title to the northerly 95 feet refer-

red to in the exception to the descrip-

tion set forth immediately hereinabove

was not and'is not now subject to or

encumbered by any easement for public

recreational purposes in, over, pon and

across all or any portion thereof.

"2. That the defendant Catherine A.

Daugherty, as the owner of the underly-

ing fee title in and to the subject par-

cel or real property, has no estate,

right, title, lien or interest whatso-

ever in or to said easement, or in any

part thereof, and said defendant has no

right to build, use, occupy or maintain

any permanent structures, buildings or

improvements on or over said easement

area, or any part thereof, or otherwise

make any use of said Lot 3 or any part

thereof which would in any way unreason-~-

ably interfere with the above described

rights of plaintiff and the public under

said easement."

As so modified, the judgments are

affirmed. The city shall recover its

costs on appeal.

Files, P.J., and Jefferson (Bernard),

J., concurred.

A-21.

OO EC AL LCC

es eS ~—— > ic

© ene ror ere OT. ee el

OOP Ree TERI AAS TRIE

Los Angeles, Cal. JAN 3- 1978

( City of Long Beach )

TITLE ( )

( Daugherty, et al ) No. 48399

ooo SSN aaaSa<——<—<

The Court:

PETITION FOR REHEARING DENIED.

Clay Robbins, Clerk

APPENDIX C

CLERK'S OFFICE, SUPREME COURT

4250 State Building

San Francisco, California 94102

FEB 9 1978

I have this day filed Order

HEARING DENIED

In re: 2 Civ. No. 48399

City of Long Beach

vs.

Daugherty

Respectfully,

G.E. BISHEL

Clerk

C-l.

~ - yc oeee

\ a heater ee Ae

’

oo]

4

APPENDIX D

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

CITY OF LONG BEACH,

Plaintiff, No. SoC 23513

vs. NOTICE OF

INTENDED

MULLINEX, et al., DECISION

Defendants.

The following memorandum may be

deemed a notice of intended decision and

will serve in its own way as a guide for

the preparation of findings of fact and

conclusions of law. (The manifest dis-

jointedness of the comments contained

hereinafter is dictated by the necess: ty

for avoiding a more prolix statement <nd,

in a measure, constitute the Court's

reactions to the various arguments as

they appear in the memoranda submitted

to the Court by respective counsel."

It is urged upon the Court that there

has been no showing of five years of use

immediately prior to the filing of suit

which would justify the granting of any

easement in this matter. If this legal

D-l.

proposition were valid, manifestly, the

plaintiff must go hence with nothing.

Each of these parcels, at least to the

extent of the perimeters of their struc~

tures, plus enclosures, have not been so

used by the public for recreational pur-

poses during any part of the five years

prior to suit. However, the argument or

contention that the crucial period is

that five-year period immeidately prior

to suit has no merit. It would be

countervailing to what was said in Gion,

("nothing can be done by the present

owners to take back that which was pre~

viously given away"), and it has been

held elsewhere that even laches by the

governmental entity cannot rob the public

for which it acts as a trustee, of the

benefit of the easement; nor is it nec-

essary to establish or recognize at

least one of the easements sought to be

established here, that is, the recrea~

tional easement, that the City must show

it did anything at all by way of protec~

ting the properties or in administering

them in furtherance of the recreational

easement. Conversely, when that is

D-2.

shown to be present, it supplies addi-

tional evidence that the easement was

existent and recognized.

Gion did not turn on the volume or

nature of services performed on the land

by the City, although consideration was

there given to that factor--the thrust

of the decision springs from the public

user for recreational purposes.

Reference has been made to the self-

help of the landowners to protect their

homes and to restore them after storms,

and this likewise does not militate

against the existence of the easement

according to the previously mentioned

quotation from Gion.

To separate and distinguish the sub-

ject properties from the entire 8-1/2

miles of beach shoreline is unnecessary.

The use of all 8-1/2 miles, these parcels

included, for recreational purposes im-

presses the easement on all 8-1/2 miles,

these parcels included. The more popular

use of the westerly shoreline, as against

the easterly area and beaches which in-

clude the parcels at bench, does not

D-3.

dissipate the recreational character and

use of these parcels now in litigation.

