Petition for Writ of Certiorari — Fogerty v. California

Supreme Court brief1987

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& JOSEPH F. SPANIOL, dhe,

In the Supreme Co

OF THE

United States

OCTOBER TERM, 1986

TAHOE SHOREZONE REPRESENTATION,

Petitioner,

VS.

STATE OF CALIFORNIA, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOR THE THIRD APPELLATE DISTRICT

WILLIAM T. CHIDLAW

COUNSEL OF RECORD

LAW OFFICES OF WILLIAM T. CHIDLAW

A Professional Corporation

Point West Executive Centre

1455 Response Road, Suite 191

Sacramento, California 95815

Telephone: (916) 920-0202

Attorney for Petitioner

Tahoe Shorezone Representation

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

QUESTIONS PRESENTED

The court below, implementing an earlier interim decision by

the California Supreme Court, held that the public trust servitude

applied to the bed of Lake Tahoe between low and high water

marks.’ The California Supreme Court relied on //linois Central

Railroad Co. v. Illinois, 146 U.S. 387 (1892) (“Jllinois Cen-

tral’), stating that //linois Central “settled the issue.” This was a

sudden and unpredictable change, without precedent in state

property law. However, the court reasoned that “public interest”

in protecting the environment and “preserving” the shorezone on

California lakes and rivers justified its drastic change in California

law.

Petitioner’s appeal from the subsequent adverse trial court

ruling, following remand by the Californnia Supreme Court,

resulted in yet another unprecedented and unpredictable change

in well established California law, the court below holding that,

since 197], the public trust servitude extended up to an artificial

high water mark. The court supported its ruling with the theory of

“prescriptive rights” which it said created a public trust in the

state based on the periodic flooding of petitioners’ property, for

water storage, by the operation of the federal dam from 1966 to

1971. There had been no notice to shoreline owners of any

adverse claim to their property until immediately prior to the

commencement of this litigation in 1977.

The following questions are presented:

I. Does the decision in //linois Central:

a. Constitute a rule of federal common law, binding

on states, rendering the states “powerless”? to convey

' The earlier California Supreme Court decisions in this litigation

leading up to the final judgment were: State of California v. Superior

Court (Fogerty I), 29 Cal.3d 240 (1981) and the companion case of

State of California v. Superior Court (Lyon), 29 Cal.3d 210, (1981).

>In Lyon the California Supreme Court ruled that //linois Central

stood for the proposition that a state was “powerless to relinquish its

rights as trustee.” (Lyon, supra at 227.)

sovereign lands free of the burden of the public trust

servitude as defined by the California Supreme Court?

b. Support a state court ruling changing, unpredict-

ably and without precedent, well-settled state law and

transferring ownership of property to the state without

payment, where the public trust servitude is involved,

without regard to the Due Process and Taking Clauses

of the Constitution?

c. Support a state court ruling that a state has a

public trust servitude in any land above the ordinary

high water mark of the bed of a navigable lake as that

mark existed at statehood where the state had never

owned the land above that mark?

Il. Does a sudden, unprecedented and unpredictable

change in state law, which terminates vested property rights

and destroys the reasonable investment expectations of own-

ers constitute a taking of private property without payment in

violation of the Fifth and Fourteenth Amendments?

a. Does a state court’s concept of what is in the

“public interest” or the “best public policy” override

constitutional protections when a state court transfers

private property to the state by judicial decision?

b. Are state courts, as well as the legislative and

executive branches, constitutionally prohibited from

“taking” property for the state without the payment of

just compensation?

III. Can a state court hold, consistent with due process

guarantees, that:

a. The public trust servitude can be imposed on

shoreline owners’ previously unencumbered property

under a prescriptive rights theory where the owners had

no prior notice of such an adverse claim?

b. The flooding of private lakefront land above the

natural high water mark of a navigable lake by a federal

dam creates, in the state, the public trust servitude in

the land periodically flooded?

iii

PARTIES

Petitioner is Tahoe Shorezone Representation, a non-profit

corporation of Lake Tahoe shoreline owners, including both

California and Nevada sides of Lake. Tahoe. Tahoe Shorezone

Representation has no parent or subsidiary corporations or

affiliates. '

' Respondents are State of California, State Lands Commission of the

State of California, and Does I through X, inclusive. Additional Real

Parties in Interest below, also Petitioners here, are: Charles F. Fogerty,

Stella Fogerty, Russell S. Grove; Harold E. Ebright, Jr., Katherine

Ebright, George Hilton Edmundson, Janet Louise Edmundson, Lau-

rence L. Lindsey, Jr., Rosemary F. Lindsey, Homer M. Hayward, Reid

W. Dennis, and Tahoe Meadows, a California corporation.

TABLE OF CONTENTS

Page

IE SINS ocho once kc cee edn riccdacwiasinnns i

Dc CcU Des Vecu eyes awe UV ekae a kane bund 6 Caen ee ee ill

Me Ae PIs on occ bc secsdesagtdaneasansunaas Vill

PUT CCTU TERT CC ECCUCL CE TELE TE LC ee l

pg EE ey re peer eee eg rere l

Constitutional and statutory provisions.................. 2

cick andes deka adn eacbadeneun'a 3

PRO TE IIE GD GUE wn nc ae ce cen encccss 11

aa, fr rere ree 11

B. Illinois Central Railroad Co. v. Illinois needs to te

put in proper place in public trust law............ 13

C. State courts are prohibited, just as state legislatures,

from transferring private property to public ownership

without payment even though a court may conclude

that its decision is in the “public interest” and pro-

NE EE kbc wa de wiadee eed vesccbicass 18

D. The state court decisions in this proceeding have

suddenly and unpredictably changed California prop-

erty law and therefore constitutionally prohibited tak-

ings and due process violations have occurred ..... 23

Re oo Se coe ear eae eee eee kerk 29

TABLE OF AUTHORITIES CITED

Cases

Page

Federal

Appleby v. City of New York, 271 U.S. 364 (1926)...... 17

Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973) ...... 12

Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673 (1930) ....... 27

Broad River Power Co. v. South Carolina, 281 U.S. 537

CUE Auk Raina bake ee des ea eeu ee haben ones 12

Corp. of the Presiding Bishop v. Hodel, 637 F.Supp. 1398

Gs PENN a yt ine rh eee aae hanna eeaanees 19

Demorest v. City Bank Farmers Trust Co., 321 U.S. 36

CE ha win een vices Sere CK Rk en AD eee eae 12

Enterprise Irr. Dist. v. Farmers Mutual Canal Co., 243 U.S.

See UCR a5 5 Sedna Ree ro ee eees 12

Fox River Paper Co. v. Railroad Comm. of Wisc., 274 U.S.

ee Cr ek ss WEN eee ess eee 12

Hodel v. Irving, No. 85-631 (May 18, 1987) ............ 23

Hughes v. State of Washington, 389 U.S. 290 (1967) ...11, 26

Illinois Central Railroad Co. v. Chicago, 176 U.S. 646

COD 85s 5-09 aaddbendsasd sale ees eee 17

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

CRUE i and ane ganas eee ee ee 3, passim

Kaiser Aetna v. United States, 444 U.S. 164 (1979) ....13,27

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

Robinson v. Ariyoshi, 441 F.Supp. 559 (D. Hawaii 1977) 29

San Diego Gas & Elec. Co. v. San Diego, 450 U.S. 621

CORES wcbk See en ae eters eesera te eeeree ee ees 22

Sotomura v. County of Hawaii, 460 F.Supp. 473 (1978) .. 22

Summa Corp. v. Calif. ex rel. Lands Comm’n., 466 U.S. 198

EOE Fas oe ace cease see enon essa eee 6, 10, 13, 16, 25, 29

Texaco, Inc. v. Short, 454 U.S. 516 (1982) ............ 12, 23

Williamson Planning Commission v. Hamilton Bank, 473

te Be St. | ee rrrer per ere mn ee 29

TABLE OF AUTHORITIES CITED

CASES

Page

State

Anderson v. Trotter, 213 Cal. 414 (1931)............... 8

Brandenburger v. State, No. 21947, Superior Court, County

Se MD GOES pc cccccsvsccecectccteenecavs 6

City of Berkeley v. Superior Court, 26 Cal.3d 515 (1980)

CLE A EO PT Eee ee Te 4, 10, 12, 15, 21, 25

City of Long Beach v. Mansell, 3 Cal. 3d 462 (1970) .... 27

City of Los Angeles v. Aitken, 10 Cal.App.2d 460 (1935) 8

City of Los Angeles v. Venice Peninsula Properties, 31

RE SEE SOUR noc cbccescncssectasens 10, 16, 25, 28, 29

Crews v. Johnson, 202 Cal.App.2d 256 (1962) .......... 8

Fogerty v. State of California, 187 Cal.App.3d 224, 231

CED yh nccncecc<cksauacduweeteaees passim

Foss v. Johnstone, 158 Cal. 119 (1910) ................ 8

Incline Village Gen. Improvement Dist. v. State of Nev.,

Case No. 78-3191, 2d Judicial Dist., County of Washoe,

Ee Pe EE ree rr rr ne res 15

Lyon v. Western Title Ins. Co., 178 Cal.App.3d 1191 (1986)

a SAD TSN ee ee Rp pee a 8 fF 7, 17, 24, 25

Marks v. Whitney, 6 Cal.3d 251 (1971) ............ 3, 4,5, 15

National Audubon Society v. Superior Court, 33 Cal.3d 419

iiss ah cepa the AER eke MERE eee 7, 10, 14, 16, 21

San Diego Archaeological Society, Inc. v. Compadres, 81

ME TED CLOVE) oc uss ank Kaancnsnebewaanns ees 28

State of California v. Superior Court (Fogerty), 29 Cal.3d

Be, 172 Ce. TES CIRSED vn cece sccccccace tues passim

State of California v. Superior Court (Lyon), 29 Cal.3d 210,

ore Cal Roper. OG (ISR) 2... ces acccndcucducessas passim

Vil

TABLE OF AUTHORITIES CITED

Constitutions

Page

United States Constitution:

ead ikdsckeescavednnsenes nes 5, passim

Fourtecmtis AmsemG@amemt ..... 2.2.0. sccccccssccss 5, passim

Statutes

Be Se OE 6.54 e ee bn iandss60hseéedendens eke 2

SE ET ANE RE so 6 ceuccnscuncuonnocsasses 8

California Code of Civ. Proc. § 1007 ................... 10

Pe, Ge Ss EE kw veacccdeasecccvcccvccsess 15

Other Authorities

Attorney General Opinions:

43 Ops. Cal. Atty. Gen. 291 (1964) ................. 8

Be Ge, Gs Gs SE, AE RED co ccce ce ccccccnces 8, 10

pe Re | ee 8

23 Ops. Cal. Atty. Gen. 97 (1954) .................. 8

chs Re ee | eer eee ee 8

Nevada Atty. Gen. Op. No. 204 (April 20, 1976) ...... 14

Unprecedented Extensions of the Public Trust, 70

lige anna dw see wee sess 4

Chang, “Unraveling Robinson v. Ariyoshi: Can Courts

‘Take’ Property?,” 2 Hawaii L.Rev. 57 (1979)......... 19

Executive Office of President’s Council on Environmental

Quality, “The Taking Issue,” Washington, D.C., July 9,

Sees NY GUE WO 6c de ce unVecdvecedenasse< 19

Sax, The Public Trust Doctrine in Natural Resource Law:

Effective Judicial Intervention, 68 Mich. L. Rev. 471

Ps ous oul uene ee sbe ne eh adadteeereeccruusuenee 20

Appendix A:

Appendix B:

Appendix C:

Appendix D:

Appendix E:

Appendix F:

Appendix G:

Appendix H:

Appendix I:

Viii

TABLE OF APPENDICES

Opinion of the California Court of

Appeal, Fogerty v. State, 187 Cal.App.3d

224, 231 Cal.Rptr. 810 (November 24,

Se IT ID ncnckcuscenvssees

Opinion of the Placer County Superior

Court, Fogerty v. State, No. 48281

(April 11, 1985), unpub. ............

