# Record and brief — Lyon v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Record and brief
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 865

## Text

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Ullice- supreme Court, U.S.
In the —— Cou FILED
OF THE JUL 27 1981
United States 1
Lamb L. oi) v AS,
Ocrosrr Term, 1980 CLERK

Raymonp R. Lyon, Marcaret L. Lyon, CHARLAS F. Focerry,
Sretta Focertry, Russert S. Grove, Nancy J. Grove,
Harnotp E. Esricut, In., Katuertne Fam

Esricut, Georce Hitton Epmo:spson, JANET

Louise Epmonpson, Lawrence L. Linpsey, In.,

Rosemary F. Liypsey, Homer M.
Haywarp, Rew W. Dennis, and Tano
Meapows (a California corporation),
Petitioners,

vs.

State or Cauirognia, State Lanps CoMMISSION OF THE
State or CatirorniA and DepaRTMENT OF F'1sH AND

Game or THE State or CALIFORNIA,
Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE
STATE OF CALIFORNIA

Epoar B. WasHBURN

One Embarcadero Center

Suite 2407

' San Francisco, CA 94111

(415) 981-2121

Counsel for Petitioners

Of Counsel:
Wasnueurn, Kemp & WacenseiL
Barrara L. GarRLx
Ore Embarcadero Center
Suite 2407
San Francisco, CA 94111
(415) 981-2121

BOWNE-PERNAU WALSH ¢ 190 NINTH ST. © &.F., CA 84108 *¢ (415) 864-2300

QUESTIONS PRESENTED

1. Whether this Court’s decision in Illinois Central R. R.
v. Illinois, 146 U.S. 387 (1892), decided as a matter of
federal constitutional law that each state’s succession to
and disposition of lands beneath nontidal navigable waters
is subject to the restrictions of the “public trust” doctrine
described in that case.

2. If not, whether the decisions of the California Su-
preme Court which for the first time impose an easement
in favor of the public for navigation, environmental and
recreavional purposes over all lands lying below the high
water mark on navigable lakes and rivers have effected a
taking of private property without payment of compensa-
tion in violation of the Fifth and Fourteenth Amendments
to the United States Constitution.“

In addition to Raymond R. Lyon, Margaret L. Lyon, Charles F.
Fogerty, Stella Fogerty, Russell S. Grove, Nancy J. Grove, Harold E.
Ebright, Jr., Katherine Fairlie Ebright, George Hilton Edmondson,
Janet Louise Edmondson, Lawrence L. Lindsey, Jr., Rosemary F.
Lindsey, Homer M. Hayward, Reid W. Dennis and Tahoe Meadows
(a California corporation), Tahoe Shorezone Representation (a
Nevada corporation) and the County of Lake were Real Parties in
Interest in the California Supreme Court proceedings. In addition
to State of California, State Lands Commission of the State of
California, and Department of Fish and Game of the State of Cali-
fornia, the respondents include Kenneth Cory, State Controller,
Chairman of the State Lands Commission; Mervyn M. Dymally,
Lieutenant Governor, Commissioner of the State Lands Commis-
sion; Roy M. Bell, Director of Finance, Commissioner of the State
Lands Commission; William F. Northr p, Executive Director of
the State Lands Commission; Evelle J. Younger, Attorney General
of the State of California; and J. F. Trout, Manager, Land Opera-
tions of the Division of State Lands.

ii

TABLE OF CONTENTS

Questions presented
Opinions below

Jurisdiction

Constitutional and statutory provisions involved

Statement

Reasons for granting the writ

Pay ate

13

TABLE OF AUTHORITIES CITED

Cases
Page
Anderson v. Trotter, 213 Cal. 414, 2 P.2d 373 (1931) — 6

Appleby v. City of New York, 271 U.S. 364 (1926)
13, 24

Barney v. City of Keokuk, 94 U.S. (4 Otto) 324 (1876)
9 5, 15, 17, 19

Bohn v. Albertson, 107 Cal- App. 2d 738, 238 P. 2d 128
(1951) — 14

Boone v. Kingsbury, 206 Cal. 148, 273 P. 797 (1928) 21
City of Los Angeles v. Aitken, 10 Cal. App. 2d 460, 52

P. 2d 585 (1935) 6
Craig v. White, 187 Cal. 489, 202 P. 648 (1921) 6
Crews v. Jonnson, 202 Cal. App. 2d 256 (1962) 6
Dawson v. Superior Court, 158 Cal. 73, 110 P. 479

(1910) 3
Field Research Corp. v. Superior Court, 71 Cal. 2d 110,

453 P. 2d 747 (1969) —
Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443

(1851) 14
Hardin v. Jordan, 140 U.S. 371 (1891) 15, 17
Hitchings v. Del Rio Woods Recreation and Park Dis-

trict, 55 Cal. App. 3d 560 (1976) 14
Hughes v. Washington, 389 U.S. 290 (1967) 23, 24
Illinois Central R. R. v. Illinois, 146 U.S. 387 (1892).

F i, 10, 13, 16, 17, 18, 19

International News Serv. v. Associated Press, 248
U.S. 215 (1918) ................ 23

iv

Tan or AuTHorities Crrep

Cases
Page

Kaiser Aetna v. United States, 444 U.S. 164 (1979) ....22, 23

Lamprey v. State and Metcalf, 52 Minn. 181, 53 N.W.
1139 (1893) 23

Leo Sheep Co. v. United States, 440 U.S. 668 (1979) ....22, 25

Los Angeles Athletic Club v. City of Long Beach, 128
Cal.App. 427, 17 P.2d 1061 (1932) 21

Maginnis v. Hurlbutt, 49 Cal.App. 460, 193 P. 606
(1920) ..... 6

Marks v. Whitney, 6 Cal.3d 251, 491 P.2d 374 (1971)..14, 20
Massachusetts v. State of New York, 271 U.S. 65

(1926) 15
Muhlker v. New York and H. R. Co., 197 U.S. 544

(1905) 24
Newcomb v. City of Newport Beach, 7 Cal.2d 393, 60

P.2d 825 (1936) 21
Oregon ex rel. State Land Board v. Corvallis Sand

& Gravel Co., 429 U.S. 363 (1977) 15, 17, 19, 22
Overstreet v. County of Butte, 57 Cal.2d 504, 370 P.2d

335 (1962) 3
Packer v. Bird, 137 U.S. 661 (1891) 15
People v. California Fish Co., 166 Cal. 576, 138 P. 79

(1913) —
Peopie ex rel. Baker v. Mack, 19 Cal.App.3d 1040

(1971) —

Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212 (1845) 5

*

Tasie or Avtuorities Crrep

Cases

Page

Pumpelly v. G.B. & M. Canal Co., 80 U.S. (13 Wall.)
166 (1872) 24

San Francisco Savings Union v. R. G. R. Petroleum
Co., 144 Cal. 134, 77 P. 823 (1904) 23
Tally v. Ganahl, 151 Cal. 418, 90 P. 1049 (1907) — 3
United States v. Gossett, 416 F.2d 565 (9th Cir. 1969) 6
United States v. Lutz, 295 F.2d 736 (5th Cir. 1961) ... 23
United States v. Lynah, 188 U.S. 445 (1903 24

United States v. Pueblo of San Ildefonso, 513 F.2d
1383 (Ct. Cl. 1975) 23

United States v. River Rouge Improv. Co., 269 U.S. 411
(1926) 23

United States v. Title Insurance & Trust Co., 265 U.S.
472 (1924) . 22, 24

Vasquez v. Superior Court, 4 Cal.3d 800, 484 P.2d 964
(1971) 3
Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979) 17, 19
Yates v. Milwaukee, 77 U.S. (10 Wall.) 497 (1871) ....... 23

Statutes

California Civil Code, Section 830 . 4, 5, 6, 12, 17, 19, 22

Nev. A.B. 234, amending Nev. Rev. Stat. 6 321.595
(1979) 18, 19

28 U.S.C. 512573332 3

Tant or Autuorities Crrep

Other Authorities
Page
1964 Concurrent Resolutions of the California Assem-
bly and Senate

Ops. Cal. Atty. Gen. 3100 at 5-6 (1916) ..............
23 Ops. Cal. Atty. Gen. 97 (1954)
23 Ops. Cal. Attty. Gen. 306 (1954)
30 Ops. Cal. Atty. Gen. (1957)
43 Ops. Cal. Atty. Gen. 291 (1964) 6,
Nev. Op. Atty. Gen. No. 204 (1976) 1

Constitution
United States Constitution:
Fifth Amendment i, 4, 7, 10, 14
Fourteenth Amendment i, 4, 7, 10, 14

2 ee ee 08

No.

In the Supreme Court

OF THE
United States
Octoser Term, 1980

Raymonp R. Lyon, Marcaret L. Lyon, CHARLASs F. Focerry,
Stevia Focerty, Russert S. Grove, Nancy J. Grove,
Harotp E. Esricut, In., Katuertve Fam
Esricut, Georce HILTON EpMonpson, JANET
Louise Epmonpson, Lawzence L. Luypsey, In.,

Rosemary F. Linpsey, Homer M. 7
Haywarp, Rew W. Dennis, and Tanoz
Mrabows (a California corporation),°
Petitioners,

vs.

State or Catirornia, State Lanps CoMMISSION OF THE
Srate or CALWonxA and DepaRTMENT OF FisR AND
GaME or THE State oF CALIFuRNIA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF CALIFORNIA

Petitioners Raymond R. Lyon, Margaret L. Lyon (here-
inafter referred to as Lyon“), Charles F. Fogerty, Stella
Fogerty, Russell S. Grove, Nancy J. Grove, Harold E.
Ebright, Jr., Katherine Fairlie Ebright, George Hilton
Edmondson, Janet Louise Edmondson, Lawrence L. Lind-

Tahoe Meadows is a non-profit corporation and has no sub-
sidiaries or affiliates.

2

sey, Jr., Rosemary F. Lindsey, Homer M. Hayward, Reid
W. Dennis, and Tahoe Meadows (hereinafter referred to as
“Fogerty”), pray that a writ of certiorari issue to re-
view the judgments of the Supreme Court of the State of
California entered in these causes on March 20, 1981.

OPINIONS BELOW

The opinion of the California Supreme Court (with dis-
senting opinion) entered in State of California v. Superior
Court (Lyon) is reported at 29 Cal.3d 210, 625 P.2d 239
(1981), hereinafter cited as “App. A-1.” The opinion of the
California Supreme Court (with dissenting opinion) en-
tered in State of California v. Superior Court (Fogerty)
is reported at 29 Cal.3d 240, 625 P.2d 256 (1981), herein-
after cited as “App. A-2.” Copies of the opinions and orders
issuing peremptory writs of mandate of the California Su-
preme Court and that court’s denial of Lyon’s and Fo-
gerty’s petitions for rehearing and the decisions of the triai
courts are included in Appendix A.

JURISDICTION
The opinions and orders“ issuing peremptory writs of
mandate by the California Supreme Court were both en-
tered on March 20, 1981. Timely petitions for rehearing

As more fully detailed in the Statement of the Case, infra, the
judgments below both arose from respondents’ filing of petitions
for writs of mandate seeking reversal of the trial court’s orders
granting partial summary judgment in Lyon’s and Fogerty’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

3

were denied and judgment was entered on April 29, 198
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). The federal questions presented for review by
this Court, viz., whether a public trust easement impresses
the beds of all inland waters below high water mark as
a matter of federal constitutional law and, if not, whether

Cal.2d 110, 453 P.2d 747 (1969); Vasquez v. Superior Court, 4 Cal.
3d 800, 484 P.2d 964 (1971).

In providing for this expedited appellate review, the California
courts have equated the use of the petition for writ of mandate in
this context with the traditional proceeding by way of extraordinary
writ. Accordingly, the issuance of a writ of mandamus, along with
a written opinion affirming or overruling a trial court’s interlocutory
order, is res judicata as to any further proceedings in which the
issues decided thereby are raised. Dawson v. Supertor Court, 158
Cal. 73, 110 P. 479 (1910); Overstreet v. County of Butte, 57 Cal.2d
504, 370 P.2d 335 (1962). Further, the appellate court’s decision
will be deemed the “law of the case” and must be adhered to
throughout the subsequent progress of the litigation at trial as well
as the appellate level. Tally v. Ganahl, 151 Cal. 418, 90 P. 1049
(1907).

Consequently, the judgments below by California’s highest court
issuing peremptory writs of mandate directing the trial courts to
vacate their orders granting partial summary judgment and to enter
judgment in respondents’ favor finally resolve the issue of the
boundaries of, and public rights in, the beds of California’s non-
tidal navigable waters. Moreover, even characterizing the writ pro-
ceedings below as in the nature of an interlocutory appeal, the
decisions of the California Supreme Court have in fact disposed of
all of the issues raised by the underlying litigation. The only issue
which was not raised by petitioners’ and respondents’ cross-motions
for partial summary judgment was that of estoppel. However, as
more fully set forth in the Statement of the Case, infra, the Cali-
fornia Supreme Court concluded, as a matter of law, that petitioners
could not pursue relief by way of estoppel. App. A-2, A-42. Accord-
ingly, the decisions below represent a final resolution of the Lyon
and Fogerty actions.

*

4

the California Supreme Court’s action below in imposing
such an easement for the first time constitutes an uncon-
stitutional taking, were first raised in the Lyon and Fogerty
complaints and have been repeated at virtually every stage
of the litigation below.

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Section 830 of the California Civil Code provides as
follows:
Except where the grant under which the land is held
indicates a different intent, the owner of the upland,
when it borders on tidewater, takes to ordinary high-
water mark; when it borders upon a navigable lake or
stream, where there is no tide, the owner takes to the
edge of the lake or stream, at low-water mark; when it

borders upon any other water, the owner takes to the
middle of the lake or stream. (Emphasis added.)

