Appendix — Summa Corp. v. California ex rel. State Lands Commission
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Sa
[ores Supreme Cour, US)
82-708 FILED
OCT 22 1982
No. 82. ALEXANDER L STEVAS.
CLERK }
IN THE
Supreme Court of the United States
October Term, 1982
Summa CORPORATION,
Petitioner,
v.
Strate or CALIFORNIA ex rel. State Lanps
Commission and City or Los ANGELES,
Respondents.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF CALIFORNIA
Warren M. CHRISTOPHER
611 West Sixth Street
Los Angeles, California 90017
(213) 620-1120
Counsel for Petitioner
Of Counsel:
Henry C. THUMANN
Joseph M. MALKIN
O’MeE.Lveny & Mens
611 West Sixth Street
Los Angeles, California 90017
Joux N. McLaurin
Sreven W. Bacon
HILL, FaRRER & BURRILL
445 South Figueroa Street
Los Angeles, California 90071
TABLE OF CONTENTS
Page
Appendix A-1: Supreme Court Opinion A-
Appendix A-2: Crder Denying Rehea ring A-33
Appendix A-3: Supreme Court Judgment A-34
Appendix A-4: Court of Appeal Opinion A-35
Appendix A-s: Trial Court Findings of Fact and
ES eee Te A-50
Appendix A-6: Trial Court Judgment A-66
Appendix B-1: Treaty of Guadalupe Hidalgo.................. A-90
Appendix B-2: Act of 1851 cccccccccccsesessesesesesessesnereneevens A-108
Appendix C-1: Patent for Rancho La Ballona................ A-115
Appendix C-2: Plat of Rancho La Ballona A-124
Appendix D-1: March 17, 1860 Letter from General
Land Office (Joseph Wilson, Commissioner A-125
Appendix D-2: Apri! 30, 1873 Letter trom General
Land Office (Willis Drummond, Commissioner) A-128
\
*
A-
APPENDIX A-!
IN THE SUPREME COURT
OF THE STATE OF CALIFORNIA
(L.A. No. 31422. May 10, 1982.
CITY OF LOS ANGELES,
Plaintiff, Cross-defendant and Respondent,
v.
VENICE PENINSULA PROPERTIES
et al., Defendants,
Cross-defendants and Appellants;
THE STATE OF CALIFORNIA
ex rel.
STATE LANDS COMMISSION,
Defendant, Cross-complainant and Respondent.
OPINION
MOSK, J.— In a series of recent cases, this court has con-
sidered the scope and effect of the public trust doctrine. Under
that doctrine, the state holds a trust interest on behalf of the
public in tidelands (City of Berkeley v. Superior Court (1980) 26
Cal.3d 515 162 Cal.Rptr. 327, 606 P.2d 362) and in lands
between high and low water in nontidal navigable lakes (State of
California v. Superior Court (Lyon) (1981) 29 Cal.3d 210 [172
Cal.Rptr. 696, 625 P.2d 239); State of California v. Superior Court
(Fogerty) (1981) 29 Cal.3d 240 [172 Cal. Rptr. 713, 625 P.2d 256).
The public may use such properties for purposes such as com-
merce, navigation, and fishing, as well as for environmental
and recreational purposes. These lands may be conveyed to
private persons only to promote trust uses, and grants not made
for that purpose remain subject to the rights of the public. (For
a scholarly analysis of the development of the public trust in
the United States and in California, see Stevens, The Public
Trust (1980) 14 U.C. Davis L.Rev. 195, 199 et seq.)
A-2
The foregoing cases involved property which was originally
owned in fee by the state or federal government and granted by
them to private persons. In the present case, the issue is
whether the public trust doctrine applies to tidelands in which
the state and federal government never had fee title. The
tidelands involved here were originally acquired by private
persons from the Mexican government prior to the time
California was ceded to the United States under the Treaty of
Guadalupe Hidalgo, and later patented to the owners by the
federal government in accordance with the requirements of the
treaty.
Ballona Lagoon, the subject of this proceeding, is an arm of
the Pacific Ocean in the Marina del Rey area of Los Angeles. It
is subject to the tides, and inundated with seawater at mean low
tide and mean high tide. At mean high tide, the depth of the
water is sufficient to be navigable by shallow draft vehicles. At
its northern end, the lagoon is connected to the Venice Canals,
and provides the sole source of water for them.
In 1905, the shore surrounding the lagoon was subdivided
into three large abutting tracts, and some of the tidelands were
filled and improved. The present case involves two of those
tracts, lot R of the Silver Strand subdivision and a portion of lot
C of the Del Rey subdivision, both of which consist entirely of
waterways. Access to the lagoon is now provided by walkways
surrounding the shore, public streets to the shoreline, and bridg-
es across the lagoon. In recent years, motor-controlled tide gates
were installed between the Pacific Ocean and the entrance to
the lagoon to control the ebb and flow of the tide within the
lagoon; they are used to prevent flooding of the adjacent land.
The City of Los Angeles desired to dredge the lagoon, con-
struct sea walls, and make other improvements therein without
exercising its power of eminent domain. It filed an action for
declaratory relief and to quiet title in the iagoon against the
owners of lots C and R, and the holder of an easement in these
A-3
lots (hereinafter called defendants).' The complaint alleged that
the public owns an easement in the lagoon for commerce,
navigation and fishing, for the passage of fresh water to the
Venice Canals, and for water recreation. It alleged also that the
lots had been dedicated by their owners for public use. The city
joined the State of California as a defendant in the action, as
contemplated by section 6308 of the Public Resources Code.’
The state thereafter filed a cross-complaint, alleging that it had
acquired an interest in the tidelands of the lagoon for com-
merce, navigaton and fishing upon admission to the Union, that
it held this interest in trust on behalf of the public, and had
granted its interest to the city. (For literary convenience, the
city and the state will be referred to collectively as plaintiffs.)
Some of the defendants originally named in the action sold their
interests in the lots to the present owners. Summa Corporation is the
owner of the portion of lot C involved in this case; Venice Peninsula
Properties and other defendants own lot R.
Southern California Gas Company, sued as a fictitious defendant,
owns an easement for a pipeline which traverses the lagoon, and
maintains an underground storage area on lot C which may extend
beneath the waters of the lagoon. Its interest in this proceeding
appears somewhat attenuated. The company sought a declaration
that plaintiffs would be required to pay it compensation if relocation
of the pipeline is required by the improvements which the city
proposed to construct. However, there is no indication that these
improvements will affect the company’s easements; plaintiffs’ briefs
imply to the contrary. In any event, plaintiffs concede, as they must,
that they will be required to compensate the company in the event
any improvements they may make at some future time damage the
company’s facilities. (Pub. Resources Code, § 6312.)
Although the trial court found that the public’s right is
“paramount” to the rights of the gas company, we do not under-
stand this finding to mean that, contrary to section 6312, the
improvements constructed by the gas company may be taken
without payment of compensation.
* Section 6308 provides: “Whenever an action or proceeding is com-
menced by or against a county, city, or other political subdivision or
agency of the State involving the title to or the boundaries of
tidelands or submerged lands that have been or may hereafter be
granted to it in trust by the Legislature, the State of California shall
be joined as a necessary party defendant in such action or
proceeding...”
A4
After a trial at which both documentary and testimonial
evidence was received, the trial court determined that the state
holds in trust for the people the easements claimed in the city’s
complaint, and that the state or its successors have the right to
construct the improvements in the lagoon without exercising
the power of eminent domain.’ The court found also that
defendants had dedicated the property as public streets or
waterways.
Before discussing the primary issue of whether the tidelands
trust applies to lands granted by Mexico and later patented to
the owners by the federal government, we must consider
defendants’ claim that the trust doctrine does not apply to their
property. They assert that the United States government
determined as a fact in the course of the proceedings which
culminated in the issuance of a patent to their predecessors in
interest that the property in question was not tidelands, and
this determination, right or wrong, cannot now be challenged
by plaintiffs.
In order to decide this issue, we must examine the circum-
stances of the original grant and the subsequent patenting
process.
In 1839, while California was a part of Mexico, the Constitu-
tional Governor of California granted to Augustin and Ignacio
Machado and Filipe and Tomas Talamantes a property known
* In 1917, the state granted to the City of Venice any right which it
had in tidelands within the boundaries of the city, in trust. The
granting statute stated, “nothing contained herein shall in any way
affect any property held or claimed under, through or from a
Mexican grant or patent therefor within the present boundaries and
jurisdiction of said city....” (Stats. 1917, ch. 77, p. 89.) The City of Los
Angeles succeeded to the rights of Venice in these tidelands under a
grant which excepted “any property held under, or from a
Mexican grant or patent....” (Stats. 1945, ch. 1513, p. There is
no indication as to why these exceptions were made. The critical
question in this proceeding is whether the public has retained an
interest in the property in question. Whether that interest is held by
the city, or by the state (as the trial court concluded), has no
significant effect on the public’s rights in the property if such rights
exist.
A-5 0
as Rancho Ballona. The rancho’s western border was the Pacific
Ocean, and it included lots C and R. After the war with Mexico
was concluded by the Treaty of Guadalupe Hidalgo, California
was ceded to the United States. Under the terms of the treaty,
the rights of Mexican citizens to their property were to be
“inviolably respected.” (Treaty of Guadalupe Hidalgo, Feb. 2,
1838 sie], Art. VIII, 3 West’s Cal. Const. (1954) 727, 732.)
In keeping with this obligation, in 1851 the federal govern-
mental passed “An Act to ascertain and settle the private Land
Claims in the State of California” (hereinafter referred to as the
Act of 1851), the purpose being to establish a method by which
the claims to land granted by Mexico could be confirmed and
settled in the grantees by the federal government. (9 Stat. 631.)
The Machados and Talamantes, following the procedure set
forth in the act, petitioned the Board of Land Commissioners in
1852 for a decree confirming their title to the rancho. After a
hearing, the board confirmed the title, describing the bounda-
ries of the rancho in the same terms as the original Mexican
grant. That decision was affirmed by the United States District
Court in 1855.
However, before a patent could issue, a survey of the
property was required, approved by the Surveyor Gener: ! of
California. (9 Stat. 633, § 13.) In 1858, Henry Hancock on-
ducted a survey and prepared a plat which showed a large body
of water labelled “inner bay” extending from the southwest
corner of the property parallel to the Pacific Ocean in a north-
westerly direction. Hancock’s field notes set forth his measure-
ments as he walked along the shores of the bay, crossed an inlet,
and came to the Pacific Ocean.
For reasons which are not entirely clear from the record, the
correctness of the survey was not determined until 17 years
later. In 1869, objections to the survey were filed by owners of
the ranch which bordered Rancho Ballona on the north, an area
some distance from that marked “inner bay” on the Hancock
survey. Under a statute passed in 1864 to expedite the settle-
ment of land titles in California (13 Stat. 332), the Hancock
survey was forwarded to Washington to the General Land
A
Office Commissioner, who was required to approve it prior to the
issuance of the patent, and to settle conflicting claims to the
lands surveyed. Commissioner Willis Drummond decided that
the survey was accurate with regard to the disputed northern
boundary. He determined also that the “inner bay” shown on
Hancock’s map was not an arm of the sea, basing this
determination in part on three affidavits which stated that the
area labelled “inner bay” on the plat was dry land used for
pasturage, except at times of overflow at high water and during
storms, when sand blocked the mouth of a creek which, on
Hancock’s plat, emptied into the “inner bay.” However, Drum-
mond approved the Hancock survey.
Thereafter, a patent was issued. It not only incorporated the
plat prepared by Hancock, but his field notes as well. The grant
was for “the tract of land embraced and described in the....
Survey... Defendants base their claim that the patent
proceedings determined conclusively that the “inner bay” was
not tidelands, upon the finding of Drummond.
The parties are in disagreement as to what was finally
decided in the patent proceeding* and whether the determina-
tion as to the character of the “inner bay” was necessary to the
approval of the survey.“ For the purpose of analyzing the effect
of the patent we assume, without deciding, that defendants
The owners of the ranch north of the Rancho Ballona appealed
Drummond's decision to the Secretary of the Interior; in affirming,
the secretary referred specifically only to the boundary line dispute.
From this circumstance, plaintiffs urge that Drummond's decision is
not binding because it was an intermediate decision affirmed by
higher authority only to the extent that it decided the boundary
dispute. Kas
* Plaintiffs claim that the question whether the “inner bay” shown on
Hancock’s map was an arm of the sea was not necessary to Drum-
mond’s decision because only the placement of the northern
boundary was challenged; even if all the boundaries of the ranch
were in issue, they argue, the question whether the “inner bay” was
land or water was irrelevant to those boundaries. Defendants con-
tend, on the other hand, that the area described as the “inner bay”
would 8 been excluded from the grant if it had consisted of
tidelands.
A-7
prevail on these matters and that Drummond’s determination
that the “inner bay” was not an arm of the sea was a final
decision on that question and a necessary predicate to the
issuance of the patent.
But these assumptions do not end the matter. The four
corners of the patent, when considered in light of Drummond’s
finding, present an obvious ambiguity. The plat attached to the
patent shows an “inner bay,” and Hancock’s field notes,
repeated therein, describe his measurements around this bay.
The principal definition of a “bay” is “an inlet of the sea,
usually smaller than a gulf, but of the same general character.
. (Webster’s New Internat. Dict. (2d ed. 1951) p. 234). Drum-
mond had the power to investigate the correctness of the survey
or to order that a new one be made (13 Stat. 332, 333). Instead,
he approved it without requiring any changes even though it
was inconsistent with his determination regarding the
character of the “inner bay.”
In view of this inconsistency between the terms of the patent
and the opinion of Drummond, the trial court was justified in
admitting evidence as to whether the area in question was an
arm of the sea and tidelands at the time California was admit-
ted to the Union in 1850. The court found as a fact that for more
than 900 years the lagoon has been an arm of the sea, subject to
the tides. This conclusion is supported by overwhelming
evidence, and defendants do not seriously challenge its valid-
ity.
We come, then, to the primary issue before us, i.e., whether
defendants’ property is subject to the public trust. Under the
Act of 1851, all land in California, including tidelands, which
* Experts in the field of geology and geomorphology testified that the
Ballona Lagoon is the remnant of a larger, wider, and deeper tidal
body of water which existed in 1839 and for more than 900 years
prior thereto. Their conclusions were based in part on surveys of the
area by the federal government in 1876, 1887, and 1896, which
showed the lagoon as an arm of the sea in a configuration consistent
with the map drawn by Hancock, and scientific tests of the sub-
surface of the lagoon.
A
had belonged to Mexico and was not patented to private parties,
became the property of the United States. (9 Stat. 631, §13, p.
633.) The federal government held the interest in tidelands in
trust for the future state, and when California was admitted to
the Union, it succeeded to the rights of the United States as an
incident of sovereignty. (City of Berkeley v. Superior Court, supra,
26 Cal.3d 515, 521.)
Defendants urge that the tidelands trust is an incident of
title, that the federal government never acquired title to tide-
lands granted by Mexico to private parties and confirmed by
patents issued by the United States, and that it follows, there-
fore, that the state, upon admission to the Union in 1850, could
not succeed to an interest which the federal government never
possessed.’ Plaintffs concede that defendants have title to the
tidelands, but they assert that the federal government acquired
an interest in trust in such lands on behalf of the public when
California was ceded by Mexico, that this interest did not pass
with the patent issued to defendants’ predecessors, and that the
State acquired it as an incident of sovereignty in 1850.
In analyzing these conflicting claims, we must decide, first,
whether the title which defendants’ predecessors received from
Mexico was subject to the rights of the public in the tidelands
encompassed in the grant and, second, if so, whether the United
States acquired these rights upon annexation of California.
The law of Mexico at the time of cession declared that the
public had a right to the use of the tidelands; this right was
similar to the common law public trust.“ In the grant of the
California did not acquire title as an incident of sovereignty to
tidelands which were patented under the Act of 1851. (Eg. United
States v. Coronado Beach Co. (1921) 255 U.S. 472, 488 65 L.Ed. 736,
— 41 S.Ct. 378); People v. San Francisco (1888) 75 Cal. 388, 398 [17 P.
0
* Law III of Title XXVIII of Las Siete Partidas, the law in effect
while California was a part vt Mexico, provided, “The things which
— in common o the creatures of this world are the following,
*
, the ... sea and its shores, for every living creature can use
each of these things according as it has need of them. For this
reason every man can use the sea and its shore for fishing or for“
A-
Rancho Ballona to the Machados and Talamantes, it was pro-
vided that the grantees “may enclose it without prejudice to the
traversing roads and servitudes.” An expert on the law of
Mexico who testified on behalf of defendants stated that the
purpose of this language was to preserve “the rights of the
public ... in the conveyance of large tracts of land by the
authorities.“ Thus, when California was ceded by Mexico, the
title of defendants’ predecessors was subject to the interests of
the public in the tidelands included in the grant.
