Appendix — Colberg, Inc. v. California ex rel. Department of Public Works

Supreme Court brief1968

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Text

Appendix A

Exhibit (1) coat

Superior Court .

State of California’ . -

County of San Jouquin ;

No. 83,738

Colberg, Ine., a California corpora-

tion, et al.,

Plaintiffs,

vs. |

The State of California, by and 7 |

_through its agencies, The Depart-

ment Of Public Works, and The |

. Division of Highways, | 3

Defendant. i

JUDGMENT ON THE PLEADINGS © °° |

The. above-entitled matter came on regularly for

hearing on’ April 20, 1965, at 9:00 a.m., Richard B.

Daley appearing as counsel for plaintiffs Colberg,

Ine., a California Corporation, Wilton Colberg, Jack

Colberg-and Gordon Colberg, co-partners, doing busi-

ness as Colberg Boat Works; James C. Van Dyke

appearing as counsel for plaintiff Stephens Marine,

‘

Ine., ‘a California Corporation, in consolidated action

No. 83974; and Mare Sandstrom appearing as counsel

for the defendant State of California. / The Court

shaving heard the argument and examined the briefs

of the respective parties, and upon the Findings of

Fact and Conclusions of Law on file herein, and

Good Cause Appearing Therefor: |

It Is Ordered And Adjudged that Defendant State

of California’s Motion for J udgment on the Plead-

ings be granted and that judgment be entered in’

favor of the defendant State of California as against

the plaintiffs Colberg, Inc., Wilton Colberg, Jack

- Colberg and Gordon Colberg, and that said raniine

take nothing by their complaint. : .

It Is Further Ordered And Adjudged that said

defendant is entitled to its costs of suit in the amount

; of

Dated : May 24, 1965;

/s/ Wm. Biddick, Jr.

ie - Wm. Biddick, Jr.

" Judge of the Superior Court.

Appendix A, Exhibit (2)

Court of Appeal

State of California —

Third Appellate District

[San Joaquin]

3 Civil No. 11,259

, : me

Colberg, Inc., a California corpora-

tion; Wilton Colberg, Jack Colberg

and Gordon Colberg, copartners, do-

‘ing business. as Colberg Boat

- Works, .

Plaintiffs and Appellants,

vs.

The State of California éte.,

Defendant and Respondent.

Stephens Marine, Inc., a California

corporation, | ’

Plaintiff and Appellant,

vs.-

The State Of California etc.,

Defendant and Respondent. J

OPINION

This declaratory relief - action poses thé question

whether shipyard owners are entitled to eminent

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domain damages caused by the erection of a low-level,

state highway bridge across a navigable waterway,

curtailing ship access to their yards.

The appeal embraces two consolidated actions. For

60 years or more plaintiffs Colberg, Inc., and -

Stephens Marine,.Inc., have conducted neighboring

shipyards in the City of Stockton, building and re-

pairing ships, yachts and small boats. The Colberg

yard occupies about 8 acres, the Stephens yard about -

6. Both yards are situated on the Upper Stockton

Channel, a natural, navigable waterway extending

easterly from the turning basin of the Port of Stock-

_ ton. The channel comes to a dead end about 5,000 feet

east of the turning basin. .Oceangoing and smaller

vessels use the Upper Stockton Channel to pass be-

tween plaintiffs’ yards and the turning basin, from

which they may navigate to the sea by way of the

Stockton Deep Water Channel, Carquinez Straits

and San Francisco Bay. Both yards are improved

with marine ways, buildings, docks and allied facili-

ties. Both are riparian to the Upper Stockton ~

Channel. . :

The State Division of Highways proposes to con-

struct twin freeway bridges across the Upper Stock-

ton ‘Chanriel, between plaintiffs’ shipyards and the

turning basin. These will be stationary bridges with

a vertical clearance of 45 feet above water level. In

conformity with federal law the state applied for and

received a permit from the Secretary of the Army

and the Chief of the Corps of Engineers, specifying

- the 45-foot clearance. The bridge will prevent ships

over 45 feet in height from passing - cate: tie

channel’ to plaintiffs’. yards. Colberg alleges that 81

percent of its current business, involves ships which

will be unable to reach its yard after the bridges are

installed. Stephens declares that. curtailment of

. marine access to its yard will cost it 35 percent of its

business. Both declare that the impairment of access

will substantially diminish the value of their yards. ©

The present height restriction between‘ these ship-

'-yards. and the world’s oceans is .135 feet, established

by the twin bridges of Interstate Highway 80 steal -

the Carquinez Straits. |

At oral argument counsel for the State Division: of

Highways explained that a bridge high enough to ac-

~ commodate plaintiffs’ shipyard traffic would require

elevated and extended approaches through the heart, “” |

of the City of Stockton, producing a variety of ad- .

verse effects; that draw.or swing bridges are unsuit-

able for a freeway. Such conditions necessitated

selection of the low level, stationary bridge design.

The trial court held that financial injury caused by

- the bridge project would not be compensable as a

taking or damaging of private property under the

eminent domain provisions of the California Con-

stitution; that construction of these interstate free-

way bridges pursuant to a federal permit is an

1Article I, section 14, of the State Constitution declares: “Pri-

vate property shall not be taken or damaged for public use.

without just compensation having first been made to, or paid into

court for, the owner. . . .” Article XV, section 1, of the State

Constitution provides: “The right of eminent domain is hereby

declared to exist in the State to all — on the navigable

waters of this State.” .

Rae hha i i weit er

. exercise of the State’s inherent, power to control the

use of its navigable. waters. Accordingly, it ordered —

. entry of judgments on the pleadings in favor of the

_ State. The shipyard owners appeal.

The parties apparently agree that adjudication of

the compensability question should not await conven-

. tional condemnation or inverse’ damage suits. The

complaints declare that the shipyard owners have sub-

stantial investments in their yards; that damage

litigation after construction of the bridge project will

occupy much time, during which their business opera-

tions will be cut back or cut off; that a declaratory

judgment establishing compensability’ will enable

them to relocate their respective operations with a

minimum interruption of business; that the state re-

jects the plaintiffs’ claim of compensability under

existing eminent domain law. These conditions make

declaratory relief appropriate. ae

The appeal presents two major questions: First,

since the state proposes no physical taking of private -

lands but only an offsite obstruction to access by

water, is there a taking or damaging of private prop-

erty within the scope of article I, section 14, of the

California Constitution? Second, is the state acting

under its sovereign power over navigable water, a

power to which private water rights are usually

“subordinate? .

Initially, a line must be drawn between two kinds

of rights enjoyed by the owner of property abutting

on public, navigable water. One js the right of access

from the upland to his own waterfront, a private

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right.2 The other is the right of navigation, a right

which—generally speaking—the owner shares with

the public. We are here concerned with a physical

. impairment of the latter right, not the former.:

Article I, section 14, of the California Constitution

declares compensability for the’ taking or damaging

of “private property” only. If, as many of the

authorities hold, the littoral owner’s right of navi-

gation is purely public and not at all private, he has

no compensable interest, though he suffers economic

loss from the obstruction to navigation.

According to- the weight. of authority, a littoral

owner’s right to navigate between his land and the

world’s oceans is not a private right, but one which

he shares with the general public; hence he has no

constitutional right of eminent domain compensation

when a downstream bridge “without draws” cuts him

off from the outside world.? The holding is consistent -

with cas+s derfying the upstream owner itijunctive

relief against the obstruction of navigation by a

- 2§ee, for example, United States v. River Rouge Improvement

Co., 269 U.S. 411, 418; San Francisco Savings Union v. R. G. R.

Petroleum Co., 144 Cal. 134, 137-139; Shirley v. Bishop, 67 Cal.

543. The “private” right of access to the waterfront may neverthe-

less be subordinate to the public easement of navigation, hence not

compensable in eminent domain. (Henry Dalton & Sons Co. v.

