# Petition — Santa Fe Land Improvement Co. v. City of Berkeley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2579%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 840 ## Text Gupreme Court, U. &’ FILED JUN 19 1980 In THE : Supreme Court of the United RODAK, JRay CLERA Octoser TERM, 1979 “ a ees iy WO Masccneanes Santa Fe Lanp Improvement Company, a California cor- poration, Petitioner, vs. City or BERKELEY, a political subdivision of the State of CairorniA, and the State or Cauirorni, acting by and through the State Lanps Commission, Respondents. Petition for a Writ of Certiorari to The Supreme Court of the State of California Epaar B. WasHBURN One Embarcadero Center Suite 2407 San Francisco, CA 94111 (415) 981-2121 Counsel for Santa Fe Land Improvement Company, Petitioners Of Counsel: WasuHsBurn, Kemp & WaGENSEIL One Embarcadero Center Suite 2407 San Francisco, CA 94111 (415) 981-2121 SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105 INDEX Page OER NEAT TIT LE NE EE NT OEE 1 tll deenaeehiasionnion 2 II i os aa cata aascaeeeencoatnies 3 Constitutional Provisions and Statutes Involved ........ 4 I ia css dceonevemnenesiinasnncicee 4 Reasons For Granting the Writ ....................--:-scs--ssecceees 11 1. The California Supreme Court’s Construction of Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892), as Establishing Federal Common Law Limitations Upon the Power of California to Au- thorize Private Ownership of Lands Beneath Navigable Waters Creates an Irreconcilable Con- flict With This Court’s Decision in State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. I pants ainda peeled hand saoaniaconcinpntininsscnaiat 11 2. The Decision of the California Supreme Court, by Overruling a Settled Rule of State Law, Has Taken Santa Fe’s Property Without Due Process of Law or Just Compensation..................2..2.c.-cceecese0- 16 AR RSS Ye AEN TE SN AEA SARC * Prec a 20 il Appendix Appendix Appendix Appendix Appendix Appendix Appendix Appendix Appendix INDEX Page “A-1”— Act of March 30, 1868, Cal. Stats. pS A- 3 “A-2”— Act of April 1, 1870, Cas. Stats. 1869-1870, ch. 388 ..............-2-.c-c00-0-- A- 9 “B-1”—Denial of Petititn for Rehearing (California Supreme Court— ae A-13 “B-2”— Modification of Opinion (Califor- nia Supreme Court—Filed March Nee nnn cscenece A-15 “B-3”—Opinion and Order Issuing Per- emptory Writ of Mandate (Cali- fornia Supreme Court—Filed February 22, 1980) ..............000.0.... A-17 “B-4”—Denial of Petition for Rehearing (California Court of Appeals— Filed July 28, 1979) ...................... A-57 “B-5”—Opinion and Order Issuing Per- emptory Writ of Mandate (Cali- fornia Court of Appeals—Filed re A-50 “B-6”—Memorandum of Decision (Su- perior Court for the County of Alameda Filed April 29, 1977........A-83 TABLE OF AUTHORITIES Cases Pages Alameda Conservation Assn. v. City of Alameda, 264 ee eS Ep: Seiennaeairaniener enim wmeanscrer tan 7,17 Anderson v. Trotter, 213 Cal. 414 (1981)... 14 Appleby v. City of New York, 271 U.S. 365 (1926)......13, 18 Atwood v. Hammond, 4 Cal, 2d 31 (1935)... 7 Barney v. Keokuk, 94 U.S. (4 Otto) 324 (1876)............ 13 Borax Consolidated v. City of Los Angeles, 296 U.S. "4. Saar aeemen San Lys Chen Cee utd pe etter a ces Nera ois 4 City of Berkeley v. Superior Court, 26 Cal. 3d 515 URUIUD sectcucsiccstsceceticelinontanieloiuandiaidads caudiicsepalomansmaaaaiena aia a passim City of Long Beach v. Mansell, 3 Cal. 3d 462 (1970).... 7 City of Newport Beach v. Fager, 39 Cal. App. 2d 23 CRI ssnriccsaciassestinidcomnsnsheeeaicigiataipindelltoiietea tne ial Mees 7 City of St. Louis v. Rutz, 138 U.S. 226 (1891)................ 13 Connell v. McGahie, 37 Cal. App. 439 (1918)................ 7 Craig v. White, 187 Cal. 489 (1921) ................scscssssccsseese 14 Culley v. Pearl River Industrial Commission, 108 So. DE TOO CLG caincnssotrinncennenbbg niecttadan aces peaacabidatdand 13 Dawson v. Superior Court, 158 Cal, 73 (1910)................ 