# Petition for Writ of Certiorari — Fogerty v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1987
- **Citation:** 484 U.S. 821

## Text

e . .

—e , supreme Court, US.
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? MAY 23 3997

No. %
PPOSEPH F SeANIOL, JP,

j CLERK
ee PO ey eres |

In the Supreme Court
OF THE

United States

OCTOBER TERM, 1986

CHARLES F. FOGERTY, et al.,
Petitioner,

.

STATE OF CALIFORNIA, et al.,
Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEAL OF
THE STATE OF CALIFORNIA
FOR THE THIRD APPELLATE DISTRICT

Louis F. CLAIBORNE
Counsel of Record

EDGAR B. WASHBURN

WASHBURN & KEMP

A Professional Corporation
144 Second Street
P. O. Box 880130
San Francisco, CA 94188
Telephone: (415) 543-8131

Attorneys for Petitioners

BOWNE OF SAN FRANCISCO. INC. + 190 NINTH ST. + S.F..CA 94103 + (415) 864-2300

QUESTIONS PRESENTED

1. Whether state judicial decisions that abruptly change ex-
isting law, retrospectively burdening the privately owned shores of
a navigable lake with a pervasive “public trust” easement, violate
due process by effectively taking property without compensation.

2. Whether those decisions work a further unconstitutional
taking and violate due process guarantees insofar as they extend
the public trust easement landward beyond the natural high
watermark of the bed of a navigable lake, to an artificially high
level resulting from the construction and operation of a dam at the
lake outlet by unrelated third parties.

ii
PARTIES BELOW

The appellants below (and original plaintiffs) were the present
petitioners: Charles F. Fogerty, Stella Fogerty, Russell S. Grove,
Harold R. Ebright, Jr., Katherine F. Ebright, George Hilton
Edmondson, Janet Louise Edmondson, Laurence L. Lindsey,
Rosemary F. Lindsey, Homer M. Hayward, Reid W. Dennis,
Tahoe Meadows, a California corporation, and Tahoe Shorezone
Representation, a Nevada Corporation. Respondents below, in
addition to the State of California, were the State Lands Com-
mission of the State of California and the Department of Fish and
Game of the State of California.

ili

TABLE OF CONTENTS

ron
ES GRRE SS a l
EI OE ieee TECLE ECCT EEE ETE 2
Constitutional and statutory provisions involved .......... 2
I NS ee ee ee 3
TE eee 8
EE ee 17

Appendix A: Opinion of the California Court of Appeal,
(November 24, 1986) ................. A-1

Appendix B: Opinion of the Superior Court (April 11,
a EE i Se A-18

Appendix C: Opinion of the California Supreme Court
Eee gt ta RE ae A-21

Appendix D: Opinion of the California Supreme Court in
State v. Superior Court (Lyon) (1981)... A-35

Appendix E: Order of the California Supreme Court

Denying Review (March 4, 1987) ....... A-74
Appendix F: Remittitur of the California Court of
Appeal (March 11, 1987) .............. A-75

Appendix G: Judgment of the Superior Court Affirmed
as Modified (May 6, 1987)............. A-76

iV

TABLE OF AUTHORITIES

Cases
Page
Anderson v. Trotter, 213 Cal. 414, 2 P.2d 373 (1931) .... 5
Appleby v. City of New York, 271 U.S. 364 (1926)...... 1]
Arizona v. California, 460 U.S. 605 (1983) ............. 15
Arkansas v. Tennessee, 246 U.S. 158 (1918) ............ 14
Barney v. City of Keokuk, 94 U.S. 324 (1877) .......... 1]
Bouie v. City of Columbia, 378 U.S. 347 (1964) ........ 13
Brewer-Elliott Oil & Gas Co. v. United States, 260
ee ee OE i ay ee bees EES wee oes 13, 15
California v. Nevada, 447 U.S. 125 (1980) ............. 3
California ex rel. State Lands Commission v. United
a ee Ge Oe COED ike dou cecccdesccane. 9,10, 14
Chicago, Burlington & Quincy Railroad v. City of Chicago,
St Oe ei gcad ducer ck aden ek ek eae 8
City of Los Angeles v. Aitken, 10 Cal. App. 2d 460, 52 P.2d
ee sar Gs ba nd edd aR a GRA Ra ees 5
Coastal Petroleum Co. v. American Cyanamid Co., 492 So.
Se nS PEE oi os op ck a oe aed ee ss cae eae 16
Craig v. White, 187 Cal. 489, 202 P. 648 (1921) ........ 5
Crews v. Johnson, 202 Cal. App. 2d 256, 21 Cal. Rptr. 37
SE cae ei ardiccar cee ke AAO ER AR ELEN ENCES Oue 5
Demorest v. City Bank Farmers Trust Co., 321 U.S. 36
SE Aliens Ae Hake Fhe tity Sand oy FERRO ona Len 12, 13
Ex Parte Virginia, 100 U.S. 339 (1880) ................ 12
Federal Power Commission v. Niagara Mohawk Power
Sg ee Oe ED so aa ease tae wees ee 12
Georgia Railway & Power Co. v. Town of Decatur, 262 U.S.
I ne es Sree tes Rak or geil aats o's 13
Hathom v. Lovorn, 457 U.S. 255 (1962) ............... 2
Hodel v. Irving, No. 85-637 (May 18, 1987) ............ 8
Hughes v. State of Washington, 389 U.S. 290 (1967)
Rr ee Na ia a NN ral eR eer 9 9,13
Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892)... 11
Indiana ex rel. Anderson v. Brand, 303 U.S. 95 (1938) ... 13

Kaiser Aetna v. United States, 444 U.S. 164 (1979) .....8, 12

Vv

TABLE OF AUTHORITIES

CASES
Page
Keystone Bituminous Coal Association v. De Benedictis,
Pane Sees CU UNE E o hides cvna casdaunwinness 8
Leo Sheep Co. v. United States, 440 U.S. 668 (1979)
OR Ee ECT en PE ry oe ee re Ts wry 12, 16
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
| Er en reg rr per eT reCer 8
Lyon v. California, 454 U.S. 865 (1981)............. 7, 10, 16
Lyon v. Western Title Insurance Co., 178 Cal. App. 3d
1, oo me oh | errrrrr rrr rr 5, 11

Matcha v. Mattox, 711 S.W.2d 95 (Tex. Ct. App. 1986).. 9
MacDonald, Sommer & Frates v. Yolo County, No. 84-2015

COG Se HE 6b och aon d seca aus aneoee ase aeeree 16
Maginnis v. Hurlbutt, 49 Cal. App. 460, 193 P. 606 (1920) 5
Mercer v. Theriot, 377 U.S. 152 (1964) ................ 2
Missouri v. Nebraska, 196 U.S. 23 (1904) .............. 14
Monogahela Navigation Co. v. United States, 148 U.S. 312

CE vb edaabuueesdhanes ced Deaeee eee 8
Muhlker v. New York & Harlem Railroad, 197 U.S. 544

PE in Gang chine ce evade eee 13
NAACP v. Alabama ex rel. Flowers, 377 U.S. 288

CRD Saks cGek acu ee keke ee ee 13

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) 13
National Audubon Society v. Superior Court, 33 Cal.3d 419,

BS & 2). re rere rere edn eg ae 10
Nebraska v. lowa, 143 U.S. 359 (1891) ................ 14
Nebraska Press Association v. Stuart, 427 U.S. 539 (1976) 13
Nevada v. United States, 463 U.S. 110 (1983) ........ -.14, 15
Nollan v. California Coastal Commission, 177 Cal.

Fa TN Fe CE oo oa ea Cha kee e secant 9,10
Oregon ex rel. State Land Board v. Corvallis Sand &

Gravel Co., 429 U.S. 363 (1977) ................... 11,13
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)... 9
Pulliam v. Allen, 466 U.S. 522 (1984) ................. 13

Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir. 1985) ..... 9

vi

TABLE OF AUTHORITIES

CASES
Page
State v. Superior Court (Fogerty), 29 Cal. 3d 240, 625 P.2d
SE ED a o's nk.0.-000.06640 us ob Ghee eater wel Ae
State v. Superior Court (Lyon), 29 Cal. 3d 210, 625
EE ED 0s 6 60 a's ndndn ene eeaukacvAdeo ban 2, 6, 7, 10
Summa Corp. v. California ex rel. State Lands Com-
re tee, SO COMED so cascaccacesaonvas 9,10, 12
United States v. Gossett, 416 F.2d 565 (9th Cir. 1969) ... 5
United States v. Holt State Bank, 270 U.S. 49 (1926).... 13
United States v. Orr Water Ditch Co., Equity No. A3
(USDC D. Nev. 1944) (unpub. opn.) ............... 4
United States v. Rands, 389 U.S. 121 (1967) ........... 15
United States v. Riverside Bayview Homes, Inc., No. 84-701
i Cs ih. ee geese he Ree cae ee ee ee 12
United States v. Title Insurance & Trust Co., 265 U.S. 472
Adc a's 3-L's df cel sake 4 ata eee ees Aenea eae 16
United States v. Truckee River General Electric Co., No.
14861 (USDC N.D. Cal. 1915) (unpub. opn.) ........ 4
Utah v. United States, 403 U.S. 9 (1971) .............. 13
Ward v. Board of Commissioners of Love County, 253 U.S.
es 2'v-s'a-b'y' co NUR TRER ETE Cae 13
Constitutional Provisions
U.S. Constitution
Fifth Amendment, Just Compensation Clause .........2, 16
Fourteenth Amendment, Due Process Clause.......... 3, 16
Statutes
Camroraia Civll Code § 630... wc ccc cn cceee. 3, 5,6, 7, 11, 14

Submerged Lands Act, 43 U.S.C § 1301, et seq ......... 14

Vii
TABLE OF AUTHORITIES
Miscellaneous
Page

California-Nevada Interstate Compact Commission,
“Report of the Joint Engineering Committee” (March
8 OOP ET eee Pre eer Tete eye 3

R. Lazarus, “Changing Conceptions of Property and

Sovereignty in Natural Resources: Questioning the
Public Trust Doctrine,” 71 Iowa L. Rev. 631 (1986)

PN ER yds ee Pe eee eye mee eget: 9,10
Letter from California Attorney General Evelle Younger to
We, HF. PRD CS Gy BOUED oso cicascciesccnces 6
Opinions of the California Attorney General:
Ce Ge, See GO: SU CNUED os ones vedic cawvenss 5
rage Be OR: SB Uk.) eee rr eer rer 5
23 Ops. Cal. Atty. Gen. 306 (1954) ................. 5
30 Ops. Cal. Atty. Gen. 262 (1957) .........3, 4,5, 6, 7, 15
43 Ops. Cal. Atty. Gen. 291 (1964) ................. 5,15
Stern, Gressman & Shapiro, Supreme Court Practice (4th
Ih a suc G ht cs Rooks AREA ERA ERE REE Oo Odea ee 2
Truckee River Agreement (June 13, 1935) ............. 4

ee Hee SD CEUIPOE on cos hac ac cccccccacceoscce me

In the Supreme Court
OF THE

United States

OCTOBER TERM, 1986

No.

CHARLES F. FOGERTY, et al.,
Petitioner,

V.

STATE OF CALIFORN' 4, et al.,
Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEAL OF
THE STATE OF CALIFORNIA
FOR THE THIRD APPELLATE DISTRICT

Charles F. Fogerty, Stella Fogerty, Russell S. Grove, Harold R.
Ebright, Jr., Katherine F. Ebright, George Hilton Edmondson,
Janet Louise Edmondson, Laurence L. Lindsey, Rosemary F.
Lindsey, Homer M. Hayward, Reid W. Dennis, and Tahoe
Meadows, a California corporation, petition this Court to issue a
writ of certiorari to review the decision of the Court of Appeal of
the State of California for the Third Appellate District in this
case.

OPINIONS BELOW

The opinion of the California Court of Appeal (Appendix A
attached hereto) is reported at 231 Cal. Rptr. 810 (1986). The
opinion of the Superior Court for Placer County (Appendix B
attached hereto) is not reported. The opinion of the California
Supreme Court on a previous appeal of the case (Appendix C
attached hereto) is reported at 29 Cal. 3d 240 (1981) and 625
P.2d 256. The opinion of the California Supreme Court in the

2

companion case entitled State v. Superior Court (Lyon) (Appen-
dix D attached hereto) is reported at 29 Cal. 3d 210 (1981) and
625 P.2d 239. This Court’s order denying petitions for writs of
certiorari to review these decisions is reported at 454 U.S. 865
(1981).

JURISDICTION

The judgment of the California Court of Appeal (Appendix A
attached hereto) was entered on November 24, 1986. A timely
petition for review to the Supreme Court of California was denied
on March 4, 1987 (Appendix E attached hereto). The appellate
court’s judgment became final on March 11, 1987 (Appendix F
attached hereto) and was affirmed as modified by the Superior
Court of Placer County on May 6, 1987 (Appendix G attached
hereto).

