Amicus Brief — Summa Corp. v. California ex rel. State Lands Commission

* 4

No. 82-708

In the Supreme Court >

United States

Octosper Term, 1982

Summa CorporaTION,

Petitioner,

vs.

Strate or Cauiroryia ex rel. State Lanps ComMMISSION AND

Crry or Los ANGELEs,

Respondents.

MOTION FOR LEAVE TO FILE BRIEF

AS AMICI CURIAE

AND

AMICI CURIAE BRIEF OF THE

NATIONAL AUDUBON SOCIETY AND

THE SIERRA CLUB

In Support of Respondents on Writ of Certiorari

to the Supreme Court of California

PALM Brown Mappen

COUNSEL OF RECORD

Lx Da AGERTER

Vax Voornis & Ska

1855 Olympie Boulevard.

Third Floor

P.O. Box V

Walnut Creek, CA 94596

Telephone : (415) 937-8000

Counsel for Amici Curiae

SOWNE OF Am PRANCISTD. NC + 180 NINTH OT +09 CA 0188+ (418) 606-2800

TABLE OF CONTENTS

I

Motion for leave to file brief as amici curiae ..................

The Interest of the National Audubon Society and the

Sierra Club in this proceeding ....0...............0...c.ccceoceseee

II

The proposed amici curiae brieefffkk

III

D ˙² vw -

Amici curiae brief of the National Audubon Society

and the Sierra Club ............................. a e

The Interest of the National Audubon Society and

11 —K——K —

./ = dutediabiabiie

EE AE AN ee PO

The public trust doctrine has long made tidelands

subject to paramount public rights —...00000........

A. The public trust doctrine is widespread and

well-established in American law ..................

B. Protection of public trust rights is deeply

rooted in California real property law as

well as in the California constitution, and

is a fundamental state policy

ii

TABLE OF CONTENTS

8

II

The Tidelands of Ballona Lagoon were impressed with

a public trust easement under Mexican rule and the

public trust was not extinguished by the confirmation

. — . 17

A. Under Mexican law prior to cession, private land

grants were subject to public trust rights 17

B. The confirmation of the Mexican grant did not

destroy public trust rights in the Ballona Lagoon

, ͤ . 20

III

State law governs whether the Ballona Lagoon tide-

lands are subject to the public true 25

IV

r d . re mR NY 26

iii

TABLE OF AUTHORITIES CITED

Cases

Page

Abbot’s Ex'r v. Doe, 5 Ala. 393 (1843 10

Amaya v. Stanolind Oil & Gas Co., 158 F.2d 554 (5th

Cir. 1946), cert. denied, 331 U.S. 808 (19477 26

Apalachicola Land & Development Co. v. McRae, 86

Fla. 393, 98 So. 505 (1923), error dismissed, 269 U. S.

r 8 18

Andrus v. Charlestone Stone Products Co., 436 U.S.

604 (1978 Sar aS A DS T—— 23

Arnold v. Mundy, 6 N.J.L. 3 (1821) 22... eee 10

Barker v. Harvey, 181 U.S. 481 (1901) 21

. i

Rell v. Gough, 23 N.J.L. 624 (1852 10

Boquillas Land & Cattle Co. v. Curtis, 213 U.S. 339

ee EA ee Oe 25

Brickell v. Trammel, 77 Fla. 544, 82 So. 221 (1919) 20

Brown v. Chadbourne, 31 Me. 9 (1849999 10, 11

Charles River Bridge v. Warren Bridge, 36 U.S. (11

I 24

Chitimacha Tribe of Louisiana v. Harry L. Laws Co.,

690 F. 2d 1157 (5th Cir. 1982) das 23

City of Berkeley v. Superior Court, 26 Cal. 3d 515, cert.

denied, 449 U.S. 840 (1980) 23

City of Galveston v. Mann, 135 Tex. 319, 143 S.W.2d

1028 (1940) 11

City of Long Beach v. Mansell, 3 Cal. 3d 462, 476 P. 2d

. 8 20

City of Los Angeles v. Venice Peninsula Properties, 31

Cal. 3d 288, 644 P. 2d 792 (19827 eee 6

/

iv

Tasie or AvTHorities Crrep

Cases

Page

Collins v. Gerhardt, 237 Mich. 38, 211 N.W. 115 (1926) 24

Commonwealth v. Inhabitants of Charlestown, 18 Mass.

. ... 10

Curry v. Hill, 460 P. 2d 933 (Okla. 1969999 11

Devine v. Los Angeles, 202 U.S. 313 (1906) 25

Dietz v. King, 2 Cal. 3d 29, 465 P. 2d 50 (191 16

Diona Shooting Club v. Husting, 156 Wis. 261, 145

. 11,12

Eldridge v. Cowell, 4 Cal. 80 (1854h4d!ꝗ„ö 14. 15

Fremont v. United States, 58 U.S. (17 How.) 541 (1854) 22

Great Northern Railway Co. v. United States, 315 U.S.

Sr 23

Gulf Oil Corp. v. State Mineral Board, 317 So. 2d 576

ccc 11,18

Guy v. Hermance, 5 Cal. 73 (18559) 14

Hardin v. Jordan, 140 U.S. 371 (1891) — 25, 26

Hooker v. Los Angeles, 188 U.S. 314 (1903 25

Hudson County Water Co. v. McCarter, 209 U.S. 349

See ea ae 14

Humble Oil & Refining Co. v. Sun Oil Company, 190

F.2d 191 (5th Cir. 1951), cert. denied, 342 U.S. 920

ꝓ —— 17

Hume v. — apd esate 241, 92 P.

