Petition — Santa Fe Land Improvement Co. v. City of Berkeley

Supreme Court brief1980

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Text

Gupreme Court, U. &’

FILED

JUN 19 1980

In THE :

Supreme Court of the United RODAK, JRay CLERA

Octoser TERM, 1979 “ a ees iy

WO Masccneanes

Santa Fe Lanp Improvement Company, a California cor-

poration,

Petitioner,

vs.

City or BERKELEY, a political subdivision of the State of

CairorniA, and the State or Cauirorni, acting by and

through the State Lanps Commission,

Respondents.

Petition for a Writ of Certiorari to

The Supreme Court of the State of California

Epaar B. WasHBURN

One Embarcadero Center

Suite 2407

San Francisco, CA 94111

(415) 981-2121

Counsel for Santa Fe

Land Improvement

Company, Petitioners

Of Counsel:

WasuHsBurn, Kemp & WaGENSEIL

One Embarcadero Center

Suite 2407

San Francisco, CA 94111

(415) 981-2121

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

INDEX

Page

OER NEAT TIT LE NE EE NT OEE 1

tll deenaeehiasionnion 2

II i os aa cata aascaeeeencoatnies 3

Constitutional Provisions and Statutes Involved ........ 4

I ia css dceonevemnenesiinasnncicee 4

Reasons For Granting the Writ ....................--:-scs--ssecceees 11

1. The California Supreme Court’s Construction of

Illinois Central Railroad Co. v. Illinois, 146 U.S.

387 (1892), as Establishing Federal Common Law

Limitations Upon the Power of California to Au-

thorize Private Ownership of Lands Beneath

Navigable Waters Creates an Irreconcilable Con-

flict With This Court’s Decision in State Land

Board v. Corvallis Sand & Gravel Co., 429 U.S.

I pants ainda peeled hand saoaniaconcinpntininsscnaiat 11

2. The Decision of the California Supreme Court,

by Overruling a Settled Rule of State Law, Has

Taken Santa Fe’s Property Without Due Process

of Law or Just Compensation..................2..2.c.-cceecese0- 16

AR RSS Ye AEN TE SN AEA SARC * Prec a 20

il

Appendix

Appendix

Appendix

Appendix

Appendix

Appendix

Appendix

Appendix

Appendix

INDEX

Page

“A-1”— Act of March 30, 1868, Cal. Stats.

pS A- 3

“A-2”— Act of April 1, 1870, Cas. Stats.

1869-1870, ch. 388 ..............-2-.c-c00-0-- A- 9

“B-1”—Denial of Petititn for Rehearing

(California Supreme Court—

ae A-13

“B-2”— Modification of Opinion (Califor-

nia Supreme Court—Filed March

Nee nnn cscenece A-15

“B-3”—Opinion and Order Issuing Per-

emptory Writ of Mandate (Cali-

fornia Supreme Court—Filed

February 22, 1980) ..............000.0.... A-17

“B-4”—Denial of Petition for Rehearing

(California Court of Appeals—

Filed July 28, 1979) ...................... A-57

“B-5”—Opinion and Order Issuing Per-

emptory Writ of Mandate (Cali-

fornia Court of Appeals—Filed

re A-50

“B-6”—Memorandum of Decision (Su-

perior Court for the County of

Alameda Filed April 29, 1977........A-83

TABLE OF AUTHORITIES

Cases

Pages

Alameda Conservation Assn. v. City of Alameda, 264

ee eS Ep: Seiennaeairaniener enim wmeanscrer tan 7,17

Anderson v. Trotter, 213 Cal. 414 (1981)... 14

Appleby v. City of New York, 271 U.S. 365 (1926)......13, 18

Atwood v. Hammond, 4 Cal, 2d 31 (1935)... 7

Barney v. Keokuk, 94 U.S. (4 Otto) 324 (1876)............ 13

Borax Consolidated v. City of Los Angeles, 296 U.S.

"4. Saar aeemen San Lys Chen Cee utd pe etter a ces Nera ois 4

City of Berkeley v. Superior Court, 26 Cal. 3d 515

URUIUD sectcucsiccstsceceticelinontanieloiuandiaidads caudiicsepalomansmaaaaiena aia a passim

City of Long Beach v. Mansell, 3 Cal. 3d 462 (1970).... 7

City of Newport Beach v. Fager, 39 Cal. App. 2d 23

CRI ssnriccsaciassestinidcomnsnsheeeaicigiataipindelltoiietea tne ial Mees 7

City of St. Louis v. Rutz, 138 U.S. 226 (1891)................ 13

Connell v. McGahie, 37 Cal. App. 439 (1918)................ 7

Craig v. White, 187 Cal. 489 (1921) ................scscssssccsseese 14

Culley v. Pearl River Industrial Commission, 108 So.

DE TOO CLG caincnssotrinncennenbbg niecttadan aces peaacabidatdand 13

Dawson v. Superior Court, 158 Cal, 73 (1910)................ 2

Detroit & M.R. Co. v. Michigan R.R. Com., 240 U.S.

DO CRP UID xn icrsscniinincionsicgalbionnebaisudicabiams eee 3

Eldridge v. Cowell, 4 Cal. 80 (1854)... eseeseeeeeee 5

Field Research Corp. v. Superior Court, 71 Cal. 2d 110

Oe ML SS slices coe can

Hardin v. Jordan, 140 U.S, 371 (1891)... eee 13

Hughes v. State of Washington, 389 U.S, 290 (1967) 18

Illinois Central R. R. Co. v. Lllinois, 146 U.S. 387

CEERI). <ncssecheseocnsvnnansipcieie dig edamisasielinmentnanaemaaaabiedaiel passim

iv TABLE OF AUTHORITIES

Pages

Kaiser Aetna v. U.S., 444 U.S. 164 (1979)... eee 18

Knudson v. Kearney, 171 Cal. 250 (1915). 0.0000... passim

Koyer v. Miner, 172 Cal. 448 (1916).................csscssssesees 7

Leo Sheep Co. v, United States, 440 U.S. 668 (1979)... 18

McDaniel v. Greenville Power Co., 78 8.1. 980 (1918) 13

Marks v. Whitney, 6 Cal. 3d 251 (1971)....................02 4,7,17

Muhlker v. New York & H.R, Co., 197 U.S. 544 (1905) 18

Nebraska v. Iowa, 406 U.S. 117 (1972)..........cecccceeeeseeee 13

New York ex rel. Bryant v. Zimmerman, 278 U.S. 63

RN * aciusthonnsanisnuaatuiiateskennmineunde pete acacicmnasedtoceas 3

Oakland v, LaRue Wharf ete. Co., 179 Cal. 207 (1918) 7

Overstreet v, County of Butte, 57 Cal. 2d 504 (1962)... 2

Pacific Coast Dairy v. Dept. of Agriculture, 318 U.S.

SIRS ALR AEA) RAIS URIBE OE OSE Pe OS 3

People v. Southern Pacifie Co., 177 Cal. 555 (1918)... 7

Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212

GREETS ll ee NE te Steno OE ETE ere Oo 12

Richmond Wharf & Dock Co. v. Blake, 39 Cal. App. 1

1 RAR IISA ta eA AO Re CR ee LRM LIOR Oe ROLLE STONE 7

Shiveley v. Bowlby, 152 U.S. 1 (1894)... eee 4,13

State Land Board v. Corvallis Sand & Gravel Co., 429

Mo RERAR Nipper ts Cea pela niece ee 11, 12,18

Talley v. Ganahl, 151 Cal. 418 (1907) 2. eeeeeee 2

Tubbs v. Wilhoit, 1388 U.S. 184 (1891)... 14

United States v. California, 381 U.S. 139 (1965).......... 4

United States v. Gossett, 416 F.2d 565 (9th Cir. 1969) 14

United States v. Title Insurance & Trust Co., 265 U.S.

TREE ICA TSA Se 18

TABLE OF AUTHORITIES Vv

Pages

Vasquez v. Superior Court, 4 Cal. 3d 800 (1971)............ 2

Walker v. Felmont Oil Corp., 240 F.2d 912 (6th Cir.

sc aaiscectetecaennanaialeiniaemsennteiinvenien 13

Weber v. Harbor Commissioners, 85 U.S. (18 Wall.)

Be RI escesascSiciclesdondicdeshinsossctsassiensliaubesheaeanatipeaaioboanaeeaenroe 4,12

Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979)... 12

Wright v. Roseberry, 121 U.S. 488 (1887)..........--.-.-.--.-. 14

ConsTITUTION

if i a | Re 4 | ae p Peemacsenvenneonamenneneconaes passim

StTatTuTeES—F'EDERAL

Act of Admission of the State of California into the

Union, 9 Stat. 452 (1GG0) ..........:......cccsecscrorcsscnsosseesenene 4

Act of September 28, 1850, 9 Stat. 519 (1850), 48

Re a Oe I ici ec hctennecehsnsedsheciniintanncicninnpnatienddabebioes 14

Act of July 23, 1866, 14 Stat. 218 (1866), 43 U.S.C.

ane ic eaincunipnaldaamienaipeeeantineuetitanaaA 15

ek LAOS IRs oh ters Sena cir eager eer eters Serre 3

SRG We AUIII IED a secaccnicrcoesepipteashinetecatcilocasmaseinsentanmedeaiiasen 2

STaTUTES—STATE

Fe, BIE i Be iran ceccesncnnensensnchicmenicscescineniennasiimemaiiti 5

Re i TI conn enennnienicisaiiertesiniencicinianapnieaieeaanitn 5

RE IR, ONL IDs COIN i eicineensrvnccnsnsicesonsintincnticummennimannsnnnnth 5

ee ee On OO . cssasieeninataneeianinieieennmanananil 14

NS MI III NE SI dnc inscsssitnaensamminesiidienenimmnniebipesabanetdl 5

ee Pt ie Nc BI eccasesestiriechctersensnoninssismesinasenepnticniaied 14

ee I I, WR heen tenianienhelinpticeieaaiencinalepab 14

a UO I i nncscnanicnciciepbastetaniesanabanmacpeisnanteiinneeiain 14

a I I MI I ac reketecineiesenisdasoeniasicinntemcinscisantensiintii 14

a, SURI: Ra ee MI Ge asic ctacasemestninniessissinusustnneeinlan 5

ae I Nine Ic WEI ss sscstcassinisneniniaiveiesininiastenmmentgiens 14

Act of March 30, 1868, Cal. Stats. 1867-1868, ch. 543... 4,5

vi TABLE OF AUTHORITIES

Pages

Act of April 1, 1870, Cal. Stats. 1869-1870, ch, 388........3, 4, 5

I eS Lo se edalesuublaomaineinid 14

Md. Nat. Res. Code, Ann. § 9-101 et S€q.........-c:sessseeeeeeeee 13

MiscELLANEOUS

T. Donaldson, The Public Domain, (1884, reprinted

PRES ER ae oe eae CERRO TRIPS. EN TN. OTT 14

IN THE

Supreme Court of the United States

Octoser TERM, 1979

Santa Fr Lanp Improvement Company, a California cor-

poration,

Petitioner,

vs.

City or BrerKELEy, a political subdivision of the State of

CaLirorNIA, and the State or CauirorniA, acting by and

through the State Lanps Commission,

Respondents.

Petition for a Writ of Cextiorari to

The Supreme Court of the State of California

Petitioner, Santa Fe Land Improvement Company (here-

after referred to as Santa Fe), prays that a writ of

certiorari issue to review the judgment of the Supreme

Court of the State of California entered in this cause on

March 27, 1980.

OPINIONS BELOW

The opinion of the California Supreme Court (with dis-

senting opinion) is reported at 26 Cal, 3d 515 (1980), That

court’s modification of the opinion following petition for

rehearing is reported at 26 Cal. 3d 847a (1980). Copies of

the opinion and order issuing peremptory writ of mandate

of the California Supreme Court, that court’s modification

mem,

2

of opinion and denial of Santa Fe’s motion for rehearing,

the opinion and denial of Santa Fe’s motion for rehearing

by the California Court of Appeal and the decision of the

trial court are included in Appendix B.

JURISDICTION

The opinion and order’ issuing a peremptory writ of

mandate by the California Supreme Court was entered on

February 22, 1980. A timely petition for rehearing was

denied and judgment was entered on March 27, 1980. This

petition for certiorari was filed within 90 days of that

date. This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1257(3).

1. As more fully detailed in the statement of the case, infra,

the judgment at issue arose from respondents’ filing of a petition

for writ of mandamus seeking reversal of the trial court’s order

granting partial summary judgment in petitioner Santa Fe’s favor.

Under California law, the granting of a partial summary judgment

is a nonappealable interlocutory order. However, in recent years,

the California courts have expressly condoned the practice of utiliz-

ing an extraordinary writ procedure to seek immediate appellate

review of such orders. Field Research Corp. v. Superior Court, 71

Cal.2d 110 (1969) ; Vasquez v. Superior Court, 4 Cal.3d 800 (1971).

In providing for this expedited appellate review, the California

courts have not distinguished the use of the petition for writ of

mandate in this context from the traditional proceeding by way

of extraordinary writ. Accordingly, the issuance of a writ of man-

damus, along with a written opinion affirming or overruling a trial

court’s interlocutory order, is res judicata as to any further pro-

ceedings in which the issues decided thereby are raised. Dawson v.

Superior Court, 158 Cal. 72 (1910) ; Overstreet v. County of Butte,

57 Cal.2d 504 (1962). Further, the appellate court’s decision will

be deemed the “law of the case” and n.ust be adhered to throughout

the subsequent progress of the litigation at trial as well as the

appellate level. Tally v. Ganahl, 151 Cal. 418 (1907).

Consequently, the judgment below by California’s highest court

issuing a peremptory writ of mandate directing the trial court to

vacate its order granting partial summary judgment finally re-

solves the issue of the applicability of the public trust to all lands

conveyed under authority of the 1870 Act. The fact that the judg-

ment below does not finally dispose of all issues raised by the under-

3

QUESTIONS PRESENTED

1. Does this Court’s decision in Illinois Central Railroad

Co. v. Illinois, 146 U.S. 387 (1892), impose federal common

law limitations upon the power of the states to establish

their own rules of property applicable to the disposal of

lands beneath navigable of waters?

2. Has the California Supreme Court effected a taking

of property without just compensation in violation of the

due process clause of the Fourteenth Amendment to the

United States Constitution by overruling its own decision

in Knudson v. Kearney, 171 Cal. 250 (1915), and reimposing

the public trust for commerce, navigation and fishing upon

lands sold by the state under authority of the Cal. Stats.

1869-70, ch. 388, where Knudson v. Kearney had established

a rule of property, relied upon by private owners and the

state, that such lands had been freed from the public trust

and were held in absolute private ownership ?”

lying litigation does not detract from the finality of the judgment on

the petition for writ of mandate for purposes of review by this

Court.

As this Court has recognized on more than one occasion, a de-

cision by the highest state court on an extraordinary writ is a

final judgment within the meaning of 28 U.S.C. § 1257:

“. .. [I]t is settled that a proceeding in mandamus is an inde-

pendent adversary suit, and a judgment awarding or refusing

the writ is a final judgment within the meaning of the statute.

[Citations].” Detroit @ M. R. Co. v. Michigan R. Com., 240

U.S. 564, 571 (1916).

Moreover, this Court has consistently applied the standard of final-

ity to judgments on writ proceedings despite the fact that such

judgments issue prior to the termination of the primary litigation.

New York ex rel. Bryant v. Zimmerman, 278 U.S. 63 (1928) ;

Pacific Coast Dairy v. Dept. of Agriculture, 318 U.S. 285 (1942).

2. The California legislature authorized the grants in question

by Cal. Stats. 1869-70, ch. 388 (hereafter referred to as the 1870

Act). The California Supreme Court in 1915 held that grants made

pursuant to the 1870 Act passed fee title free of the public trust

to the private party purchasers. Knudson v. Kearney, supra.

4

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

Section One of the Fourteenth Amendment to the United

States Constitution provides in part:

“No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.”

The pertinent text of Cal. Stat. 1867-1868, ch. 543 and

Cal. Stats, 1869-1870, ch. 388 is set forth in Appendix A.

STATEMENT OF THE CASE

Upon California’s admission into the Union on September

9, 1850, the state acquired absolute title to the beds of all

navigable waters within its boundaries by reason of its

sovereignty.’ These lands included the tide and submerged

lands beneath the San Francisco Bay.* The ever increasing

amount of shipping due to the discovery of gold created a

pressing need for developing harbors in the San Francisco

Bay. However, the state did not have the resources to

develop the needed harbors itself. The legislature therefore

adopted a series of waterfront improvement acts applicable

3. “Act for the Admission of the State of California into the

Union,” 9 Stat. 452 (1850) ; Shively v. Bowlby, 152 U.S. 1 (1894).

4. “Tidelands” are those lands lying between the ordinary high

water mark and the ordinary low water mark. Borax Consolidated

v. City of Los Angeles, 296 U.S. 10 (1935) ; Marks v. Whitney, 6

Cal.3d 251 (1971). “Submerged lands” are those lands lying below

the ordinary low water mark. U.S. v. California, 381 U.S. 139

(1965) ; Marks v. Whitney, supra. California received the tide and

submerged lands beneath San Francisco Bay by reason of its

sovereignty. Weber v. Board of Harbor Commissioners, 85 U.S. (18

Wall.) 57 (1873).