This Court’s jurisdiction is invoked under section 1257(3) of
Title 28 of the United States Code. The federal law contentions
now presented were raised in the court below and there rejected.
See App. A at A-7 to A-9 and n.5. They were likewise tendered to
the California Supreme Court by a petition for review, which was
denied without opinion. App. E, infra. Consideration of these
questions is in no way foreclosed because they were presented to
the California Supreme Court on the previous appeal and implic-
itly rejected there (see App. D at A-61 to A-63), or because this
Court denied certiorari to review that earlier judgment. E.g.,
Mercer v. Theriot, 377 U.S. 152, 153-154 (1964); Hathorn vy.
Lovorn, 457 U.S. 255, 261-262 (1982). See Stern, Gressman &
Shapiro, Supreme Court Practice, at 41, 132, 316 (4th ed. 1986).
At this point, it is clear the decision below is “final” for all
relevant purposes, no issue remaining in the State courts. See
App. A at A-17.

CONSTITUTIONAL AND STATUTORY
. PROVISIONS INVOLVED

1. The Just Compensation Clause of the Fifth Amendment to
the United States Constitution provides:

3

[ N Jor shall private property be taken for public use, without
just compensation.

2. The Due Process Clause of the Fourteenth Amendment to
the United States Constitution provides:

{NlJor shall any State deprive any person of life, liberty or
property, without due process of law;...

3. Section 830 of the California Civil Code provides:

Except where the grant under which the land is held indi-
cates a different intent, the owner of the upland, when it
borders on tide-water, takes to ordinary high-water mark;
when it borders upon a navigable lake or stream, where there
is no tide, the owner takes to the edge of the lake or stream at
low-water mark; when it borders upon any other water, the
owner takes to the middle of the lake or stream.

\

STATEMENT

1. At the center of this controversy is California’s largest lake,
Lake Tahoe, which covers approximately 120,000 acres and lies
on the common boundary between California and Nevada in the
Sierra Nevada Mountains. See California v. Nevada, 447 U.S.
125 (1980). The lake is fed by melting snows from the Sierras
and has one outlet-—the Truckee River—that flows to the north
and east through California into Nevada, ultimately emptying
into Pyramid Lake. When California became a state in 1850 and
until the early 1870's, Lake Tahoe was in its natural condition.
Although in unusually dry years the level might fall lower, the
ordinary low waterline then was (and, but for artificial regulation,
would be today) at the rim of the natural outlet of the lake—some
6223.0 feet above mean sea level. See 30 Ops. Cal. Atty. Gen.
262, 263 (1957). The natural ordinary high watermark—resulting
from the inability of the relatively narrow outlet to immediately
drain the heavy inflows at certain seasons—has been found by
State studies to be approximately two feet higher.’

A study of Lake Tahoe performed by the California- Nevada Inter-
state Compact Commission in 1957 (R. 3714), calculated the natural

4

In 1870, the Donner Lumber & Boom Company constructed a
log dam in the Truckee River a short distance downstream from
the outlet of Lake Tahoe, artificially raising lake levels during at
least certain portions of the year. See App. A at A-3; 30 Ops. Cal.
Atty. Gen. at 263-264. After a succession of private owners, the
dam was acquired through condemnation by the United States in
1915 as a part of the Newlands Reclamation Project. United
States v. Truckee River General Electric Co., No. 14861 (USDC
N.D. Cal. 1915) (unpub. opn.); 30 Ops. Cal. Atty. Gen. at 263-
264. Since 1926, the operation of the dam has been under the
control of the Truckee-Carson Irrigation District as agent of the
United States. 30 Ops. Cal. Atty. Gen. at 264. At no time has the
State of California owned, operated or controlled the dam or the
water levels of the lake. Nor did the littoral proprietors ever agree
to those regulating activities by third parties. On the contrary,
both they and the State protested repeatedly. Jd. at 264-266.

In order to assure adequate flows in the Truckee River for the
benefit of the Newlands Reclamation Project and power interest
along the Truckee River, an agreement known as the Truckee
River Agreement (June 13, 1935) was negotiated between the
United States, the Sierra-Pacific Power Company, the Truckee-
Carson Irrigation District, the Washoe County Conservation
District and a number of water users along the Truckee River.
Neither the State of California nor any of the numerous littoral
owners around Lake Tahoe were parties. The agreement sets the
upper and lower limits within which the United States may use
Lake Tahoe for storage purposes. In 1944, its provisions were
incorporated into a decree adjudicating the water rights of users
along the Truckee River. United States v. Orr Water Ditch Co.,
Equity No. A3 (USDC D. Nev. 1944) (unpub. opn.). The
decree does not affect any land interests at the edge of Lake
Tahoe. 30 Ops. Cal. Atty. Gen. supra. Rather, the Truckee-

high waterline of Lake Tahoe and fixed it at elevation 6224.84 feet. R.
3732. See also R. 3256-3779, 3946-4041. This study belies the rationale
of the court of appeal below, which apparently relied upon language in
Fogerty to the effect that location of the ordinary high waterline under
natural conditions is virtually impossible. See App. A at A-16 to A-17
n.12.

5

Carson Irrigation District is required to operate the outlet dam so
that the lake does not rise above the level of 6229.1 feet above
mean sea level, nor is it to fall below the natural rim elevation of
6223.0 feet. In fact, Lake Tahoe has not reached 6229.1 feet since
1917, years before the agreement and decree were entered into.
Id. at 265. Implementation of the Truckee River Decree, how-
ever, had led to the artificial raising of lake levels above the
natural ordinary high waterline for a portion of each year. /d. at
267-268.

2. Petitioners are owners of littoral lands bordering the lake.
They trace their title back to federal grants made between 1860
and 1890. R. 1670-1689. Assuming California once held the
shorezone between the natural low and high waterlines (see note
6, infra), the State relinquished that area to the then littoral
proprietors by enactment of section 830 of the California Civil
Code in 1872. See p. 3 supra. Consistent with that provision,
subsequent deeds in petitioners’ chain of title included the
shorezone to the low waterline of the lake. It is now undisputed
that petitioners’ ownership runs to the low waterline.

Neither in 1872, nor at any time during the ensuing 100 years,
was the slightest doubt raised concerning the unfettered owner-
ship of the shorezone by the littoral proprietors. Indeed, their title
was repeatedly confirmed by judicial decisions” and opinions of
the Attorney General.’ And no suggestion of a public easement
over this area was ever advanced. Accordingly, petitioners and
their predecessors were not concerned for their shorezone title
when lake levels periodically rose through implementation of the

* Maginnis v. Hurlbutt, 49 Cal. App. 460, 193 P. 606 (1920); Craig v.
White, 187 Cal. 489, 202 P. 648 (1921); Anderson v. Trotter, 213 Cal.
414, 2 P.2d 373 (1931); City of Los Angeles v. Aitken, 10 Cal. App. 2d
460, 52 P.2d 585 (1935); Crews v. Johnson, 202 Cal. App. 2d 256, 21
Cal. Rptr. 37 (1962); United States v. Gossett, 416 F.2d 565 (9th Cir.
1969); Lyon v. Western Title Insurance Co., 178 Cal. App. 3d 1191, 224
Cal. Rptr. 385 (1986)

43 Ops. Cal. Atty. Gen. 291 (1964); 30 Ops. Cal. Atty. Gen. 262
(1957); 23 Ops. Cal. Atty. Gen. 306 (1954); 23 Ops. Cal. Atty. Gen. 97
(1954); Ops. Cal. Atty. Gen. 3100 at 5-6 (1916).

6

Truckee River Decree—which only gave the United States the
right of storage within certain defined limits and was declared not
to extend the State’s lakebed rights. See 30 Ops. Cal. Atty. Gen.
at 268.

This period of tranquility came to an abrupt end on March 8,
1977, when the California Attorney General disaffirmed all prior
attorney general opinions that had defined the State’s interest in
the bed of Lake Tahoe as ending at the natural low waterline. See
Letter from California Attorney General Evelle Younger to Wm.
F. Northrop (Mar. 8, 1977), R. 3930-3942. He now claimed for
the State lands up to the high watermark—the position the State
had taken with respect to Clear Lake in State v. Superior Court
(Lyon), which was then pending in another state trial court. See
App. D, infra. In that case, commenced in 1976, the State had for
the first time sought to abrogate the provisions of Civil Code
section 830.* Immediately after the issuance of this opinion, the
California State Lands Commission (the agency responsible for
management of state sovereign lands) laid claim to all lands
bordering Lake Tahoe up to the artificially elevated ordinary high
waterline.

3. Petitioners responded by filing this action on March 30,
1977, seeking to quiet title to their lands to the natural low
watermark and to enjoin the State from proceeding further. Their
motion for preliminary injunction was granted by the Placer
County Superior Court on October 17, 1977. The order was
appealed by the State, but was upheld by the Court of Appeal for
the Third Appellate District on March 28, 1979. Thereafter,
petitioners and the State filed cross-motions for partial summary
judgment on the issue of whether the State, in the face of Civil
Code section 830, could extend its sovereign ownership in the bed
of navigable lakes to the ordinary high waterline and, if not,
whether it could belatedly assert a public trust easement over the
shorezone. The superior court granted petitioners’ motion and

* Although attempting to justify the State’s newly found rights to high
water, the Attorney General acknowledged that his office had previously
been of the opinion that the State relinquished its interest above the low
water in 1872. R. 3932 & n.5.

7

concluded, as a matter of law, that no portion of Lake Tahoe
landward of the last natural ordinary low waterline was subject to
any State interest. See App. C at A-22.

The State successfully petitioned the California Supreme
Court for a writ of mandate in this action and in the companion
Lyon case, which had proceeded along a similar line and had
produced an identical ruling with regard to Clear Lake. By a vote
of four to two, that court reversed in both cases, simultaneously
issuing separate, but complementary, opinions. Apps. C and D,
infra. Acknowledging that the State had for more than a century
abided by the provisions of Civil Code section 830 and claimed no
interest (public trust or otherwise) above the natural low water-
mark, the court nevertheless held that a public trust easement
attached to the shorezone down to the low watermark. App. D at
A-51, A-63. Also in an abrupt departure from existing California
law, the court went on to hold that the State’s interest could be
extended landward as a result of the artificial raising of the lake
level by third parties. App. C at A-30 to A-31. This Court denied
petitions for certiorari to review these decisions. Lyon v. Califor-
nia, 454 U.S. 865 (1981).

4. The case was remanded to the trial court to locate the
ordinary high watermark boundary of the public trust easement
and the ordinary low watermark boundary of state ownership of
the bed of Lake Tahoe. The State successfully moved for sum-
mary adjudication of these two boundaries, arguing that the levels
established by the Truckee River Decree in 1944 not only fixed
the maximum and minimum lake levels for purposes of the
federal government’s regulation of the lake, but also established
the boundaries of the State’s sovereign interest in the bed of Lake
Tahoe. App. B, infra. Petitioners appealed again to the court of
appeal. On November 24, 1986, that court rejected the reasoning
of the trial court, but reached a result only slightly less favorable
to the State. App. A, infra.

Invoking the California Supreme Court’s Fogerty decision, the
appellate court held that the ordinary high waterline was to be

* See 30 Ops. Cal. Atty. Gen. at 269, 273.

8

fixed under the doctrine of prescription—albeit the State first
claimed any interest above low water only a month before this
suit. The court of appeal set the ordinary high waterline at
6228.75 feet above mean sea level, the highest level that Lake
Tahoe had reached for any five consecutive years (1967-71) since
artificial regulation of the lake began, and declared the State’s
public trust easement to extend to that line. App. A at A-1S.
Petitioners then sought review in the California Supreme Court,
but the petition was denied on March 4, 1987. App. E, infra.

The practical effect of the California court’s action has been to
superimpose a public trust easement over all lands lying above
elevation 6223.0 feet up to elevation 6228.75 feet. This five-foot
vertical elevational rise, when translated to horizontal distance,
embraces extensive tracts of the gradually sloping shore, including
all dry beaches surrounding Lake Tahoe. Under California’s
public trust doctrine, these lands remain subject to the public
trust easement even when not covered by waters of the lake.

