Record and brief — Tahoe Shorezone Representation v. California, (1981) (No. 182)
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= JUL 22 1981
ALEXANDER L. STEVAS,
In the Supreme Court
OF THE
Octoser Term, 1980
TaHoE SHOREZONE REPRESENTATION,
Petitioner,
Vs.
State or Cauirornia, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF CALIFORNIA
Wu T. Cam.iaw
COUNSFL OF RECORD
MandaRET Z. Jonxs
Point West Executive Centre
1455 Response Road, Suite 191
Sacramento, California 95815
Telephone: (916) 320-0202
Attorneys for Petitioner
BSOWNE-PERNAU WALSH * ‘90 NINTH ST. * &.7., CA 94103 © (415) 864-2500
QUESTIONS PRESENTED
In 1981, for the first time in California history, an exten-
sive state servitude was imposed on the shorezone between
the high and low water marks at Lake Tahoe. Petitioners
own land in this shorezone in fee simple. In imposing this
servitude, the California Supreme Court relied on Illinois
Central v. Illinois (1892) 146 U.S. 387, stating: “In our
view Illinois Central . . . the ‘seminal case on the scope
of the public trust doctrine’ . . . settled the issue
I. Does Illinois Central establish a federal common law
rule restricting the states’ power to determine rights and
title to navigable lakes and rivers and the adjoining lands?
II. If Illinois Central establishes a federal common law
rule:
(1) Does this rule only restrict the states’ power to
impair the publie's use of the navigable waters; or
(2) Does this rule also restrict the states’ power to
determine rights and title to the lands underlying
navigable waters up to the high water mark?
III. Are Petitioners’ rights under the Due Process and
Just Compensation Clauses viclated by the Court’s decision
imposing an extensive state servitude (which includes open-
ing Petitioners’ lands to the public) where the ruling was
unpredictable in terms of relevant precedent and contrary
to property interests created by state law?
ii
PARTIES
Petitioner is Tahoe Shorezone Representation, a non-
profit corporation of Lake Tahoe property owners. Tahoe
Shorezone Representation has no parent or subsidiary cor-
porations or affiliates.’
a
TABLE OF CONTENTS
Questions presented
Parties
Opinions below
Jurisdiction
Constitutional and statutory provisions
Statement of the case
Reasons for granting the writ
—
t wb — — CE:
Illinois Central does not impose a public trust servi-
tude under federal common law 11
Imposition of the California tidelands trust servi-
tude deprives petitioners of property without due
process of law and takes petitioners’ property for
public use without just compensation 17
iv
TABLE OF AUTHORITIES CITED
Cases
Page
Agins v. City of Tiburon (1980) 447 U.S. 225 28
Anderson v. Trotter (1931) 213 Cal. 414 5
Appleby v. City of New York (1926) 271 U.S. 364. 14, 15
Barney v. Keokuk (1876) 94 U.S. 324 13, 14, 15, 18
Beckley v. Reclamation Board (1962) 205 Cal.App.2d
734 die 27
City of Berkeley v. Superior Court (1980) 26 Cal.3d
515 3, 21, 22, 28
Board of Regents v. Roth (1972) 408 U.S. 5664. 18
Bonelli Cattle Co. v. Arizona (1973) 414 U.S. 313 —.... 14
Broad River Co. v. South Carolina (1930) 281 U.S. 537 24
Chicago, Burlington & Quincy R. Co. v. Chicago (1897)
166 U.S. 226 17, 26
Crews v. Johnson (1962) 202 Cal.App.2d 258 5
Darling v. City of Newport News (1919) 249 U.S. 540 15
Foss v. Johnstone (1910) 158 Cal. 119 5
Fox River Paper Co. v. Railroad Comm. (1927) 274
U.S. 651 24
Hardin v. Jordan (1891) 140 U.S. 371 14, 15
Hitchings v. Del Rio Woods Recreation & Park Dis-
trict (1976) 55 Cal App. 3d 560 11
Hughes v. Washington (1967) 389 U.S. 290. 23, 24, 25, 26
Illinois Central Railroad Co. v. Chicago (1900) 176
U.S. 646 15
Illinois Central v. Illinois (1892) 146 U.S. 387i, 7, 8, 9
11, 12, 13, 14, 15, 16, 17, 21, 23
Kaiser Aetna v. United States (1979) 444 U.S. 164. 20, 25,
26, 27, 28
City of Long Beach v. Mansell (1970), 3 Crl.3d 462 .. 3, 18
Tasiz or Avutuorities Crrep
Cases
Page
Long Sault Dev. Co. v. Call (1916) 242 U.S. 2722 15
City of Los Angeles v. Aitken (1935) 10 Cal.App.2d
460 5
City of Los Angeles v. Venice Peninsula Properties,
State of California ex rel. State Lands Commission,
Real Party in Interest (1981) 117 Cal.App.3d 335. 12
Marks v. Whitney (1971) 6 Cal.3d 251 3, 18, 19
Mobile Transportation Co. v. Mobile (1903) 187 U.S.
479 15, 18
Morris v. United States (1899) 174 U.S. 196 20000.) 16
Muhlker v. New York and H. R. Co. (1905) 197 U.S. 544 24
Oregon ex rel. State Land Board v. Corvallis Sand &
Gravel Co. (1977) 429 U.S. 363 14, 15, 18, 24
Paul v. Davis (1976) 424 U.S. 693 18
Penn Central Transportation Co. v. New York City
(1978) 438 U.S. 104 20, 27, 28
Pennsylvania Coal Co. v. Mahon (1922) 260 U.S. 393 — 29
People v. California Fish o. (1913) 166 Cal. 5763, 18
21, 23
People ex rel Baker v. Mack (1971) 19 Cal. App.3d 1040 11
Philadelphia Co. v. Stimson (1912) 223 U.S. 605 15
Prune Yard Shopping Center v. Robins (1980) 447 U.S.
74 28
Robinson v. Ariyoshi (1977) 441 F.Supp. 559 26
San Diego Gas & Electric v. City of San Diego, (1981)
— US. ... 101 S. Ot. 1287 26, 28, 29
St. Anthony Falls Water Power Co. v. St. Paul Water
Commissioners (1897) 68 U.S. 349 15, 16
Scott v. Lattig (1913) 227 U.S. 229 li
Shaeffer v. State of Californie (1970) 3 Cal. App.3d 348 27
Taste or AutHorities Crrep
Cases
Page
Shelley v. Kraemer (1948) 334 U.S. 1 26
Shively v. Bowlby 152 U.S. 1 16
Sotomura v. County of Hawaii (1978) 460 F.Supp. 473 26
State of California v. Superior Court (Fogerty) 29
Cal.3d 240, 625 P.2d 256, 172 Cal. Rptr. 713 (1981) ...... 3,
3, 8, 9, 10, 19, 28, 29
State of Cu.ifornia v. Superior Court (Lyon) 29 Cal.3d
210, 625 P.2d 239, 172 Cal.Rptr. 696 (1981) 1, 3, 4, 5,
, 8, 9, 10, 12, 18, 19, 20, 21, 22, 23, 27, 28
United States v. Chandler-Dunbar Co. (1908) 209 U.S.
447 ix 16
U.S. v. Dickinson (1947) 331 U.S. 745 27
United States v. Gossett (9th Cir. 1969) 416 F. 2d 565... 5
United States v. Mission Rock Co. (1903) 189 U.S. 391 16
United States v. River Rouge Co. (1926) 269 U.S. 411 15
U.S. Trust Co. of New York v. New Jersey (1977) 431
US. 1 14, 15
Weems Steamboat Co. v. People’s Co. (1909) 214 U.S.
345 16
West Chicago Railroad v. Chicago (1906) 201 U.S. 506 16
Wilson v. Omaha Indian Tribe (1979) 442 U.S. 653 14
Wright v. Seymour (1886) 69 Cal. 122 19
Constitutions
California Constitution, Article X:
Section 1 11
Section 4 8
United tates Constitution:
Fifth Amendment 2, 7, 17, 25
Fourteenth Amendment 2, 7, 17, 26
vii
Taste or Autuorities Crrep
Statutes
Page
California Civil Code:
Section 670 2, 19, 23
Section 830 — 2, 4, 19, 21, 23
California Code of Civil Procedure, Section 2077 2, 23
28 U.S.C. § 1257(3) 2
Other Authorities
Ops. Cal. Atty. Gen. No. 3100, p. 5 (1916) 5
23 Ops. Cal. Atty. Gen. 97 (1954) 5
23 Ops. Cal. Atty. Gen. 306 (1954) 5
30 Ops. Cal. Atty. Gen. 262 (1957) 5
43 Ops. Cal. Atty. Gen. 291 (1964) 5
Chang, “Unraveling Robinsoa v. Ariyoshi: Can Courts
‘Take’ Property?” 2 U. of Hawaii L.Rev. 57, pp. 64-
67 (1979) 26
Executive Office of the President’s Council on Environ-
mental Quality, “The Taking Issue,” Washington,
D. C., July 9, 1973, Ch. 16 at p. 313 ; 13
Sax, Liberating the Public Trust Doctrine From its
Historical Shackles, 14 U.C.D. L. Rev. 185 (1980) ... 13
Sax, The Public Trust Doctrine in Natural Resource
Law: Effective Judicial Intervention, 68 Mich. L.
Rev. 471 (1970) 13
No. .
In the Supreme Court
United States
Ocroser Term, 1980
TaHor SHoREZONE REPRESENTATION,
Petitioner,
vs.
State or Cauirorni,, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF CALIFORNIA
OPINIVNS BELOW
The opinion of the California Supreme Court in State of
California v. Superior Court (Fogerty) is reported at 29
Cal.3d 240, 625 P.2d 256, and 172 Cal.Rptr. 713 (1981)
(Appendix A); the opinion of the California Supreme
Court in State of California v. Superior Court (Lyon) is
reported at 29 Cal.3d 210, 625 P.2d 239, and 172 Cal.Rptr.
696 (1981) (Appendix B).*
| JURISDICTION
The opinion and order issuing a peremptory writ of man-
date by the California Supreme Court was entered on
March 20, 1981. A timely petition for rehearing was denied
on April 29, 1981. 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 opinion in Lyon, a companion case, is necessary to ascertain
the grounds of the Fogerty opinion.
CONSTITUTIONAL AND STATUTORY PROVISIONS
Section 830 of the California Civil Code provides:
Except where the grant under which the land is held
indicates a different intent, the owner of the 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 Fifth Amendment to the United States Constitu-
tion provides in relevant part:
.; 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 in relevant part:
. .; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal
protection of the laws.
Section 670 of the California Civil Code; Section 2077
of the California Code of Civil Procedure (Appendix C).