5

to various portions of San Francisco Bay® which were

designed to encourage harbor development by selling cer-

tain lands into private ownership, These acts provided for

the establishment of a waterfront line at a sufficient depth

to permit the approach of vessels once the line became fixed

by bulkheading or filling. Waters beyond the bulkhead or

waterfront line were to remain navigable waters held by

the state in trust for navigational purposes; those behind

the line were to be sold into private ownership and rendered

useless for the purposes of navigation through future bulk-

heading or filling. By 1854, the California Supreme Court

had held that grants made pursuant to these waterfront

improvement acts vested absolute fee title in the private

party grantees.°

_ In 1868, the California legislature adopted the Act of

March 30, 1868 (Cal. Stats. 1867-1868, ch. 543) creating a

state agency known as the Board of Tideland Commission-

ers which was to establish a waterfront line for the City of

San Francisco waterward of the lines that had been created

under the earlier acts. The Board of Tideland Commissidn-

ers was given complete control over the lands within its

jurisdiction and was required to reserve sufficient property

for facilities necessary for navigation and commerce after

which it was to sell all of the state’s interest in the property

landward of the waterfront line.

Two years later, the legislature adopted the 1870 Act

(Act of April 1, 1870, Cal. Stats. 1869-1870, ch. 388) amend-

ing and supplementing the 1868 Act and expanding the

authority of the Board of Tideland Commissioners to

5. Cal. Stats. 1851, ch. 37 (Martinez) ; Cal. Stats. 1851, ch. 44

(San Francisco); Cal. Stats. 1853, ch. 187 (San Francisco); Cal.

Stats. 1855, ch. 187 (Benicia); Cal. Stats. 1867-1868, ch. 216

(Benicia).

6. Eldridge v. Cowell, 4 Cal. 80 (1854).

6

include all lands within five miles of San Francisco. The

1870 Act provided for the establishment of additional

waterfront lines not only in San Francisco but also in many

of the adjoining areas bordering the bay. The Board of

Tideland Commissioners was given discretion to locate

the waterfront line in each area in the manner designed to

best serve navigation and commerce, The 1870 Act required

the Commissioners to make necesary reservations for the

purposes of commerce and navigation prior to selling prop-

erty landward of the waterfront line.

By the mid-1870’s, all of the land authorized to be sold

by the Board of Tideland Commissioners had been sold to

private individuals. The legislative acts authorizing the

sales and the grants themselves did not contain any restrie-

tions or deadlines on the bulkheading or filling of the lands

sold, although it was contemplated that the lands sold would

be bulkhead and filled in time. Much of the downtown water-

front area of San Francisco presently exists on lands

originally sold by the Board of Tideland Commissioners.

Close to three billion dollars worth of improvements have

been constructed o1 lands granted by the Board of Tideland

Commissioners in the cities of San Francisco, Sausalito,

Tiburon, Corte Madera, San Rafael, Richmond, Albany,

Berkeley, Emeryville, and Alameda.

Petitioner Santa Fe acquired in excess of 600 acres of

land in the City of Berkeley during the period between

1930 and 1951 from successors to grantees of the Board

of Tideland Commissioners. These lands are the subject of

this litigation. Part of Santa Fe’s property has been filled

and developed over the vears. At the present time, a sub-

stantial portion of the property has not been filled and still

remains subject to tidal action.

7

In 1915, the California Supreme Court reviewed the effect

of grants made under the 1868 and 1870 Acts by the Board

of Tideland Commissioners in Knudson v, Kearney, supra.

In Knudson v. Kearney, the court held that the 1868 and

1870 Acts freed the lands sold from the public trust for

commerce, navigation and fishing and that purchasers of

such lands owned absolute fee title to the property.’ The

decision of the California Supreme Court in Knudson v.

Kearney became a settled rule of property, accepted and

relied upon by private parties as well as the judicial,

administrative and legislative authorities of the state for

65 years.®

7. The California Supreme Court stated the following rationale

for its decision:

“Tt is obvious from the provisions of the aforesaid acts of 1868

and 1870 that they were enacted in aid of navigation and for

the purpose of providing for the improvement of San Fran-

cisco Bay, so as to make it more suitable for navigation, These

acts provided that the boundaries of navigable waters should

be fixed and the waterfront line delineated and, in effect, that

the land not required for docks, piers, slips, or other purposes

of commerce should be subject to sale outright to private

persons for private use.” Knudson v. Kearney, supra, at 253.

8. Knudson v. Kearney was followed in Alameda Conservation

Ass’n v. City of Alameda, 264 Cal.App.2d 284 (1968), cert. denied

394 U.S. 906 (1969). In Alameda Conservation Ass’n, the state of

California occupied the same position as petitioner Santa Fe here

and successfully urged that Knudson v. Kearney held that lands

sold pursuant to the 1868 and 1870 Acts were an absolute convey-

ance into private ownership.

In Marks v. Whitney, supra note 4, the California Supreme

Court concluded that the 1868 and 1870 Acts:

“ .. were enacted in the aid of navigation and for the purpowe

of providing for the improvement of designated parts of San

Francisco Bay and they operated to free such lands from the

public trust.’’ Marks v. Whitney, supra, at 258,

See also City of Long Beach v. Mansell, 3 Cal.38d 462, 485 (1970) ;

Atwood v. Hammond, 4 Cal.2d 31, 41-42 (1935); Oakland v. LaRue

Wharf etc. Co., 179 Cal. 207, 213-214 (1918); People v. Suuthern

Pacific Co., 177 Cal. 555, 559 (1918); City of Newport Beach v.

Fager, 39 Cal.App.2d 23, 29 (1940); Richmond Wharf & Dock Co.

v. Blake, 39 Cal.App. 1, 4 (1918); Connell v. McGahie, 37 Cal. App.

439, 443 (1918); Koyer v. Miner, 172 Cal. 448, 451 (1916).

8

This litigation was commenced in 1972 by Santa Fe and

its adjoining landowner George W. Murphy against the

City of Berkeley and the State of California to-quiet title

to 79 acres of land located in the City of Berkeley and to

obtain declaratory relief and damages for inverse con-

demnation.® Santa Fe’s portion of the 79 acres was part of

the 600 acres its predecessors in interest had acquired from

the Board of Tideland Commissioners pursuant to the 1870

Act. Santa Fe, relying upon Knudson v. Kearney, contended

that it owned the property free of the public trust for com-

merce, navigation and fishing. The city by way of defense

claimed that the 1870 Act was ineffective to authorize sale

of tidelands free of the public trust for commerce, naviga-

tion and fishing by reason of this Court’s decision in J1linois

Central Railroad Co, v. Illinois, 146 U.S. 387 (1892). The

state asserted the same defense and also cross-complained,

contending that the remainder of Santa Fe’s property in

Berkeley, which had also been conveyed by the Board of

Tideland Commissioners under 1870 Act, was subject to

the public trust for commerce, navigation and fishing.

Santa Fe moved for partial summary judgment as to its

portion of the original 79 acres. The trial court granted

Santa Fe’s motion under the authority of Knudson v, Kear-

ney.” The City of Berkeley and the State of California

thereupon sought a writ of mandate from the California

9. This action and the companion action of George W. Murphy

v. City of Berkeley, Alameda County Superior Court Action No.

422942, were filed separately, The two actions were later con-

solidated, Although Murphy was a party to the proceedings before

the California Supreme Court below, he seeks no relief here,

Since Murphy is not a party to this petition, reference to the

proceedings below will only relate to Santa Fe. |

10. A copy of the trial court’s decision is included in Appendix

B.

9

Supreme Court to compel the trial court to set aside its

order.”

On February 22, 1980, the California Supreme Court,

with three judges dissenting, issued its writ of mandate

compelling the trial court to set aside its order granting

Santa Fe’s motion for summary judgment and ordered the

trial court to proceed in accordance with its opinion. The

court overruled Knudson v. Kearney and held tnat under the

Illinois Central decision the Board of Tideland Commis-

sioners did not have authority to sell lands free of the

public trust and that all lands sold under the 1870 Act, in-

cluding all of Santa Fe’s lands within the City of Berkeley,

11. The decision of the trial court was rendered April 28, 1977.

On September 28, 1977, the City of Berkeley and the State of

California sought a writ of mandate from the California Supreme

Court to compel the trial court to set aside its decision. The supreme

court transferred the writ to the court of appeal which denied the

writ without opinion. The city and state thereafter petitioned the

California Supreme Court for hearing. On December 22, 1977, the

supreme court granted the petition for hearing and transferred

the matter to the court of appeal with directions to issue an alter-

native writ of mandate to be heard before that court. The court of

appeal rendered an opinion on June 30, 1978, which coneluded that

Knudson v. Kearney, supra, was dictum and therefore refused to

follow it. Relying upon this court’s decision in Jllinois Central R.R.

Co. v. Illinois, supra, the court of appeal concluded that the State

of California did not have authority to convey the lands in ques-

tion free of the public trust for commerce, navigation and fishing.

On July 17, 1978, Santa Fe petitioned the court of appeal for re-

hearing, asserting that the decision reimposing the public trust

took Santa Fe’s property without due process in violation of the

Fourteenth Amendment to the United States Constitution and that

the court’s construction of Illinois Central was erroneous, The peti-

tion for rehearing was denied. On August 8,1978, Santa Fe peti-

tioned the California Supreme Court for a hearing, which was

granted on September 20, 1978. Santa Fe raised the same issues

asserted on rehearing, along with others, in the supreme court. The

decision from which petitioner Santa Fe seeks a writ of certiorari

here is the decision of the California Supreme Court following the

granting of Santa Fe’s petition for hearing. Under California law,

the decision of the trial court was the subject of review and the

State of California and City of Berkeley were the petitioners not

withstanding the prior appellate proceedings.

10

were to be impressed with the public trust for commerce,

navigation and fishing. The court concluded that its decision

would be retroactive as to those lands which had not yet

been filled but not as to those lands presently filled. Al-

though the court conceded that its decision would impair

the value of Santa Fe’s property, it held that overruling

Knudson was not a taking of property without just com-

pensation because the economic loss to Santa Fe “is clearly

outweighed by the interest of the public.” City of Berkeley

v. Superior Court, 26 Cal. 3d 515, 535 (1980).

On March 7, 1980, Santa Ie filed a petition for rehearing

contending that the California Supreme Court’s construc-

tion of Illinois Central Railroad Co. v, Illinois, swpra, was

erroneous and that reimposition of the public trust upon

unfille¢ lands sold under the 1870 Act took Santa Fe’s prop-

erty without compensation in violation of the due process

clause of the Fourteenth Amendment to the United States

Constitution. On March 27, 1980, the court made a minor

modification of its earlier opinion and denied Santa Fe’s

petition for rehearing.

The federal questions raised in this petition were first

asserted by Santa Fe in its petition for rehearing filed July

17, 1978, before the court of appeal. The questions were

again raised in Santa Fe’s petition for hearing before the

California Supreme Court filed August 8, 1978, The federal

questions presented were reasserted before the California

Supreme Court by Santa Fe’s petition for rehearing filed

March 7, 1980. The opinion of the California Supreme

Court concluded that [/linois Central establishes limitations

upon the ability of California to convey lands beneath

navigable waters as a matter of federal law. The contention

that Santa Fe’s property had been taken in violation of the

Fourteenth Amendment to the United States Constitution

was rejected almost without discussion because the Calli-

11

fornia Supreme Court was determined to reimpose the

public trust for commerce, navigation and fishing upon

Santa Fe’s lands.

REASONS FOR GRANTING THE WRIT

1. The California Supreme Court's Construction of Illinois Cen-

tral Railroad Co. v. Illinois, 146 U.S. 387 (1892), As Estab-

lishing Federal Common Law Limitations Upon the Power of

California To Authorize Private Ownership of Lands Beneath

Navigable Waters Creates An Irreconcilable Conflict With

This Court's Decision In State Land Board v. Corvallis Sand

& Gravel Co., 429 U.S. 363 (1977).

In its decision below, the California Supreme Court

concluded that this Court’s decision in Illinois Central Rail-

road Co, v. Illinois, supra, represents a federal common law

limitation upon the power of the state to adopt laws author-

izing conveyance of a portion of the lands beneath the

San Francisco Bay into absolute private ownership.’ The

California Supreme Court stated:

“Knudson was incorrectly decided even if the court

had been justified in concluding that the purpose of

the 1870 Act was to promote navigation. [/linois Cen-

tral holds that a state may not grant to private persons

tidelands as vast in area as the board was authorized

to sell by the 1870 Act.” City of Berkeley v. Swperior

Court, 26 Cal.3d 515, 531 (1980).

12. This Court held in Jllinois Central that the Illinois leyisla-

ture had the power to revoke a 1869 grant of the entire Chicago

waterfront to the Illinois Central Railroad four years after the

grant had been made. In so ruling, this Court held that under

Illinois law the title of the State of Illinois to the bed of Lake

Michigan was a title held in trust for the publie for the purposes

of commerce and navigation and that the ability of the State of

Illinois to convey the bed of Lake Michigan into private ownership

was limited to conveyances which either promoted the interests of

the publie or could be made without substantial impairment of the

publie interest in the lands and waters remaining. The Court then

concluded that sinee the grant did not satisfy the foregoing criteria,

the Illinois legislature possessed the power to revoke it.

12

Therefore, the California Supreme Court concluded that

the 1870 Act must be construed in a fashion that would not

free the lands sold from the public trust for commerce,

navigation and fishing and that the court’s 1915 decision in

Knudson v, Kearny must be reversed.

Contrary to the conclusion of the California Supreme

Court, there is no federal common law of real property

which is applicable here. This Court has recently held that

absent an overriding federal interest, the laws of the several

states determine ownership of lands beneath navigable

water and there is no federal common law restriction upon

the exericse of that right. Wilson v. Omaha Indian Tribe,

442 U.S. 653 (1979).

Santa Fe submits that the decision of the California

Supreme Court and its construction of Jllinois Central is

in direct conflict with this Court’s decision in State Land

Board v, Corvallis Sand & Gravel Co., supra, Corvallis

reaffirmed the rule of Pollard’s Lessee v. Hagan, 44 U.S. (3

How.) 212 (1845), that under the equal footing doctrine the

title of the states to the beds of navigable waters is absolute

and is governed by state law. The Court in Corvallis quoted

with approval from Weber v. Harbor Commissioners, swpra,

at 65-66:

“(pon the admission of California into the Union upon

equal footing with the original states, absolute prop-

erty in, and dominion and sovereignty over, all soils

under the tidewaters within her limits passed to the

State, with the consequent right to dispose of the title

to any part of said soils in such manner as she might

deem proper, subject only to the paramount right [of

the United States] of navigation over the waters... .”

State Land Board v. Corvallis Sand & Gravel Co.,

supra, at 374 (emphasis added).

13

Thus, this Court has previously concluded that Cali-

fornia had the unrestricted power to decide for itself

the law applicable to the conveyance of lands beneath

navigable waters of the San Francisco Bay and possessed

the power to sell some of those lands into absolute private

ownership, subject only to the federal government’s para-

mount right of navigation, if it so desired. See Barney v.

Keokuk, 94 U.S. (4 Otto) 324 (1876); Hardin v. Jordan,

140 U.S. 371 (1891) ; City of St. Lowis v. Rutz, 138 U.S. 226

(1891) ; Shively v. Bowlby, supra.”

California is not unique in providing for private owner-

ship of portions of the beds of certain navigable water-

bodies. Many states have comparable laws which were

enacted in the belief that each state was free to decide

for itself the law applicable to ownership of land beneath

navigable waters.’* Thus, the question presented has great

practical importance not only to land owners in California,

13. The ability of a state to convey beds of navigable waters

into private ownership has consistently been held by this Court to

be a matter of state law. Thus, in Shively v. Bowlby, 152 U.S. 1

(1894), the Court, in an extensive opinion, concluded that grants

of land beneath the navigable waters of the Columbia River must be

interpreted in accordance with Oregon law and that the Oregon

legislature was free to convey such lands into private ownership if

it so desired. Similarly, in Appleby v. City of New York, 271 U.S.

365 (1926), the Court not only held that the city was empowered

to convey water lots beneath the Hudson River into absolute fee

ownership, but that having done so, the state legislature and the

courts were prohibited by the United States Constitution from

later concluding that the grants were not effective to pass fee title.

14. For example, it is not uncommon for state law to provide

that private ownership extends to the middle of a navigable lake

or stream: Illinois [City of St. Louis v. Rutz, supra; Hardin v.

Jordan, supra]; Kentucky [Walker v. Felmont Oil Corp., 240 F.2d

912 (6th Cir., 1957) ]; Maryland [Md. Nat. Res. Code Ann. § 9-101

et seq.|; Mississippi [Culley v. Pearl River Industrial Commission,

108 So. 2d 390 (1959) ]; Nebraska [ Nebraska v. Iowa, 406 U.S. 117

(1972)]; South Carolina [McDantel v. Greenville Power Co., 78

8.E. 980 (1913) ].

14

but also to the owners of the beds of navigable waters in a

number of states, If the reasoning of the California

Supreme Court is correct and Jilinois Central represents a

federal limitation upon the ability of the states to develop

rules of property governing private ownership of the beds

of navigable waters, numerous state statutes and vast

private land holdings are subject to challenge.

The effect of the decision below upon grants of lands

beneath navigable waters in California is representative

of the significant impact federal restrictions upon state

law will have. Commencing in 1850, California sold tidelands

under acts other than the 1870 Act for the development of

waterfronts. The State also disposed of fee title free of

the public trust to navigable sloughs included within the

two million acres of swamp and overflowed lands which it

had sold into private ownership following receipt of those

lands from the federal government pursuant to the Arkansas

Swamp Act. Act of September 28, 1850, 9 Stat. 519 (1850),

43 U.S.C. § 982 et seq. Similarly, the California legislature

provided by statute in 1872 that upland owners of property

adjacent to navigable non-tidal lakes and streams own to

the low water mark.’® All of these statutes have now been

called into question by reason of the decision below,

15. See T. Donaldson, The Public Domain (1884, reprinted

1970) ; Cal. Stats. 1855, ch. 151; Cal. Stats. 1858, ch. 235; Cal.