REASONS FOR GRANTING THE WRIT

Once upon a time, when state governments wanted private land
for public use, they bought and paid for it—by conventional
purchase, if possible; otherwise, by exercising the power of emi-
nent domain. That was thought to be what the Constitution
commanded of all governments. See Monogahela Navigation Co.
v. United States, 148 U.S. 312, 324-326 (1893); Chicago, Bur-
lington & Quincy Railroad v. City of Chicago, 166 U.S. 226, 241
(1897). To be sure, this age of innocence soon gave way to the
idea that regulation was the free alternative to condemnation.
And this Court has not been ungenerous in sustaining such
measures against the charge that they effected an uncompensated
“taking.” See e.g., Keystone Bituminous Coal Association v. De
Benedictis, No. 85-1092 (March 9, 1987), and cases cited therein
at slip op. 12-13, 16-17, 18-19, 22, 25. It became clear, however,
that some limits exist: regulation that “goes too far” in appropri-
ating private property to public uses will be struck down unless
payment is made. E.g., Hodel v. Irving, No. 85-637 (May 18,
1987); Loretto v. Teleprompter Manhattan CATV Corp., 458
U.S. 419 (1982); Kaiser Aetna v. United States, 444 U.S. 164,

9

178-180 (1979); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,
413-416 (1922). And so, a new and more fool-proof scheme of
cost-free expropriation has been invented. This device is the so-
called “public trust” doctrine.

We are not challenging the State’s regulatory authority to
curtail a public nuisance or to assure reasonable land use planning
through adoption of zoning laws under the police power. Nor do
we meddle with the aspect of the public trust theory which
inhibits state officers, for the future, from alienating or encumber-
ing, except for special “public” purposes, permanently or periodi-
cally submerged lands still owned by the State. Our concern,
rather, is with the belated superimposition of a pervasive “public
trust” easement on private property which was severed from the
public domain in the Nineteenth Century without any hint of
restriction. Because retrospective legislation or administrative
action attempting to accomplish the same result obviously would
raise a serious “taking” question, it has become the fashion to ask
state courts for a declaration that—albeit no one then knew
it—the law impressed a “servitude” of the kind now claimed on
coastal or riparian or littoral land when it was originally sold or
ceded. E.g., Summa Corp. v. California ex rel. State Lands
Commission, 466 U.S. 198 (1984); Hughes v. State of Washing-
ton, 389 U.S. 290 (1967); see R. Lazarus, “Changing Concep-
tions of Property and Sovereignty in Natural Resources:
Questioning the Public Trust Doctrine,” 71 lowa L. Rev. 631,
643-664 (1986). Cf, California ex rel. State Lands Commission
v. United States, 457 U.S. 273, 277 (1982); Robinson v. Ariyoshi,
753 F.2d 1468 (9th Cir. 1985), vacated and remanded, No. 85-
406 (June 23, 1986); Nollan v. California Coastal Commission,
177 Cal. App. 3d 719 (1986), juris. noted, No. 86-133 (October
20, 1986); Matcha v. Mattox, 711 S.W.2d 95 (Texas Ct. App.
1986), cert. denied, No. 86-1346 (April 20, 1987).

Whatever may be the case elsewhere, California has been
uninhibited in its rediscovery of the public trust doctrine. It has
been found to impress an easement on almost all privately owned
land near water, including non-navigable tidelands, whether or not
now filled (see Summa Corp. v. California ex rel. State Lands
Commission, 466 U.S. at 202 n.2, 204-205, 206 n.4); waterways

10

usable only for pleasure boating and not navigable under the
federal commercial navigability in fact test (National Audubon
Society v. Superior Court, 33 Cal. 3d 419, 658 P.2d 709 (1983),
cert. denied sub nom., City of Los Angeles Department of Water &
Power v. National Audubon Society, 464 U.S. 977); the beach
above high tide (Nollan v. California Coastal Commission,
supra); former submerged lands and tidelands now accreted to
coastal uplands (see California ex rel. State Lands Commission v.
United States, 457 U.S. at 277); the shore of a navigable non-tidal
lake between ordinary high and low watermark (State v. Superior
Court (Lyon), supra, cert. denied sub nom., Lyon v. California,
454 U.S. 865 (1981)); and, in this case, the lake shore above the
natural high waterline. According to California, moreover, this
easement persists long after the area has become high and dry and
it is so pervasive that, as this Court has commented, what is left to
the owner is “little more than the naked fee.” Summa Corp., 466
U.S. at 205, 206 n.4.

Surely, the time has come to call a halt to such an unrestrained
appetite. The California Supreme Court has declined the most
recent opportunity to do so and we accordingly turn to this Court.
In California itself, there are some 4000 miles of shoreline and
many thousands of acres implicated. See App. D at A-39; App. C
at A-24. These include substantial tracts owned by the United
States, both as “reserved lands” that never left federal ownership
and lands later reacquired. See Pet. for Rehearing in No. 81-163,
Lyon v. California at A-S to A-6, A-11, A-16, A-22 to A-23.
Besides, California is not quarantined and gluttony is a contagious
vice. See R. Lazarus, supra.

We make two points, both invoking the general proposition that
judicial imposition of the kind of pervasive easement involved
here on land held in unencumbered private ownership for a
century amounts to a “taking” without compensation in violation
of the Constitution. We first apply this principle to the State’s
claim of public trust rights to any part of the “shorezone’ of Lake
Tahoe, above the mean low waterline. Second, we focus sepa-
rately on the portion of the shore above the natural mean high
waterline and submit that California’s attempted extension of the

1]

easement to that area is additionally vulnerable because it reaches
lands never held by the State.

1. For present purposes, we assume that, upon its admission
to the Union in 1850, California acquired title to the bed and
shores of all navigable lakes to ordinary high watermark.° See
Barney v. City of Keokuk, 94 U.S. 324 (1877). But even the
California Supreme Court concedes that, by enactment of Civil
Code section 830 in 1872, the State could, and did, relinquish
ownership of the shore—between high and low watermark—to
the littoral proprietors. App. D at A-47 to A-52. And that remains
the situation today, section 830 being still good law. The State’s
claim, therefore, is necessarily stated as a “public trust” easement
over private soil. The difficulty is that no one in California had
ever heard of such a public servitude attaching to the shore of a
freshwater lake—except perhaps for navigation—until a hundred
years after Civil Code section 830 was enacted. See App. D at A-
53 to A-63; id. at A-68 to A-72 (Clark, J., dissenting). See a/so
Lyon v. Western Title Insurance Co., 178 Cal. App. 3d 1191,
1197-1203, 224 Cal. Rptr. 385, 388-93 (1986).’ It seems plain

“It is arguable that, by adopting the common law of England even
before statehood in 1850, California immediately elected to disclaim
both the bed and shores of non-tidal navigable waters and that the effect
of adopting Civil Code section 830 in 1872 was to now claim the bed for
the State, but to leave the shore in private ownership. See App. D at A-
38 to A-46. Under this scenario, California never owned the shorezone.
However, we do not here challenge the California Supreme Court's
rejection of this history. See id. at A-46.

"The California court’s reliance on Illinois Central Railroad v.
Illinois, 146 U.S. 387 (1892), is obviously misplaced . See App. D at A-
55 to A-57. As the dissent pointed out, that decision relates to the
wholesale alienation of the permanently submerged bed of Lake Michi-
gan in the vicinity of Chicago to a favored monopoly, not the cession of
the shorezone indifferently to all littoral owners. See App. D at A-72.
The case, moreover, has been distinguished as merely stating Illinois law
(Appleby v. City of New York, 271 U.S. 364, 395 (1926)), and, at all
events, presumably has not survived the Court’s decision in Oregon ex
rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363
(1977).

12

that the belated superimposition of a servitude “of such substan-
tial magnitude” (Summa Corp. v. California ex rel. State Lands
Commission, 466 U.S. at 209) works an impermissible taking of
property without compensation.

It is no answer to say that, as owner of the shore a century ago,
California was free to burden the land with any conditions it chose
when it ceded it to the littoral proprietors. What might have been
done in 1872, but was not, cannot be done today—short of
payment. Otherwise, one might plausibly argue that because
California could have retained the whole fee interest in the shore
lands, the State may now recapture the entire title without
tendering compensation. A sufficient illustration of the principle
that timing is often critical is to be found in Kaiser Aetna vy.
United States, supra p. 8. There, the Court held that although the
United States could have conditioned permission to dredge a
“private” pond upon the owners’ conceding public navigation
rights, the later exaction of such an easement would require the
payment of just compensation. Kaiser Aetna, 444 U.S. at 179-
180. See also Leo Sheep Co. v. United States, 440 U.S. 668, 687-
688 (1979); Federal Power Commission v. Niagara Mohawk
Power Corp., 347 U.S. 239, 248-249, 254-256 (1954). Needless
to say, Kaiser Aetna equally put to rest any notion that the
imposition of a public trust easement over partially or wholly
submerged lands, cannot amount to a “taking” in the constitu-
tional sense. See United States v. Riverside Bayview Homes, Inc.,
No. 84-701 (Dec. 4, 1985) at slip op. 5 n.4. In Kaiser Aetna,
merely opening a “private” waterbody to public navigation with-
Out any further assertion of public rights was held to constitute a
taking. Here, of course, the easement asserted is much more
pervasive.

Nor is an unconstitutional taking avoided because vested prop-
erty rights are manipulated out of existence by judicial fiat, rather
than legislative or executive action. We appreciate that a federal
court, even this Court, must be especially hesitant to declare that
a State judicial decree, defining state law, violates the Constitu-
tion. Cf. Demorest v. City Bank Farmers Trust Co., 321 U.S. 36,
42-43 (1944). Yet, the Court has long ago settled that state
judicial action is subject to constitutional scrutiny. E.g., Ex Parte

13

Virginia, 100 U.S. 339 (1880); Nebraska Press Association v.
Stuart, 427 U.S. 539 (1976). See Pulliam v. Allen, 466 U.S. 522,
536-545 (1984). In a variety of contexts, moreover, the decision
of a state court has been reviewed here to determine whether it
has made such an arbitrary or unpredictable declaration of local
law as to deny due process or otherwise deprive the petitioner of a
federal right. E.g., Ward v. Board of County Commissioners of
Love County, 253 U.S. 17 (1920); Georgia Railway & Power Co.
v. Town of Decatur, 262 U.S. 432, 438 (1923); Indiana ex rel.
Anderson v. Brand, 303 U.S. 95 (1938); Demorest v. City Bank
Farmers Trust Co., supra, NAACP v. Alabama ex rel. Patterson,
357 U.S. 449, 457-458 (1958); NAACP v. Alabama ex rel.
Flowers, 377 U.S. 288, 293-302 (1964); Bouie v. City of Colum-
bia, 378 U.S. 347-355, 362 (1964). Indeed, in Muhlker v. New
York & Harlem Railroad 197 U.S. 544, 570 (1905), the Court
struck down a state court judgment expressly on the ground that it
effected an uncompensated taking of property. And, more re-
cently, the principle was espoused in Justice Stewart’s concurring
opinion in Hughes v. State of Washington, 389 U.S. at 296-297.
See also Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S.
77, 88 (1922).

2. A further question arises in respect to that portion of the
lake shore that lies between the natural high watermark and the
present artificially higher level resulting from the operation of the
Truckee River dam. Although the California Supreme Court
avoided the question (see App. C at A-28 to A-31), we deem it
clear that the State cannot claim to have ever owned this portion
of the shore. The Equal Footing doctrine vested title to the bed
and shores of the lake, in its natural condition, as it was in 1850.
E.g., Utah v. United States, 403 U.S. 9, 10-11 (1971). The effect
of subsequent artificial drainage must be ignored. E.g. United
States v. Holt State Bank, 270 U.S. 49, 52-53, 56-57 (1926). By a
parity of reasoning, the boundary of state ownership does not shift
when a lake level is later boosted up by damming its outlet.
Indeed, the Court has stated that the constitutional “grant” ts
fully “spent” at statehood. Oregon ex rel. State Land Board v.

14

Corvallis Sand & Gravel Co., 429 U.S. 363, 371, 374 (1977).
Nor is there any other basis for state title above the natural high
watermark before 1872 when Civil Code section 830 formally
ceded the entire shore to the littoral proprietors. Obviously, no
prescriptive rights could yet have matured, the installation of the
first dam having only occurred in 1870, two years earlier. See
App. C at A-30.

As to this area, therefore, there having been no transfer from
the State, it is impossible to assert that a public trust servitude
was impressed on the soil at the time of conveyance. How then
did the easement attach? Almost as an afterthought, the Califor-
nia Supreme Court announced that it was acquired by the State
at some unspecified date through the operation of prescription.
App. C at A-29 to A-31. This, it must be stressed, is not based on
California precedents, admittedly lacking (App. C at A-29), but
on one old case from Arkansas and another from Iowa (App. C at
A-30). For at least two reasons, this will not do.