Oakland, 168 Cal. 463, 466-468; City of Newport Beach ‘v. Fager,

39 Cal. App. 2d 23, 28; 2 Nichols on Eminent Domain (3d ed.)

258-260.

3Moore v. State Road Dept. (Fla.) 171 So.2d 25; Carmazi v.

Board of County Com’rs. of Dade Co. (Fla.) 108 So.2d 318;

Marine Air Ways v. State, 104 N.Y.Supp.2d 964, affd. 116 N.Y.

Supp.2d 778 ; State v. Masheter (Ohio) 203 N.E 2d 325; 2 Nichols,

op. cit., p. 264, cases cited at fn. 16.

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downstream bridge built in compliarice with public y

laws controlling navigability.*

The rule against sineuaiiek for interferences

with navigation is jffst as fixed: or malleable as the

concept of private property embodied in the’ eminent

domain provision of a state’s constitution. Mr. Justice

Jackson once warned: “But that a closed catalogue of

abstract and absolute ‘property rights’ in water hovers

Ovgr a given piece of shore land, good against all the

world, is not in this day a permissible assumption. We

cannot start the process of decision by calling such a '

claim as we have here a ‘property right;’ whether it

is a property right is really the question to be |

| answered.” (United States v. Willow River Power

Co., 324 U.S. 499, 502-503.)

The amendment of state constitutions, including

California’s, to provide compensation when private

property is ‘‘damaged” as well as “‘taken” for public

use, indicates an intent to expand the area of com-

pensability, requiring the courts to fix its limits by

placing the economie interests of the public in balance

against the sacrifices imposed on the lahdowner. ©

(Bacich v. Board of Control, 23 Cal.2d 343, 350-351 ;

concurring opinion of Edmonds, J. zbid., pp. 358-360;

see Albers v. County of Los Angeles, 62 Cal.2d 250,

262-263.) The case-by-case balancing of these compet-

4Gilman v. Philadelphia, 3 Wall. 713 [18 L.Ed. 96]; Miller v.

City of New York, 109 U.S. 385; Cardwell v. American River

Bridge Co., 113 U.S. 205; Pacific Inter-Club Yacht Assn. v.

Morris, 197 F. Supp. 218; Jarvis v. Santa Clara Valley R.R. Co.,

- 52 Cal. 438; People v. Potrero and Bay View P. R. Co., 67 Cal.

166; cf. Hickok etal. v. Hine, 23 Ohio St. 523; see also Sound

Marine & Machine Corp. v. Westchester Co., 100 F.2d 360.

abe ret One ne Ae tenia Seema at end tml a al hn tee

~ ing interests results in judicial expansion or contrac-—

tion of a group of intangible rights recognized as

compensable ‘‘private property.” Compensable. prop-

erty, it is now recognized, includes not only the physi-

_ eal land and improvements but certain intangiblé

rights of access between the land and the outside

world. Thus, although the owner uses the streets in

common with the rest of the public, he owns a private

easement of access which consists of: the right. to get

into the street abutting his property and thence to the

general system of public streets arid highways. (Va-

lenta v:-County of Los Angeles, 61 Cal.2d 669, 671;

Breidert v. Southern Pac. Co., 61 Cal.2d 659, 663;

citing preceding California decisions; cf. Sneed v.

County of Riverside, 218 Cal. App.2d 205, re airspace

invasion.) Not every impairment of access to the gen-

eral system of public streets is compensable in emi-

nent domain. Compensability, rather, requires an

individualized finding of substantial impairment, a

finding of fact delegated to the trial court and not

the jury. (Breidert v. Southern Pac. Co., supra, 61

Cal.2d at pp. 663-665; People v. Ricciardi, 23 Cal.2d

390, 402-403.) re

The central problem is to locate a line between com-

pensable damage to private property and disadvan-

tages of the kind called “‘consequential.” Of the latter

sort are such elements as loss of | business and’ dimi-

-nution of traffic ‘caused by diversion of traffic and

circuitry of travel. (People v. Symons, 54 Cal.2d 855,

860.) Applying the economic balancing test, the Su-_

-preme Court points out that awards of the latter sort

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would severely burden the public treasury and pro-

duce “ ‘an embargo upon the creation of new and

desirable roads.’” (I bid., p. 862.)

The street. access doctrine erepresents an expanded

notion of the constitutional concept of private prop-

erty whose invasion or damage is compensable in emi-

ent domain. It means that ‘‘property” in an eminent

domain sense includes ‘not only a piece of the earth’s

- surface but an intangible right of movement between

' it and the outside world; that, although the channels

of movement are shared with the publi, they are

“‘private” and compensable when a public improve-

ment devalues a particular piece of land by substan-

tially impairing these channels. Navigable waterways

are channels of movement no less than streets and _

highways. (See Chicago etc. Ry. v. City of Min-

neapolis, 232>U.S. 430, 442; Wattson v. Eldridge, 207

Cal. 314, 320; People v. Gold Run D. & M. Co., 66

Cal. 138, 147:) There is no difference in principle or

policy between land and sea access which affirms an

easement. of access by land.and denies it by water. If

a public project obstructs. the owner’s access to the

outside world, he is equally hurt whether the barrier =

blocks him by land or by sea. A littoral property

—owner’s easement of access includes both media of

movement. ,

Claims for loss of street access often arise because

the public improvement places private property on a

cul-de-sac, restricting accessibility to one direction

“only, e.g., Valenta v. County of Los Angeles, supra;

Bacich v. Board of Control, supra. The Colberg and

» 4

‘ment, they have marine access to the outside world in

_ the navigable water in front of their property has

~ ment in the group of circumstances indicating the.

‘mediate waterfront is obstructed or destroyed. The

- substantial impairment rule supplies a criterion for .

of the street’ access cases, whére economic balancing

Stephens shipyards are situated on a natural cul-de-

sac. Without the intervention of the public improve-

one direction only. According to the complaints, con- .«.’ |

struction of the public project will obstruct much | of “

the single marine route between their property and

the. outside world. Their private right of access to

little value if that is as far as they can go.° Location

on a partially blocked, marine cul-de-sac is one ele-

occurrence or absence of a substantial impairment of

the easement of access.

Doubtless these shipyards have street access on: the:

landward side. Shoreline properties have obvious:

economic attributes resulting from their accessibility

by water. Residual access by land may supply scant

economic : solace when mariné access beyond the im»

determining whether the retention of land access and

the destruction or obstruction of marine access result

in compensable damage. .

The state contends that the street access doctrine

is only an analogy. It suggests that the public policy

is possible, does not apply to loss of marine access;

5At this point we paraphrase the majority opinion in Bacich v.

Board of Control, supra (23 Cal.2d at p. 354) which states: “To

be able to get onto. the street immediately in front of the pony

is of little value if that is ‘as far as [the owner] can go.’

that the public can supply economical alternative

routes to compensate for closed Streets but- not for

closed waterways; further, that a bridge of limited — - |

~ elearance across a busy waterway may elicit damage ‘

claims so heavy and widespread as to prevent the

.. project. These factors evoke no policy considerations

' .excluding access. by water from the general easement

of access recognized. in eminent domain. The balancing |

approach i is much broader than the street access antes

\ It is employed to measure. the reach of the polic

underlying the eminent domain provision of the State

Constitution, laying: down a line which seperrates com-

pensable injuries from noncompensable disadvantages.

In Albers v. County of Los Angeles, supra, it is used

in the context of a landslide damage claim; in Clement —

- Vv. ‘State Reclamation Board, 35 Cal.2d 628, 642, to

determine compensability of flood damage. In the

course of the latter decision the’ ‘court states: ‘‘The

decisive consideration. is whether the owner of the >

damaged property if uneom ensated would contribute ©

more than his proper: share the public undertak-

ing.” (Clement v. State Reclamation Board, supra, _

~ .. 85 Cal.2d at: p. 642:)

Viewed in the light of the economic balancing cri-

terion, the present injuries are sharply’ focused on

two properties.. They arouse no concern for the public

purse beyond that involved in any | eminent. domain

proceeding. While shared with the® \gen eneral public,

marine passage along Upper Stockton Shannel with-

out a height restriction is a unique economi attribute

of two' commercial shipyards located on a marine cul-

de-sac. . The prospect of damage claims from the two

owners is not so monumental as to discourage the

freeway project of which the bridges’ are a part. The

taxpayers can absorb thé cost with far less hardship

- than the owners. (Albers v. County of Los ——— |

.. supra, 62 Cal.2d at p. 263.)