STATEMENT OF THE CASE
From California’s statehood in 1850 owners of lakefront
property at Lake Tahoe (and all other California non-
tidal, navigable waters) held fee simple absolute title to
the land down to the natural low water mark insofar as
3
the State or “public” was concerned. In 1981, the California
Supreme Court imposed the tidelands trust servitude“ on
the land between the high and low water marks of Cali-
fornia’s non-tidal navigable waters“ stating that “the exer-
cise of the police power has proved insufficient to protect
the shorezone.” (Fogerty at 247; App. A-8). The tidelands
trust servitude, as defined by the California Supreme Court
subjects the “tidelands” to a “trust for the public, for their
use for commerce, navigation, fishing, recreation or for
the purpose of preserving the property in its natural
state.” (Marks v. Whitney (1971) 6 Cal.3d 251.) The Court
described its ruling as “a principle which will apply to 4,000
linear miles along all the navigable lakes and rivers in
California.. including “34 navigable lakes and 31 navi-
gable rivers.” (Fogerty at 245; App. A-4).°
*“Tidelands Trust” is the term traditionally used by California
courts. (People v. California Fish (1913), 166 Cal. 576; City of
Berkeley v. Superior Court (1980), 26 Cal.3d 515; Marks v. Whit-
ney (1971), 6 Cal.3d 251, 257.) This state interest is frequently
described as a servitude or easement. (People v. California Fish
(1913), 166 Cal. 576, 583, 584, 585, 589, 590, 591, 592, 593, 594, 595,
598, 612; City of Long Beach v. Mansell (1970), 3 Cal.3d 462, 482,
485; Marks v. Whitney (1971), 6 Cal.3d 251, 257, 259, 260, 261,
262, 263. )
‘State of California v. Superior Court (Fogerty) (1981) 29 Cal.
3d 240 (Lake Tahoe); State of California v. Superior Court (Lyon)
(1981) 29 Cal.3d 210 (Clear Lake). All citations to Lyon and
Fogerty are to the official reporter, 29 Cal.3d and Appendices A
and B.
»The shorezone of the California side of Lake Tahoe is approxi-
mately 42 linear miles; Clear Lake in excess of 100. The owners of
the balance of the “4000 lineal miles” of shorezone were not parties
in either case.
In 1972,*the California State Lands Commission (Commission)
issued a list of lakes and rivers which it described as “navigable.”
(State’s Petition for Mandamus, California Supreme Court, p. 4.)
“34 navigable lakes and 31 navigable rivers” were listed and it
appears to be the source of the Court’s reference although the
— differ slightly.
4
Never before in California's 131 year history had this
servitude been applied to the shorezone of non-tidal,
navigable lakes or rivers.’ In holding the servitude “is
applicable to non-tidal waters” (our emphasis) the court
stated :
4. . . In our view, Illinois Central Raiiroad Company
v. Minois (1892) 146 U.S. 387, which we described in
City of Berkeley as the ‘seminal case on the scope of
the public trust doctrine’ (26 Cal.3d at p. 521), settled
the issue... (Lyon at 227; App. B-21).
Prior to these 1981 decisions, the upland owners’ rights
to the exclusive use and possession of the shorezone,
exactly as claimed in this litigation, were undisputed. This
complete ownership of the shorezone was understood by
the community generally and relied upon by property
owners. These rights were consistently and frequently
recognized and confirmed by the legislative,“ executive’ and
As observed by the dissent in Lyon:
“Historically, the trust has not been applied to land between
high and low water mark on navigable lakes and streams (the
shorezone). . . . To apply that doctrine for the first time today
casts clouds on thousands if not aillions of land titles and uses,
...” (Lyon, at 233; App. B-30).
*For example, California Civil Code § 830, as amended in 1874,
reads in pertinent part:
“, . 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
*Lyon, for example, refers to Commission files which contain
of
i
|
Between 1916 and 1964 the Attorney General issued five official
opinions interpretin Cal. Civ. Code 3 as limiting the State’s
5
judicial” branches of Califo.nia state government. Lyon
acknowledges the “. . failure of the state to previously
assert its trust rights in the lands below high water.
(Lyon at 231; App. B-27).
The owners of lake frontage at Lake Tahoe have exer
eised their rights and privileges in the shorezone in @
variety of ways. Much of the shorezone includes water-
related improvements, such as pierr and boathouses—some
commercial and some strictly for private use and enjoy-
ment. Many lakefront owners have chosen to leave their
shorezone in a relatively natural state. Most homes are
oriented toward the lak enhancing the families’ use of their
lakefront location. Particularly in the case of the hundreds
of residential uses, they have protected their privacy and
security by exereising their “right to exclude others.”
The owners of the shorezone have accepted the normal
burdens of fee ownership, including paying property taxes
and maintaining che area.
interest to the low water mark. 43 Ops. Cal. Atty. Gen. 291, 292,
295, 296 (1964); 30 Ops. Cal. Atty. Gen. 262, 269 (1957); 23 Ops.
Cal. Atty. Gen. 306, 307, 309 (1954); 23 Ops. Cal. Atty. Gen. 97, 98
(1954); Ops. Cal. Atty. Gen. No. 3100, pp. 5-6 (1916). In 1964, the
Attorney General advised: “[I]t is now settled law in California that
private ownership extends to the low water mark of non-tidal navi-
gable waters.” 43 Ops. Cal. Aity. Gen. 291, 295 (1964). As observed
in Lyon: “In United States v. Gossett (9th Cir. 1969) 416 F.2d 565,
568-569, the court classified California as a low water jurisdiction,
apparently based largely upon the disclaimer by California’s Attor-
ney General to ownership of the state above that line.” (Lyon at 224;
App. B-16). The Gossett court, however, did not rely exclusively on
the Attorney Generals disciaimer. Rather, the court analyzed the
California law on the issue of whether the State owned to the high
or low water mark on non-tidal navigable waters and concluded:
“California had a choice and adopted the low vater mark.” Gossett,
supra at 569.
Foss v. Johnstone (1910) 158 Cal. 119, 127; Anders n v. Trotter
(1931) 213 Cal. 414, 420; City of Ls Angeles v. Aitken (1935) 10
Cal.App.2d 460; Crows v. Johnsor. (1962) 202 Cal. App. 2d 256. (See
concurring and dissenting upinior. c Paras, J., App. E)
6
Property owners asscciations, composed of thousands of
families whose homes do not border the lake, own lake
frontage improved with water-related facilities and beaches
for the exclusive use of the members and their guests.
The California counties of Placer and El Dorado are
among other public owners of lakefrent property at Lake
Tahoe.“
By letter of March 8, 1977, the California Attorney Gen-
eral, notified the Commission of a reversal of the previous
position of that office, recognizing the “current position
with respect to inland navigable water boundaries is incon-
sist at with that taken by this office and the Commission”
in the past. The Attorney General advised:
1. In general, the State of California’s sovereign
ownership of the lands underlying navigable lakes and
nontidal, navigable rivers extends landward to the
ordinary high-water mark.
2. Irrespective of whether State’s title to such
lands extends landward to that line or merely to the
ordinary low-water mark, the strip of lands between
the two lines is subject to the common-law public trust
for commerce, navigation and fisheries.
The Attorney General added.. . . we recommend the
following course of action :”
* . *
2. Notice should be given to presently or potentially
affected private upland owners and members of the
general public with respect to the State’s position . . .”
“Of the 71 miles of shoreline in California and Nevada, 22 miles
are publicly owned.
ln March of 1977, the Attorney General published a “Notice of
Reexamination of Statements, or Assumptions, in Prior Opinions,”
advising that his position in pending litigation was contrary to all
five prior Attorney General opinions. (See fn. 9, supra.)
7
After the Attorney General’s “recommendation” the
Commission scheduled a meeting for March 31, 1977, to in-
struct its executive officer to “give appropriate notices
{including recording the claims] . . . that the State claims
ownership of the beds of all inland, nontidal navigable
water landward to the high water mark.” The Commission
did not follow the Attorney General’s advice in all respects
since the instruction to the executive officer did not include
notice of the “common-law public trust” claim.
On March 30, 1977, Tahoe Shorezone Representation”
(Petitioners) filed suit against the State of California and
several state officials alleging that State claims violated
Petitioners’ Fifth and Fourteenth Amendment rights.
(Appendix F.) (The State’s demurrer alleged the Petition-
ers’ property was subject to a “public trust” citing J/linois
Central Railroad Co. v. Illinois (1892) 146 U.S. 387.) The
same day a temporary order restrained the State from
recording its claims. After a hearing, the trial court issued
a preliminary injunction forbidding the recording of the
State’s claims.
The State appealed this order. The appellate court de-
cision upheld the lower court ruling and remanded for
further proceedings. (Appendix E.) One of the three jus-
tices concurred in the majority’s conclusion that the prelim-
inary injunction was properly granted because of the “rea-
sonable probability that plaintiffs will ultimately prevail
on the merits” but was “not prepared to end the matter
thus.” He stated:
Because I view the ownership issue, on the merits,
as a pure question of law with a very clear answer,
[Petitioners prevail] in the interest of judicial econo-
my, I would resolve it here and now. No further evi-
This voluntary organization consists of a large percentage of the
owners of lakefront property at Lake Tahoe.
8
dence or hearing in the trial court could possibly
change the result. (App. E.)
On remand to the trial court, motions for summary judg-
ment on the issues of fee ownership and the tidelands trust
servitude were filed by Petitioners and the State. After a
hearing, the trial court issued the following order:
IT IS ORDERED that plaintiffs’ [owners’] motion
herein is granted and the following matters are found
to be without substantial controversy and shall be
deemed established for all purposes of this action:
1. That no portion of the subject property landward
of the last natural low water mark of Lake Tahoe is, or
ever was, sovereign property of the State of Califor-
nia; and
2. That no portion of the subject property landward
of the last natural low water mark of Lake Tahoe is,
or ever was, subject to the common law public trust for
commerce, navigation and fisheries.
IT IS FURTHER ORDERED that defendants’
[State’s] motion herein is denied.
The State petitioned the California Supreme Court con-
tending Illinois Central Railroad Co. v. Illinois (1892) 146
U.S. 387, imposed the servitude on Petitioners’ land. Peti-
tioners argued Illinois Central did not apply and continued
to assert their constitutional rights. (Appendix G, H
and I.)
In the companion case, Lyon, the State also claimed
ownership and asserted the tidelands trust applied to the
shorezone of Clear Lake, another non-tidal, navigable lake.“
That trial court likewise rejected the State’s claims. The
State’s petition to the appellate court was denied.
Lyon was litigated in different trial and appellate courts than
Fogerty.
9
The California Supreme Court granted the State’s peti-
tions for hearing in both Lyon and Fogerty. The cases
were heard, considered and decided together.
On March 20, 1981, the California Supreme Court issued
decisions in both cases confirming fee ownership in the up-
land owners but rejecting their constitutional arguments
and imposing the tidelands trust servitude on tue shore-
zone of all. . . California . . non-tidal, navigable lakes
and rivers.” (Fogerty at 247; App. A-8).
REASONS FOR GRANTING THE WRIT
4 writ should be granted because:
(1) Illinois Central Railroad Co. v. Illinois (1892) 146
U.S. 387, has been erroneously held to impose a “public
trust” servitude on the shorezone of all inland, navigable
waters in California;
(2) Imposition of this servitude violates Petitioners’
constitutional right to due process and takes private prop-
erty for public use without just compensation; and
(3) The power of state courts to reallocate property
rights between the “public” and individual owners under
the “public trust” doctrine is a question of national impor-
tance requiring early resolution.