First, the rule of law invoked is wholly new and unexpected. As
we have said, the California Supreme Court conceded that no
previous California case suggested a public trust easement attach-
ing to private land by adverse possession. And, what is more, the
court below expressly concluded that the State was claiming no
such rights over the lake shore until 1977, just before the suit was
filed. App. A at A-12. Indeed, the operation of the Truckee River
dam in Nevada that directly raised the lake level was at no time
under the control of the State of California. See Nevada v. United
States, 463 U.S. 110 (1983). Thus, neither the alleged beneficiary
nor the victim was in a position to affect the events that are now

“It is not clear whether the ambulatory boundary rule reflected in the
Submerged Lands Act, 43 U.S.C. § 1301(a)(1), is the constitutional
standard for purposes of the Equal Footing Doctrine, even when the
United States is not the littoral owner. See California ex rel. State Lands
Commission v. United States, supra p. 9. But, at all events, the
ambulatory principle reaches only gradual changes, not sudden avulsive
alterations of the shoreline, especially when artificially caused. E.g.,
Arkansas v. Tennessee, 246 U.S. 158, 173 (1918); Missouri v. Ne-
braska, 196 U.S. 23, 34-36 (1904); Nebraska v. lowa, 143 U.S. 359,
361, 367, 370 (1891).

15

said to have worked a shift of property interests; neither was even
aware of the supposed significance of these activities, the State
expressly disclaiming any effect on land interests; and, at various
times, both the State and the littoral owners protested the
artificial raising of the lake level. To hold that a prescriptive title
ripened under these circumstances would be novel in any
jurisdiction.

There is, in any event, a further obstacle. Even the federal
navigational servitude does not condone the uncompensated
flooding of fast lands surrounding a navigable waterbody above
the level of ordinary high water. E.g. United States v. Rands, 389
U.S. 121, 123 (1967). We therefore do not appreciate how the
littoral owners on Lake Tahoe can have lost any part of their land
interest above that line to the State of California merely because,
without obtaining their consent or making any payment, third
parties (whether private operators or the United States) caused
some part of their lands to be flooded. Unsurprisingly, California’s
Attorney General himself shared our view as recently as 1957 and
1964. 30 Ops. Cal. Atty. Gen. 262, 268 (1957); 43 Ops. Cal. Atty.
Gen. 291, 295 (1964). It is injury enough that the littoral owners
have suffered a physical invasion of their uplands at various times;
there is no warrant for also subjecting those lands to the perpetual
public trust easement now asserted. Any state law rule to the
contrary must be deemed to work an unconstitutional taking of
private property. To paraphrase the Court's ruling in a closely
related context:

it is not for a state, by courts or legislature, in dealing with
the general subject of navigable [lakes], to adopt a retroac-
tive rule for determining [the high waterline] which would
destroy a title already accrued under federal law and grant, or
would enlarge what actually passed to the state, at the time
of her admission, under the constitutional rule of equality
here invoked.

Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. at 88.

3. Generally speaking, courts are reluctant to upset rules and
rulings affecting real property rights. Arizona v. California, 460
U.S. 605, 620 (1983). See also Nevada v. United States, 463 U.S.

alleen

16

at 129 n.10; Leo Sheep Co. v. United States, 440 U.S. at 687-88;
United States v. Title Insurance & Trust Co., 265 U.S. 472, 486-
87 (1924). A sufficient reason, of course, is that private landed
interests typically implicate substantial values, economic and
psychological, and are uniquely associated with stability and
predictability. Like considerations underlie the special protection
accorded to real property by our Constitution, which inhibits
official action that impairs vested rights without “due process of
law,” or without “just compensation.” U.S. Const., Amends. V
and XIV. For the most part, the balance has been kept right by
the courts themselves. But recent experience, especially in Cali-
fornia, does not justify continued reliance upon judicial self-
restraint—much less on the self-discipline of state governments
invoking the courts. It is now necessary to make clear that, at
some point, the Constitution itself forbids confiscation of private
property by judicial re-interpretation of the law.

This is an extreme case. Unlike other recent examples (e.g.,
Coastal Petroleum Co. v. American Cyanamid Co., 492 So. 2d
339 (Fla. 1986), cert. denied sub nom., Mobil Oil Corp v. Board
of Trustees, No. 86-823 (February 26, 1987)), there is no
pretense here that the State law rules, applied to effectively strip
petitioners of their lakeshore rights, were settled propositions, in
place when petitioners acquired their interests a century ago. On
the contrary, it is frankly conceded that this is the first application
to a freshwater setting of legal principles that are none too well
established in any context; and the dramatic impact of the ruling
for this case, and others to follow, is not disguised. Nor is there
now any arguable “finality” or “ripeness” question.” Here, the
physical extent and the legal intensity of the burden have been
fully defined and all avenues of relief (short of this Court) have
been firmly shut. Compare MacDonald, Sommer & Frates v. Yolo
County, No. 84-2015 (June 25, 1986), and cases cited at slip op.

"Such a problem may have existed when the Court considered and
denied the earlier petitions for certioran. Lyon v. California, 454 US.
$65 (1981). At that time, the case had been remanded to the trial court
for a determination of both the high and low watermarks (see p. 7.
supra), and the extent of the lands affected by the ruling was therefore
not yet known.

17

8-10. In sum, this case is an appropriate vehicle for a needed
declaration that the Constitution still protects real property
against expropriation, even when the state invokes its courts to
work that result.

CONCLUSION

For the reasons stated, a writ of certiorari should be granted to
review the decision of the California Court of Appeal.

Respectfully submitted,

Louis F. CLAIBORNE
Counsel of Record
EDGAR B. WASHBURN
WASHBURN & KEMP
A Professional Corporation
Attorneys for Petitioners

May 1987

(Appendices follow)

Appendix A

In the Court of Appeal
of the State of California
in and for the Third Appellate District
(Placer)

3 Civil 25115
(Super.Ct.No. 48281)

Charles F. Fogerty,
Tahoe Shorezone, Representation, et al.,
Plaintiffs and Appellants,

VS.

State of California, et al.,
Defendants and Respondents.

[ Filed Nov. 24, 1986]

APPEAL from a judgment of the Superior Court of Placer
County, Keith Sparks and George Yonehiro, Judges. As modi-
fied, the judgment is affirmed.

William T. Chidlaw, Peter E. Racobs, Washburn & Kemp, and
Edgar B. Washburn for Plaintiffs and Appellants.

John K. Van De Kamp, Attorney General, N. Gregory Taylor,
Assistant Attorney General, Jan Stevens and David B. Judson,
Deputy Attorneys General for Defendants and Respondents.

In State of California v. Superior Court (Lyon) (1981) 29
Cal.3d 210 (hereafter “Lyon’’) our Supreme Court held that the
lands lying between the low and high watermarks of Clear Lake
are owned by their littoral owners subject to a “trust” interest held
by the State of California for the benefit of the public for purposes
of commerce, navigation, fishing, recreation, and preservation of
the land in its natural state. (/d., at pp. 226-233.) In State of
California v. Superior Court (Fogerty) (1981) 29 Cal.3d 240
(hereafter “Fogerty”) our high court held, in this very case, that
the public trust enunciated in Lyon was applicable to Lake Tahoe.
(/d., at pp. 243, 247.) In this appeal, we hold that, for purposes of

A-2

determining the boundaries of land along the shore of Lake Tahoe
subject to the public trust, the low watermark of the lake is 6223
feet above sea level, Lake Tahoe datum, and the high watermark
is 6228.75 feet above sea level, Lake Tahoe datum.

PROCEDURAL BACKGROUND

This litigation began in 1977 when the Attorney General
informed the State Lands Commission that the state claimed fee
ownership of the shorezone, the property lying between the low
and high watermarks of navigable nontidal lakes and rivers.
(Fogerty, supra, 29 Cal.3d at p. 243.) The Commission proposed
to record claims to such lands in county recorders’ offices
throughout the state. (/bid.) Thereupon, plaintiffs Charles and
Stella Fogerty and other owners of property along the shores of
Lake Tahoe, and Tahoe Shorezone Representation, a corporation
which represents many shorezone owners, filed this litigation
claiming they and not the state owned the lands between low and
high waters. (/bid.) In Lyon our Supreme Court resolved this
question, concluding private citizens held fee title to the lands to
the low watermark. (Lyon, supra, 29 Cal.3d at p. 226.) The court
went on to hold, however, that the land between low and high
water was subject to the public trust. (/d., at pp. 226-233.)

The court first determined that California acquired sovereign
fee ownership of the lands between low and high water in nontidal
navigable lakes and rivers upon its admission to the Union.
(Lyon, supra, at pp. 217-222.) The court next determined that, by
the enactment of Civil Code section 830 in 1872, the Legislature
granted fee title to the lands in question to the littoral property
owners.’ (/d., at pp. 222-226.) Finally, the court considered
whether the grant of fre title was free of the public trust described

' Civil Code section 830 provides that “Except where the grant under
which the land is held indicates a different intent, the owner of the
upland, when it borders on tidewater, takes to ordinary high-water mark;
when it borders upon a navigable lake or stream, where there is no tide.
the owner takes to the edge of the lake or stream, at low-water mark:
when it borders upon any other water, the owner takes to the middle of
the lake or stream.”

Oe aa

A-3

in City of Berkeley v. Superior Court (1980) 26 Cal.3d 515. The
court concluded it was not, and that the trust still applied, relying
on the settled proposition that lands held by the state in trust
remain subject to the trust once conveyed to private parties unless
the conveyance was made for trust purposes. (Lyon, supra, at pp.
226-232.)

In Fogerty, the People sought a writ of mandate from our
Supreme Court after the trial court had entered partial summary
judgment decreeing that no real property lying landward of the
last natural low watermark of Lake Tahoe was subject to the
public trust. (29 Cal.3d at p. 243.) The court addressed two
questions not discussed in Lyon.

First, the court concluded the People may not be estopped from
asserting their public trust interest in those lands lying between
low and high watermarks: “The exercise of the police power has
proved insufficient to protect the shorezone. The urgent need to
prevent deterioration and disappearance of this fragile resource
provides ample justification for our conclusion that the People
may not be estopped from asserting the rights of the public in
those lands.” (Fogerty, supra, 29 Cal.3d at p. 247.)

Second, the court concluded the boundary between public and
private ownership was to be measured by using the “current” level
of the lake. (/d., at pp. 248-249.) Although Lake Tahoe had
existed before statehood, its elevation was raised significantly by
the construction of a dam across its natural outlet into the
Truckee River in 1870. (Fogerty, supra, 29 Cal.3d at p. 247.)
Lands were inundated which, before statehood, had belonged to
the littoral owners free of the public trust. The court therefore
faced the question whether these newly-flooded lands remained
free of the trust or had become subject to it. (/bid.)

The court began by noting with approval the People’s conten-
tion that it would be difficult if not impossible to reconstruct the
natural water levels of a lake. (/d., at p. 248.) The court reasoned
that “The monumental evidentiary problem which would be
created by measuring the boundary line between public and
private ownership in accordance with the water level which
existed prior to the construction of [the dam] provides a convinc-

A-4

ing justification for accepting the current level of the lake as the
appropriate standard.” (Jbid., emphasis added.)

The court went on to note, “Moreover, the dam at Lake Tahoe
has been in existence since 1870, long past the period required for
the acquisition of prescriptive rights by the state of the lands in
question. (Civ. Code, § 1007; Code Civ. Proc., § 325.) It has
been held in other jurisdictions that a landowner loses ownership
of property covered by water resulting from the construction of a
dam if the condition has continued for the period required for the
acquisition of prescriptive rights. (State v. Parker (1918) 132
Ark. 316 [200 S.W. 1014, 1016]; State v. Sorenson (1937) 222
lowa 1248 [271 N.W. 234, 238-239].) Sorenson stated that in
these circumstances ‘the artificial condition is... stamped with
the character of a natural condition, and the title to the lands
covered by the waters of the lake is deemed to have passed from
private ownership to the same trust as that of lands covered by the
waters of natural navigable lakes. The state, and private owners,
as well, of lands affected by the artificial condition, may enforce
the maintenance of that condition.’ ” (Fogerty, supra, 29 Cal.3d
at pp. 248-249.) Thus, the court held the trial court had erred in
using the pre-dam level of the lake to set the low watermark. (/d.,
at p. 249.)

The Fogerty court issued a writ of mandate directing the trial
court (a) to vacate its order granting the landowners’ motion for
partial summary judgment and (b) to grant the People’s motion
for partial summary judgment and partial judgment on the plead-
ings “insofar as consistent with the views expressed above.”

(bid. )

In Lyon, the court added a footnote referring to Fogerty and
directing “that the determination of the boundary between public
and private ownership must be assessed in accordance with the
shoreline of the lake as it exists presently.” (Lyon, supra, 29
Cal.3d at p. 232, fn. 20.) The Lyon court issued a writ identical to
that in Fogerty. (/d., at p. 233.)