Opinion of the California Supreme

Court, State v. Superior Court

(Fogerty), 29 Cal.3d 240, 625 P.2d 251

ERED GOUT ED pccccdccccecesces

Opinion of the California Supreme

Court, State v. Superior Court (Lyon),

29 Cal.3d 210, 625 P.2d 239 (1981)...

Order of the California Supreme Court

Denying Review, Fogerty v. State, No.

Civ. 25115 (3d Dist., March 4, 1987)

Remittitur of the California Court of

Appeal, Fogerty v. State, No. 3 Civ.

C000163 (3d Dist., March 11, 1987) ..

Judgment of the Placer County Superior

Court, Affirmed as Modified, Fogerty v.

State, No. 48281 (May 6, 1987) ......

Opinion of the California Court of

Appeal, Third Appellate District,

Fogerty v. Siate, No. 3 Civ. 17381

(March 28, 1979), unpub. opn........

Opinion of the California Court of

Appeal, First Appellate District, Lyon v.

Western Title Ins. Co., 178 Cal.App.3d

See ED 5k ide oe ddaeceebenaraden

A-21

A-35

A-74

A-75

A-76

A-77

No.

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1986

TAHOE SHOREZONE REPRESENTATION,

Petitioner,

vs.

STATE OF CALIFORNIA, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOR THE THIRD APPELLATE DISTRICT

OPINIONS BELOW

The opinion of the California Court of Appeal, Third Appellate

District, in Fogerty v. State of California (“Fogerty IT’), is

reported at 187 Cal.App.3d 224; 231 Cal.Rptr. 810 (1986)

(Appendix A); the opinion of the California Supreme Court in

State of California v. Superior Court (“Fogerty I’) is reported at

29 Cal.3d 240, 625 P.2d 256, and 172 Cal.Rptr. 713 (1981), cert.

denied 454 U.S. 865 (1981) (Appendix C); the opinion of the

California Supreme Court in State of California v. Superior Court

(“Lyon’’) is reported at 29 Cal.3d 210, 625 P.2d 239, and 172

Cal.Rptr. 696 (1981) cert. denied 454 U.S. 865 (1981) (Appen-

dix D).

JURISDICTION

The opinion of the Court of Appeal, Fogerty IJ, was entered on

November 24, 1986. A timely petition for review was denied by

the California Supeme Court on March 4, 1987. This Petition for

Certiorari was filed within 90 days of that date. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1257(3).

The federal issues have been raised and argued at all levels of

this litigation below. For example, see Court of Appeal (Fogerty

IT) opinion at 232-233, fn. 3 and 5, App. A at A-5-7, and

California Superior Court order of April 11, 1985, App. B at A-

20. Petitioner also raised the issues before the California Supreme

Court in its recently rejected petition for review of the Court of

Appeal decision under the headings “Littoral Owners At Lake

Tahoe Had No Notice of the State’s Adverse Use” and “If the

Decision of the Court of Appeal is Allowed to Stand an Unconsti-

tutional Taking of Private Property Rights Will Result.”

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fifth Amendment to the United States Constitution pro-

vides in relevant part:

{N]or shall any person... be deprived of life, liberty, or

property, without due process of law; nor shall private prop-

erty be taken for public use, without just compensation.

The Fourteenth Amendment to the United States Constitution

provides in relevant part:

[N]or shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

Section 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 not 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 OF THE CASE

This litigation between shoreline owners at Lake Tahoe and the

State of California commenced in 1977 and has, in this same

proceeding, resulted in three trial court decisions, two Court of

Appeal decisions, one California Supreme Court decision, and a

denial of review by the California Supreme Court of the Califor-

nia Court of Appeal decision on March 4, 1987.

Three California statutes enacted over 100 years ago and a

number of court decisions, both federal and state, have consist-

ently recognized that the California owner of the adjoining land

held fee simple absolute title to the ordinary low water mark of a

navigable lake or river and the state was the owner of the bed

below that point. The state made no claim otherwise until 1977.

That 1977 claim by the state resulted in the decisions in Fogerty I,

Lyon and Fogerty II. The original 1977 claim by the state was to

fee title up to the artificial high water mark and the additional

claim that, if it did not have fee title, the property was nonetheless

subject to the Illinois Central' public trust.

An earlier (1971) California supreme court decision had ex-

panded, without precedent, the restrictions on owners of tidelands

under the “tidelands trust” and thereby increased the drastic

impact on the rights of shoreline owners when it was suddenly,

unpredictably and without precedent, imposed by that court on

the Lake Tahoe shoreline in 1981. Prior to that decision in Marks

v. Whitney, 6 Cal.3d 251 (1971), the tidelands trust, as accepted

in California and described in California decisions, protected the

traditional “commerce, navigation and fisheries.” In Marks v.

Whitney the California court greatly expanded the scope of the

tidelands trust by adding “the right to hunt” and for “general

recreational purposes” and also concluded that “one of the most

important public uses of the tidelands... is the preservation of

those lands in their natural state, so that they may serve as

ecological units for scientific study, as open space, and as environ-

ments which provide food and habitat for bird and marine life,

' Illinois Central Railroad Co. vy. Illinois, 146 U.S. 387 (1892).

(“J/linois Central’.)

and which favorably affect the scenery and climate of the area.”

Id. at 259-260. The court further stated that it is “not necessary to

here define precisely all the public uses which encumber tide-

lands.” Jd. at 260. These restrictions are totally inconsistent and

incompatible with the normal use of private residential property

on the shoreline of Lake Tahoe.’

Consequently, in 1977, when the California Attorney General

advised the State Lands Commission to ignore all the previous

precedent and record claims to navigable rivers and lakes with

respect to both fee ownership of the additional upland property

claimed and to a “common law public trust for commerce,

navigation and fisheries” it was a significantly different “public

trust” than had existed prior to Marks v. Whitney, supra.’

? The critical analysis in the Note, Lyon and Fogerty: Unprecedented

Extensions of the Public Trust, 70 Cal. L. Rev. 1138, 1149-1150 (1982),

says it well: “In Marks v. Whitney, trust purposes were expanded to

include environmental protection . .. Once the focus of the trust shifted

from commercial navigation to recreational, aesthetic, and ecological

concerns, shorezones became as important to the state as tidelands. The

Marks v. Whitney rationale for protecting the tidelands environment

applies equally well to the shorezones. By expanding the range of trust

purposes for the tidelands trust, the California Supreme Court paved the

way for the Lyon decision to subject the shorezones to the public trust

...’’ (Emphasis ours.)

> Many of the hundreds of homes located on the shore of the

California side of Lake Tahoe also have piers, boat houses and other

water-related structures for the private use and enjoyment of the owners

and their guests. Many of the lakefront homeowners have chosen to

maintain the balance of the lake-facing portion of their lakefront

property in a relatively unimproved state with landscaping and open

beaches rather than structures. However, all the owners and residents of

these lakeside properties have protected and enjoyed the privacy and

security of their private ownership and have exercised their rights as

owners to “exclude others” from all of their private property including

the land involved in this proceeding.

* Nine years after Marks v. Whitney, in City of Berkeley v. Superior

Court, 26 Cal.3d 515, (1980), cert. denied 449 U.S. 840 (1980), but

prior to Fogerty I and Lyon, the California Supreme Court ruled that the

The California Attorney General advised the State Lands

Commission to make the claim for the first time in California

history that:

“1. In general, the State of California’s sovereign owner-

ship of the lands underlying navigable lakes and non-tidal,

navigable rivers extends landward to the ordinary high-water

mark.

“2. Irrespective of whether State’s title to such land

extends landward to that line or merely to the ordinary low-

water mark, the strip of lands between the two lines is

subject to the common-law public trust for commerce, navi-

gation and fisheries.”

Petitioners immediately filed suit alleging violation of Fifth and

Fourteenth Amendment rights if the claims were upheld. A

temporary restraining order was issued preventing the state from

recording these claims. The state based its claim to the “com-

mon-law public trust” on //linois Central. The trial court granted

a preliminary injunction against the state, which was upheld by

the court of appeal in an unpublished opinion.”

On subsequent motions for summary judgment the owners’

shoreline property rights were again confirmed: The trial court

ruled:

“|. That no portion of the subject property landward of

the last natural low water mark of Lake Tahoe is, or ever

was, sovereign property of the State of California; and

“2. That no portion of the subject property landward of

the last natural low water mark of Lake Tahoe is, or ever

area between high and low tide was subject to the “tidelands trust” even

though the property affected had been granted to private owners many

years before, free of the “tidelands trust”, pursuant to an 1870 legislative

act. The Court overruled earlier decisions to the contrary and cited

Illinois Central in support of that reversal of well-established California

property law. (As in Marks v. Whitney, supra, neither Lake Tahoe

shoreline owners nor the owners of any other shoreline property fronting

on lakes and rivers in California were parties to the litigation.)

* See App. H, A-77, et seq.

was, subject to the common law public trust for commerce,

navigation and fisheries.”

On its second “appeal” from an unfavorable trial court ruling

the state requested the California Supreme Court to exercise

original jurisdiction (mandamus). The state’s attempt to by-pass

the court of appeal was successful. The supreme court accepted

the matter and thereafter rejected the estoppel, stare decisis and

constitutional arguments of petitioners. Although the court de-

nied the state’s request that it be awarded fee title up to an

undefined high water mark, substantially the same result® was

accomplished by the court imposing the public trust servitude on

the shorezone of “all the navigable lakes and rivers in Califor-

nia.”’ (Fogerty I, supra, at 247) (App. C at A-28.)

° As recently observed, referring to the “public trust easement” in

California: “Although the landowner retains legal title to the property,

he controls little more than naked fee... .” (Summa Corp. v. Calif. ex

rel. Lands Comm'n., 466 U.S. 198, 205 (1984).

’ Again, there was no representation in the litigation of the affected

owners of all the other shoreline which the court described as “4,000

linear miles along all navigable lakes and rivers in California” including

“34 navigable lakes and 31 navigable rivers.”

The California State Lands Commission (“Commission”) described

these 34 lakes and 31 rivers as “navigable” in a 1972 list. However, the

navigabliity of these other lakes and rivers was not an issue in the

Fogerty or Lyon litigation in spite of the court’s sua sponte statement.

Furthermore, the record does not furnish any basis of such an assump-

tion. In fact, the question of navigability is the primary issue in litigation

by shoreline owners at Donner Lake against the state. Donner Lake,

near Lake Tahoe in the crest of the Sierra, is a lake some two and a half

miles long and half mile wide which has no useful purpose as a “highway

of commerce,” but is nonetheless included as one of the “navigable

lakes” in the Commission list. A motion for summary judgment by the

state, asserting that Donner Lake was navigable for title purposes as a

matter of law, was denied by the trial court. That litigation is still

pending, presumably awaiting the outcome of this litigation since the

state is now asserting in the Donner Lake litigation that the Fogerty /

“public trust” will likewise apply at Donner Lake, whether or not it is

navigable, or ever was sovereign property of the state. (Brandenburger v.

State, No. 21947, Superior Court, County of Nevada, Mar. 1977.) (In

There was no previous California law even suggesting the

“tidelands trust” burdened the shorelines of California’s navigable

lakes and rivers.* The court brushed aside the lack of precedent

and the “failure of the state to previously assert its trust rights in

the lands below high water” (Lyon, at 231; App. D, at A-61),

citing //linois Central as the basis for this drastic reversal of

California property law:

*“...In our view, I/linois Central Railroad Company. v.