The selection between a low level bridge and rea-.

sonable alternatives is essentially a budgetary and

, piarining choice by the administrator. Potential dam-

age’ to the littoral owners may approach the cost of

raising the bridge level. At that point the adminis-

trator starts thinking of an acceptable alternative,

- for example, a higher bridge. Intangible community ©

values imperiled by the extended ramps-of a high

bridge may impel his return to the low level design.

Whatever motivates the administrator te choose a low

level bridge, dollars or intangible community values,

-the individual property owner ‘“‘if . uncompensated

would contribute more than his proper share to the

public undertaking.” (Clement v. State Reclamation

_» Board, ‘supra, 35. Cal.2d at p. 642.)

The specter of widespread damage claims caused by

a bridge athwart a busy artery of marine commerce

arouses no policy tremors. Potential economic in-

juries from obstructions to navigation are limited by

federal statutes investing the Chief of Engineers and

the Secretary of the Army with discretionary permit

powers in the interest of aie navigation. (See

. 8At this point we refrain from anticipating the computation of

nea and and from indicating the relationship between loss of busi-

and devaluation cf property.

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* 33 U.S.C. §§ 401, 403; Ryan v. Chicago, B. & Q. R. Co.,

59 F.2d 137, 142.) Unless the federal officials abdi-,

cate their responsibilities, a low level, drawless bridge .

across the Carquinez Straits or the mouth of the Mis-

sissippi is a theoretical but not practical possibility. It

is reasonable to suggest that the present bridge proj--

ect merited a federal permit only because the 45-foot

limitation on navigation had narrow economic impact

on two shipyards located on a marine cul-de-sac; that

‘ at some point potential injury to additional maritime

interests would provoke denial of a federat=permit.

Injury claims remaining after the federal screening

must then pass a second screening, that imposed by

the economic balancing test, which measures the limit

of compensability under the California Constitution. °

Finally, the claim must pass the substantial impair-

ment test. These successive filters prevent compen-

sable injuries to navigation so widely diffused that

they are more public than private.

We resist the invitation to follow the nuisance and

equity decisions which deny upstream owners relief

against downstream bridges which obstruct naviga-

tion. (See cases cited fn. 4, supra.) Such decisions

turn largely on the “‘public” character of the right of

navigation and the private plaintiff’s lack of standing

to seek relief against a public nuisance not peculiar

to himself. In the search for an eminent domain con-

cept of ‘‘private property,” equity and nuisance deci-

sions are not a trustworthy guide (see Clement v.

State Reclamation Board, supra, 35 Cal.2d at p. 641).

Preferable to analogies drawn from-~other’ branches

of the law is the self-contained ‘easement. of access”

doctrine developed as part of the California law of

eminent domain. .

Eminent domain decisions in other states on com-

pensability of obstructions to navigation vary. The |

variation is often prompted by the language of the

particular state’s constitutional provision. In Penn-

sylvania, where the constitution was amended to pro-

vide compensation for property ‘‘injured” as well as

‘taken, a wharf owner was awarded damages when a __

city bridge prevented vessels from passing upstream

to his wharf. (In re Construction of Walnut St.

Bridge, 191 Pa. 153, reported sub. nom. Gumbes v.

City of Philadelphia, 43 A. 88.) In State v. Masheter,

supra, where the Ohio constitution limited compensa-_.

tion to a “‘taking,” the court denied recovery under ©

similar facts. .One of the Ohio judges dissented, be-

lieving that the riparian terminal operator had de-

veloped a private right of navigation which was

separate from that ofthe public and was ‘‘taken”

>from him by the bridge.’ In New York a similar

claim was denied on the theory (imported from the

equity and nuisance decisions) that the right of navi-

gation is ‘‘exclusively a public right.” (Marine Air

Ways v. State, supra, 104 N.Y.Supp.2d at p. 967,

affd. 116 N.Y.Supp.2d 778.) The Florida courts have

adopted the same rationale. (Moore v. State Road

Dept., supra (Fla.) 171 So.2d 25; (Carmazi v. Board

BRGY Com’rs of Dade Co. , supra, 108 So.2d v8. )

7Cf. Miramar Co. v. - City of Santa Barbara, 23 Cal. od 170, 183,

dissent - ate, J. .

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None of these decisions considered the easement of -

access doctrine evolved as part of the California law.

of eminent domain. None of them considered the

balancing of policies implicit in the easement of access

—doctrine.

Both sides seek support in City of Los poe v.

Aitken, 10 Cal.App.2d 460. Thé action was one to

condemn . littoral rights on a navigable lake whose:

level would be lowered by the condemning agency’s

diversion of tributary streams. The defendant owned |

shoreline resort property. According to the opinion,

the marginal owner’s privilege of -boating was not

itself compensable, but constituted an element in the

valuation of his shoreline property. The ease sup-

plies no precedent here, since it involves a destruction

of the littoral owner’s private right of access to nav-

igable water directly fronting on his property.

The second major question is posed by the doctrine

denying compensation when a littoral owner’s in-

terests in navigable water are damaged through the

exercise of the ‘‘navigation servitude,” that is, through

the public’s paramount power to control navigable —

waters in the interest of navigation and commerce.

(See generally Miramar Co. v. City of Santa Bar-

bara, supra, 23 Cal.2d 170; 2 Nichols, op. cit., pp. 247-

258.) The state relies upon cases which seemingly

extend the doctrine to public improvements which aid

commerce aswell as those aiding navigation. (Henry

Dalton & Sons Co. v. Oakland, supra, 168 Cal. 463,

467 ;.City of Newport Beach v. Fager, supra, 39 Cal.

App.2d at p. 28.) It points out that the proposed _

writers sigh win bln sa icant

bridges are part of an interstate freeway project

which ‘will improve access to Stockton harbor and

benefit land and water transportation. —

Broad dicta in:some of the decisions permit iden-

tification of the navigation servitude with the promo-

tion of ‘“‘commerce” without express restriction to —

waterborne commerce. Such statements should not

be taken’ out of context. Decisional law rejects the

notion that any project facilitating commerce is ipso

facto within the sovereign power over waterways. Nor

do the parallel powers of the federal and state gov-

ernments over navigation include every public project

affecting the navigable capacity of water. Although ~ ’

‘most generalizations entail some peril, the general

tenor of the decisions is that the navigation servitude

is limited to public works designed to aid or control

navigation, excluding projects for other purposes.’ A

leading case refers to the navigation servitude as one

embracing ‘‘such use of the submerged lands and of

the waters flowing over them as may be consistent

with or demanded by the public right of navigation.”

(Seranton v. Wheeler, 179 U.S. 141, 163.) Freeways

and streets along the waterfront are outside the scope

of the navigation servitude (In re City of New York,”

61 N.E. 158; In re Jamica Bay in City of New York

etc., 176 N.E. 539; Crance. v. State, supra, 128 N.Y.

8United States v. River Rouge Imp. Co., supra, 269 U.S. at p.

419; United States v. 50 Foot Right of Way in Bayonne, N.J., 337

F.2d 956, 959; United States v. 412-715 Acres of Land etc., 53 F.

Supp. 143, 149; City of Los Angeles v. Aitken, supra, 10 Cal.App.

2d at p. 470; Crance v. State, 128 N.Y.Supp.2d 479, 481, reversed

on other grounds 128 N.F.2d 324; 26 Am.Jur.2d, Eminent:

Doniain, § 191, p. 870; Note: 18 A.L.R. 403.