Following our Supreme Court's issuance of its writ to the trial
court in this case, the state moved for summary judgment. The
State submitted voluminous exhibits in support of its motion

A-5

which established, among other things, that several agencies of
government including the U.S. Army Corps of Engineers, the
California Tahoe Regional Planning Agency and the bistate
Tahoe Regional Planning Agency have consistently used the
figure of 6229.1 feet above sea level as the lake’s high watermark.
That figure had its genesis with the California- Nevada Interstate
Compact Commission in 1934 and was premised on the volume
of water needed by users along the Truckee River. It was
incorporated in the Truckee River Agreement of 1935 which was
negotiated by the United States and several major users of
Truckee River water. (See generally 30 Ops.Cal.Atty.Gen. 262
(1957).) It was also incorporated in a consent decree which
adjudicated the water rights of all users of Truckee River water.
(U.S. v. Orr Water Ditch Co. (U.S. Dist. Ct., Nev. 1944) Equity
No. A3.) However, the littoral property owners were never made
parties to the negotiations or the litigation. (30
Ops.Cal.Atty.Gen., supra, at p. 268.)

Defendants’ exhibit R showed the maximum and minimum
lake elevations from 1900 to 1984. The exhibit revealed that since
1917 the lake had never reached its negotiated high watermark of
6229.1 feet.2 The data summarized in the exhibit are undisputed
by the parties.

The trial court entered summary judgment in favor of the state
establishing among other things that: (1) the lake’s high water-
mark, as well as its low watermark, is to be determined in
accordance with the lake’s current conditions; and (2) the high
watermark of Lake Tahoe constituting the uppermost limit of the
lake subject to the public trust is located at 6229.1 feet above sea
level, Lake Tahoe datum.”

? However, it had come close on several occasions. Since the entry of
the consent decree in 1944 (which established the present mode of
water level regulation) the lake exceeded elevation 6229 feet on a total
of 81 days. During that time, however, it never rose the next one-tenth of
a foot to the theoretical maximum of 6229.1 feet.

‘The trial court’s judgment established the following:
“1 Plaintiff landowners holding otherwise valid grants to the
shores of Lake Tahoe hold to the low water mark thereof;

A-6

Plaintiffs’ appeal challenges these two rulings. As we shall
explain, we conclude many of plaintiffs’ contentions are fore-
closed by Lyon and Fogerty. However, plaintiffs also assert the
trial court erroneously fixed the high watermark at a theoretical
maximum elevation which the lake has not reached since 1917.
This contention is meritorious; we shall modify the trial court’s
summary judgment to reflect the high watermark as disclosed by
the record in accordance with the state’s acquisition of its prop-
erty interest by prescription.

Plaintiffs have acquiesced in the summary judgment’s estab-
lishment of 6223 feet as the lake’s low watermark and do not
challenge that figure on appeal. (See 9 Witkin, Cal. Procedure
(3d ed. 1985) Appeal, § 479, p. 469.) Defendants have not cross-
appealed (see op. cit. supra, at pp. 394-395) and may make no
challenge of their own. Accordingly, the figure of 6223 feet as the
low watermark is conclusively established. Consequently, as mod-

“2. The title of littoral owners at Lake Tahoe is impressed with
a public trust for commerce, navigation, fisheries and environmen-
tal preservation to the high water mark thereof:

“3. The state may not be estopped from asserting the rights of
the public to the high water mark at Lake Tahoe;

“4. The high and low water marks at Lake Tahoe are to be
determined in accordance with the current condition of that lake;

“S. The low water mark constituting the fee boundary between
[the bed of Lake Tahoe in] state sovereign ownership and upland
fee ownership is located at 6223 feet above sea level, Lake Tahoe
datum;

“6. The high water mark of Lake Tahoe constituting the
uppermost limit of that lake subject to the public trust is located at
6229.1 feet above sea level, Lake Tahoe datum;

“7. Any right of the plaintiffs herein to pier out to the line of
navigation in Lake Tahoe is subject to the authority of the State of
California and its designees to impose reasonable regulations;

“8. Plaintiffs holding property littoral to the bed of Lake Tahoe
have not been deprived of the use or enjoyment thereof without
compensation, contrary to the provisions of article 1, section 19 of
the state Constitution and amendments V and XIV of the United
States Constitution.”

A-7

ified to reflect the correct high watermark, the judgment shall be
affirmed.

DISCUSSION
I
Certain of Plaintiffs’ Contentions Cannot be Reconciled with
Lyon and Fogerty.

Read together, we think Lyon and Fogerty establish the follow-
ing rules: (1) the littoral property owners own the shorezone” of
Lake Tahoe in fee simple to the low watermark of the lake in its
“current” condition; (2) the property owners’ fee simple title in
the shorezone is impressed with a public trust analagous to an
easement, acquired by the State of California pursuant to the
doctrine of prescription and held for the benefit of the public for
purposes of commerce, navigation, fishing, recreation and preser-
vation of the land in its natural state.

In their attack on the judgment, plaintiffs have fired a fusillade
of contentions that essentially ask us to undo what Lyon and
Fogerty have done.° Thus, for example, although plaintiffs con-
cede in their brief that “Lyon held that the public trust easement
extends to the ordinary high watermark, making it necessary to
ascertain the location of that line,” plaintiffs contend the high
watermark must be set according to conditions prevailing in 1850,
when California was admitted to the Union.

This argument cannot be reconciled with Fogerty's conclusion
the state has acquired prescriptive rights by the incursion of
higher water caused by construction of the dam. (29 Cal.3d at pp.

4 The lands between iow and high water. (Fogerty, supra, 29 Cal.3d at
p. 245.)

‘These include the assertions: (1) that our Supreme Court’s deci-
sions in Lyon and Fogerty constitute a “sudden and unpredictable
change in state law” and thereby violate their constitutional rights to due
process of law; (2) that the state acquired no prescriptive rights in new
shorezone created by construction of the dam; and (3) that any
prescriptive rights acquired by the state permit fewer uses of land by the
public than the uses allowed by the public trust doctrine.

A-8

248-249.) The argument also asks us to disregard Fogerty’s
instruction that the low watermark must be set according to the
“current” level of the lake. (/d., at p. 248.) Plainly if the
shorezone must be established, and if the lower boundary of that
zone must be set by using the “current” level of the lake after
construction of a dam, then the upper boundary cannot be set
using the pre-dam level. That formula would theoretically allow
the upper boundary of the shorezone to be set at an elevation
lower than the lower boundary, so the shorezone would always be
under water. That result would effectively remove all shore from
the shorezone. Such a result cannot be reconciled with Fogerty’s
extensive discussion of the shorezone as “/and between high and
low water” necessary for the survival of birds, plants, and vegeta-
tion and useful for picnicking, hunting and biking. (Fogerty,
supra, 29 Cal.3d at p. 245, emphasis added.)

As an inferior court, we are duty bound to follow and apply the
law as interpreted by our Supreme Court. (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Plaintiffs
suggest the Supreme Court’s express instructions—to set the low
watermark using post-dam conditions—are dicta and may be
disregarded by this court. We cannot agree. Even when part of an
opinion is not relevant to material facts, if it is responsive to an
argument raised by counsel and intended for guidance of the court
and attorneys upon a new hearing, it probably constitutes the
basis of the decision and cannot be disregarded by a lower court
as mere dictum. (United Steelworkers of America v. Board of
Education (1984) 162 Cal.App.3d 823, 834-835; Paley v. Supe-
rior Court (1955) 137 Cal.App.2d 450, 460.) Here, in both Lyon
and Fogerty, the Supreme Court issued writs directing lower
courts to rule “consistent with the views expressed above.” (Lyon,
supra, at p. 233; Fogerty supra, at p. 249.) In these circumstances,
Fogerty’s direction to use the “current” post-dam level of the lake

“It is immaterial that the lower boundary now established—6223
feet—may or may not be lower than the high level of the lake in 1850.
That figure had not been agreed upon and was not discussed by the court
in Fogerty.

A-9

is not dictum.’ (United Steelworkers of America v. Board of
Education, supra, 162 Cal.App.3d at p. 835.) Indeed, the court's
remarks on the question constitute the law of the case that we are
obliged to follow. (People v. Shuey (1975) 13 Cal.3d 835, 841;
compare Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425,
434.) We shall therefore use the “current” condition of the lake
to set the high watermark.

The “Current” Level of Lake Tahoe is 6228.75 Feet
Above Sea Level, Lake Tahoe Datum.

Plaintiffs contend the trial court erred in setting the high level
of the lake it 6229.1 feet above seal level. For reasons that follow,
we agree.

A. The 1944 consent decree adjudicating water rights of all
users of Truckee River water does not establish the high
watermark of Lake Tahoe for public trust purposes.

In a consent decree entered into in 1944, the level of Lake
Tahoe was set at 6229.1 feet for purposes of adjudicating the
water rights of all users of Truckee River water. (U.S. v. Orr
Water Ditch Co. (U.S. Dist. Ct., Nev. 1944) Equity No. A3.)
The Attorney General now argues the consent decree may be
used to set the high level of the lake in this case. However, in
1957, the California Attorney General opined the consent decree
could have no effect on the property rights of littoral property
owners because they were not parties to the litigation. (30
Ops.Cal.Atty.Gen., supra, at p. 268.) We think the Attorney
General had it right in 1957. The party against whom the plea of
collateral estoppel or res judicata is asserted must have been a
party or otherwise privy to the prior action. (F. W. Woolworth
Co. v. Franchise Tax Bd. (1984) 160 Cal.App.3d 1154, 1160.)

’ Even assuming it is dictum we would be bound to follow it. (See
County of Fresno v. Superior Court (1978) 82 Cal.App.3d 191, 194.)

A-10

Since such was not the case here, the consent decree has no effect
on plaintiff's property rights.®

B. The state did not acquire any property rights by plaintiffs’
“acquiescence” in public administrative agencies’ use of
6229.1 feet above sea level as the high level of the lake.

As we have noted, the level of Lake Tahoe has never reached
elevation 6229.1 feet since 1917. Nonetheless, the defendants
note that correspondence and records maintained by the State
Lands Commission reveal a widespread acceptance of 6229.1 feet
as the lake’s high watermark. Defendants also point to an affidavit
by plaintiffs’ counsel suggesting that the figure of 6229 feet is
“generally accepted” as the high watermark. In addition, defend-
ants note that the U.S. Army Corps of Engineers, the California
Tahoe Regional Planning Agency and the bistate Tahoe Regional
Planning Agency have consistently used that figure. Defendants
conclude the widespread acceptance of the figure (6229.1 feet)
compels the conclusion the figure has been established by “acqui-
escence” and is now binding on plaintiffs. We cannot agree.

We note, first of all, that in Fogerty our Supreme Court neither
stated nor implied that it was of the view the littoral owners’ land
had been impressed with the public trust under a novel theory of
“acquiescene.” We do not read Fogerty as establishing some new
theory by which the state acquires rights in private property.
Indeed, what the court said in Fogerty was precisely the oppo-
site—that the state’s rights were obtained under the long-estab-
lished doctrine of prescription. The state’s proposed theory of
“acquiescene” is therefore not “consistent with the views ex-
pressed” in Fogerty, as that case directs. (29 Cal.3d at p. 233.)

Moreover, if defendants’ claim of “acquiescence” has any
grounding in an established theory of property rights, it may be
viewed as an assertion of an “agreed boundary.” However, the
assertion may not be maintained. The doctrine of agreed bound-
ary is wholly insufficient to sustain the trial court’s high water-
mark of 6229.1 feet.

“We also note the consent decree litigated water rights, not property
rights.

A-il

The elements required to establish an agreed boundary are well
established. They are: (1) uncertainty as to the true boundary
line; (2) an express or implied agreement between adjoining
landowners to accept a line as the boundary, and (3) acceptance
and acquiescence in the line for a period equal to the statute of
limitations or until action is taken in reliance on the agreement
which would result in substantial loss if the boundary were
altered. (French v. Brinkman (1963) 60 Cal.2d 547, 551; Erie v.
Trinity Lutheran Church (1959) 51 Cal.2d 702, 707-709; see
Humphrey v. Futter (1985) 169 Cal.App.3d 333, 338; Finley v.
Yuba County Water Dist. (1979) 99 Cal.App.3d 691; 699; 3
Miller & Starr (rev. ed. 1977) § 21:27, pp. 552-559.)

The objects of the agreed boundary doctrine are to secure
repose, to prevent strife and disputes concerning boundaries, and
make titles permanent and stable. (Martin v. Lopes (1946) 28
Cal.2d 618, 623; 3 Miller & Starr, op. cit. supra, § 21:27, pp. 553-
554.) The policy of the law is to give stability to agreements
which the parties themselves undertake in good faith in an effort
to settle an extant controversy. (Martin v. Lopes, supra, at p.
624.)

Where an extant controversy is absent the doctrine may not be
applied. For example, the mere erection of a fence at a certain
point does not establish a boundary if there is no dispute which
the construction of the fence purports to resolve. (See Dooley’s
Hardware Mart v. Trigg (1969) 270 Cal.App.2d 337, 340.)
Although the existence of a dispute may be inferred from long
standing acceptance of a fence as a boundary (Ernie v. Trinity
Lutheran Church, supra, 51 Cal.2d at p. 708), where there is
direct evidence that no controversy existed the doctrine of agreed
boundaries is inapposite. (Dooley’s Hardware Mart v. Trigg,
supra, 270 Cal.App.2d at pp. 340-341; 3 Miller & Starr, op. cit.
supra, § 21:31, p. 562.)