Stats. 1861, ch. 356; Cal. Stats. 1861, ch. 352; Cal. Stats. 1863,

ch. 397; Cal. Stats. 1867-68, ch. 415. See also Act of July 23, 1866,

14 Stat. 218 (1866), 430 U.S.C. § 987; Wright v. Roseberry, 121

U.S. 488 (1887) ; Tubbs v. Wilhoit, 1388 U.S. 134 (1891).

16. California Civil Code § 830. The California Supreme Court

has previously held that Civil Code Section 830 establishes a rule

of property providing for a low water boundary between private

party upland owners and the state’s sovereign claims to the beds of

navigable nontidal waters. Anderson v. Trotter, 213 Cal. 414

(1931) ; Craig v. White, 187 Cal. 489 (1921). See also United States

15

The decision of the California Supreme Court goes to the

heart of a state’s power to deal with the beds of the navi-

gable waterways which it received by reason of its sov-

ereignty upon its admission into the union. This Court has

previously coneluded that J/linois Central was merely an

expression of Illinois law.’7 The question of whether //l-

nois Central also establishes federal principles which limit

the power of the states to deal with lands beneath navigable

water has not been addressed by this Court. If Illinois Cen-

tral represents such a limitation, an irreconcilable conflict

between the //linois Central decision and the principles of

the Corvallis line of authorities exists.

This Court has not reexamined the principles it enunci-

ated in /llinois Central since it decided that case in 1892.

Illinois Central has obviously not been considered by the

states as a limitation upon their power to authorize private

ownership of the beds of navigable waters. As noted above,

many states provide for some form of private ownership of

portions of the navigable waters within their boundaries.

Most of these laws were adopted during the latter half of

the nineteenth century when private development and occu-

pation of property was encouraged by the federal govern-

ment and the various states as being in the public interest.

The extent to which waterfront development has taken

place since that time is testimony to the success of the

endeavor, as well as the substantial reliance upon those

rules of property by private parties. The recent change in

v. Gossett, 416 F.2d 565 (9th Cir. 1969). Nevertheless, the state has

challenged those decisions, citing Illinois Central and the decision

of the court below. The issue is presently pending before the

California Supreme Court in State of California v. Superior Court

(Lyon), 1 Civ. 45988, and State of California v. Superior Court

(Fogerty), 1 Civ. 24035.

17. This Court noted in Appleby v. City of New York, supra

note 13, that its conclusion in Illinois Central was “necessarily a

statement of Illinois law.” 271 U.S. at 395.

16

public policy to favor preservation of waterfront lands

seeks to reverse the course of the last century. However,

some states, such as California, have sought to fulfill their

newly perceived public purpose by reacquiring property

which they had previously sold into private ownership with-

out payment of compensation by contending that they lacked

authority to adopt such laws in the first instance. As exem-

plified by the action of the California Supreme Court below,

this Court’s decision in J/Ilinois Central has been construed

as authority for invalidating state property laws authoriz-

ing private ownership of lands beneath navigable waters.

Santa Fe submits that this Court’s decision in Illinois Cen-

tral has been misconstrued and misapplied and that recon-

sideration and clarification of Illinois Central is called for

in light of the significant changes that have taken place

since 1892. Certiorari should be granted to define the reach

of Illinois Central and to harmonize that decision with

Corvallis and present day conditions.

2. The Decision of the California Supreme Court, By Over-

ruling A Settled Rule of State Law, Has Taken Santa Fe's

Property Without Due Process of Law Or Just Compensation.

The California Supreme Court has overturned its own

decision in Knudson v. Kearney, supra, which has been

followed and relied upon by private owners and the state

itself for more than 65 years. Knudson held that grants

made pursuant to the 1870 Act conveyed fee title free of

the public trust for commerce, navigation and fishing. The

court below, in overruling Anudson, has reimposed the

trust upon all unfilled lands sold by the Board of Tideland

Commissioners. Thus, a rule of property relied upon by

landowners for many years has been swept away and prop-

erty long owned in fee has been impressed with the public

trust for commerce, navigation and fishing. Santa Fe sub-

mits that this action of the California Supreme Court is in

17

d:rect conflict with applicable decisions of this Court and

represents a radical departure from accepted due process

constraints of the Fourteenth Amendment to the United

States Constitution.

Reimposition of the public trust has for all practical

purposes destroyed the utility of Santa Fe’s property as

well as that of other private owners similarly situated."®

The publie trust under California law is a servitude so far

reaching that it may be and is utilized to prohibit any pri-

vate use of lands which are subject to the trust. As the

California Supreme Court stated in Marks v. Whitney,

swpra note 4, at 259-260:

“There is a growing public recognition that one of the

most important publie uses of the tidelands—a use

encompassed within the tidelands trust—is the preser.

vation of those lands ... as open space... .”

Thus, Santa Fe’s lands, which have now been subjected to

the public trust for commerce, navigation and fishing, may

be relegated to strictly open space use by the state without

the payment of any compensation, Absent the trust, such

lands are extremely valuable. Over the years, similar lands

granted under the 1870 Act have been improved and are

now worth billions of dollars.’®

Lands which have now been impressed with the public

trust by the decision below are no longer susceptible to

18. Of the 22,299 acres sold by the Board of Tidelands Com-

missioners into private ownership, 14,447 acres remain unfilled

and would therefore be subject to the publie trust under the

decision below.

19. As noted supra, the downtown waterfronts of San Fran-

cisco, Sausalito, Tiburon, Larkspur, Corte Madera, San Rafael,

Richmond, Albany, Berkeley, Emeryville and Alameda exist on

lands sold under the 1870 Act. The lands which were involved in

Alameda Conservation Ass’n v. Alameda, supra, note 8, now consti-

tute the Oakland Airport and the surrounding commercially de-

veloped areas.

18

private development. For all practical purposes, their en-

tire value has been taken. Santa Fe purchased the lands at

issue because they were sold pursuant to the 1870 Act free

of the public trust and were therefore available for private

use and occupation. The fundamental property right which

Santa Fe acquired by purchasing such lands was the right

to utilize them and devote them to private purposes. This

Court has recently noted that the “right to exclude” the

public from privately owned navigable waters represents

a property right that cannot be taken without payment of

just compensation, Kaiser Aetna v. United States, 444 U.S.

164 (1979), The right of Santa Fe to own its property free

of the state public trust for commerce, navigation and fish-

ing is an equivalent, if not greater, property interest.

The decision below goes beyond the recognized power of

state courts to reverse or modify prior decisions. This Court

has repeatedly cautioned that “[s]ubstantive rules govern-

ing the law of real property are peculiarly subject to the

law of stare decisis.” State Land Board v. Corvallis Sand &

Gravel Co., supra, at 381, Accord, United States v. Title In-

surance & Trust Co., 265 U.S. 472, 486-87 (1924) ; Leo Sheep

Co, v. United States, 440 U.S. 668, 687-88 (1979).

This concept is intimately related to the constitutional

guarantees that property will not be taken without payment

of just compensation. Thus, where a state either by judicial

decision or statute provides that certain grants convey full

fee title, the rights of the grantees pursuant to such grants

are protected by the Fourteenth Amendment against sub-

sequent changes in law which would deprive them of the

rights already acquired under the grant. See Muhlker v. New

York & H. R. Co., 197 U.S. 544 (1905) ; Hughes v. Washing-

ton, 389 U.S. 290 (1967) (Stewart, J., concurring) ; Appleby

v. City of New York, 271 U.S. 365 (1926). In Leo Sheep Co,

19

v, United States, supra, this Court noted the careful scrutiny

that will be exercised where the government purports to

abolish a long standing rule of property and revoke vested

property rights for reasons claiming to be representative

of the public interest.

The question is not whether the State of California could

have originally adopted a rule of state property law requir-

ing that all grants of lands beneath navigable waters be

impressed with the public trust. Nor is the question whether

the California Supreme Court in Knudson v. Kearney

properly interpreted the intent of the California legislature

in enacting the 1870 Act, It is whether, after the state

supreme court in Knudson specifically determined that

grants made pursuant to the 1870 Act were made free of

the public trust and after sixty-five years of reliance on

that decision, can the same court now reverse A nudson and

retroactively apply its decision in a manner that deprives

the recipients of those grants of the valuable property

rights they acquired. Certiorari should be granted to de-

termine whether such conduct by a state court, based on

its own perception of the public interest, infringes upon

federally protected rights and violates the due process

clause of the Fourteenth Amendment to the United States

Constitution.

20

CONCLUSION

The petition for a writ of certiorari should Ye granted.

Respectfully submitted,

Epoar B. WasHBuRN

One Embarcadero Center

Suite 2407

San Francisco, CA 94111

Counsel for Petitioner

Santa Fe Land Improve-

ment Company

Of Counsel:

Wasusurn, Kemp &

W£AGENSEIL

One Embarcadero Center

Suite 2407

San Francisco, CA 94111

June 18, 1980

Appendix to

Petition for Writ of Certiorari to the Supreme

Court of the State of California

APPENDIX “A-1”

Act of March 30, 1868, Cal. Stats. 1867-1868, ch. 543

Appendix 3

CHAPTER DXLIII.

An Act to survey and dispose of certain salt marsh and tide

lands belonging to the State of California.

[Approved March 30, 1868. |

The People of the State of California, represented in Senate

and Assembly, do enact as follows:

Section 1. The Governor of the State shall appoint

three persons, who shall constitute a Board of Tide Land

Commissioners, and shall hold office for two years from

the date of their appointment, and shall have the charge

and disposition of all the salt marsh and tide lands belong-

ing to the State of California, situated in the City and

County of San Francisco, as hereinafter provided by this

Act, and who shall be known and designated in this Act as

“the Commissioners.”

Sec. 4. The Commissioners shall take possession of all

the salt marsh and tide lands, and lands lying under water,

to the point that may be established as the water front,

situate along the Bay of San Francisco, and situate in the

City and County of San Francisco, belonging to the State

of California, and have the same surveyed to a point not

beyond twenty-four feet water at the lowest stage of the

tide, and cause to be prepared two maps of the same, show-

ing the quantity and extent of the property situated as

aforesaid, and exhibiting all the municipal subdivisions,

streets, alleys, blocks, squares and lots, which lots shall not

exceed in area six thousand two hundred and sixty-one

and one sixth square feet each. One of said maps they shall

retain in their office at San Francisco, and the other they

shall file in the office of the State Surveyor. After such

Commissioners

to be appointed.

Duties of

Commissioners.

Establishment

of a water

line front.

Survey.

Rights reserved

to State.

+ Appendix

preliminary survey the Commissioners, in conjunction with

the Governor of the State, the Mayor of San Francisco and

the President of the Chamber of Commerce of San Fran-

cisco, and who shall be known and designated in this Act

as the “State Board,” shall meet and by a two thirds vote

establish the water line front of San Francisco; but they

shall not have power to alter in any manner whatever

the water line front of said city north of the terminus of

Second street, as established by the Act passed March

twenty-sixth, eighteen hundred and fifty-one. After the

establishment of the water line front as above provided,

the Commissioners shall have all the property lying within

the same belonging to the State surveyed, subject to the

approval of the State Board, into lots and blocks in ae-

cordance with the official map survey of the City of San

Francisco, reserving so much thereof for streets, docks,

piers, slips, canals, drains, or other use necessary for the

publie convenience and the purposes of commerce, as in

their judgment may be required, and have two maps of

the same prepared showing the property as re-surveyed

to the water line front, the streets, blocks, reservations,

and everything necessary to be shown by such maps; one

of which maps shall be filed in the Surveyor-General’s office,

and the other shall remain in their office at San Francisco;

provided, that nothing in this Act shall be construed to

interfere with the collection of dockage and wharfage by

the State, nor with the right of the State to construct,

adjoining the property granted, such wharves and docks

as may from time to time be provided by law; provided

Appendix 5

further, that if the two hundred feet herein mentioned

for the right of way, or any part thereof, shall at any

time be abandoned or cease to be used as such roadway

by said companies, then so much thereof as shall be so

abandoned or disused shall revert to the State; and pro-

vided further, that if the said railroad companies, or either

of them, shall not, within thirty days of the organization

of the Board of Commissioners, notify such Board of the

acceptance of the provisions of this donation and grant,

the lands herein proposed to be donated and granted to the

said company or companies so failing to notify said Board

shall be sold at auction, as is otherwise provided in this

Act; and in the event said companies, or either of them,

shall accept the grant or donation herein made, the same

shall be in lieu of all other grants of land made or to be

made to the company accepting the same in the City and

County of San Francisco at the present session of the

Legislature; provided, that no part of said land granted or

donated to said rai.road companies shall be located on any

land now in the bona fide possession and occupation of any

citizen or citizens of this State.

Sec. 5. After the Commissioners shall have complied

with the provisions of section four of this Act, they shall

proceed to sell at public auction, and as hereinafter pro-

vided, in some public place in the City of San Francisco,

all the right, title and interest of the State of California in

and to the property in the lots described in section four.

Such sales shall be by lots in accordance with the survey

and map provided for in section four of this Act; provided,

that in all cases where any settler was on the first day of

January, A. D. eighteen hundred and sixty-eight, in the

bona fide actual possession of any one lot by himself or

tenant, and any additional lot in which he shall have had

substantial improvements at the time aforesaid, or who had,

Sale of State

Lands within

water line.

Settlers may

purchase at

appraised value.

6 Appendix

within one year previous to the first day of January, A. D.

eighteen hundred and sixty-eight, substantial improvements

upon any such lot which have been destroyed by fire, the

Commissioners may appraise the value of such lot or lots

without the improvements, after sufficient sales have been

made to furnish a proper standard of value; and at any

time within sixty days after such appraisement such settler

may purchase such lot or lots by paying twenty-five per

cent. of the appraised value thereof at the time of such

purchase, and the residue of such appraised value in three

equal instalments, in one, two and three years, with interest

as hereinafter provided; but the words “substantial im-

provements,” as used in this Act, shall not be construed

to mean or include any bridge, wharf, fence, or piles driven

in the land, capped or otherwise. Such sale shall be con-

ducted in accordance with and under such rules and regula-

veld tions as the State Board shall prescribe; and provided also,

State Board. that all sales made under the provisions of this Act, whether

at private or public sale, before they shall be deemed com-

plete, shall be approved by the State Board, such approval

to be made within sixty days after the report of such sales

shall be filed with the State Board. When such sale shall

not be thus approved, such lot or lots shall be subject to

re-sale by the Board of Commissioners, and the money

paid by the purchaser at such disapproved sale shall be

returned to him. :

Terms of sale. Sec. 6. The terms of sale shall be as follows: Cash, in

gold coin, twenty-five per cent. payable on the day of sale

to the Commissioners; and seventy-five per cent., payable

in one, two and three years thereafter, to the State Treas-

urer at Sacramento. The Commissioners shall receipt to

each purchaser for the amount of his payment of twenty-five

per cent., stipulating that if within one, two or three years

Appendix 7

thereafter he pays the additional seventy-five per cent., to-

gether with legal interest, to the State Treasurer at Sacra-

mento, he shall receive a deed from the State of California

for the property purchased by him. Notices of sale shall be

published in two of the San Francisco daily papers and in

one daily paper published at the Capital of the State, for

thirty days prior to the day of sale. Such notices shall

specify the property to be sold, by its numbers and locality

as to streets, and by any other descriptions deemed neces-

sary to inform purchasers, as also the time, place and con-

ditions of sale. The compensation of the auctioneer shall

be agreed upon by [the] State Board, and shall not exceed

the half of one per cent. on the gross amount of sales.

Sec. 7. Upon a sale, and after the payment of the

twenty-five per cent. provided in section six, the Commis-

sioners, or a majority of the Board, shall sign and execute

a deed of grant and release to the purchaser. Such deed

shall convey all the right, title and interest of the State of

California in the premises, and shall be prima facie evidence

of the regularity of all the preliminary proceedings and

sale of the Commissioners, and shall also be prima facie

evidence of title and right of possession in the grantee,

his heirs and assigns, upon which actions for the recovery

of real property or for injuries thereto may be maintained

and defended in all the Courts of this State having jurisdic-

tion thereof, which deed shall be forwarded by the Com-

missioners to the State Treasurer, who, upon the surrender

to him of the Commissioner’s receipt for the amount paid

said Commissioners [and] the payment to him of the addi-

tional seventy-five per cent., with legal interest, as herein-

before provided by this Act, shall deliver the deed to the

grantee; and in case of non-compliance with the provisions

of this Act on the part of the purchaser, by non-payn.ent

Notice to be

given.

Deeds.

Forfeitures.

—

5

Priorities

of sale.

Sales m

be post-

poned.

Powers of

Commis-

sioners.

8 Appendix

of either or any instalment aforesaid, all the money paid

by him shall be forfeited and the property considered as

unsold by the State.

Sec. 8. The Commissioners shall pay over to the State

Treasurer all moneys received by them from sales of prop-

erty within fifteen days after its receipt. At the close of

each sale they shall file with the State Board and State

Controller accounts of such sale, showing the amount of

money received by them on account of such sale, the num-

ber and description of the property sold, the purchaser’s

name, and other needful information, and shall verify the

same under oath.