Illinois (1892) 146 U.S. 387, which we described in City of

Berkeley as the ‘seminal case on the scope of the public trust

doctrine’ (26 Cal.3d at p. 521), settled the issue...” (Lyon

at 227; App. D at A-55.)°

All the historical evidence was in marked contrast to what the

court ruled. In addition to the general community recognition of

the complete ownership of the shorezone by the riparian owners

National Audubon Society v. Superior Court, 33 Cal.3d 419 (1983),

cert. denied, 464 U.S. 977 (1983), the court ruled, in yet another

uprecedented decision, that the public trust now applies to non-naviga-

ble waters. )

* As to other owners on the “4,000 miles” of shoreline the later

decision in Lyon v. Western Title Ins. Co., 178 Cal. App.3d 1191, 1199

(1986), points out: “Those 4,000 miles must reasonably concern

thousands, perhaps hundreds of thousands, of now devalued land titles

acquired in reliance upon the rule of Civil Code Section 830.” See also

dissent in Lyon at 238, App. D at A-71; 70 Cal.L.Rev. 1138, 1145.

” In 1983 the court again pointed to //linois Central as the basis for

imposing the “tidelands trust” on inland lakes in California:

“(T]he decision of the United States Supreme Court in //linois

Central Railroad Co. v. Illinois, 146 U.S. 387, remains the primary

authority even today, almost nine decades after it was decided.” The

court also confirmed its ruling that the public trust servitude confers on

the state “a power which extends to the revocation of previously granted

rights or the enforcement of the trust against lands long thought to be

free of the trust.” (National Audubon Society v. Superior Court, 33

Cal.3d 419, 440 (1983); cert. denied, 464 U.S. 977 (1983).)

the confirmation of the extent of these rights was the subject of

legislative,'° executive,'' and judicial'” recognition in California.

Following the California Supreme Court’s 1981 decisions in

Fogerty I and Lyon, petitioners sought, and were denied, review

by this Court. Subsequent trial and appellate court proceedings

have shown that this litigation was not then ripe for review. The

state, in its 1981 Opposition to the Petitions for Certiorari

expressed no doubt as to their prematurity: “. . . issues respecting

the location of high and low water lines remain to be tried on

remand to the state trial court.” The state pointed out that any

opinion by this Court in 1981 at that stage of the litigation would

be merely “‘advisory”. (See p. 4 of state’s Brief in Opposition. )

A principal issue in the continued state court proceedings was

whether the high and low water marks that the court said

determined the location of the public trust servitude were those

that existed at California’s statehood or those resulting from the

'° See California Civil Code § 830, for example.

'' The court acknowledged that state files “contain hundreds of letters

stating or implying that the state’s ownership extends waterward of the

ordinary low water mark... (Lyon at 225; App. D at A-51.) None of

these letters suggest any state or public interest in the land above the

“ordinary low water mark.”

Between 1916 and 1964 no less than 5 “official” attorney general

opinions interpreting Cal. Civ. Code § 830, as limiting the state’s interest

to the low water mark, were issued. See 43 Ops. Cal. Atty. Gen. 291,

292, 295, 296 (1964); 30 Ops. Cal. Atty. Gen. 262, 269 (1957); 23 Ops.

Cal. Atty. Gen. 306, 307, 309 (1954); 23 Ops. Cal. Atty. Gen. 97, 98

(1954); Ops. Cal. Atty. Gen. No. 3100 pp. 5-6 (1916). In the 1964

opinion, Justice Mosk, the author of the Lyon and Fogerty I decisions, as

California Attorney General, advised: “[I]t is now settled law in

California that private ownership extends to the low water mark of non-

tidal navigable waters.” 43 Ops. Cal. Atty. Gen. 291, 295 (1964).

'? See, for example, Foss v. Johnstone, 158 Cal. 119, 127 (1910);

Anderson v. Trotter, 213 Cal. 414, 420 (1931); City of Los Angeles v.

Aitken, 10 Cal.App.2d 460 (1935); Crews v. Johnson, 202 Cal.App.2d

256 (1962).

much later artificial impoundment of water at Lake Tahoe by the

U.S. Bureau of Reclamation dam.

The trial court granted the state’s motion for summary judg-

ment, ruling the public trust servitude extended up the shoreline

to the higliest level the water could legally be raised by the federal

dam.

Petitioner appealed, alleging, among other arguments, that

Fifth and Fourteenth Amendment rights had been violated by the

uncompensated taking of vested property interests resulting from

the court’s decision.

The court of appeal had to create a novel, unpredictable and

unprecedented theory to uphold the trial court.'’ It designated its

new legal theory “prescription.” The decision in Fogerty I was

pointed to as being responsible for this perverse and startling

result:

“The extent of the public trust must be established in

accordance with the theory of prescriptive rights... [W]e

read Fogerty as establishing that the People have acquired

their public trust rights in the shorezone by prescription.” /d.

at 237, App. A at A-12.

The court of appeal discussed the well-established California

doctrine of prescription (see, e.g., Fogerty II, at 238; App. A at A-

13.), but since all of the essential elements of that doctrine were

missing under the facts at Lake Tahoe, the court was unable to

cite any California precedent to support its strange and unusual

ruling except for the brief reference to Fogerty I quoted above.

The court’s novel “prescriptive” theory did not fit within any

existing California law for several reasons. Not only had there

been no notice of any adverse claim by the state to the rights the

court was transferring to the state, but conversely, the state, at all

times prior to the filing of this action by petitioners in 1977, as

discussed above, actually disclaimed any interest in the shoreline

'’ The court of appeal rejected another novel state theory that the

“agreed boundary” doctrine somehow gave the state title. (Fogerty II,

supra, at 235-237; App. A at A-10-12.)

involved. Furthermore, the court of appeal, in Fogerty II, ignores

the fact that the periodic raising and lowering of the water level of

Lake Tahoe resulted from the federal dam owned and controlled

by the Bureau of Reclamation and not the State of California.

Consequently, the only adverse user, if in fact there was any, was

the federal government, which by periodic flooding of the shore-

line had acquired only a flowage easement. (See 30 Ops. Cal.

Atty. Gen. at 268.) (Also somewhat perplexing is the court’s

choice of 1966 to 1971 as the prescriptive period for fixing the

location of the public trust servitude.) '*

Petitioner TSR filed a petition for review with the supreme

court on January 5, 1987, which was denied on March 4, 1987.

During this time, because California voters had earlier failed to

confirm three of the sitting justices, the court was comprised of

only four of the full complement of seven justices, one of whom

had written the Fogerty I, Lyon, City of Berkeley'’ and Venice

Properties'® decisions and another had authored National Audu-

bon.'’ (Four votes are required for hearing.)

The impact of this last court of appeal decision in Fogerty IJ on

the interests of shoreline owners is well defined and drastic. With

this final state court decision in this litigation, no longer is there

any question as to the location and extent of the interests in the

property transferred from the owners of the private shoreline

frontage of Lake Tahoe to the state by the combined efforts of

California’s executive and judicial branches. The “taking” is now

'* Perhaps it was no coincidence that the five-year period chosen was

immediately prior to the enactment of Code Civ. Proc. § 1007. (See

Fogerty II, f.n. 10 at 240, App. A at A-15.)

'S City of Berkeley v. Superior Court, 26 Cal.3d 515 (1980), cert.

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

'° City of Los Angeles v. Venice Peninsula Properties, 31 Cal.3d 288

(1982), cert. granted, sub nom. Summa Corp. v. Calif. ex rel. Lands

Comm'n., 466 U.S. 198 (1984).

'’ National Audubon Society v. Superior Court, 33 Cal.3d 419 (1983),

cert. denied, 464 U.S. 977 (1983).

complete. There are no further state remedies available to the

shoreline owners.

REASONS FOR GRANTING THE WRIT

A. Preliminary Statement

A Wnit of Certiorari should be issued to secure uniformity of

conflicting decisions on federal constitutional law; to settle impor-

tant questions of federal constitutional law on the power of state

courts to suddenly, unpredictably and without precedent change

state property law so as to divest owners of valuable property

rights within their reasonable investment expectations; to settle

the question of whether [/linois Central Railroad Co. v. Illinois,

146 U.S. 387 (1892) (“Jllinois Central’), is a rule of federal

common law limiting state power to convey sovereign lands

underlying inland navigable waters and authorizing a state to

impose the public trust at any time, and in any expanded form,

regardless of existing, long-settled state law; and to settle whether

state courts are free of the restraints of the Fourteenth and Fifth

Amendment prohibitions against uncompensated takings and vio-

lations of due process. More specifically:

1. Earlier in this litigation the California Supreme Court

(Fogerty I) held the public trust applied to the bed of Lake

Tahoe (and all other “navigable” lakes and rivers in Califor-

nia) up to an undefined portion of the privately-owned

shoreline. Previously, these private shoreline property inter-

ests had always been considered to consist of an unencum-

bered fee down to the ordinary low water mark. The decision

in Fogerty I was a startling, sudden, retroactive and unpre-

dictable reversal in California property law in terms of

relevant precedents and, therefore, when finalized, would be

a taking of private property, without payment, in violation of

the Fourteenth and Fifth Amendments, and in conflict with

the views in the concurring opinion in Hughes v. State of

Washington, 389 U.S. 290 (1967), which were approved in

Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973) (over-

ruled on other grounds).

2. Later in this same proceeding (Fogerty //), the court

of appeal announced a radical, unpredictable and unprece-

dented extension of the doctrine of prescription which retro-

actively, and without any previous notice to owners of any

adverse claim, finalized the destruction of vested property

rights of Lake Tahoe shoreline owners. Both Fogerty J and

Fogerty II violate Fourteenth Amendment due process rights

of private property owners and are in conflict with Demorest

v. City Bank Farmers Trust Co., 321 U.S. 36, 43 (1944), in

that they do not rest upon a “fair or substantial basis’’; are in

conflict with Broad River Power Co. v. South Carolina, 281

U.S. 537 (1930), in that they so far depart from established

principles as to be without substantial basis; are in conflict

with Fox River Paper Co. v. Railroad Comm. of Wisc., 274

U.S. 651, 656 (1927), in that they represent a “novel view,”

inconsistent with earlier state court decisions; and are in

conflict with Enterprise Irr. Dist. v. Farmers Mutual Canal

Co., 243 U.S. 157, 164 (1917), in that they are “so clearly

unfounded that it may properly be regarded as essentially

arbitrary” and totally inconsistent with due process notice

requirements as described in Texaco, Inc. v. Short, 454 U.S.

516 (1982), Brennan, J., dissenting.

3. The California Supreme Court in Fogerty J, and the

California Court of Appeal in Fogerty // in applying

Fogerty I, have erroneously interpreted I//linois Central as

supporting a retroactive change in well established state law

which allows state court transfer of private property into

public ownership without payment of just compensation.

Illinois Central is also relied on as allowing state courts to

expand and/or change the origin, scope and location of the

public trust on the shorelines of California inland waterways

without regard to either existing state law or federal Consti-

tutional protections. //linois Central is also relied on by the

court as having “establish[ed] the principle” that a state

“does not have the power” to convey shorelands free of the

public trust. (City of Berkeley v. Superior Court, 26 Cal.3d

515, 521, cert. denied, 449 U.S. 840 (1980).) (Also see

Lyon, supra at 227; App. D at A-55.)