1065 (1907) —— —ę-—-— — 11

Hyman v. State Lands Commission, 543 F. Supp. 118

. ͤ dndanepedilinidind 25

V

Tant or AvTHorities Crrep

Cases

Illinois Central Railroad v. Illinois, 146 U.S. 387

RE Ea A ee 10, 11, 23

Inhabitants of West Roxbury v. Stoddard, 89 Mass. (7

1 — ee eS 12

International Paper Co. v. Mississippi State Highway

Dept., 271 So. 2d 395 (Miss. 1972), cert. denied, 414

EY TEE — —— . 11

Jover v. Insular Government: 221 U.S. 623 (1911) 19

Just v. Marinette County, 56 Wash. 2d 7, 201 N. W. 2d

. 12, 13

Kaiser Aetna v. United States, 444 U.S. 164 (1979) 13

Kimball v. MacPherson, 46 Cal. 103 (1873) 15

Lamprey v. Metcalf, 52 Minn. 181, 53 N.W. 1139 (1893) 12

Long Sault Development Co. v. Kennedy, 212 N.Y. 1,

105 N.E. 849 (1914), error dismissed, 242 U.S. 272

Fee 11

Los Angeles Farming & Milling Co. v. Los Angeles, 217

U.S. 217 (1910) ........ 25

Luscher v. Reynolds, 153 Or. 625, 56 P. 2d 1158 (1936)..11, 24

Luttes v. State, 159 Tex. 500, 324 S.W.2d 167 (1958).....17, 25

Lux v. Haggin, 69 Cal. 255, 10 P. 674 (1886) 16, 19

Marks v. Whitney, 6 Cal. 3d 251, 491 P.2d 374 (1971)....12, 26

Martin v. Waddell, 41 U.S. (16 Pet.) 366 (1842) 10, 13

Massachusetts v. New York, 271 U.S. 65 (1926) 24

Muench v. Publie Service Comm'n, 261 Wis. 492, 53

N.W.2d 514, aff'd on eT Wis. 515C, 55

N.W.2d 40 (1952) s 12

vi

Tan or AvtTHorities Crrep

Cases

Neptune City v. Avon-By-The-Sea, 61 N.J. 296, 294 A.2d

A a he ee 10, 12

Nevada v. Bunkowski, 88 Nev. 623, 503 P.2d 1231

(1972) ......... ——— 11, 25

—— tench aenahiicisoutamiiaaanantia’ 23

New Orleans Land Co. v. Board of Levee Commission-

ers, 171 La. 718, 132 So. 121 (1930), aff'd, 283 U.S.

809 (1931) .................: 6 Te OE AS TOON 18

Obrecht v. National Gypsum Co., 361 Mich. 399, 105

r 14

Oregon ex rel. State Land Board v. Corvallis Sand &

Gravel Co., 429 U.S. 363 (197777 ———— 25, 26

People ex rel. Scott v. Chicago Park Dist., 66 III. 2d 65,

360 N. E. 2d 773 (1976) 4

People ex rel. Webb v. California Fish Co., 166 Cal.

576, 138 P. 79 (1913) ä 15

Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845) 10

Priewe v. Wisconsin State Land Improvement Co., 93

Wis. 534, 67 N. W. 918 (1896) 11

Rhode Island Motor Co. v. City of Providence, 55 A. 696

(R. I. 1903) 11

Robbins v. Dept. of Public Works, 355 Mass. 328, 244

N.E.2d 577 (1969) 11

Southern Idaho Fish & Game Ass 'n v. Picabo Livestock

Co., 96 Idaho 360, 528 P. 2d 1295 (1974) 12

St. Anthony Falls Water Power Co. v. St. Paul Water

Commissioner, 168 U.S. 346 (1897) 24

vii

Tat or Autuorities Crrep

Cases

Page

State v. Black River Phosphate Co., 32 Fla. 82, 13 So.

rr 24

State v. Hardee, 259 S.C. 535, 193 8. E. 2d 497 (1972) —— 11

State by Kobayashi v. Zimring, 58 Haw. 106, 566 P. 2d

„„ 11

State ex rel. Brown v. Newport Concrete Co., 44 Ohio

App. 2d 121, 336 N. E. 2d 453 (197090 12

Swan Island Club, Inc. v. Yarbrough, 209 F. 2d 698 (4th

. 1 23

Taylor v. Underhill, 40 Cal. 471 (1871) 3 15

Toomer v. Witsell, 334 U.S. 385 (1948) )))) 10

Townsend v. Greeley, 72 U.S. (5 Wall.) 326 (1867) 22

Township of Grosse Isle v. Dunbar & Sullivan Dredging

Co., 15 Mich. App. 556, 167 N.W.2d 311 (1969) 12

United States v. Coronado Beach Co., 255 U.S. 452

— aa 21

United States v. Holt State Bank, 270 U.S. 49 (1926) ... 24

United States v. 1,078.27 Acres of Land, 446 F.2d 1030

(5th Cir. 1971), cert. denied, 405 U.S. 936 (1972) 23

United States v. 2,899.17 Acres of Land, 269 F.Supp.

903 (M.D. Fla. 1967) 24

Walton v. United States, 415 F.2d 121 (10th Cir. 1969) 23

Ward v. Mulford, 32 Cal. 365 (1867) 14, 19

Wilbour v. Gallagher, 77 Wash. 2d 306, 462 P.2d 232

(1969), cert. denied, 400 U.S. 878 (1970) 200000000... 12

Tan or AvTHorities Crrep

Constitutions

Page

California Constitution:

t ae EP A 15

t 14

United States Constitution, Fourteenth Amendment 19

Statutes

California Civil Code: :

r — 16

r 16

California Government Code, Sections 54090-54093 ... 16

California Pub. Res. Code:

ES TN Gees ACME Mem OORT 16

r 16

. ˙ 16

— nates 16

rer wi . 16

ET AA 16

Gther Authorities

Act of March 3, 1851, 9 Stat. 611 ~ 23

California Beach Access: The Mexican Law And The

Public Trust, 2 Ecology L.Q. 571 (1972) 18

Clark, Waters and Water Rights:

§ 36.4( A), at 196-197 (1967) 10

§ 36.4(B), at 202 (1967) 13

§ 305.1(D), at 10 (1%) 12

*

Tasiz or Aur norris Crrep

Orner AUTHORITIES

7 Page

Comment, The Tidelands Trust; Economic Currents in

a Traditional Legal Doctrine, 21 U.C.L.A. L. Rev.

826 (1974 E ‘ 7

Johnson and Austin, Recreational Rights and Titles to

Beds on Western Streams, 7 Nat. Resources J. 1

. 11

Las Siete Partidas, Title 28, Law 3, CCH (Spain) (1931)

1 ceccctcccncececnpescscttncicintneccenesenttitty 7, 17, 18

MacGrady, The Navigability Concept In The Civil And

Common Law: Historie Development, Current Impor-

tance, And Some Doctrines That Don’t Hold Water,

3 Fla. St. U.L. Rev. 511 (19755 9,18

Sax, The Public Trust Doctrine in Natural Resource

Law : Effective Judicial Intervention, 68 Mich. L.Rev.

473 (1970) 13

The Loss of Public Tidelands to Private Parties

Through Unconstitutional Land Trades, 13 U.S.F.L.