Sec. 9. The Commissioners shall have power to adjourn

any sale regularly called, from day to day, week to week,

or month to month, by public proclamation; in which case,

each postponement shall be re-advertised by publication

of notice in the same manner as required in section six of

this Act; but it shall not be lawful to ordain and call sales

at intervals of time less than forty-five days, one sale from

another ; provided, that the Commissioners shall have power

at any time during a public sale to pass or discontinue the

sale of any property, when they deem such action to be

best for the State.

Sec. 10. The cash proceeds of all sales shall be placed

by the Treasurer to the credit of the General Fund.

Sec. 11. The Commissioners are empowered to employ

a competent surveyor, and such assistants as may be neces-

sary, to make the surveys and maps required by this Act;

also, to rent for their use a suitable office in the City of

San Francisco, the rent of which shall not be more than

fifty dollars per month, and to do any other act or exercise

any other power necessary to carry out the provisions of

this Act.

APPENDIX “A-2”

Act of April 1, 1870, Cal. Stats. 1869-1870, ch. 388

Appendix 9

CHAPTER CCCLXXXVITI.

An Act supplementary to and amendatory of an Act entitled

an Act to survey and dispose of certain salt marsh and

tide lands belonging to the State of California, approved

March thirtieth, eighteen hundred and sixty-eight.

[Approved April 1, 1870.]

' The People of the State of California, represented in Senate

and Assembly, do enact as follows:

Section 1. The Board of Tide Land Commissioners

shall have the charge and disposition of all the salt marsh

and tide lands lying under water belonging to the State of

California, and situate in the City and County of San Fran-

cisco, and all the salt marsh and tide lands, to nine feet of

water at extreme low tide, within five statute miles of the

exterior boundaries of said city and county, as fixed and

established in section one (1) of an amendatory and supple-

mentary Act, approved April eighteenth, eighteen hundred

and fifty-seven; provided, that nothing herein contained

shall give said Commissioners any control over the lands

heretofore granted to the City of Oakland.

Sec. 2. Said Commissioners shall have the said lands

lying outside the boundary lines of said county and within

five miles thereof, as aforesaid, surveyed to a depth of nine

feet of water at the lowest stage of the tide, and subdivided

into lots of not more than twenty acres or into lots of not

less than fifty feet front by one hundred feet deep, as in

the judgment of said Tide Land Commissioners, approved

by the State Board, may seem fit for the best interests of

the State; and the Commissioners shall locate, declare, lay

down and establish a canal six hundred feet in width, along

and adjoining the southern boundary line of the City and

County of San Francisco, extending from the shore line

Powers of

Commissioners.

Same.

Sale of lands.

~~

10 Appendix

of the Bay of San Francisco to Ships’ Channel, in said bay ;

also, a canal of like width extending from the mouth of

Guadolupe Creek, in the County of San Mateo, in a due east

course to the Ships’ Channel; and said Commissioners shall

have power to locate and establish canals and basins upon

the marsh and tide lands lying outside of the exterior

boundaries of the County of San Francisco, mentioned in

section one of this Act, whenever they deem them necessary

for the purposes of drainage, navigation and the wants of

commerce; and shall cause to be prepared the necessary

maps, exhibiting the property as surveyed, the number,

area and location of each subdivision or lot, and all other

matters proper and necessary to be shown thereon. The

Commissioners shall file certified copies of said maps with

the Surveyor-General of the State and with the Recorder

of the City and County of San Francisco, retaining the

original field notes and maps of said survey in their office

at San Francisco.

Sec. 3. After the Commissioners shall have complied

with the provisions of section two, they shall proceed to sell

at public auction, to the highest bidder, on the following

terms: Cash, in gold coin, twenty-five percent., payable on

the day of sale to the Commissioners; and seventy-five per

cent. payable twenty-five per cent. in one year, twenty-five

percent. in two years, and twenty-five per cent. in three

years, thereafter, to the State Treasurer, at Sacramento.

The Commissioners shall receipt to each purchaser for the

amount of his payment of twenty-five per cent., stipulating

that if the remaining seventy-five per cent. of the purchase

money shall be paid in three equal parts—in one, two and

three years thereafter, together with legal interest, to the

State Treasurer, at Sacramento, he shall receive a deed

from the State of California for the property purchased

Appendix 11

by him. Such sale shall be by lots, in accordance with the

maps provided for in section two of this Act, and on the

same terms as provided for in the sale of salt marsh and

tide lands, in the Act of which this is amendatory and sup-

plementary to; and the Commissioners shall appoint proper

and competent auctioneers to sell said lands, and their

compensation shall be one per cent. on the gross amount of

sales of all lands outside of the exterior boundaries of said

City and County of San Francisco, and one-half of one per

cent. on the gross amount of sales of all lands within the

boundaries of said City and County of San Francisco, and

such sales shall be made in some public place in the city and

county aforesaid.

Sec. 4. The State Board, under this Act, shall consist

of the Governor of the State, Survey-General of the State

and the Controller of State, who shall have power to make

all rules for the sales; and before such sales shall be deemed

complete, shall be approved by said State Board. Such

approvals to be made within sixty days after the report

of such sales be filed with the State Board.

Sec. 5. The Commissioners, or a majority of them, shall

have the power to compromise with any adverse claimants

to any portion or portions of lands mentioned in this Act,

whenever and on such terms as they may deem it most

conducive to the interests of the State; all such compromises

to be approved by and with the consent of the State Board

and by the advice of the Attorney-General of the State;

provided, that all such compromises shall be made and in

all respects completed, and the money paid, within eighteen

months from the passage of this Act, and not afterwards.

Sec. 6. All salaries, bills and accounts for expenses

incurred in enforcing this Act, shall be approved by the

State Board; after they shall have been approved, the

Compensation

of auctioneers.

State Board.

Commissioners

may

compromise.

Expenses.

Salary of

Secretary.

Costs of deeds.

12 Appendix

Secretary of the Commissioners shall certify the approval

of the same to the Controller of State, who thereupon shall

draw his warrants upon the General Fund for the separate

amounts of such salaries, bills or accounts, in favor of the

parties to whom it is due. The Secretary of the Board of

Tide Land Commissioners shall receive, as compensation

for his services as Secretary of said Board, the sum of two

hundred dollars per month, payable out of the General

Fund.

Src. 7. The costs and expenses of all deeds required to

be made under the provisions of this Act, for the convey-

ance of such lands purchased by any persons, shall be paid

by the purchasers at such sales, not to exceed five dollars

for each and every conveyance so required to be made by

said Commissioners.

Src. 8. All Acts and parts of Acts in conflict with the

provisions of this Act are hereby repealed.

Src. 9. This Act shall take effect and be in force from

and after its passage.

APPENDIX “B-1”

Denial of Petition of Rehearing

(California Supreme Court—

April 22, 1980)

Appendix 13

ORDER DUE

April 22, 1980

ORDER DENYING REHEARING

S.F. No. 23686

In the Supreme Court of the State of California

In Bank

Crry or BERKELEY ET AL., Petitioner,

THe Superior Court or ALAMEDA County, Respondent

Santa Fr Lanp IMPROVEMENT COMPANY ET AL

Real Parties in Interest.

Opinion modified.

Real Parties in Interest’s petition for rehearing DENIED.

Clark, J., Richardson, J., and Manuel, J., are of the opin-

ion that the petition should be granted.

TOBRINER

Acting Chief Justice

SUPREME COURT

FILED

MAR 27 1980

G. E. BISHEL, Clerk

Deputy

APPENDIX “B-2”

Modification of Opinion

(California Supreme Court—

Filed March 27, 1980)

Appendix 15

Supreme Court—Filed Mar 27 1980

G. E. Bishel, Clerk

In the Supreme Court of the State of California

S.F. 23686

City or Berke ey et al.,

Petitioner,

VS.

Tue Superior Court or ALAMEDA County,

Respondent;

Santa Fr Lanp IMPROVEMENT Company et al.,

Real Parties in Interest.

MODIFICATION OF OPINION

The opinion herein, appearing at 26 Cal.3d 515, is modi-

fied by striking the words “submerged lands” in footnote 3

on page 519 and substituting therefor the word “tidelands,”

and by striking lines 17 and 18 on page 521, and substitut-

ing the following: “the people of each state acquired ‘abso-

lute right to all... navigable waters, and the soils under

them, for their own common use... .’ (Martin”. In addition

the words “provided that the fill and improvements were

made in accordance with applicable land use regulations”

on the last two lines of page 534 are eliminated.

APPENDIX “B-3”

Opinion and Order Issuing Peremptory Writ of

Mandate (California Supreme Court—

Filed Feb. 22, 1980)

Appendix 17

1.

SEE DISSENTING OPINION

Supreme Court

Filed—Feb 22 1980

G.E.Bishe

Deputy

In the Supreme Court of the State of California

S.F. 23686

City oF BerKe.ey et al.,

Petitioner,

VS.

THE Superior Court or ALAMEDA County,

Respondent;

Santa Fr Lanp ImproveMENT Company et al.,

Real Parties in Interest.

We are concerned in this case with whether tidelands?

in San Francisco Bay granted to private parties by the

state Board of Tide Land Commissioners (board in the

latter part of the 19th century, pursuant to a legislative

act passed in 1870, conveyed title to the purchasers free of

the public trust for commerce, navigation, fishing, and

related uses. Knudson v. Kearney (1915) 171 Cal. 250, and

Alameda Conservation Association v. City of Alameda

(1968) 264 Cal.App.2d 284, held that these grants were in

1. The term “tidelands,” properly speaking, are lands between

the lines of mean high tide and mean low tide, whereas “submerged

lands”’ are those seaward of mean low tide and not uncovered in the

ordinary ebb and flow of the tide. (City of Long Beach v. Mansell

(1970) 3 Cal.3d 462, 478, fn. 13.) For literary convenience, the

term “tidelands”’ will refer to both types of property in this opinion,

unless otherwise noted.

18 Appendix

fee simple and not subject to the rights of the public. We

conclude that these decisions were erroneous and must be

overturned, but that tracts of land granted by the board

that have been improved or filled are, to the degree herein-

after described, free of the public trust.

Santa Fe Land Improvement Company, a corporation, and

George W. Murphy (plaintiffs) each brought an action

against the City of Berkeley and the State of California

(defendants) to quiet title to 79 acres of land located in

the City of Berkeley adjacent to the Berkeley Marina, for

declaratory relief, and inverse condemnation. Plaintiffs’

predecessors in interest had acquired the parcels from the

board by deeds issued puruant to the 1870 act. At the time

of acquisition the property was tideland, but all except a

small portion has been filled.? Plaintiffs alleged that they

owned these parcels free of any trust on behalf of the

public for commerce, navigation and fishing.

Defendants denied that plaintiffs own the 79 acres in

question, and the state filed a cross-complaint,* claiming

that Berkeley owns the property in fee under a grant from

the state,t or, in the alternative, that plaintiffs’ title is

2, According to defendants, the fill was placed there by Berkeley

some time before 1965 under a garbage disposal program.

3. The eross-complaint was filed by the State Lands Commis-

sion, which has jurisdiction over submerged lands owned by the

state as well as residual jurisdiction of tidelands granted by the

state. (See, e.g., Pub.Res.Code, §§ 6216, 6301.) Section 6308 re-

quires that the state be joined as a party in any action involving

title to tidelands granted by the state to a local entity.

4. Berkeley’s claim of title stems from statutes enacted in 1913

and thereafter, which granted the state’s right to the tidelands

within Berkeley’s boundaries to the city. (Stats. 1913, ch. 347, § 1,

pp. 705-706; Stats. 1915, ch. 534, § 1, pp. 902-903; Stats. 1917, ch.

596, §1, p. 915; Stats. 1919, ch. 517, §1, pp. 1089-1091; Stats.

1961, ch. 2180, § 1, pp. 4516-4518; Stats. 1963, First Ex.Sess, 1962,

ch. 55, §1, pp. 343-345.) The city’s claim depends upon the extent

of the state’s interest at the time the grants were made. Our refer-

ences to the interests of the state or the public in this property

apply also to the city’s rights.

Appendix 19

subject to the public trust. The cross-complaint alleged also

that Santa Fe claims 608 acres and Murphy 48 acres of

Berkeley’s tidelands, comprising 77 percent of that city’s

entire waterfront, that this additional acreage was, like the

79 acres involved in plaintiffs’ complaint, aequired by deeds

issued pursuant to the 1870 act, and that Santa Fe asserts

that the additional property is also free of the public trust.

The cross complaint sought to include the additional acre-

age in the action.

Plaintiffs move for partial summary judgment as to the

79 acres claimed in their complaints. In support of their

motion they produced documents establishing that the prop-

erty had been conveyed by deeds that the board issued

between 1872 and 1875 to their predecessors in interest,

granting to them “all the right title and interest of the

State of California in and to” the property. The trial court

granted the motion, deciding under the authority of Knud-

son and Alameda Conservation that the deeds issued by the

board terminated the publie trust in the properties con-

veyed. Defendants seek a writ of mandate to compel the

trial court to set aside this order.®

Although plaintiffs’ motion for summary judgment in-

volved only 79 acres, almost all of which have been filled,

the trial court’s ruling that the conveyances granted by the

board were free of the public trust as of the time they were

made affects all the grants by the board pursuant to the

1870 act.

5. The trial court determined also that the state was estopped

to claim that plaintiffs’ property is free of the publie trust because

the state took a contrary position in the Alameda Conservation

ease, involving another tract of land conveyed by the board under

the 1870 act. We need not dwell on this aspect of the court’s ruling.

The issue in this ease involves a matter of great publie importance,

and it is settled that the doctrine of collateral estoppel does not

apply under such circumstances. (Chern v. Bank of America

(1976) 15 Cal.3d 866, 872.)

20 Appendix

The City of Berkeley is in Alameda County. It borders

on the eastern side of the northern reaches of San Francisco

Bay (the Bay), and its boundary includes more than two

miles of shoreline and a large submerged area to the west.

The 79-acre tract involved in plaintiffs’ motion borders on

the extension of University Avenue running west of the

Eastshore Freeway. Approximately one-third of the tract

lies between the 1870 lines of mean high tide and mean low

tide, and the remainder was submerged land at that time.

The doctrine that the public owns the right to tidelands

for purposes such as commerce, navigation and fishing

originated in Roman law, which held the publie’s right to

such lands to be “illimitable and unrestrainable” and incap-

able of individual exclusive appropriation. (See Note, The

Public Trust in Tidal Areas (1970) 79 Yale L.J. 762, 763,

fn. 7.) The English common law developed similar limita-

tions upon private authority over such property: the rights

of the public prevailed over the rights of private persons

claiming under tideland grants made by the crown. (See

Note, California’s Tideland Trust (1971) 22 Hastings L.J.

759, 761-762.) After the American Revolution, the federal

government acquired “absolute right to all... navigable

waters, and the soils under them, for [its] own common

use ....” (Martin v. Waddell (1842) 41 U.S. 367, 410.)

When California was admitted to statehood in 1850, it

succeeded to title in the tidelands within its borders not in

its proprietary capacity but as trustee for the public. (City

of Long Beach v. Mansell, supra, 3 Cal.5d 462, 482; People

v. Kerber (1908) 152 Cal. 731, 733; Ward v. Mulford

(1867) 32 Cal. 365, 372.) Although early cases expressed

the scope of the public’s right in tidelands as encompassing

Appendix 21

navigation, commerce and fishing, the permissible range of

public uses is far broader, including the right to hunt, bathe

or swim, and the right to preserve the tidelands in their

natural state as ecological units for scientific study. (Marks

v. Whitney (1971) 6 Cal.3d 251, 259-260.)

There were limitations imposed by this ancient doctrine

upon the alienation of tidelands to private parties, Illinois

Central Railroad Company vy, Illinois (1892) 146 U.S. 387,

was the seminal case on the scope of the public trust doe-

trine and remains the primary authority even today, almost

nine decades after it was decided. The decision established

the principle that a state, as administrator of the trust in

tidelands on behalf of the public, does not have the power

to abdicate its role as trustee in favor of private parties.

In 1869, the Illinois Legislature granted to the Illinois

Central Railroad Company in fee simple 1,000 acres of tide

and submerged lands, representing virtually the entire wa-

terfront of Chicago. The only limitations upon the grant

were that the railroad company could not authorize obstruc-

tion of the harbor or impair the public right of navigation,

and that the Legislature retained the right to regulate

wharfage fees when docks were built. Four years later, the

Legislature thought better of its action and enacted a meas-

ure to revoke the grant, an action which was challenged by

the railroad.

The court held that the grant was revocable, and that the

state could resume exercise of its trust rights at any time.

The decision recognized that parcels of land under naviga-

ble waters conveyed to private parties for wharves or docks

and other structures in aid of commerce may be granted

free of the public trust because such uses are consistent with

22 Appendix

trust purposes.® But it determined that the Legislature did

not have the power to convey the entire waterfront of the

city to a private party free of the trust. The court declared

that one legislature does not have the power to “give away

nor sell the discretion of its successors” to “exercise the

powers of the State” in the execution of the trust and that

legislation “which may be needed one day for the harbor

may be different from the legislation that may be required

at another day.” (See also Mallon v. City of Long Beach

(1955) 44 Cal.2d 199, 207; People v. California Fish Co.

(1913) 166 Cal. 576, 593.)

The principles of Illinois Central have suffered a check-

ered history in California. Soon after statehood, the Legis-

lature began to sell into private ownership vast tracts of

tidelands, often at public auction. In San Francisco Bay,

large parcels were sold by deeds purporting to transfer

title in fee simple absolute. Many of these transfers were

fraudulently made.7 In 1868, the Legislature created the

6. The court stated also that “grants of parcels which, being

oceupied, do not substantially impair the public interest in the

lands and waters remaining” may also be conveyed free of the trust.