The testimony received indicates sporatic

use, seasonal from the very nature of the

type of easement, to-wit, picnicing,

bathing, clamming, etc.-, and no limitation

as to persons to whom the beach was avail-

able for these purposes when the occasion

and season called for it. True, there

has been evidence of more substantial use

in other portions, but no criterion has

been set up by the Gion case as to volume

of use.

The focus of our consideration must

be, according to Gion, whether these par-

cels in fact were used--more OF less--for

such purposes for the requisite period of

time. In effect, Gion is saying that the

used beaches belong to the people for

recreational purposes. (By “used,” we

refer, of course, to the five year limi-

tation necessary for creation thereof.)

The City's "recognition" of “rights

of individual owners" by placing its

installations on city-owned property or

beyond the Chapter 138 line (failing to

D-4.

place even one trash can on the property

of the defendants), does not destroy the

easement it now seeks to have judicially

impressed on those properties. The City

is a trustee for the public recreational-

easement users, as well as a governmental

body performing specific functions which

can be carried out with a minimal imposi-

tion on property owners and without

abandoning the trust of the easement or

the substantive rights of the “public”.

Gion suggests that once recreational

easement has been established, neither

the property owners nor the public entity

involved--city, county or town--can do

anything to destroy it or abandon it--nor

does diminishing use, as distinguished

from increasing use, have such effect.

Here we are concerned that a Gion re-

creational easement was established in

the public prior to 1922. By the same

token, before the Gion decision was

announced recently (1970), no one knew

it existed. Can we then point to any

conduct prior to that decision, viz.,

building permits, zoning, city installa-

tions beyond the parcel boundaries, etc.,

D-5.

as affecting an abandonment? Implicit in

the concept of abandcnment is an intelli-

gible choice of conduct, that is, conduct

with some knowledge of the underlying

rights. If this is true, how can we say

the City (assuming it was so empowered

to do) must be deemed to have "abandoned"

easements it didn't even know existed?

Even cities can't be chargeable with such

prescience.

By the same token, Gion answers a

contention made by defendants herein that

non-use of the easement for the prescrip-

tive period by reason of the erection of

homes on the servient land extinguish

the easement, for Gion states the acts

of the servient tenement owner cannot

destroy or extinguish the public recrea~

tional easement. McCormick is not ap~

propo, for there the court was dealing

with individually owned easements and not

a public recreational easement as in Gion.

In any event, Gion having emanated from

the Supreme Court has overriding authori-

ty, being a later and higher source to

which every knee must bend.

D-6.

Mansell dealt with legal titles of

the parcels herein involved, among

others, but defendants fail to distin-

guish that the present focus of the

City's litigation is limited to easements

and does not extend to the legal title

of the underlying servient tenements,

nor is any claim now made thereto--so

estoppel, under Mansell and the execution

of the agreements under the authority of

the enabling act and the force of that

opinion, is not available to resist

plaintiff's claim. Estoppel involves a

change of position or reliance on conduct,

etc., which would otherwise work an in-

justice. While there may be an underlying

“injustice to the landowners", it does

not spring from the sources noted. The

clarification and settlement of boundary

and title questions could not militate

against the present assertion of this

public easement.

In the narrow context of this case

the affirmative defenses of laches, ad-

verse possession and statutes of limita-

tion cannot be applied against the

"public-use". Estoppel is not to be

D-7.

applied, for plainly, and only lately,

long after acts of the City relied on

as a basis for estoppel occurred, did we

even learn of the judicial birth of this

public-use easement, after an unduly

long and substantially unknown and un-

eventful pregnancy. One of the elements

and possibly the most significant of

estoppel is an "awareness" by the party

to be estopped in the true facts and

this City, no more than Santa Cruz before

Gion in 1970, was not aware or apprised

of the existence of the easement which

was then suddenly born full-grown.

The contention made by defendants

that defendants had no right to grant or

deny permission to the public to use the

tidelands and that plaintiff has not

proved otherwise begs the question com-

pletely. The thrust of Gion is in re~

verse, that is, that public users thereof

somehow extracted from defendants owner-

ship and carved out a public-users ease-

ment, not only of former tidelands, but

of the uplands so used as well.