Rev. 39 (1978) 3

The Public Trust in Tidal Areas: A Sometimes Sub-

merged Doctrine, 79 Yale L.J. 762 (19700) a

Treaty of Guadalupe Hidalgo 20, 26

No. 82-708

In the Supreme Court

OF THE

* United States

Ocroper Term, 1982

Summa Corporation,

Petitioner,

vs.

Strate or Caurrornia ex rel. Stare Lanps Com MISSION AND

Crry or Los ANnGELEs,

Respondents.

MOTION FOR LEAVE TO FILE BRIEF

AS AMICI CURIAE

The National Audubon Society and the Sierra Club

request leave to file the accompanying amici curiae brief

in support of respondents State of California ex rel. State

Lands Commission and City of Los Angeles.

The National Audubon Society and the Sierra Club ap-

peared below as amici curiae in the proceedings before the

California Supreme Court. Respondents State of California

and City of Los Angeles have consented to the filing of the

accompanying brief. Although the California Land Title

Association and the Pacific Legal Foundation, as well as

the United States, have filed amicus curiae briefs in support

of petitioner Summa Corporation, petitioner has refused

to agree to the appearance of the National Audubon Society

and the Sierra Club as am urige.

2

I

THE INTRREST OF THE NATIONAL AUDUBON

SOCIETY AND THE SIERRA CLUB IN THIS

PROCEEDING

The National Audubon Society is a non-profit New York

corporation, founded in 1905, which has more than 450,000

members. The National Audubon Society has a long-stand-

ing interest in wildlife, most particularly in birds. The

Sierra Club has 350,000 members, 130,000 of whom are

concerned California citizens. Residents of the California

coast are among the members of both the National Audubon

Society and the Sierra Club.

The applicants and their respective membership share a

deep concern for the preservation of California’s wetland

resources and in the protection of the public’s interest in

and right of access to the tidelands of this state. Wildlife,

and birds in particular, are dependent upon wetlands, rivers

and lakes for food, nesting grounds, and resting areas.

Tidelands also play an important role in the ecology of

the ocean, providing an effective natural cleaning mecha-

nism for ocean water and a productive breeding ground

for ocean fish. The members of applicants enjoy the unde-

veloped tidelands of California, including those at issue in

this litigation, for hiking, fishing, swimming, bird-watching

and scientific study.

Unfortunately, these wetland areas are particularly desir-

able for development. Approximately 67 percent of Cali-

fornia’s historic coastal wetlands have been lost statewide,

and 90 percent of the historic coastal wetlands in Southern

California have been destroyed. See Martyn and Bohner,

The Loss of Public Tidelands to Private Parties Through

Unconstitutional Land Trades, 13 U.S.F.L. Rev. 39, 41

(1978). The few remaining natural tidal areas are of irre-

placeable value.

Ballona Lagoon is of particular interest to applicants,

because it is one of the few remaining tideland areas

readily accessible to the residents of the Los Angeles metro-

politan area. Ballona Lagoon, an estuary in the Marina Del

Rey area of the City of Los Angeles, is a major habitat

for a variety of waterfowl, including two endangered

species, the California Least Tern and the Belding’s Savan-

nah Sparrow. The lagoon, of natural origin, is a remnant

of an ancient coastal eco-system. (App. 173, 191). Ballona

Lagoon has existed in its current form for approximately

1,000 years. (App. 192). The lagoon, although protected

from the open sea by a narrow barrier beach, is subject to

the tides of the Pacific Ocean. (App. 173). Ballona Lagoon

has significant scientific and educational value, and has

been used by the public for boating, swimming, fishing,

hunting, clamming and bird-watching since the 1800's.

Applicants’ interest, however, extends beyond the narrow

issue of protecting what remains of Ballona Lagoon, for

in this litigation petitioner has taken certain positions that

applicants believe would divest California's tidelands of

legal protection that has heretofore existed. In the briefs

filed with this Court, petitioner, and amici curiae the Cali-

fornia Land Title Association and the Pacific Legal Foun-

dation, portray the public trust doctrine applied in this case

as an aberration recently developed by the California Su-

preme Court to destroy private property rights in tidelands.

4

Applicants are particularly disturbed that the Solicitor

General condones this effort. As representatives of the ulti-

mate beneficiaries of the public trust in California and

elsewhere, applicants believe their participation in this case

would provide a much needed perspective.

II

THE PROPOSED AMICI CURIAE BRIEF

Applicants’ proposed brief as amici curiae focuses on a

point that has received scant, even scornful, attention from

petitioner and amici curiae: The pervasiveness of the

deenly-rooted doctrine that tidelands are held in trust by

a sovereign for its citizenry. _

The California be Court’s affirmation of the public

trust rights in Lagoon followed well-established

California property law that has received constitutional and

statutory confirmation. The importance of public trust

rights is shown by the rigorous protection of these rights

by numerous other states. The public trust doctrine is also

a part of civil law, and under Mexican rule the tidelands of

Ballona Lagoon were impressed with a public trust servi-

tude. Control over trust lands is an inherent attribute of

sovereignty which the proceedings confirming title to the

Rancho La Ballona grant did not extinguish. Instead, that

authority passed to California upon its admission. In hold-

ing that the tidelands of Ballona Lagoon are subject to the

same public trust rights as exist in all other California

tidelands, the California Supreme Court did not offend

the provisions of the Treaty of Guadalupe Hidalgo nor

impair any federal right. Consequently, the lower court's

decision should not be disturbed.

5

III

CONCLUSION

The National Audubon Society and the Sierra Club have

often represented those who use and enjoy significant nat-

ural resources like Ballona Lagoon in cases such as this.

The deep involvement of applicants in this and other Cali-

fornia decisions applying the public trust doctrine makes

applicants particularly well-qualified to comment upon the

decision below. According, the National Audubon Society

and the Sierra Club ask leave to file the accompanying brief

as amici curiae.

\ Respectfully submitted,

—

Patmer Brown Mappen

Lix Da AcEeRTeR

Van Voornis & Ska

1855 Olympic Boulevard,

Third Floor

P.O. Box V

Walnut Creek, CA 94596

Counsel for Amici Curiae

6

No. 82-708

In the Supreme Court

OF THE

United States

Ocroser Term, 1982

Summa CorporaTIon,

Petitioner,

vs.

Strate or Cauirornia ex rel. Stare Lanps ComMissiON AND

Crry or Los ANGELEs,

Respondents.