The Fifth Amendment to the United States Constitution
provides in relevant part as follows:

.; nor shall any person . . . be deprived of life,
liberty, or property, without due process of law; nor
shall private property be taken for public use without
just compensation.

The Fourteenth Amendment to the United States Consti-
tution provides:

. » nor shall any state deprive any person of life,
liberty, or property, without due process of law; nor
deny to any person within iis jurisdiction the equal
protection of the laws.

5

STATEMENT

With this Court’s decision in Pollard’s Lessee v. Hagan,
44 U.S. (3 How.) 212 (1845), it became settled that each
newly admitted state to the Union was entitled to the beds
of its tidal waterbodies by reason of its sovereignty under
the Equal Footing Doctrine. By its decision in Barney v.
City of Keokuk, 94 U.S. (4 Otto) 324 (. 876), this Court ex-
tended state sovereign claims to the beds of navigable non-
tidal waters. However, Barney v. City of Keckuk recognized
the right of each state to develop its own rules governing
ownership of inland waters, including the right of the states
to claim to ordinary high water mark, low water mark or to
relinquish all interests to the upland owners. Id. at 338.
Although tidal and nontidal navigable waters were thereby
accorded similar treatment with respect to claims of sov-
ereign ownership, the distinction that existed at common
law between tidelands,“ which were subject to the public
trust for commerce, navigation and fishery, and inland
waters, which were not, remained.

It is in this setting that California adopted Civil Code
Section 830 in 1872. In relevant part, that section provides
as follows:

Except where the grant under which the land is held
indicates a different intent, the owner of the upland,
.. . when it borders upon a navigable lake or stream,
where there is no tide, . . takes to the edge of the lake
or stream, at low water mark... .

*Tidelands are those lands underlying tidal waters which are sub-
ject to the daily ebb and flow of the tides below the mean high
water mark.

6

Ever since the adoption o, Civil Code Section 830, the
California courts,’ the Ninth Circuit Court of Appeals,“
the administrative agencies of the State charged with man-
aging state sovereign lands, as well as the Attorney Gen-
eral of the State of California,’ have consistently recog-
nized that by virtue of that section, California disclaimed
any interest in the beds of its nontidal navigable water-
bodies landward of the ordinary low water mark. The dis-
claimer evidenced by Civil Code Section 830 encompassed
all sovereign claims as to the area between high and low
water marks including the right o impress those lands
with the public trust casement for commerce, navigation
and fishery.

Lyon owns 800 acres of property bordering Clear Lake—
a navigable nontidal waterbody located in Lake County,

*Maginnis o. Hurlbutt, 49 Cal. App. 490, 193 P. 606 (1920); Craig
b. White, 187 Cal. 489, 202 P. 648 (1921); Anderson b. Trotter, 213
Cal. 414, 2 P.2d 373 (103); City of Los Angeles v. Aitken, 10 Cal.
App.2d 460, 52 P.2d 585 (1935); Crews v. Johnson, 202 Cal. App. 2d
256 (1962).

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

In 1964, for example, the California legislature determined that
it was “necessary to establish the boundary of the bed [of Clear

Ops. Cal. Atty. Gen. 291 (1964), a copy of which is included
as Appendix C; 30 Ops. Cal. Asty. Gen. 262 (1957); 23 Ops. Cal.
Atty. Gen. 306 (1954); 23 Ops. Cz]. Atty. Gen. 97 (1954); Ops. Cal.
Atty. Gen. 3100 at 5-6 (1916).

7

California. That portion of his property here at issue en-
compasses approximately 500 acres lying between the ordi-
nary high and low water marks of Clear Lake. Lyon, seek-
ing to return that area to its f reviously reclaimed status,
applied to the State of California in 1974 for a permit to
repair a levee. The State notified Lyon that it would not
process his application because it now claimed ownership
of the beds of all nontidal waterbodies to the ordinary high
water mark in its sovereign capacity.

Lyon ‘hereupon filed an actior in Lake County on
June 29, 1976, against the State and various of its agen-
cies seeking to quiet title to the entire extent of his prop-
erty and for declaratory relief.“ The State of California
cross-claimed against Lyon to quiet title to those portions
of the property lying between the natural high and low
water marks and seeking a declaratory judgment that such
property was subject to a public trust easement for com-

"By the Third Cause of Action of Lyon’s Complaint to Quiet Title,
violation of Amendments V and XIV to the United States Constitu-
tion was expliciily alleged:

I. .. Such claim by defendants State of California and County
of Lake deprives the plaintiffs of their property without due
process of law and denies plaintiffs the equal protection of the
law and is in violation of Amendments V and XIV of the
United States Constitution and Sections 1, 11, 13 and 14 of
Article I of the California Constitution.

n. de tate
Lands, Fish and Game, and County of Lake are seeking to take
plaintiffs’ property without just compensation having first been
paid in violation of Article I, Section 14 of the California Con-
stitution and Amendment V of the United States Constitution.

Lyon Complaint to Quiet Title, p. 12, lines 7-12; 18-23.

merce, navigation and fishery comparable to that which,
under California law, existed only over tidelands.

Lyon, the State and the County of Lake as intervenor,’
all filed motions for partial summary judgment in support
of their respective claims. Petitioner Lyon’s Motion for
Partial Summary Judgment urged, inter alia, that Califor-
nia law had never recognized a public trust easement in
the beds of its inland waters. Lyon Memorandum of Points
and authorities in Support of Motion for Partial Summary
Judgment, pp. 32-34. Conversely, by their Motion for Par-
tial Summary Adjudication, respondents argued that “fed-
eral common law” governs ownership of, and public inter-
ests in, lands underlying nontidal navigable waters:

It is only reasonable for California to look to the
United States Supreme Court for its interpretation
of the law as it should be applied to the navigable
waters of this country. Not only has that court enun-
ciated a consistent rule on the subject, but the United
States Government is California’s antecedent Ameri-
can Government.

Respondents’ Memorandum of Points and Authorities in
Support of Motion for Partial Summary Adjudication and
Injunction, pp. 40-41.

The trial court resolved all questions of law in Lyon’s
favor, concluding that no portion of Lyon’s property lying
landward of the last natural ordinary low water mark at
Clear Lake is, or ever was, sovereign property of the State

. ‘ *

The County of Lake’s complaint in intervention supported Lyon’s
claim of ownership to low water mark.

9

of California. Although recognizing a public right of navi-
gation over the waters of Clear Lake, the trial court further
concluded that no portion of the property at issue is, or
ever was, impressed with a public trust easement.’

On January 19, 1979, the State filed a Petition for
Writ of Mandate with the California Supreme Court
seeking to vacate the trial court’s order and to have judg-
ment entered in its favor. Following transfer of the peti-
tion (on the Supreme Court’s own motion) to the Cali-
fornia Court of Appeal, the First Appellate District issued
its order denying the requested relief. The State there-
upon petitioned the California Supreme Court for a
hearing which was granted on April 26, 1979.

During the progress of petitioner Lyon’s litigation, the
Attorney General of the State of California issued a letter
opinion in March, 1977, in which he purported to “clarify”
that office’s position with respect to litigation pending
between the state and private owners (including the Lyon
action) regarding sovereign claims to the beds of navi-
gable nontidal waters.“ While expressly acknowledging
that his office had taken a contrary position in the past,“

*For a discussion of the distinction between the right of naviga-
tion and the public trust easement, see note 19, infra. A copy of the
trial court’s order in Lyon is included as Appendix A-3.

% copy of the March 8, 1977, letter opinion is included as
Appendix D.

“Prior to Attorney General Younger’s 1977 letter opinion (which
was specifically withheld from publication in light of pending litiga-
tion), the agencies of the State of California responsible for admin-
istering state lands had relied on Attorney General Stanley J. Mosk’s
1964 opinion (43 Ops. Cal. Atty. Gen. 291) which concluded that
Civil Code § 830 represented the State of California’s election to

10

Attorney General Evelle J. Younger concluded that the
State’s current claims regarding ownership of, and public
trust interests in, the beds of navigable lakes and rivers
up to high water mark was supported by a “reanalysis”
of relevant authority. Almost immediately thereafter, the
State Lands Commission—the agency of the State respon-
sible for administering state sovereign land—adopted a
resolution requesting the staff to record “notices” pro-
claiming that the State claimed title to all property extend-
ing between high and low water on all navigable lakes and
rivers and that such area was subject to a highly restrictive
public trust easement.

Petitioners Fogerty, et al., all of whom own property
bordering Lake Tahoe, thereupon filed an action on March
30, 1977, in Placer County, to quiet title and for declara-
tory relief and further seeking to enjoin the State of
California from recording notices, other than a notice of
lis pendens, claiming any ownership or public trust interest
in the property lying between high and low water mark
on Lake Tahoe.” The trial court’s October 17, 1977, order
granting petitioners’ request for the issuance of a pre-

relinquish any claim of sovereign ownership of the beds of inland
waters landward of low water mark. A copy of the 1964 Attorney
Generals Opinion is included as Appendix C.

The allegations set forth in Lyon’s Complaint as to the State's
violation of Amendments V and XIV to the United States Constitu-
tion (see note 7, supra) were repeated in substantially identical
form in Fogerty’s Complaint for Declaratory Relief (Complaint, p.
12, lines 20-26; p. 13, lines 1-7). In its First Amended Answer to
First Amended Complaint, respondents incorporated as Exhibit A
Attorney General Younger’s March 8, 1977, letter opinion (App. D)
which in pertinent part relies on Illinois Central R.R. v. Illinois,
146 U.S. 387 (1892), as the sole authority for the State’s assertion
that the lands in question are subject to a public trust easement.

11

liminary injunction was appealed by the State of Cali-
fornia on December 2, 1977. On March 28, 1978, the Court
of Appeal for the Third District issued its opinion uphold-
ing the trial court’s issuance of the preliminary injunction
order.“

Shortly thereafter, Fogerty and the State filed cross-
motions for partial summary judgment raising substan-
tially the same issues urged in Lyon.“ In addition, the
State in Fogerty contended that its sovereign interest in
the bed of Lake Tahoe was expanded by the artificial
raising of the lake level despite the fact that the affected
landowners would not be compensated for the property
inundated by the increased water level. The trial court
denied the State’s motion in its entirety and concluded
as a matter of law that no portion of Lake Tahoe land-
ward of the last natural ordinary low water mark is or
ever was sovereign property of the State of California
and that mo portion of such property is or ever was
swhject to the tidelands public trust easement.”

The State of California petitioned the California
Supreme Court r a writ of mandate in Fogerty on

1A copy of the Court of Appeal’s opinion is included as Appen-
dix B.

Fogerty s Motion for Partial Summary Judgment reiterated the
views expressed in Lyon’s motion, viz., that California had never
elected to impress the beds of its inland waters with a public trust
easement, and further argued that the State’s ownership and public
trust claims to high water mark, if successful, would constitute a
taking without just compensation. Fogerty Memorandum of Points
and Authorities in Support of Motion for Partial Summary Judg-
ment, pp. 32-47.

10A copy of the trial court's order granting Fogerty’s Motion for
Partial Summary Judgment is included as Appendix A-4.

12

July 2, 1979, seeking to have the judgment of the trial
court set aside and judgment entered in its favor. The
‘California Supreme Court issued alternative writs of
mandate in both Lyon and Fogerty on May 22, 1980, and
both cases were consolidated for hearing.“ By its decision
below, entered on March 20, 1981, the California Supreme
Court directed the issuance of peremptory writs of man-
date directing the trial courts in Lyon and Fogerty to
vacate their respective orders granting petitioners’ motions
for partial summary judgment and to enter judgment in
favor of respondents.

In Lyon, the California Supreme Court concluded that,
although petitioners’ title extended to the low water mark
on Clear Lake by virtue of consistent administrative con-
struction of Civil Code Section 830 to that effect, the area
below high water mark was retroactively impressed with
the tidelands public trust easement."

In Fogerty, the California Supreme Court adopted its
decision in Lyon, and further held the boundary between

Over twenty briefs were filed in the California Supreme Court
consolidated proceedings by petitioners, respondents and numerous
amici curiae. At each stage of those proceedings, petitioners re-
peated the positions first articulated in their respective complaints
and subsequently urged as the basis for their Motions for Partial
Summary Judgment.

‘By its opinion in Lyon, the California Supreme Court expressly
passed on the taking question:

Lyon’s final argument is that his ownership of the Anderson
Marsh to low water free of the public trust is a “rule of prop-
erty” and that a determination applying a trust to such prop-
erty would accomplish a taking of private property in violation
of federal and state constitutional provisions. He relies upon
cases which recognize the protection of property rights afforded

13

sovereign and private interests at Lake Tahoe to be the
artificially raised low water mark. Finally, the court held
that the State could not, as a matter of law, be estopped
to assert the existence of the public trust easement as to
lands lying between high and low water mark, despite
its acknowledgment that the issue of estoppel was not
properly before it. App. A-2, A-42.

Petitions for rehearing were filed by petitioners in both
Lyon and Fogerty on April 3, 1981, and were denied by
the California Supreme Court on April 29, 1981.