(146 U.S. at p. 452.) The meaning of the term “lands and waters

remaining” is not clear. The court may have had in mind either

former navigable waters which had been filled and were thus no

longer useful for navigation, or shoals and swamp lands. In one

portion of its opinion, the court quotes from a case in which sub-

merged shoals and flats are characterized as “useless parts” which

“really interfered with navigation” and did not “affect the character

of the title to the remainder.” (Jd. at p. 457.)

7. For example, pursuant to statutory authority, the Surveyor-

(General was directed to survey tidelands above low tide for sale

at “one dollar per acre in gold coin.” County surveyors of San

Mateo and Alameda, who conducted the surveys, “unblushingly

certified as ‘lands above low tide’ thousands of acres that lay six

to eighteen feet below the waters of San Francisco Bay .. . [F Jiles

of the state Surveyor-General contain no correspodence indicating

that the incumbent ever refused” patents applied for by the sur-

veyor of Alameda County. (See Scott, Future of S.F. Bay (1963)

Inst. of Gov. Studies, U. of Cal., p. 4; see also Debates and Pro-

ceedings, Cal. Const. Convention 1878-1879, pp. 1038-1039, 1478-

1481.)

Appendix 23

Board of Tide Land Commissioners. It was directed to take

possession of marshland, tideland and submerged land in

the City of San Francisco, to establish a waterfront line

for the city, and to sell lots within that line, reserving par-

eels for certain purposes, (Stats. 1867-1868, ch, 543, $§ 1, 4,

5, pp. 716-720.) The territorial jurisdiction of the board

was extended by a supplementary act in 1870. (Stats. 1869-

1870, ch, 399, $$ 1, 2, 3, pp. 541-542.) The property involved

in this proceeding was conveyed by board deeds under its

extended jurisdiction. The history and content of these

measures will be discussed in further detail, infra.

The widespread abuses in the disposition of tidelands

led to the adoption in 1879 of article XV, sections 2 and 3

of the Constitution (now art. X, $$ 3 & 4). These provisions

prohibit the sale to private persons of tidelands within two

miles of an incorporated city, and state that no individual

may obstruct the free navigation of tidelands on navigable

waters nor the right of way to such waters, when required

for a public purpose. In the debate that preceded adoption

of the measure, one legislator observed that in the preced-

ing 25 vears the grants by the state had nearly resulted in

“the monopolizing of every frontage upon navigable waters

in this state... by private individuals ....” (Debates and

Proceedings, Cal. Const. Convention 1878-1879, op cit., at

p. 1481.)

As a result of these open-handed policies, today almost

one-quarter of the Bay is claimed by private persons. Of

the remainder, approximately one-quarter has been granted

by the state to cities and counties, the state owns about cne-

half, and the federal government 5 percent, (S.F. Bay Plan

Supp., Bay Cons. & Dev. Com., p. 447.)

Two distinct rules developed with regard to the validity

of the grants of tidelands made to private parties before

24 Appendix

the limitations on alienation imposed by the Constitution

of 1879. Even before Illinois Central was decided, it was

recognized in California that the state had the authority

as administrator of the trust on behalf of the public to dis-

pose absolutely of title to tidelands to private persons if

the purpose of the conveyance was to promote navigation

and commerce, (See, e.g., Eldridge v. Cowell (1854) 4 Cal.

80, 87.) In a series of statutes sometimes called “special

acts” the harbor of San Francisco was created: a water-

front line was fixed at a point which reached a depth con-

venient to shipping, lots and streets were laid out in the

water landward of the line and were sold to private parties ;

these lands were filled, and the line thus formed became the

harbor line. Much of San Francisco’s downtown business

district is situated on land filled in connection with the

development of the harbor created pursuant to these acts.®

From the early days of statehood, it was held that convey-

ances made pursuant to such a program passed title free

of the public trust. (See, e.g., Eldridge v, Cowell, supra, 4

Cal. 80, 87: Ward v. Mulford, supra, 32 Cal. 365, 372-373;

Oakland v. Oakland Water Front Co. (1897) 118 Cal, 160,

184-185; see People v. California Fish Co., supra, 166 Cal.

576, 585.)

But conveyances of tidelands to private parties not made

for the furtherance of navigation or commerce did not pass

title free of the trust. The acts authorizing such convey-

ances are sometimes referred to as “general acts.” Cali-

fornia Fish, which contains a comprehensive analysis of

8. Contrary to plaintiffs’ claim, the 1868 act did not authorize

the sale of property that now constitutes the downtown business

district of San Francisco. These grants were made under prior

statutes (e.g., Stats. 1851, ch. 41, §§$ 1, 3, 4, pp. 307-309; Stats.

1853, ch. 160, §§ 5, 7, pp. 220-221), and absolute title to the lands

conveyed by these measures was confirmed by early cases (e.g.,

Eldridge v. Cowell, supra, 4 Cal. 80, 87).

Appendix 25

the public trust doctrine, recognized this distinction, The

effect of the decision was to retain the publie’s right in vast

grants of tidelands purportedly conveyed in fee between

1855 and 1872 to private parties by legislative authoriza-

tion.®

In California Fish, as here, private claimants asserted

that they owned title to tidelands free of the public trust.

The court, after recognizing that absolute title could be

granted to private individuals in order to “adapt the land

to the use for navigation in the best manner” (166 Cal. at

p. 597), held that the grants there involved were not made

to improve navigation, In these circumstances, the grantees

“own the soil, subject to the easement of the public for the

public uses of navigation and commerce, and to the right

of the'state, as administrator and controller of these public

uses and the public trust therefor, to enter upon and pos-

sess the same for the preservation and advancement of the

public uses and to make such changes and improvements

as may be deemed advisable for those purposes.” (Jd. at

pp. 598-599.)

The court set forth the following principles regarding

tlie interpretation of statutes authorizing the granting of

9, Almost a dozen statutes authorizing grants of tidelands were

consolidated in 1872 in Political Code sections 3440 through 349314,

Tidelands conveyed under these statutes excluded areas located

within five miles of San Francisco, as well as other areas of the

Bay. (Stats. 1861, ch. 356, § 1, p. 383.) Thus, the California Fish

decision did not affect tidelands included in the 1868 and 1870 acts

involved in the present proceeding.

The tidelands conveyed pursuant to the statutes involved in

California Fish included “the entire sea beach from the Oregon

line to Mexico and the shores of every . . . inlet, estuary, and navi-

gable stream as far up as tide water goes and until it meets the lands

made swampy by the overflow and seepage of fresh water streams.”

(166 Cal. at p. 591.) Perhaps 80,000 acres of tidelands (as dis-

tinguished from submerged lands) were conveyed to private parties

before California Fish was decided. (See Taylor, Patented Tide-

lands: A Naked Fee? (1972) 47 State Bar J. 420, 421.)

26 Appendix

tidelands: “[S]tatutes purporting to authorize an abandon-

ment of ... public use will be carefully scanned to ascertain

whether or not such was the legislative intention, and that

intent must be clearly expressed or necessarily implied, It

will not be implied if any other inference is reasonably

possible. And if any interpretation of the statute is reason-

ably possible which would not involve a destruction of the

public use or an intention to terminate it in violation of

the trust, the courts will give tne statute such interpreta-

tion.” (Jd. at p. 597.)

The first focus of our inquiry, therefore, is whether the

act of 1870, which authorized the sale of tidelands to plain-

tiffs’ predecessors in interest, had as its purpose the pro-

motion of navigation, commerce or fisheries.

We begin with the 1868 act. The statute directed the

board to establish a waterfront line for San Francisco

south of Second Street, divide the property within that line

into blocks and lots, reserving space for streets, docks, slips,

canals, or other uses necessary for the public convenience

and the purposes of commerce, and to sell the state’s right,

title, and interest in the lots at public auction. (Stats. 1867-

1868, ch. 543, §$1, 4, 5, pp. 716-720.) The 1870 statute,

which was “supplementary to and amendatory of” the 1868

act, added to the board’s jurisdiction all tidelands within

five miles of the exterior boundary of San Francisco to nine

feet of water at extreme low tide. As to these tidelands,

the board was authorized to subdivide the property into

lots and to sell them at publie auction, reserving canals and

basins that it deemed necessary for drainage, navigation

and commerce. (Stats. 1869-1870, ch. 399, $$ 1, 2, 3, pp. 541-

542.) At that time, the boundary of San Francisco extended

a considerable distance into the waters of the Bay. (S.F.

Bay Plan Supp., Bay Cons. & Dev. Com., supra, p. 432.)

Appendix 27

The 1870 act therefore increased the territory subject to

the board’s jurisdiction substantially; the tidelands that the

board was authorized to convey under the 1870 act were

far greater than under the 1868 statute.’

The total acreage placed under the board’s jurisdiction

under the 2 acts was 56,400 acres of tideland or 88 square

miles of the Bay. Of this, the board conveyed 22,299 acres.

The area sold pursuant to the 1870 act exceeded many times

that conveyed in the City of San Francisco under the 1868

act. Roughly 14,447 acres, or 24 square miles, constituting

64.8 percent of the area under the board’s jurisdiction, is

still tideland. About 4,186 acres of the subdivided tidelands

(18.8 percent) have been filled but not improved, and 3,666

acres (16.4 percent) are both filled and improved with

structures. These conveyances extend from Hamilton Air

Force Base and Richmond in the northern part of the Bay

to San Bruno and San Leandro in the south. In Berkeley,”

the board sold all the lots extending to 12 feet at ordinary

high tide from the shore, granting to the purchasers the

entire 2% miles of the city’s waterfront, without any pro-

vision for public access. Most of the tidelands in Berkeley

are now owned by plaintiff Santa Fe. Of the 854 acres in

Berkeley sold under.the act, 525 are still under water. In

other areas, such as Sausalito, canals providing public

access to the Bay were reserved from sale. Over the years,

most of the lots sold by the board have been acquired by a

relatively small number of corporations that own substan-

10. Tidelands previously granted by the Legislature to the City

of Oakland were excepted from the terms of the 1870 act. (Stats.

1869-1870, ch. 399, § 1, p. 541.)

11. Berkeley was not incorporated as a city in 1870, but there

was some community development at the site, including a wharf.

(See Bowman, The Birthdays of Urban Communities (1952) 31 Cal.

Hist. Soe. Q. 328-332.)

28 Appendix

tial parcels purchased from the original grantees or their

successors. (Scott, Future of 8.F. Bay, op. cit., p. 7.)

We come, then, to Knudson v. Kearney (1915) 171 Cal.

250. That case involved an action to quiet title to less than

two acres of tidelands on the shore of San Francisco Bay.

The plaintiff, characterized by the trial court as an intruder,

occupied a parcel that defendant leased from a party who

had obtained the property under a deed issued to her prede-

cessor in interest under the 1870 statute. Plaintiff objected

to introduction into evidence of the original deed on the

ground that the state had no power to convey absolute

title to tidelands, citing California Fish.

The court, in a discussion that covered less than two

paragraphs, held that the plaintiff’s assertion was without

merit because deeds issued under the 1870 act conveyed

12. Seott states: “The names appearing on the books of county

assessors are for the most part those of large realty syndicates,

banks, title insurance companies, investment houses, railroads, and

manufacturing companies. Only in the upper arm of Richardson

Bay and the water areas around Strawberry Point, in Marin County,

are there still many small owners—-two dozen or more. Almost the

entire waterfront of Sausalito has been consolidated in recent years

by a single syndicate. Just seven owners now control the submerged

properties in Corte Madera Bay, among them the Marin Title

Guarantee Company, the Utah Construction and Mining Company,

the Wells Fargo Bank, and the City Title Company. Less than a

score of owners pay taxes on the parcels the state originally sold in

San Rafael Bay. On the eastern side of the bay the Santa Fe Rail-

road has title to almost all the privately held tide and submerged

lands from Richmond to Oakland, and in Richmond alone it owns

1,156.13 aeres. The Standard Oil Company possesses more than a

thousand acres of offshore properties in Richmond, and claims title

to another 640 acres. Along the northern waterfront of San Mateo

County the privately held areas covered by the waters of the bay

belong to such interests as the Southern Pacifie Railroad, the

Schilling Estate Company, the Western Title Insurance and Guar-

antee Company, the Crocker Land Company, Consolidated Western

Steel Corporation, and the Utah Construction and Mining Com-

pany, not to mention the Ideal Cement Company and the thousands

of acres it claims in the south bay.”

Appendix 29

absolute title to the grantees. It distinguished the general

disposition statutes involved in California Fish on the

ground that whereas those statutes were not designed to

promote navigation, it was “obvious” from the provisions

of the 1868 and 1870 measures that they were enacted for

that purpose. The Anudson opinion states, “These acts

provided that the boundaries of navigable waters should

be fixed and the waterfront line delineated, and, in effect,

that the land not required for docks, piers, slips, or other

purposes of commerce should be subject to sale outright

to private persons for private use. Reference is made in

the opinion in People v. California Fish Co., 166 Cal. 576,

585... to the disposition by the state, under these and

other similar statutes, of tidelands cut off from naviga-

tion by the fixing of the waterfront of San Francisco. Many

decisions are cited which either declare or assume that

grants under such laws convey the title in fee. [Citations

omitted.] Deeds made under the authority of these and

similar acts do not come within the scope of the decision

in the California Fish Co. case... .” (171 Cal. at p. 253.)

Knudson was followed in Alameda Conservation in which

it was held, without any independent analvsis, that tide-

lands in Alameda conveyed pursuant to the 1870 act were

granted free of the public trust.

While it would render our problem much simpler, we

cannot agree with defendants’ view that the statement in

Knudson that grantees who acquired title under the 1870

13. In two recent cases this court referred to Knudson. City of

Long Beach v. Mansell, supra, 3 Cal.3d 462, 485, footnote 20,

merely cites the case, but Marks v. Whitney, supra, 6 Cal.3d 251,

258, footnote 6, states that the 1868 and 1870 statutes “were

enacted in aid of navigation and for the purpose of providing for

the improvement of designated parts of San Francisco Bay and

they operated to free such tidelands from the public trust. [Citing

Knudson and Alameda Conservation. |”

30 Appendix

statute took free of the public trust constitutes dictum.

Even if the court could have based its decision on a nar-

rower ground, it chose not to do so, and this determination

was the sole ground for its decision. In these circumstances

it cannot be said that the statement was only a general

expression of opinion not necessary to the discussion, and

therefore dictum. (Achen v. Pepsi-Cola Bottling Co. (1951)

105 Cal.App.2d 113, 124-125; see also Weeden v. Tayokichi

Yamada (9th Cir. 1925) 4 F.2d 455, 456-457; Stockton v.

Rattner (1972) 22 Cal.App.3d 965, 969.) We must squarely

face the problem created by Knudson.

In assessing that decision, we note at the outset that the

action was between two private persons over less than two

acres of tidelands, and that the state was not a party to

the action as a representative of the people’s interests in

the vast areas of tidelands alienated by the board. An

examination of the original record in the case reveals that

the tideland trust was barely mentioned by the parties in

the total of 19 pages of briefs filed by them, although there

were some obscure references to the people’s interest in

tidelands in the printed oral argument. The court’s con-

clusion on the basis of this meager presentation that the

Legislature intended by the 1870 statute to authorize the

board to sell to private parties free of the public trust more

than 56,000 acres of tidelands requires reexamination. So

far as we are aware, the present case is the first in which

a detailed inquiry into the history and purpose of the

1870 act has been undertaken.

Our analysis convinces us, for the reasons set out below,

that Knudson and Alameda Conservation are incorrect. In

our consideration of this question, we proceed on the basis

of the principles expressed in California Fish: statutes

purporting to abandon the public trust are to be strictly

Appendix 31

construed; the intent to abandon must be clearly expressed

or necessarily implied; and if any interpretation of the

statute is reasonably possible which would retain the pub-

lie’s interest in tidelands, the court must give the statute

such an interpretation.

The first defect of Knudson is that it relied upon the

terms of the 1868 act to justify a conveyance made under

the 1870 statute. While the former made provision for a

waterfront line in San Francisco and reserved streets, docks

and other facilities for commerce and navigation, the latter

directed the board to convey into private ownership tide-

lands within five miles of the San Francisco line to nine

feet at extreme low tide, reserving only such canals and

basins as the board considered necessary for drainage,

navigation or commerce. The Knudson court relied almost

entirely on the language of the 1868 act to justify its eon-

clusion that grants made under the very different language

of the 1870 statute were free of the public trust. Certainly,

it could not be said that the 1870 act was designed to

promote harbor development. It allowed the board to grant

the entire waterfront of every community along a sub-

stantial portion of the Bay to private persons in fee, with-

out reference to whether or not a harbor would be desirable

or possible at any particular point.

Nor is it “obvious,” as the court opined, that the 1870

act was designed to improve navigation on the Bay. The

statute makes no reference to a specific public improvement

to promote navigation, and does not state the improvement

of navigation as its purpose. The fact that the word “navi-

gation” is used in the act and that some of the lands within

the board’s jurisdiction could be withheld from sale for

canals and basins needed for navigation is clearly “insuffi-

cient to justify the conclusion reached by the court. What

32 Appendix

is required and is missing from the act is a clear intent

expressed or necessarily implied that the purpose of the

act was to further navigation or some other trust use. In

Illinois Central the fact that the grant to the railroad pro-

hibited it from impairing the right of navigation did not

prevent the United States Supreme Court from holding

that the conveyance violated the trust.

Confirmation that the grants were not intended to be

free of the public trust is provided by legislative history.

The Attorney General advised the Legislature prior to the

enactment of the 1868 statute that the public would retain

its right to the tidelands conveyed under the act. In a letter

of advice attached to the report of the committee appointed

to study the measure, the Attorney General wrote: “The

State, in making this disposition [of tidelands], passes the

title with the same disability which obtains with the State.