AMICI CURIAE BRIEF OF THE

NATIONAL AUDUBON SOCIETY AND

THE SIERRA CLUB

THE INTEREST OF THE NATIONAL AUDUBON

SOCIETY AND THE SIERRA CLUB

The interest of the National Audubon Society and the

Sierra Club is set forth in the preceding motion for leave

to file this brief.

OPINION BELOW

The opinion of the California Supreme Court is reported

at City of Los Angeles v. Venice Peninsula Properties, 31

Cal. 3d 288, 644 P.2d 792 (1982).

STATEMENT OF THE CASE

Amici Curiae adopt the statement of the case of

respondents.

7

SUMMARY OF ARGUMENT

Tidelands are a limited, exhaustible resource that

uniquely serve public needs for navigation, fishing, and

recreation.’ Contrary to the argument of petitioner and

those amici who support petitioner, California’s rigorous

protection of its coastal resources is not unique. In claim-

ing otherwise, petitioner is asking this Court to turn its

back on centuries of law. Tidelands have been granted

snecial legal status since Justinian. England, France and

Spain adhered to this tradition. Public trust cases are to

be found among the first reported state cases. This Court

and the state courts have recognized that a state holds

tidelands in trust for its citizenry. The public trust doc-

trine has long been an integral part of the property law of

California. Contrary to petitioner’s argument, the public

trust doctrine has not suddenly emerged to cloud private

property interests.

Given the widespread recognition that tidal areas are

sui generis and peculiarly subject to public use, it is not

surprising that Mexican law applicable in California at the

time of cession recognized the public trust. Las Siete Par-

tidas provided “every man can use the sea and its shores

... for doing everything there which he thinks may be to his

advantage.” (Las Siete Partidas, CCH (Spain) (1931) pp.

820-821). Neither th: Mexican grant to petitioner’s prede-

cessors nor the later confirmation proceedings affirming

the validity of the grant extinguished those rights of com-

mon use. Public trust rights cannot be terminated through

silence. Guardianship of trust lands is, like the police power,

‘See generally Comment, The Tidelands Trust; Economic Cur-

rents in a Traditional Legal Doctrine, 21 U.C.L.A. L. Rev. 826, 885-

800 ( 1974).

inherent in sovereignty. None of the successive sovereigns

explicitly renounced the public trust, and a grant by a

government in derogation of its sovereign interest may

not be presumed. In fact, both the origiral Mexican grant

and the confirmation proceedings expressly reserved

servitudes such as the public trust easement. Thus, the

tidelands of Ballona Lagoon remain subject to the public

trust easement.

The decision of the California Supreme Court confirmed

that petitioner has rights in the tidal areas of its property

identical to those enjoyed by all other private owners of

coastal property in California. This holding neither modifies

California real property law, nor disparages federal rights,

nor offends the Treaty of Guadalupe Hidalgo. The validity

of the original Mexican patent and the confirmation of

that patent under the Act of 1851 has not been questioned.

Consequently, as petitioner has not claimed a taking“ in

the petition for certiorari, no substantial federal question

is presented. In the absence of any claimed violation of the

United States Constitution, or implication of an overriding

federal interest, principles of federalism require that Cali-

fornia, like all other states, be free to apply the public

trust doctrine as state geography and policy demand.

I

ARGUMENT

THE PUBLIC TRUST DOCTRINE HAS LONG MADE

TIDELANDS SUBJECT TO PARAMOUNT PUBLIC

RIGHTS

Petitioner Summa Corporation describes the California

public trust doctrine as a “court-imposed trust” that the

California Supreme Court has recently “vastly expanded”

to dislodge petitioner's title to its property. (Petitioner's

—_—

Brief at 10, 11, 13). Although the issue was not raised in

the petition for certiorari, the California Land Title As-

sociation (“CLTA”) and the Pacific Law Foundation

(“PLF”) assert the decision below effected an unconsti-

tutional taking of property, and even suggest other deci-

sions of the California Supreme Court applying the public

trust doctrine are similarly infirm. (CTLA Brief at 25-26;

PLF Brief at 11-12) Although the United States refrains

from contending that the California Supreme Court has

violated the Fourteenth Amendment, it similarly contends

the California Supreme Court has unsettled established

property law by “rediscovering” ancient authorities based

on the court's perception of “current policy” in an area

that properly belongs to the legislative sphere. (U.S. Brief

at 4, 29-30)

The depiction of the public trust doctrine as a recent

and aberrational creation of the California Supreme Court

is wrong. As is explained in the following section, the pub-

lie trust doctrine is rooted in America’s earliest judicial

pronouncements; it has been rigorously observed by all

states; and it has been buttressed by well-established Cali-

fornia constitutional and statutory provisions.

A. The Public Trust Doctrine Is Widespread and Well-

Established In American Law

The public trust doctrine can be traced back through the

English common law and Spanish civil law to the Code of

Justinian.’ The significance of this fact is twofold. First,

*See The Public Trust in Tidal Areas: A Sometimes

Doctrine, 79 Yale LJ. 762, 763-772 (1970); MawGrady, The Navi-

gability Concept In The Civil And Common Law: Historic Devel-

opment, Current Importance, And Some Doctrines That Don't

Hold Water, 3 Fla. St. U.L. Rev. 511, 517 (1975) [hereinafter cited

as MacGrady, The Navigability Concept).

10

the persistence of the concept that the public has special,

paramount rights in tidelands in a panoply of succeeding

legal systems is persuasive testimony of the fundamental

importance of these lands to the people of a state or na-

tion. Second, it belies the argument that public rights in

tidelands are a mere property interest that may be de-

stroyed through silence or inattention. Instead, the public

trust in such lands is governmental, existing by virtue of

the sovereignty of a state or nation, and representing a

“deeply inherent right” of its citizenry.’ As this Court has

noted,

The whole ownership theory, in fact, is now generally

regarded as but a fiction expressive in legal shorthand

of the importance to its people that a State have power

to preserve and regulate the exploitation of an impor-

tant resource.

Toomer v. Witsell, 334 U.S. 385, 402 (1948).

The various states, although free since Pollard v. Hagan,

44 U.S. (3 How.) 212 (1845), to determine rights in the

shores and beds of navigable waters according to state

law, have uniformly accorded tidelands special status. The

universal rule is that the states own these lands subject to

a public trust, or “jus publicum”, and that any conveyance

by the state is subject to the same burden. See 1 Clark,

Waters and Water Rights §364(A), at 196-197 (1967).