Here, the agreed boundary doctrine is inapplicable because, at
the time the figure of 6229.1 feet was established as a limitation
on filling Lake Tahoe, and until recently, there was no extant
controversy as to the boundary of public property rights, so no
controversy was resolved. We know this, as a matter of law,
because “with few exceptions, state authorities, including the

A-12

Attorney General, took the position until at least 1970 that by
virtue of the provisions of [Civil Code] section 830 the state
claimed ownership only to the low water mark. [ Citations. }”
(Lyon, supra, at p. 224.) The state first asserted claim to the
lands at Lake Tahoe in 1977, whereupon this litigation was
promptly filed. (Fogerty, supra, at p. 243.) Before the state’s
assertion of its claim in 1977, the owners had no reason to believe
the figure of 6229.1 feet was anything more than a limitation on
filling the reservoir. They had no cause to suspect it could have
further significance as a property boundary for purposes of the
public trust doctrine. The owners had no more reason to believe
their property rights were being adjusted under the agreed bound-
ary doctrine (by their acquiescence in a theoretical lake level of
6229.1 feet) than would the property owner who watches his
neighbor build a fence on the neighbor’s own land in order to
comply with an ordinance requiring the construction of fences.
(See Dooley’s Hardware Mart v. Trigg, supra, 270 Cal.App.2d at
pp. 339-340.) Thus, there was no controversy over property
boundaries to be resolved by agreement. (/d., at pp. 340-341.)

In the circumstances it would be manifestly unfair, if not
disingenuous, to justify the imposition of public trust rights upon
private owners’ land on the basis that the owners, by their
ignorance and inaction, somehow “agreed” to imposition of the
public trust boundary at elevation 6229.1 feet. The trial court’s
high watermark may not be sustained under a theory of “agreed
boundary.”

C. The extent of the public trust must be established in
accordance with a theory of prescriptive rights.

1. The doctrine of prescription will not support a high
watermark of 6229.1 feet.

As we have noted, we read Fogerty as establishing that the
People have acquired their public trust rights in the shorezone by
prescription. Although the public trust may not be in all respects

A-13

identical to an easement,’ we think the similarities are sufficient
to justify resort to the law of prescriptive easements to set the
upper boundary of the public trust. (See, e.g., Gilardi v. Hallam
~ (1981) 30 Cal.3d 317, Gion v. City of Santa Cruz (1970) 2
Cal.3d 29, 41.)

Defendants contend a high watermark of 6229.1 feet has been
established by prescription. However, we cannot agree.

“The elements necessary to establish a prescriptive easement
are well settled. The party claiming such an easement must show
use of the property which has been open, notorious, continuous
and adverse for an uninterrupted period of five years.” (Warsaw v.
Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570; Code
of Civ. Proc., § 321.) The purpose of these requirements is to
insure that the owner of the real property which is being en-
croached upon has actual or constructive notice of the adverse use
and to provide sufficient time to take necessary action to prevent
that adverse use from ripening into a prescriptive easement.
(Twin Peaks Land Co. v. Briggs (1982) 130 Cal.App.3d 587,
593; Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 431.)

Unlike waters which actually lap upon the shore, a high
watermark which exists only on paper and not on the land is not a
“use” of the land at all, much less an “open” one. (See Warsaw v.
Chicago Metallic Ceilings, supra, 35 Cal.3d at p. 570.) A “paper”
high watermark—particularly one unaccompanied by the asser-
tion of any effect on property rights—cannot fulfill the notice
purpose underlying the elements of prescription. (Twin Peaks
Land Co. v. Briggs, supra, 130 Cal.App.3d at p. 593; Zimmer v.
Dykstra, supra, 39 Cal.App.3d at p. 431.) As the court of appeal
has colorfully said, an adverse user “ * “must unfurl his flag on the
land, and keep it flying, so that the owner may see, if he will, that
an enemy has invaded his domains, and planted the standard of
conquest.” *” (Wood v. Davidson (1944) 62 Cal.App.2d 885,
890.) To continue the metaphor, merely filing the blueprints for a
flagpole over at the irrigation district offices or at the federal

” Thus, for example, Lyon apparently establishes that the uses of land
subject to the public trust are broader than actual uses of the land
previously by the public. (See Lyon, supra, 29 Cal.3d at p. 229.)

A-14

courthouse with the thought that, someday, the flagpole might be
built, is not the sort of notice to which the landowner is entitled.
The trial court erred in concluding that 6229.1 feet was the high
watermark.

2. Application of the doctrine of prescription results in a
high watermark of 6228.75 feet above sea level.

Fogerty’s doctrine of prescriptive rights is derived from cases
allowing the public to obtain property rights from the actual
incursion of dam waters upon the shore. (See Fogerty, supra, 29
Cal.3d at p. 248; State v. Parker (1918) 132 Ark. 316 [200 S.W.
1014, 1016]; State v. Sorenson (1937) 222 Iowa 1248 [271 N.W.
234, 238-239].) We shall therefore use the actual incursion of the
waters to set the high level of Lake Tahoe. The question is: what
is the appropriate level of actual incursion? Once again, we turn to
the law of prescriptive easements for the answer.

“To acquire a prescriptive easement, the easement must be
used in the required manner continuously and without interrup-
tion for the full prescriptive period [of five years]. The actual use
required depends on the nature of the easement. It need not be
used every day during the prescriptive period. The use is sufficient
if it occurs on those occasions when it is necessary for the
convenience of the user.” (3 Miller & Starr, op. cit. supra,
§ 18:37, pp. 327-328.) “If a right of way over another’s land has
been used for more than five years, it is not necessary, to make
good such use, that the claimant has used it every day. He uses it
every day, or once in every week, or twice a month, as his needs
require. He is not required to go over it when he does not need it.
to make his use of the way continuous. The claimant is required
to make such reasonable use of the way as his needs require.”
(Hesperia Land etc. Co. v. Rogers (1890) 83 Cal. 10, 11.)

In Hesperia Land our Supreme Court held that a user of a
water ditch need not use the ditch year-round in order to satisfy
the requirement of continuous use. It was sufficient that he used
the ditch during the growing season and then only when he
needed it. (/bid.; see Twin Peaks Land Co. v. Briggs supra, 130
Cal.App.3d at p. 593.)

A-15

We find Hesperia Land directly analogous to the situation at
bar. The need for water storage, like the need for water transpor-
tation in an irrigation ditch, fluctuates from season to season and
ultimately from year to year. We believe it wholly unnecessary to
the doctrine of prescription for water impounded behind a dam to
remain in place continuously for the five-year period in order for
prescriptive rights to attach. Practical experience tells us no
reservoir operates that way. We believe, instead, that the needs of
the reservoir operator are determinative. (Hesperia Land etc. Co.
v. Rogers, supra, 83 Cal. at p. 11.) Where the reservoir operator
returns the waters to a zenith each water year and maintains the
water at that elevation for the duration of his needs his use of the
reservoir is “continuous” up to and including that highest point.
(Ibid.) For purposes of the public trust doctrine, we shall there-
fore set the high watermark of Lake Tahoe at the highest
elevation actually reached by the “current” lake in five sequential
years.

Applying this rule to the undisputed data contained in defend-
ants’ exhibit R is relatively straightforward. We must look to the
lake’s current conditions. (Fogerty, supra, 29 Cal.3d at pp. 248-
249.) Thus, we consider the water levels after 1944 when the
present mode of water level regulation was established. Examin-
ing defendants’ exhibit R, we find that the five consecutive years
of highest water since 1944 are years 1967, 1968, 1969, 1970, and
1971. In each of those five years, the lake has reached elevation
6228.75 feet.'® This is a “continuous” use of the reservoir up to

The actual water levels were as follows:

Se Se er ee 6228.87 feet
ON ey ae a 6228.75 feet
I eh awe 2 8A 6229.05 feet
LE SA ee 6229.05 feet
SRA eee 6228.99 feet

Needless to say, only the lowest of these five elevations has been
reached each year.

Because the last year of the prescriptive period was 1971 we need not
consider the effect, if any, of Civil Code section 1009 (effective 1972)
which provides a means of protecting owners of private property who

A-16

that elevation for the purposes of prescriptive rights. (Hesperia
Land etc. Co. v. Rogers, supra, 83 Cal. at p. 11.)

We acknowledge that the high watermark should be “ordinary”
and should not represent the level reached by water in unusual
floods. (Lyon, supra, 29 Cal.3d at p. 216; State v. Sorenson,
supra, 271 N.W. at p. 236.) The undisputed data indicate the
figure of 6228.75 feet is not markedly different from other
elevations of the lake reached since 1944 and does not represent
an inappropriate unusual condition of the lake.'' We shall modify
the trial court’s judgment to establish the high watermark as
6228.75 feet above sea level, Lake Tahoe datum.'2

make their lands available to the public from later claims of prescriptive
rights.

'' For example, in years 1951, 1952, and 1953 the lake reached
elevations 6228.89, 6228.79, and 6229.04 feet, respectively. Similarly, in
years 1956, 1957, and 1958, the lake reached elevations 6229.04.
6229.07, and 6229.02 feet, respectively. In 1973, 1974, and 1975, the
lake reached 6228.64, 6228.92, and 6228.64 feet, and in 1982, 1983, and
1984 the lake exceeded elevation 6228.50 feet.

'’ The parties have Suggested various other methods that might be
used to set the high level of the lake. However, none of the methods they
Suggest is consistent with the theory of prescriptive rights which provides
the basis for the state’s assertion of its public trust. (Fogerty, 29 Cal.3d
at pp. 248-249.) We briefly summarize the proposed methods and their
shortcomings.

The traditional method of ascertaining the high watermark in tidal
waters is of little help. The height of the tides is determined primarily by
the gravitational effects of the sun and the moon; these effects run one
complete cycle every 18.6 years. The high tide is generally computed by
averaging the high tides occurring over such a period of time. (Borax
Consolidated v. City of Los Angeles (1935) 296 U.S. 10, 26-27 [ 80
L.Ed. 9].) This method is inconsistent with prescriptive rights obtained
during a five-year period of time. Moreover, nontidal waters generally,
and waters impounded behind a dam in particular, know of no tidal
rhythmic regularity. Water stored in reservoirs, like that in uncontrolled
lakes and streams, fluctuates with the weather but is also under the
direct control of man. Thus, the 18.6 year average is of little utility.

Averaging the high watermarks set over a larger number of years is
also inconsistent with the theory of prescriptive rights. Moreover, the

A-17

DISPOSITION

The judgment is modified to reflect that “the high watermark
of Lake Tahoe constituting the uppermost limit of that lake
subject to the public trust is located at 6228.75 feet above sea
level, Lake Tahoe datum.” As modified, the judgment is affirmed.
(CERTIFIED FOR PUBLICATION.)

SIMS, J.
We concur: -

BLEASE, Acting P.J.
CARR, J.

method poses two additional problems: (1) determining the number of
years over which to average (see, ¢.g., Willis v. United States (S.D.
W.Va. 1943) 50 F. Supp. 99, 101-102; and (2) the danger that a
landowner may have to endure excess encroachment in years of above-
average waters.

Plaintiffs propose the method traditionally used in free-flowing rivers.
The high watermark is defined as the place where the riverbed ends and
the riverbank begins. (Howard v. Ingersoll (1851) 54 U.S. 381 [14
L.Ed. 189].) This method involves examining the riverbank to find the
highest point where the water’s flows have prevented the growth of
vegetation. (See Harrison v. Fite (8th Cir. 1906) 148 F. 781, 783.) This
method is premised on the assumption that the river will, over a period
of time, predictably return to a certain level where it will leave an
indelible mark upon its banks. This method is unacceptable for several
reasons. First, resort to the physical characteristics of the riverbank is a
method of ascertaining the historic levels of water where more accurate
measurements are unavailable. Here, we have data accurate to two
decimal points and need not rely on physical inspection of vegetation to
tell how high the water has risen over time. Moreover, in a reservoir the
water level is under the control of man and may fluctuate from month to
month and from year to year in only a grossly predictable manner. Thus,
the visible vegetation line may be a reflection of only recent events in the
reservoir. We conclude the “vegetation test,” like the mathematical
averaging test, is unsuitable for present purposes.

A-18
Appendix B

Superior Court of the California
County of Placer

No. 48281

Charles F. Fogerty et al.,
Plaintiffs,

Vv.

State of California et al.,
Defendants.