REASONS FOR GRANTING THE WRIT

The California Supreme Court, by its decisions below,
has construed this Court’s ruling in Illinois Central R. R. v.
Illinois, 146 U.S. 387 (1892), as imposing a restraint on
the ability of each state to develop its own rules of prop-
erty governing the beds of its inland waters as a matter
of federal constitutional law. In petitioners’ view, Illinois
Central is simply a construction of Illinois law.” Accord-
ingly, the California Supreme Court’s reliance on
Illinois Central as the sole authority for impressing, for
the first time, all riparian lands below present high water
mark with a highly restrictive public trust easement is an
erroneous reading of that case. Further, the action of the

by the federal and state Constitutions. [Citations.] We doubt
whether any failure of the state to previously assert its trust
rights in the lands below high water [citations] constitutes a
“rule of property.”

App. A-l, A-

This Court has, in fact, characterized its decision in Illinois
Central as “necessarily a statement of Illinois law.” Appleby v.
City of New York, 271 U.S. 364, 395, n. 13 (1926). .

14

court below in thus subjecting these lands to an easement in
favor of the public has effected a taking of petition-
ers’ property without payment of compensation in vio-
lation of the Fifth and Fourteenth Amendments to the
United States Constitution.

1, At the time of California’s admission to the Union
in 1850, the English common law concept that only tidal
waters could be navigable at law prevailed in this country.
Likewise, the incidents of the common law pub“ rust
for commerce, navigation and fishery were cou. .ed to
tidal waterbodies. The only public interest recognized in
nontidal waters at that time was the right of navigation
which allowed members of the public to pass over navi-
gable waters as and when they were capable of sustaining
navigation.” In 1851, however, this Court expanded the
concept of navigability from its common law roots and
held that nontidal waters which were navigable in fact
would be considered navigable in law for purposes of
admiralty jurisdiction. Genesee Chief v. Fitzhugh, 53 U.S.
(12 How.) 443 (1851).

For a comparison between this public right of navigation which
exists over nontidal waters when and if they are capable of sus-
taining navigation and the public trust easement which encumbers
lands which at any time since 1850 were, or are, covered by tidal
waters are impressed, see Bohn v. Albertson, 107 Cal.App.2d 738,
238 P.2d 128 (1951) (right of navigation); Hitchings v. Del Rio
Woods Recreation and Park District, 55 Cal.App.3d 560 (1976)
(right of navigation); People ex rel. Baker v. Mack, 19 Cal.App.3d
1040 (1971) (right of navigation) and Marks v. Whitney, 6 Cal.3d
251, 491 P.2d 374 (1971) (tidelands public trust) and People v.
California Fish Co., 166 Cal. 576, 138 P. 79 (1913) (tidelands pub-
lic trust).

15

It was not until 1876 that this Court ruled on the
validity of a state’s sovereign title claims to the beds of
inland waters. In Barney v. City of Keokuk, 94 U.S. (4 Otte)
324 (1876), this Court upheld the right of Iowa to claim the
beds of its inland waters to high water mark. In recogni-
tion, however, of the disparate rules which the respective
states had already adopted at the time of its decision,
this Court explicitly refrained from imposing a doctrine
which might unconstitutionally interfere with established
property rights:

Whether, as rules of property, it would now be safe to

change these doctrines where they have been applied

.. is for the several states themselves to determine.

If they choose to resign to the riparian proprietor

rights which properly belong to them in their sover-

eign capacity, it is not for others to raise objections.
Id. at 328.

In short, Barney v. City of Keokuk judicially sanctioned
established patterns of ownership to lands underlying
nontidal navigable waters including the right of the states
to claim the full incidents of sovereign ownership to ordi-
nary high water mark, low water mark or not at all.
Although the opinion is silent on the issue, it is to be pre-
sumed that the states were similarly free to impress those
lands as to which they asserted sovereign title claims with
an easement in favor of the public if they so chose. That it
was within the exclusive province of each state to fashion
its own rules governing inland waters has been repeatedly
and consistently confirmed by this Court,” and is vividly

See, e.g., Packer v. Bird, 137 U.S. 661, 663 (1891); Hardin v.
Jordan, 140 U.S. 371, 382 (1891); Massachusetts v. State of New

York, 271 U.S. 65, 93 (1926); Oregon ex rel. State Land Board v.
Corvallis Sand & Gravel Co., 429 U.S. 363 (1977).

16

illustrated by the widely disparate complex of rules
which have evolved in the respective states concerning
ownership of, and public rights in, the underlying lands.”

In its decision below, the California Supreme Court
held that this Court’s ruling in Illinois Central R.R. v.
Illinois, 146 U.S. 387 (1892), established, as a matter
of federal constitutional law, a uniform rule of property
imposing a highly restrictive public trust easement in
favor of the State over all lands lying below the high
water mark whether held in private or federal ownership.
California had not previously sought to apply the public
trust principles described in Illinois Central to inland
waters, and the decisions of the court below were plainly
predicated upon the mistaken belief that Illinois Central

*1At the present time, only nine states claim title to the beds of
navigable lakes and rivers up to the high water mark; four states
claim to high water on lakes and recognize private ownership of
rivers; twenty-two states claim only to low water; nine make no
claim at all; and two claim to low water on lakes and permit pri-
vate ownership of rivers. Those states which have adopted rules of
property which impress nontidal water with an interest comparable
to the public trust (Alabama, Arkansas, Florida, Kansas, Nevada
and, possibly, Idaho, Michigan and Ohio) have all limited the
extent of their trust claims to the same boundary as their sovereign
title claims. Of those jurisdictions, only Arkansas, Florida and
Kansas impress lands up to the high water mark with the public
trust. All other “public trust jurisdictions” only claim sovereign
ownership to low water and limit the incidents of the trust to low
water. The vast majority of jurisdictions, however, make no pre-
tension of possessing public trust interests in the beds of inland
waters whatsoever but rather limit such interests to tidelands. For
a discussion of the law of each state, see App. B, A-77 to A-82.

17

represents a rule of federal constitutional law which ap-

plies to all navigable waters throughout the country:
In our view, Illinois Central Railrocu Company v.
Illinois . . . settled the issue. It held very clearly that
the applicability of the public trust doctrine does not
turn upon whether a body of water is subject to the
ebb and flow of the tide, but upon whether it is

_ navigable in fact.
App. A-1, A-21.

XN
In the view of the California Supreme Court, then, IIli-
nois Central absolutely restricts each state’s ability to de-
velop rules of property governing lands underlying the
nontidal navigable waters within its borders. Petitioners
submit that the decision of the court below and its con-
struction of Illinois Central is in direct conflict with this
Court’s repeated adherence to the rule first announced in
Barney v. City of Keokuk, 94 U.S. (4 Otto) 324 (1876), that
each state was free to determine what sovereign interests, if
any, it chose to assert in the beds of its navigable lakes
and streams. The rule of Barney v. City of Keokuk was
reaffirmed by this Court in Hardin v. Jordan, 140 U.S. 371
(1891); Oregon ex rel. State Land Bd. v. Corvallis Sand 4
Gravel Co., 429 U.S. 363 (1977); and, most recently, in
Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979). Peti-
tioners willingly acknowledge that it was properly within
the State of California’s prerogative to have exercised the
full potential of its sovereign interests in its inland waters
at the time of its admission to the Union. However, as
evidenced by its adoption of Civil Code Section 830 in 1872,
California explicitly chose not to do so.

18

If the California Supreme Court’s interpretation of IIli-
nois Central is correct, the vast majority of states in this
country have adopied rules of property governing their
inland navigable waters in direct contravention of this
federal constitutional mandate. As a result, over forty
states will be constrained to retroactively impose a restric-
tive public trust easement over all lands underlying their
nontidal waters waterward of high water mark where no
sovereign interest had theretofore existed or been claimed.
Although a handful of states have imposed an interest
comparable to the public trust in the beds of its inland
waters, no state has attempted to impose such an ease-
ment landward of its sovereign title claims.“ Thus, hun-
dreds of thousands of riparian and littoral property
owners’ good faith reliance on the fact that their title
is held free of a public trust easement equivalent in force
and scope to that which impresses tidelands, will be irrev-
ocably and unconstitutionally impeached. If this Court
were to decline to review the decision of the California
Supreme Court, it is to be expected that the success of
the State of California’s claims will encourage other
jurisdictions to initiate similar litigation throughout the
country.”

See note 21, supra.

By way of example, the State of Nevada had previously at-
tempted to assert sovereign claims in the bed of Lake Tahoe land-
ward of low water mark (which had theretofore been accepted as
the boundary between state and private interests) in much the
same way California initiated its recently asserted claims as to
ownership of, and public trust interests in, the shoreline of inland
waters. Nev. Op. Att'y Gen., No. 204 (1976). Nevada’s rush to
appropriate private lands was abruptly halted by legislation which
statutorily confirmed a low water boundary at Lake Tahoe. Nev.

19

With the limited exceptions set forth in Oregon ex rel.
State Land Bd. v. Corvallis Sand d Gravel Co., 429 US.
363 (1977), and Wilson v. Omaha Indian Tribe, 442 US.
653 (1979), this Court has always adhered to the principle
that matters of property law, particularly as they apply
to the beds of navigable waters, are within the exclusive
purview of the respective states. Corvallis makes clear
that this right of the states is a constitutional guarantee
protected by the Equal Footing Doctrine. The decision of
the California Supreme Court below in construing Illinois
Central, 146 U.S. 387 (1892), as imposing a federal con-
stitutional restriction on the alienability of lands under-
lying nontidal waters, places this fundamental right of the
states in jeopardy.

In order to avert the confusion, expense and drastic
interference with the stability of land titles which the
decisions elow will engender, this Court should review
the reach of its decision in Illinois Central, 146 U.S. 387
(1892), in light of the actions taken by the State of Cali-
fornia, among others, in formulating rules of property
governing land below high water mark on navigable lakes
and streams in reliance on the principles set forth in
Barney v. City of Keokuk, 94 U.S. (4 Otto) 324 (1876).

A.B. 234, amending Nev.Rev.Stat. § 321.595 (1979). Following the
California Supreme Court’s decisions below, however, the Attorney
General’s Office of the State of Nevada has indicated that it will
pursue litigation challenging the constitutionality of A.B. 234.
Similarly, petitioners have been informed that the State of North
Dakota, which has a statute substantially identical to California
Civil Code § 830, is in the process of initiating litigation asserting
public trust and sovereign ownership interests up to the ordinary
high water mark in the beds of its inland waters.

2. The effect of impressing the lands in question—which
are dry virtually all of the year—with a public trust ease-
ment below high water mark is to convert such lands to
public property. The California Supreme Court concluded
its opinion in Lyon with the remark, [wle emphasize that
Lyon is not deprived of the use of the lands between low
and high water, and that he may utilize them in any manner
not incompatible with the public’s interest in the property.”
(Emphasis added.) App. A-2, A-29. To be charitable, this
statement is a less-than-adequate characterization of the
impact of the court’s decisions. Indeed, a review of the
California cases interpreting the tidelands trust doctrine,
which has now been held to attach to lands fronting on
nontidal lakes and streams, reveals that the State possesses
virtually unfettered discretion in dictating the uses to
which Lyon’s property may be put. The State’s options
range from prohibiting any use by Lyon to actually oceu-
pying the property to promote any of a vast array of
public purposes.

Under the tidelands trust doctrine, the State could desig-
nate Lyon’s property as open space so as to preserve the
land in its current condition. Marks v. Whitney, 6 Cal.3d
251, 259-260, 491 P.2d 374 (1971), one of the more recent
California decisions discussing the nature of the public’s
rights in tidelands, emphasizes the propriety of this course
of action:

There is a growing public recognition that one of the
most important public uses of the tidelands—a use en-
compassed within the tidelands trust—-is a preserva-
tion of those lands in their natural state, so that they
may serve as ecological units for scientific study, as

21

open space, and as environments which provide food
and habitat for birds and marine life, and which fa-
vorably affect the scenery and climate of the area. It is
not necessary to here define precisely all the public
uses which encumber tidelands.

Similarly, the State could appropriate Lyon’s property
for a wide variety of public uses. These uses have been held
to include the right to excavate or make harbor improve-
ments, without the payment of compensation, Newcomb v.
City of Newport Beach, 7 Cal.2d 393, 60 P.2d 825 (1936),
and the right to explore for and produce oil, gas and other
minerals. Boone v. Kingsbury, 206 Cal. 148, 273 P. 797
(1928). Under the tidelands doctrine, the state could im-
prove Mr. Lyon’s backyard for public playgrounds and
parks. Los Angeles Athletic Club v. City of Long Beach,
128 Cal.App. 427, 17 P.2d 1061 (1932).

The decision below affects not only petitioners’ property,
but also that of all owners of land bordering the more than
4,000 miles of shoreline on California’s navigable lakes
and rivers. Approximately one-half of these lands are
owned by the federal government. To detail the variety of
uses to which these lands are put is to capsulize the devel-
opment of the interior of the State. Settlement and develop-
ment of California’s noncoastal areas has been, almost with-
out exception, along the shores of its many navigable lakes
and rivers. The area between high and low water along the
rivers of the San Joaquin and Sacramento Valleys, for
example, which historically have flooded annually, have
been reclaimed and now constitute some of the most pro-
ductive agricultural land in the world. .

22

_ Particularly in light of the uses to which these lands
have been put in reliance on Section 830, the decisions
below go well beyond the recognized power of a state court
to reverse or modify prior decisions. They represent an
abrupt change in the real property law of California im-
pressing a highly restrictive easement over the property of
shoreline owners. No California decision had heretofore
even intimated that the public trust easement might some
day be applied to the area between high and low water
marks on lakes and rivers, and indeed the court concedes
that even the State had never before asserted that these
lands were anything but private property. App. A-1, A-27.
The California Supreme Court has ignored that caution
often repeated by this Court that “[s]ubstantive rules gov-
erning the law of real property are peculiarly subject to
the principle of stare decisis.” Oregon ex rel. State Land
Bd. v. Corvallis Sand d Gravel Co., 429 U.S. 363, 381
(1977); Leo Sheep Co. v. United States, 440 U.S. 668, 687-
88 (1979); United States v. Title Insurance d Trust Co.,
265 U.S. 472, 486-87 (1924).