4. If allowed to stand, Fogerty I and Fogerty Il will

support the proposition that a state court, unlike its executive

and legislative branches, may not be guilty of a “take” in a

constitutionally prohibited sense but rather simply “de-

clares” the law even if the effect is a retroactive taking of

vested property rights, especially if the state court concludes

that “public interest” requires it to implement its concept of

public policy to protect lands bordering on waterways in the

“public interest” and from what it perceives to be environ-

mental harm.

5. The decisions in Fogerty J and Fogerty II are contrary

to the decision in Summa Corp. v. Calif. ex rel. Lands -

Comm'n., 466 U.S. 198 (1984) (“Summa”), in that the

state courts held the public trust in the shorelands involved

at Lake Tahoe was created by prescription after statehood

and thus would apply to lands that were not part of the bed of

Lake Tahoe at the time of statehood. Therefore, the deci-

sions could be argued to apply to the artificially created

tidelands in the Summa matter and therefore conflict with

Summa. The state decisions here are also contrary to Kaiser

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

Aetna’), in denying to owners their reasonable expectations

by imposing the public trust, without payment, to lands

which had been previously represented to shoreline owners

by all branches of state government to be unencumbered.

B. Illinois Central Railroad Co. v. Illinois Needs To Be Put in

Its Proper Place in Public Trust Law

The state cannot reasonably argue that the decisions here,

Fogerty I and Fogerty II, do not represent sudden, unpredictable

and unprecedented changes in California property law. Neither

can it be reasonably argued that the property rights lost by

shoreline owners, are not valuable and essential parts of the

bundle of rights of a variety protected by the Fourteenth and Fifth

Amendments. A ruling by this Court is urgently needed before

further damage is done to the rights of property owners on lakes

and rivers not only in California but throughout the nation under

the guise of enforcing a federal common law rule said to derive

from the decision in //linois Central which has the effect of

making state courts immune from the Fourteenth and Fifth

Amendments, and which allows the transfer of private property to

public ownership in the name of //linois Central. Illinois Central

needs the caretul, correct and authoritative analysis that only this

Court can give in order that state courts may not use that decision

in the future when seeking justification for transferring private

property to public ownership without payment.

California shoreline owners at Lake Tahoe and the owners of

shoreline on what the California Supreme Court described as the

other “navigable”'® lakes and rivers in California, have been

victimized by a series of judicial decisions and are desperately in

need of help from this Court.'? That help can be the affirmation of

the constitutional limitations on state courts and, perhaps more

importantly, by setting forth the reasonable and correct relation-

ship of the //linois Central decision to state court rulings on the

public trust in the interest of restoring fairness and justice to this

branch of law.”

'® See Fogerty I, at 245, App. C at A-24.

'° Indeed, it appears there are more California court changes in the

public trust law to come. Following the decision in National Audubon

Society v. Superior Court, 33 Cal.3d 419 (1983); cert. denied, 464 U.S.

977 (1983), owners of shoreline properties on non-navigable streams

and lakes maywell aiso be subject to the confiscation of their rights by

California courts under the theory that the “public trust” follows the

waters into the non-navigable tributaries of the navigable lakes and

rivers. As shown in f.n. 19 at 437, the California court suggested as

much: “In view of the conclusion stated in the text, we need not consider

the question whether the public trust extends for some purposes—such

as protection of fishing, environmental values, and recreation inter-

ests—to nmonnavigable streams.” (Emphasis ours.)

*° Nevada shoreline owners on Lake Tahoe may soon need the same

help unless these California decisions are reversed now since the Nevada

Attorney General in Opinion No. 204, issued April 20, 1976, ruled:

“The State of Nevada owns the bed and shores of Lake Tahoe

and other navigable waters within Nevada to the present ordinary

and permanent high-water mark [according to Fogerty /]—eleva-

tion 6228.75 feet]. The State of Nevada has not divested itself of

any interest in the subject lands by state law or usage. Rather, it

The distortion and misuse of the //linois Central decision in

California began in 1971 with a California Supreme Court deci-

sion involving coastal tidelands. The decision in Marks v.

Whitney, as discussed at 3, supra, greatly expanded the scope of

the tidelands trust from the traditional navigation, commerce and

fisheries to include “general recreational purposes” and other uses

including “the preservation of those lands in their natural state.”

Thereafter, in 1980, in City of Berkeley, as discussed at 4-5,

supra, the supreme court held that tidelands were subject to the

tidelands trust even where grants by the state to private parties

were unrestricted. The court went so far as to hold it was virtually

powerless in dealing with these lands, stating that: “The decision

[/llinois Central] established the principle that a state. . . does

not have the power to abdicate its role as trustee in favor of

private parties.” (Emphasis ours.) The court referred to /Ilinois

Central, as the “seminal case on the scope of the public trust.”

(/d. at 521.)

In Fogerty I (and Lyon), as discussed earlier, in placing the

public trust servitude on shoreline property at Lake Tahoe for the

first time in California history, the court again relied upon //linois

Central as supporting this drastic change in California’s property

law.

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

Cal.3d 288 (1982), (“l’enice Properties”), (cert. granted sub

nom., Summa Corp. v. California ex rel. Lands Comm'n, 466

holds them in trust for full public enjoyment of navigation, fishery

and related purposes.”

Later, in response to this ruling and to such a claim by the State of

Nevada in litigation, /ncline Village Gen. Improvement Dist. v. State of

Nev., Case No. 78-3191, 2d Judicial Dist., County of Washoe, the

Nevada Legislature passed and the Governor signed into law a bill

Stating that Nevada owned the bed of Lake Tahoe only up to the low

water mark of elevation 6223 feet. If Fogerty I and Fogerty II are

allowed to stand that same rationale would appear applicable to Nevada

shoreline owners, i.e., that the Nevada Legislature’s attempt to cure the

Nevada Attorney General-created problem of ownership above the low

water mark did not eliminate the public trust claim to the same

shoreline property in Nevada, either. (Nev. Rev. Stat. § 321.595)

U.S. 198 (1984), the California court again used //linois Centrai

to support its conclusion that land grants by the Mexican govern-

ment prior to California statehood and confirmed by the treaty of

Guadalupe Hidalgo were nonetheless subject to the “public trust”

even though the first time the claim was made was shortly prior to

that recent litigation. Although this Court overruled the Califor-

nia Supreme Court and protected the private titles against the

public trust claim, it does not appear that Summa settled the

question of whether the state must have owned the property for

the state to burden it with the public trust. The California court

overruled earlier contrary precedent in‘its decision.” This state of

affairs leaves what had previously been thought to be the public

trust origin, i.e., the Equal Footing doctrine, somewhat confused

in California, especially when compared to the recent ruling of

this Court in Summa.

In National Audubon Society v. Superior Court, 33 Cal.3d 419,

438 (1983) (“National Audubon”) cert. denied, 464 U.S. 977

(1983), the California court again used //linois Central to support

a decision which seems to be leading to another state taking of

long-vested water rights from the City of Los Angeles without

payment, in the name of //linois Central.

Petitioner submits that //linois Central, while it does describe

the public trust which arises out of statehood, under the Equal

Footing doctrine, does not justify expanding the traditional con-

cepts of “navigation, commerce and fisheries”; does not apply

above the point of practical navigability of a navigable lake; does

not apply to land that was not acquired by the state at statehood

under the Equal Footing doctrine; and that it is not a federal

common law rule binding on the states.

Seemingly, this Court long ago recognized that //linois Central

was an interpretation of state, not federal, law. See Appleby v.

City of New York, 271 U.S. 364 (1926) and I/linois Central

*! The Supreme Court's reference to its earlier decision on the point

as “dictum” would not seem to detract from the point that it was again

proclaiming a drastic change in California law. (See infra at 28.)

Railroad Co. v. Chicago, 176 U.S. 646 (1900).” As indicated in

App. H at A-96, Illinois is a low water state, i.e., the upland

owner owns the land down to the ordinary low water mark.

California is also a low water mark state historically as was

recognized by the California Supreme Court in Lyon. Conse-

quently, there appears to be no rational basis for construing

Illinois Central as justifying imposing the public trust above the

low water. As Justice Clark observed in dissent in Lyon:

“In concluding that the trust doctrine must extend to the

shorezone the majority rely mainly upon IJ/linois Central

Railroad v. Illinois (1892) 146 U.S. 387 [36 L.Ed. 1018, 13

S.Ct. 110] where the Supreme Court held that a grant of

submerged lands in Lake Michigan was subject to the trust.

(/d. at p. 452, et seq. [36 L.Ed. at p. 1041, et seq.].) The

court expressly recognized that it did not impose a trust on

the shorezone. It stated: ‘If it be ascertained... and deter-

mined that such piers and docks do not extend beyond the

point of practical navigability, the claim of the railroad

company to their title and possession will be confirmed; but if

they or either of them are found on such inquiry to extend

beyond the point of such navigability, then the State will be

entitled to a decree that they, or the one thus extended, be

abated and removed to the extent shown...” (/d. at p. 450

[36 L.Ed. at p. 1041].) The court’s order was to the same

effect. (/d. at p. 464 [36 L.Ed. at pp. 1046-1047].)” Lyon, at

238, App. D at A-72. (Emphasis in original.)

Petitioner submits that Justice Clark correctly limited //linois

Central in this statement: “Far from serving as authority to extend

the trust to freshwater shorezones, //linois Central Railway re-

flects it is on/y navigable submerged lands that are subject to the

trust.” /d., at 239, App. D at A-73. (Emphasis in original.)

2 As pointed out in Lyon v. Western Title Ins. Co., supra at 1201, the

state courts of Illinois “clung to the rule that: ‘The riparian owner [has]

the right to the exclusive use [our italics] of the banks [of an inland

waterway] to the low water mark.’ (Ensminger v. The People ex rel.

Trover (1868), 47 Ill. 384, 391; City of Peoria v. Central Nat. Bank

(1906) 224 lil. 43 [79 N.E. 296, 297].)”

Unquestionably, the application of J/ilinois Central by the

California courts is being watched nationwide. Before further

damage is done to the rights of shoreline owners directly affected,

and to those yet unaware of these unfounded and unprecedented

decisions, this Court should clearly state what Jilinois Central

stands for and thus reinstate the protection of the Fourteenth and

Fifth Amendments to shoreline owners on all lakes and rivers.

C. State Courts Are Prohibited, Just as State Legislatures,

from Transferring Private Property to Public Ownership

Without Payment Even Though a Court May Conclude

That Its Decision Is in the “Public Interest” and Promotes

“Public Policy”

In California the public trust and the Fourteenth Amendment

have collided. Notwithstanding the state courts’ attempts to

justify the resulting takings as necessary to preserve and protect

areas bordering on waterways in California the impact on the

shoreline owners is confiscation of their property without just

compensation.

Seemingly, a nation-wide frustration among certain groups, not

content with the government’s power of eminent domain, nor with

extensive land use regulations, has resulted in the promotion and

encouragement of the use of the //linois Central decision in a

distorted and perverse fashion which, in California, at least, has

placed property rights held to be subject to the public trust

doctrine beyond the protection of the Constitution.

Some writers (state attorneys and judges, as well) have appar-

ently concluded that the //linois Central public trust doctrine, and

any refinements, additions or novel applications a state court

wishes to make of it, is available to overturn long-settled state law

and to take property rights for public use contrary to all reasona-

ble expectations of the owners and without regard to the emo-

tional or financial impact on shoreline owners.

They argue that whatever interpretation or expansion of the

Illinois Central decision a state court wishes to make has always

been the law, lurking in obscure judicial shadows, waiting to be

dusted off and used to transfer property from its nghtful owner to

the state free of charge.”