The public trust doctrine was early established by state

courts.*

Neptune City v. Avon-By-The-Sea, 61 N.J. 296, 294 A 2d 47, 53

(1972). See also Illinois Central Railroad v. Illinois, 146 U.S. 387,

455 (1892).

See Abbot's Ex'r. o. Doe, 5 Ala. 393 (1843); Commonwealth b.

Inhabitants of Charlestown, 18 Mass. (1 Pick.) 180 (1822); Brown

v. Chadbourne, 31 Me. 9 (1849); Arnold o. Mundy, 6 NJ.L. 1

(1821); Bell o. Gough, 23 N.J.L. 624 (1852). See also Martin v.

Waddell, 41 U.S. (16 Pet.) 366 (1842).

/

11

Although the public trust doctrine applied by the states

varies, several common principles can be distilled. First,

trust lands may not be alienated into private ownership

unless the property will be used to promote public pur-

poses.“ Second, any alienation of trust property must be

express, and will never be presumed.’ Third, control of

public trust lands is a sovereign, or “governmental” inter-

est.’ Fourth, public trust rights have not been limited to

navigation and fishing. Recognized public trust uses include

See, e.g., People ex rel. Scott v. Chicago Park Dist., 66 III. 2d

65, 360 N.E.2d 773 (1976); State by Kobayashi v. Zimring, 58 Haw.

106, 566 P.2d 725, 735 (1977); International Paper Co. v. Missis-

sippi State Highway Dept., 271 So. 2d 395, 398-399 ( Miss. 1972),

cert. denied, 414 U.S. 827 (1973); Long Sault Development Co. v.

Kennedy, 212 N.Y. 1, 105 N.E. 849, 852 (1914), error dismissed,

242 U.S. 272 (1916); Rhode Island Motor Co. v. City of Providence,

55 A. 696, 697 (R. I. 1903). See also Priewe v. Wisconsin State

Land Improvement Co., 93 Wis. 534, 67 N.W. 918, 922 (1896).

See e.g., Gulf Oil Corp v. State Mineral Board, 317 So. 2d 576,

589 (La. 1974); Nevada v. Bunkowski, 88 Nev. 623, 503 P.2d 1231,

1237-1238 (1972); Hume v. Rogue River Packing Co., 51 Or. 241,

92 P. 1065, 1069 (1907); State v. Hardee, 259 S.C. 535, 193 S.E.2d

497, 499, 501 (1972); City of Galveston v. Mann, 135 Tex. 319, 143

S.W.2d 1028, 1033-34 (1940). See also Robbins v. Dept. of Public

Works, 355 Mass. 328, 244 N.E.2d 577, 580 ( 1969).

"Illinois Central Railroad v. Illinois, 146 U.S. 387, 455 (1892).

Public trust rights do not depend upon state fee ownership at some

point in time, as CLTA argues. Although the federal test of navi-

therefore have never been held in fee by the state. See Johnson

and Austin, Recreational Rights and Titles to Beds on Western

Streams, 7 Nat. Resources J. I. 7-8 ( 1967). See also Brown v. Chad-

bourne, 31 Me. 9 (Me. 1849); Curry v. Hill, 460 P.2d 933, 935-936

(Okla. 1969); Luscher v. Reynolds, 153 Or. 625, 56 P.2d 1158, 1162

(1936); Diona Shooting Club v. Husting, 156 Wis. 261, 145 N.W.

12

swimming, picnicking, boating and other recreational uses.“

Protection of fish and game habitat, scenic beauty and even

eradication of pollution have been held to be within the

scope of the public trust. See Just v. Marinette County, 56

Wash. 2d 7, 201 N.W.2d 761 (1972); Township of Grosse

Isle v. Dunbar & Sullivan Dredging Co., 15 Mich. App. 556,

167 N.W.2d 311 (1969).

Although many of these uses were not recognized under

inherited English common law, the increased public appre-

ciation of limited natural resources and demand for recre-

ational opportunities has led to an expansion of the usages

protected by the public trust doctrine. See, e.g., Marks v.

Whitney, 6 Cal. 3d 251, 259-260, 491 P.2d 374, 380 (1971).

Petitioner and the CTLA greatly disparage the develop-

ment of the public trust doctrine. However, the principle

that the public has the right to use trust lands for purposes

which are peculiar to these resources and for which there

is a substantial public demand is part of the animating

816, 819 (1914). Even in England, the public was granted the right

to use nontidal rivers even though the beds were privately owned

since the earliest times. 4 Clark, Waters and Water Rights

§305.1(D), at 104 (1970).

See also Inhabitants of West Roxbury v. Stoddard, 89 Mass. (7

Allen) 158, 167 (1863); Lamprey v. Metcalf, 52 Minn. 181, 53 N.W.

1139, 1143-1144 (1893); Diona Shooting Club v. Husting, 156 Wis.

261, 145 N.W. 816, 820 (1914).

13

principle of the trust doctrine. For instance, the public

won a right to access to the sea for fishing when this was

the area of substantial public demand. See 1 Clark, Waters

and Water Rights § 36.4(B), at 202 (1967). See generally

Sax, The Public Trust Doctrine in Natural Resource Law:

Effective Judicial Intervention, 68 Mich. L. Rev. 473, 477

(1970). Like other areas of the common law, the public

trust doctrine is not static. Cf. Martin v. Waddell, 41 U.S.

(16 Pet.) 366 (1842). The development of the public trust

doctrine which petitioner protests is no more than an

adaptation to meet changing public needs—an adaptation

that has been occurring for hundreds of years.

The evolution of the public trust doctrine in California

and in numerous other states is no more disruptive of

private property rights and private expectations than the

concurrent expansion of state zoning and regulation of pri-

vate property under the police power. Indeed, the develop-

ment of public trust rights is far less disruptive, since it is

restricted to the beds and shores of navigable waters long

held to be the object of special public control.“ The private

14

property rights of petitioner have no deeper roots than

public trust rights. See Hudson County Water Co. v.

McCarter, 209 U.S. 349, 356 (1908); Obrecht v. National

Gypsum Co., 361 Mich. 399, 105 N.W.2d 143 (1960). The

claim of petitioner and those writing in its support that

the lower court worked a sudden reversal in well-estab-

lished property law ignores the restraints long imposed on

all such property in California, which are explained below.

B. Protection of Public Trust Rights Is Deeply Rooted In

California Real Property Law as Well as In the Cali-

fornia Constitution, and Is a Fundamental State Policy

From California’s admission, its courts have also recog-

nized the public trust in navigable waters and tidelands.