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Supp.2d 479) although there is contrary authority

(Crary v. State Highway Comm. (Miss.) 68 So.2d

468). Deepening the channel of a stream-to prevent

overflows harmful to roads and bridges is not an exer- _

cise of the navigation power. (Conger v. Pierce Co.

_. (Wash.) 198 Pac. 377 [18 A.L.R. 393].) The proposed

freeway bridges across. the Upper Stockton Channel

will not aid its development as a medium of com-

merce. Rather they will obstruct. its navigability,

albeit the obstruction will be sanctioned by federal

law. (See Southlands Co. v. City of Sart aie 211

Cal. 646.) |

The state seeks to extend the navigation servitude .

on the strength of decisions permitting improvements

on publicly owned tidelands without compensation

for the upland owner’s loss of access, e.g., Miramar

Co. v. City of Santa Barbara, supra, 23 Cal.2d 170;

Henry Dalton & Sons Co. v. Oakland, supra, 168 Cal. _

463; City of Newport Beach v. Fager, supra, 39 Cal.

App.2d 23. In those cases the public’s immunity is

said to extend not only to tideland projects promoting

navigation but to any “‘lawful use or purpose.”

(People v. Hecker, 179 Cal.App.2d 823, 840; City of

Newport Beach v. Fager, supra, 39. Cal. te 2d at p.

28.) The tideland cases turn upon the principle that

the littoral rights of an owner whose land adjoins

publicly owned tidelands may be terminated by what-

ever disposition of the tidelands the public chooses to

make. (Miramar Co. v. City,of Santa Barbara, supra,

23 Cal.2d at p. 174.) Although public tidelands are

held in trust for commerce, navigation and fishery,

projects on tidelands may have nothing to do with’

navigation. Subject to the restrictions in statutory

grants, public tidelands may be devoted to any use

which does not. prejudice the public rights of naviga-

tion and fishing. (Mallon v. City of Long Beach, 44 _

Cal.2d 199, 206; Boone’ v. Kingsbury, 206 Cal. 148,°..

183, 189.) ‘Thus ‘the public’s power to improve its

tidelands without compensating littoral owners is not

-a measure of the navigation servitude when tideland 7

use is not involved.

Finally, the state urges that the federal permit to

- construct the low level bridge project across Upper

Stockton Channel is ‘‘conclusive.” Perhaps it is, in

the limited sense that a court may not. restrain an

obstruction to navigation permitted by. federal law.

{See cases cited fn. 4, supra.) The permit is only a

declaration of federal assent, not a delegation of

power.’ Federal assent to. the project does not shield

_ the state from the eminent domain provision of its

own constitution. ‘‘It must be remembered .. . that

damage may be inflicted within the meaning of such a

constitutional provision by the mere exercise of un-

te questioned public rights.” (2 Nichols, op. ctt., p. 265.)

. We conclude that. the bridge project is not an exer-

cise of the state’s navigation servitude; that the

_ project will cause “compensable damage to plaintiffs’

private properties if, in an appropriate proceeding, ©

®*Cummings v. City of Chicago, 198 U.S. 410, 430-431: Pembroke

v. Peninsular Terminal Co. ( Fla.) 146 So. 249, 255; Cobb v. Lin-

‘ eoln Park Com’rs. (Tll.) 67 N.E. 5, 9; Wilson v. Hudson County

Water Co. (N.J.) 76 A. 560, 565-566; Sullivan v. Booth & _—

206 N.Y.Supp. 360, 363.) - .

elec ae eae Ah BL TREES oR Tt fe eet A Be ee eS & ey Gon

- a court finds ‘substantial _ impairment of their re-

spective easements. of access. The judgments are

reversed and the proceedings: remanded with direc-

“tions to enter declaratory judgments consistent with

this opinion. |

| Friedman, J.

We concur:

Pierce, P. J.

- Regan, J.

Filed December 1, 1966, —

Wilfried J. Kramer, Clerk. —

“we

v Appendix A, Exhibit (3)

In the Supreme Court of the State of California

[In Bank]

Sac. 7694

Colberg, Inc., et al., ;

_ Plaintiffs and Appellants,

aes | Ce fi

State of California ex rel. Department

of Public Works, -

Defendant and Reneniat

Stephens Marine, Inc.,

Plaintiff and Appellant,

VS.

State of California ex rel. Department

of Public Works,

Defendant and Respondent. J ,

MaJority OPINION |

[Sze Dissent1ne Opinion]

These consolidated actions' for declaratory relief

present the common issue whether plaintiff shipyard

owners will have any causes of action for damages

under the law of eminent domain arising out of the im-

1The trial court granted defendant’s motion for consolidation of

both actions “for hearing and trial.” Appellants have prepared a

single récord on appeal but filed separate briefs.

oni re PO DORE Ole E ERS Rr cee

pairment of their access to the Stockton Deep Water

; Ship Channel as a result of the construction of two

proposed fixed low level parallel bridges spanning a

connecting navigable waterway to which their proper-

_ ties are riparian. Separate judgments on the plead-

ings in favor of defendant State of California were

_ entered below and all plaintiffs have appealed.

‘The record discloses that although the judgments

were entered upon an order granting separate motions ©

for judgment on the pleadings, defendant filed no

answer in either case. Its motion theréfore had the

purpose and effect of a general demurrer (2 Witkin,

Cal. Procedure, p. 1706) and on review is to be tested

‘by the same rules. (Dragna v. White (1955) 45 Cal.

2d 469, 470; Chas. L. Harney, Ine. v. Contractors’ Bd.

(1952) 39 Cal.2d 561, 565.) Since the motion was used

to perform the function of a general demurrer, it

‘reaches only to the contents of the pleading and

such matters as may be considered under the doctrine

of judicial notice” (Weil v. Barthel (1955) 45 Cal.2d

835, 837) and ‘‘admits all material and issuable facts

pleaded.” (Flores, v. Arroyo (1961) 56 Cal.2d 492,

497.) We proceed to set forth te facts. in the light -

of these principles.”

2In each action the court made and filed findings of fact and

conclusions of law. Since the granting of each motion had the

effect of an order sustaining a general demurrer and since there

was no “trial of a question of fact by the court” (Code Civ.

Proe., § 632), there was nothing to find. The findings of fact and

conclusions of law were not required and we have disregarded

' them. (Taylor v. Palmer’ (1866) 31 Cal. 240, 257; Bradley Co. v.

Ridgeway (1936) 14 Cal.App.2d 326, 330; see also "Flynn v. Flynn

(1951) 103 Cal.App.2d 91, 96-97; Lunsford v. Kosanke (1956)

140 Cal.App.2d"623, 631-632.)

ee ee oe

The Stockton Deep Water Ship Channel is a nay-

_ igable tidal waterway extending from the mouth of

the San Joaquin River to the Port of Stockton. From

the turning basin adjoining the port, the channel con-

tinues easterly for about 5,000 feet and comes to a .

dead end within the confines of the city. This portion

of the waterway is known as the Upper Stockton

Channel. Plaintiffs Colberg* and Stephens Marine,

Inc. (Stephens), own real. property in the City of

Stockton riparian'to the Upper Stockton Channel -

upon which for more than sixty years they have con-

ducted shipyards for the construction and repair of

yachts and ocean-going vessels. Both, yards are im-

proved with marineways, buildings, docks and allied

facilities. Colberg’s property consists of approxi-

mately ‘eight acres; Stephens’ of approximately six.

Ships and other craft now using the Upper Stockton

’ Channel can proceed to the turning basin and the

Stockton Deep Water Ship Channel and ‘thereupon °

‘navigate to the open sea by way of the Carquinez

Straits and San Francisco Bay. _ |

The state proposes to construct twin stationary |

freeway bridges across the Upper Stockton Channel

between plaintiffs’ properties and the turning basin.