In perhaps the bluntest statement as to the value to public

agencies in using the courts and //linois Central to transfer private

property to public ownership without payment is found in a

study™* commissioned by the President’s Council on Environmen-

tal Quality in the chapter, “Sidestepping the Taking Issue”,

where the authors suggest:

“Professor Joseph Sax has discussed at length this concept of

property ‘as an interdependent network of competing uses’ in

articulating an expanded theory of the public trust inherent

in property. [Sax, “Takings, Private Property and Public

Rights,’ 81 Yale L.J. 149, 140 [sic] (1971).] Obviously, the

possibility of claiming such paramount title interest is useful

only in regard to particular types of property [obviously

shoreline property], but where available may be the easiest

method of avoiding the taking issue’”.”> (Emphasis ours.)

*’ Apparently there is also a widely-held view that courts do not “take”

in a constitutional sense but rather simply “declare” the law. See, for

example, Chang, “Unraveling Robinson v. Ariyoshi: Can Courts ‘Take’

Property?”’, 2 Hawaii L.Rev. 57, 68 (1979). A hint of this view is found

in the recent case of Corp. of the Presiding Bishop v. Hodel, 637 F.Supp.

1398 (D.D.C. 1986), where that court seemingly expresses doubt as to

whether this Court has ruled that a court “takes” in the constitutional

sense by drastically changing existing property law:

“Thus, the Supreme Court Aas intimated, without ever squarely

holding, that a court may effect an unconstitutional taking by force

of judgment when it arbitrarily reverses precedent and awards

property to the state.” (Corp. of the Presiding Bishop, at 1406.)

(Emphasis ours.)

* Executive Office of the President’s Council on Environmental

Quality, “The Taking Issue.’ Washington, D.C., July 9, 1973, Chapter

16 at 313.

*S In Sax, The Public Trust Doctrine In Natural Resource Law:

Effective Judicial Intervention, 68 Mich. L.Rev. 471, 474 (1970),

Professor Sax suggested the way to evade payment for the takings of

shoreline properties in the following language: “Of all the concepts

known to American law, only the public trust doctrine seems to have the

The California Attorney General, the California State Lands

Commission and the California courts answered the challenge

and by their concerted efforts imposed the public trust on Califor-

nia land previously pnvately and exclusively owned. What was the

“policy” justificagon for this taking? The California Supreme

Court proclaimed “

“The exercise of the police power has proved insufficent to

protect the shorezone. The urgent need to prevent deteriora-

tion 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.””°

That the California Supreme Court is imposing its perception

of what is best for the public interest, without regard to existing

law, and is accomplishing that goal by a perverse application of its

erroneous concept of the //linois Central public trust doctrine, is

also illustrated by the recent decision of the court in National

Audubon, supra at 16. As the court put it, as its apparent

justification for its judicial “intervention”:

“{ T]he [Mono] lake’s recession obviously diminishes its

value as an economic, recreational, and scenic resource. Of

course, there will be less lake to use and enjoy. The declining

shrimp hatch depresses a local shrimping industry. The rings

breadth and substantive content which might make it useful as a tool of

general application for citizens seeking to develop a comprehensive legal

approach to resource management problems.” Sax describes //linois

Central as “the lodestar of American public trust law.” (/d. at 489.)

other owners, outside of Lake Ta:..c, who were not even parties to this

litigation:

“Whether or not the shorezone of Lake Tahoe would be better

preserved if privately owned than if the public has an interest therein is

not determinative, since we are not concerned here with recreation only,

nor with Lake Tahoe alone, but with a principle which will apply to

4,000 linear miles along all the navigable lakes and rivers in California,

in many of which the conditions may well differ in some respect from

those at lake Tahoe.” (Fogerty I, supra, at 247; App. C at A-28.)

of dry lake bed are difficult to traverse on foot, and thus

impair human access to the lake, and reduce the lake’s

substantial scenic value. Mono Lake has long been treasured

as a umique scenic, recreational and scientific resource,

[ citations omitted] but continued diversions threaten to turn

it into a desert wasteland like the dry bed of Owens Lake.”

(Id. at 431.)

The court, thereafter, had no difficulty in converting what it

considered to be an appropriate public policy at Mono Lake into

new state law and, after discussing J/linois Central, set forth its

thoughts both on its power and the absence, under its theory, of

any Constitutional protection to property owners where the public

trust is involved:

“[ W]e rejected the claim that establishment of the public

trust constituted a taking of property for which compensation

was required ... In summary, the foregoing cases [including

Illinois Central] amply demonstrate the continuing power of

the state as administrator of the public trust, a power which

extends to the revocation of previously granted rights or to

the enforcement of the trust against lands long thought free

of the trust. (See City of Berkeley v. Superior Court, supra,

26 Cal.3d 515.)” (National Audubon, supra, at 440.)*’”

The court again ties its ruling to the //linois Central decision,

stating that it “remains the primary authority even today, almost

nine decades after it was decided.” (National Audubon, supra at

437.)

The reasoning of the California courts that the //linois Central

public trust doctrine overrides the Constitution and that it may be

used to promote public policy goals originating with the court is

contrary to the decisions of this Court. In a case remarkably

similar to ours, this Court’s constitutional limits on a state taking

property in the name of public policy are reviewed. In Sotomura

7 A “power” that apparently runs only one way—the imposition of

further and expanded burdens on more and more private shoreline, since

the same court asserted in City of Berkeley that it “did not have the

power’ to relieve a private owner of the burden. (See supru at 15.)

v. County of Hawaii, 460 F.Supp. 473 (1978), the Hawaii

Supreme Court’s decision transferring private ownership of

coastal beaches to the state without payment was under attack in

the federal court. That court correctly stated: .

“The decision in Sotomura was contrary to established

practice, history and precedent and, apparently, was intended

to implement the court’s conclusion that public policy favors

extension of public use and ownership of the shoreline. A

desire to promote public policy, however, does not constitute

the justification for a state taking private property without

compensation. The Fourteenth Amendment to the Constitu-

tion forbids it. Chicago, Burlington and Quincy Railroad v.

Chicago, 166 U.S. 226 (1897).” (/d. at 481.) (Emphasis

ours. )

Justice Brennan reaffirmed this aspect of constitutional law in a

recent regulatory taking case:

“But the applicability of express constitutional guarantees is

not a matter to be determined on the basis of policy judg-

ments made by the legislative, executive, or judicial

branches. Nor can the vindication of those rights depend on

the expense of doing so.” (San Diego Gas & Elec. Co. v. San

Diego (Brennan, J., dissenting), 450 U.S. 621, 661 (1981).*

The views and decisions of the California courts on the impact

of the public trust on constitutional guarantees and on its extent

and application are totally repugnant to the admonitions and

decisions of this Court. Constitutional protections are being

ignored while the state, through its courts, transfers basic rights

Sin Leo Sheep Co. v. United States, 440 U.S. 668 (1979), in

rejecting the Government’s contention of an implied easement of neces-

sity to federal land over private-land granted to the railroads in

connection with the transcontinental railroad construction, the majority

observed that the “easement is not actually a matter of necessity in this

case because the Government has the power of eminent domain.” (/d.

679-680.) In other words, as applied to the California situation, if public

policy requires state ownership of all the interests (except the “naked

fee”) in the shoreline of all California lakes and rivers let the state pay

as required by constitutional law!

from shoreline owners to itself without payment. This shameful

misuse of the power of courts must be stopped and the unconsti-

tutional actions reversed. It is not too late to bring back the

Fourteenth and Fifth Amendment protection to California shore-

line property owners. However, without this Court’s help the

cause may be irretrievably lost in California, and thus provide

even greater impetus nationwide for this grossly unjust method of

transferring valuable, vested and essential property interests from

private owners to the public without payment.

D. The State Court Decisions in This Proceeding Have Sud-

denly and Unpredictably Changed California Property Law

and Therefore Constitutionally Prohibited Takings and

Due Process Violations Have Occurred

The earlier California Supreme Court decision leading up to

the final judgment in this proceeding, Fogerty I, radically changed

California law by imposing the public trust in an undefined

location on the private shoreline property at Lake Tahoe. The

more recent California court decision in this proceeding, Fogerty

II, radically, unpredictably and without state law precedent

changed the California law of prescription resulting in the taking

of valuable vested property interests in specific and well defined

shoreline land. Fogerty II completed the taking of private property

commenced in Fogerty J. Furthermore, the extinguishment of

private property rights which resulted from awarding the property

to the state based upon the limited adverse use by the federal

government did not give the constitutionally required notice to the

owner of the belated state claim and is therefore a violation of due

process. (See, e.g., Texaco, Inc. v. Short, 454 U.S. 516 (1982),

Hodel v. Irving, No. 85-631 (May 18, 1987).

Until the decision in Fogerty I there was not even a hint in

California custom, practice, history, statutes or judicial precedent

that the property of shoreline owners on Lake Tahoe, or any other

navigable lakes and rivers in California, would be held to be

subject to a public trust servitude, let alone property above the

low water mark as it existed on Lake Tahoe at California’s

admission to the Union—not to mention the novel and remark-

able court-created theory that places it even above the high water

mark!

Further proof that Fogerty J is a radical change in California

law is found in the dissent of Justice Clark where he refers to the

previous law: “[T]he public trust declared today by the majority

applies only to tide and submerged lands and does not apply to the

shorezone.” 29 Cal.3d at 249. He points out the ruling that

estoppel did not apply to the Lake Tahoe shorezone was also

contrary to the court’s earlier decision in a similar case which

involved the tidelands at a time when only the tidelands were

subject to the public trust. Justice Clark protests: “I must also

dissent from the majority’s conclusion that the People may not be

estopped from asserting the trust. The holding of the sole author-

ity relied on by the majority, City of Long Beach v. Mansell, 3

Cal. 3d 462 [91 Cal.Rptr. 23, 476 P.2d 423] (1970), is directly

contrary to today’s decision.” (Fogerty I, at 250; App. C at A-32.)

(Emphasis ours.)

More evidence that Fogerty I is a drastic, radical and retroac-

tive change in California law is the decision of another California

court of appeal occurring well after Fogerty J and Lyon. Mr. Lyon,

the original victim of the state at Clear Lake, filed suit against his

title company in an attempt to recover for the loss suffered when

the California Supreme Court transferred his private property into

public ownership. The California Court of Appeal, First Appellate

District, in Lyon v. Western Title Ins. Co., 178 Cal.App.3d 1191

(1986), reluctantly ruled that his title policy excluded the cover-

age sought.”” However, the court was not content to let the matter

rest there and severely criticized the Fogerty I and Lyon decisions

as drastic, retroactive confiscation of vested property rights. (Re-

printed in full in App. I at A-100.)

*? The court, in Lyon v. Western Title Ins. Co., expresses its frustra-

tion at being required to be a party to the result forced upon it by the

California Supreme Court decisions in Lyon and Fogerty I:

“Nevertheless, we are told by Auto Equity Sales, Inc. v. Superior

Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937],

that ‘all tribunals exercising inferior jurisdiction are required to

follow decisions of courts exercising superior jurisdiction.’ Obedient

to that rule, and regardless of the views we have expressed, we

must, and do, declare the holding of Lyon to be the law of the

state.”” (/d. at 1203.)

An illustration of this California court’s strong views on the

unjudicious nature of the California Supreme Court’s decision on

the public trust:

“On the instant appeal Lyon insistently contends that Lyon's

innovative public trust doctrine which did not exist when he

acquired Anderson Marsh, is bad law, unsupported by au-

thority, violative of the separation of powers doctrine expli-

cated by the state and federal Constitutions, and has taken

his property for public use contrary to the state’s Constitu-

tion, article I, section 19 [just compensation for taking].

“Respectfully, we find ourselves in agreement.” (Lyon v.