As early as 1867 the California Supreme Court observed

that tidelands are:

... held by the State in trust and for the benefit of the

people. The right of the State is subservient to the

public rights of navigation and fishery, and theoreti-

cally, at least, the State can make no disposition of

them prejudicial to the right of the public to use them

for the purposes of navigation and fishery, and what-

ever disposition she does make of them her grantee

takes them upon the same terms upon which she holds

them, and of course subject to the public rights above

mentioned.

Ward v. Mulford, 32 Cal. 365, 372 (1867) (emphasis

added).

15

The sources of this public easement are “the law of

nations, and the common and civil law.” Eldridge v.

Cowell, 4 Cal. 80, 87 (1854). Although these cases and

others recognized the right of the legislature to convey

trust property into private ownership, such conveyance had

to be explicit and in furtherance of trust purposes. Kimball

v. MacPherson, 46 Cal. 103, 108 (1873); Taylor v. Under-

hill, 40 Cal. 471, 473 (1871). Thus, the proposition that

public trust rights are retained in trust property conveyed

into private ownership, described as “well established” in

1913, is rooted in the earliest decisions of the California

Supreme Court. See People ex rel. Webb v. California Fish

Co., 166 Cal. 576, 584, 138 P. 79 (1913).

The public trust doctrine attained constitutional expres-

sion in 1879. What is now article 10, section 4 of the Cali-

fornia Constitution provides:

No individual, partnership, or corporation, claiming

or possessing the frontage or tidal lands of a harbor,

bay, inlet, estuary, or other navigable water in this

State, shall be permitted to exclude the right of way

to such water whenever it is required for any public

purpose, nor to destroy or obstruct the free navigation

of such water; and the Legislature shall enact such

laws as will give the most liberal construction to this

provision, so that access to the navigable waters of this

State shall be always attainable for the people

thereof.“

Present article 10, section 3 of the California Consti-

tution prohibits the grant or sale of tidelands within two

“This provision, although not separately addressed in the deci-

sion below, was raised and provides an adequate and independent

basis for the lower court's decision.

16

miles of any incorporated city or town. In 1909, the Califor-

nia legislature prohibited the sale of tidelands and sub-

merged lands entirely. Cal. Pub. Res. Code § 7991 (Deering

1976). Reeent statutes similarly affirm the state’s interest

in preserving the publie’s right to use tidelands.“ Adminis-

tration of the state’s authority in tidelands and submerged

lands is vested in respondent State Lands Commission.

Cal. Pub. Res. Code § 6301 (Deering 1976).

These constitutional and statutory provisions establish

that protection of California tidelands and preservation of

public trust rights is a fundamental, long-established policy

of the state which California courts must observe and

enforce. See Dietz v. King, 2 Cal. 3d 29, 42, 465 P.2d 50

(1910). As is next discussed, the Ballona Lagoon tidelands

were under Mexican rule impressed with a public trust that

the confirmation proceedings under the Act of 1851 did not

extinguish. Consequently, the California Supreme Court

had the authority and, under the California Constitution,

17

THE TIDELANDS OF BALLONA LAGOON WERE M.

PRESSED WITH A PUBLIC TRUST EASEMENT

UNDER MEXICAN RULE AND THE PUBLIC TRUST

WAS NOT EXTINGUISHED BY THE CONFIRMA-

TION PROCEEDINGS

A. Under Mexican Law Prior to Cession, Private Land

Grants Were Subject to Public Trust Rights

Under the Civil Law, from the Institutes of Justinian

until the present time, the seashore has been common

property. Humble Oil d Refining Co. v. Sun Oil Com-

pany, 190 F.2d 191, 194 (5th Cir. 1951), cert. denied, 342

U.S. 920 (1952). Las Siete Partidas, the law of highest

authority in effect while California was a part of Mexico,

was heir to this long tradition. It provided:

The things which belong in common to all the living

creatures of this world are the air, rain, water, and

the seas and its shores; for every living creature may

use them according to his wants. And therefore every

man may enjoy the use of the sea and its shores,

either for the purpose of fishing or navigation or

doing there whatever else he may conceive advan-

tageous to him.

Las Siete Partidas, Title 28, Law 3, CCH (Spain)

(1931) pp. 820-821; App. at 20.

Some authorities have interpreted the language of Las

Siete Partidas to prohibit any alienation of tidal areas.

The Supreme Court of Texas has declared that under

Mexican law the bottoms and shores of a tidal lagoon were

held by Mexico and did not pass to its grantee. Luttes v.

State, 159 Tex. 500, 324 S.W.2d 167, 169 (1958). Louisiana,

18

whose civil code is derived from Las Siete Partidas as

well as other civil law sources, has held that property

designated common, such as the sea and its shores, is

neither alienable nor susceptible of private ownership.

Gulf Ou Corp. v. State Mineral Board, 317 So. 2d 576 (La.

1974). See also New Orleans Land Co. v. Board of Levee

Commissioners, 171 La. 718, 132 So. 121 (1930), af d, 283

U.S. 809 (1931) (title claimed under French and Spanish

grants did not include lake bed, which is unsusceptible of

private ownership).

However, even if the language of Las Siete Partidas

is not interpreted so broadly, it nevertheless provides at

least for a kind of property incapable of exclusive owner-

ship. This concept is virtually identical to the public trust

doctrine as it has evolved in the United States.“ Indeed,

with respect to river banks, Law 6 of Las Siete Partidas,

part 3, title 28, expressly provided that although river

banks may be privately owned, “nevertheless, every man

has a right to use them... App. 199-200. Since the

public rights in seashores were, if anything, expounded in

stronger terms than public rights in river banks, the con-

clusion follows that if tidal areas were included within a

Mexican grant, the right of every person to “enjoy the use

of the sea and its shores” would remain unimpaired.

The California Supreme Court is not alone in reaching

this conclusion. In Apalachicola Land & Development Co.

v, McRae, 86 Fla. 393, 98 So. 505, 518 (1923), error dis-

missed, 269 U.S. 531 (1925), the Florida Supreme Court

“See MacGrady, The Nevigability Concept, supra, at 538, Ce.

fornia Beach Access: The Mexican Law And The Public Trust, 2

1

10 P. 674 ( 1888).

19

concluded that under Las Siete Partidas, a grant of sub-

merged lands and tidelands to private persons “would not

exclude the public use of the lands and water and the

natural products thereof.”