Next, we consider whether the United States acquired that
interest upo. annexation of California. There is little authority
regarding this issue. As we have seen under section 13 of the
Act of 1851, lands which had belonged to Mexico and were not
patented by the federal government to private parties became
the property of the United States. This provision does not state
whether less than fee interests retained by Mexico in land
conveyed by that government, such as the public interest in
tidelands, also passed to the new government.
So far as we have been able to determine, only one case has
addressed that question. Under Mexican law, a grant of land by
the government did not include mineral rights. In Moore v.
Smaw (1861) 17 Cal. 199, the court was called upon to decide,
inter alia, whether the United States became the owner of the
mineral rights in California lands granted by Mexico to private
navigation, and for doing everything there which he thinks may be
Nigh his advantage.” Law VI provided, “Rivers, harbors, and public
ighways belong to all persons in common... (Las Siete Partidas,
ont (Spain) (1 1931) pp. 820-821). The Mexican law originated in 13th
century Spain under Alfonso the Wise. (Stevens, The Public Trust,
supra, 14 UC. Davis L.Rev. at p. 197.)
Indeed. according to the expert witness, Mexican law prohibited the
alienation of tidelands. While we are not aware of any authority on
the question whether a conveyance of tidelands by Mexico (perhaps
erroneously) preserved the public's right in the land, the concept of
retention by the public of rights in lands conveyed by the govern-
ment to private parties was not alien to the law of Mexico, as we
shall see. In the absence of any indication to the contrary, we
assume that tidelands conveyed by Mexico remained subject to the
public's interest.
A-10
parties. It held that under the provisions of the Act of 1851, the
mineral rights retained by the Mexican government were “by
the cession passed, with all other property of Mexico within the
limits of California, to the United States.” (17 Cal. at p. 217.)
The same reasoning should apply to tidelands. The interest of
the Mexican government in these lands, like mineral rights,
was “property of Mexico,” at the time of cession and therefore
became the property of the United States. In view of the
publie's strong interest in tidelands, the established doctrine
that title in such lands in the hands of private persons is
usually subject to the rights of the public, and the rule that
Statutes conveying tidelands should be interpreted if reasonably
possible to avoid a destruction of the public use (People v.
California Fish Co. (1913) 166 Cal. 576, 597 138 P. 79)), we hold
that under the Act of 1851, the federal government succeeded to
Mexico's right in the tidelands granted to defendants’ predeces-
sors upon annexation of California.
We reject defendants’ assertion that the tidelands trust is
inevitably an incident of fee title by the government. It is true,
as they claim, that prior cases have described the trust in the
context of tidelands which the government owns or owned at
one time. However, these cases do not hold that title in the
government is essential to the existence of the trust. So far as
we are aware, this is the first case which has squarely presented
that question.
Thus far, we have decided that upon annexation of
California, the federal government succeeded to the ownership
For example, in People v. California Fish Co., supra, 166 Cal. 576, 584,
tidelands are referred to as belonging to the state in its
character, and in Illinois Central v. Illinois (1892) 146 U
387, 452 36 L.Ed. 1018, 1042, 13 S.Ct. 110), the government's
interest in tidelands is described as “a title held in trust for the
people of the state
We disapprove dictum in San A —~ ‘y-
— (1978) 81 Cal App3d 923, S87 1146 Cal Rotr |, to
Gi eiiaes an tho ————7jꝙ＋—— . — ©
which the state has at one time held title.
A-ll
of the public's rights in the tidelands contained in ranchos
which had been conveyed by Mexico. The next question is
whether those rights were relinquished by issuance of the
patents to the Mexican grantees. The major disagreement
between the parties arises over the effect of the patent on the
tidelands. Defendants insist that the failure of the United
States to reserve the public’s right when it issued the patent to
their predecessors bars plaintiffs from now asserting such
rights. Plaintiffs counter—and the trial court found—that,
while the questions of title and boundaries were conclusively
decided upon issuance of the patent, whether the title was
subject to the rights of the public was not an issue in the patent
proceedings.
Although early cases of the United States Supreme Court
relied upon by defendants declared that the deed granted by the
United States pursuant to the Act of 1851 was a “quitclaim, or
rather a conveyance of such interest as the United States
possessed in the land,” (Beard v. Federy (1866) 70 U.S. (3 Wall.)
478, 491 [18 L.Ed. 85, 92); Adam v. Norris (1880) 103 U.S. 591,
593 26 L.Ed. 583, 584)), this view was later rejected by the high
court. In Boquillas Cattle Co. v. Curtis (1909) 213 U.S. 339, 344 [53
L.Ed. 822, 825, 29 S.Ct. 493), it was held that a patent from the
federal government was a “confirmation in a strict sense” of the
interest received from Mexico. In the course of its opinion, the
court observed, “It is not to be understood that when the United
States executes a document on the footing of an earlier grant by
a former sovereign it intends or purports to enlarge the grant.”
(213 U.S. at p. 344 53 L.Ed. at p. 825)
Moore v. Smaw, supra, 17 Cal. 199, decided many years before
Boquillas, appears at first blush to support defendants’ assertion
that any rights acquired by the federal government upon ces-
sion in lands conveyed by Mexico to private parties were
granted by the patent. However, when the reasons for the
In Boquillas, the plaintiff, who had received a grant of land from
the State of Sonora, claimed that a patent to the land issued under a
law similar to the Act of 1851 carried with it a preference to take
water as a riparian landowner.
A-12
holding of Moore are analyzed, its effect is to support the
position of plaintiffs.
As we have seen, Moore held that under the Act of 1851, the
United States acquired ownership of minerals in lands which
had been conveyed by Mexico to private parties because under
Mexican law that government retained the ownership of the
minerals. The question facing the court in Moore was whether
the patent of the federal government, which reserved no inter-
est in the minerals, granted that interest to the landowners. The
court concluded that the grant included the mineral rights. It
reasoned that California did not succeed to the interest of
Mexico upon statehood since ownership of mineral rights was
not an incident of sovereignty. Therefore, the federal govern-
ment held that interest in the same capacity as a private
landowner and, since a grant of land by an individual without
reservation of mineral rights passed ownership of such rights to
the grantee, the same rule should apply to conveyances of the
government. The court went on to state that patents of the
United State since the Revolution had uniformly been regarded
as transferring all the interest whieh the government could
possess in the soil, even when the grant was a confirmation of
one made by a prior government.
Thus, although Moore held that the federal patent enlarged
the property rights of Mexican grantees, the reason for its
conclusion was that mineral rights are not an incident of
sovereignty and, therefore, a patent by the United States which
failed to reserve that right conveyed fee title to the grantee. The
clear implication of this holding is that if sovereign rights to
property had been involved the court's conclusion would have
been otherwise. Tidelands are not held by the government in its
proprietary capacity; they are held in trust for the benefit of the
public, may not be alienated at will, and unlike lands contain-
ing mines, when tidelands are conveyed into private hands they
ordinarily remain subject to the public interest even though the
grant is purportedly in fee. (See, e.g., Carver v. San Pedro, LA. &
SLR Co. (8.D.Cal. 1906) 151 F. 334, 337; People v. California Fish
Co., supra, 166 Cal. 576, 593.) In the absence of convincing
authority to the contrary, therefore, we may not presume that
A-13
the patent issued to defendants’ predecessors included the inter-
est in the tidelands which the United States government had
acquired from Mexico.
Defendants cite numerous cases which they claim stand for
the proposition that the patents issued under the Act of 1851
passed all interest of the federal government to the grantee, and
that the state did not acquire any interest in the tidelands
included in Mexican grants as an incident of sovereignty upon
admission to the Union. These authorities establish that a
federal patent determined conclusively that the grantee had
title to the land described therein, and that this interest
prevailed over later claims of ownership by private parties or
the government. (E.g., Knight v. U.S. Land Association (1891) 142
U.S. 161, 184 35 L.Ed. 974, 982, 12 S.Ct. 258); San Francisco v.
LeRoy (1891) 138 U.S. 656, 670-671 [34 L.Ed. 1096, 1101, 11 S.Ct.
364); Beard v. Federy, supra, 70 U.S. 478, 492 18 L.Ed. 88, 92-93);
People v. San Francisco, supra, 75 Cal 388, 398; Teschemacher v.
Thompson (1861) 18 Cal. 11, 26.) Moreover, the fact that the land
described in the patent included tidelands did not diminish its
conclusive effect. (United States v. Coronado Beach Company (1921)
255 U.S. 472, 487-488 65 L.Ed. 736, 741-742, 41 S.Ct. 378,
Defendants rely heavily on the case last cited. In the
Coronado Beach case, the United States desired to construct
military facilities on an island in San Diego Bay, which
included tidelands. The owner derived title from a Mexican
grant, and the patent issued pursuant to the Act of 1851
included the tidelands within the boundaries described therein.
The high court held that the owner of the island had title to the
tidelands and the federal government was required to pay
compensation for their taking. In the course of its opinion, the
court determined that the question whether there was a grant
of the tidelands and boundaries of the grant had been decided
in the confirmation proceedings, that California never had title
to the tidelands by virtue of its sovereignty because they had
been included in the Mexican grant and confirmed in the
A-14
patentees, and that the grantees’ title could not be collaterally
attacked by the federal government.”
This case, like the others relied upon by defendants, involves
the question whether the title or boundaries of patented lands
originating in Mexican grants may be collaterally attacked. In
the present case plaintiffs concede that defendants have title to
lots C and R; they claim, as did the state in our prior tidelands
decisions, that the title of the landowners is subject to the rights
of the public.
One case cited by defendants, in addition to Moore, considered
the question whether a right ‘n property other than title was
included in a patent issued to a landowner who derived title
from Mexico. In United States v. Title Ins. Co. (1924) 265 U.S. 472
68 L.Ed. 1110, 44 S.Ct. 621), the court held that Indians who
had the perpetual right to occupy certain lands under Mexican
law, did not retain that right in lands patented to private
parties under the Act of 1851 because of their failure to assert it
in the patent proceeding.”*
The United States argued that the tidelands belonged to California,
which had aquired title to them upon its admission to the Union.
Rejecting this argument, the court stated, “But the title of the State
was subject to prior Mexican grants. The question whether there
was such a prior grant and what were its boundaries were questions
that had to be decided in the proceedings for confirmation and there
was jurisdiction to decide them as well if the decision was wrong as
if it was right. The title of California was in abeyance until those
issues were determined as the decree related back to the date of the
original grant... Although the grant could have been
construed more narrowly, that was a matter to be passed upon and
when the decree and the patent went in favor of the grantee it is too
late to argue that they are not conclusive against the United States.
However arrived at it was adopted by the United States for its
grant and it cannot now be collaterally impeached.” (255 US. at pp.
487-488 65 L.Ed. at pp. 741742)
The court reasoned in part that “a claim of a right to permanent
occupancy of land is one of far reaching effect, and it could not well
be said that lands which were burdened with a right of permanent
occupancy were a part of the public domain and subject to the full
disposal of the United States. . Surely a claimant would have
little reason for presenting to the land commission his claim of
land, and securing a confirmation of that claim, if the only result
A-15
We do not find this case to be convincing authority. The right
to occupy land is a normal incident of title, and we have no
quarrel with the proposition that private persons who failed to
assert their right to occupancy in the patent proceedings may
not thereafter claim that right. But the right to exclude the
public from tidelaads is not a normal incident of title. To the
contrary, as we have seen, conveyance of such lands by the
government does not ordinarily free them from the burden of
the public trust even though no reservation is made in the deed
for the preservation of the people's interest.
It follows from what we have said that the federal govern-
ment retained an interest in the tidelands in question when it
issued the patent to defendants’ predecessors, and that this
interest was acquired by California upon its admission to
statehood.
Our conclusion is supported not only by authority, but by
policy as well. According to amicus curiae, California Land
Title Association, most of the land along the Pacific Coast from
San Diego to Sonoma is situated in former Mexican ranchos.
We do not know how much of the tidelands contained in these
ranchos was conveyed by Mexico to private parties. If these
areas of tidelands are free of the public interest, there is no
right in the federal government, the state, or its successors, to
improve or to use them for trust purposes without pursuing
condemnation proceedings.
The result would be a California Mason-Dixon coastline dra-
matically divided between the north, in which the public trust
doctrine is respected, and the south, where it is unrecognized. A
dual system of rights would be created. Grantees whose title
derives from Mexican grants would enjoy title free of the public
trust, whereas those whose title did not originate with Mexico
would hold their land subject to the trust. The Treaty of
Guadalupe Hidalgo requires only that the rights of Mexican
were to transfer the naked fee to him, burdened by an Indian right
of permanent occupancy.” (265 US. at p. 484 65 L.Ed. at pp. 1113
1114)
A-16
grantees in their property shall be equal to that of citizens of
the United States. (Treaty of Guadalupe Hidalgo, Art. VIII, 3
West's Cal. Const. (1954) 727, 732.) In view of this language,
there is no justification for holding that a deed from the United
States to its own citizens conveys lesser rights than a deed
issued to grantees from Mexico, or that the public trust exists in
tidelands north of Sonoma but not south of that point as to
tidelands included in former Mexican ranchos.
In view of our conclusion, we need not discuss the trial
court’s findings that the public holds an easement in the
property of defendants for the passage of fresh water to the
Venice Canals and for water recreation, and that defendants’
predecessors had dedicated the property for use as public streets
or waterways. All these uses are included within the public
trust. (Marks v. Whitney (1971) 6 Cal.3d 251, 259-260 [98
Cal.Rptr. 790, 491 P.2d 374).)*
We have examined other contentions made by the parties and
find them to be without merit.
The judgment is affirmed.
Bird, C. J., Newman, J., and Broussard, J., concurred.
RICHARDSON, J.—I respectfully dissent.
In my view, the majority seriously errs in at least two
respects, either of which independently is wholly sufficient to
invalidate its reasoning and result. First, it extends the so-
called “public trust doctrine,” contrary to its fundamental ratio-
nale, to nonnavigable, nontidal waters on private property in
which neither the state nor the federal government ever has
asserted any title or interest. Second, it disregards the well
established conclusive effect of the federal patent upon the
Our opinion is not to be understood as deciding matters which are
raised by the parties but are not necessary to the determination of
the issue before us. For example, although the state alleged in its
cross-complaint that portions of the Ballona Lagoon which have
been filled are still subject to the public trust, that issue is not
involved in the present proceeding, since the property here consists
entirely of tidelands.
A-17
subject property under the Act of 1851. I think the majority is
wrong on both counts.
Along the way the majority cavalierly overturns a century-
old judicial determination that the premises in question did not
consist of tidal navigable waters. Disregarding the earlier
federal court finding of fact the majority now, more than 100
years later, substitutes its own retroactive “finding” that the
subject property was, indeed, then covered by tidal navigable
waters. Resting upon its self-created factual premise, the
majority attempts to justify both its disavowal of the federal
patent of 1873 which had established the private ownership and
nonnavigable character of the land in question and its use of the
public trust doctrine, which heretofore had applied only to
navigable waters previously owned by public entities. These
conclusions, like their common premise, are flawed.
The subject rea! property consists of two parcels underlying
what is popularly referred to as the Ballona Lagoon located in
the Marina Del Rey area of Los Angeles. Historically, the
lagoon was part of Rancho Ballona. Much of the area of the
original lagoon is now dry land as a result of natural and
developmental filling. In its present configuration the lagoon
consists of a narrow elongated area covered by very shallow
water described as “brackish,” and separated from the ocean by
a strand or sand barrier. There is a substantial question as to
whether sea water presently flows through the lagoon in any
_ Significant amount. The majority concedes that the lagoon is
seldom navigable, and then only by “shallow draft vehicles.”
(Ante, p. 292.)
I emphasize, however, that the current status of the lagoon
has—or should have—little legal relevance to a proper resolu-
tion of the issues before us. In my view, our decision was
foreordained over 100 years ago when it was finally and
judicially determined as a matter of fact that Ballona Lagoon was
not then an “arm of the sea” but rather belonged, along with
the rest of Rancho Ballona of which it was a part, to its then
Mexican grantees.
;
A-18
Historically, Rancho Ballona was a part of Mexico. In 1839
*he Mexican Governor of California granted the rancho, includ-
wz the lagoon, to Augustin and Ignacio Machado and Filipe
ed Tomas Talamantes. On July 7, 1846, following the Mexican
War and upon completion of the military occupation of
California, the then American military commander, Com-
modore Sloat, promised that Mexican land titles would be
recognized by the United States. This policy was formalized in
1848, when California was ceded by Mexico to the United
States, in the Treaty of Guadalupe Hidalgo. In that treaty the
United States solemnly committed itself to respect the rights
and property of Mexican citizens in newly ceded California.
This covenant to protect previously established Mexican
property rights affected all forms of ownership, and for over
100 years it has been judicially recognized both by the United
States Supreme Court (Knight v. U.S. Land Association (1891) 142
U.S. 161, 184-185 [35 L.Ed. 974, 982, 12 S.Ct. 258); Beard v. Federy
(1865) 70 U.S. (3 Wall.) 478, 490 [18 L.Ed. 88, 92] and by us
(Teschemacher v. Thompson (1861) 18 Cal. 11, 22). Indeed, the
majority acknowledges that “under the terms of the treaty, the
rights of Mexican citizens to their property was [sic] to be
‘inviolably respected.’” (Ante, p. 294.)