The action of the California Supreme Court below has
effected a taking, with neither due process nor the tender
of just compensation, of two of the most essential and val-
uable elements of the shore front property affected by its
decision—the right to the exclusive use of the property and
the quality of being riparian.

Last term in Kaiser Aetna v. United States, 444 U.S. 164,
179-80 (1979), Justice Rehnquist wrote for the Court:

In this case, we hold that the “right to exclude,” so
universally held to be a fundamental element of the

23

property right, falls within this category of interests

that the government cannot take without compensation.
See also United States v. Pueblo of San Ildefonso, 513 F.2d
1383, 1394 (Ct. Cl. 1975); United States v. Lutz, 295 F.2d
736, 740 (5th Cir. 1961) ; International News Serv. v. Asso-
ciated Press, 248 U.S. 215, 250 (1918) (Brandeis, J., dis-
senting). By holding that members of the public have the
right to use the dry land area between high and low water
marks for a wide variety of purposes, the California Su-
preme Court has in the same manner as the Government in
Kaiser Aetna confiscated the right of exclusive use.

Also taken from petitioners is an equally important and
valuable property right—the quality of being riparian.
Since the lands in question are dry the majority of the year,
the plain effect of the California Supreme Court’s decision
is to sever riparian lands from the water by creating a strip
of public land between high and low water. This riparian
character of the land has been said to be the “. . . most
valuable feature of [the] property... Hughes v. Wash-
ington, 389 U.S. 290, 293 (1967). See also Lamprey v.
State and Metcalf, 52 Minn. 181, 53 N.W. 1139 (1893);
United States v. River Rouge Improv. Co., 269 U.S. 411, 419
(1926) ; Yates v. Milwaukee, 77 U.S. (10 Wall.) 497 (1871);
San Francisco Savings Union v. R. G. R. Petroleum Co.,
144 Cal. 134, 77 P. 823 (1904).

The extent to which the California Supreme Court has
sanctioned the State’s interference with private and fed-
eral riparian property rights is magnified by its holding
that the State’s sovereign interests may be increased by
an artificial raising of the water level at Lake Tahoe

24

thereby converting formerly private property into sov-
ereigu lands. The taking of property in this fashion has
been consistently prohibited by this Court where it is not
accompanied by payment of just compensation. Pumpelly
v. G. B. & M. Canal Co., 80 U.S. (13 Wall.) 166 (1872);
United States v. Lynah, 188 U.S. 445 (1903).

It is axiomatie that a state may not acquire private prop-
erty for public use by the expedient of declaring a change
in the law, either by legislative action or by judicial deci-
sion. Justice Stewart in his concurring opinion in Hughes v.
Washington, 389 U.S. 290, 296-97 (1967), expressed the
principle as follows:

To the extent that the decision of the Supreme Court
of Washington on that issue arguably conforms to rea-
sonable expectations, we must of course accept it as
conclusive. But to the extent that it constitutes a
sudden change in state law, unpredictable in terms of
the relevant precedents, no such deference would be
appropriate. For a State cannot be permitted to defeat
the constitutional prohibition against taking property
without due process of law by the simple device of as-
serting retroactively that the property it has taken
never existed at all. Whether the decision here worked
an unpredictable change in state law thus inevitably
presents a federal question for the determination of
this Court. [Citations.] The Washington court insisted
that its decision was “not startling”. [Citation.] What
is at issue here is the accuracy of that characterization.

See also Muhlker v. New York and II. R. Co., 197 U.S. 544
(1905) ; United States v. Title Insurance and Trust Co., 265
U.S. 472, 486-87 (1924); Appleby v. City of New York,

25

271 U.S. 364 (1926); Leo Sheep Co. v. United States, 440
U.S. 668, 682-83 (1979).

The issues raised by the California Supreme Court’s de-
cisions in these cases can be ultimately resolved ou y by this
Court. A review of the decisions at this time would go far
toward restoring stability to land titles in California and,

indeed, throughout the country.
Respectfully submitted,

Ebdanx B. WasHBuRN
Counsel for Petitioners
Of Counsel:
Wasnbunx, Kemp & Wacensei.
BannARA L. GarRLx

81-163~ |. Fil

No.

*
*

>t

1

JUL 27 1981

VERE ep nie VOUT, Us,

A

—

In the Supreme Co —

OF THE
United States
Octoser Term, 1980

Raymonp R. Lyon, Marcarer L. Lyon,
CALs F. Focerty, STELLA Focerry,

Russzll. S. Grove, Nancy J. Grove, HAnOl E. Esrient, Jr.,
KatHerine Fam Esricut, Georce Hicton Epmonpson,
Janet Lovise Epmonpson, Lawrence L. Lixpsey, In.,
Rosemary F. Linpsey, Homer M. Haywarp, Rem W. Dennis,
and Tanoz Meapows (a California corporation)
Petitioners,

vs.

State or Cauirornia, State Lanps Commission
or THE Strate or Cauirornia and DepaRTMENT
or Fin anp Game or THe State or Cairornia,
Respondents.

APPENDIX TO PETITION
FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF CALIFORNIA

Epear B. Wasusurn
One Embarcadero Center
Suite 2407
San Francisco, CA 94111
(415) 981-2121
Counsel for Petitioners
Of Counsel:
Wasusurn, Kempe & WaGENsEIL
Barsara L. GaTeiy
One Embarcadero Center
Suite 2407
San Francisco, CA 94111
(415) 981-2121

BOWNE-PERNAU WALSH * 190 NINTH GT. © &.F.. CA 84103 © (415) 864-2900

TABLE OF CONTENTS

Page
Appendix A-1: Lyon opinion A- 1
Appendix A-2: Fogerty opinion A-40
Appendix A-3: Trial court’s order in Lyon .................... A-54
Appendix A-4: Trial eourt’s order in Fogerty .............. A-57

Appendix B: Opinion of the California Court of
Appeal, Third Appellate District in Fogerty ............ A-60

Appendix C: Opinion of Attorney General Stanley J.
. ———— A-83

Appendix D: Letter opinion of Attorney General
Evelle J. Younger . * A-99

A-

APPENDIX A-1

In The Supreme Court of the State of California
[S. F. No. 23981, Mar. 20, 1981.]

THE STATE OF CALIFORNIA et al., Petitioners, v.
THE SUPERIOR COURT OF LAKE COUNTY, Respon-
dent; RAYMOND R. LYON et al., Real Parties in Interest.

OPINION

MOSE, J.—In City of Berkeley v. Superior Court (1980)
26 Cal.3d 515 [162 Cal.Rptr. 327, 606 P.2d 362], we
reaffirmed the ancient doctrine that tidelands—lands
between the lines of mean high tide and mean low tide—
are owned by the public, that the state holds these lands
in trust for the people for their use for commerce, naviga-
tion, fishing and other purposes, and that this trust interest
is retained even if the title to tidelands has been conveyed
to private persons, unless the conveyance has been made
to promote the purposes of the trust.

The present case also concerns lands along the shoreline,
but the issue here is the boundary between state and
private ownership in non-tidal, navigable lakes and streams
between high and low water, i.e., lands alternately covered
and uncovered by water as the level of the lake rises and
falls with the seasons. The Attorney General, representing
the People, claims that these lands are owned by the state,
which acquired title thereto by virtue of its sovereignty
upon admission to th» Union, that they have not been
conveyed to the owners of the lands along the shoreline,
and that even if such conveyances have been made, the

A-2

lands in dispute are subject to the trust described in City
of Berkeley. |

Raymond R. Lyon and Margaret L. Lyon, real parties
in interest (hereafter called Lyon) own 800 acres along
the shore of Clear Lake in Lake County, a navigable body
of water with an area of about 64 square miles. The
portion of the property involved in the present dispute
consists of more than 500 acres of marshland at the south-
ern end of the lake, known as the Anderson Marsh, most
of which is covered by water at certain times of the year.
Lyon’s predecessors in interest purchased the property
from the state under patents issued between 1850 and 1906.
These grants did not specify the waterward boundary of
the land conveyed. Lyon sought to develop the property
and applied for a permit to repair a levee for the purpose
of reclaiming a portion of the marsh. The Fish and Game
Commission notified him that it could not process his
application for a permit because the State of California
claimed ownership of the portion of the marsh which
extends below the high water mark.

Lyon filed an action against the state and various of its
agencies,’ seeking to quiet title to the marsh, and for
declaratory relief. He relied, inter alia, upon section 830
of the Civil Code.“ The section, which was adopted in 1872,
provides “Except where the grant under which the land
is held indicates a different intent, the owner of the

Lyon joined the Department of Fish and Game and the State
Lands Commission in the action. The commission has jurisdiction
over the beds of navigable waters owned by the state or in which
the state has an interest. (Pub. Resources Code, § 6301.)

All references are to the Civil Code unless otherwise noted.

A-3

upland, when it borders on tide-water, takes to ordinary
high-water mark; when it borders upon a navigable lake
or stream, where there is no tide, the owner takes to the
edge of the lake or stream, at low-water mark; when it
borders upon any other water, the owner takes to the
middle of the lake or stream.”

The People filed a cross-complaint to quiet title in the
state to the portion of the Anderson Marsh between high
and low water and for declaratory relief. The County of
Lake intervened in the action in its capacity as grantee
in trust of the state’s interest in the lands underlying the
lake. (Stats. 1973, ch. 639, §1, p. 1165.) The county sup-
ported Lyon’s claim that he owns the property to the line
of low water.

Lyon, the county, and the People, all moved for partial
summary judgment based on their respective claims. The
trial court ruled in favor of Lyon and the county (here-
after sometimes collectively referred to as Lyon) ; it deter-
mined that no portion of the Anderson Marsh lying land-
ward of the ordinary low water mark of Clear Lake is
sovereign property of the state or subject to a common
law public trust, but that the waters of the lake are
impressed with a public servitude so that when the water
rises above the low water mark, the public has the right to
navigate between that line and the ordinary high water
mark. The People seek a writ of mandate to compel the
trial court to vacate its order, and to grant the People’s

motion for partial summary judgment.
The case involves issues which are of vast importance to
the general public as well as to the owners of land bordering

A4

upon navigable lakes and streams. The significance of these
issues has generated extensive briefs by amici curiae,*
and their analyses and arguments have been of consider-
able assistance to the court. No less than 4,000 miles of
shoreline along 34 navigable lakes and 31 navigable rivers
in the state are involved. Substantial areas of land will be
affected by our decision; at Clear Lake alone, there is a
difference of 5,000 acres in the surface area of the lake
between high and low water, and the Anderson Marsh
constitutes one-half of the remaining fresh water marsh
at Clear Lake. Lands of the type involved in this proceed-
ing constitute a resource which is fast disappearing in
California; they are of great importance for the ecology,
and for the recreational needs of the residents of the state.

Lyon’s claim to the fee ownership of Anderson Marsh
to the low water line is based on the following reasoning:
California never acquired title to the beds underlying
navigable nontidal waters above low tide. The United
States Supreme Court has made it plain that the owner-
ship of such lands is a matter of state rather than federal
law. (Hardin v. Jordan (1891) 140 U.S. 371, 382 [35 L.Ed.
428, 433, 11 S.Ct. 808]; Barney v. Keokuk (1876) 94 U.S.
324, 338 [24 L.Ed. 224, 228].) The states exercised their
options with regard to ownership of such land by adopting

*The Department of Water Resources has filed an amicus brief
in support of the People, as have the Sierra Club and the Natural
Resources Defense Council (joint brief) and the Audubon Society
and Friends of the Earth (joint brief). The California Land Title
Association and the California Association of Realtors (hereafter
referred to as California Land Title Association) have filed a joint
brief on behalf of Lyon, and the Upper San Joaquin River Associ-
ation also supports Lyon’s position.

A-5

different rules; some states claim only to low water, some
to high water, and others make no sovereign claim to the
beds of nontidal bodies. Indeed, only a minority of states
claim sovereign ownership to high water.“ When California
entered the Union, it determined to exercise no sovereign
claim to the beds of nontidal navigable waters. This choice
was made when, upon admission to statehood, the Legis-
lature adopted a statute which provided that unless
inconsistent with applicable federal or state law, the
“Common Law of England shall be the rule of decision
in all Courts of this State.” (Stats. 1850, ch. 95, p. 219.)
Under English common law, the sovereign made no claim
to ownership of lands underlying nontidal waters. There-
fore, by the adoption of the English common law, Cali-
fornia made no claim to ownership of the beds of such
waters. Subsequently, by the enactment of section 830 in
1872, the state determined to claim title only to low water.

The People contend, on the other hand, that California
acquired title to the lands in question to the high water
mark in its sovereign capacity upon statehood, citing, inter
alia, State Land Board v. Corvallis Sand & Gravel Co.
(1977) 429 U.S. 363, 370-371 [50 L.Ed.2d 550, 558-559, 97
S.Ct. 582]; Barney v. Keokuk, supra, 94 U.S. 324, 338.
Moreover, argue the People, section 830 did not grant such
lands to private persons because that provision only sets
forth a rule for the construction of deeds and does not
constitute a grant of sovereign land.

*Approximately 20 states adopt a low water line for
lakes and rivers, a few allow private ownership to the middle of
the water, and other jurisdictions have adopted different rules for
lakes and rivers. Ten jurisdictions have adopted the high water
rule. (See fn. 9 at p. post.)