Western Title, supra, at 1200, App. I at A-109.)*°

California Supreme Court Justice Richardson, who dissented

in Lyon, Fogerty I and in City of Berkeley, also indicated his

displeasure with the court’s treatment of property owners under

the public trust doctrine in his dissent in City of Los Angeles v.

Venice Peninsula Properties, 31 Cal.3d 288 (1982), cert. granted

sub nom., Summa Corp. v. Calif. ex rel. Lands Comm'n., 466

U.S. 198 (1984). Justice Richardson wrote about this unprece-

dented change in law and the drastic inroads into the rights of

California shoreline owners as follows:

“There is no precedent for such an extension of public

ownership. The Legislature has never reached so far, nor

have we. In City of Berkeley v. Superior Court (1980) 26

Cal.3d 515 [162 Cal.Rptr. 327, 606 P.2d 362], a bare

majority of this court first expounded the notion that tide-

lands in navigable waters which had been conveyed by the

state to private parties nonetheless were encumbered by a

reserved public trust for commerce, navigation, fishing and

Note, Lyon and Fogerty, Unprecedented Extensions of the Public Trust

(1982), 70 Cal. L.Rev. 1138; The Public Trust After Lyon and Fogerty,

Private Interests and Public Expectations—A New Balance (1983), 16

U.C. Davis L.Rev. 631; Note, Property Boundaries—Civil Code § 830

Grants Nontidal Shorezone to Private Landowners, Subject to Tide-

lands Trust (1982), 22 Santa Clara L.Rev. 559.” (/d. at p. 1203.)

other uses. (/d. at pp. 523, 528.) In the following year in

State of California v. Superior Court (Lyon) (1981) 29

Cal.3d 210 [172 Cal.Rptr. 696, 625 P.2d 239], the same

majority extended this new doctrine to lands between high

and low water in nontidal navigable lakes which had been

granted by the state into private ownership.” (/d. at 307.)

That a state court cannot transfer private property into public

ownership without payment is made clear by Justice Stewart's

concurrence in Hughes v. Washington, supra, under circum-

stances parallel to the instant matter:

“(T]o the extent that the decision of the Supreme Court of

Washington on that issue arguably conforms to reasonable

expectations, we must of course accept it as conclusive. But

to the extent it constitutes a sudden change in state law,

unpredictable in terms of relevant precedents, no such defer-

ence would be appropriate. For a State cannot be permitted

to defeat the constitutional prohibition against taking prop-

erty without due process of law by the simple device of

asserting retroactively that the property it has taken never

existed at all. Whether the decision here worked an unpre-

dictable change in state law thus inevitably presents a federal

question for the determination of this court.” (/d. at 296-

297.)

And in language which also accurately describes the Lake

Tahoe shoreline owners’ similar situation:

“There can be little doubt about the impact of that change [the

declaration that accretions belong to the state] upon Mrs.

Hughes: The beach she had every reason to regard as hers was

declared by the state court to be in the public domain...

Although the State in this case made no attempt to take the

accreted lands by eminent domain, it achieved the same result by

effecting a retroactive transformation of private into public prop-

erty—without paying for the privilege of doing so. Because the

Due Process Clause of the Fourteenth Amendment forbids such

confiscation by a State, no less through its courts than through its

legislature, and no less when a taking is unintended than when it

is deliberate, I join in reversing the judgment.” (/d. at 297-298.)

(See also Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673, 680

(1930).)

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

Rehnquist agreed that the “reasonable expectations” referred to

by Justice Stewart in Hughes were a critical element in determin-

ing the extent of previously vested rights of the owner. Especially

was this so when the right to be taken by the government was the

“right to exclude” others. While stating that “individual officials

representing the United States cannot ‘estop’ the United States,”

it was observed that such an historical background of government

consent “can lead to the fruition of a number of expectancies

embodied in the concept of ‘property,’—expectancies that, if

sufficiently important, the Government must condemn and pay

for before it takes over the managment of the landowner’s

property. In this case, we hold that the ‘right to exclude’, so

universally held to be a fundamental element cf the property

right, falls within this category of interests that the Government

cannot take without compensation.” (/d. at 179-180.)>"

Moreover, to some degree in Fogerty J and unquestionably in

Fogerty II the property held to be subject to the public trust was

property that had never been in state ownership before the court

decisions. Since the genesis of the public trust is the Equal

Footing doctrine, property never before owned by the state simply

could not become subject to the servitude. However, contrary to

this principle, in City of Los Angeles v. Venice Peninsula Proper-

ties, 31 Cal.3d 288 (1982), the California court ruled that lands in

southern California, acquired by Mexican grants, which were

never state owned, were nevertheless subject to the public trust.

Justice Richardson, in dissent, pointed out at p. 307:

*' Compare the fundamental conflict between this Court’s “reasonable

expectations” approach in Kaiser Aetna to the California Supreme

Court’s rejection of petitioner’s estoppel argument in Fogerty / which,

too, was based on “an historical background of government consent.”

(Fogerty I, supra at 244-247, App. C at A-23-28.) Additionally, as

Justice Clark pointed out, the California Supreme Court’s earlier ruling

on estoppel in City of Long Beach v. Mansell, 3 Cal.3d 462 (1970) was

“directly contrary to today’s [ Fogerty /] decision.” (See Fogerty I, supra

at 250, App. C at A-32.)

“By imposing a public trust easement upon properties

which are neither tidal, navigable, nor formerly under public

dominion, the majority has removed all heretofore recog-

nized reasonable limitations on the scope of the public trust

doctrine.”

The majority in Venice Properties had overruled what it called

“dictum” in San Diego County Archaeological Society, Inc. v.

Compadres, 81 Cal.App.3d 923, 927 (1978) to the effect that

“the public trust doctrine applies only to property to which the

state has at one time held title.”

Justice Richardson goes on to explain how the court has

distorted the previous law in regard to its conclusion that the state

need not have owned the property in order for the public trust to

burden the land:

“It should be carefully noted that the rationale of the

public trust doctrine is that the public lands conveyed into

private ownership remain subject to public use for certain

limited purposes unless the intention to extinguish that

public right is clearly expressed in the grant. The doctrine

operates when the ownership of land and waters vested in

California upon its admission to the Union (Borax, Lid. v.

Los Angeles (1935) 296 U.S. 10, 15 [80 L.Ed. 9, 14, 56

S.Ct. 23]) is thereafter conveyed into private hands, the

doctrine reserving in the public grantor a public trust. In

short, the principle limits subsequently created private prop-

erty rights. (People v. California Fish Co. (1913) 166 Cal.

576, 583-585 [138 P. 79].)

“It seems to be obvious that this reasoning has no applica-

tion to lands like those before us which never were owned

publicly. Indeed, the majority freely acknowledges that we

have never before applied the public trust doctrine to such

property. (Ante p. 298.) Nonetheless, my colleagues assert,

without analysis, that prior government ownership is not

essential to the application of that doctrine, but that

unadorned, unsupported, bare conclusory assertion is not

persuasive. In my view the majority thus errs in applying the

public trust doctrine to the property before us, title to which

has been exclusively in private ownership since 1839.”*? (31

Cal.3d at 307-308.) (Emphasis in original. )

CONCLUSION

As was pointed out by the district judge in Robinson v.

Ariyoshi, 441 F.Supp. 559 (1977):”

“Underlying the right of the courts and legislature to make

changes in the law, however, is the concomitant obligation of

the State to compensate those whose property may have

been taken over by the State by those changes. Chicago,

Burlington & c. R'D v. Chicago, 166 U.S. 226, 17 S.Ct. 581,

41 L.Ed. 979 (1897). Even by legislative fiat, property

cannot be expropriated and taken over by the State without

compensating the private owner for his lost rights. No more

can private property be so taken away by judicial decision

and handed over, gratis, to the State. ‘The touchstone of due

process is the protection of the individual against arbitrary

action of the government.’ Wolff v. McDonell, 418 U.S. 539,

558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935.” (/d. at 584-585.)

* Although the majority’s reasoning on the lack of necessity of state

ownership to support the application of the public trust seems to have

been severely discredited in the subsequent overturning by this Court of

Venice Properties in Summa, a narrow reading of that decision by the

court below may leave that portion of the Venice Properties decision

intact.

* Subsequently the Ninth Circuit upheld the District Court. See 753

F.2d 1468 (9th Cir. 1985), vacated and remanded, No. 85-406 (June

23, 1986). Based on the citation of Williamson Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985), by this Court on remand

apparently the petition for certiorari was deemed premature.

In this year of the celebration of the Constitution, and its

Amendments, it seems especially appropriate to remind state

courts that they, no less than the executive and legislative

branches, are prohibited by the Fifth and Fourteenth Amend-

ments from transferring private property to the state without

payment and to reinforce the proposition that the Due Process

and Taking Clauses are not just high-sounding phrases but are

meaningful and enforceable constitutional rights designed to pro-

tect the individual from just such arbitrary actions by all branches

of state government as have occurred here.

Respectfully submitted,

WILLIAM T. CHIDLAW

Attorney for Petitioner

Tahoe Shorezone

Representation

(Appendices follow)

ee ee ee ee ee

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 Yan 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. (Jbid.) 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 fee 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.”

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. (/Jd., 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

Iowa 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.” 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 theyblic 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:

seeaiiiiaiiiaiees

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;

“5. 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 hoiding 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

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.

* The lands between low 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. (Jd, 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 d«cision 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-11

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 (Erie 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 nghts, so no

controversy was resolved. We know this, as a matter of law,

because “with few exceptions, state authorities, including the

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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 nights.

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 nights 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 mght 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.

(/bid.) 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:

RR a gE ipa 6228.87 feet

Ne eee kan a we ek a 6228.75 feet

SR ee ts Sails toe? a oe 6229.05 feet

INA, FS ee ete 6229.05 feet

Ne gt he a ere 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."

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

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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, e.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. Iagersoll (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,

¥.

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 Wnit 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;

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.—Thie present action is concerned with the

ownership of lands between high and low water in Lake

Tahoe, a navigable lake in which there is no appreciable

ebb and flow of the tide. The primary issues are the same

as those discussed in State of California v. Superior Court

(Lyon), ante, page 210 [...... Cal. Bptr. ...... ita cen gh ee ], but

some questions in addition ta those in the Lyon action are

raised by the parties.

In the spring of 1977, the State Lands Commission, after

being advised by the Attorney General that the state

claimed ownership of the property between high and low

water in navigable nontidal lakes and rivers, propose to

record claims to such lands in the offices of county

recorders throughout the state.

Thereupon, Charles and Stella Fogerty and other owners

of property along the shore of Lake Tahoe, and Tahoe

Shorezone Representation, a corporation which represents

many shoreline owners, filed this action for declaratory

relief and inverse condemnation, and claimed violation of

A-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

lands Commission, and several state officials (hereinafter

called the People).

After overruling the demurrers of the People and grant-

ing plaintiffs a preliminary injunction prohibiting the state

from recording a notice that it owns the lands between high

and low water in Lake Tahoe, the trial court granted plain-

tiffs’ motion for partial summary judgment. It ruled that

no portion of the property involved in this action landwar«

of the last natural low water mark of Lake Tahoe is or

ever was sovereign property of the state or subject to the

common law public trust for commerce, navigation and

fishing, and it denied the motions for partial summary

judgment and for partial judgment on the pleadings filed

by the People. Thereafter. the People filed this proceeding,

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 nghts. 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, anc

to enter an order granting the motions made by the People.

The major issue raised by the plaintiffs, not discussed

in Lyon, is that of estoppel. Strictly speaking, that issue

is not formally before us. Plaintiffs’ complaint pleads a

cause of action for declaratory relief in estoppel. hut their

notion for partial summary judgment did not seek a ruling

on this issue, and the trial court did not pass upon the

question. The People, urging that plaintiffs should not be

permitted to raise the issue, assert that estoppel is a ques-

tion of fact for the trial court in any future proceeding.