Consistent with these treaty obligations, the United States
Congress enacted the Act of 1851 (the Act) which established
procedures to be administered by a Board of Land Commission-
ers to confirm these rights. Under the Act, persons asserting
ownership of California land through Mexican grants were
required to submit their claims to the board, which was given
broad powers to adjudicate the claims pursuant to the treaty,
the laws of Mexico and the decisious of the United States
Supreme Court. Upon board approval of the claim, the property
was surveyed by the United States Surveyor General and a
patent thereupon issued using the survey description.
The Act further mandated that, once issued, the United
States patent was to be binding and conclusive as to all persons
save and except third parties’—that is those who had an
earlier title recognized under Mexican law. Because any such
superior title had to exist prior to 1846 when the land was ceded
A-19
to the United States, and because the State of California did not
itself then exist, it has been consistently held both by the
United States Supreme Court and by us that the “third parties”
excepted under the Act did not include the state. (Knight v. U.S.
Land Association, supra, 142 U.S. at pp. 185-186 (35 L.Ed. at pp.
982-983); People v. San Francisco (1888) 75 Cal. 388, 403 [17 P.
522).)
In comformity with the Act, the 1839 Mexican grant of
Rancho Ballona to the Machados and the Talamantes was
formally confirmed by the Board of Land Commissioners in
1854, and affirmed on appeal by the United States District
Court in 1855. Thereafter, the subject property was in litigation
before the General Land Office for 18 years, the principal issue
being the precise westerly boundary of the rancho, and particu-
larly whether the “inner bay” (Ballona Lagoon) was within the
rancho or part of the Pacific Ocean. The General Land Office,
the duty of which was to “settle conflicting claims to the land
surveyed,” concluded that the “inner bay” (Ballona Lagoon)
was not an arm of the sea but rather was “dry land used for
pasturage” except during storms and times of overflow. Based
upon the foregoing, a United States patent on Rancho Ballona was
finally issued in 1873 to the predecessors in interest of the present
property owners. The description used in the patent included the
lagoon. The majority opinion assumes “without deciding” that
the above factual determination as to the character of the
lagoon was 2 final decision on that question and a necessary
predicate to the issuance of the patent.” (Ante, p. 295.)
From the foregoing chronology, I conclude that the Rancho
Ballona has been owned privately since 1839. The Mexican
grant to the Machados and Talamantes, confirmed by the Board
of Land Commissioners in 1854, affirmed by the United States
District Court in 1855, approved by the Surveyor General of the
United States in 1858, and having fully ripened into a United
States patent in 1873, vested full legal title in fee simple
absolute in the present owners’ predecessors. In my view, this
title has been free and clear of any right, title or interest of the
State of California or any of its political subdivisions from that
day to this.
A-20
It is significant that the private ownership of the lagoon was
uniformly accepted for almost 100 years. In 1965, however, the
City of Los Angeles, subsequently joined by the State of
California, filed the present litigation which seeks both
declaratory relief and quiet title. Los Angeles attempts, for the
first time, to establish a public trust easement for “commerce,
navigation and fishing” over the lagoon on a theory that the
lagoon is tideland and navigable ocean water. Alternatively,
plaintiffs allege an express or implied public easement over the
lagoon. While now conceding, frankly, that defendants
presently hold the fee simple ‘title to the lots in question,
plaintiffs argue that these lots, along with the entire lagoon, are
burdened by a public trust easement.
It is obvious that much more is involved in this litigation
than the title to two lots. By imposing a public trust easement
upon properties which are neither tidal, navigable, nor
formerly under public dominion, the majority has removed all
heretofore recognized reasonable limitations on the scope of the
public trust doctrine. What is left? While the majority refrains
from defining the extent of the easement beyond the land under
the water of the lagoon, the implications of its decision equally
threaten large areas held in private ownership elsewhere in the
coastal areas of this state. The private title to such property,
and the right to use it, suddenly are clouded by the creation of a
State-administered easement even though the state heretofore
has neither owned such property nor asserted any interest in it.
There is no precedent for such an extension of public owner-
ship. The Legislature has never reached so far, nor have we. In
City of Berkeley v. Superior Court (1980) 26 Cal.3d 515 [162
Cal.Rptr. 327, 606 P.2d 362], a bare majority of this court first
expounded the notion that tidelands in navigable waters which had
been conveyed by the state to private parties nonetheless were
encumbered by a reserved public trust for commerce, naviga-
tion, fishing and other uses. (Id, at pp. 523, 528.) In the follow-
ing year in State of California v. Superior Court (Lyon) (1981) 29
Cal. 3d 210 [172 Cal.Rptr. 696, 625 P.2d 239), the same majority
extended this new doctrine to lands between high and low
A-21
water in nontidal navigable lakes which had been granted by the
State into private ownership.
It should be carefully noted that the rationale of the public
trust doctrine is that public lands conveyed into private owner-
ship remain subject to public use for certain limited purposes
unless the intention to extinguish that public right is clearly
expressed in the grant. The doctrine operates when the owner-
ship of land and waters vested in California upon its admission
to the Union (Boraz, Lid. v. Los Angeles (1935) 296 U.S. 10, 15 [80
L.Ed. 9, 14, 56 S.Ct. 23)) is thereafter conveyed into private
hands, the doctrine reserving in the public grantor a public
trust. In short, the principle limits subsequently created private
property rights. (People v. California Fish Co. (1913) 166 Cal. 576,
583-585 138 P. 79).)
It seems to me obvious that this reasoning has no application
to lands like those before us which never were owned publicly.
Indeed, the majority freely acknowledges that we have never
before applied the public trust doctrine to such property. (Ante,
p. 298.) Nonetheless, my colleagues assert, without analysis,
that prior government ownership is not essential to the applica-
tion of that doctrine, but that unadorned, unsupported, bore
conclusory assertion is not presuasive. In my view the majority
thus errs in applying the public trust doctrine to the property
before us, title to which has been exclusively in private owner-
ship since 1839.
The second major error of the majority lies in its failure to
acknowledge the binding effect of the federal patent issued to
the predecessors in title of the present owners. After the lapse
of a century, it reopens a factual issue conclusively resolved
long ago in the federal proceedings. Citing no authority and
without other justification, it thus endorses a collateral attack in
the trial court upon the general judgment pursuant to which
the patent was issued. It approves the superior eourt's reweigh-
ing of the evidence presented t the land commissioner in the
federal proceedings 100 years earlier. It also accepts the supe-
rior court’s belated “finding,” based upon claimed inconsis-
tencies in that evidence, that Ballona Lagoon was an “arm of
A-22
the sea, subject to the tides.” (Ante, p. 296.) Accordingly, the
majority now concludes that the federal patent of 109 years ago
was improperly issued.
Such a collateral attack upon the federal patent is highly
improper. The purpose of the proceedings leading to the patent
and the effect of its issuance was to settle permanently ail claims
which were, or which could have been, raised in those proceed-
ings. Over 120 years ago in describing a patent we observed
“Upon all matters of fact and law essential to authorize its
issuance, it imports absolute verity. . . .” (Leese v. Clark (1861) 18
Cal. 535, 572.) Among the factual issues resolved in the 1873
patent proceedings were the boundaries and the character of the
property which was granted by Mexico to its nationals, and
particularly whether the lagoon was an “arm of the sea” or was
included in the grant. The United States District Court decided.
it was the latter.
It is well established that the interpretation of a federal land
conveyance is determined by federal law. (Shively v. Bowlby
(1894) 152 U.S. 1, 9-10 (38 L.Ed. 331, 335, 14 S.Ct. 548.) This
includes federal patents on real property, a portion of which is
tidelands. (Boraz, Lid. v. Los Angeles, supra, 296 US. at p. 22 [80
L.Ed. at pp. 17-18].) As previously noted, the Ballona patent
was issued by the United States government, pursuant to an act
of Congress. This congressional action was ordained by the
commitments made by our national government in a treaty
between the United States and Mexico. It is federal not state law
that governs the interpretations of the patent before us.
The Act of 1851, pursuant to which the federal patent issued,
contemplated not only the definition but also the settlement of
titles. (Knight v. L. & Land Association, supra, 142 US. at p. 184
35 L.Ed. at p. 982); Beard v. Federy, supra, 70 U.S. at p. 489 [18
L.Ed. at pp. 91-92); United States v. Coronado Beach Co. (1921) 255
U.S. 472, 487-488 [65 L.Ed. 736, 741-742, 41 S.Ct. 378}.) This was
equally so whether the subject property was upland or tideland.
As Mr. Justice Field sagely observed in his concurring opinion
in Knight: “Mexico owned the tidelands as well as the uplands,
and it was, of course, in her power to make such disposition of
A-23
them in the establishment and organization of her pueblos {and
ranchos] as she may have judged expedient. And whether she did
make such disposition by her laws was a matter exclusively for the
United States to ascertain and dete mine. (142 U.S., at pp. 201-202
35 L.Ed. at p. 988), italics added.)
The federal judgment which found that the lagoon was non-
tidal cannot be ignored, now, 100 years later, by a state court
determination that it was then “tidal.” Nor should the majority
attempt to vacate a solemn federal conveyance recorded also
over 100 years ago, thereby brushing aside both the federal
judgment and conveyance and creating a sort of floating “tidal
title” in order to extend the “public trust” doctrine to the
subject property.
My colleagues insist that “when California was ceded by
Mexico, the title of defendants’ predecessors was subject to the
interests of the public in the tidelands included in the grant.”
(Ante, p. 297.) The majority cites no cases whatever, Mexican,
Spanish or American, federal or state, which have so held. In
granting this property to the Machados and the Talamantes in
1839 Mexico may have had the power to reserve whatever
interest it chose. The point is that there is no evidence whatever
that it did limit or condition its grant. Moreover, the record
before us is equally devoid of support for the novel proposition
that all Mexican grants to private parties 140 years ago were
subject to such an uncodified, Mexican or Spanish, “common
law public trust.” By its “recognition” of a reserved Mexican
public interest 140 years after the fact, the majority retroac-
tively imposes upon lot Century Mexican jurisprudence a
remedy never asserted by Mexico.
Serious adverse practical consequences flow from the
majority’s reasoning. In creating an implied “reservation” by
Mexico of public rights in lands which it had granted to its
nationals prior to the cession of California to the United States,
the majority circumvents the clear import of section 13 of the
federal Act of 1851. Under that section the United States
acquired as its property only “lands which had belonged to
A-24
Mexico and which] were not patented by the federal govern-
ment to private parties (Ante, p. 296, italics added.) But
the subject property here obviously had been patented to private
parties. How, then, does the majority justify its assertion that
“less than fee interests were retained by Mexico” and excepted
from the Mexican grant of 1839 to the Machados and Tala-
mantes, and somehow thereafter passed to the United States
with the cession of California in 1846?
The majority seeks support for its theory of an implied
reservation of public rights in patented lands by analogy to our
decision in Moore v. Smaw (1861) 17 Cal. 199. Because we held in
Moore that there were “mineral rights retained by the Mexican
government” when it granted lands to its nationals subse-
quently passed to the United States on cession, it is urged that
public rights in tidelands were similarly retained. (Ante, p. 296,
italics added.) What my colleagues fail or refuse to note,
however, is a very basic distinction between Moore and the
present case. In Moore we stressed that at the time of the
Mexican grant to the private Moore grantees “it was the estab-
lished doctrine of the Mexican law that all mines of gold and
silver in the country, though found in the lands of private
individuals, were the property of the nation. No interest in the
minerals passed by a grant from the Government of the land in
which they were contained, without express words designating
them .... The Mexican law on this subject was derived from
the Spanish law .... Under Spain, the mines constituted the
property of the crown, as part of the royal patrimony.” (17 Cal.
at pp. 212-213.) Not so in our case. At the time of the Mexican
grant to defendants’ predecessors in title, no similar doctrine
traditionally established that such land grants were subject to a
reservation of any “public trust rights.”
In the absence of some legal authority or a factual determina-
tion of such reservation by Mexico, Moore provides absolutely no
support for the majority's inventive concept that public trust
rights were somehow silently “reserved” by Mexico when it
conveyed the premises into private ownership in 1839; were
then quietly passed to the United States upon cession; thereaf-
} ter, without either notice or acknowledgement were handed to
A-25
California upon its admission to the Union; survived the subse-
quent issuance of a patent by the United States; lay dormant
for over 100 years, and then, warmed by 143 summers, like a
juridical century plant sprang suddenly into life and full bloom
in 1982.
Of even more significance, however, in Moore we destroyed
the conceptual underpinnings of the majority’s thesis. In
carefully explaning the function of a federal patent, we there
held that the patent extinguished every interest of the United
States—including the mineral rights which we there concluded
had passed to the federal government under established Mexi-
can law pertaining to such rights. (Moore, supra, 17 Cal. at pp.
223-226.) We insisted that “The object of the act of 1851] is to
‘ascertain and settle’ private land claims in California. This
object is declared in the first section. It is not merely to
ascertain but ‘to settle’ the claims; that is, to establish them—to
perfect them by placing them, so far as the Government is con-
cerned, beyond controversy.” (Id, at p. 223, italics added.)
Thus, with due deference to my colleagues, I suggest that
even if there was substance to the majority’s view that certain
“public rights” were reserved by Mexico after its grant of 1839
to defendants’ predecessors and that such rights somehow
passed to the federal government, in Moore we flatly rejected the
notion that any such rights could survive the patent process.
Our language was unambiguous and explicit: “There is nothing
in the act of 1851) restricting the operation of the patents thus
issued to the interests acquired by claimants from the former
Government, or distinguishing the patents in any respect from
the general class of conveyances made... by the United States.
To all claimants alike, whose claims have been finally confirmed,
patents are to issue without words of reservation or limitation. ...”
(Id, at p. 224, italies added.) The title and interest which the
patentee receives, we described as: “all the interest of the United
States, whatever it may have been, in everything connected with
the soil, in everything forming any portion of its bed or fixed to
its surface, in everything which is embraced within the signifi-
cation of the term land. (Ibid., italics added.) Thus, all
interests, including mineral rights of the United States, were
A-26
there held confirmed in the patentee upon issuance of the
federal patent. It follows that if the federal patent absorbed and
passed to the grantees even those rights which Mexico had
historically reserved to itself, a fortiori, it would pass to the
patentee any rights which Mexico neither expressly reserved
nor historically, in its law, had asserted.
The fact, of course, that both our language and conclusions in
Moore are venerable and that Californians have lived with them
for over 100 years does not prove them wrong. Federal patents
today remain the firm and stable bedrock of much of
California’s land titles. I conclude that the patentees to the
property before us received all of the interests of the United
States, including any inchoate public trust rights which know-
ingly or otherwise the United States may have received from
Mexico upon the cession of California to the United States.
Those interests vested in defendants’ predecessors in title when
their patent was properly confirmed in the federal patent
proceedings.
The foregoing principles of land title law have been well
established in California for a long, long time. Thus, 123 years
ago, and § years after adoption of the Act and before the
issuance of the present patent, we said “The patent, which is the
final document issued by the government, ts conclusive evidence
of the validity of the original grant, and of its recognition and
confirmation, and of the survey, and its conformity with the
confirmation, and of the relinquishment to the patentee of all the
interest of the United States in the land. It cannot be attacked
collaterally, even for fraud. ...” (Moore v. Wilkinson (1859) 13 Cal.
478, 487, italics added.) We have consistently, and from the
beginning, given this same effect to a patent. (Teschemacher v.
Thompson, supra, 18 Cal. 11, 26-28; Morrill v. Chapman (1868) 35
Cal. 85, 88; Miller v. Dale (1872) 44 Cal. 562, 578; Chipley v.
Farris (1873) 45 Cal. 527, 538-539; Cassidy v. Carr (1874) 48 Cal.
339, 344; People v. San Franciso, supra, 75 Cal. 388, 397.)
The United States Supreme Court has been equally consist-
ent. Over a century ago it characterized as follows the effect of a
patent and the nature of the conveyance confirmed thereby:
A-27
The patent is a record of the action of the government upon
the title of the claimant as it existed upon the acquisition of the
country.... When informed, by the action of its tribunals and
officers, that a claim asserted is valid and entitled to recogni-
tion, the government acts, and issues its patent to the claimant.
This instrument is, therefore, record evidence of the action of
the government upon the title of the claimant. By it the govern-
ment declares that the claim asserted was valid under the laws
of Mexico; that it was entitled to recognition and protection by
the stipulations of the treaty, and might have been located
under the former government, and is correctly located now, so
as to embrace the premises as they are surveyed and described.
As against the government this record, so long as it remains unva-
cated, is conclusive. And it is equally conclusive against parties
claiming under the government by title subsequent. It is in this effect
of the patent as a record of the government thai its security and
protection chiefly lie.” (Beard v. Federy, supra, 70 U.S. at pp. 491-
492 [18 L.Ed. at pp. 92-93), italics added; accord Dominguez De
Guyer v. Banning (1897) 167 U.S. 723, 740-744 [42 L.Ed. 340, 345-
347, affirming De Guyer v. Banning (1891) 91 Cal. 400, 402-404 [27
P. 761); Thompson v. Los Angeles Farming & M. Co. (1901) 180
U.S. 72, 77-80 (45 L.Ed. 432, 434-436, 21 S.Ct. 289).)