‘ The vertical clearance of these bridges is to be, gen-

erally speaking, 45 feet above the water line. Pur-

3In the. Colberg action plaintiffs are Colberg, Ine., a. California

corporation, Wilton Colberg, Jack Colberg: and Gordon Colberg,

co-partners, doing business as Colberg Boat Works. Colberg, Inc.

operates the shipyard under a lease from. the partnership and

owns the equipment and personal property utilized in such oper-

_ ation. Hereafter, unless otherwise indicated, we refer to all of the

said plaintiffs collectively as Colberg. t

Eilntiner pbimnseetieces ~~ ee

24 .

suant to federal law the state applied to the Secretary

of the Army and the Chief of Engineers for a permit

to: build such bridges. (See 83 U.S.C.A. § 525, subd.

» (b). ) After.a publie hearing, consideration of the

‘views of various interested persons including thése

‘plaintiffs, and an: extensive economic survey, approval

of the location.and plans of the bridges’ was granted by

‘

_. federal authorities in February 1964, subject to con-

ditions not here necessary to be detailed. .

Colberg alleges that 81 percent of its current busi-

ness involves ships-standing more than 45 feet above

the water line. Plaintiff Stephens~alleges that 35 :

_ percent of -its current business involves such ships. har

*'The present minimum, clearance between ‘plaintiffs’ P

-yards and the Pacific Ocean is-135 feet, established

by the Antioch Bridge. Plaintiffs allege in substance.

that: after the construction of ‘the ‘proposed . bridges,

no vessel with fixed ‘structure’ in excess of 45 feet

above the water line will. be able to enter their re-

s epastive shipyards; that there is no other access by

‘water to the yards from the San Joaquin River, San

- Francisco Bay and the oceans of the world; and

that plaintiffs, their properties and their warhionees j

will suffer loss and damages because of the _impair-

: ment of access resulting. from the construction of: the

bridges. . ‘Plaintiffs in. both actions ees . that an

~ 4Colberg alleges ‘that its property “will be totally lost and dé:

* Streyed”; and that it is “the only shipyard facility which lies on |

the Upper Stockton Channel that relies principally upon the re-

pair and construction of large. vessels for its income.” Stephens

alleges that as a result of the construction of the bridges, its ship-

’ yard “ean onlv be operated at substantial loss to the plaintiff and

“ihe vali nf nq intiff’ s _Property will be substantially -diminished ”

— . nell

ee a eR Oke othe re a a ee

actual controversy exists (see Code Civ. Proc., § 1060) -

between each of them and the state as to whether the

alleged impairment of access to “the main channel

of the San Joaquin River” i is compensable.

Counsel for the state pointed out to us at,oral argu-

ment that a bridge of vertical clearance sufficient to

‘ accommodate plaintiffs’ shipyard traffic would: in-

volve greatly increased construction costs because it

would entail extended approaches;* that the added

height of such approaches would have an adverse

effect upon intangible community values; and that

a draw or swing bridge would be unsuitable for free-

way. purposes. |

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

ment on the pleadings in both cases and entered

‘judgments accordingly. In its memorandum opinion

. it held that diminution of the scope of plaintiffs’

access from their respective properties to the Stock-

ton Deep Water Ship Channel as a result of the

state’ ~ proposed action relative to its navigable waters

5Colberg alleges on information and belief that the state “has

determined the comparative costs of the bridges at different levels,

including structure, roadway, and right of way acquisitions. to be

as follows:

“50 foot vertical clearance above mean sea level: $27,448,000.00 |

“63 foot vertical clearance above mean sea level: $38,724,000.00

“100 foot vertical clearance above mean sea level : $46, 398, 000.00

“No estimate of cost has been made by the defendant for a. ‘bridge

135 feet above mean sea level”; further alleges that “the determi-

‘nation of the defendant to construct said bridges with a vertical

clearance of 50 feet above mean sea level, and to construct 7

without facilities for a lift type or draw-bridge type bridge, has

been ‘made solely upon considerations of economy and the ad-

vantages to motor vehicle traffic safety and utility, and not upon

“any consideration to improve navigation. Plaintiffs further allege -

that said bridges are an obstruction to navigation and do not

improve _ in any manner whatsoever.’ ? :

}

. would not constitute a taking or damaging of private

property for which just compensation would be re-

quired.

It is not disputed that an actual controversy exists

between the parties on this question; that if plaintiffs

were required to await construction of the bridge

before commencing an ‘action at: law, they would suf-

fer irreparable damage because of interference with

their businesses during construction; that a declara-

tory judgment resolving the question of compensa-

bility in their favor prior to completion of the bridge

project will permit relocation of their respective op-

erations with a minimum of inconvenience; and that

plaintiffs. will be unable to plan their businesses or

enter into necessary long-term business contracts,, un-

til such question is settled. We are satisfied that under

the above circumstances plaintiffs were: entitled to

invoke declaratory relief. — -

The sole question ‘in this case is whether the alleged

‘impairment of plaintiffs’ access to the Stockton Deep .

Water Ship Channel constitutes a taking or damag-

ing of private property within the meaning of article

‘The demands of commerce and of modern life generally

impose a necessity for security in legal relations. That implies

not only that the immediate present be stabilized, but that plan-

ning for the future may be possible. Such planning requires the

opportunity to ascertain and to determine the effect of relations

and events-certain or practically certain to arise in the future.”

(Borchard, Declaratory Judgments (2d ed. 1941) -pp. 414-415;

see Sattinger v. Newbauer (1954) 123 Cal-App.2d 365, 367: Staley

v. Board of Medical Examiners (1952) 109 Cal.App.2d 1, 5-6;

Knox v. Wolfe (1946) 73 Cal.App.2d 494, 505; University of

Redlands v. Ford (1942) 56 Cal.App.2d 151, 153.)

I, section 14 of the California Constitution.’ In order

to answer this question we are led to an examination

of the interest of the state in its navigable waters; in

the course of this examination we explain the rela-

tionship between the state’s power to deal with its —

navigable waters and the extent of its constitutional

duty to make compensation for,damage caused by the

exercise of that power.

In order to put the controversy into proper. focus,

we must fixst make some preliminary observations

concerning plaintiffs’ position and the nature and ex-

tent of their claim. First, it is clear that plaintiffs

must assert the taking or damaging of a private right:

in order to bring themselves within the protective

embrace of article I, section 14. Thus, they cannot

ground their claim in the right of navigation, for this

is a public right from the abridgement of which

plaintiffs will suffer no damage different in character

from that to be suffered by the general public.* (Jar-

Vis Ve. Santa Clara Val. R.R. Co. (1877) 52 Cal. 438,

Private property shall not be taken or damaged for public

use without just compensation having first been made to. . . the

owner, ...” (Cal. Const., art. I, § 14.)

*Indeed, plaintiffs, while scrupulously eschewing all claims based

on a public right, have been forced into the position of extending

a private right in a meandering continuum from their properties

to the Pacific Ocean and, as counsel for the state observed at oral

argument, now claim a property right i in “a column of air 135 feet

high extending from their properties: to the sea.” We cannot

refrain from observing that were the bridge here involved pro-

posed for the Carquinez Straits instead of the Upper Stockton

Channel, plaintiffs, consistently with the theory of their pleadings,

would advance the same basic claim for compensation, If such ~

claim could be considered valid for plaintiffs, it would also. be

assertible by the countless riparian owners in the sanerrenng sec-

tion of the watercourse.

“cd

‘

Nts tal itl a ie A et en te ee

° \

! 28 '

: “o

440; S. F. Sav: Union v. R.G.R. Pettoleum Co. ’

(1904) 144 Cal. 134; 139; Miller v. Mayor of New .

York (1883) 109 U.S. 385, 394-395; Frost v. Rail-

road Co. (1901) 96. Me. 76, 85-86; Marine Air Ways ~

v. State of New York (1951) 201 Misc. 349, 350 and

cases there cited, affd. 280 App.Div. 1021; 56 Am.