A-6

We consider, first, whether California acquired sovereign
ownership in the lands between low and high water in
nontidal, navigable lakes and rivers upon admission to the
Union. If this question is answered in the negative, the
People’s claim to fee ownership of these lands cannot
prevail. If, on the other hand, the state owned the property
in question at the time of admission to the Union, it will
be necessary to decide whether, by the enactmert of section
830 in 1872, it granted an interest therein to riparian land-
owners and, if so, the extent of the interest conveyed.

We begin with the proposition that, even accepting
Lyon’s assertion that the state did not automatically suc-
ceed to title to the beds of navigable nontidal lakes and
streams to high water upon statehood but only had the
option to make such a claim, absent an indication that
the new state declined to exercise sovereign ownership
of such lands, we would be compelled to decide the issue
in favor of the state’s title. The only basis for a claim that
California abdicated its rights to claim to high water in
1850 was the adoption of the common law of England as
the rule of decision in this state.“

he disagreement between the parties in this regard appears to

lands in question to high water as an inherent aspect of sovereignty,

830 in 1872, the state elected not to exercise its right to claim
ownership of the land between low and hgh water.

A-7

In England, there were different rules concerning the
ownership by private persons of the beds of tidal waters
and nontidal waters. Nontidal rivers and lakes were pri-
vately owned; a riparian holder took to the middle of
the lake or the thread of the stream, much like the land-
owner along a public street. At the same time, the beds
of all navigable waters were said to belong to the crown,
and the King held such property in trust for the public
and could not dispose of it free of that trust. Only waters
where the tide ebbed and flowed were considered to be
navigable in England. The reason for the difference in
these rules is readily explainable: in England there were
no navigable streams of any importance beyond the ebb
and flow of the tide. Therefore, the terms “navigable”
and “tidal” became synonymous; tidal (navigable) waters
came to mean public waters, while nontidal (and in En-
gland nonnavigable) waters came to mean private waters.
(The Propeller Genesee Chief et al. v. Fitzhugh et al.
(1851) 53 U.S. (12 How.) 443, 454-458 [13 L.Ed. 1058,
1063-1065]; Barney v. Keokuk, supra, 94 U.S. 324, 338.)°

Some of the original 13 states adopted the common law
rule early in their history, for the same reason that the
rule was appropriate in England, i.e., most of their waters
were tidewaters, and until the use of steamboats “there
could be nothing like foreign commerce upon waters with

*The People contend that although the common law rule has
generally been assumed to be as described above, there is some
authority for the proposition that the tidal character of a body of
water was not a critical factor in England in the determination of
navigability. Numerous cases in addition to those referred to above
support our characterization of the English rule. We need not
discuss the authorities upon which the People rely, since we shall
conclude that the common law test was not adopted in California.

A-8

an unchanging current resisting the upward passage.”
(The Propeller Genesee Chief, 53 U.S. at p. 455 [13 L.Ed.
at p. 1063].) However, the English rule was obviously inap-
propriate as the nation expanded westward, where there
were great rivers and lakes which were navigable in fact,
even though they were not subject to the ebb and flow of
the tide. These distinctions, and the inapplicability of the
common law rules to conditions in much of the United
States were recognized as early as 1851 by the United
States Supreme Court. In The Propeller Genesee Chief
it was held that the federal government had admiralty
jurisdiction in rivers and lakes which were navigable in
fact, whether or not the tide ebbed and flowed therein. In
1856, the courts of this state recognized that the tidal
character of a body of water was not a proper test of
navigability. (American Water Co. v. Amsden (1856) 6 Cal.

443, 446.)

The question of public ownership of navigable rivers and
lakes was discussed in McManus v. Carmichael (1856) 3
Iowa 1. That case, which involved the boundary of public
ownership along the Mississippi River, contains an exhaus-
tive analysis of the common law rule of England and its
application by early American courts. The court held that
only those parts of the common law which were suitable
to the conditions in Iowa were adopted by the new state.
The opinion asks, rhetorically and somewhat floridly,
“whether the rules and tests which are applicable enough
to the rivulets of England, shall be taken to measure those
waters whose flow is through the climates and zones of
the earth?” (Id. at p. 31.) Needless to say, it held that
the state owned the beds of navigable, nontidal bodies to

A-9

high water, and that the common law rule was inappro-
priate to the United States because the great nontidal
rivers and lakes in this country are navigable in fact.
Other states recognized the inapplicability of the English
rule to conditions in this country prior to 1850. (E.g.,
Carson v. Blazer (Pa. 1810) 2 Binn. 475, 484-486; Cates v.
Wadlington (S.C. 1822) 1 MeCord 580, 582.)

In Barney v. Keokuk, supra, 94 U.S. 324, the high court
considered the rule declared in McManus, and left no doubt
the correct doctrine was laid down by that case, i.e., that
the states own the beds of navigable, nontidal bodies to
high water, and that the common law is inapplicable to
conditions in the United States. Nevertheless, it held that
states which had adopted the common law rule had the
power to determine whether “as rules of property” it would
be safe to change their adherence to the common law. After
reaching these conclusions, the court made a statement
upon which Lyon places great reliance: “If they [the
states] choose to resign to the riparian proprietor rights
which properly belong to them in their sovereign capacity,
it is not for others to raise objections.” (Jd. at p. 338
[24 L.Ed. at p. 228].) Later cases repeated the proposi-
tion that the states are free to determine the ownership
of lands below high water mark in navigable, nontidal
lakes and streams. (Hardin v. Jordan, supra, 140 U.S.
371, 382 [35 L.Ed. 428, 433]; Shively v. Bowlby (1894)
152 U.S. 1, 40 [38 L.Ed. 331, 346, 14 S.Ct. 548].)

With this background, we consider whether we are com-
pelled to conclude, as Lyon asserts, that by the adoption
of the English common law in 1850, California accepted

A-10

the rule of private ownership of nontidal navigable waters
so that title to their beds was never in the state but was
granted directly to private riparian owners. We do not
so conclude.

First, our courts have never adhered slavishly to com-
mon law doctrines if they were unsuitable to the eireum-
stances of our people or if the conditions were those never
contemplated by the common law. (Van Ness v. Pacard
(1829) 27 U.S. (2 Pet.) 137, 143-144 [7 L.Ed. 374, 376-
377]; Jones v. California Development (1916) 173 Cal.
565, 573-574 [160 P. 823].) Crandall v. Woods (1857) 8 Cal.
136, 142-143, referred to the English test of navigability
as a rule “framed with special reference to the physical
condition of a country differing widely from our own.” The
law is replete with situations in which this and other juris-
dictions which adopted the common law have refused to
follow those aspects which were unsuitable to local condi-
tions. (See Traynor, Statutes Revolving in Common-Law
Orbits (1968) 43 State Bar J. 509, 518 et seq.; Hall, The
Common Law (1951) 4 Vand.L.Rev. 791, 805 et seq.) If
we were to hold, as Lyon urges, that the adoption of the
common law in 1850 signified the acceptance in this state
of the English rule regarding the ownership of the lands
in question, we would “apply a rule founded on a particu-
lar reason, to a case where that reason utterly fails.”
(Crandall at p. 143.) “

Lyon appears to argue that because The Propeller Genesee
Chief was not decided until 1851, the year after California entered
the Union, and Barney was not decided until four years after sec-
tion 830 was enacted into law, the holdings of these cases may not
be considered in deciding whether California, by adopting com-

A-11

Rejection of the common law rule is also supported by
the enactment of section 830 in 1872. As we have seen,
under English common law, a riparian landholder owned
land beneath nontidal waters to the middle of the lake or
the thread of the stream; the King had no ownership
interest in such lands. Under the terms of section 830,
according to Lyon, the boundary between public and
private ownership was set at the low water line. If we were
to accept Lyon’s assertion, we would be led to the entirely
irrational conclusion that, although California, by the
adoption of the common law in 1850, granted fee title to
lands beneath navigable nontidal waters to the center line,
22 years later it deprived riparian owners of their property
to the center by the enactment of section 830, and decreed
that henceforth they owned only to the low water mark.“

agree. These cases and many others (including some cases cited
above decided before 1850) demonstrate that the common law rule
regarding nontidal waters is inappropriate to conditions in this
state. The concept that only common law doctrine applicable to
local conditions has been incorporated into our law is as old as

*Wright v. Seymour (1886) 69 Cal. 122, 127 [10 P. 323], is relied
upon by Lyon for the proposition that section 830 merely codified
the common law. It is true that the decision states the section is a
“declaration of the law . . as it has existed since the formation of
our state government.” However, this statement was made with
reference to the portion of section 830 relating to tidal waters.

Lyon does not directly discuss the inconsistency between his

this approach is that it skirts the critical issue whether the state or

A-12

Finally, we observe that the jurisdictions which hold
the high water line to be the boundary between private
and public ownership have also adopted the common law as
the rule of decision.’ These cases demonstrate that there
is an inconsistency between not accepting the English rule
regarding the ownership of the beds of nontidal, navigable
lakes and rivers and the adoption of the common law as
the rule of decision.

The conclusion follows that California succeeded to the
ownership of the beds of such waters upon its admission
to the Union, to the high water mark.

private persons owned the beds of navigable, nontidal bodies to
high water between 1850 and 1872. If California followed the
English common law, then private persons owned these lands to
the center line and were deprived of their property between that
line and low water by the enactment of section 830. If, as we con-
clude above, the common law rule was not adopted in this respect,
then the lands were owned by the state to high water, at least until
1872. Amicus curiae California Land Title Association, recognizing
this anomaly, asserts that enactment of section 830 amounted to
an unconstitutional taking of lands of riparian owners between
the center line and low water mark.

*Alaska (State, Dept. of Natural Resources v. Pankratz (1975)
538 P.2d 984, 988); Arizona (State t Bonelli Cattle Company
(1971) 107 Ariz. 465 [489 P.2d 699, 701-702], revd. on other
grounds (1973) 414 U.S. 313 [38 L.Ed.2d 526, 94 S.Ct. 517], over-
ruled in Corvallis Sand & Gravel Co., supra, 429 U.S. 363, 382
[50 L.Ed.2d 550, 565]); Arkansas (Anderson v. Reames (1942) 204
Ark. 216 [161 S.W.2d 957, 959]); Florida (Martin v. Busch (1927)
93 Fla. 535 [112 So. 274-283]); Idaho (Gasman v. Wilcox (1934)
54 Idaho 700 [35 P.2d 265, 266]); Kansas (Siler v. Dreyer (1958)
183 Kan. 419 [327 P.2d 1031, 1033]); Oklahoma (State v. Nolegs
(1 4) 40 Okla. 479 [139 P. 943, 946]); Oregon (Brusco Towboat
Co. v. State, By and Through Straub (1977) 30 Ore.App. 509 [567
P.2d 1037, 1040, 1042]); Utah (Provo City v. Jacobson (1947) 111
Utah 68 [181 P.2d 213, 214]; Washington (State v. Superior Court
(1912) 70 Wash. 442 [126 P. 945, 947]).

A-13

We next consider whether the Legislature granted the
lands in question to private persons by the enactment of
section 830 in 1872. We do not doubt that the state had
the power to make such grants. (See, e.g., State Land
Board v. Corvallis Sand d Gravel Co., supra, 429 U.S. 363,
375 [50 L.Ed.2d 550, 561]; Barney v. Keokuk, supra, 94
U.S. 324, 338; Hardin v. Jordan, supra, 140 U.S. 371, 382
[35 L.Ed. 428, 433].) The question is whether section 830
was intended to accomplish this result.

As we have seen, the section provides that [except
where the grant under which the land is held indicates a
different intent, the owner of the upland, . . . when it
borders upon a navigable lake or stream, where there is no
tide, . . takes to the edge of the lake or stream, at low
water mark... .””’ Section 830 was a part of the Field
Code, and when it was enacted in 1872, the Legislature
added section 670 as well as section 2077 of the Code of
Civil Procedure. Section 670 provides that the state is the
owner of “all land below the water of a navigable lake or
stream. Section 2077 sets forth rules for construing
conveyances in situations where the construction is doubt-

upon
edge of the lake at low water mark; when it borders upon any
other water, the owner takes to the middle of the lake or stream.”
was amended in 1874 to its present form. (Stats. 1873-

1874, Amend. to the Codes, ch. 612, p. 220.) The People rely upon
change as indicating that the section was intended to set forth

A-14

ful. It provides that a deed to land bordering a navigable
nontidal lake is to be construed as conveying the right of
the grantor to low water mark.

The People urge that section 670 is a rule of property,
and sections 830 and 2077 are rules of construction. They
point out that section 830 contains no words of conveyance,
such as “grant” or “quitclaim,” and argue that to construe
the section as a grant of thousands of linear miles of lands
owned by the public would violate the rule that grants by
the public to a private party are to be construed in favor
of the public. (§ 1069; People v. Centr-O-Mart (1950) 34
Cal.2d 702, 703 [214 P.2d 378]; Oakland v. Oakland Water
Front Co. (1897) 118 Cal. 160, 174-175 [50 P. 277].) Lyon
claims, on the other hand, that section 830 constitutes a
rule of property, and that by enactment of the section, the
state granted to riparian owners the lands to low water.

The parties cite numerous cases in support of their
respective positions as to the interpretation of the section.
We have examined these cases, and we find that while they
contain dicta, suggestions, and implications from which
one side or the other may take comfort, none contains a
direct holding on the question whether section 830 was
intended to constitute a grant of property between high
and low water in navigable lakes and rivers.