The Fogerty decision involved three issues:“
(1) The location of the landward boundary of the State’s
fee ownership of the bed of Lake Tahoe;
The California Supreme Court did not repeat the Lyon analysis
of the fee ownership and servitude issues in Fogerty saying, “The
issues are the same as those discussed in [Lyon].
(Fogerty at 243; App. A-1.)
10
(2) The imposition of the servitude on the land between
the high and the low water marks at Lake Tahoe; and
(3) The estoppel of the State to assert the servitude.
Of these three issues, this petition concerns only the
imposition of the tidelands trust servitude.“ Petitioners
are not requesting this Court’s review of the other issues.“
Nor do Petitioners challenge the government’s police power
to regulate and protect Lake Tahoe“ or the public’s rights
to navigable waters.”
Fogerty apparently imposes the servitude between the artificial
high and low water marks at Lake Tahoe. (Fogerty at 247-249;
App. A 8-11).
Lyon held that the boundary of the State’s fee ownership of the
bed of inland navigable waters was the low water mark. Fogerty
considered whether the artificial or natural low water marks deter-
mined this boundary.
Fogerty held the trial court erred in concluding “. . . thai the
‘last natural’ low water mark of Lake Tahoe is the appropriate stand-
ard by which to measure the boundary between public and private
ownership.” (Fogerty, at 249; App. A-11). Since 1950 when the
Commission completed its boundary line survey of the Lake Tahoe
lakefront, the Siate has treated the artificial low water mark (6223
feet above mean sea level) as the boundary between public and
private ownership. Fogerty’s implicit holding, then, is that the
artificial low water mark at 6223 feet is the boundary between State
and private ownership. (See Fogerty, at 247-249; App. A 8-11).
(6223 feet elevation is also the natural high water mark. )
The California Supreme Court erred in holding the State was not
estopped to assert the servitude. (See Fogerty dissent at 250; App.
A-12). The requested review does not require consideration of that
question.
*The Lake Tahoe basin is probably the most heavily regulated
and environmentally protected area in this country. (See, e.g.,
Fogerty at fn. 3, at 246; App. A-7).
Petitioners have always recognized the publics navigational
servitude or easement of passage over the privately owned lands
between the low and high water marks when the waters over those
lands are capable of being navigated by small craft. However, the
11
Illinois Central Does Not Impose A Public Trust Servitude
Under Federal Common Law
The California Supreme Court relied on Illinois Centrel
Railroad Company v. Illinois (1892) 146 U.S. 387, to hold
that from California’s statehood in 1850 a public trust
servitude attached to Pei:tioners’ shorezone between the
high water mark and the low water mark. Petitioners
submit that this issue is governed by state rather than
federal law. The scope and application of the Illinois
Central public trust doctrine is a question of national
importance which should be resolved by this Court.
Illinois Central held that under Illinois law the Illinois
legislature had exceeded its authority in granting the sub-
merged lands in the bed of Lake Michigan to the railroad.
The subsequent legislative repeal of the grant withstood
the railroad’s contention that it impaired the obligation of
contract. The state’s duty, which the Court ruled was
violated by the original grant, arose from a “trust for the
people of the State that they may enjoy the navigation
of the waters, carry on commerce over them, and have
liberty of fishing therein freed from the obstruction or
interference of private parties. The Court observed that
the trust requires . . the State to preserve such
waters for the use of the public . . (Illinois Central,
supra, at 452-453) (Emphasis added.)
The proper application of the Illinois Central public
trust doctrine is the subject of litigation in several states
easement does not extend to the lands when the waters recede.
See, e.g., People ex rel Baker v. Mack (1971) 19 Cal.App.3d 1040,
1050; Hitchings v. Del Rio Woods Recreation & Park District
(1976) 55 Cal.3d 560, 571; see also, Cal. Const., art. X, § 4 ( Deer-
ing, Supp. 1981) (protection of navigation on state's waters) and
Cal. Const., art. X, §1 (Deering, Supp. 1981) (right of eminent
domain to condemn access over the adjoining lands to navigable
water. )
12
and of spirited scholarly debate nationally. Lyon held that
under Illinois Central on statehood California took the
beds of all navigable waters to the high water mark
impressed with a public trust servitude which survived the
legislative determination to only claim the beds of non-tidal
navigable waters to the low water mark. In a case pending
before the California Supreme Court the application of
Illinois Central to lands acquired by Mexican grants prior
to statehood is being litigated.” The State of Nevada now
asserts that the public trust servitude applies to the shore-
zone of Lake Tahoe on the Nevada side.” In the past
decade, numerous reported decisions of other states have
considered the application of the Illinois Central public
trust servitude.”
Noted scholars argue that the Illinois Central public
trust doctrine should be expanded. For example, Professor
Joseph Sax stated:
Of all the concepts known to American law, only the
public trust doctrine seems to have the breadth and sub-
stantive content which might make it useful as a tool
of general application for citizens seeking to develop
a comprehensive legal approach to resource manage-
„City of Los Angeles . Venice Peninsula Properties, State of
California ex rel. State Lands Commission, Real Party in Interest
(1981) 117 Cal.App.3d 335. The appellate court rejected the State’s
argument that a public trust easement attached to lands which were
part of a Mexican land grant prior to California’s statehood. Ap-
dissent. Respondents’ petitions for hearing granted and cause trans-
ferred to California Supreme Court on May 21, 1981, by Bird, C. J.
Tobriner, J., Mosk, J., Newman, J.
*1Incline Village General Improvement District v. State of Nevada,
Case No. 78-3191, Second Judicia! District, County of Washoe, Ap-
pendix K.
**Appendix L lists cases citing [/linois Central since 1970.
13
ment problems. Sax, The Public Trust Doctrine in
Natural Resource Law: Effective Judicial Interven-
tion, 68 Mich. L.Rev. 471, 474 (1970).
Professor Sax described Illinois Central as “the lodestar
of American public trust law” and “the most celebrated
public trust case in American law.” (Id at 489.) The atten-
tion this article has received is illustrated by the fact that it
has been cited in 18 reported decisions and 124 law review
articles since its publication in 1970.“ (See also, Sax,
Liberating the Public Trust Doctrine From its Historical
Shackles, 14 U.C.D. L. Rev. 185 (1980).)
In a study commissioned by the President’s Council on
Environmental Quality in the chapter, “Sidestepping the
Taking Issue,” the authors observe:
Professor Joseph Sax has discussed at length this
concept of property ‘as an interdependent network of
competing uses’ in articulating an expanded theory of
the public trust inherent in property. [Sax, “Takings,
Private Property and Public Rights,’ 81 Yale L. J. 149,
140 [sic] (1971) J. Obviously the possibility of claiming
such paramount title interests is useful only in regard
to particular types of property, but where available
may be the easiest method of avoiding the taking
issue.“ (Footnote included.)
Petitioners submit that the Illinois Central public trust
doctrine is not a federal common law rule and that Peti-
tioners’ title and rights to the shorezone of Lake Tahoe are
determined selely by state law. Barney v. Keokuk (1876)
„Appendix M and N list cases and law review articles citing the
Sax article.
*“The Taking Issue,” Executive Office of the President's Council
on 3 Quality, Washington, D.C., July 9, 1973, Ch. 16
at p. 3
14
94 U.S. 324; Hardin v. Jordan (1891) 140 U.S. 371, 382;
Oregon v. Corvallis Sand d Gravel Co. (1977) 429 U.S. 363;
Wilson v. Omaha Indian Tribe (1979) 442 U.S. 653. Where
upland owners have valid title to land bordering navigable
waters, the State is prohibited from imposing an extensive
servitude on the property without due process of law and
just compensation.”
The national confusion and debate surrounding the
Illinois Central public trust doctrine cannot be settled by
this Court’s past treatment of Illinois Central. Since 1926,
this Court has cited Illinois Central only twice, both times
in dissent.” Moreover, this Court’s past treatment of the
case appears somewhat inconsistent.
This Court has frequently cited Illinois Central for the
rule that state law governs the rights and title of riparian
owners to the beds of navigable waters.” This is consistent
with other cases holding that the states may determine for
**See pp. 17, et seq., infra,
**Bonelli Cattle Co. v. Arizona (1973) 414 U.S. 313, 332 (Stew-
art, J. dissenting); U.S. Trust Co. of New York v. New Jersey
(1977) 431 US. 1,60 (Brennan, J dissenting ).
In dissent to Bonelli Cattle Co. v. Arizona (1973) 414 U.S. 313,
Justice Stewart criticized the majority’s holding that federal com-
mon law governed a riparian owner's rights to lands abandoned by
the Colorado River as a result of a federal rechanneling project.
Justice Stewart stated: [ TIhe settled law of this country [is] that
the ownership of and dominion and sovereignty over lands covered
re
States, belong to the respective States within which they are found.
N e eee ee
.” Shively v. Bowlby (1894) 152 U.S. 1, 47; Illinois Central R. Co.
v. Illinois (1892) 146 U.S. 387, 435; United States v. Holt Bank
(1926) 270 U.S. 49, 54-55.” (Bonelli, supra, at 332, fn. 1.) (See,
Oregon v. Corvallis Sand & Gravel Co. (1977) 429 U.S. 363.)
Appleby v. City of New York (1926) 271 U.S. 364, 380, 393-396
held: “[T]he construction and effect of the contract involved.
depend chiefly upon the extent of the power of the State and city
15
themselves whether to assert any interest in the beds of in-
land navigable waters and, if so, whether the boundary of
the state interest is the high or low water mark. For ex-
ample, Barney v. Keokuk (1876) 94 U.S. 324, 338 held: “If
[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.””
However, this Court has also cited Jillinois Central as
limiting the states’ power to dispose of navigable waters
in a manner inconsistent with the public’s interest in such
waters.” For example, St. Anthony Falls Water Power Co.
to part with property under navigable waters to private persons,
free from subsequent regulatory control of the water over the land
and the land itself. That is a state question, and we must determine
it from the law of the State, as it was when the deeds were exe-
cuted . ..” (Id at 380.)
Illinois Central Railroad Co. v. Chicago (1900) 176 U.S. 646, 659-
660, recognized that the power of the state to sell submerged lands
was governed by state law. This Court stated: “It is true . . . that if
either the language of the grant or long usage under it clearly indi-
cates an intention that waters submerged by the sea shall be in-
cluded, it is within the power of the sovereign to grant them.” (Id
at 660.)
See also United States v. River Rouge Co. (1926) 269 U.S. 411,
418-419; Long Sault Dev. Co. v. Call (1916) 242 U.S. 272; Philadel-
phia Co. v. Stimson (1912) 223 U.S. 605, 632; and Mobile Transpor-
tation Co. v. Mobile (1903) 187 U.S. 479, 487.