Jur., Waters, § 216, pp. 677-678.) Instead, they must

have recourse to the private right of an owner ripar-

ian to a navigable waterway to have access to the ©

channel. (See S.F. Sav. Union v. R.G.R. Petroleum

Co., supra, 144 Cal. 134, 139; Shirley -v. Bishop

(1885) 67 Cal. 543 ; 56 Am.Jur., Waters, § 216, p. 677.)

However, it appears that thé access from plaintiffs’

property to the navigable portion of the waterway. to

which they are riparian, to wit, the Upper Stockton

Channel, will not be impaired by the proposed proj-

ect, so that their private right of access, if limited to

its traditional scope, will not be “taken or damaged”

- and no claim for compensation can arise. It is there-

fore plaintiffs’ position that the private right of ac-

cess must be expanded. They assert that the construc-_

tion of the bridge in question will render their private

secs right of, access useless insofar as it pertains to vessels

with a fixed structure more than 45 feet above the

waterline; that after such construction ° they “ean

*. Jaunch thine. but they can go nowhere.” Action which

renders a right valueless, they urge, effectively “‘takes ©

or damages” that right. )

We deem it unnecessary to decide this question, for

we have determined that, whatever the scope of plain-

tiffs’ right of riparian: ACCESS AS against other private

persons, that right must yield without compensation —

to a proper exercise of the power of the state over its

navigable waters. It is to a discussion of this latter

power that we now turn.

The State of California holds all of its navigable

waterways and the lands lying beneath them “as

trustee of a public trust for the benefit of the people.”

(People v. Gold Run D. & M. Co.’ (1884) 66 Cal. 138,

151; see also Martin v. Waddell (1842) 41 U.S. (16

Pet.) 366, 410; Shively v. Bowlby (1894) 152 U.S. 1,

11-18; Eldridge v. Cowell (1854) 4 Cal. 80, 87; Ward

v. Mulford (1867) 32 Cal. 365, 372; People v. Cali-

fornia Fish Co. (1913) 166 Cal. 576, 584-585 and cases

there cited; Henry Dalton & Sons v. Oakland (1914) ~

168 Cal. 463, 465, 467-468; City .of Long Beach v.

Lisenby (1917) 175 Cal. 575, 579; Atwood v. Ham-

- mond (1935) 4 Cal.2d 31, 40; Katenkamp v. Union

Realty Co. (1936) 6 Cal.2d 765, 769; Miramar Co. v.

City of Santa Barbara (1943) 23 Cal. 2d 170, 174; see -

generally 51 Cal.Jur.2d pp. ‘466-467, 508-509; 56 Am.

Jur. pp. 698-699.) Its power to control, venalite and

utilize such waters within the terms of the trust is

' absolute except as limited by the paramount super-

visory power of the federal government over nav-

igable waters. (Gray v. Reclamation District No. 1500

(1917) 174 Cal. 522, 637; see Shively v. Bowlby,

supra, 152 U.S. 1, 26-31; United States v. Mission |

Rock Co. (1903) 189 U.S. 391, 404.) The nature and

extent of the trust under. which the state holds its .

navigable waterways has never been defined with pre-

cision, but it has been stated generally that acts of |

hed idl ate oe cies

30 ‘

fi can |

the state with’ regard to its navigable waters. are

. within trust purposes when they are doné “for pur-

_ poses of commerce, navigation, and fisheries for ‘the |

benefit of all the people of the state.” (Mallon v. City

of Long Beach (1955) 44 Cal.2d 199, 205; see also

People v. California Fish Co., supra, 166 Cal. 576,

584-585; City of Long Beach v. Lisenby, .supra, 175

Cal. 575, 579 (‘‘for purposes of navigation and com-

merce”); City of Long Beach v. Marshall (1938) 11

_ Cal.2d 609, 614 (“for navigation, commerce and fish-

ing”) ; ; City of Newport Beach v. Fager (1940) 39

~ Cal. App.2d. 23, 28; People y. Hecker (1960) 179, Cal.

App.2d 823, 840.)

‘The courts have construed the purposes of the erent

with liberality to the end of benefiting all the people

of the state. In the early case of People v. P. & B. V.

R.R. Co. (1885) 67 Cal. 166, defendant, under author-

ity of a franchise granted by the Legislature, con-

structed a railroad bridge “ across -Islais Creek, a

navigable waterway. The bridge was an obstruction

. to navigation, and the Board of State Harbor Com-

missioners sought to have it abated as a nuisance. It

was contended that the legislative act granting the

_ right to byjld the bridge was in conflict with the act

of Congress®admitting California into the Union,

which act provided that ‘‘ ‘all the navigable waters

within the State shall be common highways and for-

ever free, as well to the inhabitants of said State as

to the citizens of the United States, without any tax, —

impost, or duty therefor.’” This court rej ected this

contention, holding inter alia that “while the power

of the State with respect to the construction, regula-

_ tion, and control of bridges . . . is subordinate to that

of Congress, still until Congress acts on the subject,

the power of the State is plenary.” (67 Cal. at p.

168.) Though we there made no. explicit reference to —

the extent of eA trust. relating to navigable waters, |

we impliedly Meld that the spanning of navigable

waters by a railroad bridge was an act within the

trust purposes of “commerce, navigation, and fish-

. eries.”

In. Boone v. Kingsbury (1928) 206 Cal. 148, the

state surveyor-general had refused to issue to plain-

tiffs permits to. prospect for oil and gas upon tidal

lands covered by navigable sea waters upon the:

ground, inter alia, that the granting of such permits |

would constitute an act without the scope of the trust

because such prospecting would not be “in aid and

furtherance of commerce and navigation.” We re-

jected that contention, holding that the relationship

of gasoline to commerce was manifest. “Gasoline’ is

the power that largely moves the commerce of nations

over lands and sea; . . . Gasoline is so closely allied

with state and national. welfare.as to make its pro-

duction’a matter of state and national concern. If it

can be said of any industry that its output is ‘in ~

‘aid arid furtherance of commerce and navigation,’

and its production ‘a public benefit,’ the production

of gasoline, by reason of the motive elements that

inhere in it and its universal use and adaptability to

varied uses and the convenient and, portable form in,

which it may be confined, would entitle it to a high

—————

Oita

classification in: the scale of useful, natural products.

It is a mover of commerce and fills the office of ‘a |

public benefit.’” (206 Cal. at p. 181.)

Finally, in the case of Gray v. Reclamation Dis-

trict No. 1500; supra, 174 Cal. 622, plaintiffs sought -

to enjoin the operations of defendant district, which

was engaged in efforts to- reclaim land and prevent

flooding, with incidental benefits to navigation, near

the confluence of the Sacramento and Feather Rivers.

We there rejected plaintiffs’ conténtion that the state

had no power to deal with its navigable waters unless

its dominant purpose was to improve navigation.

‘‘The supreme control of the state over its navigable

waters was early declared in Eldridge v. Cowell, 4 |

Cal. 80, approved in United States v. Mission Rock

Co., 189:U.S8. 391, [47 L.Ed. 865, 23 Sup.Ct.Rep. 606].

_. This right of control embraces within it not alone the —

power to destroy the navigability of certain waters

for the benefit of others, but extends in the case of

streams to the power to regulate and control the navi-

gable or non-navigable tributaries; as in the debris |

cases, to the erection of structures along or across

the stream, +o deepening or changing the channel, to

diverting or arresting tributaries; in short, to do any-

thing subserving the great purpose, .. .” (Emphasis

added. ) (174 Cal. at p. 636.)

We deem it too clear to warrant the citation of fur-

. ther authority that the state, as trustee for the benefit

of the people, has power to deal with its navigable

. waters in any manner consistent with: the improve-

_ ment of commercial intercourse, whether navigational

. wad

pennalin nabirwationsioadencenemate® Wasnt

or otherwise. It is equally clear, however, that the

- question of governmental power is quite different

from that. of compensation for damage caused by the

- exercise of such power. It is to the latter question

that we now turn. sos

-We have referred above to the paramount super-

- visory power of the federal government over navi- .