An early California decision, albeit in dicta, similarly

indicated private Mexican grants were subject to retained

public rights. In Ward v. Mulford, 32 Cal. 365, 372 (1867),

the California Supreme Court vointedly observed that

despite its holding a state patentee had acquired no inter-

est in tidelands subject to a previous Mexican grant, “we

do not desire to be understood as holding that the Mexican

Government, or this State, has the same power of absolute

alienation over lands held in virtue of their sovereignty

which they have over other lands.” 32 Cal. at 372. Instead,

grantees took title to “sovereign” property such as tide-

lands subject to public trust rights. In Lux v. Haggin, 69

Cal. 255, 316, 10 P. 674 (1886), the California Supreme

Court again noted that under Mexican law It he shores

of the sea pertain . . . as to use to all.” Thus, the lower

court’s conclusion that tidelands within Mexican land

grants were, prior to cession, impressed with public trust

rights fully conforms with precedent and accurately ap-

plies Mexican law.“

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20

B. The Confirmation of the Mexican Grant Did Not De-

stroy Public Trust Rights In the Ballona Lagoon Tide-

lands

The confirmation proceedings under the Act of March 3,

1851 did not extinguish the public trust easements in the

tidelands of Rancho Ballona. Under the Treaty of

Guadalupe Hidalgo, the United States was obligated to

“inviolably respect” the private property rights granted

by Mexico to its citizens and ensure that Mexican grantees

“enjoy with respect to it guarantees equally ample as if

the same belonged to citizens of the United States.” 9 Stat.

922, 929, Art. 8; App. B-1, p. A-26. The purpose of the

confirmation proceedings under the Act of March 3, 1851

was to fulfill this obligation.

Petitioner argues that even if the original Mexican land

grant was subject to a public trust easement under

Mexican law, the public trust rights did not survive the

confirmation proceedings under the Act of 1851 because

these public rights were not presented to the Board of

Land Commissioners or expressly preserved. This argu-

ment is wrong on several counts. First, the decree of

confirmation issued by the Board of Land Commissioners

21

grant reserving “traversing roads and servitudes”. Second,

this Court has held that such public trust rights are not

within the limited jurisdiction of the Board of Land Com-

missioners or affected by the confirmation proceedings.

Third, even if the confirmation decrees had omitted the

reservation for servitudes, silence does not suffice to ter-

minate public trust rights.

The Mexican grant of Rancho La Ballona contained the

following reservation: “(the grantees] may enclose it with-

out prejudice to the traversing roads and servitudes. . . .”

App. A-1, P. A-9. Under Mexican law, this reservation is

“an expression of art” through which the “rights of the

public are saved in the conveyance of large tracts by the

authorities.” (R. T. 1085) Since the rights of common usage

of Las Siete Partidas were considered servitudes (R.T.

1084), public rights to use the tidelands and submerged

lands of Pallona Lagoon were expressly preserved in the

Mexican grant.“

"United States o. Coronado Beach Co., 255 U.S. 452 (1921),

Barker o. Harvey, 181 U.S. 481 (1901), do not establish that

this reservation excludes a public servitude over tidelands, as the

United States contends. In Coronado Beach Co., the United States

4

S08 See r

thorizing the government to make use of any portion of

lands for the construction of public buildings. The Court merely

concluded that the statutory right did not apply to the lands

granted to defendant, a Mexican citizen, but only to lands con-

veyed to “colonists and foreigners”. 255 U.S. at 486. In Barker, the

Court concluded the reservation, although “sometimes used to ex-

pro all kinds of servitudes, including therein a paramount right

of cocupation”, did not under the circumstances of the case include

an Indian right of eccupancy. The Indians had abandoned their

claim prier to cession sad this abandonment had been recognized

the Mercan authorities, and was reflected in the Mexican grants.

Bz

—

7

2

22

In addition, the Board of Land Commissioners estab-

lished by the 1851 Act had only authority to determine the

validity and boundaries of the prior Mexican land grants.

The Board had no jurisdiction to assess the nature and

quality of the fee title or whether it was impressed with

any public trust or sovereign interest. In Fremont v. United

States, 58 U.S. (17 How.) 541 (1854), this Court held the

ownership of mineral rights in a Mexican grant was not

within the jurisdiction of Board of Land Commissioners

under the Act of 1851. Consequently, in an appeal from a

decree of the Board of Commissioners:

The only question before the court is the validity of

the title. And whether there be any mines on this land,

and if there be any, what are the rights of the sov-

ereignty in them, are questions which must be decided

in another form of proceeding, and are not subjected

to the jurisdiction of the commissioners or the court

by the Act of 1851.

58 U.S. (17 How.) at 565.

In Townsend . Greeley, 72 U.S. (5 Wall.) 326 (1867),

this Court again held the Board of Land Commissioners

had only limited jurisdiction. At issue was whether con-

firmation of San Francisco’s legal title had altered or ex-

tinguished the trust in which San Francisco had, under

Mexican law, held the land for its inhabitants. This Court

concluded that the question of whether the legal title con-

firmed by the Board and the reviewing courts was “charged

with any trust, was not a matter upon which either board

or court was called upon to pass.” Thus, if the land was

held subject to any trust under Mexican law, “the trust was

not discharged by the confirmation and the subsequent

patent.” 72 U.S. (5 Wall.) at 335.

In similar proceedings under the Louisiana Land Claims

Acts, this Court held that lands impressed with a public

trust under a former sovereign remain subject to that trust

after its cession, even though the public rights had been

presented to and rejected by a confirmatory board similar

to the Board of Land Commissioners." New Orleans v.

United States, 35 U.S. (10 Pet.) 662 (1836). These cases

establish that the confirmation proceedings determined pri-

vate, proprietary rights under a Mexican land grant, but

did not affect sovereign or public trust rights.