*®See also Hardin v. Jordan (1891) 140 U.S. 371; Oregon v. Cor-
vallis Sand & Gravel Co. (1977) 429 U.S. 363.
ln dissent to United States Trust Co. v. New Jersey (1977) 431
US. 1, 50, Justice Brennan, citing Illinois Central stated: “All private
rights of property, even if acquired through contract with the State,
are subordinated to reasonable exercises of the States’ lawmaking
powers in areas of . . environmental protection This statement
could be construed as a rule of constitutional law limiting the
states’ power to dispose of property interests.
In Darling v. City of Newport News (1919) 249 U.S. 540, 543-544,
this Court cited Illinois Central in questioning the power of the
16
v. St. Paul Water Commissioners (1897) 68 U.S. 349, 372,
considered a claim that Minnesota had granted away its
right to ever use the waters of the Mi issippi River for
any public purpose. This Court observed that the validity
states to legislatively restrict public use of tidewaters for sewage
purposes.
Weems Steamboat Co. v. People’s Co. (1909) 214 U.S. 345, 355
stated: “The rights of a riparian owner upon a navigable stream in
this country are governed by the law of the State in which the
GGG
right of navigation.
United States v. Chandler Dunbar Co. (1908) 209 U.S. 447, 451-
452 considered whether the state granted the bed of a navigable
river to a private owner, stating: “[I]f such is the law of the State,
the bed will pass to the patentee by the help of that law, unless
there is some special reason to the contrary to be found in cases
like Illinois Central Railroad Co. v. Illinois, 146 U.S. 387. . . The
right of the State to grant lands covered by tide waters or navigable
lakes and the qualifications, as stated in Shively v. Bowlby 152 U.S.
1, 47 are that the State may use or dispose any portion of the same
‘when that can be done without substantial impairment of the inter-
est of the public in such waters. But it cannot be pretended that
private ownership of the bed of the stream or of the islands, subject
to the public rights, will impair the interest of the public in the
waters of the Sault Ste. Marie. . . The question then is narrowed
to whether the bed of the strait is held to pass by the laws of Michi-
gan. We are content to assume that the waters are public waters.”
In West Chicago Railroad v. Chicago (1906) 201 U.S. 506, 524,
this Court stated: T Ihe rights of the company, as the owner of the
fee of land on either side of the river or in its bed, were subject
to the paramount right of navigation over the waters of the river.”
Shively v. Bowlby (1894) 152 U.S. 1, 47, holds that state law
controls ownership, dominion and sovereignty to navigable waters
. . . with the consequent right to use or dispose of any portion
thereof, when that can be done without substantial impairment of
the interest of the public in such waters
See also, Scott v. Lattig (1913) 227 U.S. 229, 242-243; United
States v. Mission Rock Co. (1903) 189 U.S. 391, 404-407; and
Morris v. United States (1899) 174 U.S. 198.
17
of such a legislative grant was doubtful under Illinois
Central. Thus, this Court indicated that Illinois Central
was not simply based on Illinois law, but rather estab-
lished a federal common law rule limiting Minnesota’s
authority to dispose of its interest in navigable waters.
The scope and application of Illinois Central is a ques-
tion of significant national controversy. One view is that
Illinois Central establishes a federal common law rule on
which to base “a comprehensive legal approach to resource
management problems.” Petitioners submit that Illinois
Central does not establish a federal common law rule. Even
assuming Illinois Central establishes a federal rule, it
limits only the states’ power to impair the public's rights
in navigable waters, not the states’ power to determine
rights and title to land bordering navigable waters. This
Cour should determine the proper application of the
Illinois Central public trust doctrine to clarify and stabilize
the title and rights of all the owners nationally whose land
borders navigable waters.
Imposition Of The California Tidelands Trust Servitude
Deprives Petitioners Of Property Without Due Process
Of Law And Takes Petitioners’ Property For Public Use
Without Just Compensation
The Fourteenth Amendment provides that no state shall
deprive any person of property without due process of
law. The Fifth Amendment provides that no person shall
be deprived of property without due process of law, nor
shall private property be taken for public use without just
compensation. The Just Compensation Clause applies to
the states through the Fourteenth Amendmen Chicago,
Burlington d Quincy R. Co. v. Chicago (1897) 166 U.S.
226, 239, 241.
18
Constitutionally protected property interests are not
created by the Constitution but by existing “rules or under-
standings” stemming from an independent source such as
state law. Board of Regents v. Roth (1972) 408 U.S. 564,
577; Paul v. Davis (1976) 424 U.S. 693, 709-710. The states
determine the title and rights of riparian proprietors in
the beds of navigable waters. (Barney v. Keokuk (1876)
94 U.S. 324, 328; Oregon v. Corvallis Sand & Gravel (1977)
429 U.S. 363.) Once these rights are created they are
entitled to constitutional protection. As this Court
cautioned in Mobile Transportation Co. v. Mobile (1903)
187 U.S. 479, 487: [If riparian proprietors have acquired
the title to the property below high water mark by a grant
or prior possession, good against the State, they could only
be dispossessed by proceedings in eminent domain.”
Petitioners have title to the land good against the State.
(Lyon at 226; App. B-18). Imposition of the tidelands trust
servitude” deprives them of property without due process
**See footnote 3, supra.
From 1850 to 1971 the State servitude included only the public
uses of commerce, navigation and fisheries. People v. California Fish
(1913) 166 Cal. 576, at 584-585; City of Long Beach v. Mansell
(1970) 3 Cal.3d 462, at 482. Marks v. Whitney (1971) 6 Cal.3d 251,
greatly expanded the public uses of the servitude: “Public trust
easements are traditionally defined in terms of navigation, com-
merce and fisheries. They have been held to include the right to fish,
hunt, bathe, swim, to use for boating and general recreation pur-
poses the navigable waters of the state, and to use the bottom of the
ing public recognition that one of the most important public uses
of the tidelands . . is the preservation of those lands in their
natural state, so thet they may serve as ecological units for scien-
tific study, as open space, and as environments which provide food
and habitat for birds and marine life, and which favorably affect
19
of law and without just compensation. In one sentence the
Lyon court brushed aside the constitutional issue stating:
“We doubt whether any failure of the state to previously
assert its trust rights in the lands below high water
constitutes a rule of property.“ {Lyon at 231; App. B-27).
From 1850 to 1977 all three branches of California
government repeatedly confirmed that the State’s interest
in the submerged beds of inland navigable waters extended
only up to the low water mark.“ For over a century the
boundary of the state’s interest and the rights of the prop-
erty owners were settled.“ The property owners reasonably
the scenery and climate of the area. It is not necessary to here
define precisely al! the public uses which encumber tidelands.”
Marks, supra, 259-260.
The Lyon court held, for the first time, that the trust was equally
applicable to non-tidal waters adding to the uses set forth in Marks
the following public recreational uses: “picknicking, hiking, bird-
watching, and nature study.” (Fogerty at 245; App. A-5).
*1See footnotes 8, 9 and 10, supra.
Lyon theorizes that on admission to the Union in 1850 California
mark and retained this land until 1872 when the legislature adopted
Civil Code § 830 granting the land between high and low water
marks to the private owners. Petitioners dispute this contention. In
Justice Paras view, which Petitioners share, in 1850 California
adopted the common law which did not provide for sovereign own-
ership to the high water mark. (App. E). Civil Co ie $$ $70 and
830, enacted in 18° 2, declared that the State claimed only to the
low water mark of inland navigable waters. Wright v. Seymour
(1886) 69 Cal. 122, 127 held that these statutes declared the law
of the State since statehood. Thus, Lyon disregards the 1850 com-
mon law, the 1872 statutes and Wright in ruling that California
owned to the high water mark in 1850. The Lyon court adopted
this holding to justify its conclusion that the State retained an im-
plied servitude when it “granted” the land away in 1872, for the
State could not reserve a servitude in land it never owned. Peti-
20
expected the boundary of the state’s interest to remain at
the low water mark and reasonably expected to retain
their rights to the exclusive use and possession of the land
above the low water mark. These rules and understandings
were relied on by the property owners in purchasing,
investing, improving, maintaining and paying taxes on the
property. Their reasonable investment-backed expectations
are protected by the United States Constitution. (Penn
Central Transportation Co. v. New York City (1978) 438
U.S. 104; Kaiser Aetna v. United States (1979) 444 US.
164).
The Lyon decision destroyed these expectations. As
stated in dissent to Lyon:
The majority opinion overwhelmingly establishes
that by statute, case authority and practice California
historically has not claimed title to land between the
high and low water marks of inland bodies of water.
To apply [the tidelands trust] doctrine for the first
time today casts clouds on thousands if not millions of
land titles and uses . . . (Lyon dissent at 233; App.
B-30). (Emphasis added)
* * .
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 confiscates thousands—perhaps millions—of titles,
and jeopardizes existing use of millions of acres of
residential and farm lands. From time immemorial
landowners within the shorezone have conducted them-
date the proprietors have held fee title to the land. From 1850 to
1977, the State never asserted a servitude in this land. Petitioners
submit that the rules and understandings between the State and the
proprietors from 1872 to 1977 are more than adequate to create
constitutionally protected property interests.
21
selves 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 with-
out payment is confiscation and constitutionally im-
permissible. (Lyon dissent at 238; App. B 37-38).
The Lyon majority imposed the servitude on the theory
that the California legislature “granted” the property by
Civil Code § 830 and retained a servitude between the high
and low water marks by implied reservation.” Nothing in
the statute, its legislative history, its judicial application,
its implementation and administration by state agencies,
or the conduct of the State or the owners supports this
conclusion.”
1
The Court sought to justify the result here by reference
to City of Berkeley v. Superior Court (1980) 26 Cal. 3d
515; People v. California Fish (1913) 166 Cal. 576; and
Illinois Central Railroad Company v. Illinois (1892) 146
U.S. 387. These cases do not support the Court’s imposition
of the servitude.
*But see Leo Sheep Co. v. United States (1979) 440 U.S. 668.
or does a factual analysis support the Court’s conclusion. Crea-
tion of a servitude requires ownership at the time of the reservation.
Between California’s admission to the Union in 1850 and the enact-
ment of California Civil Code § 830, the state did not own the
property now claimed to be subject to the servitude. The Court
concluded that the state took title in 1850 to the high water mark.
The only high water mark in 1850 was the natural high water mark.
The property at Lake Tahoe on which the Court imposes the servi-
tude lies above and landward of the natural high water mark. (See
fn. 17, supra.)
City of Berkeley, was described by the Lyon court as
follows:
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 1887, 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, navigation, fishing, recreation, or for the
purpose of preserving the property in its natural
state. Grants of such lands to private persons are sub-
ject to the trust unless the conveyances are made to
enhance trust purposes. We determined that the
grants in question were not made for such purposes,
and that in any event, the state was not empowered
to made such vast grants to private parties in its role
as trustee. (Lyon at 226; B-19). (Emphasis added.)
Thus, in City of Berkeley, the Court recognized the tide-
lands trust since the legislative grant of fee title violated
the State’s duty as trustee of the tidelands. Two distinc-
tions render City of Berkeley inapplicable here: First, the
lands in question are not “tidelands” and therefore not
within the tidelands trust under California law prior to
Lyon.“ Second, Lyon held that legislature acted properly in
declaring that the upland owner had fee title to the land
above the low water mark.”