2 Detroit & M.R. Co. v. Michigan R.R. Com., 240 U.S. DO CRP UID xn icrsscniinincionsicgalbionnebaisudicabiams eee 3 Eldridge v. Cowell, 4 Cal. 80 (1854)... eseeseeeeeee 5 Field Research Corp. v. Superior Court, 71 Cal. 2d 110 Oe ML SS slices coe can Hardin v. Jordan, 140 U.S, 371 (1891)... eee 13 Hughes v. State of Washington, 389 U.S, 290 (1967) 18 Illinois Central R. R. Co. v. Lllinois, 146 U.S. 387 CEERI). The committee included his opinion with its report to the Assembly recommending passage of the bill. (/d., pp. 3-10.) Such committee reports are a reliable source of the intent of the Legislature in enacting the measure reported. 15. “... [T]he State may, through .. . properly appointed agents, preserving the mode leid down by her law-makers, vest the title of the State in others through the action of the Commis- sioners. 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. . . .” (Ibid.) 78 Appendix (Southern Pac. Co. v. Ind. Acc. Com. (1942) 19 Cal.2d 271, 275; People v. Swinney (1975) 46 Cal.App.3d 322, 342.) We are aware of no source indicating that the 1868 Legis- lature did not have the Attorney General’s advice in mind when it adopted the 1870 act two years later. Moreover, there are substantive distinctions between the two acts which tend to show that the Legislature enacted them for different reasons. We have observed from the face of the 1868 act that it was designed to enable an extension of the San Francisco waterfront south of the point to which it had been developed pursuant to the earlier special acts affecting San Francisco only. (See fn. 9, ante.) Apparently for this reason, it closely followed the earlier acts by pro- viding for the establishment of a waterfront “line” and for coordination of the inshore survey with the pattern of San Francisco streets. (Stats. 1867-68, ch. 543, § 4, p. 718.) In one of the first decisions involving the earlier acts, the coordination factor was relied upon by the court as an indi- cation of the Legislature’s intent to terminate the tideland trust forthwith. (Eldridge v. Cowell, supra, 4 Cal. 80 at p. 87; see Comment, supra, 21 UCLA L.Rev. 826 at p. 839 [text at fn. 58].) The appearance of the factor in the 1868 act imports that the Legislature intended a parallel effect. No such purpose may be seen in the 1870 act, which ranged far across San Francisco Bay (see fn. 10, ante) but drew no “water front” line, directed the establishment of none, and was utterly silent on the subject of coordina- tion with any community development in the affected area.” (See stats. 1869-70, ch. 388, § 2, p. 541.) Except for its passing provisions delegating the establishment of “canals 16. There was substantial community development, and some waterfront activity, along the East Bay shoreline in and before 1870. (Bowman, Birthdays of Urban Communities (1952) 31 Calif. Hist. Soe’y Quarterly 328.) Appendix 79 and basins... for... navigation and the wants of com- merce” (zbid.), it may not be equated with the 1868 act in terms of either activity. It follows that the purpose of the 1870 act was not necessarily that of its predecessor. Having drawn this substantive distinction, we have also found clear indications that the Legislature’s real purpose in adopting the 1870 act was not the promotion of naviga- tion, commerce, or any other purpose of the tideland trust. Sales of subdivided land pursuant to the 1868 act were a success. (Scott, The Future Of San Francisco Bay (Inst. of Govtal, Studies, U.C. Berkeley 1969) pp. 5-7); BCDC Supp., p. 430.) In his subsequent message to the 1869-70 Legislature, Governor H. H. Haight stated that its “results have been quite satisfactory,” and that the revenues derived from it would provide a desirable source of support for the University of California. (Assem. J. (18th Sess. 1869) p. 49.) Other sources confirm that revenue, not the purposes of the tideland trust, motivated the Legislature to enter into the wide-ranging subdivision and the sale program embodied in the 1870 act, (Scott, loc. cit.; BCDC, loc. cit.; Comment, supra, 60 Cal.L.Rey. 225 at p. 252, fn. 79.) In sum, we conclude that the titles conveyed to private grantees under both acts were passed subject to the tide- land trust. THE DETERMINATION RELATIVE TO COLLATERAL ESTOPPEL As respondent court also made clear in its memorandum decision, it reached this determination upon the basis that the State’s position