In United States v. Coronado Beach Co., supra, 255 U.S. 472, the
Supreme Court held that the owner of realty, including tide-
lands, which was acquired by a Mexican grant and subse-
quently confirmed in federal patent proceedings, could not be
deprived of its property without just compensation. The high
court specificaliy emphasized that California never acquired
title to the tidelands by virtue of its sovereignty because the
property had been included in the Mexican grant, and having
been confirmed in the patent proceedings, such title could not be
collaterally attacked. (Id, at p. 488 65 L.Ed. at p. 742).) The
same analysis, applicable here, compels a similar legal
conclusion.
I find singularly unpersuasive the majority’s attempt to dis-
tinguish cases such as United States v. Title Ins. Co. (1924) 265
U.S. 472 (68 L.Ed. 1110, 44 S.Ct. 621) wherein the Supreme
Court concluded that the perpetua! right of Indians under
A-25
Mexican law to use and occupy certain lands was lost when
those lands were granted to Mexican nationals whose title was
subsequently confirmed in the patent process. Finding that the
“right to occupy land is a normal incident of title,” the majority
correctly concludes that such right must be asserted in the
patent process or is lost. (Ante, p. 302.) With respect to the public
right to use tidelands, however, the majority concludes
otherwise. Offering no rationale for any such distinction, the
majority simply declares, ipse dixit, that such a public interest
need not be asserted in order to survive the federal patent
process because the “conveyance of such lands by the govern-
ment does not ordinarily free them from the burden of the
public trust. (Ante, p. 302.) Such reasoning is, of course,
circular, is sustained by no authority, and cannot be reconciled
with our own long established holding that “all the interest of
the United States, whalever it may have been” passes to the
patentee upon issuance of a patent under the Act of 1851. (Moore
v. Smaw, supra, 17 Cal. at p. 224, italics added.)
From all of the foregoing, I conclude that the subject
property was owned by the government of Mexico until 1839, at
which time it passed into private ownership. The State of
California at that time, of course, did not exist. Assuming, for
discussion purposes, that any “public interest” in such property
had been retained by Mexico, such interest thereafter inevitably
passed to the United States upon cession by Mexico. Surely, the
interest could not have been retained by Mexico after cession.
Pursuant to appropriate congressional authorization, the
federal government subsequently entertained claims, public
and private, to lands within California which formerly were
conveyed by the Mexican government into private ownership.
The property in question was subjected to these appropriate
proceedings. As noted, the claims of defendants’ predecessors in
title were considered and affirmed in a valid judgment of the
United States District Court which applied the binding federal
law, the property was surveyed, the boundaries litigated, and
finally in 1873 a United States patent was properly issued to
defendants’ predecessors. Both the United States and the State
of California had ample opportunity in those proceedings to
A-29
assert any “public trust” interests that they might claim. They
did not do so. To me, the record eloquently reflects that for over
a century none of the parties harbored the notion that the
rancho lands in question contained any lingering “trust”
encumbrance. No case, federal or state, American or Mexican,
has ever so held before today.
The detailed procedure established by Congress in its Act of
1851 was a forthright, direct and common sense method for
resolving title. It is relevant to note that the title confirmatory
proceedings were designed to resolve not some but all conflicting
and disputed interests.
In the words of the high court: The purpose of the Act of
1851 was to give repose to titles as well as to fulfill treaty
obligations, and .. . it not only permitted but required all claims
to be presented to the commission, and barred all from future
assertion which were not presented within the two years.”
(United States v. Title Ins. Co., supra, 265 U.S. at p. 483 68 L.Ed.
at p. 1113).) All claims not so presented were “regarded as
abandoned.” (/bid.). The high tribunal in that case expressed an
interpretive principle which has equal application here:
Where questions arise which affect titles to land it is of great
importance to the public that when they are once decided they
should no longer be considered open. Such decisions become
rules of property, and many titles may be injuriously aff ted
by their change. Legislatures may alter or change their Iles,
without injury, as they affect the future only; but where courts
vacillate and overrule their own decisions on the construction of
Statutes affecting the title to real property, their decisions are
retrospective and may affect titles purchased on the faith of
their stability. Doubtful questions on subjects of this nature,
when once decided, should be considered no longer doubtful or
subject to change. (Id, at pp. 486-487 (68 L.Ed. at p. 1114)
The majority, however, purports to discover and by a judicial
nudge to waken from its 109year slumber a dormant public
interest of the State of California in the lands in question. It
does so at the expense of the constitutionally protected property
rights of defendants.
A-30
I confess to a growing unease about what I view as an
accelerating erosion of private property rights of California
citizens. We need look no further than the first section of the
very first article of the state Constitution to learn that the
sovereign people of California have proclaimed: “All people are
by nature free and independent and have inalienable rights.
Among these are enjoying and defending life and liberty,
acquiring, possessing, and protecting property, and pursuing and
obtaining safety, happiness, and privacy.” (Italics added.) From
this solemn pronouncement of the people, identifying the pro-
tection of their property with the defense of their lives and
liberty and describing such interests as “inalienable,” I con-
clude that preserving the sanctity of a citizen's private property
is a Singular responsibility of government and its courts. When,
therefore, that government itself seeks to trench on such consti-
tutionally protected and “inalienable rights” of its own people,
its conduct must be closely scrutinized and its reach carefully
measured by the rule of law.
If the State of California or the City of Los Angeles seeks to
“dredge the lagoon, construct sea walls” and otherwise now
assert public dominion over the subject property and if either
can demonstrate some valid public use, let it frankly, fairly and
openly exercise its eminent domain power. Pursuant to the
Fifth Amendment to the federal Constitution and article I,
section 19 of the California Constitution, let state and city
pursue established legal procedures to condemn the property in
question, rather than upset long established principles in order
to obtain the property “on the cheap,” as it were. In compliance
with the constitutional restrictions which are binding upon
them, if the state and city now seek the use of the subject
property, they should pay for it.
I would reverse the judgment.
KAUS, J.—I respectfully dissent.
As I read the applicable federal decisions, the dispositive
issue in this case—namely, whether defendants’ title to
property deriving from a federal patent is subject to an overrid-
ing state “tidelands trust“ —is a matter of federal, not state,
A-31
law. (See, e.g., State Land Board v. Corvallis Sand & Gravel Co.
(1977) 429 U.S. 363, 375 [50 L.Ed.2d 550, 561, 97 S.Ct. 582);
Knight v. U.S. Land Association (1891) 142 U.S. 161 (35 L.Ed. 974,
12 S.Ct. 258).) In diseussing California’s interest in tidelands,
every United States Supreme Court decision to which our atten-
tion has been directed draws a clear distinctior stween tide-
2 that passed to the state as sovereign, and tidelands— like
those involved in the present case—that had been ceded by
Mexico to private parties and whose title was later confirmed by
a federal patent pursuant to the elaborate procedures adopted
by the federal government to comply with the Treaty of
Guadalupe Hidalgo. These decisions uniformly hold that
whereas California obtained a sovereign interest in the former
category of tidelands under the general common law public
trust doctrine, thhere is the established qualification that this
principle is not applicable to lands which had previously been
granted by Mexico to other parties....” (Boraz, Lid v. Los
Angeles (1935) 296 U.S. 10, 15-16 [80 L.Ed. 9, 14, 56 S.Ct. 23);
United States v. Coronado Beach Co. (1921) 255 U.S. 472, 487-488
(65 L.Ed. 736, 741-742, 41 S.Ct. 378); Shively v. Bowlby (1894) 152
US. 1, 30-31 (38 L.Ed. 331, 342-343, 14 S.Ct. 548); Knight v. US.
Land Association, supra, 142 U.S. 161, 183-184 [35 L.Ed. 974, 981-
982); San Francisco v. LeRoy (1891) 138 U.S. 656, 670-671 [34
L.Ed. 1096, 1101, 11 S.Ct. 364).)
In my view, the majority gives an artificially narrow reading
to these numerous federal decisions in suggesting that the cases
are limited to the question of whether California obtained
“title” to the tidelands and that they do not bear on the
question of whether California acquired an allegedly
independent “tidelands trust” interest in this property. As I
understand the governing federal tidelands cases, the special
“public trust” which adheres in tidelands—and which operates
to limit the legislative prerogative in determining to what uses
such lands may be put—flows directly from the initial sover-
eign ownership of these tidelands. (See Illinois Central Railroad
Co. v. State of Illinois (1892) 146 U.S. 387, 452-454 [36 L.Ed. 1018,
1042-1043, 13 S.Ct. 110% Martin v. Waddell (1842) 41 U.S. (16
Pet.) 367, 409-414 (10 L.Ed. 997, 1012-1014); cf. People v.
A-32
California Fish Co. (1913) 166 Cal. 576, 584-587 [138 P. 79); City of
Berkeley v. Superior Court (1980) 26 Cal.3d 515, 521-525 [162
Cal.Rptr. 327, 606 P.2d 362); State of California v. Superior Court
(Lyon) (1981) 29 Cal.3d 210, 226-231 [172 Cal.Rptr. 696, 625 P.2d
239).) Thus, if—as a matter of federal law—California never
owned these tidelands in trust for the public, the keystone on
which the application of the public trust doctrine rests is
missing.’
It should be understood, of course, that even in the absence of
the public trust doctrine, state and local governments retain
broad power to regulate the property in question for environ-
mental, navigational, and recreational purposes and the like.
Although this broad regulatory power may not afford the City
of Los Angeles authority to enter on and alter defendants’
property without compensation, this extensive legislative con-
trol does suggest to me that the majority’s concern over the
problems ostensibly emanating from a “Mason-Dixon coastline”
is probably overstated. In any event, the policy considerations
which might legitimately influence our decision if this were a
matter of state law, clearly cannot override the governing
United States Supreme Court decisions on a matter of federal
law. Because I find the majority’s conclusion ine sistent with
those decisions, I dissent.’
I find nothing in the federal cases that would support the conclusion
that when the United States issued a federal patent confirming
private interests in property acquired pursuant to an earlier grant
from Mexico, the federal government—as a matter of federal
law—retained a hidden “tidelands trust” interest which later
passed to California. (See, e.g., Knight v. Land Association, supra,
142 US. at pp. 185-189 35 L.Ed. at pp. 982-984); Beard v. Federy
(1866) 70 U.S. (3 Wall.) 478, 491 [18 L.Ed. 88, 92).)
Because the majority opinion upholds the trial court’s decision on
the public trust theory, it does not reach that court’s alternative
findings that past usage of the property at issue gave rise to a public
easement for the passage of fresh water and a dedication for use as
public streets or waterways. Since my feelings about these alterna-
tive holdings would not affect the outcome of the case in any event, I
express no view as to the validity of those conclusions.
A-33
APPENDIX A-2
CLERK’S OFFICE, SUFREME COURT
4250 State Building
San Francisco, California 94102
June 16, 1982
I have this day filed Order
REHEARING DENIED
In re: L. A. No. 31422
CITY OF L. A.
LS.
VENICE PENINSULA PROP., et al.
(and related case)
Respectfully,
Clerk
N
A-34
APPENDIX A-3
IN THE
SUPREME COURT OF THE
STATE OF CALIFORNIA
L.A. No. 31422
Crry or Los ANGELES,
Plaintiff, Cross-defendant and
Respondent,
us. Appeal
VENICE PENINSULA PROPERTIES, et al., County Los ANGELES
Defendants, Cross-defendants and Superior Court
Appellants; No. C-868223
Tue State or CALIFORNIA ex rel.
State Lanps Couuisstox,
Defendant, Cross-complainant and
Respondent.
The above-entitled cause having been heretofore fully argued,
and submitted, it is Ordered, Adjudged and Decreed by the
Court that the judgment of the Superior Court of the County of
Los Angeles in the above-entitled cause, is hereby afirmed.
Respondents to recover costs on appeal.
I, Laurence P. Gill, Clerk of the Supreme Court of the State
of California, do hereby certify that the foregoing is a true copy
of an original judgment entered in the above-entitled cause on
the 10th day of May, 1982.
Witness my hand and the seal of the Court, this 17th day of
June, 1982.
LAURENCE P. GILL
Clerk
By LR NICCO
Deputy
A-35
APPENDIX A-4
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
The CITY OF LOS ANGELES, a
Municipal! Corporation. Plaintiff
and Respondent,
V.
VENICE PENINSULA PROPERTIES,
Defendant and Appellant.
The STATE of California, Acting By and Through
the STATE LANDS COMMISSION,
Cross-Complainant and Respondent,
V.
SOUTHERN CALIFORNIA GAS COMPANY;
Summa Corporation, Cross-Defendants and Appellants.
Civ. 56383.
COMPTON, Associate Justice.
At issue on this appeal is whether, by virtue of the so-called
California Tidelands Trust Doctrine, the State of California
(State) and its successor in interest, the City of Los Angeles
(City) can assert an easement for commerce, navigation and
fishery over land which was part of a Mexican land grant and
patented by the United States government pursuant to the Act
of 1851.' We hold that neither the State nor the City possess
such an easement over the property in question here.
The Act of 1851 was enacted by Congress to implement the treaty of
Guadalupe Hidalgo, by which treaty the government of Mexico
ceded to the United States the area which now constitutes the State
of California. The Act of 1851 established a mechanism for settling
the claims of Mexican citizens to land within the ceded territory.
A-36
The instant case involves two lots which are depicted on a
subdivision map as Lot C of the Del Rey subdivision, and Lot R
of the Silver Strand subdivision. These lots underlie what is
now popularly referred to as the Ballona Lagoon (Lagoon)
located in the Marina Del Rey area of the City.
The Lagoon in its present configuration is a narrow elongated
area covered by very shallow water and is separated from the
ocean by a strand or bar of beach sand. Its entire length lies
within 1,000 yards of the ocean. It connects to the Venice
Canals“ to the northwest and to the ocean channel entrance to
Marina Del Rey on the southeast.
Historically, the name Ballona Lagoon referred to a much
larger area than that covered by the property here involved and
was part of what was once Rancho Ballona. That additional
area is now dry land as a result of filling and development and
natural conditions.
Rancho Ballona was granted to Augustin and Ignacio
Machado and Philipe and Tomas Talamantes in 1839 by the
then Governor of the Californias, which area was part of Mex-
ico. Following the cession of California to the United States by
Mexico, the United States in 1873 patented the title of the
Machados and Talamantes to Rancho Ballona pursuant to the
Act of 1851.
The Summa Corporation, Venice Peninsula Properties, and
other individuals (hereafter the property owners) are the
present fee owners of Lots C and R and derive their title from
the original Mexican grantees. The Southern California Gas
Company owns a recorded easement for two pipelines which
traverse the property.
The first attempt to establish a public easement over the
property did not occur until 1965, when the City filed the
instant action for declaratory relief and to quiet title. By virtue
e — Venice ne he vo were part of an unrelated early subdivision and
12 waterway frontage and access to the lots in
} 22 property in question here is not part of that
subdivision.
A-37
of said easement, the City asserts the right to dredge, construct
sea walls, and to make improvements in the Lagoon without the
necessity of exercising the power of eminent domain. These
proposed improvements would require relocation of the
Southern California Gas Company pipelines.
According to the City’s complaint, it is entitled to a public
trust easement for commerce, navigation and fishery for the
reason that the Lagoon is part of the tidelands and is navigable
ocean water. As a fallback position, the City also claimed an
easement based on express or implied dedication.
The State of California was named as a defendant pursuant
to Public Resources Code section 6308 which requires that the
state be joined as a necessary party defendant whenever a City
brings an action involving tidelands that have been granted to
it in trust by the Legislature.
The State filed a cross-complaint for declaratory relief and to
quiet title in itself. In reality, however, the interests of the City
and the State are compatible with each other and are not
adverse. We will, for the sake of convenience, therefore, refer to
these governmental entities as the State.
The trial court rendered a judgment for the State declaring
(1) the existence of the public trust easement for navigation,
commerce and fisheries in, over and upon the waters of the
Lagoon up to the line of the Mean High Tide; (2) an easement
for passage of fresh sea water through the Lagoon to the Venice
Canals; (3) an easement for water recreation; (4) a right in the
State and its successors and assigns to open, dredge, construct
sea walls, etc., without requirement of the exercise of eminent
domain or payment of compensation; (5) a paramount right in
the State over the pipeline easement of the Southern California
Gas Company; and (6) an easement in the City for public streets
and waterways. In summary, however, it can be said that all of
the enumerated rights and easements granted to the State by
the trial court are simply incidental to and are subsumed by the
public trust easement.
A-35
Since we conclude that there is no evidence in the record to
support any theory of express or implied dedication, the resolu-
tion of this appeal turns on whether the State can assert the
public trust easement for commerce, navigation and fishery.