Finally, no sovereignty, neither Mexico nor the United

States nor California, has ever acted expressly to modify

or extinguish the public trust servitude in Ballona Lagoon

which existed under Mexican law. In the absence of such

an act, conveyances of title to tidelands and submerged

lands are subject to a retained public trust easement. See,

e.g., Illinois Central Railroad v. Illimois, 146 U.S. 387

(1892) ; Swan Island Club, Inc. v. Yarbrough, 209 F.2d 698,

702 (4th Cir. 1954); City of Berkeley v. Superior Court,

26 Cal. 3d 515, 525, cert. denied, 449 U.S. 840 (1980). Fur-

ther, a grant from a sovereign conveys only what has been

“specifically and unequivocally delineated and nothing

more.” United States v. 1,078.27 Acres of Land, 446 F.2d

1030, 1038-39 (Sth Cir. 1971), cert. denied, 405 U.S. 936

(1972). A grant in derogation of sovereignty must be

n Chitimacha Tribe of Louisiana v. Harry L. Laws Co., 690

F.2d 1157, 1169 (5th Cir. 1982), the court described the Act of

March 3, 1851, 9 Stat. 631, as being “very similar” to the Louisiana

Land Claims Acts discussed in New Orleans o. United States.

Accord Andrus v. Charlestone Stone Products Co., 436 U.S. 604

617 (1978); Great Northern Railway v. United States, 315 U.S.

262, 272 (1942); Walton v. United States, 415 F.2d 121, 123 (10th

Cir. 1969).

strictly construed in favor of the sovereign and the rights

of its citizens. Charles River Bridge v. Warren Bridge, 36

U.S. (11 Pet.) 420, 548 (1837); United States v. 2,899.17

Acres of Land, 269 F. Supp. 903, 909 (M.D. Fla. 1967). This

rule is particularly applicable to public trust rights. Massa-

chusetts v. New York, 271 U.S. 65, 89 (1926).”

Petitioner’s argument must founder on the fact that all

three sovereigns, Mexico, the United States and California,

impress lands within their control with public trust duties.

Nowhere does petitioner explain how it comes to be that

lands held by Mexico (which, in Las Siete Partidas, im-

pressed tidelands wita a public trust), transferred by the

United States (which also recognizes the public trust),

and held by California (with a long-established body of

public trust care), emerged from this process free of the

public trust.” Inasmuch as the original Mexican grant ex-

pressly preserved public trust rights, the limited jurisdic-

tion of the Board of Land Commissioners did not encom-

pass public trust questions, and no sovereign explicitly ter-

minated the public trust, the Ballona Lagoon tidelands re-

main subject to the public trust.

„g also United States v. Holt State Bank, 270 U.S. 49 (1926);

St. Anthony Falls Water Power Co. v. St. Paul Water Commissioner,

168 U.S. 346, 372 (1897); State v. Black River Phosphate Co., 32

Fla. 82, 13 So. 640, 648 ( 1893).

"Cf. Collins v. Gerhardt, 237 Mich. 38, 211 N. W. 115, 118 (1926)

(holding that the title of a riparian owner to a stream bed was

ere eae — 2 —

derived from the state or from the United States); Luscher v. Rey-

, 153 Or. 625, 56 P.2d 1158, 1161-1162 (1936) (although grant

United States conveyed bed of lake not navigable by federal

STATE LAW GOVERNS WHETHER THE BALLONA

LAGOON TIDELANDS ARE SUBJECT TO THE PUB-

LIC TRUST

The existence of a public trust easement in the tidelands

of petitioner’s property should be determined by state, not

federal law. The validity of the confirmation patent has

not been challenged, nor does the state dispute that peti-

tioner holds in fee the land within the boundary established

by that patent. The only issue is the nature and extent of

petitioner’s property rights under the patent issued by the

United States in confirmation of the prior Mexican grant.

Such a dispute does not raise a federal question. Los

Angeles Farming d Milling Co. v. Los Angeles, 217 U.S.

217 (1910); Devine v. Los Angeles, 202 U.S. 313 (1906);

Hooker v. Los Angeles, 188 U.S. 314 (1903); Hyman v.

State Lands Commission, 543 F. Supp. 118, 121 (C.D. Cal.

1982), appeal pending. The lower court’s interpretation of

Mexican law as applied to land title in California is control-

ling. Los Angeles Farming c Milling Co. v. Los Angeles, 217

US. at 227; Luttes v. State, 159 Tex. 500, 324 S.W.2d 167,

186 (1958).** A confirmatory patent does not create federal

rights or title subject to interpretation under federal law.

Boquillas Land d Cattle Co. v. Curtis, 213 U.S. 339, 344

(1909). Nor does the equal-footing doctrine require appli-

eation of federal common law. Oregon ex rel. State Land

Cf. Hardin v. Jordan, 140 U.S. 371, 384 (1891) (United States

grants bounded on streams and lakes are to be construed, as to

their effect, according to state law); Nevada u. Bunkowski, 88

Nev. 623, 503 P.2d 1231, 1236-1237 (1972) (prestatehood federal

patent; same).

Board v. Corvallis Sand d Gravel Co., 429 U.S. 363, 371

(1977).

As this Court has observed, “[u)nder our federal system,

property ownership is not governed by a general federal

law, but rather by the laws of the several states.” Id. at 378.

The public trust doctrine “is of great public importance”

to the citizens of California. Marks t. Whitney, 6 Cal. 3d

251, 257, 491 P.2d 374 (1971). Petitioner has not presented

this Court with a claim that the lower court’s decision

effected a “taking.” The tangential federal rights claimed

by petitioner through the confirmation proceedings have

already been held by this Court not to present a substantial

federal question. Although the United States may disagree

with California’s choice to protect her significant remain-

ing tidelands and preserve the public’s right of access to

them, that choice is California’s prerogative. Hardin v.

Jordan, 140 U.S. 371, 382 (1891). Nothing in this case in-

vites federal interference with that policy.

IV

CONCLUSION

The fundamental purpose of Article VIII of the Treaty

of Guadalupe Hidalgo was to guarantee to the citizens of

Mexico the same protection of their property rights as

extended to the citizens of the United States. Amaya v.

Stanolind Oil & Gas Co., 158 F. 2d 554, 558 (5th Cir. 1946),

cert. denied, 331 U.S. 808 (1947). Petitioner argues for

property rights greater than those enjoyed by all other

owners of land on the California coast, who, by accident of

history, cannot trace their title back to a Mexican grant.

Since 1879 the California Constitution has made access to

tidelands a public right. In holding that the tidal areas of

petitioner's property are also impressed with this publie

trust, the California Supreme Court worked no revolution

in property rights but merely confirmed what should long

have been apparent to petitioner. Its deeisioh should not be

disturbed.

Respectfully submitted,

PALMER Brown Mappen

COUNSEL OF RECORD

LiIx ba AGERTER

Van Voornis & Skacos

1855 Olympic Boulevard,

Third Floor

P.O. Box V

Walnut Creek, CA 94596

Counsel for Amici Curiae