Insofar as "dedication" is based on

a voluntary act, 4S defendants contend,

D-8.

it is irrelevant to Gion's imposition of

the easement, willy-nilly the landowner.

These arguments would be better made

(and undoubtedly were made without suc-

cess) to the Gion court and not to this

tribunal, which is compelled to follow

Gion by the mandate of office--even if

it were to agree with the propriety of

the contention here made.

Insofar as the erection of houses may

constitute an expression of intent nega-

tiving dedication by defendants, there

are al least two answers there too, viZ.,

such erection took place after the period

fixed for creation of the public easement

and the property owner having once dedi-

cated cannot “withdraw” such dedication.

The posting of signs here did not

occur until after that public use had

ripened into an easement.

The City of Long Beach, as a govern-

mental entity, cannot surrender, by

quitclaim deed or otherwise, the recrea-

tional easement here existent. It's

possessory rights are not all-inclusive

of the public's rights, as we read Gion,

nor is the City's alleged motivation in

D-9.

this law suit, as suggested by defendants,

a consideration for denying the applica-

tion to have the easement judicially de-

clared. If the easement existed, it

continues--regardless of such motivation

(as to which no finding is here made for

that reason).

To label the land anything other than

beach land is to really bury one's head

in the sands thereof. The only change is

not one of character, but of size.

The evidence of erosion control in

this record indicates the public entities

individually or jointly, cooperatively

engaged in such activity over various

periods of time at public expense, all in

preservation and furtherance of the public

recreational easement. We suspect that

defendants’ argument that the court should

reject the claimed erosion control ease-

ment would be prejudicial even to defen-

dants' ownership interest saddled with or

free of the claimed recreational easement.

Be that as it may, it has not been ade-

quately shown that any of the uplands

here involved for any required period of

time, to-wit, five years, have been

D-10.

subjected to erosion control measures

sufficient to create an easement on such

uplands (by uplands herein we refer, of

course, to the parcels north of the 138

line). There hasn't been demonstrated

by a preponderance of evidence that any

of such erosion control measures were

in fact carried on in any part of the

uplands. For that reason, the claim to

an erosion control easement must be re-

jected. Parenthetically, there is cred-

ible testimony to the effect, in any

event, that it's hardly deemed necessary

to have such easement when we consider

the present size of the beach area south

of the 138 line, and the facility with

which the plaintiff can operate for ap-

propriate erosion control activity in

that area south of such line.

The evidence herein is iusufficient

to support a finding that any defendant

(or predecessor in title) granted a

license to the public to use his property

or that any defendant made a bona fide

attempt to prevent public use before the

easement was ripened into existence by

the passage of five years. The signs

D-1ll.

pictured in evidence are witnesses to

the contrary for at least a period sub-

sequent to the birth of the recreational

easement.

As Gion states, the law is that the

landowner "intended" dedication to public

use and the record does support this

finding of such use for the prescriptive

period herein. True, this evidence from

the nature of the case and the antiquity

of the events, is not overwhelming, but

is of sufficient substantiality to

impress an impartial tribunal.

Counsel for the City should prepare,

serve and file with the Clerk of this

Department findings, conclusions and

prepare judgment in accordance with the

foregoing.

DATED: 8/1 , 1974.

MAX Z. WISOT

JUDGE OF THE SUPERIOR COURT

D-12.

APPENDIX E

LEONARD PUTNAM, City Attorney

CLEMONS C. TURNER, Deputy City Attorney

Attorneys for Plaintiff

Suite 600 City Hall (

Long Beach, California 90802

Telephone: 436-9041

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

CITY OF LONG BEACH, a )

municipal corporation, ) No. SOC 23518

)

Plaintiff, ) JUDGMENT

) QUIETING

vs. ) TITLE TO

) REAL PROPERTY

CATHERINE A. DAUGHERTY, )

et al., )

)

Defendants. )

Upon the findings of fact and conclu-

sions of law on file herein, and good

cause appearing therefor, it is ORDERED,

ADJUDGED AND DECREED:

1. That at the time of the commence-

ment of this action, title to an easement

for recreational purposes in, over, upon

and across the subject parcel of real

property, all as more particularly

E-1

hereinafter in this paragraph described,

was and now is vested in the City of

Long Beach, a municipal corporation, as

owner in fee of said easement, for it-

self and on behalf of the public general-

ly. Said easement is described as

follows:

An easement in, over, upon and

across the parcel of real prop-

erty hereinafter described for

public recreation purposes, and

public uses incidental thereto,

including but not limited to

parking, picnicking, sunbathing,

swimming, surfing, strolling,

fishing, boating, playing sports,

general viewing, access to the

beach and the Pacific Ocean,

public protection and policing

and maintenance, to wit:

Lot 3 in Block 51 of Resub-

division of Part of Alamitos Bay

Townsite, in the City of Long

Beach, County of Los Angeles,

State of California, as per map

recorded in Book 4 pages 75 and

76 of Maps, in the office of the

E-2.

County Recorder of said County,

Said parcel shall be deemed to

be bounded on its southerly or

seaward side by the Chapter 138

Line , on its westerly side by

the westerly line of said Lot 3

and its prolongation southerly

to the Chapter 138 Line and on

its easterly side by the easterly

line of said Lot 3 and its pro-

longation southerly to the

Chapter 138 Line.

2. That the defendant Catherine A.

Daugherty, as the owner of the underlying

fee title in and to the subject parcel of

real property, has no estate, right,

title, lien or interest whatsoever in or

to said easement, or in any part thereof,

ad As used herein the Chapter 138 Line

refers to that certain line described

in Section 7 of Chapter 138, California

Statutes of 1964, lst Extraordinary Ses-

sion, Survey Map of which was recorded

March 11, 1968 as Document No. 1498 in

Book M-2796 Page 449, Official Records,

in the office of the County Recorder of

said Los Angeles County and filed therein

as No. F-2167.

and said defendant has no right to build,

use, occupy or maintain any permanent

structure, buildings or improvements on

said subject real property, or any part

thereof, or otherwise make any use of

said property or any part thereof which

would in any way unreasonably interfere

with the above described rights of

plaintiff and the public under said

easement.

3. That said title of the plaintiff,

City of Long Beach, in and to the public

recreation easement as more particularly

described hereinabove in paragraph 1 be

and the same is hereby forever quieted

against any and all claims of the defen-

dant Catherine A. Daugherty and said

defendant is perpetually enjoined and

restrained from setting up or making any

claim to or upon the public recreation

easement above referred to and described.

4. That at the time of the commence~

ment of this action, title to certain

tide and submerged lands as more particu-

larly hereinafter in this paragraph des-

cribed was and now is vested in the City

of Long Beach, a municipal corporation,

E-4.

oP es eS aS EE

as owner in fee simple absolute, as

trustee, under and by virtue of the |

provisions of Chapter 676, Statutes of

1911; Chapter 102, Statutes of 1925;

and Chapter 158, Statutes of 1935, all

as amended and supplemented. Said real

property is described as follows:

All that real property adjacent

to and lying southerly or sea-

ward of the subject parcel of

real property as described in

paragraph 1 hereinabove.

5. That except as a member of the

public generally, the defendant Catherine

A. Daugherty has no estate, right, title,

lien or interest whatsoever in or to said

tide and submerged lands, or in or to any

part thereof.

6. That said title of plaintiff,

City of Long Beach, as trustee, in and to

the tide and submerged lands as more par-

ticularly described hereinabove in

paragraph 4, and each and every part

thereof, be and the same is hereby for-

ever quieted against any and all claims

of the defendant Catherine A. Daugherty

and said defendant is perpetually

E-5.

enjoined and restrained from setting up

or making any claim to or upon said tide

and submerged lands, or any part thereof.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED :

7. That plaintiff shall recover

from the defendant Catherine A. Daugherty

its costs and disbursements as herein

=e

incurred in the amount of $

provided, however, that no costs shall

be recovered against the defendant State

of California.

DATED: 1/13/75

/s/ Max Z. Wisot

JUDGE OF THE SUPERIOR COURT

E-6.

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