In 1852, pursuant to the provisions of the Act of 1851, the
Machados and the Talamantes petitioned the Board of Land
Commissioners for confirmation of their title. The Board, after
hearing, confirmed title in the petitioners in 1854. The Board’s
decision was affirmed by the United States District Court, and
the decision became final in 1856.
The confirmation and patent process next called for a survey
of the boundaries of the Rancho. By the time this survey was
conducted, certain landmarks referred to in the original grant
had disappeared.
Objections by adjoining Rancho owners to the results of the
survey resulted in some 17 years of litigation. The litigation
mainly concerned the northwestern borders of the grant which
had been marked in the original grant by gullies or barrancas,
and the southern boundary, which had as one of it landmarks, a
low marshy area or creek (estero) which was described as
opening into an inner bay.
During the litigation in the patent proceedings this inner bay
was described by the Commissioner of the Land Office as not
being an arm of the sea. Several witnesses, who testified con-
cerning the boundaries of Rancho Ballona, described the inner
bay as pasture land which was periodically flooded by fresh
water overflow.
There is no question that the patent which was ultimately
issued embraced within its boundaries the entire Lagoon. The
westerly boundary of the Rancho was fixed at the high water
mark on the westerly side of the sand bar or ridge which
separates the present Lagoon from the ocean.
The State concedes that the property owners have valid fee
title to Lots C and R. but that such title is subject to the public
A-39
trust easement because they were tidelands or submerged lands
prior to the original grant.’
Although only Lots C and R are involved in the instant
litigation, the State asserts that the entire Lagoon, as it existed
at the time of the grant, was and still is subject to the public
trust easement. Thus, according to the State, even those areas
which are now dry land and developed would be so burdened.
For this reason, the California Land Title Association has
appeared on appeal as amicus curiae in support of the property
owners. That organization points out that there are a number of
areas throughout the State, which are similar to the property in
question here, on which title insurance has been issved in
reliance on the inviolability of the Mexican land g
According to the property owners and amicus, if the State, at
this late date, can assert a public trust easement over patented
land, the result would be chaotic, especially as to land which
has been developed without previous objection by the State.
The property owners concede that the federal regulatory
power over navigable waters applies to patented Mexican grant
land. The property owners also concede that under the Coastal
Act, the State of California can regulate the use of such land by
the owners. They contend, however, that the recognition of the
existence of the public trust easement directly affects the title to
such property and its exercise in the manner in which the State
proposes here would render the naked fee title valueless and
would amount to inverse condemnation.
The so-called Tidelands Public Trust Doctrine is a creature of
United States and California law and is an incident of sover-
eign title in tideland property.
A-40
title to upland; but with respect to the former they held it only
in trust for the future States that might be erected out of such
territory.” (Knight v. United Land Association, 142 U.S. 161, at
183, 12 S.Ct. 258, at 263, 35 L.Ed. 974.)
Thus California acquired title to navigable waterways and
tidelands by virtue of its sovereignty when admitted to the
Union in 1850. (Boraz, Lid. v. Los Angeles (1935) 296 U.S. 10, 56
S. Ot. 23, 80 L.Ed. 9.) This exercise of sovereignty was as a
trustee for the public rather than in a proprietary capacity.
(City of Long Beach v. Mansell, supra; People v. California Fish Co.
(1913) 166 Cal. 576, 138 P. 79; People v. Kerber (1908) 152 Cal.
731, 93 P. 878; Ward v. Mulford (1867) 32 Cal. 365.)
“The control of the State for the purposes of the trust can
never be lost, except as to such parcels as are used in promoting
the interests of the public therein, or can be disposed of without
any substantial impairment of the public interest in the lands
and waters remaining.” (Illinois Central Railroad v. Illinois
(1892) 146 U.S. 387, at 453, 13 S.Ct. 110, at 118, 36 L.Ed. 1018;
also see United States v. Coronado Beach Co., 255 U.S. 472, 41 S.Ct.
378, 65 L.Ed. 736; Whitney v. United States, 181 U.S. 104, 21 S.Ct.
565, 45 L.Ed. 771; United States v. Cambuston, 61 US. (20
Howard) 59, 63, 15 L.Ed. 828.)
“As to tide-lands, although it may be stated as a general
principle ... that the titles acquired by the United States to
lands in California under tide-waters, from Mexico, were held
in trust for the future State, so that their ownership and right
of disposition passed to it upon its admission into the Union,
that doctrine cannot apply to such lands as had been previously
granted to other parties by the former government, or subjected
to trusts which would require their disposition in some other
way.” (San Francisco v. Le Roy (1891) 138 U.S. 656, at pp. 670-
671, 11 S.Ct. 364, at p. 368, 34 L.Ed. 1096.)
Our reading of the cases leads us to conclude that the public
trust easement only exists over lands to which California
acquired title by virtue of its sovereignty upon admission to the
Union. California did not acquire such title to lands which were
the sulyect of a prior Mexican land grant and later patented by
A1
the United States government imaccordance with its obligations
under the treaty of Guadalupe Hidalgo.
The nature and effect of the patent issued pursuant to the Act
of 1851 has been well described by both the United States and
California Supreme Courts. The patent of the government is
evidence of title and is conclusive against the government and
all persons claiming under it. The patent is a deed of the United
States and operaies as a quit claim of any interest the United
States may have reserved in the land. It establishes in the
grantee full and complete title to the property. (Beard v. Federy
(1865) 70 U.S. (3 Wall.) 478, 18 L.Ed 88; Teschemacher v. Thomp-
son (1861) 18 Cal. 11.)
Further, there appears to be no question but that a federally
patented Mexican land grant could embrace tidelands. The
State concedes this and it has been so held in United States v.
Coronado Beach Co., supra, and San Francisco v. Le Roy, supra.
In United States v. Coronado Beach Co., supra, we find language
which in our opinion is controlling of the issue of whether the
patented fee title is subject to an unreserved servitude, which
exists only as an adjunct of sovereignty. That case involved
land which had been granted by the Mexican government to
one Carrillo and patented by the United States government to
Carrillo. The grant covered a portion of North Island in San
Diego County and included tidelands bounded seaward to the
“anchorage for ships.”
The United States, in attacking the validity of the patent as
to tideland property, argued that, as here, California became a
State prior to the date of the patent and thus its sovereignty
over the land existed in spite of the later patent. The Supreme
Court there declared that California's title, upon becoming a
State, was subject to prior Mexican land grants and that
California title was held in abeyance pending determination of
the validity and boundaries of the Mexican grant in proceed-
ings established by the Act of 1851.
Further, the United States in that case, challenged the
boundaries of the grant insofar as it embraced tidelands. The
Supreme Court's answer to that contention was that in the
A-42
confirmation proceedings there was jurisdiction to decide the
issues, right or wrong, and “. however arrived at [the
decision] was adopted by the United States for its grant and it
cannot now be collaterally impeached.” (United States v.
Coronado Beach Co., supra, (1921) 255 U.S. 472, at 488, 41 S.Ct
378, at 379, 65 L.Ed 736.)
It must be emphasized that in the confirmation and patent
proceedings under the Act of 1851, the United States was
always a party and in a position to assert any interest it
claimed to have in the property including any easement
claimed by virtue of sovereignty. This is especially significant
in the case at bench because the character of the land was,
itself, an issue in the confirmation proceedings and was at that
point determined not to be tidelands. Thus it was error for the
trial court here to permit evidence to be introduced to controvert
that determination. ‘
In United States v. Title Ins. Co. (1924) 205 U.S. 472, 44 S.Ct.
621, 68 L.Ed. 1110, the Supreme Court of the United States
dealt with the claims of certain Indians to the right to occupy
land which was the subject of a federally patented Mexican
land grant. The Indians’ right to occupancy was said to have
existed under Mexican law and it was contended that it
survived or continued after the patenting process, even though
no such reservation was mentioned in the patent.
The Supreme Court, relying on its former decision in Barker
v. Harvey (1901) 181 U.S. 481, 21 S.Ct. 690, 45 L.Ed. 963, rejected
the claim and held that any such right of occupancy would
have had to have been asserted in the patenting process. The
court at page 492, 21 S.Ct. at page 694 stated A claimant
would have little reason for presenting to the land commission
his claim to land, and securing a confirmation of that claim, if
the only result was to transfer the naked fee to him, burdened
by an Indian right of permanent occupancy.”
The above cited cases are a complete answer to the State's
argument here that only the fee title was settled by the patent
process and that the public trust easement exists independent of
that patent process. It is difficult for us to see how the patent
A443
can be described as settling in the grantee a full and complete
title, while at the same time holding that it was burdened by a
servitude of the magnitude of that asserted by the State in this
action.
Inasmuch as California never acquired sovereign title to land
which was the subject of a prior grant by the Mexican govern-
ment, the public trust easement, which is an adjunct of sover-
eignty and a creature of United States and California law,
never arose.
The State, by way of a corollary argument, contends that
under Mexican law the tidelands could not be subject to private
ownership. Thus it argues that there existed under Mexican law
a doctrine similar to the California Tidelands Trust Doctrine
and that by virtue of that doctrine, the public trust easement
passed to the United States upon cession of California by the
government by Mexico.
We need not here discuss the Mexican law because any
contention that Mexican law is controlling of the scope and
effect of the United States patenting process has been laid to
rest by decisions of the United States and California Supreme
Courts.
In the case of Moore v. Smaw (1861) 17 Cal. 199, the United
States sought to claim mineral rights in land which was part of
a Mexican land grant patented by the United States under the
Act of 1851. The argument there was that under Mexican law,
mineral rights did not pass to the grantee but instead remained
with the government. The California Supreme Court rejected
that argument by declaring that there was nothing in the Act
of 1851 which restricted the operation of the patents to the
interest acquired by claimants from the former government.
The court held that all the interest of the United States,
whatever it may have been, and everything connected with the
soil or any portion of it, or everything lying over it or under it,
was conveyed to the grantee by the United States in the patent
process.
In Thompson v. Los Angeles Farming & Milling Co. (1901) 180
US. 72, 21 S.Ct. 289, 45 L.Ed. 432, an attempt was made to
A-44
invalidate a federal patent under the Act of 1851 by asserting
that Mexican law, at the time of the grant, gave the Governor
of California no authority to dispose of certain land in question.
The contention was that the Mexican grant was, in effect, void
and that the federal patent was likewise void. The Supreme
Court in rejecting that argument stated it was the purpose of
the Act of 1851 to give final and-complete repose to titles. “It
was enacted not only to fulfil our treaty obligations to individu
als, but to settle and define what portion of the acquired ter-
ritory was public domain.. Upon the confirmation of the
claim by the commissioners or by the District or Supreme
Court, a patent was to issue and be conclusive against the
United States.” (Pp. 77-78, 21 S.Ct. p. 291.)
The Cal..ornia Legislature has clearly recognized the highly
protected status of the Mexican land grant — a status which
inures from a treaty obligation of the United States — in its
enactment by which the State’s interest in the tidelands was
conveyed to the City of Los Angeles, as a successor to the City
of Venice.
Chapter 1513 of the Statutes of 1945, granted to the City of
Los Angeles as successor to the City of Venice, “all right, title
and interest of the State of California held by said State by virtue
of its sovereignty in and to all the tidelands and submerged
lands. That statute, however, contained the following:
“ .. excepting any property held under, through or from a
Mexican grant or patent
Chapter 77 of the Statutes of 1917, which effected the original
conveyance of the State’s interest to the City of Venice simi-
larly provided that “... nothing contained herein shall in any
way affect any property held or claimed under, through or from
a Mexican grant or patent therefor within the present bounda-
ries and jurisdiction of said city ...”
We conclude that the State does not have a public trust
easement for commerce, fishing and navigation in the Lagoon,
since it never had sovereign title to the property. That conclu-
sion dictates that the judgment must be reversed since the
record here is devoid of any evidence to support a finding of
45
express or implied dedication or any other basis for the various
subordinate easements which the trial court attempted to create.
The evidence is quite clear that the Venice Canals are, and
have been for a long period of time, stagnant polluted bodies of
water receiving no sea water flow through the Lagoon. Inas-
much as the State, under our holding here, has no right to
dredge or improve the flow through the Lagoon, an easement
simply for sea water flow would be worthless.
As to claim that the public has obtained a prescriptive right
to use the Lagoon for recreational purposes under the rationale
of Gion v. City of Santa Cruz (1970) 2 Cal.3d 29, 84 Cal. Rptr. 162,
465 P.2d 50, we find that case to be inapplicable.
Contrary to the situation in Gion, the Lagoon here is neither a
“beach or shoreline” nor a public road, nor as we have indi-
cated, is it a part of navigable ocean waters. Further, there is no
evidence of public use which even approximates the extent of
the public use in Gion.
In the absence of an express dedication to public use, it must
be presumed that no property owner in fact desires, without
compensation, to dedicate his property to public use to the
extent that he would lose, for all times, his right to make
private use thereof.
Here it is undisputed that the property owners did not in fact
intend to dedicate the property to public use. They posted “no
trespass” signs as evidence of that lack of intent. In our opinion,
they should not now be penalized simply because they did not
erect an unsightly and forbidding fence manifesting a continu-
ing hostility to even sporadic and limited public use. To imply
an intent to dedicate, under these circumstances, would defy
logic, ignore reality and stand equity on its head.
The judgment is reversed.
BEACH, J., concurs.
FLEMING, Acting Presiding Justice, dissenting.
In my opinion a public trust easement for navigation, com-
merce, and fishery has existed since 1839 and continues to exist
46
in the property identified as Ballona Lagoon, for the reason that
‘throughout this period it has been tidewater property. A public
trust easement attaches to all tidewater and tideland property,
and the rule is the same under Mexican law (Luz v. Haggin
(1886) 69 Cal. 255, 316, 317, 4 P. 919), United States law (Illinois
Central Rd. v. Illinois (1892) 146 U.S. 387, 455-460, 13 S.Ct. 110,
115, 36 L.Ed. 1018), and California law (City of Berkeley v.
Superior Court (1980) 26 Cal.3d 515, 521, 162 Cal.Rptr. 327, 605
P.2d 1328; Marks v. Whitney (1971) 6 Cal.3d 251, 259, 98
Cal.Rptr. 790, 491 P.2d 374).
Ballona Lagoon, a narrow inlet or estuary of the sea con-
nected with and directly parallel to the sea, has been tidewater
and tideland for the past 900 years. It was shown as the estuary
of a larger “Inner Bay” on the original Hancock survey of
Ballona rancho in 1858 and on the coastal surveys of 1876, 1887,
and 1896. Subdivision of the surrounding land in 1905 did not
change its character as tidewater property, which it remains to
this day with waters controlled by motorized tide gates abutting
the ocean channel leading to Marina Del Rey. Appellants make
two arguments against the existence of a public trust easement:
(1) Ballona Lagoon is not tidewater and tideland, (2) the fee title
confirmed in their predecessors in interest by the federal Board
of Land Commissioners and the United States General Land
Office extinguished all public trust easements in the Ballona
rancho grant.
1. According to appellants, the non-tidal characier of Ballona
Lagoon was conclusively established in 1873 in the General
Land Office patent proceeding confirming their predecessors in
interest’s title to Ballona rancho, when Commissioner Drum-
mond commented that the “Inner Bay” of Ballona rancho was
not an arm of the sea but was largely pasturage. That comment,
however, referred to a different area of the rancho, its “Inner
Bay” located north and east of the estuary, an area removed
from the sea and not directly adjoining it. In that same patent
proceeding Commissioner Drummond specifically mentioned
“an estuary of the sea in the Ballona rancho,” which is the
property involved here. Commissioner Drummond’s comment
about the “Inner Bay,” made in the course of a title proceeding
A7
to settle the northern and western boundaries of the Ballona
rancho, merely considered the extent of tidewater penetration
into the rancho as a factor in determining the rancho's bounda-
ries. It cannot rationally be interpreted as a repudiation of the
existence of the “estuary of the sea in the Ballona rancho”
mentioned in another part of his report.
Other than the Drummond comment, appellants offer no
proof of the non-tidal character of Ballona Lagoon. This is
scarcely surprising, because the physical evidence is all the
other way. Factually, the trial court’s finding that the property
is tidewater was supported by overwhelming proof, not the least
of which was evidence of the presence of clams and the practice
of clamming in Ballona Lagoon. Because the property was and
is tidewater property, an easement for navigation, commerce,
and fishery attaches.
2. Appellants further argue that whether Ballona Lagoon is
tidewater or not, their full title to the property was conclusively
determined by the General Land Office patent proceedings
which confirmed title and boundaries of the original Mexican
land grant in their predecessors in interest. But appellants’ title
is not contested. The disputed issue is whether a public trust
easement in tidal property can exist when full title to a Mexi-
can land grant has been confirmed in private ownership. Appel-
lants assert that confirmation of the grant gave them title
without limitation and reservation, relying on the case of United
States v. Coronado Beach Company (1921) 255 U.S. 472, 41 S.Ct.