Lyon relies upon Packer v. Bird (1886) 71 Cal. 134 [11
P. 873]. In that case, the plaintiff claimed ownership of an
island in a navigable portion of the Sacramento River,
asserting that his patent extended to the thread of the
stream, which included the island. The court held that his

A-15

title went only to the “edge of the stream” and did not
inelude the island. The quoted words are obviously ambigu-
ous, but Lyon, in support of the argument that the “edge
of the stream” means low water, relies upon the briefs of
the parties in the case, which discussed the import of
sections 830 and 670. Reference in a brief to these statutes
is insufficient to clarify the ambiguous language employed
by the court.”

The case most favorable to the position of Lyon is the
City of Los Angeles v. Aitken (1935) 10 Cal.App.2d 460
[52 P.2d 585]. There the court declared that the title of
private landholders in a navigable nontidal lake extended
to low water mark, citing section 830, and that the state
was the owner below low water, citing section 670. How-
ever, the statement was dictum, since the only issue in the
case was whether Los Angeles, which sought to condemn
fee simple title to the littoral rights of landowners to
maintain the natural level of the lake, could avoid payment
of substantial damages because of the poor quality of the
water for domestic use.”

"Packer was affirmed by the United States Supreme Court, which
also employed ambiguous language in its decision. (Packer v. Bird
(1891) 137 U.S. 661, 672 [34 L.Ed. 819, 822, 11 S.Ct. 210].) Later
decisions of the high court cited Packer for the proposition that the
jurisdiction of California in nontidal navigable waters extends to
high water. (Hardin v. Jordan, supra, 140 U.S. 371, 382-383 [35
L.Ed. 428, 433-434]; Shively v. Bowlby, supra, 152 US. 1, 44-45
[38 L.Ed. 331, 347-348].)

Other cases relied upon by Lyon either make no reference to
section 830 (Maginnis v. Hurlbutt (1920) 49 Cal. App. 460 [193
P. 606]; Crews v. Johnson (1962) 202 Cal.App.2d 256, 258 [21 Cal.
Rptr. 37] [in a dispute between adjoining littoral owners at Clear
Lake, the court stated that the parties conceded that private owner-

A-16

The People rely primarily on Churchill Company v.
Kingsbury (1918) 178 Cal. 554 [174 P. 329]. In that case,
the petitioner sought to compel the surveyor-general to
perform acts preliminary to issuance of a patent for the
lands between high and low water in Little Klamath Lake,
which the court found to be navigable. The petitioner
relied upon the terms of an 1893 statute in support of his
claim. It was held that the statute did not authorize the
issuance of the patent. In the course of its opinion, the
court noted that the petitioner took the position that “the
land is, in fact sovereign land of the state, and in this,
we think it is clearly right.“ (178 Cal. at p. 558.) The
statement was dictum, the court did not cite section 830,
and Lyon points out that the briefs of the parties in the

e did not bring the section to the attention of the court.
(see also People v. Morrill (1864) 26 Cal. 336, 356.)

If the decisional law is ambiguous regarding whether
section 830 constitutes a grant or a rule for the construc-
tion of deeds, the same cannot be said of the administrative
interpretation of the provision. Lyon has produced a
voluminous body of evidence demonstrating that, with few

ship of the submerged lands extended to low water] ) or refer to the
section but do not discuss its meaning (Craig v. White (1921) 187
Cal. 489, 492 [202 P. 648] [the court cited § 830 for the proposition
that patents issued by the federal government conveyed title to the
patentees to “the actual margin of the lake]; Foss v. Johnstone
(1910) 158 Cal. 119, 130 [110 P. 294] [citing § 830 as setting forth
“certain incidents attaching to lands bordering upon waters” in a
case involving a nonnavigable pond].) In United States v. Gossett
(9th Cir. 1969) 416 F.2d 565, 568-569, the court classified Cali-
fornia as a low water jurisdiction, apparently based largely upon
the disclaimer by California’s Attorney General to ownership of the
state above that line.

A-17

exceptions, state authorities, including the Attorney Gen-
eral, took the position until at least 1970 that by virtue of
the provisions of section 830 the state claimed ownership
only to the low water mark. (See 43 Ops.Cal.Atty.Gen. 291,
295 (1964); 30 0, . Cal. Atty. Gen. 262, 269 (1957); 23 Ops.
Cal. Atty. Gen. 300, 307 (1954); 23 Ops. Cal. Atty. Gen. 97, 98
(1954).) In 1970, the Attorney General reexamined this
position, and reversed his opinion, and in the trial of a
condemnation action involving the Feather River (People
v. Shasta Pipe and Supply Co. (Sup. Ct. Butte Co., No.
37390), and in other actions thereafter, asserted that the
state owned the land under navigable lakes and streams to
high water. In 1977, the Attorney General advised the
State Lands Commission of this position. a 5

According to affidavits, the files of the State Lands
Commission contain hundreds of letters stating or implying
that the state’s ownership extends waterward of the ordi-
nary low water mark.

Finally, the Legislature has impliedly accepted the low
water mark of Clear Lake as the boundary of the state’s
ownership. The state has conveyed to Lake County its title
to Clear Lake, in trust. The language of the grant assumes
that the state’s interest is to low water mark. (Stats. 1973,
ch. 639, § 1, p. 1165.)*

Section 1 of the statute, after granting to the county, in trust,
the state’s interest in Clear Lake, provides, “The low water mark
for Clear Lake has not been determined, and such determination
may have to be made by judicial adjudication. Subject to such later
determination and for the purpose of the administration of this
grant only, the low-water mark shall be considered by the parties

to this grant as being zero on the Rumsey Gauge.” The Rumsey

A-18

We are aware of the rule that the administrative con-
struction of a statute is not necessarily determinative
(Whitcomb Hotel, Inc. v. Cal. Emp. Com. (1944) 24 Cal. 2d
753, 756-757 [151 P.2d 233, 155 A.L.R. 405), but we cannot
ignore these long-continued and frequently expressed views
to the effect that section 830 constitutes a grant to private
persons of title to the beds of navigable, nontidal bodies
to low water mark. It cannot be said that the statute is
so clear and unambiguous that these expressions may be
disregarded. In this connection, we note that two states
which adopted a statute similar to section 830 as part of
the Field Code, interpret their enactments as conveying
title to riparian owners to the low water mark in navigable,
nontidal waters. (Mont. Rev. Codes 1947, § 67-712; Herrin
v. Sutherland (1925) 74 Mont. 587 [241 P. 328, 331, 42
A.L.R. 937]; N.D. Cent. Code, § 47-01-15; Hoque v. Bour-
gois (N.D. 1955) 71 N.W.2d 47, 52 [54 A.L.R.2d 633.) “

We conclude, therefore, that Lyon has title to the low
water mark of Clear Lake.

Gauge refers to a method by which Captain George Rumsey estab-
lished the level of Clear Lake. The intersection of zero on that
gauge with an elevation of 1,318.65 feet may represent the low
water mark of the lake.

“There is no merit in the argument of the People that because
section 830 has been employed to construe deeds in disputes in-
volving nonnavigable waters (Hess v. Merrell (1947) 78 Cal. App.
2d 896, 899-900 [178 P.2d 467]) and tide waters (Lynch v. Kupfer
(1933) 134 Cal. App. 652, 656 [26 P.2d 33]), the provision cannot
be viewed as a rule of property in nontidal cases. We find nothing
inconsistent in the notion that the provision may state a rule of
property and may also constitute a rule for the construction of
deeds.

A-19

We come, then, to the question whether the grant of
lands between high and low water made by section 830 to
riparian landholders is free of the trust described in City
of Berkeley. It is well settled that if the state holds these
lands in trust for the benefit of the public, its conveyance
of title to private persons does not necessarily free the
property from the burden of the public trust. Instead,
unless the conveyance is made for the purpose of pro-
moting trust goals, the grantee takes title subject to the
rights of the public. This was the holding in City of
Berkeley and in People v. California Fish Co. (1913) 166
Cal. 576, 596 [138 P. 79].

In City of Berkeley, we were concerned with whether
22,299 acres of tidelands in San Francisco Bay, granted to
private persons by deeds purportedly in fee, between 1868
and 1870, were subject to the tidelands trust. We answered
this question in the affirmative. We observed that under
the venerable doctrine of the tidelands trust, which had its
origin in Roman law, tidelands are owned by the state in
trust for the public, for their use for commerce, naviga-
tion, fishing, recreation, or for the purpose of preserving
the property in its natural state. Grants of such lands to
private persons are subject to the trust unless the convey-
ances are made to enhance trust purposes. We determined
that the grants in question were not made for such pur-
poses, and that in any event, the state was not empowered
to make such vast grants to private parties in its role
as trustee.

The holding of California Fish is similar. There it was
decided that, although various statutes authorizing the
alienation of tidelands into private ownership effectively

A-20

passed title, the grantees took subject to the rights of the
public because the grants in question were not made for
the purpose of promoting the aims of the trust.

Lyon and amicus California Land Title Association urge
that there is not and never has been a doctrine that non-
tidal, navigable waters are subject to a public trust. Rather,
they claim, such waters are impressed only with a “reecre-
ational or navigational easement” which allows the public
to use only the waters, so that when they rise above low
water mark, the public may use them for navigation or
fishing, but the bed between low and high water belongs
to the riparian owner and when the water recedes the
public has no right to use of the land above the low water
mark.

The People and supporting amici curiae rely upon arti-
cle X, section 4 of the Constitution,” which provides for
freedom of access to and the right of navigation upon
waters that are navigable. They rely also upon numerous
eases which declare that California owns the lands under
navigable waters in trust, without distinguishing between
tidal and nontidal bodies in this regard. (See, e.g., Colberg,
Inc. v. State of California (1967) 67 Cal.2d 408, 416 [62
Cal.Rptr. 401, 432 P.2d 3]; Boone v. Kingsbury (1928) 206

This provision was adopted in 1879 as article XV, section 2. It
states: “No individual, partnership, or corporation, claiming or
possessing the frontage or tidal lands of a harbor, bay, inlet, estuary,
or other navigable water in this State, shall be permitted to exclude
the right of way to such water whenever it is required for any
public purpose, nor to destroy or obstruct the free navigation of
such water; and the Legislature shall enact such laws as will give
the most liberal construction to this provision, so that access to the
navigable waters of this State shall be always attainable for the

people thereof.”

A-21

Cal. 148, 189 [273 P. 797]; People v. Gold Run D. & M. Co.
(1884) 66 Cal. 138, 151 [4 P. 1152].)

In our view, Jllinois Central Railroad Company v.

Iljmois (1892) 146 U.S. 387 [36 L.Ed. 1018, 13 S.Ct.
Ae we described in City of Berkeley as the “semi-
case on the scope of the public trust doctrine” (26
Cal.3d at p. 521), settled the issue. It held very clearly
that the applicability of the public trust doctrine does
not turn upon whether a body of water is subject to the
ebb and flow of the tide, but upon whether it is navigable

in fact.

Illinois Central involved a grant by the State of Illinois
of 1,000 acres of the bed of Lake Michigan constituting
the entire harbor of the City of Chicago, to the Illinois
Central Railroad. The high court held that the grant was
revocable, that the state held these lands in trust for the
public, and that it was powerless to relinquish its rights
as trustee. The opinion addressed itself specifically to
whether the trust doctrine was inapplicable because there
was no appreciable tide in Lake Michigan. It rejected this
premise in the following unmistakable language:. . . by
the common law, the doctrine of the dominion over and
ownership by the crown of lands. . . under tidewaters is
not founded upon the existence of the tide over the lands,
but upon the fact that the waters are navigable, tide waters
and navigable waters . . being used as synonymous terms
in England. The public being interested in the use of such
waters, the possession by private individuals of lands
under them could not be permitted except by license of
the crown, which could alone exercise such dominion over

A-22

the waters as would insure freedom in their use so far
as consistent with the public interest. The doctrine is
founded upon the necessity of preserving to the public
the use of navigable waters from private interruption and
encroachment, a reason as applicable to navigable fresh
waters as to waters moved by the tide. We hold, therefore,
that the same doctrine as to the dominion and sovereignty
over and ownership of lands under the navigable waters
of the Great Lakes applies, which obtains at the common
law as to the dominion and sovereignty over and owner-
ship of lands under tide waters on the borders of the sea,
and that the lands are held by the same right in the one
ease as in the other, and subject to the same trusts and
limitations.” (146 U.S. at pp. 436-437 [36 L.Ed. at pp.
1036-1037].)

Lyon and amicus California Land Title Association
insist that the holding of Illinois Central is confined to
the Great Lakes, which are “special because of their size
and importance in interstate commerce.” While it is true
that the opinion emphasizes the importance of the Creat
Lakes for commerce, the portion of the opinion quoted
above makes it clear that it is navigability which is the
touchstone in determining whether or not the public trust
applies. The application of the trust doctrine to tidal
waters is not confined to those bodies which are huge in
size and important for purposes of commerce; we can see
no reason why such a test should not be applied to nontidal
waters. Nor does Illinois Central set forth a special rule
relating to Lake Michigan. Other jurisdictions have recog-
nized that the doctrine enunciated in that case applies to
nontidal bodies which cannot be characterized as “inland

A-23

seas.” (E. g., State v. Southern Sand d Material Co. (1914)
113 Ark. 149 [167 S.W. 854, 856]; State v. Korrer (1914)
127 Minn. 60 [148 N. W. 617, 623]; Flisrand v. Madson
(1915) 35 S.D. 457 [152 N.W. 796, 801]; Hazen v. Perkins
(1918) 92 Vt. 414 [105 A. 249, 251 23 A.L.R. 748]; State
v. Public Service Commission (1957) 275 Wis. 112 [81
N.W.2d 71, 73-74.) It is noteworthy that South Dakota,
like California, has adopted a provision similar to sec-
tion 830 but, as Flisrand makes clear, the state has im-
pressed a trust for public uses on the riparian owner’s
property between high and low water.