in the Alameda Conservation case was contrary to the one it advances now. The determination was made sua sponte; real parties in interest had not urged it, and the parties apparently did not anticipate it. It occurs to us that any analysis of the State’s position on the former 80 . Appendix appeal presents a partial question of fact which does not permit this determination to stand under the summary judg- ment law. (Code Civ. Proe., § 437¢.) A related problem arises because the court’s determination disaffects the City of Berkeley, which was not a party in Alameda Conservation. These problems need not detain us. The essential issues in this proceeding are of sufficient public importance that the doctrine of collateral estoppel should not be applied against either petitioner. (See fn. 10, ante; Scott, op. cit, supra, pp. 6-8; Marks v. Whitney (1971) 26 Cal.3d 251, 257; Chern v. Bank of America (1976) 15 Cal.3d 866, 872.) These conclusions remit us to petitioners’ successive con- tentions, pleaded in their respective answers below, that the State’s interest in the Berkeley tract, as its trustee, passed to the City of Berkeley under the 1913 grant from the Legislature. (See the text at fn. 6, ante.) We cannot reach this point because it involves factual matters not shown on real parties’ motion for summary judginent. Among them is the fact that most of the tract has been filled at some unknown point in time since the 1870’s, The fact raises substantial issues which depend upon when it was filled, by whom, and the attendant circumstances. (See People v. Williams, supra, 64 Cal. 498 at p. 499; People v. Kerber, supra, 152 Cal. 733 at p. 737; People v. California Fish Co., quoted supra, 166 Cal. 576 at pp. 599-600. See also City of Long Beach v. Mansell, supra, 3 Cal.3d 462 at pp. 487-501.) Issues upon this fact have been joined in the pleadings. Those issues and others will be tried when the cause is remanded. Let a peremptory writ of mandate issue as prayed. Appendix 81 CERTIFIED FOR PUBLICATION. We concur: Wilson, J.* *Assigned by the Chairperson of the Judicial Council. 1 Civil 42466 APPENDIX “B-6” Memorandum of Decision (Superior Court for the County of Alameda Endorsed Filed 4/29/77) Appendix 83 Appendix Endorsed Filed—Apr 29 1977 Rene C, Davidson, County Clerk By Maurine Evans, Deputy In the Superior Court of the State of California in and for the County of Alameda Before the Honorable John P. Sparrow, Judge Department No, 19 No, 422942 Grorce W, Murpuy and Santa Fr Lanp IMPROVEMENT COMPANY, a California corporation, Plaintiff's, VS. City or BerKELey, a political subdivision of the State of California, and the Stats or CALiForNIA, Defendants. STATE OF CALIFORNIA, acting by and through the State LAnps ComMIssION, Cross-Complainant, VS. Santa F's Lanp Improvement Company, a California corporation, Grorce W. Murray; anp Dors 1 through 200, Inciustve, Cross-Defendants, MEMORANDUM OF DECISION GRANTING PARTIAL SUMMARY JUDGMENT Plaintiffs move for partial summary judgment on the ground that they own free and clear of the public trust for 84 Appendix commerce, navigation and fisheries 79 acres of former tide and submerged lands conveyed to their predecessors in in- terest pursuant to the Act of March 30, 1868 (Stats. 1867- 68, p. 716) and the supplementary Act of April 1, 1870 (Stats. 1869-70, p. 541). The tract in question borders on the westward extension of University Avenue, west of the Eastshore Freeway in Berkeley und all but a fraction of an acre of it has been filled. Approximately 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 sub- merged land.! For the reasons hereinafter stated partial summary judgment is granted on the ground that the State’s right, title and interest, including any public trust for commerce, navigation and fisheries was sold pursuant to the above statutes. Case authority in California squarely holds that convey- ances pursuant to the 1868 and 1870 legislative acts of tide and submerged lands in the San Francisco Bay area termi- nated the public trust for commerce, navigation and fisher- ies, to which such lands hed previously been subject, with the consequence that private grantees received unencum- bered fee title thereto as of the date the conveyances were made, Knudson v. Kearney (1915) 171 C, 250, Alameda Conservation Assn. v. City of Alameda (1968) 264 C. A. 2d 284. 