**See footnote 7, supra.
„Lyon, 225-226; App. B-18). The language the Lyon court uses
to express these holdings illustrates the distinction. The Lyon court
stated that in City of Berkeley [wle determined . . the state was
not empowered to make such vast grants to private parties.” (Lyon
at 226; App. B-19). Conversely, in considering the same question in
Lyon the Court stated: “We do not doubt that the state had the
power to make such grants.” (Lyon at 222; App. B-13).
23
California Fish, supra, recognized a tidelands trust on
tidelands which that court held were invalidly conveyed by
the legislature. California Fish, is therefore also inappli-
cable here where non-tidelands were validly conveyed.
Illinois Central Railroad Co. v. Illinois (1892) 146 U.S.
387 is likewise inapplicable. First, the case was decided
under Illinois law. Second, it did not involve land validly
owned in fee title. Third, it involved the submerged bed of
Lake Michigan, not the shorezone.“ (See 11-17, supra.)
The California Supreme Court’s reliance on these three
cases is unjustified. The Court ignored the historical dis-
tinction between tidal and non-tidal waters“ and dis-
regarded Petitioners’ valid fee title to the shorezone.
Imposition of the state servitude on Petitioners’ land thus
raises radically different constitutional questions.
A state court cannot destroy property rights by unpre-
dictably relying on inapplicable law. In Hughes v. Wash-
ington (1967) 389 U.S. 290 this Court reviewed a 1966
Washington decision holding for the first time that since
the state’s admission to the Union in 1889 it claimed owner-
ship of the seashore accretions on a beach which had been
“The Lyon dissent states: In Illinois Central] the Supreme
held that a grant of submerged lands in Lake Michigan was
to the trust . . . The court expressly recognized that it did
a trust on the shorezone.” Justice Clark quotes from
Central as follows: ‘If it be ascertained... and determined
such piers and docks do not extend beyond the point of prac-
navigability the claim of the railroad company to their
and possession will be confirmed. (Dissent at 238; App.
emphasis in original.) He concludes: “Far from serving as
to trust to freshwater shorezones, Illinois Cen-
is only navigable submerged lands that are
.” (Dissent at 239; App. B-39, emphasis in
5
Tai
i
Cal. Civ. Code §§ 670 and 830; Cal. Code of Civ. Proc.
footnotes 8, 9 and 10 supra.
8
Bg
24
treated as private property for 80 years.” Justice Stewart’s
concurring opinion analyzed the constitutional issues raised
by the state court decision:
To the extent that the decision of the Supreme Court
of Washington [on the issue of ownership of the
accretions] arguably conforms to reasonable expecta-
tions, we must of course accept it as conclusive. But to
the extent that [the Washington decision] constitutes
a sudden change in state law, unpredictable in terms
of relevant precedents, no such deference would be ap-
propriate. For a State cannot be permitted to defeat
the constitutional prohibition against taking property
without due process of law by the simple device of
asserting retroactively that the property it has taken
never existed at all. Whether the decision here worked
an unpredictable change in state law thus inevitably
presents a federal question for determination of this
Court. (Id. 296-297.)*
Hughes v. Washington held that under federal common law the
proprietor owned the accretions. The federal common law basis of
this case is questionable since Oregon v. Corvallis Sand & Gravel
Co. (1977) 429 U.S. 363 held that state law controlled similar
questions.
“This rule requires that state decisions regarding property rights
rest on a “fair or substantial basis.” Broad River Co. v. South Caro-
lina (1930) 281 U.S. 537, 540 states: “Whether the state court has
denied to rights asserted under local law the protection which the
Constitution guarantees is a question upon which the petitioners
are entitled to invoke the judgment of this Court. Even though the
constitutional protection invoked be denied on non-federal grounds,
it is the province of this Court to inquire whether the decision of the
state court rests upon a fair or substantial basis. If unsubstantial,
constitutional obligations may not be thus evaded.” Fox River Paper
Co. v. Railroad Comm. (1927) 274 U.S. 651; Muhlker v. New York
and H. R. Co. (1905) 197 U.S. 544.
25
As in Hughes, in the instant case since the State’s ad-
mission to the Union both the State and the owners
regarded the lands in question as private property. Im-
position of the tidelands trust servitude for the first time in
1981 was unpredictable in terms of relevant legal (or
factual) precedent. No authority supports imposing the
tidelands trust servitude on non-tidal waters; no authority
supports imposing a state servitude on land validly held
in fee simple ownership.
Courts may not convert private property to public uses
with constitutional impunity. For example, Ka‘ser Aetna
v. United States (1979) 444 U.S. 164 held that a decision
converting a private pond into a public aquatic park vio-
lated the owners’ Fifth Amendment rights. Similarly, in
Hughes v. Washington, Justice Stewart’s concurring opin-
ion analyzed the constitutionality of a stat decision con-
verting previously private beach property to public uses:
There can be little doubt about the impact of that
change upon Mrs. Hughes: The beach she had every
reason to regard as hers was declared by the state
court to be in the public domain. Of course the court
did not conceive of this action as a taking . . . But the
Constitution measures a taking of property not by what
a State says, or by what it intends, but by what it does.
Although the State in this case made no attempt to take
the accreted lands by eminent domain, it achieved the
same result by effecting a retroactive transformation
of private into public property—without paying for
the privilege of doing so. Because the Due Process
Clause of the Fourteenth Amendment forbids such con-
fiscation by a State, no less through its courts than
through its legislature, and no less when a taking is
unintended than when it is deliberate, I join in revers-
26
ing the judgment. (Id. at 297-298, emphasis in
original.“
“The State argued that once a litigant has a hearing the con-
uses. (Answer to Petition for Rehearing, at 10-12.) The State
bases this argument in part on Chang, Unraveling Robinson v.
Ariyoshi: Can Courts “Take” Property? 2 U. of Hawaii L.Rev. 57
(1979) where the author describes Justice Stewart's position in
Hughes v. Washington as “the laymen’s view of a taking.” (Chang,
at 64-67.) However, courts, like any arm of the State, are bound by
the Constitution. Shelley v. Kraemer (1948) 334 U.S. 1, 17, explained
that judicial action held to violate the Fourteenth Amendment was
judicial officials . . . [I]t has never been suggested that state court
action is immunized from the operation of those provisions simply
because the act is of the state govern-
:
i
i
27
The court-imposed servitude not only deprives Peti-
tioners of the right to exclude others and the right to
beneficial use of the property, but also imposes affirmative
burdens on Petitioners which should be borne by the public
as a whole.
Lyon terminates Petitioners’ “right to exclude others.”
Kaiser Aetna (1979) 444 U.S. 164, 179-180, held that the
“right to exclude” is “universally held to be a fundamental
element of the property right” which cannot be taken by
the state without payment of just compensation.
“Property is taken in the constitutional sense when
inroads are made upon an owner’s use of it to an extent
that, as between private parties, a servitude has been
acquired.” U.S. v. Dickinson (1947) 331 U.S. 745, 748;
Penn Central Transp. Co. v. New York City (1978) 438
US. 104, 146 (Rehnquist, J. dissenting). Under the Lyon
decision Petitioners’ property will be impressed with an
extensive state servitude encompassing the public uses of
navigation, commerce, fishing, hunting, swimming, bathing,
picnicking, hiking, birdwatching, nature study and pres-
ervation of the land in its natural state.“
Lyon mpts to minimize the effect the servitude will
have:
We emphasize that Lyon is not deprived of the use
of the lands between low and high water, and that he
state property law. Both cases are pending before the Ninth Circuit
Court of Appeals. )
“Further, the scope of the servitude imposed by Lyon has been
unconstitutionally expanded. From 1850-1971 the tidelands trust
servitude included only the public uses of navigation, commerce and
fisheries. (See footnote 30, supra.) While the government may in-
crease the permissible public uses of a servitude, it must pay just
compensation for doing so. See Beckley v. Reclamation Board
(1962) 205 Cal.App.2d 734; Shaeffer v. State of California (1970)
3 Cal.App.3d 348, 351-352.
may utilize them in any manner not incompatible with
the public's interest in the property. (Lyon at 232;
App. B-29). (Footnote omitted.)
In fact, the “inroads” on Petitioners’ use of their prop-
erty are much more extensive than traditional servitudes.
For example, one use included in the servitude is preserva-
tion of the land in its natural state. Thus any use of the
land by Petitioners would be prohibited as incompatible
with the servitude. (Cf. San Diego Gas d Electric Co. v.
City of San Diego (1981) .... U.S. , 101 S.Ct. 1287, 1301-
1307 (Brennan, J., dissenting) and Agins v. City of Tiburon
(1980) 447 U.S. 225, 260.)
The devastating economic impact of the State’s acquisi-
tion of this servitude is unquestioned (City of Berkeley v.
Superior Court (1980) 26 Cal.3d 515, 533-536) and is a
proper consideration in determining whether a taking has
occurred. Prune Yard Shopping Center v. Robins (1980)
447 U.S. 74, 82-83; Kaiser Aetna v. United States (1979)
444 U.S. 164; Penn Central Transportation Co. v. New
York City (1978) 438 U.S. 104, 124; San Diego Gas d
Electric Co. v. City of San Diego (1981) ca
S. Ct. 1287, 1302 (Brennan, J. dissenting).
The taking determination “requires an examination of
whether the restriction on private property ‘fore[es] some
people alone to bear burdens which, in all fairness and
justice, should be borne by the public as a whole.’ ” (Prune
Yard Shopping Center v. Robins (1980) 447 U.S. 74, 83).
See Penn Central Transportation Co. v. New York City
(1978) 438 U.S. 104, 140 (Rehnquist, J. dissenting) ; San
Diego Gas & Electric Co. v. City of San Diego (1981) ....
US. ......, 101 S. Ct. 1287, 1306 (Brennan, J. dissenting).
Under Lyon, Petitioners, in effect, hold their property
for the benefit of the “public”. (Fogerty at 247; App. A-8).
For example, requiring public access to this land increases
the costs of maintenance, liability insurance and security
services.
The California Supreme Court relied on public policy
grounds to justify the imposition of this servitude on
Petitioners’ property. (Fogerty, at 246-247; App. A 6-8).
See San Diego Gas d Electric, supra, at 1308 (Brennan, J.
dissenting.) But, as Justice Holmes warned in Pennsyl-
vania Coal Co. v. Mahon (1922) 260 U.S. 393, 416:
We are in danger of forgetting that a strong public
desire to improve the public condition is not enough to
warrant achieving the desire by shorter cut than the
constitutional way of paying for the change.
Respectfully submitted,
WLan T. CALA
Marcaret Z. Jouns
Attorneys for Petitioner
Offices. Supreme Court, U.S. |
FILED
81-182.
Jul 27 198!
— ALEXANG RL. STCVAS,
In the Supreme Court 7
OF THE
United States
Ocroser Term, 1980
TaHor SHOREZONE REPRESENTATION,
Petitioner,
VS.