378, 65 L.Ed. 736. That case held that the Mexican grant at
issue was bounded on the “west by the anchorage for ships” and
therefore included title to adjacent tidelands. But the existence
of a public trust easement in tidelands for navigation, com-
merce, and fishery was not an issue in the cause and was never
discussed (see p. 484). I see nothing inconsistent in recognition
of fee title in Mexican-land-grant tidal property and recognition
of a public trust easement in the same property (Lewis Blue
Point Oyster Co. v. Briggs (1913) 229 U.S. 82, 87, 88, 33 S.Ct. 679,
680, 681, 57 L.Ed. 1083; People v. California Fish Co. (1913) 166
Cal. 576, 586-587, 598, 138 P. 79.) At bench, the Ballona rancho
A=
grant was specifically made “without prejudice ... to servi-
tudes.” Such a reservation, in my view, included a public trust
easement in those portions of the grant which were tidal
property, (Illinois Central Railroad v. Illinois (1892) 146 U.S. 387,
452-455, 13 S.Ct. 110, 117, 36 L.Ed. 1018; Townsend v. Greeley
(1866) 72 U.S. (5 Wall.) 326, 335, 18 L.Ed. 547; New Orleans v.
United States (1836) 35 U.S. (10 Peters) 662, 731, 9 L.Ed. 573), a
reservation which the subsequent General Land Office proceed-
ing confirming title and boundaries did not disturb. (Cf.
Fremont v. United States (1854) 58 U.S. (17 How.) 542, 565, 15
L.Ed. 241.)
Appellants, joined by California Land Title Association as
amicus curiae, conjure up the spectre that recognition of public
trust easements in properties which were tidal at the time
Mexico ceded California to the United States would disrupt a
myriad of good titles to property which has since been filled
and improved in reliance on the validity of a Mexican-land-
grant fee title. But I forsee no parade of horribles resulting
from recognition of public trust easements in Mexican-land-
grant tidal property. The California Supreme Court effectively
laid such hobgoblins to rest in City of Berkeley v. Superior Court
(1980) 26 Cal.3d 515, 162 Cal.Rptr. 327, 605 P.2d 1328, a cause
which involved state conveyances of tidelands to private owner-
ship under a legislative act of 1870. The court there held a
public trust easement for navigation, commerce, and fishery
was reserved under such conveyances, that grantees of tide-
lands took their grants subject to such reservations. The court
then went on to declare that tideland properties which have
since been filled or reclaimed are free of the public trust ease-
ment to the extent they no longer comprise tidelands and are no
longer adaptable to public trust uses. (pp. 534-535, 162 Cal. Rptr.
327, 605 P.2d 1328.) In effect, the court determined that long-
continued occupation of tidelands by a fee owner, adverse to
tideland use and accompanied by action which terminaces the
tidal character cf the property, may also terminate the public
trust easement for navigation, commerce, and fishery. While
the court did not elaborate the exact nature of the legal
principle involved, clearly it relied on the presence of factual
A9
elements comparable to those which establish prescription,
adverse possession, abandonment, or equitable estoppel. (Cf.
People v. California Fish Co. (1913) 166 Cal. 576, 597, 138 P. 79;
City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 496-497, 499, 91
Cal.Rptr. 23, 476 P.2d 423; see “The Tideland Trust,” (1974) 21
UCLA L.Rev. 826, 838-842, 850.)
The foregoing principle applies equally here. Property which
was tidal at the time of its original Mexican grant and at the
time of its patent by the General Land Office remains subject to
a public trust easement for navigation, commerce, and fishery.
But if during the intervening years the property has lost its
tidal character, even if the loss resulted from action of the fee
owner in damming, filling, and improving the property, the
public trust easement ordinarily disappears. The operation of
this principle may be seen in the present cause, where a century
ago the tideland area of Ballona was considerably more exten-
sive that it is today. As to those parts of Ballona rancho which
lost their tideland character, such as the “Inner Bay,” the
public trust easement disappeared; as to those parts of Ballona
Lagoon which retain their character as tideland or tidewater,
the public trust easement remains.
3. The trial court also found Ballona Lagoon subject to a
variety of other easements—for passage of sea water to the
Venice Canals, for public waterways, for recreational use, for
boating, clamming, and swimming. Whether the evidence was
sufficient to support the existence of these easements is a ques-
tion I do not reach, since the parties agree that a decision in
favor of the public trust easement makes unnecessary a
determination of the validity of these subsidiary easements.
I would affirm the judgment below on the basis of a public
trust easement in tidewater property.
A-50
APPENDIX A-5
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
THE CITY OF No. 868,223
LOS ANGELES,
a municipal FINDINGS OF FACT
corporation AND CONCLUSIONS OF LAW
Plaintiff,
vs.
ETHEL FRASER
CARMAN-RYLES,
et al., (Pending Action — Department 23)
Defendants.
eee eee — —
The above-entitled case came on regularly for trial commenc-
ing on February 18, 1975, before the Honorable Samuel Green-
field, Judge presiding in Department 23 of the above-entitled
Court, without a jury. Burt Pines, City Attorney, Norman L.
Roberts, Assistant City Attorney and Anthony P. Parrille,
Deputy City Attorney, by Anthony P. Parrille, appeared for
plaintiff and cross-defer dant, the City of Los Angeles. Loren
Miller, Jr., William A. Dorland and Jack D. Janofsky, by
William A. Dorland, appeared for defendant and cross-
defendant, Southern California Gas Company. Hill, Farrer and
Burrill, William M. Bitting and Steven W. Bacon, by William
M. Bitting and Steven W. Bacon, appeared for defendant and
eross-defendant Summa Corporation (formerly known as
“Hughes Tool Company.) Evelle J. Younger, Attorney
General, Alan V. Hager and Jerold Krieger, Deputy Attorneys
General, by Jerold Krieger, appeared for defendant and cross-
complainant, the State of California. Pacht, Ross, Warne,
A-51
Bernhard and Sears, Inc., by Henry J. Shames and Paul
Hamilton, appeared for defendant and cross-defendant, Venice
Peninsula Properties. David J. Pierce of the law firm of Mitch-
ell and Mitchell, appeared for defendants and cross-defendants,
Ruth Jones-Wright, and Robert D. Byrne and Byrne C. Man-
son as Trustee under the Will of Olive Byrne Jones, deceased.
Pursuant to stipulation of the parties and good cause appear-
ing therefor, on April 24, 1975, trial of the matter was ordered
bifurcated. Thereafter, between April 24, 1975 and May 13,
1975, the Court heard the testimony and examined the proof
offered by the parties pertaining to the first stage of the trial.
On November 18, 1975, the Clerk of the Court entered this
Court’s Notice of Intended Decision in the Minutes of the Court.
The City of Los Angeles requested Findings of Fact and Con-
clusions of Law, and the Court ordered the defendant, Summa
Corporation to prepare the Findings of Fact and Conclusions of
Law at that time. On June 25, 1976, the Court vacated its
Notice of Intended Decision filed on November 18, 1975 with
respect to the first stage of the two bifurcated issues in the trial;
and ordered the reopening of the first stage for the purpose of
taking testimony as to the geographical boundaries of the ease-
ments claimed by the City and cross-complainant State in the
“portion of Lot C of the Del Rey Beach Subdivision lying
northwesterly of the Entrance Channel of Marina Del Rey.”
Thereafter, on August 23, 1976, September 27, 1976, and October
18, 1976, the Court heard additional testimony and examined
the proofs offered bythe parties pertaining to the remaining
issues of the first stage of the trial.
On October 19, 1976, the Clerk of the Court entered the
Court's Revised Notice of Intended Decision on Certain Factual
Issues Tried In Connection With The First Stage Of The Bifur-
cated Trial in the Minutes of the Court. Under its Revised
Notice of Intended Decision, the Court has ordered that counsel
for the City and for the State jointly prepare, serve and lodge
with the clerk in Department 23, proposed Findings of Fact and
Conclusions of Law on the first stage of the Trial.
A-52
The Court being fully advised, now makes its Findings of
Fact and Conclusions of Law, as follows:
FINDINGS OF FACT
It is true that:
1.” The subject of this litigation commonly known as and
hereafter referred to as the ‘Ballona Lagoon’ is an arm of the
Pacific Ocean which was created by forces of nature over 900
years ago and has continued to exist at all times to the present.
Since its creation, and to the present, it has been subject to the
tides of the Pacific Ocean and inundated with seawaters at
mean low-tide and mean high-tide. The waters within the
Ballona Lagoon, at mean high-tide, are of sufficient depth to be
navigated by rowboats, canoes, surfboards and other shallow-
draft craft. Ballona Lagoon is therefore a navigable body of
water. Ballona Lagoon may be made more usable for navigation
and commerce purposes, including the navigation and mooring
of sailboats and motor-cruisers.
2. Since 1873 and at various times thereafter, construction
work, including dredging and building of seawalls and dikes in
and about the Ballona Lagoon has been commenced and carried
on. The permanent construction of facilities within the confines
of the Ballona Lagoon as depicted on Exhibit 14, occurred
southerly of the portions in litigation herein. Persons or entities
constructed such facilities in and about the Ballona Lagoon in a
manner that tidal influence within the Ballona Lagoon was
protected and sustained. Construction work completed within
territory surrounding the Ballona Lagoon or upon the banks of
the #..llona Lagoon (referring to the portion of the Lagoon in
litigation herein) did not substantially affect the size, shape,
depth, location or character of the Lagoon.
3. The ebb and flow of the tides within the Ballona Lagoon
are preserved and protected by the installation and operation of
automatic, motor-controlled tidegates which are installed in the
northerly bank of the Marina del Rey Entrance Channel (the
southerly boundary of the property which is the subject of this
litigation.) Waters of the Pacific Ocean enter the Lagoon by and
Y
through the Marina del Rey Entrance Channel. Said tidegates
are operated in such a manner as to limit the maximum amount
of tidal water entering the Lagoon at highest high-tide, to
prevent the flooding of areas adjacent to the Ballona Lagoon.
4. The waters of the Ballona Lagoon are a habitat for a
variety of marine life, including several varieties of clams and
shrimp. Clams obtained from the Lagoon are edible and have
been and are still being taken for both private consumption and
commercial use. The waters of the Ballona Lagoon also provide
a habitat for migratory birds.
5. The Ballona Lagoon and the waters of the Ballona Lagoon
are of scenic value to the community and enhance the aesthetics
and value of adjacent properties. The Ballona Lagoon has value
for scientific study and research as an estuarine area of ecologi-
cal value. Properties adjacent or near the Lagoon have value
and usefulness in excess of those separated from the Lagoon by
distance.
6. Formerly the waters of the Ballona Lagoon were utilized
as the means of disposing and flushing of brine and other waste
products from oil-well operations conducted within the vicinity
of the Lagoon. Brine was discharged into the Lagoon at ebbtide
and flushed into the waters of the Pacific Ocean. That use of the
Ballona Lagoon has been discontinued.
7. Lot C of Del Rey Beach Subdivision as recorded in Book 6,
page 186 of Maps in the Office of the Recorder of Los Angeles
County and Lot R of Silver Strand Subdivision as recorded in
Book 7, page 86 of Maps, in the Office of the County Recorder of
Los Angeles County, originated from a grant of Mexican land
by the Governor of California in 1839 and thereafter confirmed
by decree of the United States District Court pursuant to
Statutes enacted to implement the Treaty of Guadalupe
Hidalgo.
During the time of sovereign control of California by Mexico,
the body of law governing the ownership of lands covered by
water was Law 3 and Law 6 of Las Sietes Partidas (in evidence,
Exhibit 5). Under those laws a private person could not have
any property interest in land covered by the sea, the harbors
A-53
A-54
and the running rivers. The Ballona Lagoon, at the time of the
Mexican grant and during Mexican sovereignty, was covered
by water and subject to the daily ebb and flow of waters of the
Pacific Ocean. Therefore, while subject to Mexican sovereignty,
and under Mexican law, the grantees of said grant had no
property interest in the lands known as the Ballona Lagoon.
By Chapter 77 of Statutes of California, 1917, and Chapter
1513 of Statutes of California, 1945, the State granted all tide-
lands and submerged lands within the City of Venice to Venice
and its successors. Both statutes provide in substance that
nothing contained therein shall in any way affect any property
held or claimed under, through or from a Mexican grant or
patent therefor.
8. The Ballona Lagoon has been the source of the flow of
seawater to and from the canals northerly of the Ballona
Lagoon for more than five years prior to the commencement of
this action.
9. Members of the public have used the Ballona Lagoon for
more than five years for purposes consistent with the easement
of navigation, commerce and fishery and as though such ease-
ment was vested in the public. These uses and purposes
included:
(1) Clam-digging for recreational and commercial purposes;
(2) Swimming;
(3) Boating for recreational purposes;
(4) Scenie enjoyment;
(5) A means of flushing brine into the sea; and
(6) A route for passage of tidal-waters to and from the Venice
Canals.
Said uses were open, notorious and were known or should have
been known by the owners or others claiming an interest in the
Ballona Lagoon. Persons used the Ballona Lagoon in the same
manner as they would have used it had it been publicly-owned
property, and they were under a belief that it was such.
A-55
10. The State of California, through wardens of its Depart-
ment of Fish and Game, enforced the provisions of the Fish and
Game Code of California in the Ballona Lagoon relating to
fishing.
II. The owners’ efforts, if any, to prevent the usage of the
Ballona Lagoon by the public for the aforesaid purposes have
been sporadic, minimal, and unsuccessful. Said efforts when
they occurred consisted of the posting of “No Trespassing”
signs, but without further enforcement.
12. All portions of the Ballona Lagoon are located within
1,000 yards of the mean high-tide line of the Pacific Ocean.
13. Exhibit 89 describes by metes and bounds the geographi-
cal boundaries of the easement claimed by the City and State in
that portion of Lot C of the Del Rey Beach Subdivision lying
northwesterly of the Entrance Channel of Marina lel Rey. Said
description is attached hereto and incorporated by reference.
14. The subdivision map of Del Rey Beach Subdivision
depicts a large lot, designated as Lot C, irregularly drawn and
different in shape and size from the lots proposed for a sale in
said subdivision. The map of Silver Strand Subdivision depicts
a large lot, designated as Lot R, irregularly drawn and different
in shape and size from lots proposed for sale in Silver Strand
Subdivision. The boundaries of said Lots C and R, except for
those boundaries which correspond to the boundaries of the
subdivision, approximately correspond to the shores of the Bal-
lona Lagoon. The map of Del Rey Beach Subdivision plats a
walkway immediately adjacent to Lot C and immediately next
to the shore of the Ballona Lagoon labeled ‘Esplanade East’ and
‘Esplanade West’ at the edge of Lot R, but excluding the most
westerly side of Lot R and along the banks of the Ballona
Lagoon (excluding the most westerly bank.)
Lots C and R in the aforesaid subdivisions could have no
other use and no other value than as a waterway. Lots C and R,
together with Lot A of the adjacent Playa del Rey Townsite
located southerly of Del Rey Beach Subdivision connected to
one another and corresponded to the shape and size of the entire
Ballona Lagoon. The use of the term ‘esplanade’ implied that
A-56
the rights-of-way so identified were to be along a shore and
immediately adjacent to a waterway.
15. The subdividers of the Del Rey Beach Subdivision
surveyed the boundaries of said Lot C intending to make the
shores of the Ballona Lagoon the boundaries of said Lot C, and
platted those boundaries in straight lines and regular curves,
rather than irregular or complex curves, in accordance with
survey practices in 1905.
16. The subdividers of Silver Strand Subdivision and Del
Rey Beach Subdivision each sold some of the platted lots in
their respective subdivisions. Lots C and R provide a means of
ingress and egress by water to the lots which abut on the East
and West, and Lot C (the Lagoon) was intended to be the
‘frontage’ of lots in Del Rey Beach and adjoining the
‘Esplanades.’
17. Following the subdivision of Del Rey Beach and Silver
Strand and following the platting of Lots C and R therein, and
following the platting of the Grand Canal leading northerly
from Lot R, lands were subdivided northerly of the northerly
limit of Silver Strand Subdivision. Said subdivisions included
areas designated as canals, and canals were actually con-
structed within said designated areas. (Said canals are known
today as the “Venice Canals.“) Some of the canals which were
constructed continue to exist to this date and provide water
access to abutting lots. At the time of recordation of said
subdivisions and at the time of the construction of the canals,
the major source of waters for the canals during dry seasons
was through the Ballona Lagoon, and a secondary source was a
canal located at the seaward terminus of Venice Boulevard.
Another source, during rainstorms, was the flow of surface
water from adjacent lands. For approximately the last 50 years
the sole source of water has been through the Ballona Lagoon.
18. Each of the subdividers of the ‘canal’ subdivisions
northerly of Silver Strand, as well as the public who purchased
properties within said subdivisions, and the public itself, relied
on the continued existence and the maintenance of Lots C and
R (the Ballona Lagoon) as a passageway for seawater to and
A-57
from the Pacific Ocean. Said reliance was the construction of
the canals in the manner in which they were constructed and
their connection to the Grand Canal in Silver Strand Subdivi-
sion and thereby to the Ballona Lagoon.