Another matter of interest in this connection is that an
opinion of the California Attorney General relied upon by
Lyon for the proposition that section 830 has been inter-
preted by state officials as setting a low water boundary
for public ownership explicitly qualified this opinion by
the statement that the riparian owner’s title between
low and high water is held in trust to preserve the rights
of commerce and navigation for the public. (43 Ops.Cal.
Atty.Gen., supra, 291, 294.) “

of

Ct. 569], it was said that although Illinois Central was “neces-
sarily a statement of Illinois law,” the general principle declared
therein has been recognized throughout the country.

The opinion states, Upon its admission to the Union, Cali-
fornia acquired title to all land below the high water mark of all
navigable water within its territory, whether or not such water was
tidal. This title is held in trust for the people of the State, in order

A-24

Our conclusion that the public trust is applicable to
nontidal waters is also pertinent to the consideration of
Lyon’s argument, apparently accepted by the trial court,
that as to the area between high and low water the public
has an interest only in the water itself, so that it may use
the water for boating and fishing, but when a lake or
stream is at low water, the public has no right to use the
bed to the high water mark. In Marks v. Whitney (1971) 6
Cal.3d 251, 259 [98 Cal.Rptr. 790, 491 P.2d 374], we held
that, although early cases had expressed the scope of the
public's right in tidelands as encompassing 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.

We see no justification in reason or authority for the
proposition advanced by Lyon. In People ex rel. Baker v.
Mack (1971) 19 Cal.App.3d 1040 [97 Cal. Rptr. 448], relied
upon by Lyon as holding that the public interest in non-
tidal waters is confined to the waters themselves, the
primary issue was the navigability of a section of the Fall
River, which defendants had obstructed by erection of
booms, fences and bridges, preventing plaintiff from boat-
ing, hunting and fishing in the stream. The court adopted
a broad definition of navigability, holding that any waters
which could be used for recreation were navigable and

to preserve the right of commerce and navigation for the public. . . .

“There is no requirement that the state claim all land below high
water mark. As long as the rights of the public are not impaired,
the state may permit private ownership of land beneath non-tidal,
navigable waters.”

A-25

could be used by the public. In the course of its opinion, the
court made the following statement, upon which Lyon
relies : “[M]embers of the public have the right to navigate
and to exercise the incidents of navigation in a lawful
manner at any point below high water mark on waters of
this state which are capable of being navigated by oar or
motor-propelled small craft.” (19 Cal.App.3d at p. 1050.)

We fail to see how Lyon can find comfort in this state-
ment. It does not mean that the publie's rights are confined
to the waters as such, but merely attempts to distinguish
between waters capable of commercial use—which were
there claimed to be the test of navigability—and those
capable of recreational use. Other cases cited by Lyon also
fail to support his position.”

Nevertheless, argues Lyon, there is a sound reason in
logie why tidal and nontidal waters should be treated

"*Hitchings v. Del Rio Woods Recreation, & Park Dist. (1976)
55 Cal.App.3d 560 [127 Cal.Rptr. 830], was an action for declara-
tory relief to determine whether a certain portion of the Russian
River was navigable. The court adopted the broad recreational use
test of navigability set forth in People ex rel. Baker v. Mack, supra,
19 Cal.App.3d 1040, 1050, and held that the river was deemed in
law to be navigable even though it was not in fact navigable for
some part of the year.

In Bohn v. Albertson (1951) 107 Cal.App.2d 738 [238 P.2d 128],
a tract of land was flooded when a levee broke. The flooding con-
verted the land into a navigable body of water, upon which plea-
sure boats sailed and the public fished. It was held that the land-
owner could not charge the public for use of the water because
rn | So oe bow
However, the court held that the landowner had the right to re-
claim the land since he had not lost title when it was suddenly
flooded by the break in the levee, in accordance with the estab-
lished rule governing avulsion.

A-26

differently insofar as these publie's rights are concerned.
He asserts that because tidelands are subject to inundation
on a daily basis and nontidal waters are inundated only
seasonally, tidelands are constantly suhject to use for
commerce, navigation and fishing, while te strip of land
between low and high water in a nontidal body is only
useful for such purposes for a limited portion of the year.
Therefore, he concludes, the necessity for impressing non-
tidal waters with the public trust is greatly reduced.

But this contention is predicated on an exceedingly
narrow view of the purposes of the public trust. As
Justice MeComb pointed out for a unanimous court in
Marks v. Whitney, supra, 6 Cal.3d 251, 259, the public’s
rights in tidelands are not confined to commerce, naviga-
tion and fishing, but include recreational uses and the right
to preserve the tidelands in their natural state. We discern
no valid reason why the scope of the publie's right in
nontidal waters should not be equally broad. Lyon’s
assertions in this regard imply the resurrection of the
common law distinction between tidal and nontidal waters
—a distinction which has been thoroughly discredited in
this country. As was said in Illinois Central, when the
United States rejected the English rule that admiralty
jurisdiction was confined to tidewaters because it was
inapplicable to the conditions in this country, “the limita-
tion and all its incidents were discarded.” (146 U.S. 387 at
p. 436 [36 L.Ed. 1018 at p. 1036].) We hold that the
same incidents of the trust applicable to tidelands also
apply to nontidal navigable waters and that the public’s
interest is not confined to the water, but extends also to
the bed of the water.

A-27

In California Fish it was held that a statute authorizing
the conveyance of tidelands will not be interpreted to
abandon the public trust unless no other interpretation is
reasonably possible. Nothing in the language of section 830
requires a conclusion that riparian landholders take free
of the public’s rights in the lands between low and high
water in navigable lakes and streams. We conclude, there-
fore, that Lyon’s title to such lands is impressed with the
public trust.

Lyon’s final argument is that his ownership of the
Anderson Marsh to low water free of the public trust is a
“rule of property” and that a determination applying a
trust to such property would accomplish a taking of private
property in violation of federal and state constitutional
provisions. He relies upon cases which recognize the pro-
tection of property rights afforded by the federal and
state Constitutions. (Board of Regents v. Roth (1972) 408
U.S. 564, 577 [33 L.Ed.2d 548, 561, 92 S.Ct. 2701]; Agins v.
City of Tiburon (1979) 24 Cal.3d 266, 273-274 [157 Cal.
Rptr. 372, 598 P.2d 25]; House v. L.A. County Flood Con-
trol Dist. (1944) 25 Cal.2d 384, 391 [153 P.2d 950].) (4)
(See fn. 19.) We doubt whether any failure of the state
to previously assert its trust rights in the lands below
high water (but see 43 Ops. Cal. Atty. Gen., supra, 291,
294) constitutes a “rule of property.“

In Abbott v. City of Los Angeles (1958) 50 Cal.2d 438, 456
[326 P.2d 484], a “rule of property” was defined as “A settled rule

ple appears to be an extension of the ‘stare decisis’ rule, which . .
seems to apply with peculiar force and strictness to decisions which

A-28

Indeed, in some respects, our holding constitutes less
of an interference with property rights than occurred in
Illinois Central, California Fish, and City of Berkeley. In
those cases, the landowners had received outright grants
from the state, purportedly in fee, while the title of Lyon
to the lands in issue here is based only upon administrative
interpretation of an ambiguous statute. In Illinois Central
the high court held that the grant of the lands in question
was revocable—not merely that the railroad held the
property subject to the trust—on the ground that [there
can be no irrepealable contract in a conveyance of property
by a grantor in disregard of a public trust, under which
he was bound to hold and manage it.” (146 U.S. 387, at
p. 460 [36 L.Ed. 1018, at p. 1045 J.) And, in California Fish,
in response to an argument by the grantees that the public
should be estopped to claim any interest in the tidelands
it had sold into private ownership, the court declared that
the grantees had received title to the soil (subject to the
public trust), and that they had “received consideration
for their money, and it is to be presumed that they bought

have determined questions respecting real property and vested
rights.

Lyon’s reliance on the rule of property” which he espouses is
open to question. The agreement under which he purchased
Anderson Marsh provides that the seller does not warrant owner-
ship of lands below zero mark on the Rumsey Gauge, and it makes
provision to set aside some of the purchase monies in trust in the
event a governmental body claims property above that point. More-
over, title insurance policies relating to the property except from
coverage claims of the state to any portion of the property lying
within the bed of the lake, any rights of the public for commerce,
navigation or fishing, and any adverse claim to lands created by
artificial means.

A-29

with knowledge of the law on the subject.” (5) (See fn. 20.)
In at least two jurisdictions in which the matter has been
considered, the fact that the land between high and low
water is owned by private parties is held not to prevent
the imposition of the public trust to the high water mark.
(State v. Korrer, supra, 148 N.W. 617, 623; Flisrand v.
Madson, supra, 152 N.W. 796, 801.)”

We emphasize that Lyon is not deprived of the use of
the lands between low and high water, and that he may
utilize them in any manner not incompatible with the
publie's interest in the property.“

Let a writ of mandate issue directing the trial court to
vacate its order granting Lyon partial summary judgment,
and to grant the People’s motion for partial summary judg-
ment insofar as consistent with the views expressed above.

Bird, C. J., Tobriner, J., and Newman, J., concurred.

propriate boundary between public and private ownership is to be
measured in accordance with the “last natural” ordinary low water
mark of the lake, le., the water level in existence prior to the
construction of a dam in 1914. The People argue that the proper
standard of measure is the lake in its current condition. This issue
is also presented in State of California v. Superior Court (Fogerty)
(1981) post, at page 240 [—Cal. Rptr—, —P.2d—], and it is dis-

Lyon has moved to strike the People’s “Replication to Answer
to Petition for Writ of Mandamus” and an appendix to that brief.
The People filed a motion to strike certain portions of the brief
of amicus curiae California Land Title Association. These motions
are denied.

A-30

CLARK, J., Concurring and Dissenting.— The majority
opinion overwhelmingly establishes that by statute, case au-
thority and practice California historically has not claimed
title to land between the high and low water marks of in-
land bodies of water. I thus concur in the majority holding
that Lyon has fee title to lands above the low water mark
of Clear Lake.

However, I must dissent from the holding that lands
lying along navigable streams and lakes between high and
low water levels are subject to the tidelands and submerged
lands trust. That trust should be limited to tidelands as its
name implies—lands covered and uncovered by the flow
and ebb of the tide—and submerged lands. Historically, the
trust has not been applied to land between high and low
water mark on navigable lakes and streams (the shorezone).
To the contrary, millions of acres have been reclaimed be-
tween high and low water for residential, agricul-
tural, and general governmental uses—uses which would
have been and are improper if the trust doctrine is ap-
plicable. History establishes it would have been against
public policy—greatly impeding the development of the
resourees of our state—to have applied the trust doctrine.
To apply that doctrine for the first time today casts clouds
on thousands if not millions of land titles and uses, and
jeopardizes agricultural and residential uses of millions of
acres which are presently so used and are far more valuable
for farm and home than for trust uses. While public recre-
ational and ecological uses of the shorezone are important
considerations, the state has and is providing for such uses.
Application of the trust to millions of acres historically and

A-31

presently within the shorezone is overkill, contrary to
public policy, and an inequitable infringement on long-
settled and vested titles.

I. The Trust

The common law trust at issue has repeatedly been de-
scribed by our courts as applying to tide and submerged
lands. (E.g., City of Berkeley v. Superior Court (1980) 26
Cal.3d 515, 518-519, fn. 1 [162 Cal. Rptr. 327, 606 P.2d 362];
Marks v. Whitney (1971) 6 Cal.3d 251, 257, fn. 1 [98 Cal.
Rptr. 790, 491 P.2d 374]; City of Long Beach v. Mansell
(1970) 3 Cal.3d 462, 482 [91 Cal.Rptr. 23, 476 P.2d 423];
San Diego County Archaeological Society Inc. v. Com-
padres (1978) 81 Cal.App.3d 923, 925 [146 Cal.Rptr. 786].)
The Clear Lake lands now at issue are not tidelands—they
are not daily covered and uncovered by the flow and ebb of
tide water. (See Marks v. Whitney, supra, 6 Cal.3d 251, 258;
People v. Kerber (1908) 152 Cal. 731, 733 [93 P. 878].)
Unlike tidelands the instant shorezone is uncovered for long
periods of time—often the better part of a year. Tidelands
unlike the instant lands are covered and uncovered twice
each day by salt water, which—unlike the waters of Clear
Lake—severely limits use of underlying lands for agri-
cultural purposes. The instant shorezone land is obviously
not submerged land.

Before considering historical matters requiring rejection
of the majority’s extension of the trust to shorezones, we
should first consider the trust as it applies to true tide and
submerged lands.

A-32

Tidelands and submerged lands owned by the state are
held in trust for public purposes of navigation, commerce
and fisheries. (City of Long Beach v. Mansell, supra, 3 Cal.
3d 462, 482; People v. California Fish Co. (1913) 166 Cal.
576, 584 [138 P. 79].) Tidelands subject to the trust may
not be alienated into absolute private ownership; an at-
tempted conveyance of such land transfers “only bare legal
title,” and the property remains subject to the public trust
easement. (Id.) The decisions of this court have established
that the trust is a limitation on governmental as well as
private reclamation activities. (City of Long Beach, supra,
3 Cal.3d 462, 482-486; Atwood v. Hammond (1935) 4 Cal.2d
31, 38 [48 P.2d 20]; City of Oakland v. Williams (1929)
206 Cal. 315, 327-328, 330-331 [274 P. 328].)