State or CALArokx IA, et al.,
Respondents.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF CALIFORNIA
Wu T. CLA
COUNSEL OF RECORD
Marcaret Z. Jonxs
Point West Executive Centre
1455 Response Road, Suite 191
Sacramento, California 95815
Telephone: (916) 920-0202
Attorneys for Petitioner
BOWNE-PERNAU WALSH ¢ 190 NINTH ST. © &.F., CA 94103 © (415) 864-2300
*
4
37S 2 w Pp
INDEX TO APPENDIX
State of California v. Superior Court (Fogerty)
State of California v. Superior Court (Lyon)
Statutes
Denial of Fogerty Petition for Rehearing
Appellate Court Decision (Fogerty)
Fogerty and Tahoe Shorezone Representation (TSR)
Complaint (Excerpts)
TSR Answer to State’s Petition to California Supreme
Court (Excerpts)
TSR Points and Authorities in Support of Answer to
State’s Petition to California Supreme Court (Ex-
cerpts)
TSR Petition for Rehearing (Excerpts)
City of Los Angeles v. Venice Peninsula Properties.
Excerpts from appellate court decision currently pend-
ing before California Supreme Court (Excerpts)
Incline Village v. Nevada Complaint
Cases citing Illinois Central since 1970
Cases since 1970 citing Sax, The Public Trust Doctrine
in Natural Resource Law
Law review articles since 1970 citing Sax, The Public
Trust Doctrine in Natural Resource Law
A-
Appendix A
State of California v. Superior Court (Fogerty)
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. Rp tr.. P. 2d I, 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
A-2
their civil rights (42 U.S.C. 6 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 to high water. Plaintiffs
sought an injunction to prevent the state 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
ever was sovereign property of the state or subject to the
common law public trust for commerce, navigation and
fishing, and it denied the motions for partial summary
judgment and for partial judgment on the pleadings filed
by the People. Thereafter, the People filed this proceeding,
seeking a peremptory writ of mandate to direct the tria!
A-3
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
permitied 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 declares that the public trust applies to the land in question
(43 Ops.Cal.Atty.Gen. 288, 294 (1964) ), and that it has long been
A4
Since we find that one critical requirement for the
application of the doctrine is absent, we need not discuss
other aspects of the doctrine or their relevance to the
present case. Estoppel will not be applied to the govern-
ment if the result would be to nullify a strong rule of
policy adopted for the benefit of the public (Mansell, 3
Cal.3d at p. 493), and we entertain no doubt that this
would be the result if we were to hold that the People
are barred from asserting the public trust in the lands at
issue.
As we point out in Lyon, our decision will affect the
rights of the public in 4,000 miles of shoreline along 34
navigable lakes and 31 navigable rivers, and many thou-
sands of acres of land between high and low water (the
shorezone). Amicus curiae in the Lyon action, the Cali-
fornia Department of Water Resources, points out that
the shorezone has been reduced to a fraction of its original
size in this state by the pressures of development. Such
lands now cover less than one half of 1 percent of the
state; a further reduction by 15 percent was projected
for 1980. Some authorities have warned that at the pres-
ent rate of destruction nearly all riparian vegetation on
the Sacramento River could be eliminated in the next
20 vears.
The shorezone is a fragile and complex resource. It
provides the environment necessary for the survival of
numerous types of fish (including salmon, steelhead and
settled in this state that the fact a private landowner has title to
tidewaters does not establish such ownership is free of the interest
of the public. (See, e.g., People v. California Fish Co. (1913) 166
Cal. 576 [138 P. 79].)
A-5
striped bass), birds (such as the endangered species: the
bald eagle and the peregrine falcon), and many other
species of wildlife and plants. These areas are ideally suited
for scientific study, since they provide a gene pool for the
preservation of biological diversity. In addition, the shore-
zone in its natural condition is essential to the maintenance
of good water quality, and the vegetation acts as a buffer
against floods and erosion.
The close relationship of the life forms in the shorezone
to one another and to the condition of the bed of the
stream or lake, the delicate balance among them, and the
adverse effects of reclamation and development of these
areas have been documented in numerous studies and
reports. (E.g., U. S. Dept. of Agr., Forest Service (1973)
Gen. Plan for Management of Nat. Forest Lands, Lake
Tahoe Basin, Review Draft, Lake Tahoe Management Unit,
South Lake Tahoe, pp. 1-2; Cal. Dept. Fish and Game
(1974) Fish and Wildlife Res. of Anderson Marsh, Clear
Lake, Lake County; Cal. Dept. Fish and Game (1966)
1 Fish and Wildlife Plan, p. 14.) One commentator has
observed: [The argument is now commonplace that these
environments are the earth’s most biologically productive
. . If nature bats last, wetlands may be the natural team’s
designated | er.“ (Nash, Who Loves a Swamp? in Strate-
gies for Protection and Management of Floodplain Wet-
lands, etc., a Symposium (USDA Forest Service, GTR-
WO-12, Dec. 11-13, 1978.)) The recreational use of these
areas for picknicking, hunting, fishing, hiking, birdwatch-
ing and nature study does not require elaboration to any
Californian. In Marks v. Whitney (1971) 6 Cal.3d 251,
259-260 [98 Cal.Rptr. 790, 491 P.2d 374], Justice McComb
made the following comment for a unanimous court regard-
A-6
ing the public uses of tidelands: “There is a growing
public recognition that one of the most important public
uses of the tidelands—a use encompassed within the tide-
lands trust—is a preservation of those lands in their
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 favorably affect the scenery and climate of the
area.” That observation is equally applicable to the shore-
zone,
The Legislature has recognized the value of the shore-
zone by enacting statutes calling for its protection. (Pub.
Resources Code, §§ 5093.50, 5811.) Section 5811 provides
that “the remaining wetlands of this state are of increas-
ingly critical economic, aesthetic, and scientific value to the
people of California, and . . . there is need for an affirma-
tive and sustained public policy and program directed
at their preservation, restoration, and enhancement, in
order that such wetlands shall continue in perpetuity to
meet the needs of the people.”
We are not convinced by the assertion that fhese con-
siderations do not rise to the level of a strong public
policy in favor of retaining the public trust in the shore-
zone. Plaintiffs argue that a large percentage of the shore-
line of Lake Tahoe is presently devoted to public use
either because of public ownership or the public utilization
of privately owned shoreline facilities such as marinas,
that the problems at Lake Tahoe are related to a large
influx of people which contributes to the pollution of the
lake, that the public beach areas are overused and the
A-7
forest cover destroyed by motor vehicles, and that the best
preserved areas of the lake are in private ownership.
Thus, they urge, the public interest in preservation of the
scenic beauty of the lake would be enhanced by private
rather than public ownership of the shorezone. Moreover,
it is argued, owners are limited in their use of the shore-
zone by many regulations designed to protect the ecology
of the area,“ and these are adequate to protect the public’s
interest.
Amicus curiae, the California Land Title Association, in
a brief filed in the Lyon action, asserts that the People
exaggerate the ecological importance of the shorezone
since not all shorezone areas are of ecological importance,
some of the most significant being located above high
water or below low water. It is also argued that the
imposition of a trust on behalf of the public will not
necessarily provide the ecological benefits which the
People envision. That goal can be better accomplished on
a project-by-project basis in which ecological concerns can
be dealt with and private improvements prohibited, lim-
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ited, or modified, depending on the ecological needs of the
area involved.
Whether or not the shorezone of Lake Tahoe would be
better preserved if privately owned than if the public has
an interest therein is not determinative, since we are not
concerned here with recreation only, nor with Lake Tahoe
alone, but with a principle which will apply to 4,000 linear
miles along all the navigable lakes and rivers in California,
in many of which the conditions may well differ in some
respect from those at Lake Tahoe. Preservation of the
public trust in the shorezone will allow the state flexibility
in determining the appropriate use of such land, so that,
for example, areas which are endangered hy overuse can
be closed to certain activities such as publie bathing. A
number of the considerations advanced by plaintiffs and
amicus would call also for abdication of the tidelands trust
and the substitution of regulation of tidelands development
for the concept of the public’s right to control such lands
as a matter of right. These arguments appear to oppose
the established public trust doctrine in principle, rather
than its application to the shorezone as such.
The exercise of the police power has proved insufficient
to protect the shorezone. The urgent need to prevent deteri-
oration and disappearance of this fragile resource provides
ample justification for our conclusion that the People may
not be estopped from asserting the rights of the public
in those lands.
One question remains: whether the boundary between
public and private ownership should be determined with
reference to Lake Tahoe in its current condition, or the
A-9
“natural” level of the lake as it existed prior to the con-
struction of a dam in 1870, which had the effect of raising
the level of the lake. (See 30 Ops.Cal.Atty.Gen. 262, 267-
268 (1957).) The trial court concluded that the appropriate
boundary between public and private ownership is to be
measured in accordance with the “last natural” low water
mark of the lake. Plaintiffs argue in favor of the trial
court’s ruling, while the People assert that the boundary
should be fixed by assessing the lake in its current condi-
tion.
There is no direct authority on this issue in California.
While there is authority relating to a landowner’s right
to accretiors and relictions* and to the maintenance of a
body of water at its existing level,“ the issue in the present
ease revolves around rights in land between the natural
water level of a lake and its current shoreline as raised
by a dam constructed many decades ago. The People point
Section 1014 of the Civil Code provides that where land forms
by imperceptible degrees from natural causes upon a river or
stream by accumulation of material or the recession of the stream,
it belongs to the owner of the bank. In Carpenter v. City of Santa
Monica (1944) 63 Cal.App.2d 772, 794 [147 P.2d 964], the court
refused to apply this statute to tidelands, deciding that artificial
accretions to tidelands belong to the state, because to hold other-
wise would indirectly convey public tidelands into private owner-
ship.
Some cases hold that a landowner has a vested interest in a
long-continued diversion of water by the state if he has made sub-
stantial expenditures in reliance upon the diversion (Natural Soda
Prod. Co. v. City of L. A. (1943) 23 Cal.2d 193, 197 [143 P.2d 12];
Chowchilla Farms Inc. v. Martin (1933) 219 Cal. 1, 18 [25 P.2d
435]), and that he may recover damages if the level of a lake is
lowered (City of Los Angeles v. Aitken (1935) 10 Cal.App.2d 460,
472 [52 P.2d 585] ).
A-10
out that it would be difficult (and probably impossible in
some cases) to reconstruct the natural water level of a
lake. There are hundreds of dams in California, some
dating back to the early days of statehood. (Dept. of Wat.
Resources, Dams Within Jurisdiction of State of Cal.
(1976) Bull. No. 17-76.) The monumental evidentiary prob-
lem which would be created by measuring the boundary
line between public and private ownership in accordance
with the water level which existed prior to the construction
of these dams provides a convincing justification for ac-
cepting the current level of the lake as the appropriate
standard.
Moreover, the dam at Lake Tahoe has been in existence
since 1870, long past the period required for the acquisition
of prescriptive rights by the state in the lands in question.
(Civ. Code, § 1007; Code Civ. Proc., § 325.) It has been
held in other jurisdictions that a landowner loses owner-
ship of property covered by water resulting from the
construction of a dam if the condition has continued for
the period required for the acquisition of prescriptive
rights. (State v. Parker (1918) 132 Ark. 316 [200 S.W.