Her purchaser can acquire from the State no such title as

will enable the owner or holder of them to use them to the

detriment, destruction or prejudice of commerce or navi-

gation. For such uses the public have an easement, and the

Government retains and has the authority to enforce the

right.” (Rep. Assem. Special Com. in Relation to S.F. Tide

Lands, 2 Appendix to Sen. and Assem. J. (1866-1867) p.

6.)4 Moreover, there is evidence that the Legislature may

have been primarily motivated by a desire to raise revenue

rather than to improve navigation. The committee’s report

14. Plaintiffs argue that the use of the word “Government” in

the Attorney General’s advice letter indicates that he was referring

to the federal government’s right to regulate obstructions to navi-

gation rather than the state’s power to alienate tidelands free of

the public trust. We doubt the correctness of this argument in view

of the language quoted above. In any event, it cannot be said that

the construction urged by plaintiffs is compelled by the language

of the Attorney General. In view of the rules of construction re-

ferred to above, we must adopt the interpretation that favors re-

tention of the public trust.

Appendix 33

to the Legislature before the 1868 act was passed, as well

as reports by the Governor to the Legislature and by the

Attorney General to the Governor regarding the progress

of the disposition program, refer only to the funds that

would be or had been realized from the sales authorized by

the act; they are devoid of any reference to the improve-

ment of navigation.’* Presumably, the Legislature which

15. The committee report recommending passage of the act

states in part, “There is quite a considerable tract of land of the

character referred to in this bill within the limits of the City and

County of San Franciseo—that former legislative bodies of this

State, within the past few years, have made large grants of the

most valuable portions thereof to associations at nominal price, by

which the State has received but slight benefit .... [The bill]

proposes, to the greatest extent that is possible, by sales in small

tracts, to protect the interest of the State at large and render econ-

tribution from that source to the General Fund... . The under-

signed, of your Committee, are fully impressed with the belief that

some disposition should be speedily made of the State’s interest in

the lands referred to in this bill, that they may be improved and

made a productive, tax-paying estate, from which the State would

derive large acquisitions to her revenue.” (Rep. Assem. Special

Com., op. cit., pp. 3-4.) ;

An attorney, Creed Haymond, had been retained by the com-

mittee to give his opinion on certain legal issues with regard to the

measure. The committee requested him to render an opinion on

the merits of the bill. In a letter attached to the committee’s report,

he stated, “If rumor is to be eredited, these lands have been a

fruitful source of corruption and have been made the foundation of

gigantic lobby schemes—the State has been despoiled of her interest

in valuable portions of them, and the time has arrived that an end

should be put to schemes that grow out of their retention by the

State. Whilst the Legislature has the power to give them away

lot by lot to private parties, it has not the moral right to so dispose

of them. Our State is burdened with a debt of five millions of

dollars and the people are weighed down by taxation.

“If these lands are sold under the provisions of the . . . bill, the

State will receive into her Treasury more than a million of dollars.

That sum applied to the redemption of State bonds will not only

improve the credit of the State, but enable the Legislature to

materially reduce taxation—a consummation most devoutly to be

wished for.” (Rep. Assem. Special Com., op cit., p. 10.)

= Attorney General, in his annual report to the Governor,

stated :

34 Appendix

amended and supplemented the 1868 statute in 1870 was

aware of the committee’s report and some of the additional

matters referred to above. While this evidence of legislative

intent is not determinative, at the very least it reinforces

our conclusion that the 1870 statute may and should be

interpreted to preserve the public’s rights in the tidelands

that it authorized the board to convey to private parties.”

Knudson was incorrectly decided even if the court had

been justified in concluding that the purpose of the 1870

act was to promote navigation. Illinois Central holds that

a state may not grant to private persons tidelands as vast

in area as the board was authorized to sell by the 1870 act.

“T congratulate your Excellency and the people of the State upon

the success of the plan devised at the last session of the Legislature

(Act approved March 30th, 1868, Statutes 1867-8, pages 716 to 722,

inclusive) for the sale and disposition of the State’s interests in

certain salt marsh and tide lands bordering upon the Bay and within

the City and County of San Francisco. Up to the present time,

notwithstanding the unprecedented stringency of the money market,

the sales of these lands, under the provisions of the Act, amount to

the sum of eight hundred and thirteen thousand one hundred and

eight dollars and seventy-four cents ( $813,108.74), leaving a large

part of the most valuable of those lands still to be sold. I am well

assured that the sums which have been and will be hereafter realized

from this source (even after paying the sum of two hundred

thousand dollars to the University Fund) together with the sums

accruing from the ordinary sources of revenue, will, with proper

economy, within a short time extinguish the State debt, thereby

placing the credit of our State where it of right belongs—amongst

the first in the Union, and by reason of light taxation and a State

unincumbered with debt, enable us to hold out increased induce-

ments to immigration.’’ (1 Appendix to Sen. and Assem. J. (1867-

1869) Rep. of Att. Gen., p. 6.)

Governor Haight similarly emphasized the monetary benefit of

the sales in his remarks to the Legislature in December 1869. (Sen.

J. (1869-1870) Governor’s Message, pp. 40, 51.)

16. The matters set forth above regarding the Legislature’s

intent apply to both the 1868 and 1870 enactments. Nevertheless,

there ean be no doubt that the promotion of harbor development

may be more readily inferred from the language of the earlier

statute. We are directly concerned in the present case only with

the meaning of the 1870 act, and our holding applies only to it.

Appendix 35

Such action amounts to an improper abdication by the state

of its role as trustee on behalf of the people.

Moreover, Knudson was decided in 1915, 40 years after

the grants were authorized, Since a very substantial per-

centage of the tidelands conveyed under the act had not

been filled during the intervening years, any program for

harbor development or the improvement of navigation had

not been realized. Illinois Central makes it clear that one

legislature may not sell the discretion of its successors to

exercise the state’s power as the trustee of tidelands. A nud-

son clearly violated this admonition by holding that the trust

was terminated as to these tidelands even though 40 years

after the grants were made, the plan for improving naviga-

tion, which was the purported purpose of the 1870 statute,

had not been fulfilled. (See Comment, The Tideland Trust

(1974) 21 UCLA L.Rev. 826, 844-847, fn. 90, 93.) As to the

status of these tidelands at the present time, the McAteer-

Petris Act, passed in 1965 (Gov. Code, § 66600 et seq.), a

statute enacted in the state’s capacity as trustee of the tide-

lands (see People ex. rel. S.F. Bay ete. Com. v. Town of

Emeryville (1968) 69 Cal.2d 533, 544-549), demonstrates

that the Legislature’s current policy regarding these lands

is different from that expressed by the 1870 act.

Finally, a number of cases had held or stated long prior

to Anudson that a grant of tidelands, even if made for the

improvement of navigation, does not vest absolute title in

a private party until the improvements are actually made.

(See, e.g., People v. Williams (1884) 64 Cal. 498, 499;

People v. Kerber, supra, 152 Cal. at pp. 736-737 ; California

Fish, supra, 166 Cal. at pp. 599-600; see also Comment,

supra, 21 UCLA L.Rev. 826, 844-847, fn. 90, 93.) Since no

program of improvement was realized, Anudson’s holding

was in error on this ground also. Thus, under every ra-

36 Appendix

tionale, Knudson is clearly incorrect, and the opinion is

overruled. Alameda Conservation is disapproved insofar

as it follows the holding of Anudson.

Our conclusion is made with due recognition of the special

role of the “rule of property” in the application of the

doctrine of stare decisis. As explained in Abbott v. City of

Los Angeles (1958) 50 Cal.2d 488, 456-457, the doctrine

relates to a “settled rule or principle, resting usually on

precedents or a course of decisions, regulating the owner-

ship or devolution of property ... - [Decisions long

acquiesced in, which constitute rules of property or trade

or upon which important rights are based, should not be

disturbed, even though a different conclusion might have

been reached if the question presented were an open one,

‘nasmuch as uniformity and certainty in rules of property

are often more important and desirable than technical cor-

rectness. Thus, judicial decisions affecting the business in-

terests of the country should not be disturbed except for

the most cogent reasons, as where the evils of the principle

laid down will be more injurious to the community than can

possibly result from a change, or upon the clearest grounds

of error.” (See also County of L.A. v. Southern Cal. Tel. Co.

(1948) 32 Cal.2d 378, 392-393.)

There are “most cogent reasons in the present case for

our determination to overturn Knudson and Alameda Con-

servation. We do not divest anyone of title to property ;

the consequence of our decision will be only that some land-

owners whose predecessors in interest acquired property

under the 1870 act will, like the grantees in California Fish,

hold it subject to the public trust. The Knudson decision in

1915 and Alameda Conservation 53 years later were the

only eases holding that the grants in issue were free of the

public trust, and it was apparent from the face of the

Knudson opinion that although the publie’s right to large

Appendix 37

tracts of tidelands in the Bay was at stake, the state as

trustee of those rights was not a party to the action. The

summary and conclusionary nature of the decision of the

issues in Knudson, virtually devoid of reasoning, under-

mines its status as substantial authority. Finally, these

decisions have not been overturned on some minor techni-

cality: to the contrary, our conclusion is based on a studied

analysis revealing that they are wholly in error, failed to

follow prior law on the subject, and misinterpreted the

Legislature’s intention. (See Hart v. Burnett (1860) 15 Cal.

508, 597-612; Brekke v. Crew (S.D. 1920) 178 N.W. 146,

154.)

Hart overturned a “rule of property” affecting the City

of San Francisco’s “magnificant endowment” in public lands

acquired when the city was incorporated. The court’s justi-

fication for its action is particularly appropriate here:

“Must we persevere in these errors, no matter how great,

or how much opposed to justice they may be, even after

new lights, new authorities, and new laws are brought to

our notice, proving these mistakes beyond a doubt? We

cannot believe that any Court would sustain such a doctrine

respecting its decisions.” (15 Cal. at p. 611.)

The consequences of allowing the patently erroneous deci-

sions to stand in the present case would be to deprive the

people of the state of full control over many thousand acres

of tidelands acquired by them at the time of statehood. In

these circumstances, and with the limitations upon reasser-

tion of the publie’s trust rights which we outline below, we

do not doubt that it would be more injurious to the public

interest to perpetuate the error of Anudson and Alameda

Conservation than to overturn those decisions.

Finally, we reach a crucial question: whether to give our

determination full retroactive effect. We note in this con-

38 Appendix

nection that California Fish, decided in 1913, involved

grunts of tidelands purportedly in fee to private parties,

authorized by almost a dozen different statutes enacted

between 1861 and 1872. The extent of the lands involved

in that case was far greater than those authorized for sale

by the 1870 act (see fn. 9, ante), and presumably the im-

provements made by the grantees were substantial. Yet in

that case our court did not hesitate to hold the conveyances

were subject to the public trust. Of course, any improve-

ments made on such lands could not be appropriated by the

state without compensation. (JIlinois Central, 146 U.S. at

p. 455; Pub. Resources Code, § 6312.)

We could, like the court in California Fish, declare that

all grants made under the 1870 act are subject to the public

trust, or we could hold that our decision is prospective only.

We reject both these alternatives. The first would reduce

the value of investments that may have been made in reli-

ance on the decisions we overturn, without necessarily pro-

moting the purposes of the trust; while the second would

render our holding in this case an academic exercise, be-

‘cause the grants were made more than a century ago.

We choose, instead, an intermediate course: the appro-

priate resolution is to balance the interests of the public

in tidelands conveyed pursuant to the 1870 act against those

of the landowners who hold property under these convey-

ances. In the harmonizing of these claims, the principle

we apply is that the interests of the public are paramount

in property that is still physically adaptable for trust uses,

whereas the interests of the grantees and their successors

should prevail insofar as the tidelands have been rendered

substantially valueless for those purposes.

In keeping with this principle, we hold that submerged

lands as well as lands subject to tidal action that were con-

veyed by board deeds under the 1870 act are subject to the

public trust. Properties that have been filled, whether or

Appendix 39

not they have been substantially improved, are free of the

trust to the extent the areas of such parcels are not subject

to tidal action, provided that the fill and improvements were

made in accordance with applicable land use regulations."

Tidelands that have been neither filled nor improved are

not only the most suitable for the continued exercise of

trust uses, but because there is only a remote likelihood

that these parcels may be filled (see 33 U.S.C, § 401 et seq.;

Gov. Code, § 6600 et seq.; Candlestick Properties, Ine. v.

San Francisco Bay Conservation ete, Com. (1970) 11 Cal.

App.3d_ 557, 570-573) the economic loss to the grantees of

such lots is speculative at best and is clearly outweighed

by the interests of the public.'®

An obvious illustration of absolute title is a parcel that

no longer has Bay frontage. Such property is valueless in

its present state for trust uses. Defendants urge us, how-

ever, to include reclaimed but unimproved land with Bay

17. Defendants’ pleadings alleged that plaintiffs acquired no

title whatever by the board deeds and that Berkeley owns the tide-

lands conveyed by those deeds in fee. Acceptance of this claim

would return us to the law as it existed prior to California Fish.

Before that case was decided, grants of tidelands .conveyed in

violation of the trust were held to be either void or voidable.

(Kimball v. Maepherson (1873) 46 Cal. 103, 107; Taylor v. Under-

hill (1870) 40 Cal. 471, 473.) These determinations were modified

in California Fish, which held that lands conveyed in violation of

the trust were subject thereto. The suggestion of defendants that

no title passed by the board deeds is unnecessarily draconian in its

effect. As we point out above, there are means to achieve a sub-

stantial part of the objectives of the public trust by means which do

not eliminate all the property rights of landowners whose prede-

cessors in interest acquired title under the 1870 act.

18. Appleby v. City of New York (1926) 271 U.S. 364, relied

upon by defendants, is distinguishable. There, the city had conveyed

lots below tidewater to the plaintiffs for the specifie purpose of

developing a harbor. Later, the city built piers adjacent to the lots,

and its tenants used the lots for mooring. It was held that under

the laws of New York, the plaintiffs had received fee title to the

lots, and they were thus entitled to an injunction to prevent the

city from using the property for mooring. Since the grants made

to plaintiffs in the present case were not to promote navigation,

their titles, unlike that of the plaintiffs in Appleby, are subject to

the public trust.

40 Appendix

frontage in the areas subject to the trust on the ground

that such property may still be useful for the exercise of

the public trust. To the contrary, we believe that in balan-

cing the interests at stake, the public right in such parcels

may be adequately protected by our holding that only the

tidal portions thereof are subject to the trust, coupled with

the requirement of section 66602 of the Government Code

that maximum feasible public access, consistent with a pro-

posed project, must be provided to the shoreline of the

Bay.”®

We are not unaware that the implementation of our

holding in the manner set forth above makes assumptions

which are not valid in every case. Thus, for example, some

reclaimed land might be eminently useful for trust pur-

poses, and numerous persons who reclaimed or improved

tidelands purchased under the 1870 act may not in fact have

relied on either Knudson or Alameda Conservation. Indeed,

many parcels affected by our decision may have been im-

proved before Knudson was decided in 1915. Nevertheless,

our broad assumptions are justified by the need to avoid

the enormous burden of individual adjudications of such

questions and to preclude clouding the titles of landowners

around the Bay who own filled or improved properties

conveved under the 1870 act.

We appreciate also that there may be some improvements

upon tideland areas, such as docks, in which a landowner’s

reliance interest should be recognized to sono degree. It is

impossible to anticipate in this opinion every conceivable

nuance in the application of the basie principle set forth

19. A number of eases hold or state that the reclamation of

tidelands subject to the public trust does not, without more, ter-

minate the trust. (E.g., Marks v. Whitney, supra, 6 Cal.3d 251,

961: Atwood v. Hammond (1935) 4 Cal.2d 31, 40.) But these cases

did not involve the interests of landowners who had reclaimed tide-

lands in reliance upon decisions that were subsequently overruled.

Appendix 41

above, Individual variations may be revealed subsequently,

requiring further explication of the principles declared

herein through future adjudication.

Let a peremptory writ of mandate issue, directing the

trial court to set aside its order granting plaintiffs’ motion

for partial summary judgment and to proceed in accord-

ance with the views.expressed herein.

Mosk, J.

We Concur:

Birp, C. J.

ToBRINER, J.

NEwMaAN, J.

COPY

City oF BERKELEY Vv. SuPERIOR Court

S.F. 23686

DISSENTING OPINION BY CLARK, J.

Thousands of pleasure boats, freighters, docks, and har-

bor areas frame San Francisco Bay as testimonials to the

wisdom of the Legislature in creating, and this court in

upholding, a “public trust for commerce, navigation, fishing

and related uses.” (Ante, p. .....*)

Principal trust purposes are promotion of commerce,

navigation and fishing, and not maintenance and protection

of tidelands as some would have us believe.

For over 100 years California citizens have progressively

improved the bay edges, demonstrating their reliance on

the legislative acts before us today as having conveyed

trust-free title. Likewise, state and local governments and

*Majority opinion, page 2.

42 Appendix

the public at large have acquiesced in and endorsed those

activities, revealing they too recognize the law as author-

izing trust-free conveyances. Given the contemporaneous

and longstanding construction of the law by public author-

ity, private individuals and our courts, it is presumptuous

for the majority of this court to now tell us the Legislature

never intended to permit such progress.

Persons lacking vision and understanding 130 years ago

might have argued that trust purposes could not be fur-

thered in the Bay Area by terminating the trust as to a

substantial portion of the tidelands.