Order for Entry of Summary Judgment in Favor of Defendants
State Lands Commission and State of California

[Filed April 11, 1985]

The motion of defendants State of California and State Lands
Commission for summary judgment or summary adjudication of
issues without substantial controversy was heard by this Court in
Department No. 3, before Honorable George Yonehiro, Judge, on
April 1, 1985. Appearing as attorneys were Jan S. Stevens and
David B. Judson for defendants and Edgar B. Washburn, Mary
Beth Uitti for plaintiffs Charles F. Fogerty et al. and William T.
Chidlaw for plaintiff Tahoe Shorezone Representation. After full
consideration of moving and responding papers, all supporting
papers including declarations, exhibits and discovery documents,
all other documents filed herein, oral arguments of counsel,
holdings of the California Supreme Court in State v. Superior
Court (Lyon) (1981) 29 Cal. 210 and State v. Superior Court
(Fogerty) (1981) 29 Cal. 240 and in accordance with the
Peremptory Writ of Mandate issued by the California Supreme
Court on October 3, 1983, which commands this Court to vacate
its order of June 4, 1979, granting plaintiffs’ partial summary
judgment and to enter a new order granting the People’s motion
for partial summary judgment and partial judgment on the plead-
ings insofar as consistent with the views stated in that court’s
opinion filed March 20, 1981, the court finds that defendants have
shown by admissible evidence and reasonable inferences there-
from and by judicial notice properly taken of those matters

A-19

requested by defendants in their moving papers, that there is no
triable issue of any material fact remaining in this case and,
therefore, defendants are entitled to judgment as a matter of law.

IT IS THEREFORE ORDERED that the order of this Court
of June 4, 1979, granting plaintiffs’ motion of March 1, 1979, for
partial summary judgment is hereby vacated and defendants’
motion for summary judgment filed herein on December 10,
1984, is granted and that judgment shall be entered in favor of
defendants and against plaintiffs as follows:

1. Plaintiff landowners holding otherwise valid grants to
the shores of Lake Tahoe hold to the low water mark thereof;

2. The title of littoral owners at Lake Tahoe is impressed
with a public trust for commerce, navigation, fisheries and
environmental preservation to the high water mark thereof;

3. The state may not be estopped from asserting the
rights of the public to the high water mark at Lake Tahoe;

4. The high and low water marks at Lake Tahoe are to
be determined in accordance with the current condition of
that lake;

5. The low water mark of Lake Tahoe constituting the
boundary between state sovereign ownership and upland fee
ownership is located at 6223 feet above sea level, Lake
Tahoe datum;

“6 The high water mark of Lake Tahoe constituting the
uppermost limit of that lake subject to the public trust is
located at 6229.1 feet above sea level, Lake Tahoe datum;

7. Any right of the plaintiffs herein to pier out to the line
of navigation in Lake Tahoe is subject to the authority of the
State of California and its designees to impose reasonable -
regulations; p

eee

A-20

8. Plaintiffs holding property littoral to the bed of Lake
Tahoe have not been deprived of the use or enjoyment
thereof without compensation, contrary to the provisions of
article 1, section 19, of the state Constitution and amend-
ments V and XIV of the United States Constitution.

DATED: April 11, 1985

GEORGE YONEHIRO
Judge of the Superior Court

A-21

Appendix C

In The Supreme Court of the State of California

S.F. No. 24035

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

[Filed Mar. 20, 1981]
OPINION

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

raised hy the parties.

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

reeorders throughout the state.

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

relief and inverse condemnation, and claimed violation of

A-22

their civil rights (42 U.S.C. 4 1983).' The complaint alleged
that plaintiffs owned the lands between high and low water
in the lake in fee simple, that many of them had built piers
or docks extending to low water, and that the state wrong-
fully asserted title or a public trust to high water. Plaintiffs
sought an injunction to prevent the state from claiming any
interest in the property between high and low water. As
defendants in the action, they joined the state, the State
lLands Commission, and several state officials (hereinafter
called the People).

After overruling the demurrers of the People and grant-
ing plaintiffs a preliminary injunction prohibiting the state
from recording a notice that it owns the lands between high
and low water in Lake Tahoe, the trial court granted plain-
tiffs’ motion: for partial summary judgment. It ruled that
no portion of the property involved in this action landward
of the last natural low water mark of Lake Tahoe is or
ever was sovereign property of the state or subject to the
common law public trust for commerce, navigation and
fishing, and it denied the motions for partial summary
judgment and for partial judgment on the pleadings filed
hy the People. Thereafter. the People filed this proceeding,
secking a peremptory writ of mandate to direct the trial

‘Section 1983 provides: “Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia. subjects, or causes to be
subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights. privileges.
Or immunities secured by the Constitution and laws, shall be liable
to the party iniured in an action at law, suit in equity. or other
proper proceeding for redress. . . .”

A-23

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

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

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

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

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

Lyon declares that the public trust applies to the land in question
(43 Ops.Cal.Atty.Gen. 288, 294 (1964) ), and that it has long been

A-24

Since we find that one critical requirement for the
application of the doctrine is absent, we need not discuss
other aspects of the doctrine or their relevance to the
present case. Estoppel will not be applied to the govern-
ment if the result would be to nullify a strong rule of
policy adopted for the benefit of the public (Mansell, 3
Cal3d at p. 493), and we entertain no doubt that this
would be the result if we were to hold that the People
are barred from asserting the public trust in the lands at

issue.

As we point out in Lyon, our decision will affect the
rights of the public in 4,000 miles of shoreline along 34
navigable lakes and 31 navigable rivers, and many thou-
sands of acres of land hetween high and low water (the
shorezone). Amicus curiae in the Lyou action, the Cali-
fornia Departinent of Water Resources. points out that
te sl-orezone has heen reduced to a fraction of its original
“im in this state by the pressures of development. Such
lands now cover less than one half of 1 percent of the
state: a further reduction by 15 percent was projected
for 1980. Some authorities have warned that at the pres-
eut rate of destruction nearly all riparian vegetation on
the Sacramento River could be eliminated in the next
0) vears.

The shorezone is a fragile and complex resource. It
provides the environment necessary for the survival of

humerous types of fish (inelnding salmon. steelhead and

settled in this state that the fact a private landowner has title to
tidewaters does not establish such ownership is free of the interest
of the public. (See, e.g.. People v. California Fish Co. (1913) 166
Cal. 576 [138 P. 79].)

ee ee

A-25

striped bass), birds (such as the endangered species: the
bald eagle and the peregrine falcon), and many other
species of wildlife and plants. These areas are ideally suited
for scientific study, since they provide a gene pool for the
preservation of biological diversity. In addition, the shore-
zone in its natural condition is essential to the maintenance
of good water quality, and the vegetation acts as a buffer
against floods and erosion.

The close relationship of the life forms in the shorezone
to one another and to the condition of the bed of the
stream or lake, the delicate balance among them, and the
adverse effects of reclamation and development of these
areas have been documented in numerous studies and
reports. (E.g., U. S. Dept. of Agr.. Forest Service (1973)
Gen. Plan for Management of Nat. Forest Lands, Lake
Tahoe Pasin. Review Draft. Lake Tahoe Management Unit,
South Lake Tahoe. pp. 1-2: Cal. Dept. Fish and Game
(1974) Fish and Wildlife Res. of Anderson Marsh, Clear
Lake, Lake County: Cal. Dept. Fish and Game (1966)
1 Fish and Wildlife Plan, p. 14.) One commentator has
observed: “(T]he argument is now commonplace that these
environments are the earth’s most biologically productive
___ Tf nature bats last, wetlands may be the natural team’s
designated hitter.” (Nash, Who Loves a Swamp? in Strate-
gies for Protection and Management of Floodplain Wet-
lands, ete., a Symposium (USDA Forest Service, GTR-
W0-12, Dee. 11-13, 1978.)) The recreational use of these
areas for picknicking, hunting, fishing, hiking, birdwateh-
ing and nature study does not require elaboration to any
Californian. In Marks v. Whitney (1971) 6 Cabad cot,
959.260 [98 Cal. Rptr. 790, 491 P.2d S74), Justies MeComh

made the following comment for a unanimous court regard-

A-26

ing the public uses of tidelands: “There is a growing
public recognition that one of the most important public
uscs of the tidelands—a use encompassed within the tide-
lands trust—is a preservation of those lands in their
natural state, so that they may serve as ecological units
for seientifie studv, as open space, and as environments
which provide food and habitat for hirds and marine life,
and which favorably affect the scenery and climate of the
area.” That observation is equally applicable to the shore-

7one.

The Legislature has recognized the value of the shore-
zone by enacting statutes calling for its protection. (Pub
Resources Code, §4 5093.50, 5811.) Section 5811 provides
that “the remaining wetlands of this state are of inereas
ingly critical economic, aesthetic, and scientific value to +
people of California, and... there is need for an afirn
tive and sustained public policy and program direct:
at their preservation, restoration, and enhancement, in
erder that such wetlands shall continue in perpetuity to

meet the needs of the people.”

We are not convinced by the assertion that these eon-
siderations do not rise to the level of a strong publie
policy in favor of retaining the public trust in the shore-
mzme. Plaintiffs argue that a large pereentage of the shore-
line of Lake Tahoe is presently devoted to publie nse
either heeause of publie ownership or the publie utilization
of privately owned shoreline facilities sueh as marinas.
that the problems at Lake Tahoe are related to a large

imflux of people which contributes to the pollution of the

lake, that the public beach areas are overused and the

A-27

forest cover destroyed by motor vehicles, and that the best
preserved areas of the lake are in private ownership.
Thus, they urge, the public interest in preservation of the
scenic beauty of the lake would be enhanced by private
rather than public ownership of the shorezone. Moreover.
it is argued, owners are limited in their use of the shore-
zone by many regulations designed to protect the ecology
of the area,’ and these are adequate to protect the public's
interest.

Amicus curiae, the California Land Title Association, in
a brief filed in the Lyon action, asserts that the People
exaggerate the ecological importance of the shorezone
since not all shorezone areas are of ecological importan,
some of the most significant heing located above hich
water or helow low water. It is also argued that the
imposition of a trust on behalf of the publie will not
necessarily provide the ecological benefits which the
People envision. That goal can he better accomplished on
a project-by-project basis in which ecological concerns can

be dealt with and private improvements prohibited, lin-

‘For example, state law requires mitigation of adverse environ-
mental effects of a project (Pub. Resources Code, § 21000 et seq.),
development which will obstruct the flow of a river or lake or
which uses material from a stream bed must be approved by the
Department of Fish and Game to determine whether it will ad-
versely affect fish and wildlife (Fish & G. Code, § 1603); the
California Tahoe Regional Planning Agency has broad powers to
enact ordinances for the regulation of improvement at the lake
(Gov. Code, § 67100), and 10 percent of the wetlands in the state
are protected by a law providing for the formulation of a plan to
control development of Suisun Marsh (Pub. Resources Code,
) 29000 et seq. ).

A-28

ited, or modified, depending on the ecological needs of the
area involved.

Whether or not the shorezone of Lake Tahoe would be
better preserved if privately owned than if the public has
an interest therein is not determinative. since we are not
concerned here with recreation only, nor with Lake Tahoe
alone. hut with a principle which will apply to 4.000 linear
miles along all the navigable lakes and rivers in California,
in many of which the conditions may well differ in some
respect from those at Lake Tahoe. Preservation of the
public trust in the shorezone will allow the state flexibility
in determining the appropriate use of such land. so that.
for example, areas which are endangered bv overuse can
he closed to certain activities such as public bathing. A
number of the considerations advanced by plaintiffs and
amiens would call also for abdication of the tidelands trust
and the substitution of reulation of tidelands development
lor the concept of the publie’s right to control such lands
ax a matter of right. These ‘arguments appear to oppose
the established publie trust doctrine in principle, rather

than its application to the shorezone as such.

The exereise of the police power has proved insufficient
to protect the shorezone. The urgent need to prevent deteri-
oration and disappearance of this fragile resource provides
ample justification for our conclusion that the People mav
not be estopped from asserting the rights of the public

in those lands.

One question remains: whether the boundary between
public and private ownership should he determined with

reference to Lake Tahoe in its enrrent condition, or the

A-29

“natural” level of the lake as it existed prior to the con-
struction of a dam in 1870, which had the effect of raising
the levei of the lake. (See 30 Ops.Cal.Atty.Gen. 262, 267-
968 (1957).) The trial court concluded that the appropriate
boundary between public and private ownership is to he
measured in accordance with the “last natural” low water
mark of the lake. Plaintiffs argue in favor of the trial
court’s ruling, while the People assert that the boundary
should be fixed by assessing the lake in its current condi-
tion.