19. Defendant and cross-defendant Summa Corporation is
the owner of Lot C of the Del Rey Beach Subdivision as
recorded in Book 6, page 186 of Maps, in the office of the
recorder of Los Angeles County. Defendant and cross-defendant
Southern California Gas Company possesses certain easements
and other interests of record to said Lot C.
20. Defendants and cross-defendants Robert D. Byrne and
Byrne C. Manson, as trustees under the Will of Olive Byrne
Jones, deceased, Ruth Jones-Wright, and Venice Peninsula
Properties are owners of Lot R of Silver Strand Subdivision as
recorded in Book 7, page 86 of Maps in the office of the recorder
of Los Angeles County.
21. The aforesaid Lot R and the aforesaid Lot C are located
in and are a part of an area which has historically been known
as “Ballona Lagoon,” and together the aforesaid Lot R and the
aforesaid Lot C comprise that area which is the subject matter
of the within action (hereinafter “subject property.”) The sub-
ject property lies within the City of Los Angeles, County of Los
Angeles, State of California.
22. The subject property is a portion of “Rancho La Bal-
lona,” lands originally granted to Augustin and Ignacio
Machado, and Felipe and Tomas Talamantes in 1839 by Juan
B. Alvarado, the then Constitutional Governor of the
Californias. ~
23. On February 2, 1848, the United States and Mexico
entered into the Treaty of Guadalupe Hidalgo. Article VIII of
that Treaty provided that existing property rights of Mexican
citizens would be “inviolably respected,” and on March 3, 1851,
Congress passed “An Act to ascertain and settle private land
claims in the State of, California” (hereinafter “Act of 1851.”)
That Act of 1851 provided a method by which property rights
of Mexican citizens in and to lands in the new State of
A-58
California could be could be confirmed and patented by the
United States Government.
24. In accordance with the provisions of said Act of 1851, on
October 2, 1852, Augustin Machado, et al., petitioned the then
Board of Land Commissioners for a decree confirming title to
“Rancho La Ballona” in them. On February 14, 1854, after
hearing, the Board confirmed title to “Rancho La Ballona” in
Augustin Machado, ef al., and, after appeal by the United
States, on December 19, 1855, the United States District Court
for the Southern District of California upheld the Board’s
decision. No further appeal was taken, and in December of 1856
the District Court entered an order making its 1855 Order final.
25. Defendants and cross-defendants Summa Corporation,
Venice Peninsula Properties, Ruth Jones-Wright, Robert D.
Byrne and Byrne C. Manson, as trustees under the Will of
Olive Byrne Jones, deceased, and Southern California Gas Com-
pany derive their title to their interests in the subject property
from the aforesaid Augustin and Ignacio Machado, and Felipe
and Tomas Talamantes.
26. Defendants and cross-defendants Summa Corporation,
Venice Peninsula Properties, Ruth Jones-Wright, Robert D.
Byrne and Byrne C. Manson, as trustees under the Will of
Olive Byrne Jones, deceased, and Southern California Gas Com-
pany have never offered, intended to offer or attempted to offer
to dedicate the subject property or any portion thereof for any
purposes.
27. Members of the public have used a portion of the Ballona
Lagoon, in the immediate vicinity of the tide gate, for more
than five years for recreation and clam digging. This use was
open and notorious. This use did not interfere with the opera:
tion and use of pipelines crossing beneath the Lagoon, which
pipelines have been in use from prior to 1943 until the present
time.
28. Any conclusion of law deemed to be a Finding of Fact is
hereby incorporated in these Findings of Fact.
A-59
CONCLUSIONS OF LAW
From tie foregoing facts the Court concludes that:
1. The State of California holds in trust for the people of the
State of California an easement for navigation, comm and
fisheries in, over, upon and under the waters of the lona
Lagoon up to the line of the mean high-tide within portions of
Lot C of the Del Rey Beach Subdivision, more particularly
described in the exhibit to these Findings of Fact and Conclu-
sions of Law.
2. The public has an easement in the same portions of Lot C
for the passage of fresh seawater from the Pacific Ocean
through the Ballona Lagoon to the Venice Canals.
Said portions of Lot C are subject to an easement for general
purposes of water recreation.
The same public easement exists in Lot R of Silver Strand,
the boundaries of which are to be determined in the second
portion of these bifurcated proceedings.
3. In the administration of the public easement referred to in
Conclusion Number 1, the State of California, or its successors
and assigns, has the right to open, dredge, construct sea walls,
or otherwise improve the subject property without prior exercise
of the power of eminent domain or payment of compensation.
4. The right of the State of California is paramount to the
rights of the Southern California Gas Company, the holder of a
pipeline easement within the portion of Lot C of Del Rey Beach
Subdivision described in Exhibit 89.
5. The confirmation decree of the United States District
Court with respect to the said Mexican grant of Rancho Ballona
pursuant to the Treaty of Guadalupe Hidalgo was and is conclu-
sive as to the title and boundaries of the land subject to the
confirmation, but not as to the rights the patentees may have in
the land. Said patent issued pursuant to said decree was subject
to the sovereign right of the public to use the Ballona Lagoon
for purposes of navigation, commerce and fishery.
A-60
6. The subdividers of Del Rey Beach Subdivision and Silver
Strand Subdivision by recordation of the tract maps dedicated
Lots C and R as public streets or waterways. The dedication of
Lots C and R was accepted by the sale of some of the lots
abutting Lots C and R, and by public use of Lots C and R.
DATED February 22, 1977
/s/ Samuel Greenfield
N JUDGE OF THE SUPERIOR
COURT
+
A-61
[Exhibit to Findings of Fact]
MEAN HIGH TIDE LINE OF THAT PORTION OF THE
BALLONA LAGOON WITHIN LOT C,
DEL REY BEACH
That portion of Lot C, Del Rey Beach, per map recorded in
Book 6, page 186 of Maps, in the office of the County Recorder
of Los Angeles County, bounded and described as follows:
Commencing at a point in the northwesterly line of Lot 16,
Block 1, said Del Rey Beach, distant 105.38 feet northeasterly
measured along said northwesterly line and its southwesterly
prolongation from a line parallel with and distant 20 feet
southwesterly measured at right angles from the southwesterly
line of said Lot 16, said liel line is to have a bearing of
South 29° 17 00” East fof purposes of this description; thence
southeasterly in a direct line to a point in a line having a
bearing of North 59° 01’ 38” East, said last-mentioned line to be
known as Line “A” for purposes of this description, distant
108.00 feet northeasterly measured along said Line “A” from
the southeasterly prolongation of said parallel line, said Line
“A” passes thrcugh a point, to be known as Point “A” for
purposes of this description, in said southeasterly prolongatidn
distant South 29° 17’ East 75.50 feet measured along said
southeasterly prolongation from said southwesterly prolonga-
tion of the northwesterly line of Lot 16; thence southeasterly
along a direct line to the TRUE POINT OF BEGINNING for
purposes of this description in the southwesterly line of said
Lot C, said last-mentioned direct line passes through a
point in the northeasterly prolongation of a line parallel with
and distant 20 feet southeasterly measured at righ les from
the southeasterly line of Lot 19, said Block 1, said last-men-
tioned parallel line to be known as Line “B” for of this
description, distant 136.35 feet — — along
said Line “B” from its point of intersection with said southeast-
erly prolongation, having a bearing of South 29° 17 East, said
point of intersection to be known as Point B“ for purposes of
this description; thence southeasterly in a direct line to a point
in a line having a bearing of North 59° 05 00° East, said last-
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mentioned line to be known as Line “C” for purposes of this
description, distant 144.56 feet northeasterly measured along
said Line “C” from the southeasterly prolongation of said
parallel line having a bearing of South 29°
17 East, said Line C“ passes through a point to be known as
Point “C” for purposes of this description, in said southeasterly
prolongation distant south 29° 17’ East 117.50 feet measured
along said southeasterly prolongation from said Point “B”;
thence southeasterly in a direct line to a point in the northeast-
erly prolongation of a line parallel with and distant 20 feet
southeasterly measured at right angles from the southeasterly
line of Lot 20, Block 2, said Del Rey Beach, said last-mentioned
parallel line to be known as Line “D” for purpose of this
description, distant 149.77 feet northeasterly measured along
said Line “D” from its point of intersection with said southeast-
erly prolongation, said point of intersection to be known as
Point D“ for purposes of this description; thence southeasterly
in a direct line to a point in a line having a bearing of North
59° 05’ 23” East, said last-mentioned line to be known as Line
“E” for purposes of this description, distant 152.98 feet north-
easterly measured along said Line “E” from said southeasterly
prolongation, said Line “E” passes through a point, to be known
as Point “E” for purposes of this description, in said southeast-
erly prolongation distant South 29° 17“ East 117.56 feet
measured along said southeasterly prolongation from said Point
“D”; thence southeasterly in a direct line to a point in the
northeasterly prolongation of a line parallel with and distant 20
feet southeasterly measured at right angles from the southeast-
erly line of Lot 20, Block 3 said Del Rey Beach, said last-
mentioned parallel line to be krown as Line F“ for purposes of
this description, distant 145.19 feet northeasterly measured
along said Line “F” from its point of intersection with said
southeasterly prolongation, said point of intersection to be
known as Point F“ for purposes of this description; thence
southeasterly in a direct line to a point in a line having a
bearing of North 59° 05 15” East, said last-mentioned line to be
e
154.40 feet northeasterly measured along said Line 0“
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said southeasterly prolongation, said Line G“ passes through a
point, to be known as Point G“ for purposes of this description,
in said southeasterly prolongation distant South 29° 17’ East
117.57 feet measured along said southeasterly prolongation
from said Point F“, thence southeasterly in a direct line to a
point in the northeasterly prolongation of a line parallel with
and distant 20 feet southeasterly measured at right angles from
the southeasterly line of Lot 20, Block 4 said Del Rey Beach,
said last- mentioned parallel line to be known as Line H“ for
purposes of this description, distant 147.60 feet northeasterly
measured along Mid Line H“ from its point of intersection
with said southeasterly — said point of interseetion
to be known as Point “H” for purposes of this description;
thence southeasterly in a direct line to a point in a line having a
bearing of North 59° 05 38” East, said last-mentioned line to be
known as Line “I” for purposes of this description, distant
140.82 feet northeasterly measured along said Line “I” from
said southeasterly prolongation, said Line “I” passes through a
point to be known as Point “I” for purposes of this description,
in said southeasterly prolongation distant South 29° 17’ East
117.61 feet measured along said southeasterly prolongation
from said Point “H”; thence southeasterly in a direct line to a
point in a line parallel with and distant 55 feet southeasterly
measured at right angles from said Line “I”, distant 16.9 feet
northeasterly measured along said last-mentioned parallel line
from said southwesterly line of Lot C; said
last-mentioned parallel line to be known as Line “J” for pur-
poses of this description; thence easterly in a direct line to a
point in a line parallel with and distant 13.3 féet southeasterly
measured at right angles from said Line “J” distant 57 feet
northeasterly measured along said last-mentioned parallel line
from said last-mentioned southwesterly line, said last-men-
tioned point to be known as Point “J”, for purposes of this
description, a line extending northwesterly in a direct line from
the intersection of a line parallel with and distant 11 feet
southeasterly measured at right angles from said Line “J” said
last-mentioned line to be known as Line “K” for purposes of
this description with a line extending northwesterly at right
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angles from a line parallel with and distant 12 feet southeast-
erly measured at right angles from said Line “J” which passes
through a point in said last-mentioned parallel line distant 72
feet northeasterly measured along said last-mentioned parallel
line from said last-mentioned southwesterly line said last-men-
tioned parallel line to be known as Line “L” for purposes of this
description, passes through a point in said Line “J” distant 60.9
feet northeasterly measured along said Line “J” from said last-
mentioned southwesterly line, said last-mentioned line
extending northwesterly in a direct line is to be known as Line
“M” for purposes of this description; thence northeasterly in a
direct line from said Point “J” to a point in said Line “M”
distant 5.0 feet northwesterly measured along said Line M“
from said Line “K”; thence northerly in a direct line to a point
in a line parallel with and distant 1 foot northeasterly
measured at right angles from said Line “M” distant 6.8 feet
northwesterly measured along said last-mentioned parallel line
from said Line K“ thence southeasterly along said last-men-
tioned parallel line to said Line “K”; thence northeasterly along
said Line “K” to a point to be known as Point K“ for purposes
of this description, in a line extending northwesterly at right
angles from said Line “L” which passes through a point in said
Line L“ distant 99.85 feet northeasterly measured along said
Line “L” from said last-mentioned southwesterly line, a line
extending northeasterly from said Point “K” passes through a
point in said Line “J” distant 56.15 feet southwesterly
measured along said Line “J” from the most southwesterly
northeasterly line f said Lot C; thence northeasterly along said
last-mentioned lire extending northeasterly 6.8 feet; thence
southeasterly in a direct line to a point ia a line parallél with
and distant | foot southeasterly measured at right angles from
said last-mentioned line extending northeasterly, distant 4.5
feet northeasterly measured along said last-mentioned line
extending northeasterly from said Line K“ thence easterly in
a direct line to the intersection of said Line K“ with a line
extending northwesterly at righ’ les from said Line L“
which passes through a point in ss.’ ine L“ distant 108 feet
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northeasterly imeasured along said Line L“ from said south-
westerly line o Lot C; thence northeasterly in a direct line to a
point in said Line “J” distant 17 feet southwesterly measured
along said Line “J” from said northeasterly line of Lot C;
thence northerly along a direct line which passes through a
point in said Line “I”, distant 6 feet northeasterly measured
along said line “I” from said last-mentioned northeasterly line
to said last-mentioned northeasterly line; thence northwesterly
along said last-mentioned northeasterly line to a point in a line
extending northwesterly in a direct line from said point in Line
“I” distant 6 feet northeasterly measured along said Line “I”
from said last-mentioned northeasterly line, to a point in said
Line “H” distant 15 feet southwesterly measured along said
Line “H” from said last-mentioned northeasterly line; thence
northwesterly along said last-mentioned direct line to said last-
mentioned point; thence northerly along a direct line which
passes through a point in said Line “G” distant 9 feet northeast-
erly measured along said Line “G” from said last-mentioned
northeasterly line to said last-mentioned northeasterly line;
thence northwesterly along said last-mentioned northeasterly
line to a line extending northwesterly in a direct line from a
point in said Line “A” distant 1 foot northeasterly measured
along said Line “A” from said last-mentioned northeasterly line
which passes through a point in the most northwesterly line of
said Lot C distant 6.35 feet southwesterly measured along said
last-mentioned northwesterly line from said last-mentioned
northeasterly line; thence northwesterly along said last-men-
tioned direct line to said last-mentioned northwesterly line;
thence southwesterly along said last-mentioned northwesterly
line to said southwesterly line of Lot C; thence southeasterly
along said last*mentioned southwesterly line to the TRUE
POINT OF BEGINNING.
A-66
APPENDIX A-6
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
THE CITY OF LOS ANGELES ) NO. 868 223
a municipal corporation, )
) JUDGMENT
Plaintf, ) AFTER TRIAL
vs. ) BY COURT
ETHEL FRASER )
CARMAN-RYLES, et al., )
Defendants. ) Department 23)
)
THE CITY OF LOS ANGELES, )
Acting by and )
through the State )
Lands Commission, )
Cross-Complainant, —
vs.
RUTH JONES WRIGHT, et al., )
Cross-defendants )
)
The above-entitled matter came on regularly for trial com-
mencing on February 18, 1975, before the Honorable Samuel
Greenfield, Judge Presiding, in Department 23 of the above-
entitled court without a jury. Burt Pines, City Attorney,
Norman L. Roberts, Assistant City Attorney, and Anthony P.
Parrille, Deputy City Attorney, by Anthony P. Parrille,
appeared for plaintiff and cross-defendant, THE CITY OF LOS
ANGELES. Loren Miller, Jr., William A. Dorland and Jack D.
Janofsky by William A. Dorland appered for defendant and
cross-defendant, SOUTHERN CALIFORNIA GAS COM-
PANY. Hill, Farrer & Burrill, William M. Bitting and Steven
W. Bacon by Wiiliam M. Bitting and Steven W. Bacon
*
A-67
appeared for defendant and cross-defendant, SUMMA
CORPORATION (formerly known as “Hughes Tool Com-
pany”). Evelle J. Younger, Attorney General, Alan V. Hager,
Jerold Krieger and Russell lungerich, Deputy Attorneys
General, by Russell Iungerich, appeared for defendant and
cross-complainant, the STATE OF CALIFORNIA. Pacht, Ross,
Warne, Bernhard and Sears, Inc., by Henry J. Shames and
Paul Hamilton, appeared for defendant and cross-defendant,
VENICE PENINSULA PROPERTIES. Mitchell and Mitchell
and David J. Pierce, by David J. Pierce, appeared for
defendants and cross-defendant, RUTH JONES-WRIGHT, and
for Cefendants and cross-defendants ROBERT D. BYRNE and
BYRNE C. MANSON as trustees under the Will of Olive
Byrne Jones, deceased.
