# Petition — Daugherty v. City of Long Beach > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0995%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 823 ## Text 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 z 3 ¢ ‘4 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