1. An oft-repeated concept which has seldom received critical examination is that tide land, i.e., property lying between the mean high tide line and the mean low tide line, is subject to the public trust, e.g., Marks v. Whitney (1971) 6 G. 3d 251, 259, on the theory that such was the common law, but ef., Alien ability of the State’s Title to the Foreshore (1912) 12 Columbia Law Review 395 to the effect that this was not the common law rule and support to such a conclusion is lent by the fact that in Massachusetts, Maine and several other eastern states private ownership is recognized to the mean low tide line. Appendix 85 The 79 acres here in question were conveyed in 1871 to plaintiffs’ predecessors in interest pursuant to the 1868 and 1870 Acts so that the above cases are binding on this Court under the principle of stare decisis. Moreover, in the Alameda Conservation Association case the State itself as a party successfully resisted a suit to enjoin the dredging and filling of a multi-acre tract of submerged land adjacent to the City of Alameda conveyed by the State in 1873 pur- suant to the same statutory authorization as the tract here on the ground that the conveyance terminated the public trust. The State, therefore, is collaterally estopped to assert that the land here, in all respects analogous to that in Ala- meda, is subject to the public trust. Although use of estop- pel here would be offensive in nature and one reported case coucemns such a use, McDougall v. Palo Alto School Dis- trict (1963) 212 C, A. 2d 422, later authority is to the con- trary so that collateral estoppel may be used offensively as well as defensively. O’Connor v. O’Leary (1967) 247 C. A. 2d 646, 649-650, Louie Queriolo Trucking v. Superior Court (1967) 252 C. A. 2d 192, 194. The State’s reference to Illinois Central Railroad Com- pany v. State of Illinois (1892) 146 U. 8S. 387, is inapposite. There, in precluding Chicago, a then existing municipality, from conveying its entire Lake Michigan waterfront, no enabling legislation similar to the Acts of 1868 and 1870 existed, nor unlike here was there any reservation of public trust rights over areas not conveyed, The City of Berkeley complains that its entire waterfront was similarly conveyed without reservation of public trust rights but unlike Chi- eago no City of Berkeley existed as of the date the convey- ances here were made. The 1868 and 1870 Acts viewed the San Francisco Bay area as an entire unit and appropriate reservations for public rights of fisheries, commerce and 86 Appendix navigation were reserved in making conveyances pursuant to the overall scheme. In any event, the Berkeley Marina in fact provides public access to the bay from Berkeley as now constituted. Defendants’ contention that the conveyances in question were subject to an implied condition subsequent, that the lands were subject to a right of re-entry in the State if they were not reclaimed within a reasonable time from conveyance is without merit. Apart from the fact that the land in question has in fact been reclaimed, rights of re- entry, being in the nature of forfeitures, are never implied under circumstances where, as here, the conveyance of an unencumbered fee was manifestly intended. That such was the intent here is squarely held by the Knudson and Ala- meda Conservation Association cases above cited. Article 15, 12 of the California Constitution has no rele- vance since it postdates the conveyances involved, nor does the 1913 grant by the State to the City of Berkeley of tide and submerged lands within its boundaries provide assist- ance to the defendants because the State could convey no better title to the City than it had itself and, having previ- ously divested itself of any interest in the subject property, it follows that nothing passed to the City of Berkeley in 1913. Daten: April 28, 1977. JoHn P, Sparrow John P. Sparrow, Judge --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2579%3A1. Public record. Not legal advice.