This argument is technically tenable. But if estoppel were

to be determined on a case-by-case basis it would require

a massive expenditure of time and money by the state.

riparian landowners, and the judiciary. Such an effort

may he avoided if, as we shall conclude, we can decicle

the question as a matter of law on the basis of the present

record. (Cf. City of Long Beach v. Mansell (1970) 3 Cal.3a

462, 487-488 [91 Cal.Rptr. 23, 476 P.2d 423].)

The elements of equitable estoppel were described so

thoroughly by Justice Sullivan in Mansell that little more

need be said on the subject.*

*There are four elements necessary to apply the doctrine: “(1)

the party to be estopped must be apprised of the facts; (2) he must

intend that his conduct shall be acted upon, or must so act that the

party asserting the estoppel had a right to believe it was so in-

tended: (3) the other party must be ignorant of the true state of

facts; and (+4) he must rely upon the conduct to his injury.” (3 Cal.

3d at p. 489. )

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

Lyon declares that the public trust applies to the land in question

(43 Ops.Cal.Atty.Gen. 285, 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 Lyon action, the Cali-

fornia Department of Water Resources. points out that

il sl-orezone has heen reduced to a fraction of its original

~iz- 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 anthorities have warned that at the pres-

eut rate of destruction nearly all riparian vegetation on

the Saeramento 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

numerous tynes 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].)

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 hed 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 lhe argument is now commonplace that these

environments are the earth’s most hiologically productive

... If nature hats 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 reereational use of these

areas for picknicking, hunting, fishing, hiking, hirdwatel-

ing and nature study does not require elaboration to anv

Californian. In Marks v. Whitney (1971) 6 Cal.Ad 251,

959-260 [98 Cal.Rptr. 790, 491 P.2d 574), Justice McComb

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

uses of the tidelands—a use encompassed within the tide-

lands trust—is a preservation of those lands in their

natural state, so that they may serve as ecological units

for seientific study, 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.

Resourees Code, §4 5095.50, 5811.) Section 5811 provides

that “the remaining wetlands of this state are of increas-

ingly critical economic, aesthetic, and scientific value to the

people of California, and ... there is need for an affirma-

tive and sustained public policy and program directed

at their preservation, restoration, and enhancement, in

erder that such wetlands shall continue in perpetuity to

meet the needs of the people.”

We are not convinced by the assertion that these con-

siderations do not rise to the level of a strong public

policy in favor of retaining the public trust in the shore-

zone. Plaintiffs argue that a large percentage of the shore-

line of Lake Tahoe is presently devoted to public use

either heeause of public ownership or the public utilization

of privately owned shoreline facilities such as marinas,

that the prohlems at Lake Tahoe are related to a large

influx of people which contributes to the pellution of the

Inke, that the public heach 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 hehalf of the publie will not

necessarily provide the ecological henefits 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, liin-

*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 fow 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 sec, ).

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. but with a principle which will apply to 4.000 linear

miles along all the navigable lakes and rivers in California,

in many of which the conditions may well differ in some

respect from those at Lake Tahoe. Preservation of the

public trust in the shorezone will allow the state flexibility

in determining the appropriate use of such land, so that,

for example. areas which are endangered by overuse can

he closed to certain activities such as public bathing. A

number of the considerations advanced by plaintiffs and

amicus would call also for abdication of the tidelands trust

and the substitution of regulation of tidelands development

for the concept of the public’s right to control such lands

as a matter of right. These arguments appear to oppose

the established public trust doctrine in principle, rather

than its application to the shorezone as such.

The exercise of the police power has proved insufficient

to protect the shorezone. The urgent need to prevent deteri-

oration and disappearance of this fragile resource provides

auiple justification for our conclusion that the People may

not be estopped from asserting the rights of the public

in those lands.

One question remains: whether the boundary between

publie and private ownership should he determined with

reference to Lake Tahoe in its eurrent 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 level of the lake. (See 30 Ops.Cal.Atty.Gen. 262, 267-

268 (1957).) The trial court concluded that the appropriate

boundary between public and private ownership is to he

measured in accordance with the “last natural” low water

mark of the lake. Plaintiffs argne 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 accretions and relictions* and to the maintenance of a

hody 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 deeades ago. The People point

‘Section 1014 of the Civil Code provides that where land forms

by imperceptible degrees from natural causes upon a river or

stream by accumulation of material or the recession of the stream.

it belongs to the owner of the bank. In Carpenter v. City of Santa

Monica (1944) 63 Cal.App.2d 772, 794 [147 P.2d 964], the court

refused to apply this statute to tidelands, deciding that artificial

accretions to tidelands belong to the state, because to hold other-

wise would indirectly convey public tidelands into private owner-

ship.

*Some cases hold that a landowner has a vested interest in a

long-continued diversion of water by the state if he has made sub-

stantial expenditures in reliance upon the diversion (Natural Soda

Prod. Co. v. City of L. A. (1943) 23 Cal.2d 193, 197 [143 P.2d 12];

Chowchilla Farms Inc. v. Martin (1933) 219 Cal. 1, 18 [25 P.2d

435]), and that he may recover damages if the level of a lake is

lowered (City of Los Angeles v. Aitken (1935) 10 Cal. App.2d 460.

472 (52 P.2d 585] ).

A-30

out that it would be difficult (and probably impossible in

sume cases) to reconstruct the natural water level of a

lake. There are hundreds of dams in California. some

dating back to the early davs of statehood. (Dept. of Wat.

Resources, Dams Within Jurisdiction of State of Cal.

(1976) Bull. No. 17-76.) The monumental evidentiary prob-

lem which would be created by measuring the boundary

line between public and private ownership in accordance

with the water level which existed prior to the construction

of these dams provides a convincing justification for ac-

cepting the current level of the lake as the appropriate

standard.

Moreover, the dam at Lake Tahoe has been in existence

since 1870, long past the period required for the aequ'sition

of prescriptive rights bv the state in the lands in question.

(Civ. Code, £1007: Code Civ. Proe., ¢ 325.) It has been

held in other jurisdictions that a landowner loses owner-

ship of property covered by water resulting from the

construction of a dam if the condition has continued for

the period required for the acquisition of prescriptive

rights. (State 7+. Parker (1918) 132 Ark. 316 [200 S.W.

1914, 1016]: State +. Sorenson (1937) 222 Towa 1248 [271

NW. 234, 238-239].) Sorenson stated that in these cireum-

stances “the artificial condition is ... stamped with the

character of a natural condition, and the title to the lands

covered by the waters of the lake is deemed to have passed

from private ownership to the same trust as that of lands

covered by the waters of natural navigable lakes. The

state, and private owners, as well. of lands affected by

the artificial condition. may enforce the maintenance of

that condition.” (Cf. Chowchilla Farms Inc. v. Martin.

A-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 structures

in the shorezone may continue to use these facilities unless

the state determines, in accordance with applicable law,

that their continued existence is inconsistent with the

reasonable needs of the trust. In that event, both statute

and case law require that plaintiffs be compensated for

the improvements they have constructed in the shorezone.

(Pub. Resources Code, § 6312; [Illinois Central Railroad r.

Illinois (1892) 146 U.S. 387, 455 [36 L.Ed. 1018, 1043,

13 S.Ct. 110]; City of Berkeley +. Superior Court (1980)

26 Cal.3d 515, 534 [162 Cal.Rptr. 327, 606 P.2d 362].)

Let a writ of mandate issue directing the trial court to

vacate its order granting plaintiffs partial summary judg-

ment, and to grant the People’s motion for partial sum-

mary judgment and partial judgment on the pleadings,

insofar as consistent with the views expressed above.

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

CLARK, J., Dissenting.—for the reasons stated in my

concurring and dissenting opinion in State of California v.

Superior Court (Lyon), ante, page 210, (2... Cal. Rptr. ..

A-32

pea 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

mav 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.” (/d., at p. 487.)

This court first discussed estoppel as applicable to

private parties in land title cases, concluding that the

circumstances would be sufficient to estop private claims.

The court continued: “It is settled that ‘{t]he doctrine of

-quitable estoppel may be applied against the government

where justice and right require it. (United States Fid. ¢

Guar. Co. v. State Board of Equalization (1956) 47 Cal.2d

A-33

384, 388-389 [303 P.2d 1034] and cases there collected.)’

(Driscoll v. City of Los Angeles, swpra, 67 Cal.2d 297,

306 [61 Cal.Rptr. 661, 431 P.2d 245].) (See generally 28

Am.Jur.2d, Estoppel and Waiver, §§ 122-133, pp. 782-802:

31 C.J.S., Estoppel, $4 138-147, 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 S817,

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 zov-

ernment is the following: The government may be hound bv

an equitable estoppel in the same ivanner 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 <limension to

justify any effect upon public interest or policy which 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 poliey 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 mav not be

estopped as to thousands of linear miles of shorezone.

(AMER, TDS sisictsiccine )

The majority decision is arbitrarily contrary to Mansell.

That case established that in appropriate circumstances

the People could be estopped to assert the trust, when the

resulting injustice would outweigh the public policy. There

are no doubt, thousands of homeowners in cities of the Sac-

ramento and San Joaquin Valleys, as well as other areas of

the shorezone, in substantially the same position as were

the homeowners in Long Beach. These homeowners, and

thousands of farmers will suffer thousands of “great

injustices,” clearly outweighing the public trust loss in

respect to individual lands. (3 Cal.3d at p. 501.)

While it would be a tremendous burden on the judicial

system to cletermine 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 he, courts should not shirk their duty.

[ would deny mandate.

Richardson, J., concurred.

Se Nog Real

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)

26 Cal.3d 515 [162 Cal.Rptr. 327, 606 P.2d 362], we

reaffirmed the ancient doctrine that tidelands—lands

between the lines of mean high tide and mean low tide—

are owned by the public, that the state holds these lands

in trust for the people for their use for commerce, naviga-

tion, fishing and other purposes, and that this trust interest

is retained even if the title to tidelands has been conveyed

to private persons, unless the conveyance has been made

to promote the purposes of the trust.

The present case also concerns lands along the shoreline,

but the issue here is the boundary between state and

private ownership in non-tidal, navigable lakes and streams

between high and low water, i.e., lands alternately covered

and uncovered by water as the level of the lake rises and

falls with the seasons. The Attorney General, representing

the People, claims that these lands are owned by the state,

which acquired title thereto by virtue of its sovereignty

upon admission to the Union, that they have not been

conveyed to the owners of the lands along the shoreline,

and that even if such conveyances have been made, the

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 800 acres along

the shore of Clear Lake in Lake County, a navigable body

of water with an area of about 64 square miles. The

portion of the property involved in the present <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 by 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 houndary of

the land conveyed. Lyon sought to develop the property

and applied for a permit to repair a levee for the purpose

of reclaiming a portion of the marsh. The Fish and Game

Commission notified him that it coukl not process his

application for a permit because the State of California

claimed ownership of the portion of the marsh whicli

extends below the high water mark.

Lyon filed an action against the state and various of it~

agencies,’ seeking to quiet title to the marsh, and for

declaratory relief. He relied, inter alia, upon section 850

of the Civil Code.’ Thi 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.)

2All references are to the Civil Code unless otherwise 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 hetween 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, $1, p. 1165.) The county sup-

ported Lyon’s claim that he owns the property to the line

of low water.