_ gable waters. This power, though superior to that of

‘ the state, is not grounded in ownership of the navi-

gable waterways upon which it operates, ‘but rather

deriyes from thé commerce clause of the United

States Constitution, and it has been stated that it

may properly be exercised only in order to aid navi-

gation. (Port of Seattle v. Oregon & W. R. Co. (1921)

' 255 U.S. 56, 63; United States v. Kansas City Ins. |

Co. (1950) 339 U.S. 799, 808; see also United States -

v* River Rouge Co. (1926) 269 U.S. 411, 419; but see

United States v. Twin City Power Co. (1956) 350 —

U.S. 222; United States-v. Commodore Park (1945)

324 U:S. 386, 391-392; United States v. Gerlach Live

Stock Co. (1950) 339 U.S. 725; see generally Mor-

reale, Federal Power in. Western Waters (1963) 3.

Nat’l Resources J. 1, 9-19.) The Fifth Amendment to

the United States Constitution® is of course applica-

ble to the exercise of the federal navigational power

within its proper scope, just as article I, section 14

of the state Constitution is applicable to the exercise

of state power over navigable waters, but in many

cases: compensation for ‘“‘damage” caused by exercise

9. nor shall private property be taken for public use, without

just compensation.” (U.S. Const., Amend, V.)-

of the federal power. is denied because the rights and

values affected are deemed to be burdened with the

so-called federal ‘‘navigation servitude.”"® Among the

rights so burdened is that of the access from riparian ~

land to the affected navigable waterway. (Gibson v. —

United States (1897) 166 U.S. 269; see Transporta-

tion Co. v.. Chicago (1878) 99 U.S. 635.) The limits

of the servitude are reached, however, and just com-

pensation must be paid in spite of the fact that the

power has been exercised within its scope, when per-

manent physical encroachment upon or -invasion of

land riparian to the navigable waterway but above the

' ordinary high-water mark results. (See United States

v. Chicago, M., St.P. & P.R. Co. (1941) 312 U.S. 592;

United’ States v. Commodore Park, supra, 324 U‘S.

386, 391; cf. United States v.. Kansas City Ins. Co.,

supra, 339 U.S. 799; Pumpelly:v. Green Bay Com-

pany (1871 80 U.S. (13 Wall.) 166.)

As we have shown above, the power of the State of:

California to deal with its navigable waters, though

subject to the:superior federal power, is considerably

wider in scope than that paramount power. The state,

as owner of its navigable waterways subject to a trust

for the benefit of the people, may act relative to those .

. waterways in any manner consistent with the im-

10There is some doubt as to the origin and basis of the dominant >

navigational servitude in favor of the federal government. Per-

_ haps the most satisfactory explanation is that derived from the.

common. law concept of jus publicum, that interest of the Crown

in its navigable waterways whereby the subjects were assured.

that such waterways would be utilized for public benefit, and that

_ private interference with such utilization would be prevented.

(See Morreale, op. cit., at pp. 19-31.) ry

provement of commercial traffic and intercourse. We

are of the further view that the law of California

burdens property riparian or littoral to navigable

waters with a servitude commensurate with the power

of the state over such navigable waters, and that .

‘when the act [of the state] is done, if it does not

embrace. the actual taking of property, but results

_ merely in some injurious effect upon the property,

_ the property owner must, for the sake of the general —

welfare, yield uncompensated obedience.” (Gray v.

Reclamation District me 0. 1500, supra, 174 Cal. 622,

- 63 6.) joer:

We have arrived at this conclusion, after an ex-

amination of cases from other jurisdictions. It ap-

pears that in some states the servitude operates only

when the state acts upon its navigable waters for the .

purpose of maproving navigation, and that private

rights ‘“‘damaged” by acts not in aid of navigation are

therefore compensable. (Beidler v. Sanitary District

(1904) 211 Ill: 628, 637; Natcher v. City of "Bowling

Green, (1936) 264 Ky. 584, 592-593; State, ex rel., v.

Masheter (1964) 1 Ohio St.2d 11, 12- 13; In re oe

struction of Walnut Street Bridge (1899) 191 Pa.

153; Conger v. Pierce County (1921) 116 Wash. 27,

31; ef. Green Bay & Mississippi Canal Co. v. Kau-

kauna Water Power Co. (1895) 90 Wis. 370, 398;

Michaelson v. Silver Beach Improvement Association,

Ine. (1961) 342.Mass. 251.) This appears, to be the

law of the State of New York. (Marine Air Ways v.

State of New York, supra, 201 Misc. 349, 350; Crance

y. State of New York (1954) 205 Mise. 590, 593,

modified 284 App.Div. 750, reinstated 309 N.Y. 680.)" -

- Other jurisdictions hold as we do in the instant case,

that the state’s servitude operates upon certain pri-

vate rights, 12 including those of access, whenever the

state deals with its navigable waters in a manner con-

sistent with the public trust under which they are

held. (Lovejoy v. Norwalk. (1930) 112 Conn. 199;

Frost v. Railroad Co., supra, 96 Me. 76, 85-87; Nelson

v. DeLong (1942) 213 Minn. 425; Crary, et tx. v.

State Highway Comm. (1953) 219 Miss. 284, 293-296;

Darling v. City of Newport News (1918) 123 Va. 14,

_ affd. 249 U.S. 540; Milwaukee-Western Fuel Co. v.

Milwaukee (1913) 152 Wis. 247.) We are of the opin-

ion that this view is supported not only by the pres-

ent law.of California, but also by considerations of

sound public policy. as

The limitation of the servitude to cases involving

a strict navigational purpose stems from a time when

11We observe that New York cases antedating the Marine Air

Ways case did not appear to construe the servitude so narrowly

as did that case and those following it. (See Sage v. The Mayor

(1897) 154 N.Y.. 61, 76; Tiffany v. Town of Oyster Bay (1922)

234 N.Y. 15, 21; Matter of City of New York (Jamaica Bay)

(1931) 256 N.Y. 382, 389.)

12No case has been found denying compensation when the act

of the state upon its navigable waters results in actual taking of -

or eecagpesmange# on fast lands. (See Natcher v. City of Bowling

Green, supra, 264 Ky..584; Morrison v. Clackamas County (1933)

141 Ore. 564; Conger v. Pierce County, supra, 116 Wash. 27.)

131] ach State has dealt with the lands under the [navigable

waters] within its borders according to its own views of justice

and policy, reserving its own control over such lands, or granting

rights therein to individuals or corporations, whether owners of

the adjoining upland or not, as it considered for the best interests

of the public. Great caution, therefore, ts necessary in applying

precedents in one State to cases arising in another.” (seapaasts

added.) (Shively v. Bowlby, supra, 152 U.S. 1, 26.)

the sole use of navigable ‘waterways for purposes ‘of

commerce was that of surface water transport. (See -

Morreale, op.cit., atp. 26:) That time is no longer:

- with us. The demands of modern commerée, the con-:

| centration of population in urban centers fronting on

- navigable waterways, the achievements of science in

devising new methods of commercial intercourse—all

of these factors require that the state, in determining

the means by which the general welfare is best to

« be served through the utilization of navigable. waters

held in trust for the public, should not be burdened

with an outmoded classification favoring one mode of -

utilization over another.

It is clear that the conclusions above expressed dis-'

| pose of plaintiffs’ contention. that their right of access

to the navigable waters fronting’ on their respective

properties must, in order to be of utility, include the

right to navigatesfreely to® the sea. Whatever the

_ scope and character of their right to have access to

- those navigable waters,’® we, hold that such right is

7 : 7

14Jt should be noted that the “private property” right. upon

which plaintiffs base their claims is of even larger scope than a

simple right to navigate freely to the sea, for that right is not here

curtailed except insofar as it concerns ships with fixed structures

more than 45 feet above the waterline. Thus, the “right of access”

claimed by plaintiffs would seem to include a right to navigate to —

the sea in vessels of any size. (See fn. 8, infra.)