However, room for argument no longer exists. History

has taught its lesson, and there is overwhelming proof that

terminating the trust as to part of the tidelands and sub-

merged lands further trust purposes by permitting public

utilization of the bay. As early as 1854, this court upheld

termination of the tideland trust to further trust purposes

stating it was “so self-evident that it needs no argument

to prove” that in the bay, some land had to be filled in order

to build a port of sufficient depth for ships. (Eldridge v.

Howell (1854) 4 Cal. 80, 84.)

It is conceivable that even if the trust were not termi-

nated, similar widespread utilization of the bay for trust

purposes might have been achieved by private or govern-

ment facilities. But such speculation is unnecessary. Termi-

nation of the trust as to large portions of tideland—

affirmed by the court in Knudson v. Kearney (1915) 171

Cal. 250—has resulted in numerous facilities permitting

widespread public use of the bay’s resources.

Because the trust purposes have heen fulfilled by termi-

nation of the trust—particularly through the Legislature’s

policy encouraging dredging and filling tidelands for public

and private harbors—it is unnecessary to guess whether

Appendix 43

those purposes would have been fulfilled had the trust not

been terminated,

Recognizing the Legislature’s success in promoting trust

purposes—a matter as obvious in 1915 to the justices who

unanimously decided Knudson as it is today—I am satisfied

that, as demonstrated below, proper application of trust

principles requires reaffirmance of that decision.

It is well established that tidelands and submerged lands

owned by the state are held in trust for the public purposes

of navigation, commerce and fisheries, (City of Long Beach

v. Mansell (1970) 3 Cal. 3d 462, 482; People v. California

Fish Co. (1913) 166 Cal. 576, 584.) Tidelands subject to the

trust may not be alienated into absolute private ownership;

an attempted conveyance of such land transfers “only bare

legal title,” and the property remains subject to the public

trust easement. (Jd.) Cases have established that the trust

is a limitation on governmental as well as private reclama-

tion activities. (City of Long Beach v. Mansell, supra, 3

Cal.3d 462, 482-486; Atwood v. Hammond (1935) 4 Cal. 2d

31, 38; City of Oakland v. Williams (1929) 206 Cal. 315,

327-328, 330-331.) Additionally, oil and gas leases to tide-

lands and submerged lands have been approved on grounds

there would be no serious impairment of trust purposes and

that public policy warranted development of mineral re-

sources lying beneath submerged lands. (Boone v, Kings-

bury (1918) 206 Cal. 148, 192-194.)

Conversely, cases have indicated that reclamation for

general purpose county and municipal buildings and gov-

ernmental housing projects does not further trust purposes.

(City of Long Beach v. Mansell, supra, 3 Cal. 3d 462, 482;

Atwood v. Hammond, supra, 4 Cal.2d 31, 37 et seq.; Ala-

meda Conservation Assn. v. City of Alameda, supra, 264

Cal.App.2d 284, 286.) The main effect of the rulings is that

44 Appendix

under the trust tidelands may be filled and used for com-

mercial and recreational purposes but not residential pur-

poses. :

Apart from advancing trust purposes through reclama-

tion, the “ ‘state in its proper administration of the trust

may find it necessary or advisable to cut off certain tide-

lands from water access and render them useless for trust

purposes. In such a case the state through the Legislature

may find and determine that such lands are no longer useful

for trust purposes and free them from the trust, When

tidelands have been so freed from the trust—and if they

are not subject to the constitutional prohibition forbidding

alienation—they may be irrevocably conveyed into absolute

private ownership.’ (City of Long Beach v. Mansell, supra,

3 Cal.3d 462, 482.)” (Italics added.) (Marks v. Whitney

(1971) 6 Cal.3d 251, 260; see Mallon v. City of Long Beach

(1955) 44 Cal.2d 199, 206.)

In the leading case of People v. California Fish Co.,

supra, 166 Cal. 576, the court recognized: “It is also settled

that in the administration of this trust when the plan or

system of improvement or development adopted by the state

for the promotion of navigation and commerce cuts off a

part of these tide lands or submerged lands from the public

channels, so that they are no longer useful for navigation,

the state may thereupon sell and dispose of such excluded

lands into private ownership or private uses, thereby

destroying the public easement in such portion of the lands

and giving them over to the grantee, free from public con-

trol and use, On this subject in Jllinois C, Ry. Co. v. Illinois,

146 U.S. 452 [36 L.Ed. 1018, 13 Sup.Ct.Rep. 118, the court

said: ‘It is grants of parcels of lands under navigable

waters, that may afford the foundation for wharves, piers,

docks and other structures in aid of commerce, and grants

Appendix 45

of parcels which, being occupied, do not substantially impair

the public interest in the lands and waters remaining, that

are chiefly considered and sustained in the adjudged cases

as a valid exercise of legislative power consistently with

the trust to the public upon which such lands are held by

the state.’ (Ward v. Mulford, 32 Cal. 372; Taylor v. Under-

hill, 40 Cal. 473; Kimball v. Macpherson, 46 Cal. 107, 108;

Oakland v. Oakland W. I’. Co., 118 Cal. 184 [50 Pae. 277];

People v. Kerber, 152 Cal. 733 [125 Am.St.Rep. 93, 93 Pace.

878]; Messenger v. Kingsbury, 158 Cal. 613 [112 Pac. 65].)

The most striking instance of the exercise of this power of

absolute disposition of such tide or submerged lands by the

State of California is found in the laws providing for the

improvement of the waterfront of San Francisco. By these

laws the water-front line was fixed, cutting off from naviga-

tion a large area of land which was subject to the daily flux

and reflux of the tides and part of the lands always under

water, upon which line a sea-wall was constructed, and

the area landward of this wall was subsequently surveved

into lots and streets, sold into private ownership and filled

in for private use. This area now constitutes a large por-

tion of the business section of San Francisco, The following

cases recognize the authority of the state to make such

absolute disposition of these particular lands: Eldridge v.

Cowell, 4 Cal. 87; Guy v. Hermance, 5 Cal. 74 [63 Am.Dee.

85]; Hyman v. Read, 13 Cal. 444; Holladay v. Frisbie,

15 Cal. 634; Wheeler v. Miller, 16 Cal. 125; Seabury v.

Arthur, 28 Cal. 142; People v. Klumpke, 41 Cal. 277;

Knight v. Haight, 51 Cal. 171; Friedman v. Nelson, 53 Cal.

589; Le Roy v. Dunkerly, 54 Cal. 459; Knight v, Roche,

56 Cal. 21; People v. Williams, 64 Cal. 498; San Francisco v.

Straut, 84 Cal. 124 [24 Pac. 814].” (166 Cal. at pp. 585-586.)

The instant program was one of three instituted by the

46 Appendix

Legislature to convey tidelands and submerged lands. The

first terminated the trust to establish part of the San

Francisco, Oakland and other city waterfronts on San

Francisco Bay. (Eldridge v. Cowell, supra, 4 Cal. 80; Guy v.

Hermance (1855) 5 Cal. 73; Oakland v. Oakland Water-

Front Co, (1897) 118 Cal. 160, 185, 201; see Shirley v.

City of Benicia (1897) 118 Cal. 344, 346.) Under this pro-

gram, the Legislature adopted a series of so-called “special

acts” delineating a permanent waterfront line, approving

maps setting forth streets and blocks for tidelands and

submerged lands located inshore of the line, authorizing

sales of the lands, and confirming private titles held in the

lands. (E.g., Stats. 1851, ch. 4, p. 307; Stats, 1853, ch. 160,

p. 219; Stats. 1855, ch. 181, p. 226.) Purchasers filled the

property conveyed and deepwater ports were ultimately

established.

In the first of the cases holding that conveyances pur-

suant to the special acts were free of the tidelands trust,

this court in 1854 recognized: “In the plan of the City of

San Francisco, the survey into blocks, lots and streets,

extended into the tide waters in front of the City, the object

of which was to reach a sufficient depth of water, on the

land line, for the convenience of shipping. It was necessarily

anticipated that the water lots would be filled up to a level

suitable for building or land carriage. That this was per-

fectly legitimate, in the establishment of a seaport town,

is so self-evident that it needs no argument to prove it.”

(Eldridge v. Cowell, supra, 4 Cal. 80, 87.) Our court held

that because the state had statutorily “recognized” the

city plan, the defendant who had purchased and filled his

lot was free of the trust. (/d.)

The second program was one of ,zeneral disposition,

statewide in scope from the Oregon line to Mexico, excepting

Appendix 47

San Francisco Bay. The statutes did not establish water-

front lines or otherwise attempt to determine tideland or

harbor development. Almost all of the tidelands encom-

passed were unsuitable for harbor development. In People

v. California Fish Co., swpra, 166 Cal. 576, we held that all

tidelands and submerged lands conveyed pursuant to that

program were subject to the trust because no enabling

statute indicated a legislative intent to promote or regulate

navigation, commerce, and fishing.

The third program involving the lands in the instant

ease was established by the acts of 30 March 1868 (Stats.

1867-1868, ch. 543, p. 716) and 1 April 1870 (Stats. 1869-

1870, ch. 388, p. 541). By then the Legislature was obviously

aware of (1) this court’s decisions holding the special acts

terminated the trust and (2) the success of the special acts

in furthering trust purposes. The 1868 and 1870 acts were

intended to give the remainder of San Francisco and

nearby communities the same opportunities to develop

harbors, commerce, and fishing facilities as had been given

to portions of San Francisco and Oakland by the special

acts.

The 1868 act created the Board of Tideland Commission-

ers (BTLC), and empowered it to survey and sell at

public auction certain salt marsh, tide and submerged

lands within San Francisco. The act directed the BTLC

to establish a waterfront line and to reserve lands for

“streets, docks, piers, slips, canals, drains or other use

necessary for the public convenience in the purposes of

commerce.”

The 1870 act “supplementary to and amendatory of”

the 1868 act extended the BTLC’s jurisdiction to lands

within five miles of San Francisco which were covered by

less than nine feet of water at low tide. BTLC was directed

48 Appendix

to survey the land, sell lots, establish two 600-foot wide

canals, and reserve canals and basins wherever they deemed

necessary “for the purpose of drainage, navigation and the

wants of commerce.” All lot subdivisions required approval

by a state board composed of the Governor, the Surveyor-

General, and the Controller. With respect to lands adjacent

to the Berkeley area, BTLC divided about one-third into

lots and reserved the remaining two-thirds to “navigation

and the wants of commerce.”

It is estimated that while 88 square miles of the bay were

under its jurisdiction, BTLC subdivided for sale approxi-

mately 36 square miles, It is also estimated that only 12

square miles have been filled and that about 6 square miles

have been improved by homes, businesses and industries

valued at over $2.5 billion. Included are substantial portions

of San Francisco, Corte Madera, Richmond and other com-

munities.®

Knudson held BTLC conveyances pursuant to the 1868

and 1870 acts, like conveyances pursuant to the “special

acts,” are trust-free conveyances, Relying upon A nudson,

several subsequent cases have reaffirmed that conveyances

pursuant to the 1868 and 1870 acts are free of the trust.

(Marks v. Whitney, supra, 6 Cal.3d 251, 258, fn. 6; City

of Long Beach v. Mansell, supra, 3 Cal.8d 462, 485, fn. 20;

Alameda Conservation Assn, v. City of Alameda, supra,

264 Cal.App.2d 284, 287.)

Claiming Knudson is contrary to California Fish, and is

based on a mischaracterization of the 1868 and 1870 acts,

8. Lands sold by the BTLC appear to include: Parts of the

Marina District in San Francisco; lands extending south from

Second Street in San Francisco to San Francisco Airport; Marin

County from Sausalito north to Hamilton Air Force Base, including

parts of downtown Corte Madera and San Rafael; the East Bay

from Oakland north to San Pablo and from Oakland south to San

Leandro, including portions of Richmond and Emeryville, among

other cities.

Appendia 49

petitioners urge us to repudiate Knudson, We should reject

the invitation.

In Knudson, plaintiff sued to quiet title to a two-acre

parcel of tideland, arguing his occupancy conferred a title

superior to that of defendant, who held title under the 1868

and 1870 acts. Plaintiff argued under California Fish that

defendant’s title was subject to the public trust and title

by possession prevailed over such a limited private title.

The holding in California Fish was distinguished because

it involved grants made under the general disposition pro-

gram, which was not enacted in furtherance of trust pur-

poses. In contrast, the court asserted it was “obvious” the

1868 and 1870 acts were enacted in aid of navigation. In

support of this position, the court pointed out the acts pro-

vided for improving San Francisco Bay “so as to make it

more suitable for navigation” by delineating the boundaries

of navigable waters and fixing the waterfront line with the

BTLC empowered to determine what land was required

for “streets, docks, piers, slips, canals, drains or other uses

necessary for public convenience,” the surplus to be sold to

the public in absolute fee, (171 Cal. at p. 251.)

The Knudson court correctly construed the 1868 and 1870

acts as providing for conveyances free of the trust. As a

general rule, the legislative determination that land shall

be severed from the publie trust “is conclusive upon this

court in the absence of evidence indicating that the aban-

donment of the public trust will impair the power of sue-

ceeding legislatures to protect, improve, and develop the

public interest in commerce, navigation, and fisheries.”

(Mallon vy. City of Long Beach (1955) 44 Cal.2d 199, 207;

County of Orange v. Hiem (1973) 30 Cal.App.3d 694, 717.)

The Knudson court reasonably interpreted the 1868 act

as demonstrating a legislative intent to further the public

interest in commerce, navigation and fishing, It is evident

50 Appendix

the Legislative exhibited concern for the public trust when

it adopted that plan to fix the boundaries of navigable

waters, delineate the waterfront line and sell for private

use land that BT'LC determined was not required for docks,

piers, slips or other purposes of navigation. Given the de-

tail of the 1868 act with respect to the BTLC’s duties in

planning the harbor area, it follows, as the Knudson court

concluded, the acts “were enacted in aid of navigation and

for the purpose of providing improvement of San Francisco

Bay, so as to make it more suitable for navigation.” (171

Cal. at p. 253.)

The 1870 act was expressly enacted “supplementary to

and amendatory of” the 1868 act and, as such, was promul-

gated with the same concern toward trust purposes reflected

in the earlier act. For this reason, I must reject the ma-

jority’s reliance on some minor differences between the

acts as a basis for distinguishing them.*

Three additional factors fortify the conclusion that con-

veyances by the BTLC pursuant to the 1868 and 1870 acts

were free of the trust. The historical context demonstrates

the suecess of the “special acts” in establishing harbor fa-

cilities through the combined use of public and private

capital. The 1868 and 1870 acts were obviously patterned

after the earlier “special acts.” The difference is that in

the earlier “special acts” the Legislature itself fixed the

waterfront lines and provided for retention of property

for navigation, commercial, and fishing purposes. Under

the 1868 and 1870 acts, the Legislature delegated to the

BTLC the duty to fix the waterfront line and to determine

which properties were useful and to be retained for trust

purposes, (As to the 79 acres involved in the present case,

4. Although the majority purport in places to separate the 1868

and 1870 acts, in other places they are grouped. For example, the

Attorney General’s opinion relied upon related to the 1868 act but

is used to construe the 1870 act.

Appendix 51

the parallel to the San Francisco waterfront is complete.

Like the San Francisco piers, the Berkeley marina is on

the bayward side of the conveyed and filled property.)

Secondly, the claim of conflict between California Fish,

the main case relied upon by petitioners, and Knudson must

be considered in light of the fact that both opinions were

authored by Justice Shaw, that Knudson was decided 21

months after California Fish, and that six of the seven

justices participating in California Fish participated in the

unanimous determination in Knudson, The 66 pages of ma-

jority, concurring, and dissenting opinions in California

Fish and companion cases by three justices demonstrate

their scholarly knowledge of the trust doctrine, and I must

reject the claim that our court in Knudson was not fully

aware of the doctrine. Far from indicating a lack of under-

standing of the issue, the brevity of the Knudson opinion

indicates that the able justices believed determination of

the issue simple and clear.

Thirdly, the Anudson court was certainly aware that in

the 45 years between adoption of the legislation and its

decision, thousands of private parties were openly and

notoriously dredging, filling, improving, and using tidelands

indicating their understanding the legislation permitted

these activities. The legislative, executive, and local gov-

ernments, by acquiescing and encouraging these activities,

reflected the same construction of the legislation. Today’s

remarkable rejection of such contemporaneous and long-

standing construction presents ominous possibilities for

future use of this rule of construction. (Cf. In re Waters

of Long Valley Creek Stream System (1979) 25 Cal.3d

339, 349, fn. 4; Rivera v. City of Fresno (1971) 6 Cal.3d

132, 140; Coca Cola Co. v. State Bd. of Equalization (1945)

95 Cal.2d 918, 921-923; Whiteomb Hotel, Inc. v. California

Employment Comm, (1944) 24 Cal.2d 753, 756-758 ; Worth-

52 Appendix

ington v. Unemployment Insurance Appeals Bd. (1976) 64

Cal.App.3d 384, 389.)

The majority assert that the acts impair the power of

succeeding legislatures to protect, improve, and develop

the public interest in commerce, navigation, and fisheries.

There is, however, no showing to this effect. The numerous

public-private developments throughout the bay tell us the

contrary—emphasizing the wisdom of the legislative plan

to permit private and public bay development. Specifically,

the 1868 and 1870 acts did not prevent the City of Berkeley

from developing its marina on the bayward side of prop-

erty conveyed by the Tideland Commissioners to defend-

ants’ predecessors.

Arguing that the Legislature never intended to terminate

the trust by the 1868 and 1870 acts, the majority rely pri-

marily on a report of the Attorney General. (Append. to

Senate and Assembly Journals, vol. 2, 17th sess. 1868.)