1014, 1016]; State v. Sorenson (1937) 222 Iowa 1248 [271
N.W. 234, 238-239].) Sorenson stated that in these circum-
stances “the artificial condition is . . . stamped with the
character of a natural condition, and the title to the lands
covered by the waters of the lake is deemed to have passed
from private ownership to the same trust as that of lands
covered by the waters of natural navigable lakes. The
state, and private owners, as well, of lands affected by
the artificial condition, may enforce the maintenance of
that condition.” (Cf. Chowchilla Farms Inc. v. Martin,
A-11
supra, 219 Cal. 1, 18; Natural Soda Prod. Co. v. City of
L. A., supra, 23 Cal.2d 193, 197.)
We hold that, under all the circumstances, the trial
court erred in its conclusion that the “last natural” low
water mark of Lake Tahoe is the appropriate standard
by which to measure the boundary between public and
private ownership.
We emphasize, as we did in Lyon, that these plaintiffs
may use the shorezone for any purposes which are not
incompatible with the public trust. Landowners who have
previously constructed docks, piers and other structures
in the shorezone may continue to use these facilities unless
the state determines, in accordance with applicable law,
that their continued existence is inconsistent with the
sonable needs of the trust. In that event, both statute
and case law require that plaintiffs be compensated for
the improvements they have constructed in the shorezone.
(Pub. Resources Code, § 6312; Minois Central Railroad v.
Illinois (1892) 146 U.S. 387, 455 [36 L.Ed. 1018, 1043,
13 S.Ct. 110]; City of Berkeley v. Superior Court (1980)
26 Cal.3d 515, 534 [162 Cal.Rptr. 327, 606 P.2d 362].)
Let a writ of mandate issue directing the trial court to
vacate its order granting plaintiffs partial summary judg-
ment, and to grant the People’s motion for partial sum-
mary judgment and partial judgment on the pleadings,
insofar as consistent with the views expressed above.
Bird, C. J., Tobriner, J., and Newman, J., concurred.
CLARE, I., Dissenting—For the reasons stated in my
concurring and dissenting opinion in State of California v.
Superior Court (Lyon), ante, page 210, . . Cal.Rptr. ......,
A-12
<i P.2d ......], the public trust declared today by the majority
applies only to tide and submerged lands and does not
apply to the shorezone. While the shorezone at Lake Tahoe
may be a ring around the lake only a few feet in width,
shorezones on navigable streams encompass hundreds of
square miles wi ch are presently in productive use for
other than trust purposes, and we should not at this late
date declare such uses unlawful.
I must also dissent from the majority’s conclusion that
the People may not be estopped from asserting the trust.
The holding of the sole authority relied on by the majority,
City of Long Beach v. Mansell (1970) 3 Cal.3d 462 [91
Cal.Rptr. 23, 476 P.2d 423], is directly contrary to today’s
decision.
In Mansell, the City of Long Beach had claimed portions
of a residential subdivision were tidelands subject to the
trust. Estoppel was urged on the ground: [The subject
lands were filled and improved with the knowledge and
acquiescence of the state and city and.. . since annexation
of the area in 1923 the city has exercised full municipal
jurisdiction over it—granting building permits, approving
subdivision maps, constructing and maintaining streets
and city services, collecting taxes.” (Id., at p. 487.)
This court first discussed estoppel as applicable to
private parties in land title cases, concluding that the
circumstances would be sufficient to estop private claims.
The court continued: “It is settled that ‘[t]he doctrine of
equitable estoppel may be applied against the government
where justice and right require it. (United States Fid. &
Guar. Co. v. State Board of Equalization (1956) 47 Cal.2d
A-13
384, 388-389 [303 P.2d 1034] and cases there collected.)’
(Driscoll v. City of Los Angeles, supra, 67 Cal.2d 297,
306 [61 Cal.Rptr. 661, 431 P.2d 245].) (See generally 28
Am.Jur.2d, Estoppel and Waiver, §§ 122-133, pp. 782-802;
31 C.J.S., Estoppel, §§ 138-147, pp. 675-733.) Correlative to
_this general rule, however, is the well-established proposi-
tion that an estoppel will not be applied against the govern-
ment if to do so would effectively nullify ‘a strong rule of
policy, adopted for the benefit of the public, . ..’ (County
of San Diego v. Cal. Water etc. Co. (1947) 30 Cal.2d 817,
829-830 [186 P.2d 124, 175 A.L.R. 747], see also cases there
cited.) The tension between these twin principles makes
up the doctrinal context in which concrete cases are
decided.” (Id., at p. 493.)
After lengthy discussion of the leading cases on the issue
of estoppel against government, Mansell distilled the con-
trolling rule: “After a thorough review of the many Cali-
fornia decisions in this area, as well as a consideration of
various out-of-state decisions, we have concluded that the
proper rule governing equitable estoppel against the gov-
ernment is the following: The government may be bound by
an equitable estoppel in the same manner as a private party
when the elements requisite to such an estoppel against a
private party are present and, in the considered view of a
court of equity, the injustice which would result from a
failure to uphold an estoppel is of sufficient dimension to
justify any effect upon public interest or policy which would
result from the raising of an estoppel.” (Id., at pp. 496-497.)
The court concluded that the great injustice to home-
owners which would result from failure to uphold an
A-14
equitable estoppel against the state and city justifies the
minimal effect upon public policy resulting from raising
an estoppel. (Id., at p. 501.)
The majority in the instant case rely upon the language
quoted above that “an estoppel will not be applied against
the government if to do so would effectively nullify ‘a
strong rule of policy, adopted for the benefit of the public,
...” The majority conclude that establishing trust rights
to the shorezone is so important that the People may not be
estopped as to thousands of linear miles of shorezone.
(Ante, pp...)
The majority decision is arbitrarily contrary to Mansell.
That case established that in appropriate circumstances
the People could be estopped to assert the trust, when the
resulting injustice would outweigh the public policy. There
are no doubt, thousands of homeowners in cities of the Sac-
ramento and San Joaquin Valleys, as well as other areas of
the shorezone, in substantially the same position as were
the homeowners in Long Beach. These homeowners, and
thousands of farmers will suffer thousands of “great
injustices,” clearly outweighing the public trust loss in
respect to individual lands. (3 Cal.3d at p. 501.)
While it would be a tremendous burden on the judicial
system to determine in individual cases whether imposition
of the trust involves “great injustice” outweighing trust
detriment, the courts’ business is the administration of
justice. However burdensome the alleviation of “great
injustice” may be, courts should not shirk their duty.
I would deny mandate.
Richardson, J., concurred.
B-1
Appendix B
State of California v. Superior Court (Lyon)
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
MOSER, 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 the 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
B-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.
B-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 eross- 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, 5 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 ease involves issues which are of vast importance to
the general public as well as to the owners of land bordering
B4
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.
B-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 d 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
the water, and other jurisdictions have adopted different rules
B-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 enactment 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.“
The disagreement between the parties in this regard appears to
focus not upon the question whether the state had the power to
grant these lands to private persons, but upon when such power
was exercised, i.e., when California entered the Union or thereafter.
The People urge that the state succeeded to the ownership of the
lands in question to high water as an inherent aspect of sovereignty,
although sovereignty implies that after admission to the Union the
state had the power to grant them to private persons. Lyon argues,
on the other hand, that California never owned these lands but only
had the option to claim ownership, and when it was admitted to
the Union, by the adoption of the common law in 1850 and sectic
830 in 1872, the state elected not to exercise its right to claim
ownership of the land between low and high water.
B-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 sume 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.
BS
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
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
B-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 Lelong to them in their sovereign capacity,
it is not for others to raise objections.” (Id. at p. 338
[24 L.Ed. at p. 228].) Leter 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
B-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.)'
B-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.“
that only common law doctrine applicable to
this approach is that it skirts the critical issue whether the state or
B-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, ti.e 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 unconstitutionc: 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 v. 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
(1914) 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, 9471).
B-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 “[e]xcept
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 tue
owner of “all land below the water of a navigable lake or
. . -” Section 2077 sets forth rules for construing
conveyances in situations where the construction is doubt-
beSeRHI THT,
11 1
88 FF *
Hi
15 115
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alli!
B-i4
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. (4 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
B-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 Cai.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
ease 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 substantia] 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-
B-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
case 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 p«tunts 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-
state above that line.
B-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 Ops.Cal.Atty.Gen. 262, 269 (1957); 23 Ops.
Cal.Atty.Gen. 306, 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.
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.)"
B-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- eontinued 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 ( 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.
refers to a method by which Captain George Rumsey estab-
the level of Clear Lake. The intersection of zero on that
with of 1,318.65 feet may represent the low
merit in the argument of the People that because
section 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 properiy 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.
B-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
B-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 “recre-
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-
ele 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.”
B-21
Cal. 148, 189 [273 P. 797]; People v. Gold Run D. & M. Co.
(1884) 66 Cal. 138, 151 [4 P. 11521.)
In our view, Illinois Central Railroad Company v.
TWinois (1892) 146 U.S. 387 [36 L.Ed. 1018, 13 S.Ct.
110], which we described in City of Berkeley as the “semi-
nal 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 . . bei 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
B-22
the waters as would insure freedom in their use so far
as consistent with the publie 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 lam s 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 Great
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
B-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.) “
226, 242 [34 L.Ed. 941, 947-948, 11 S.Ct. 337]; Peoria v. Central
Nat. Bank (1906) 224 III. 43 [79 N. E. 296, 299].) In Appleby v
City of New York (1926) 271 U.S. 364, 395 [70 L.Ed. 992, 1004,
46 S.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 “[U]pon its admission to the Union, Cali-
i
states,
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
B-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.”
B-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 CaLApp.3d at p. 1050.)
We fail to see how Lyon can find comfort in this state-
ment. It does not mean that the public’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
logic why tidal and nontidal waters should be treated
“Hitchings v. Del Rio Woods Recreation, & Park Dist. (1976)
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],
B-26
differently insofar as these public’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 subject to use for
commerce, navigation and fishing, while the 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 McComb 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 [86 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.
B-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 5]; 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
or principle, resting usually on precedents or a course of decisions,
regulating the ownership or devolution of property. . . The princi-
ple appears to be an extension of the ‘stare decisis’ rule, which
seems to apply with peculiar force and strictness to decisions which
B-28
Indeed, in some respects, our holding constitutes less
of an interference with property rights than o red 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 “[t]here
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
B-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
public'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.
The People raise an additional question regarding the correct -
ness of the trial court's ruling. The court determined that the ap-
is also presented in State of California v. Superior Court (Fogerty)
(1981) post, at page 240 [—Cal Rptr.—, —P.2d—], and it is dis-
between public and private ownership must be assessed in accord-
ance with the shoreline of the lake as it exists presently.
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.
B-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
resources 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
B-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.
B-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 goveramental 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 anchorin~, standing,
or other purposes. [Citations.] The public has the same
rights in and to tidelands. IU] The public uses to which
tidelands are subject are sufficiently flexible to encompass
changing public 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
public uses of the tidelands—a use encompassed within the
tidelands trust—is the preservation of those lands in their
B-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-
lie 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. Williams
(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; Cf 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 Cai.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.)