Pursuant to stipulation of the parties and good cause appear-
ing therefor, on April 24, 1975, trial of the matter was ordered
bifurcated. Thereafter, between April 24, 1975 and May 13,
1975 the court heard the testimony and examined the proof
offered by the parties pertaining to the first stage of the trial.
Following trial on the first stage of the trial and post trial
proceedings, Findings of Fact and Conclusions of Law were
executed by the Court on February 22, 197’, determining the
issues as to the existence of easements and as to the geographi-
cal boundaries of said easements in Lot C of Del Rey Beach
Subdivision only (that portion lying northwesterly of the
Marina del Rey entrance channel).
Thereafter, a stipulation among all defendants, excluding:
SUMMA and SOUTHERN CALIFORNIA GAS COMPANY,
was ted and filed with the court on August 10, 1977.
Thereby those parties executing same agreed to the geographi-
cal boundaries of the State’s and City’s easements within Lot R
of the Silver Strand Subdivision, waived trial on the issue of
the geographical boundaries within said Lot R, and consented
to a judgment being entered as to said boundaries, said judg-
ment however being subject to a right to appeal therefrom.
A-68
Both the first and second stages of the bifurcated trial having
been concluded, the court having heard the testimony, con-
sidered the evidence and the court having already filed its
Findings of Fact and Conclusions of Law and having con-
sidered and reviewed said stipulation:
IT IS THEREFORE ADJUDGED, DETERMINED AND
DECREED:
I. That the STATE OF CALIFORNIA holds in trust for the
People of the State of California an easement for navigation,
commerce and fisheries in, over, upon and under the waters of
the Ballona Lagoon up to the line of the Mean High Tide
within portions of Lot C of the Del Rey Beach Subdivision and
within portions of Lot R of the Silver Strand Subdivision more
particularly described in those exhibits attached hereto and
made a part hereof entitled “Mean High Tide Line of that
portion of the Ballona Lagoon within Lot C Del Rey Beach”
and “Mean High Tide Line of that portion of the Ballona
Lagoon within Lot R, Silver Strand Subdivison.”
2. The public has an easement in the same portions of Lots C
and R for the passage of fresh sea water from the Pacific Ocean
through the Ballona Lagoon to the Venice Canals.
Said portions of Lots C and R are also subject to an easement
for genera: purposes of water recreation.
3. The State of California, its successors and/or assigns has
the right to open, dredge, construct sea walls or otherwise
improve the subject property without prior exercise of the right
of eminent domain or payment of compensation.
4. The right of the State of California is paramount to the
right of the Southern California Gas Company, the holder of a
pipeline easement within the portions of Lot C of Del Rey
Beach Subdivision described in Exhibit 89.
5. The City of Los Angeles is the owner of an easement for
public streets or waterways in all of the real property described
and designated as Lot C of the Del Rey Beach Subdivision and
as Lot R of the Silver Strand Subdivision, the easements
therein were offered for recordation of the Tract Maps of said
A-69
subdivisions. Acceptance was by the sale of some of the lots
abutting Lots C and R and by public use of Lots C and R.
6. Each party is ordered to bear its own costs of suit herein.
The Clerk is ordered to enter this Judgment.
DATED: October 11, 1977.
/s/ Samuel Greenfield
SAMUEL GREENFIELD
Judge of the Superior Court
A-70
[Exhibit to Judgment]
MEAN HIGH TIDE LINE OF THAT PORTION OF THE
BALLONA LAGOON WITHIN LOT C,
DEL REY BEACH
That portion of Lot C, Del Rey Beach, per map recorded in
Book 6, page 186 of Maps, in the office of the County Recorder
oi Los Angeles County, bounded and described as follows:
Commencing at a point in the northwesterly line of Lot 16,
Block 1, said Del Rey Beach, distant 105.38 feet northeasterly
measured along said northwesterly line and its southwesterly
prolongation from a line parallel with and distant 20 feet
southwesterly measured at right angles from the southwesterly
line of said Lot 16, said parallel line is to have a bearing of
South 29° 17 00” East for purposes of this description; thence
southeasterly in a direct line to a point in a line having a
bearing of North 59° 01’ 38” East, said last-mentioned line to be
known as Line “A” for purposes of this description, distant
108.00 feet northeasterly measured along said Line “A” from
the southeasterly prolongation of said parallel line, said Line
“A” passes through a point, to be known as Point “A” for
purposes of this description, in said southeasterly prolongation
distant South 29° 17 East 75.50 feet measured along said
southeasterly prolongation from said southwesterly prolonga-
tion of the northwesterly line of Lot 16; thence southeasterly
along a direct line to the TRUE POINT OF BEGINNING for
purposes of this description in the southwesterly line of said
Lot C, said last-mentioned direct line passes through a
point in the northeasterly prolongation of a line parallel with
and distant 20 feet southeasterly measured at right angles from
the southeasterly line of Lot 19, said Block 1, said last-men-
tioned parallel line to be known as Line “B” for purposes of this
description, distant 136.35 feet northeasterly measured along
said Line “B” from its point of intersection with said southeast-
erly prolongation, having a bearing of South 29° 17 East, said
point of intersection to be known as Point B“ for purposes of
this description; thence southeasterly in a direct line to a point
in a line having a bearing of North 59° 05 00" East, said last-
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mentionec line to be known as Line “C” for purposes of this
description, distant 144.56 feet northeasterly measured along
said Line “C” from the southeasterly prolongation of said
parallel line having a bearing of South 29°
17 East, said Line C“ passes through a point to be known as
Point “C” for purposes of this description, in said southeasterly
prolongation distant south 29° 17’ East 117.50 feet measured
along said southeasterly prolongation from said Point B“,
thence southeasterly in a direct line to a point in the northeast-
erly prolongation of a line parallel with and distant 20 feet
southeasterly measured at right angles from the southeasterly
line of Lot 20, Block 2, said Del Rey Beach, said last-mentioned
parallel line to be known as Line “D” for purpose of this
description, distant 149.77 feet northeasterly measured along
said Line “D” from its point of intersection with said southeast-
erly prolongation, said point of intersection to be known as
Point “D” for purposes of this description; thence southeasterly
in a direct line to a point in a line having a bearing of North
59° 05’ 23” East, said last- mentioned line to be known as Line
“E” for purposes of this description, distant 152.98 feet north-
easterly measured along said Line “E” from said southeasterly
prolongation, said Line “E” passes through a point, to be known
as Point “E” for purposes of this description, in said southeast-
erly prolongation distant South 29° 17’ East 117.56 feet
measured along said southeasterly prolongation from said Point
“D”; thence southeasterly in a direct line to a point in the
northeasterly prolongation of a line parallel with and distant 20
feet southeasterly measured at right angles from the southeast-
erly line of Lot 20, Block 3 said Del Rey Beach, said last-
mentioned parallel line to be known as Line “F” for purposes of
this description, distant 145.19 feet northeasteriy measured
along said Line F“ from its point of intersection with said
southeasterly prolongation, said point of intersection to be
known as Point “F” for purposes of this description; thence
southeasterly in a direct line to a point in a line having a
bearing of North 59° 05 15” East, said last-mentioned line to be
known as Line “G” for purposes of this description, distant
154.40 feet northeasterly measured along said Line G“ from
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said southeasterly prolongation, said Line “G” passes through a
point, to be known as Point “G” for purposes of this description,
in said southeasterly prolongation distant South 29° 17’ East
117.57 feet measured along aid southeasterly prolongation
from said Point F“; thence southeasterly in a direct line to a
point in the northeasterly prolongation of a line parallel with
and distant 20 feet southeasterly measured at right angles from
the southeasterly line of Lot 20, Block 4 said Del Rey Beach,
said last-mentioned parallel line to be known as Line “H” for
purposes of this description, distant 147.60 feet northeasterly
measured along said Line “H” from its point of intersection
with said southeasterly prolongation, said point of intersection
to be known as Point H“ for purposes of this description;
thence southeasterly in a direct line to a point in a line havinga
bearing of North 59° 05’ 38” East, said last-mentioned line to be
known as Line “I” for purposes of this description, distant
140.82 feet northeasterly measured along said Line “I” from
said southeasterly prolongation, said Line “I” passes through a
point to be known as Point “I” for purposes of this description,
in said southeasterly prolongation distant South 29° 17° East
117.61 feet measured along said southeasterly prolongation
from said Point H“; thence southeasterly in a direct line to a
point in a line parallel with and distant 55 feet southeasterly
measured at right angles from said Line “I”, distant 16.9 feet
northeasterly measured along said last-mentioned parallel line
from said southwesterly line of Lot C; said
last-mentioned parallel line to be known as Line “J” for pur-
poses of this description; thence easterly in a direct line to a
point in a line parallel with and distant 13.3 feet southeasterly
measured at right angles from said Line “J” distant 57 feet
northeasterly measured along said last-mentioned parallel line
from said last- mentioned southwesterly line, Said last-men-
tioned point to be known as Point “J”, for purposes of this
description, a line extending northwesterly in a direct line from
the intersection of a line parallel with and distant 11 feet
southeasterly measured at right angles from said Line “J” said
last-mentioned line to be known as Line “K” for purposes of
this description with a line extending northwesterly at right
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angles from a line parallel with and distant 12 feet southeast-
erly measured at right angles from said Line “J” which passes
through a point in said last-mentioned parallel line distant 72
feet northeasterly measured along said last-mentioned parallel
line from said last-mentioned southwesterly line said last-men-
tioned parallel line to be known as Line “L” for purposes of this
description, passes through a point in said Line “J” distant 60.9
feet northeasterly measured along said Line “J” from said last-
mentioned southwesterly line, said last-mentioned line
extending northwesterly in a direct line is to be known as Line
“ for purposes of this description; thence northeasterly in a
direct line from said Point “J” to a point in said Line “M”
distant 5.0 feet northwesterly measured along said Line “M”
from said Line “K”; thence northerly in a direct line to a point
in a line parallel with and distant 1 foot northeasterly
measured at right angles from said Line “M” distant 6.8 feet
northwesterly measured along said last-mentioned parallel line
from said Line “K”; thence southeasterly along said last-men-
tioned parallel line to said Line “K”; thence northeasterly along
said Line K“ to a point to be known as Point K“ for purposes
of this description, in a line extending northwesterly at right
angles from said Line “L” which passes through a point in said
Line “L” distant 99.85 feet northeasterly measured along said
Line “L” from said last-mentioned southwesterly line, a line
extending northeasterly from said Point K“ passes through a
point in said Line “J” distant 56.15 feet southwesterly
measured along said Line “J” from the most southwesterly
northeasterly line of said Lot C; thence northeasterly along said
last-mentioned line extending northeasterly 6.8 feet; thence
southeasterly in a direct line to a point in a line parallel with
and distant 1 foot southeasterly measured at right angles from
said last-mentioned line extending northeasterly, distant 4.5
feet northeasterly measured along said last-mentioned line
extending northeasterly from said Line “K”; thence easterly in
a direct line to the intersection of said Line K“ with a line
extending northwesterly at right angles from said Line “L”
which passes through a point in said Line L“ distant 108 feet
A-74
northeasterly measured along said Line “L” from said south-
westerly line of Lot C; thence northeasterly in a direct line to a
point in said Line “J” distant 17 feet southwesterly measured
along said Line “J” from said northeasterly line of Lot C;
thence northerly along a direct line which passes through a
point in said Line “I”, distant 6 feet northeasterly measured
along said line “I” from said last-mentioned northeasterly line
to said last-mentioned northeasterly line; thence northwesterly
along said last-mentioned northeasterly line to a point in a line
extending northwesterly in a direct line from said point in Line
“I” distant 6 feet northeasterly measured along said Line “I”
from said last-mentioned northeasterly line, to a point in said
Line “H” distant 15 feet southwesterly measured along said
Line “H” from said last-mentioned northeasterly line; thence
northwesterly along said last-mentioned direct line to said last-
mentioned point; thence northerly along a direct line which
passes through a point in said Line “G” distant 9 feet northeast-
erly measured along said Line “G” from said last-mentioned
northeasterly line to said last-mentioned northeasterly line;
thence northwesterly along said last-mentioned northeasterly
line to a line extending northwesterly in a direct line from a
point in said Line “A” distant 1 foot northeasterly measured
along said Line “A” from said last-mentioned northeasterly line
which passes through a point in the most northwesterly line of
said Lot C distant 6.35 feet southwesterly measured along said
last-mentioned northwesterly line from said last-mentioned
northeasterly line; thence northwesterly along said last-men-
tioned direct line to said last-mentioned northwesterly line;
thence southwesterly along said last-mentioned northwesterly
line to said southwesterly line of Lot C; thence southeasterly
along said last-mentioned southwesterly line to the TRUE
POINT OF BEGINNING.
A-75
[Exhibit to Judgment]
MEAN HIGH TIDE LINE OF THAT PORTION
OF THE BALLONA LAGOON WITHIN LOT R,
SILVER STRAND
PARCEL 1
That portion of Lot R, Silver Strand per map recorded in
Book 7, pages 86 and 87, of Maps, in the office of the County
Recorder of Los Angeles County, bounded and described as
follows:
Beginning at a point in that certain course in the southeast-
erly line of said Lot R shown as having a bearing and length of
North 62° 07’ East 149.02 feet on said map distant 26 feet
northeasterly measured along said course from the most
southerly corner of said lot; thence northwesterly in a direct
line to the intersection of the southwesterly line of said lot with
a line parallel with and distant 20 feet northwesterly measured
at right angles from the northwesterly line of Lot Q said tract;
thence northwesterly in a direct line to a point in the southwest-
erly prolongation of a line parallel with and distant 7.5 feet
northwesterly measured at right angles from the northwesterly
line of Lot 6, Block 17 said Silver Strand distant 9 feet north-
_ easterly measured along said southwesterly prolongation from
said southwesterly line said southwesterly prolongation is to be
hereainafter referred to as Line “A”; thence northwesterly in a
direct line to a point in a line which extends southwesterly —
from the intersection of a line parallel with and distant 20 feet
northwesterly measured at right angles from the northwesterly
line of Lot 1 said Block 17, with a line parallel with and distant
5 feet southwesterly measured at right angles from the south-
westerly line of said Lot 1 and which passes through the
intersection of said southwesterly line of Lot R with a line
parallel with and distant 20 feet northwesterly measured at
right angles from the northwesterly line of Lot P said tract
distant 5 feet northeasterly measured along said line extending
southwesterly from said southwesterly line of Lot R, said line
extending southwesterly is to be hereinafter referred to as Line
B; thence northwesterly along a direct line which passes
A-76
through a point in the southwesterly prolongation of a line
parallel with and distant 7.5 feet northwesterly measured at
right angles from the northwesterly line of Lot 6, Block 16 said
tract distant 6 feet southwesterly measured along said last-
mentioned southwesterly prolongation from said southwesterly
line of Lot R to said southwesterly line of Lot R said last-
mentioned southwesterly prolongation is to be hereinafter
referred to as Line C thence northwesterly along said south-
westerly line of Lot R to a point distant 675.14 feet northwest-
erly measured along said southwesterly line of Lot R from said
most southerly corner; thence northeasterly at right angles
from said southwesterly line of Lot R to the northeasterly line
of Lot R; thence southeasterly along said northeasterly line of
Lot R to a line which extends southeasterly from a point in a
line parallel with and distant 5 feet southwesterly measured at
right angles from the southwesterly line of Lot 1 said Block 16
distant 1 foot northerly measured along said last-mentioned
parallel line from its intersection with a line parallel with and
distant 20 feet northwesterly measured at right angles from the
northwesterly line of said last-mentioned Lot 1 and which
passes through the intersection of a line parallel with and
distant 3 feet northwesterly measured at right angles from Line
“C” with a line parallel with and distant 6 feet southwesterly
measured at right angles from said northeasterly line of Lot R;
thence southeasterly along said line extending southeasterly to
said last-mentioned intersection; thence southeasterly in a
direct line to the intersection of a line parallel with and distant
25 feet southeasterly measured at right angles from line “C”
with a line parallel with and distant 3 feet southwesterly
measured at right angles from said northeasterly line of Lot R;
thence southeasterly in a direct line to a point in Line “B”
distant 7 feet southwesterly measured along Line “B” from said
northeasterly line of Lot R; thence southeasterly along a direct
line which passes through a point in Line “A” distant 5 feet
northeasterly measured along Line “A” from said northeast-
erly line of Lot R to said northeasterly line of Lot R; thence
southeasterly along said northeasterly line of Lot R to the
northeasterly terminus of said course having a bearing and
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length of North 62° 07’ East 149.02 feet; thence southwesterly
along said last-mentioned course to the point of beginning.
PARCEL 2
That portion of Lot R Silver Strand per map recorded in
Book 7, pages 86 and 87, of Maps, in the office of the County
Recorder of Los Angeles County, bounded and described as
follows:
Beginning at a point in the southwesterly line of said Lot R
distant 675.14 feet northwesterly measured along said south-
westerly line from the most southerly corner of said lot; thence
northwesterly along said southwesterly line to a line which
extends northwesterly from a point in a line parall
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