That report briefly discussed how the state’s title in the

tidelands at issue would “vest . .. in others through the

action of the [Board of Tideland] Commissioners.” (Jd.,

at p. 6.) Reliance is placed on the following language: “The

State, in making this disposition of those lands, passes the

title with the same disability which obtains with the State.

Her purchaser can acquire from the State no such title as

will enable the owner or holder of them to use them to

the detriment, destruction or prejudice of commerce or

navigation. For such uses the public have an easement, and

the Government retains and has the authority to enforce

the right.” (7d.; italics added. )

The Attorney General’s statement fails to establish leg-

islative intent to continue the tideland trust as to lands

conveyed pursuant to the acts. By noting the ““Governinent”

retains the right to enforce an easement, the Attorney

General was referring to the United States Government,

not the state government. Earlier in the Attorney General’s

Appendix 53

report, and in several places in a second opinion submitted

to the Assembly Committee, the United States Government

is referred to as the “Federal Government” or the “General

Government.” Nowhere in either report is the State of

California called the “Government”; rather, both the At-

torney General and Senator Creed Haymond, author of

the second report, consistently speak of California as “the

State” or the “State of California.” |

Thus, it appears the Attorney General was reiterating

the established rule of law that although the state has ab-

solute power to convey land underlving navigable water,

state transfer does not terminate the federal right to regu-

late obstruction to navigation. (Colberg Ine. v. State of

California ex rel. Department of Public Works (1967) 67

Cal.2d 408, 416.) He was not advising the Legislature that

the state was retaining an easement in the tidelands at

issue. Senator Creed Haymond’s report supports such in-

terpretation of the legislative intent. He advised the Assem-

bly Committee: “[T]t follows that the State of California

is the owner of the shores and soils under the navigable

waters within her limits; that she holds the same by virtue

of her state sovereignty, with full power to alienate them,

subject only to the right of conservation resting in the Gen-

eral Government.” (Report to the Special Committee of

the Assembly in Relation to San Francisco Tide Lands, p. 8,

Append. to Senate and Assembly Journals, vol. 2, 17th

sess. 1868.)

Tt has been suggested both acts reveal little public pur-

pose beyond raising revenue for the state and that the 1870

act disposed of public land preserving only minimal navi-

gational access. (See Comment (1972) 60 Cal.L.Rev. 225,

251-252.) However, there is little support for such an in-

terpretation. In the report discussed above, references to

revenue from land sales were not made with respect to a

54 Appendix

sole purpose of land disposition; rather, the report con-

cluded the revenue was a collateral, albeit appreciated, bene-

fit of the enactments.5

It is urged that even if conveyances pursuant to the 1868

and 1870 acts passed trust-free title, grantees and their

successors were required to reclaim their land within a

reasonable time or suffer reinstatement of the trust. Nothing

in the deed or statute warrants implication of such a con-

dition subsequent. Moreover, conditions subsequent are dis-

favored because they may result in forfeiture. (MacDonald

Properties, Ine. v. Bel-Air Country Club (1977) 72 Cal.

App.3d 693, 699.) The condition subsequent would cause

manifest injustice to those who—relying on Knudson—

filled land and built upon it, and those who paid real prop-

erty taxes over the past 100 years.

The principle case relied on by the majority to establish

the condition subsequent theory (People v. Williams (1884)

64 Cal. 698) holds merely that an offer to dedicate land for

construction of specified improvements is not effective to

create a public easement until the offer has been accepted

and the improvements made. This and other cases cited

by the majority furnish no basis for concluding all grants

of tidelands are necessarily subject to conditions subsequent.

5. After a lengthy discussion of the navigational purposes of

the tideland trust, the state’s power to terminate the trust, and the

nature of a private owner’s possession of such land after sale, Sena-

tor Haymond ended his report with a brief statement concerning

revenue: “If rumor is to be credited, these lands have been a fruitful °

source of corruption and have been made the foundation of gigantic

lobby schemes—the State has been despoiled of her interest in

valuabie portions of them, and the time has arrived that an end

should be put to schemes that grow out of their retention by the

State. Whilst the Legislature has the power to give them away lot

by lot to private parties, it has not the moral right to so dispose of

them. Our State is burdened with a debt of five millions of dollars

and the people are weighed down by taxation. [{]] If these lands

are sold under the provisions of the Farish bill, the State will re-

ceive into her Treasury more than a million of dollars.’’ (Report,

supra, at p. 10.)

Appendix 55

CONCLUSION

We should reaffirm the holding that conveyances pursuant

to the 1868 and 1870 acts passed title free from the trust.

This does not suggest that owners of submerged lands may

reclaim their property free from pertinent federal, state

and local regulation. Tidelands—whether free or subject to

the trust—remain subject to regulation as to whether they

may be filled (Gov. Code, § 66600 et seq.; People ex rel.

S.F. Bay ete. Com. v. Town of Emeryville (1968) 69 Cal.2d

533, 544; Candlestick Properties, Inc. v. San Francisco Bay

Conservation ete. Com. (1970) 11 Cal.App.3d 557, 570-573),

and while the lands remain submerged or become flooded by

navigable waters, they are subject to the public’s right to

fish and pass over them. (Bohn v. Albertson (1951) 107

Cal.App.2d 738, 748 et seq.)*®

Rather than condemning the Legislature’s fundamental

policy encouraging private parties to dredge and fiii tide-

lands to permit public and private harbor development,

we should recognize the determination greatly furthered

the purposes of the trust. The bay has been developed

permitting widespread public access according to long

settled rules. We should not now attempt to impeach those

rules, the legislative determination establishing them, or

this court’s affirmance of them. We should embrace our

heritage and be thankful for it.

6. My conclusion that we should adhere to Knudson requires

denial of mandate, and it is unnecessary to reach the alternate

ground relied upon by the trial court in granting the motion for

partial summary judgment. Although the parties had not raised

the matter, the trial court coneluded that the state was collaterally

estopped to claim that conveyances pursuant to the 1868 and 1870

acts were not free of the trust. The court relied upon Alameda

Conservation Assn. v. City of Alameda, supra, 264 Cal.App.2d

284, 287, where the state suecessfully took the position that Knudson

should be followed and such conveyances were free of the trust.

56 Appendix

Public policy as to development of San Francisco Bay

may have changed as the majority suggest, but this fur-

nishes no basis for impeaching the legislative determina-

tions of 1868 and 1870 to terminate the trust as to portions

of the tidelands and submerged lands in furtherance of trust

purposes. The program has been too successful to be con-

demned by judicial fiat, and the need to promote commerce

and harbor development is as great now as ever.

Moreover, it is for the Legislature and not this court to

determine policy. The Legislature has made it clear that

“private investment in shoreline development should be

vigorously encouraged” in San Francisco Bay. (Gov. Code,

§ 66605.1.)7

Mandate should be denied.

Cuark, J.

WE Concur:

RicHarpson, J.

MANUEL, J.

7. Government Code section 66605.1 provides: “The Legislature

finds that in order to make San Francisco Bay more accessible for

the use and enjoyment of people, the bay shoreline should be im-

proved, developed and preserved. The Legislature further recog-

nizes that private investment in shoreline development should be

vigorously encouraged and may be one of the principal means of

achieving bay shoreline development, minimizing the resort to tax-

payer funds; therefore, the Legislature declares that the commission

should encourage both public and private development of the bay

shoreline.”

Section 66606 provides: “The Legislature hereby finds and de-

clares that this title is not intended, and shall not be construed,

as authorizing the commission to exercise its power to grant or

deny a permit in a manner which will take or damage private

property for public use, without the payment of just compensation

therefor. This section is not intended to increase or decrease the

rights of any owner of property under the Constitution of the State

of California or the United States.”

APPENDIX “B-4”

Denial of Petition for Rehearing

(California Court of Appeals—

Filed July 28, 1979)

Appendix 57

Court of Appeal of the State of California

In and for the

First Appellate District

Division Four

City or BERKELEY, ETC., et al.,

Petitioners,

vs.

No. 42466

Superior Court, County oF ALAMEDA, Superior Court

Respondent, No. 422942

Santa Fr Lanp Improvement Company,

ETC., et al.,

Real Parties in Interest. |

BY THE COURT:

The petition for rehearing filed in the above entitled

cause is hereby denied.

Dated JUL 28 1978

RATTIGAN, J. ACTING P.J.

APPENDIX “B-5”

Opinion and Order Issuing Peremptory Writ of

Mandate (California Court of Appeals—

June 30, 1978)

Appendix 59

FILED

JUN 30 1978

In the Court of Appeal of the State of California

First Appellate District, Division Four

Crry oF BerKELEY, a political subdivision of |

the State of California, and the Stare or

CaLiFoRNIA, acting by and through the

Strate Lanps Commission,

Petitioners,

V8. . .

1 Civil 42466

Superior Court oF THE STATE OF CALIFORNIA (Sup. Ct.

FOR THE County oF ALAMEDA, No. 422942)

Respondent,

Santa Fr Lanp Improvement Company, a

California corporation, and Grorce W.

Murpry,

Real Parties in Interest.

This original proceeding in mandamus involves a conflict

between public and private claims regarding the ownership

of a tract of land located on the shoreline of San Francisco

Bay. Petitioners, the City of Berkeley and the State of

California, are the defendants in a consolidated action pend-

ing in respondent court.’ Real parties in interest George W.

Murphy and Santa Fe Land Improvement Company, a

corporation, are the plaintiffs in the action. They moved for

1. We occasionally refer to petitioners as the “City” and the

“State,” respectively. The State has appeared, in respondent court

and in this proceeding, through the State Lands Commission.

60 Appendix

summary judgment upon certain issues tendered and joined

in the pleadings. Respondent court granted their motion

in an order which has, or portends, the effect of confirming

absolute title to the tract in real parties. Petitioners seek

a peremptory writ of mandate requiring the court to set

the order aside. By reason of the course this proceeding has

heretofore taken, the remedy lies.?

A preliminary recital of relevant geographical and histor-

ical factors is in order.* San Francisco Bay extends easterly,

and for substantial distances north and south, from its

entrance at the Golden Gate. The City, which was incorpo-

rated in 1878 (stats. 1877-78, ch. 565, p. 888), is in Alameda

County and on the east side of the northern reach of the

Bay. Its boundaries include about two miles of shoreline

on the Bay, the familiar upland area of the City to the

east, and a large submerged area of the Bay floor lying to

the west. The tract in dispute is entirely within the City,

at and immediately offshore from the shoreline.

2. The petition for a writ of mandate was initially filed in the

Supreme Court, which transferred it to this court. We denied it.

The Supreme Court granted a petition for hearing, transferred

the cause to itself, and retransferred it to this court with directions

to issue an alternative writ of mandate. We complied. It has thus

been determined that petitioners are without an adequate remedy

in the ordinary course of law. (People ex rel. Younger v. County

of El Dorado (1971) 5 Cal.38d 480, 492; 5 Witkin, California

Procedure (2d ed. 1971) Extraordinary Writs, § 94, pp. 3869-

3870.)

3. This recital, and others which follow, involve a wide range

of historical and geographical matters which are subject to judicial

notice. Some of them were called to the attention of respondent

court in the proceedings upon real parties’ motion for summary

judgment. Others have been cited in the present proceeding. We

consequently resort to judicial notice on a broad scale throughout

this opinion. (Evid. Code, §§ 451 — (f)], 452 [subds. (g).

(h)], 453, 459.) The parties have been placed on notice of our

intention to do this.

Appendix 61

Because the Bay is an estuary of the Pacific Ocean, its

waters are tidal. The lands which now include the disputed

tract were consequently tidelands in part, and partly sub-

merged lands, in their natural condition.* They were in

that condition when the State was admitted to the Union

in 1850, and they were not then held in private ownership.

The State accordingly assumed their “ownership” at that

time as an incident of its sovereignty, and subsequently

held them in trust for public purposes traditionally defined

in terms of navigation, commerce and fishing. (City of Long

Beach v. Mansell, supra, 3 Cal.3d 462 at p. 482.) The prin-

cipal issue joined in the pleadings before us, and addressed

by the order under review, is whether the tract in dispute

is presently held subject to this so-called “tideland trust.”

The pleadings emerged from a complicated procedural

sequence which need not be recited, For purposes of this

proceeding, they include separate amended complaints

filed by the respective real parties and separate answers to

each by the City and the State. Their length and detail pre-

clude reproduction in full, but we describe them as perti-

nent,

The allegations of the amended complaints may be sum-

marized as follows: Real parties, between them, own a

described 79-acre tract of land located at the Berkeley

shoreline. By laws enacted in 1868 and 1870, the Legislature

“authorized” the State, through its Board of Tide Land

Commissioners, to convey certain tidelands and submerged

lands into private ownership “free of the trust for com-

4. “Tidelands,” properly speaking, are those lands lying between

the lines of mean high tide and mean low tide. “Submerged lands”

are properly lands which lie seaward of mean low tide and are not

uncovered in the ordinary tidal ebb. (City of Long Beach v. Mansell

(1970) 3 Cal.8d 462, 478, fn. 15.)

62 Appendix

merce, navigation and fishing” described above.’ The land

which now comprises the 79-acre tract was conveyed to real

parties’ predecessors in interest, by the Board of Tide

Land Commissioners, pursuant to both laws. Consequently,

and by devolution, real parties now own the tract free of

the trust. It has been filled since their predecessors in inter-

est acquired it. The City and State claim an interest in it and

dispute real parties’ claims to it. On the strength of these

allegations, real parties seek a decree quieting their title

and declaratory relief to the same effect.

In their answers, the City and the State generally deny

that real parties own the 79-acre tract as alleged in the

amended complaint. The City alleges as an affirmative de-

fense that the tract is “subject to the... state navigational

servitudes and public trust.” The State pleads a similar

affirmative defense, but in more explicit terms and alter-

natively, alleging as follows: The City owns the tract in

fee simple, but “subject to the public trust for purposes

of commerce, navigation, fisheries, recreational and envi-

ronmental uses,” by reason of a statory grant made to it

by the Legislature in 1913 and amended in subsequent stat-

utes.® In the alternative, the tract is “burdened with a pub-

5. Real parties expressly cited the 1868 and 1870 laws in their

amended complaints. The first is cited as the “act of March 30,

1868,” and is entitled “An act to survey and dispose of certain

salt marsh and tide lands belonging to the State of California.”

(Stats. 1867-68, ch. 543, p. 716.) The second, cited as the “act of

April 1, 1870,” is entitled “An act supplementary to and amenda-

tory of” the first one, (Stats. 1869-70, ch, 388, p. 541.) We refer to

them on occasion as the “1868 act” and the “1870 act,” respeec-

tively.

6. In the first of these enactments, all of which the State

expressly cited, it had “granted to the City of Berkeley, a munic-

ipal corporation of the State of California, . .. all the right,

title and interest of the State of California, held by said state by

virtue of its sovereignty, in and to all the salt marsh, tide and

subsnerged lands, whether filled or unfilled, within the present

Appendix 63

lic-trust easement for the benefit of the People of the State”

and for the same purposes, “which easement is administered

by the City” pursuant to the 1913 grant as amended.

Real parties’ motion was for “partial summary judg-

ment” to the effects (1) that the 79-acre tract had been

conveyed by the State, “free of the public trust for com-

merce, navigation and fishing,” pursuant to the 1868 and

1870 acts (see fn. 5, ante) and (2) that the City had “re-

ceived no title to or public trust interest in” the tract by

virtue of the 1913 grant as amended. (See fn. 6.)

In support of the motion, real parties produced and au-

thenticated a series of deeds by which the Board of Tide

Land Commissioners had conveyed to their predecessors in

interest, pursuant to the 1868 and 1870 acts, “all the right

title and interest of the State of California in and to” an

array of lots described by reference to a recorded map. The

deeds had been executed in various years between 1872 and

1875, inclusive. It was also established by declaration that

the lots described in them included the disputed 79-acre

tract.

The State filed an opposing declaration, and documenta-

tion, which showed that part of the full 79-acre tract had

been reclaimed and filled since the execution and delivery

of the 1872-1875 conveyances. These documents also sum-

marized the activities of the Board of Tide Land Commis-

sioners, pursuant to the 1868 and 1870 acts, as they had

affected the tidelands and submerged lands which now

eomprise the tract, other such lands in the immediate

boundaries of said city, and situated below the line of mean high

tide... , to be forever held by said city . .. in trust” for

specified purposes and upon explicit conditions. (Stats. 1913, ch.

847, §1, p. 705 et seq.) The later enactments cited made various

changes in the purposes and conditions of the 1913 grant, but not

in the language just quoted. (Stats. 1915, ch. 534, p. 901; stats.

1917, ch. 596, p. 915; stats. 1919, ch. 517, p. 1089; stats. 1961, ch.

2180, p. 4516; stats. 1963, First Ex. Sess. 1962, ch. 55, p. 343.)

64 Appendix

vicinity, and still others located elsewhere in the Bay.

The order granting real parties’ motion was embodied

in a memorandum decision filed by respondent court. The

court reviewed the matters shown on the motion, and stated

the principal ground for granting it, in this language:

“Plaintiffs move for partial summary judgment on the

ground that they own free and clear of the public trust for

commerce, navigation and fisheries 79 acres of former

[sic] tide and submerged lands conveyed to their prede-

cessors in interest pursuant to the act of March 30, 1868,

... and the supplementary act of April 1, 1870.... The

tract in question... [is] ...in the City of Berkeley, and

all but a fraction of an acre of it has been filled. Approxi-

mately one-third of the tract lies between the 1870 lines of

mean high tide and mean low tide and the remainder as of

that time was submerged land... . For the reasons herein-

after stated pa

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