There is no direct authority on this issue in California.
While there is authority relating to a landowner’s right
to aceretions and relictions* and to the maintenance of a
body of water at its existing level,’ the issue in the present
ease revolves around rights in land between the natural
water level of a lake and its current shoreline as raised
by a dam constructed many decades ago. The People point

‘Section 1014 of the Civil Code provides that where land forms
by imperceptible degrees from natural causes upon a river or
stream by accumulation of material or the recession of the stream.
it belongs to the owner of the bank. In Carpenter v. City of Santa
Monica (1944) 63 Cal.App2d 772. 794 [147 P.2d 964], the court
refused to apply this statute to tidelands, deciding that artificial
accretions to tidelands belong to the state, because to hold other-
wise would indirectly convey public tidelands into private owner-
ship.

‘Some cases hold that a landowner has a vested interest in a
long-continued diversion of water by the state if he has made sub-
stantial expenditures in reliance upon the diversion (Natural Soda
Prod. Co. v. City of L. A. (1943) 23 Cal.2d 193, 197 [143 P.2d ee}:
Chowchilla Farms Inc. v. Martin (1933) 219 Cal. 1. 15 [25 P.2d
435]), and that he may recover damages if the level of a lake is
lowered (City of Los Angeles v. Aitken (1935) 10 Cal App.2d 460.
472 (52 P.2d 585] ).

A-30

out that it would be difficult (and probably impossible in
some cases) to reconstruct the natural water level of a
lake. There are hundreds of dams in California. some
dating back to the early days of statehood. (Dept. of Wat.
Resources, Dams Within Jurisdiction of State of Cal.
(1976) Bull. No. 17-76.) The monumental evidentiary prob-
lem which would he created by measuring the boundary
line between public and private ownership in accordance
with the water level which existed prior to the construction
of these dams provides a convincing justification for ac-
cepting the current level of the lake as the appropriate

standard.

Moreover, the dam at Lake Tahoe has been in existence
since 1870, long past the period required for the acquisition
of prescriptive rights by the state in the lands in question.
(Civ. Code, § 1007: Code Civ. Proc., ¢ 325.) It has been
held in other jurisdictions that a landowner loses owner-
ship of property covered by water resulting from the
construction of a dam if the condition has continued for
the period required for the aeqnisition of prescriptive
rights. (State +. Parker (1918) 132 Ark. 316 [200 S.W.
1014, 1016]: State rv. Sorenson (1937) 222 Towa 1248 [271
N.W, 234, 238-239].) Sorenson stated that in these cirenm-
stances “the artificial condition is... stamped with the
character of a natural condition, and the title to the lands
covered by the waters of the lake is deemed to have passed
from private ownership to the same trust as that of lands
covered by the waters of natural navigable lakes. The
tate, and private owners, as well. of lands affected by
the artificial condition. may enforce the maintenance of

that condition.” (Cf. Chowchilla Farms Ine. v. Martin,

A-31

supra, 219 Cal. 1, 18; Natural Soda Prod. Co. v. City of
L. A., supra, 23 Cal.2d 193, 197.)

We hold that, under all the circumstances, the trial
court erred in its conclusion that the “last natural” low
water mark of Lake Tahoe is the appropriate standard
by which to measure the houndary between public and
private ownership.

We emphasize, as we did in Lyon, that these plaintiffs
may use the shorezone for any purposes which are not
incompatible with the public trust. Landowners who have
previously constructed docks, piers and other structnres
in the shorezone may continue to use these facilities unless
the state determines, in accordance with applicable law,
that their continued existence is inconsistent with the
reasonable needs of the trust. In that event, both statute
and case law require that plaintiffs he compensated for
the improvements they have constructed in the shorezone.
(Pub. Resources Code, § 6312; Illinois Central Railroad r.
Illinois (1892) 146 U.S. 387, 455 [36 L.Ed. L018, 1043,
13 S.Ct. 110]: City of Berkeley vr. Superior Court (1980)
96 Cal.3d 515, 534 [162 Cal.Rptr. 327, 606 P.2d 362].)

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

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

CLARK, J., Dissenting. —For the reasons stated in my
concurring and dissenting opinion in State of California v.

Superior Court (Lyon), ante, page 210, Oe Cal. Rptr. ..

A-32

es P.2d ......], the public trust declared today by the majority
applies only to tide and submerged lands and does not
apply to the shorezone. While the shorezone at Lake Tahoe
may be a ring around the lake only a few feet in width,
shorezones on navigable streams encompass hundreds of
square miles which are presently in productive use for
other than trust purposes, and we should not at this late
date declare such uses unlawful.

[ must also dissent from the majority’s conclusion that
the People may not be estopped from asserting the trust.
The holding of the sole authority relied on by the majority,
City of Long Beach v. Mansell (1970) 3 Cal.3d 462 [91
Cal.Rptr. 23, 476 P.2d 423], is directly contrary to today’s

decision.

In Mansell, the City of Long Beach had claimed portions
of a residential subdivision were tidelands subject to the
trust. Estoppel was urged on the ground: “[T]he subject
lands were filled and improved with the knowledge and
acquiescence of the state and city and . .. since annexation
of the area in 1923 the city has exercised full municipal
jurisdiction over it—granting building permits, approving
subdivision maps, constructing and maintaining streets

and city services, collecting taxes.” (Jd., at p. 487.)

This court first diseussed estoppel as applicable to
private parties in land title cases, concluding that the
circumstances would be sufficient to estop private claims.
The court continued: “It is settled that ‘[t]he doctrine of
equitable estoppel may be applied against the government
where justice and right require it. (United States Fid. &
(rnar. Co. v. State Board of Equalization (1956) 47 Cal.2d

re a Aa BE he REN Ral hee

A-33

384, 388-389 [303 P.2d 1034] and cases there collected. )’
(Driscoll v. City of Los Angeles, supra, 67 Cal.2d 297,
306 [61 Cal.Rptr. 661, 431 P.2d 245].) (See generally 2S
Am.Jur.2d, Estoppel and Waiver, §§ 122-133, pp. 7S2-S02:
31 C.J.S., Estoppel, §§ 138-147, pp. 675-733.) Correlative to
this general rule, however, is the well-established proposi-
tion that an estoppel will not be applied against the govern-
ment if to do so would effectively nullify ‘a strong rule of
policy, adopted for the benefit of the public, ... ’ ( County
of San Diego v. Cal. Water etc. Co. (1947) 30 Cal.2d 817,
829-830 [186 P.2d 124, 175 A.L.R. 747], see also cases there
cited.) The tension between these twin principles makes
up the doctrinal context in which concrete cases are
decided.” (/d., at p. 493.)

After lengthy discussion of the leading cases on the issue
of estoppel against government, Mansell distilled the con-
trolling rule: ‘After a thorough review of the many Cali-
fornia decisions in this area, as well as a consideration of
various out-of-state decisions, we have concluded that: the
proper rule governing equitable estoppel against the gov-
ernment is the following: The government may be hound by
an equitable estoppel in the same manner as a private party
when the elements requisite to such an estoppel against a
private party are present and, in the considered view of a
court of equity, the injustice which would result from a
failure to uphold an estoppel is of sufficient dimension to
justify any effect upon public interest or policy whieh would
result from the raising of an estoppel.” (/d., at pp. 496-497.)

The court concluded that the great injustice to home-
owners which would result from failure to uphold an

A-34

equitable estoppel against the state and city justifies the
minimal effect upon public policy resulting from raising
an estoppel. (/d., at p. 501.)

The majority in the instant case rely upon the language
quoted above that “an estoppel will not be applied against
the government if to do so would effectively nullify ‘a
strong rule of policy, adopted for the benefit of the public.
... ' The majority conclude that establishing trust rights
to the shorezone is so important that the People may not he
estopped as to thousands of linear miles of shorezone.

ck eeerene )

The majority decision is arbitrarily contrary to Mansell.
That case established that in appropriate circumstances
the People could be estopped to assert the trust, when the
resulting injustice would outweigh the public policy. There
are no doubt, thousands of homeowners in cities of the Sac-
rainento and San Joaquin Valleys, as well as other areas of
the shorezone, in substantially the same position as were
the homeowners in Long Beach. These homeowners, and
thousands of farmers will suffer thousands of “vreat
injustices,” clearly outweighing the public trust loss in
respect to individual lands. (3 Cal.3d at p. 501.)

While it would be a tremendous burden on the judicial
svstem to determine in individual cases whether imposition
of the trust involves “great injustice” outweighing trust
detriment, the courts’ business is the administration of
Justice. However burdensome the alleviation of “creat

injustice” may be, courts should not shirk their duty.
[ would deny mandate.

Richardson, J., concurred.

‘aii i

A-35

Appendix D

In The Supreme Court of the State of California
[S.F. No. 23981, Mar. 20, 1981.]
THE STATE OF CALIFORNIA et al., Petitioners, v.
THE SUPERIOR COURT OF LAKE COUNTY, Respon-
dent: RAYMOND R. LYON et al., Real Parties in Interest.

OPINION

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

to promote the purposes of the trust.

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

and that even if such convevances have been made, the

A-36

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

Raymond R. Lyon and Margaret L. Lyon, real parties
in interest (hereafter called Lyon) own S00 acres along
the shore of Clear Lake in Lake County, a navigable hody
of water with an area of about 64 square miles. The
portion of the property involved in the present «lispute
consists of more than 500 acres of marshland at the south-
ern end of the lake, known as the Anderson Marsh. most
of which is covered hy water at certain times of the vear.
Lyon’s predecessors in interest purchased the property
from the state under patents issued between 1850 and 1906.
These grants did not specify the waterward boundary of
the land conveyed. Lyon sought to (develop the property
and applied for a permit to repair a levee for the purpose
of recleiming a portion of the marsh. The Fish and Game
Commission notified him that it could not process his
application for a permit because the State of California
claimed ownership of the portion of the marsh which

extends. below the high water mark

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

is held indicates a different intent, the owner of the

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

*All references are to the Civil Code unless othenvise noted.

A-37

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

The People filed a cross-complaint to quiet title in the
state to the portion of the Anderson Marsh between high
and low water and for declaratory relief. The County of
Lake intervened in the action in its capacity as grantee
in trust of the state’s interest in the lands underlying tlie
lake. (Stats. 1973, ch. 639, 41, p. 1165.) The county sup-
ported Lyon’s claim that he owns the property to the line
of low water.

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

The case involves issues which are of vast importance to
the general public as well as to the owners of land bordering

A-38

upon navigable lakes and streams. The significance of these
issues has generated extensive briefs by amici curiae,’
and their analyses and arguments have been of consider-
able assistance to the court. No less than 4,000 miles of
shoreline along 34 navigable lakes and 31 navigable rivers
in the state are involved. Substantial areas of land will be
affected by our distinguish
hetween waters capable of commercial use—which were
there claimed to be the test of navigahility—and those
capable of recreational use. Other cases cited by Lyon also
fail to support his position.*

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

'8Hitchings v. Del Rio Woods Recreation, & Park Dist. (1976)
55 Cal.App.3d 560 [127 Cal.Rptr. 830], was an action for declara-
tory relief to determine whether a certain portion of the Russian
River. was navigable. The court adopted the broad recreational use
test of navigability set forth in People ex rel. Baker v. Mack, supra,
19 Cal.App.3d 1040, 1050, and held that the river was deemed in
law to be navigable even though it was not in fact navigable for
some part of the year.

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

A-60

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

But this contention is predicated on an exceedingly
narrow view of the purposes of the public trust. As
Justice MeComb pointed out for a unanimous court in
Marks v. Whitney, supra, 6 Cal.3d 251, 259, the public’s
rights in tidelands are not confined to commerce, naviga-
tion and fishing, but include recreational uses and the right
to preserve the tidelands in their natural state. We discern
no valid reason why the scope of the public’s right in
nontidal waters should not be equally broad. Lyon's
assertions in this regard imply the resurrection of the
common law <listinction between tidal and nontidal waters
—a distinction which has been thoroughly discredited in
this country. As was said in Illrmois Central, when the
United States rejected the English rule that admiralty
jurisdiction was confined to tidewaters because it was
inapplicable to the conditions in this country, “the limita-
tion and all its incidents were discarded.” (146 U.S. 387 at
p. 436 [56 L.Ed. 1018 at p. 1036].) We hold that the
same incidents of the trust applicable to tidelands also
apply to nontidal navigable waters and that the public's
interest is not confined to the water, but extends also to

the bed of the water.

A-61

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

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

19

294) constit..tes a “rule of property.”

In Abbott v. City of Los Angeles (1958) 50 Cal.2d 438, 456
[326 P.2d 484], a “rule of property” was defined as “A settled rule
Uy principle. resting usually on precedents or a course of decisions,
regulating the ownership or devolution of property. . . . The princi-
ple appears to be an extension of the ‘stare decisis’ rule, which .. .
seems to apply with peculiar force and strictness to decisions which

A-62

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

have determined questions respecting real property and vested

rights... .”

Lyon's reliance on the “rule of property” which he espouses is
open to question. The agreement under which he purchased
Anderson Marsh provides that the seller does not warrant owner-
ship of lands below zero mark on the Rumsey Gauge, and it m

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0284%3A1. Public record. Not legal advice.