B-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
water receded. The flooding and short growing season
limited production of crops and improvements which could
be made.
‘Historically, the Sacramento River has carried off the annual
rounding mountains. Large basins were formed as vast amounts of
water regularly overflowed river banks. During spring seasons, the
1,250 square miles and in extraordinary years
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,
87-88 [252 P. 607) have traditionally overflowed during the spring
time to produce large marshland areas, which were subsequently
highly productive.
B-35
Much of the history of California is tied to reclamation
and farming of the state’s rich bottom land. Such reclaimed
lands ave 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
pi stive 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
B-36
now find such reclaimed lands or even the greater portion
thereof useless 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 has 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
oy 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-
B-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 i a worthy endeavor but
it should not be accomplished with a blunderbuss that con-
fiseates 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,
B-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 -heir 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 same effect. (Id., at p. 464 [36
L.Ed. at pp. 1046-1047].)
B-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.
Civil Code § 670.
The State is the owner of all land below tide water, and
below ordinary high-water mark, bordering upon tide water
within the State; of all land below the water of a navigable
lake or stream; of all property lawfully appropriated by
it to its own use; of all property dedicated to the State;
and of all property of which there is no other owner.
Code of Civil Procedure § 2077.
The following are the rules for construing the descriptive
part of a conveyance of real property, when the construc-
tion is doubtful and there are no other sufficient circum-
stances to determine it:
7 * *
5. When tide water is the boundary, the rights of the
grantor to ordinary high-water mark are included in the
conveyance. When a navigable lake, where there is no tide,
is the boundary, the rights of the grantor to low-mark are
included in the conveyance.
D-1
Appendix D
Denial of Fogerty Petition for Rehearing
Clerk’s Office, Supreme Court
4250 State Building
San Francisco, California 94102
April 29, 1981
I have this day filed Order
REHEARING DENIED
In re: S. F. No. 24035
State of California
vs.
Superior Court, Placer
Respectfully,
Clerk
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Appendix E
Appellate Court Decision (Fogerty)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SEE CONCURRING OPINION
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
IN AND FOR
THE THIRD APPELLATE DISTRICT
(Placer)
3 Civil 17381
(Super. Ct. No. 48281)
CHARLES F. FOGERTY, et al., Plaintiffs
and Respondents,
v.
STATE OF CALIFORNIA, et al., Defendants
and Appellants.
[Filed Mar. 28, 1979]
Defendants appeal from a preliminary injunction order.
As will appear, without addressing the merits, we shall
conclude that the trial court did not abuse its discretion
in issuing the preliminary injunction.
The events leading to the injunction are as follows:
by letter dated March 8, 1977, the Attorney General
advised the State Lands Commission (“Commission”) of
the State’s claim of sovereign ownership—to ordinary
high-water mark—of the beds of non-tidal navigable lakes
and streams throughout California. Pursuant to this
advice, the State Lands Commission announced its inten-
tion to record notices of such claim in the counties where
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navigable lakes and streams are located. Plaintiffs, alleging
ownership interests in Lake Tahoe waterfront property,
sought to restrain the Commission from recordin: such
notices unless the notices consisted of a lis pendens filed
in conjunction with a legal proceeding. As requested, the
trial court issued a preliminary injunction prohibiting
the Commission from recording such notices.
Defendants have the right to appeal from an order
granting a preliminary injunction. (Code Civ. Proc.,
§ 904.1, subd. (f).) However, the scope of inquiry on appeal
is limited so that the reviewing court will not interfere
_with the trial court’s order in the absence of a showing of
clear abuse of discretion. (Weingand v. Atlantic Sav. &
Loan Assn. (1970) 1 Cal. 3d 806; Continental Baking Co.
v. Katz (1968) 68 Cal.2d 512; Porter v. Jennings (1891)
89 Cal. 440.) Nevertheless, the parties’ briefs exhaustively
argue the heart of the underlying dispute.
The substantive issue is whether the land between the
ordinary high and low water marks along the shorelines
of navigable lakes and streams is in State or private
ownership. The State urges us to resolve this issue on
this appeal from the preliminary injunction order. The
trial court’s issuance of a preliminary injunction order,
however, neither attempts to adjudicate nor has the effect
of Ijudicating the merits of the ultimate controversy.
(Patterson v. Board of Supervisors (1875) 50 Cal. 344;
Socialist Workers ete. Committee v. Brown (1975) 53
Cal.App.3d 879.) Rather, it simply preserves the status quo
pending trial (Continental Baking Co. v. Katz, supra,
68 Cal.2d at p. 534; People v. Black’s Food Store (1940)
16 Cal.2d 59; West Coast Constr. Co. v. Oceano Sanitary
Dist. (1971) 17 Cal.App.3d 693), so that final resolution on
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the merits may not become ineffectual. (Froomer v.
Drollinger (1960) 183 Cal.App.2d 787.) Here, then, the
trial court’s granting of the preliminary order succeeded
in restraining the Comn.ission’s i. cording of notice without
proceeding further to comment one way or another on the
strength of opposing claims to the lakeshore property.
(See Bomberger v. McKelvey (1950) 35 Cal.2d 607; Miller
& Lux v. Madera Canal ete. Co. (1909) 155 Cal 59.) Con-
sequently, at this stage of the litigation, we as an appellate
court do not determine the rightful owner of the lakeshore
property, but properly confine ourselves to a review of the
propriety of the trial court’s issuance of the preliminary
injunction against the Commission. (Continental Baking
Co. v. Katz, supra, at p. 512; Patterson v. Board of Super-
visors, supra, 50 Cal. 344; State Bd. of Barber Examiners
v. Star (1970) 8 Cal App.3d 730; French Art Cleaners v.
St. Bd. ete. Cleaners (1949) 91 Cal. App.2d 890.)
The Supreme Court, in Continental Baking Co. v. Katz,
supra, at jage 528, has described the mechanics by which
a triai court, in balancing the respective equities of the
parties, decides whether to grant or deny a request for a
prelirinary injunction: “. .. the court examines e"l of the
material beiore it in order to consider ‘whether a cater
injury will result to the defendant from granting the
injunction than to the plaintiff from refusing it;:
[Citations.] In making that determination the court will
consider the probability of the plaintiff’s ultimately
prevailing in the case, and it has been said, will deny a
preliminary injunction unless there is a reasonable prob-
ability that the plaintiff will be successfu! in the assertion
of his rights. [Citations.] As was said in Family Record
Plan, Inc. v. Mitchell (1959) 172 Cal.App.2d 235, 242 [342
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P.2d 10], ‘In the last analysis the trial court must deter-
mine which party is more likely to be injured by the
exercise of its discretion [citation] and it must then be
exercised in favor of that party [citation].’ ”
The preliminary injunction here preserved plaintiffs’
existing claims to the property extending to the low water
mark of Lake Tahoe. The State has demonstrated no
significant injury that would result to it from a granting
of the preliminary injunction order. On the other hand,
plaintiffs have asserted that they would stand to incur
substai.cial harm from a refusal of their request for a
preliminary injunction. Based on respondents’ reasonable
likelihood of prevailing on the merits, the trial court,
within the appropriate bounds of its discretion, could have
concluded thet denial of the preliminary injunction order
would threaten to cloud title so as effectively to prevent
respondents’ transfer of the lakeshore property, or would
otherwise threaten to interfere with any interests in the
lakeshore property presently possessed by respondents.
Finally, we do uot agree with State that it is beyond
the reach of injunctive relief in the instant circumstance
because the application of Civil Code section 830 to these
facts is the very question in issue in this litigation. (Cf.
Code Civ. Proe., § 526, subds. 4 aad 6; Civ. Code, § 2423,
subd. (4).)
The order granting the preliminary injunction is
affirmed. ;
REYNOSO, J.
I concur:
PUGLIA, P.J.
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Who owns the land between the ordinary low-water mark
and the ordinary high-water mark along the shoreline of
California’s non-tidal’ navigable waters, including Lake
Tahoe? Is it the State or the bordering property owner?
From at least 1916, and until 1970, the Attorney Gen-
eral of California took the position that the State owned
the beds of non-tidal navigable lakes and streams only to
ordinary low-watcr mark, (Ops.Cal.Atty.Gen. 3100, pp. 5-6
(1916); 23 Ops.Cal.Atty.Gen. 97 (1954); 43 Ops.Cal.Atty.
Gen. 297 (1964).) By its letter of March 8, 1977, however,
the Attorney General advised the State Lands Commission
that the State asserts, and since 1970 has been asserting,
sovereign ownership of the beds of navigable lakes and
streams to ordinary high-water mark. When the Commis-
sion thereafter announced its intention to record notice of
the State’s claims in the recorder’s office of counties where
such lakes and streams are located, certain owners of prop-
erty bordering on Lake Tahoe filed this action and ob-
tained the challenged preliminary injunction against such
recordation.
I
The majority does not reach the merits of the contro-
versy. My colleagues conclude that on appeal from the
issuance of a preliminary injunction they need only decide
whether there is a reasonable probability that plaintiffs
will ultimately prevail and whether a greater injury will
Crucial to a pi sper understanding of this case is the c~ustant
awareness that only non-tidal waters are involved. As I note here-
inafter, non-tidal and tidal waters are governed by separate and
different rules of law.
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result from granting the injunction than from denying it.
That general proposition is both correct (Continental Bak-
ing Co. v. Katz (1968) 68 Cal.2d 512, 528) and applicable
here; therefore I concur in the majority opinion. But un-
like the majority, I am not prepared to end the matter thus.
Because I view the ownership issue, on the merits, as a
pure question of law with a very clear answer, in the
interests of judicial economy, I would resolve it here and
now. No further evidence or hearing in the trial court could
possibly change the result.
II
California Civil Code section 670, as enacted in 1872 and
amended in 1873-1874, states: “The State is the owner of
all land below tide-water, and below ordinary high-water
mark, bordering upon tide water within the State; of all
land below the water of a navigable lake or stream; .. .”
This is clarified in Civil Code section 830, also enacted
in 1872, and amended in 1874 to read: “Except where the
grant under which the land is held indicates a different
intent, the owner of the upland (when it borders on tide-
water) takes to ordinary high-water mark; when it borders
upon a navigable lake ov stream, where there is no tide,
the owner takes to the edge of the lake or stream, at low-
water mark; ...” (Emphasis added.)
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Section 830 has been widely accepted as establishing
ordinary low-water mark as the limit of California’s
sovereign lands beneath non-tidal inland navigable lakes
and streams. In addition to such treatment in the line of
Attorney General’s opinions cited above, it has been so
treated in a number of reported decisions, including Los
Angeles v. Aitken (1935) 10 Cal.App.2d 460, 467; Crews
v. Johnson (1962) 202 Cal.App.2d 256, 258; and United
States v. Gossett (9th Cir. 1969) 416 F.2d 565. More-
over, I note from the limited record before us that certain
of the conveyances of property bordering Lake Tahoe
specifically describe the waterward boundary as the line of
“ordinary low
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