Petition — Santa Fe Land Improvement Co. v. City of Berkeley
Supreme Court brief1980
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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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