The uses permitted within the trust are described in
Marks v. Whitney (1971) 6 Cal.3d 251, 259-260 [98 Cal.Rptr.
790, 491 P.2d 374], as follows: “Public trust easements are
traditionally defined in terms of navigation, commerce and
fisheries. They have been held to include the right to fish,
hunt, bathe, swim, to use for boating and general recrea-
tion purposes the navigable waters of the state, and to use
the bottom of the navigable waters for anchoring, standing,
or other purposes. [Citations.] The public has the same
rights in and to tidelands. [J] The public uses to which
tidelands are subject are sufficiently flexible to encompass
changing pu lie needs. In administering the trust the state
is not burdened with an outmoded classification favoring
one mode of utilization over another. [Citations.] There is
a growing public recognition that one of the most important
publit uses of the tidelands—a use encompassed within the
tidelands trust—is the preservation of those lands in their

A-33

natural state, so that they may serve as ecological units
for scientific study, as open space, and as environments
which provide food and habitat for birds and marine life,
and which favorable affect the scenery and climate of the
area. It is not necessary to here define precisely all the pub-
lic uses which encumber tidelands.”

Permissible uses of tidelands whether by government
or private citizens are numerous within the broad terms of
the public trust for navigation, commerce, fishing and other
purposes. For example, in City of Oakland v. Wiliams
(1929) 206 Cal. 315, 319-323 [274 P. 328], this court upheld
the use of such lands by a private party for a warehouse
to be used for shipping, processing, and packing dried
fruits. (See Atwood v. Hammond (1935) 4 Cal.2d 31, 40 [48
P.2d 20].)

Nevertheless, there are certain common land uses which
are not included within trust uses, namely, residential, agri-
cultural, and general governmental. Individuals as well as
government may enforce the trust. (Marks v. Whitney,
supra, 6 Cal.2d 251, 261-262.)

Reclamation of tidelands does not in and of itself ter-
minate the public trust. (Marks v. Whitney, supra, 6 Cal.
3d 251, 261; City of Long Beach v. Mansell, supra, 3 Cal.
3d 462, 483; Newcomb v. City of Newport Beach (1936)
7 Cal.2d 393, 402 [60 P.2d 825]; Atwood v. Hammond
(1935) 4 Cal.2d 31, 40-41 [48 P.2d 20].) However, if the
Legislature finds and determines that particular lands are
no longer useful for trust purposes, it may free them from
the trust. (Marks v. Whitney, supra, 6 Cal.3d 251, 260;
City of Long Beach v. Mansell, supra, 3 Cal.3d 462, 482.)

A-34

Statutes purporting to terminate the public use will be
carefully scanned to determine whether that was the leg-
islative intent. (City of Berkeley v. Superior Court, supra,
26 Cal.3d 515, 525.)

II. The Shorezone Historically

We were taught in elementary schools that geographical
conditions encountered by early settlers of our great Cali-
fornia valleys were significantly different from those pres-
ently existing. Winter and spring rains and snows melting
in the Sierras created great inland seas in the center of
California. The width of rivers measured by feet in sum-
mer extended to miles during parts of the spring.“ While
the land regularly covered by water was as rich as any
in the world, it could only be effectively farmed after the

Historically, the Sacramento River has carried off the annual

spring flow of seasonal rains and melting snows which arise in sur-
rounding mountains. Large basins were formed as vast amounts of
water regularly overflowed river banks. During spring seasons, the
total basin covered 1,250 square miles and in extraordinary years
1,700 square miles. When spring flood waters evaporated, the most
fertile and productive agricultural land was exposed. (See, Rep. of
A Board of Engineers Upon Examination of Sacramento, San Joa-
quin, and Feather Rivers, Cal., H.R. Doc. No. 262, 59th Cong., Ist

Sess., p. 6 (1905); Rolle, California: A History (1969) pp. 370-371.)
Similarly, the Fresno River (Miller & Lux v. Madera Canal etc. Co.
(1909) 155 Cal. 59, 63-64 [99 P. 502], and the San Joaquin River
(Herminghaus v. So. California Edison Co. (1926) 200 Cal. 81,

q ) have traditionally overflowed during the spring
time to produce large marshland areas, which were subsequently

A-35

Much of the history of California is tied to reclamation
and farming of the state’s rich bottom land. Such reclaimed
lands have become some of the world’s most productive
farmland. Other large areas of reclaimed land have been
used for urban development. For example, much of Sacra-
mento is built upon reclaimed land. (E.g., Gray v. Reclama-
tion District No. 1500 (1917) 174 Cal. 622, 626-631 [163
P. 1024] (Sacramento and Feather Rivers); Miller & Lux
v. Madera Canal etc. Co. (1909) 155 Cal. 59, 67 et seq.
99 P. 502] (San Joaquin River); Modoc L. & L. S. Co. v.
Booth (1894) 102 Cal. 151, 153 et seq. [36 P. 431] (Pitt
River).)

In addition to tracts now protected from flood waters
there remain large tracts that—while flooded in winter
and spring—are naturally drained and farmed in the
summer and fall. For example, the Yolo Basin, which is
used during the annual runoff to reduce flood pressure
on other areas (see, Gray v. Reclamation District No. 1500,
supra, 174 Cal. 622, 631), is an area of many square miles
and is put to productive farm use when the waters recede.

Similarly, not all homes built within the shorezones are
free from regular flooding. Thousands of such homes
remain, for example, along the Russian River. These shore-
zone homes are regularly flooded.

The acres of reclaimed land which have been put to
productive agricultural and residential use numbers in
the millions. So far as I am aware, the Legislature has
never found or determined such reclaimed lands useless
for trust purposes or free of the trust. Indeed, it is by
no means clear the Legislature could have found or could

A-36

now find such reclaimed lands or even the greater portion
thereof uselesc for trust purposes when we remember that
among such purposes are recreational and ecological uses.
While the lands may be extremely valuable for agricultural
and residential purposes, a balancing of values is not the
test under the trust doctrine. The test is lack of value for
trust purposes. In addition, it must be pointed out that the
government exacted a ransom of $783,500 to clear the title
of the homeowners in the subdivision in the asserted tide-
lands area involved in City of Long Beach v. Mansell,
supra, 3 Cal.3d 462, 475.

The history of development of our great agricultural
valleys and related residential development is directly in
conflict with the asserted common law trust the majority
seek to impose.

The majority trust doctrine is not merely in conflict
with the private assertion of fee interest to reclaimed
lands, but it is abundantly clear the state lias encouraged
and provided for such uses. One need only examine the
three volumes of West Publishing Company’s Appendix
to our Water Code to note the collection of statutes enacted
by our Legislature to establish reclamation districts which
were obviously designed to further private agricultural
use of reclaimed lands. While such districts may have also
furthered navigational purposes on the concerned bodies
of waters, it would be unreasonable to conclude that assess-
ments against reclaimed lands to finance the costs of recla-
mation did not reflect increased values of properties as
agricultural lands or that reclamation districts were not
created with the intent the lands were to be used for agri-

A-37

cultural purposes. Further, numerous municipalities in
historical shorezone areas have approved subdivisions for
residential development and have provided residential
services, all of which activities are in conflict with the
majority’s trust.

In concluding that in the past 130 years there has been
a public policy to maintain land in its natural state or
to limit historical shorezones to trust uses, the majority
blind themselves to the historical development of control-
ling law. This law recognizes what highly productive mem-
bers of our society undertook to forge, not only to serve
their needs but also to serve the needs of society with the
authorization, approval and encouragement over the years
of our Legislatures, Governors, and local governmental
agencies.

Application of the trust doctrine to the shorezone is
contrary to California public policy. Rather than preclud-
ing farming and residential use of the shorezone, the policy
has been to encourage reclamation and farming and resi-
dential use of these properties.

Protection of parts of our historic shorezone for the
purposes permitted by the trust is a worthy endeavor but
it should not be accomplished with a blunderbuss that con-
fiscates thousands—perhaps millions—of titles, and jeop-
ardizes existing use of millions of acres of residential and
farm lands. While, as the majority recognize (State of
California v. Superior Court (Fogarty), post, p. 240 [—
Cal.Rptr. —, — P.2d —]), the state must compensate the
landowner for improvements should it choose to exercise
the trust and take property for park or other purpose,

A-38

it is not required to compensate for taking the land. From
time immemorial landowners within the shorezone have
conducted themselves in good faith as if they were owners
in fee, and the land (apart from improvements) has been
assessed and taxed as in the case of all fees not subject
to the state’s assertion of a right to take under a trust.
To impose the trust at this late date on all property within
the shorezone so that the state may take it without pay-
ment is confiscation and constitutionally impermissible.

In concluding that the trust doctrine must extend to the
shorezone the majority rely mainly upon Illinois Central
Railroad v. Illinois (1892) 146 U.S. 387 [36 L.Ed. 1018,
13 S.Ct. 110] where the Supreme Court held that a grant
of submerged lands in Lake Michigan was subject to the
trust. (Id., at p. 452 et seq. [36 L.Ed. at p. 1042 et seq.].)
The court expressly recognized that it did not impose a
trust on the shorezone. It stated: “If it be ascertained
and determined that such piers and docks do not extend
beyond the point of practicable navigability, the claim of
the railroad company to their title and possession will be
confirmed; but if they or either of them are found on such
inquiry to extend beyond the point of such navigability,
then the State will be entitled to a decree that they, or the
one thus extended, be abated and removed to the extent
shown .. .” (Id., at p. 450 [36 L.Ed. at p. 1041].) The
court’s order was to the saine effect. (Id., at p. 464 [36
L.Ed. at pp. 1046-1047].)

A-39

Far from serving as authority to extend the trust to
freshwater shorezones, Illinois Central Railway reflects it
is only navigable submerged lands that are subject to the
trust.

I would deny mandate.
Richardson, J., concurred.

A-40

APPENDIX A-2

In The Supreme Court of the State of California
S.F. No. 24035

THE STATE OF CALIFORNIA et al., Petitioners v.
THE SUPERIOR COURT OF PLACER COUNTY,
Respondent; CHARLES F. FOGERTY et al.,
Real Parties in Interest.

[Filed Mar. 20, 1981]

OPINION

MOSK, J.—The present action is concerned with the
ownership of lands between high and low water in Lake
Tahoe, a navigable lake in which there is no appreciable
ebb and flow of the tide. The primary issues are the same
as those discussed in State of California v. Superior Court
(Lyon), ante, page 210 [. Cal.Rptr. ......, ...... P. 2d ], but
some questions in addition to those in the Lyon action are
raised by the parties.

In the spring of 1977, the State Lands Commission, after
being advised by the Attorney General that the state
claimed ownership of the property between high and low
water in navigable nontidal lakes and rivers, proposed to
record claims to such lands in the offices of county
recorders throughout the state.

Thereupon, Charles and Stella Fogerty and other owners
of property along the shore of Lake Tahoe, and Tahoe
Shorezone Representation, a corporation which represents
many shoreline owners, filed this action for declaratory
relief and inverse condemnation, and claimed violation of

AAl

their civil rights (42 U.S.C. § 1983).* The complaint alleged
that plaintiffs owned the lands between high and low water
in the lake in fee simple, that many of them had built piers
or docks extending to low water, and that the state wrong-
fully asserted title or a public trust t, high water. Plaintiffs
sought an injunction to prevent the s ate from claiming any
interest in the property between high and low water. As
defendants in the action, they joined the state, the State
Lands Commission, and several state officials (hereinafter
called the People).

After overruling the demurrers of the People and grant-
ing plaintiffs a preliminary injunction prohibiting the state
from recording a notice that it owns the lands between high
and low water in Lake Tahoe, the trial court granted plain-
tiffs’ motion for partial summary judgment. It ruled that
no portion of the property involved in this action landward
of the last natural low water mark of Lake Tahoe is or

by the People. Thereafter, the People filed this proceeding,
seeking a peremptory writ of mandate to direct the trial

Section 1983 provides: “Every person who, under color of any

the jurisdiction thereof to the deprivation of any rights, privileges,

to the party injured in an action at law, suit in equity,
prope: proceeding for redress. . . .”

A-42

court to vacate its order granting plaintiffs’ motion, and
to enter an order granting the motions made by the People.

The major issue raised by the plaintiffs, not discussed
in Lyon, is that of estoppel. Strictly speaking, that issue
is not formally before us. Plaintiffs’ complaint pleads a
cause of action for declaratory relief in estoppel, but their
motion for partial summary judgment did not seek a ruling
on this issue, and the trial court did not pass upon the
question. The People, urging that plaintiffs should not be
permitted to raise the issue, assert that estoppel is a ques-
tion of fact for the trial court in any future proceeding.
This argument is technically tenable. But if estoppel were
to be determined on a case-by-case basis it would require
a massive expenditure of time and money by the state,
riparian landowners, and the judiciary. Such an effort
may be avoided if, as we shall conclude, we can decide
the question as a matter of law on the basis of the present
record. (Cf. City of Long Beach v. Mansell (1970) 3 Cal.3d
462, 487-488 [91 Cal.Rptr. 23, 476 P.2d 423].)

The elements of equitable estoppel were described so
thoroughly by Justice Sullivan in Mansell that little more
need be said on the subject.“

*There are four elements necessary to apply the doctrine: “(1)
the party to be estopped must be apprised of the facts; (2) he must
intend that his conduct shall be acted upon, or must so act that the
party asserting the estoppel had a right to believe it was so in-
tended; (3) the other party must be ignorant of the true state of
facts; and (4) he must rely upon the conduct to his injury.” (3 Cal.
3d at p. 489.)

We note that the opinion of the Attorney General referred to in
Lyon declare

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0016%3A0. Public record. Not legal advice.