Lyon, the county, and the People, all moved for partial

summary judgment based on their respective claims. The

trial court ruled in favor of Lyon and the county (here-

after sometimes collectively referred to as Lyon) ; it deter-

mined that no portion of the Anderson Marsh lying land-

ward of the ordinary low water mark of Clear Lake is

sovereign property of the state or subject to a common

law public trust, but that the waters of the lake are

impressed with a public servitude so that when the water

rises above the low water mark, the public has the right to

navigate between that line and the ordinary high water

mark. The People seek a writ of mandate to compel the

trial court to vacate its order. and to grant the People’s

motion for partial summary judgment.

The case involves issues which are of vast importance to

the general public as well as to the owners of land bordering

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 <lecision: at Clear Lake alone, there is a

(lifference of 5,000 acres in the surface area of the lake

between high and low water, and the Anderson Marsh

constitutes one-half of the remaining fresh water marsh

at Clear Lake. Lands of the type involved in this proceed-

ing constitute a resource which is fast disappearing in

California; they are of great importance for the ecology,

and for the recreational needs of the residents of the state.

Lyon’s claim to the fee ownership of Anderson Marsh

to the low water line is based on the following reasoning:

California never acquired title to the beds underlving

navigable nontidal waters above low tide. The United

States Supreme Court has made it plain that the owner-

ship of such lands is a matter of state rather than federal

law. ([Zardin v. Jordan (1891) 140 U.S. 371, 382 [35 L.Ed.

428, 433, 11 S.Ct. 808]; Barney «. Keokuk (1876) 94 U.S.

324, 338 [24 L.Ed. 224, 228].) The states exercised their

options with regard to ownership of such land hy adopting

*The Department of Water Resources has filed an amicus brief

in support of the People, as have the Sierra Club and the Natural

Resources Defense Council (joint brief) and the Audubon Society

and Friends of the Earth (joint brief). The California Land Title

Association and the California Association of Realtors (hereafter

referred to as Califorma Land Title Association) Lave filed a joint

brief on behalf of Lyon, and the Upper San Joaquin River Associ-

ation also supports Lyon’s position.

A-39

different rules; some states claun only to low water, some

to high water, and others make no sovereign claim to the

beds of nontidal bodies. Indeed, only a minority of states

claim sovereign ownership to high water.‘ When California

entered the Union, it determined to exercise no sovereign

claim to the beds of nontidal navigable waters. This choice

was made when, upon admission to statehood, the Legis-

lature adopted a statute which provided that unless

inconsistent with applicable federal or state law, the

“Common Law of England shall be the rule of decision

in all Courts of this State.” (Stats. 1850, ch. 95, p. 219.)

Under English common law, the sovereign made no claim

to ownership of lands underlying nontidal waters. There-

fore, by the adoption of the English common law, Cali-

fornia made no claim to ownership of the beds of such

waters. Subsequently, by the enactment of section 830 in

1872, the state determined to claim title only to low water.

The People contend, on the other hand, that California

acquired title to the lands in question to the high water

mark in its sovereign capacity upon statehood, citing, inter

alia, State Land Board vr. Corvallis Sand & Gravel Co.

(1977) 429 U.S. 363, 370-371 [50 L.Md.2d 550, 558-559, 97

S.Ct. 582]; Barney v. Keokuk, supra, 94 U.S. 324, 338.

Moreover, argue the People, section 830 did not grant such

lands to private persons because that provision only sets

forth a rule for the construction of deeds and does not

constitute a grant of sovereign land.

‘Approximately 20 states adopt a low water line for navigable

lakes and rivers, a few allow private ownership to the middle of

the water, and other jurisdictions have adopted different rules for

lakes and rivers. Ten jurisdictions have adopted the high water

rule. (See fn. 9 at p.._, post.)

A-40

We consider, first, whether California acquired sovereign

ownership in the lands between low and high water in

nontidal, navigable lakes and rivers upon admission to the

Union. If this question is answered in the negative, the

People’s claim to fee ownership of these lands cannot

prevail. If, on the other hand, the state owned the property

in question at the time of admission to the Union, it will

be necessary to decide whether, by the enactment of section

830 in 1872, it granted an interest therein to riparian land-

owners and, if so, the extent of the interest conveyed.

We begin with the proposition that, even accepting

Lyon’s assertion that the state did not automatically suc-

ceed to title to the Weds of navigable nontidal lakes and

streams to high water upon statehood but only had the

option to make such a claim, absent an indication that

the new state declined to exercise sovereign ownership

of such lands, we would be compelled to decide the issue

in favor of the state’s title. The only basis for a claim that

California abdicated its rights to claim to high water in

1850 was the adoption of the common law of England as

the rule of decision in this state.’

*The disagreement between the parties in this regard appears to

focus not upon the question whether the state had the power to

grant these lands to private persons, but upon when such power

was exercised, i.e., when California entered the Union or thereafter.

The People urge that the state succeeded to the ownership of the

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

although sovereignty implies that after admission to the Union the

state had the power to grant them to private persons. Lyon argues,

on the other hand, that California never owned these lands but only

had the option to claim ownership, and when it was admitted to

the Union, by the adoption of the common law in 1850 and section

830 in 1872, the state elected not to exercise its right to claim

ownership of the land between low and high water.

A-41

In England, there were different rules concerning the

ownership by private persons of the beds of tidal waters

and nontidal waters. Nontidal rivers and lakes were pri-

vately owned; a riparian holder took to the middle of

the lake or the thread of the stream, much like the land-

owner along a public street. At the same time, the beds

of all navigable waters were said to belong to the crown,

and the King held such property in trust for the public

and could not dispose of it free of that trust. Only waters

where the tide ebbed and flowed were considered to be

navigable in England. The reason for the difference in

these rules is readily explainable: in England there were

no navigable streams of any importance beyond the ebb

and flow of the tide. Therefore, the terms “navigable”

and “tidal” became synonymous; tidal (navigable) waters

came to mean public waters, while nontidal (and in En-

cland nonnavigable) waters came to mean private waters.

(The Propeller Genesee Chief et al. v. Fitzhugh et all.

(1851) 53 U.S. (12 Ilow.) 4438, 454-458 (13 L.Ed. 1058,

1063-1065]; Barney v. Nvokuk, supra, 94 U.S. 324. 338.)’

Some of the original 13 states adopted the common law

rule early in their history, for the same reason that the

rule was appropriate in England, i.e., most of their waters

were tidewaters, and until the use of steamboats “there

could be nothing like foreign commerce upon waters with

‘The People contend that although the common law rule has

generally been assumed to be as described above, there is some

authority for the proposition that the tidal character of a body of

water was not a critical factor in England in the determination of

navigability. Numerous cases in addition to those referred to above

support our characterization of the English rule. We need not

discuss the authorities upon which the People rely, since we shall

conclude that the common law test was not adopted in California.

A-42

an unchanging current resisting the upward passage.”

(The Propeller Genesee Chief, 53 U.S. at p. 455 [13 L.Ed.

at p. 1063].) However, the English rule was obviously inap-

propriate as the nation expanded westward, where there

were great rivers and lakes which were navigable in fact,

even though they were not subject to the ebb and flow of

the tide. These distinctions, and the inapplicability of the

common law rules to conditions in much of the United

States were recognized as early as 1851 by the United

States Supreme Court. In The Propeller Genesee Chief

it was held that the federal government had admiralty

jurisdiction in rivers and lakes which were navigable in

fact, whether or not the tide ebbed and flowed therein. In

1856, the courts of this state recognized that the tidal

character of a body of water was not a proper test of

navigability. (American Water Co. v. Amsden (1856) 6 Cal.

443, 446.)

The question of public ownership of navigable rivers and

lakes was discussed in WcManus v. Carmichael (1856) 3

Towa 1. That case, which involved the boundary of public

ownership along the Mississippi River, contains an exhaus-

tive analysis of the common law rule of England and its

application by early American courts. The court held that

only those parts of the common law which were suitable

to the conditions in Iowa were adopted by the new state.

The opinion asks, rhetorically and somewhat floridly.

“whether the rules and tests which are applicable enough

to the rivulets of England, shall be taken to measure those

waters whose flow is through the climates and zones of

the earth?” (Jd. at p. 31.) Needless to say, it held that

the state owned the beds of navigable, nontidal bodies to

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high water, and that the common law rule was inappro-

priate to the United States because the great nontidal

rivers and lakes in this country are navigable in fact.

Other states recognized the inapplicability of the English

rule to conditions in this country prior to 1850. (E.g.,

Carson v. Blazer (Pa. 1810) 2 Binn. 475, 484-486; Cates v.

Wadlington (S.C. 1822) 1 MeCord 580, 582.)

In Barney v. Keokuk, supra, 94 U.S. 324, the high court

considered the rule declared in WcM/anus, and left no doubt

the correct doctrine was laid down by that case, i.e., that

the states own the beds of navigable, nontidal bodies to

high water, and that the common law is inapplicable to

conditions in the United States. Nevertheless, it held that

states which had adopted the common law rule had the

power to determine whether “as rules of property” it would

he safe to change their adherence to the common law. After

reaching these conclusions, the court made a statement

upon which Lyon places great reliance: “If they [the

states] choose to resign to the riparian proprietor rights

which properly belong to them in their sovereign capacity,

it is not for others to raise objections.” (Jd. at p. 338

f24 L.Ed. at p. 228).) Later cases repeated the proposi-

tion that the states are free to determine the ownership

of lands helow high water mark in navigable, nontidal

lakes and streams. (Hardin v. Jordan, supra, 140 U.S.

371, 382 [35 L.Ed. 428, 433]; Shively v. Bowlby (1894)

152 U.S. 1, 40 [38 L.Ed. 331, 346, 14 S.Ct. 548].)

With this background, we consider whether we are com-

pelled to conclude, as Lyon asserts, that by the adoption

of the English common law in 1850, California accepted

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the rule of private ownership of nontidal navigable waters

so that title to their beds was never in the state but was

granted directly to private riparian owners. We do not

so conclude.

First, our courts have never adhered slavishly to com-

mon law doctrines if they were unsuitable to the circum-

stances of our people or if the conditions were those never

contemplated by the common law. (Tan Ness v. Pacard

(1829) 27 U.S. (2 Pet.) 137, 143-144 [7 L.Ed. 374, 376-

377]; Jones v. California Development (1916) 173 Cal.

565, 573-574 1°° 2. 823].) Crandall v. Woods (1857) 8 Cal.

136, 142-143, referred to the English test of navigahilitv

as a rule “framed with special reference to the phvsical

condition of a country differing widely from our own.” The

law is replete with situations in which this and other juris-

dictions which adopted the common law have refused to

follow those aspects which were unsuitable to local condi-

tions. (See Traynor, Statutes Revolving in Common-Law

Orbits (1968) 43 State Bar J. 509, 51S et seq.: Hall, The

Common Law (1951) 4 Vand.L.Rev. 791, 805 et seq.) If

we were to hold, as Lyon urges, that the adoption of the

common law in 1850 signified the acceptance in this state

of the English rule regarding the ownership of the lands

in question, we would “apply a rule founded on a particu-

lar reason, to a case where that reason utterly fails.”

(Crandall at p. 143.)’

"Lyon appears to argue that because The Propeller Genesee

Chief was not decided until 1851, the year after California entered

the Union, and Barney was not decided until four years after sec-

tion 830 was enacted into law, the holdings of these cases may not

be considered in deciding whether California, by adopting com-

A-45

Rejection of the common law rule is also supported by

the enactment of section 830 in 1872. As we have seen.

under English common law, a riparian landholder owned

land beneath nontidal waters to the middle of the lake or

the thread of the stream; the King had no ownership

interest in such lands. Under the terms of section 830,

according to Lyon, the boundary between public and

private ownership was set at the low water line. If we were

to accept Lyon’s assertion, we would be led to the entirely

irrational conclusion tha

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