15As noted above (see fn. 11 and accompanying text) the ‘State

of New York appears to limit. the scope of the state’s servitude to -

those eases where the state’s act is in furtherance of navigation,

and requires compensation for damage to private rights occasioned

by acts not in furtherance of navigation. However, in a case whose

facts are similar to those at bench, the. New York court construed

those facts and characterized the right at issue a that of naviga-

tion, rather than access. Since, as we have indicated above, the

. right to navigate is a public rather than a private right, the court |

- 38

burdened with a servitude in favor of the state which -

comes into operation: when the state .properly exer-

cises its power to control, regulate, and utilize such

waters. |

In City of Newport Beach v. Fager, supra, 39 Cal.

App.2d 23, \defendants’ access to navigable waters.

over their littoral land was wholly cut off when the

city, a political subdivision of the state, filled and re-

claimed the tidelands in front.of their land. When the

city sought to quiet title to the lands thus filled, de-

fendants contended that they had at least a right of

access over such lands to navigable water. The court

-rejected this contention. ‘“‘We are satisfied that the

‘ correct rule is that the littoral owner of uplands upon

a navigable bay has no right of access to the waters

of the bay over intervening tide lands, whether filled

or unfilled, which have been granted. by the state to

a city in trust for the purpose of improving such

navigable bay in furtherance of commerce and navi-

gation. [Citations.] Although it is true that as against

a stranger a littoral owner of upland bordering upon

navigable waters may not be deprived of his right of

held that its abridgment was non-compensable even though the

governmental act complained of was not undertaken in aid of

navigation. (Marine Air Ways v. State-of New. York, supra, 201 °

Mise. 349; ef. Crance v. State of New York, supra, 205 Mise. 590.)

Other jurisdictions have adopted a similar approach. (State, ex

rel. v. Masheter, supra, 1 Ohio St.2d 11; see also Frost v. Railroad

Co., supra, 96 Me. 76; Carmazi v. Board of County Com’rs of

Dade County (1959) 108 So.2d 318; Moore v. State Road Depart-

ment (1965) 171 So.2d 25.) We do not adopt this rationale in

the instant case. The rationale we do adopt leaves open the ques-

tion whether, as against private persons, a riparian owner’s right

- *. of access connotes a right of some scope to move freely upon the ~

surface of navigable water once the channel has been attained.

39 ,

access to such waters,’® no such right exists in favor

‘ of such littoral owner as against the state or its

grantee in the exercise of a lawful use or purpose.”

(39 Cal.App.2d at p. 28; see also Henry Dalton &

Sons Co. v. Oakland, supra, 168 Cal. 463, 467; People

v. Hecker, supra, 179 Cal.App.2d 823, 840.) We are

neither advised of, nor can-conceive of, any reason

why rules relating to one kind of navigable waters, .

to wit, tidewaters, should not be applied with equal

reason to similar situations involving other kinds of

navigable waters. In’ any event, we take judicial —

notice of the fact that tidal influence extends some

distance up the San’ Joaquin River past the Port of

Stockton. (See Witkin, Cal. Evidence (2d ed. 1966)

§§ 174-176, pp. 160-163.) .

We’ also rej ject. plaintiffs’ teenie that | our high-

way access eases (see Bacich v. Board of Control

(1943) 23 Cal.2d 343; Breidert v. “Southern Pace. Co.

(1964) 61 Cal.2d 659) require that compensation be _

paid for any substantial_impairment of plaintiffs’

right of access. We are not persuaded that the anal-

ogy between highway access and navigational access

will bear close scrutiny. The right of access to a land

highway derives from the “‘land service road” con-

16Tt is this right as against private persons which is the basis of

eases involving condemnation of land fronting on navigable water-

ways. (See City of Los Angeles v. Aitken. (1935) 10 Cal.App.2d

460; cf. United States v. Chandler-Dunbar Co. (1913) 229 U.S.

53; "United States v. River Rouge Co., supra, 269 U.S. 411.) The

right of access, though defeasible by appropriate governmental

action, has value to the owner of riparian or littoral property,

and this right must be valued in iight of a realistic estimate of

the chance that the government would exercise its power to dimin- |

ish or curtail it. | a

cept, whereby roads are conceived of as arteries con-

structed through condemnation of private land for —

the purpose of serving other land abutting on them,. |

rather than for the purpose of serving public. traffic

passing over them. (See Note (1965) 38 So.Cal.L.Rev.

689, 690, and authorities cited in fn. 9 thereof.) Prin-

.. ciples applicable to such a right cannot reasonably: be _

extended to the case of navigable waterways, which

“constitute a natural resource retained within the pub-

lic domain for the purpose of servingepublic traffic

in accordance with the greatest common benefit.

Finally, we emphasize that the state servitude upon

lands riparian or ‘littoral to navigable waters, like —

the federal servitude burdening such lands, does not:

extend to cases wherein the proper exercise of state -

power results in actual physical invasion of or en-

croachment upon fast lands. In the case of Miramar

Co. v. City of Santa Barbara, supra, 23 Cal.2d 170,

. plaintiff was the owner of lands littoral to a navigable

‘bay and defendant, a political subdivision of the

state, constructed a permanent breakwater in the bay.

about three miles to the west of plaintiff’s property.

The effect of this breakwater upon natural drifts and

-eurrents operated in the course of time to’ denude

-plaintiff’s property of sandy beach, rendering: the

property valueless as a beach resort. It was alleged

that defendant, before it built its breakwatér, knew

~that the effect complained of would\occur. Plaintiff

_. ‘sued in inverse condemnation, and the trial court

entered a judgment of dismissal after sustaining de-

fendants’ demurrer without leave to amend. Upon

affirmance of the judgment by this court it was said:

“Plaintiff’s littoral right to saudy water [which pro- ©

vided the accretion necessary to offset tidal washing],

like its littoral right of: access to the ocean, was de-

rived entirély from<the proximity of plaintiff’s land

to the ocean. It gave to plaintiff’s land the advantage :

of sandy accretions. _Nevertheless, the enjoyment of:

that advantage did not constitute a right to its per-

petuation, for plaintiff’s littoral rights were always

subordinate to the state’s rights to improve naviga-

tion.’ The duration of the sandy accretions depended

_ entirely upon the continuation of the littoral right,

which from the beginning was subject: to termination

by. the state. The withdrawal of the sandy accretions,

constituting the damage .to plaintiff’s land, was an

incidental consequence of the state’s use of the public |

domain for a public ‘interest that, was at all times

superior to private littoral rights. There has there-

fore been no taking or damaging of private property

for public use within the meaning of article I, section

14, of the California. Constitution.” (23 Cal.2d at’p.

176.) In a separate concurring ‘opinion, it was said

that direct physical encroachment or invasion upon

plaintiff’s lands was required in or der that there be

“a taking within the meaning of tle constitutional

- provision.”. (23 Cal.2d at p. 178.) After reference to

‘ certain. cases of the United States Supreme — to

17The improvement: involved in Miramar was in aid of naviga-

tion. However, as we have explained supra, the state’s power to -

regulate and control its navigable waters is not limited to purposes

of navigation, and the servitude in its favor is of commensurate

scope. %

UB AIT EEE LSA in: bate ain eagle Pi Lats AR Ad Pec Raph. RENE ae “ te CARR abe

Dee ee

& snes

which we have adverted. above (e.g., Pumpelly v. °

Green Bay Company, supra, 80 U.S. (13 Wall.) 166)

' the concurring opinion. concluded that “The doctrine

of taking under the Fifth Amendment has never been |

extended: beyond the rule. stated,. and certainly there

is no necessity for doing so under a constitutional -

provision which provides compensation for both taking

and damaging.” (23 Cal.2d at pp. 178-179.) Three:

justices of the court dissented’. -upon the basis that —

under the facts a physical taking of the plaintiff’s

; land was involved.

It therefore appears that this court in the Miramar

ease, though divided as to the proper result under the

facts there at issue, reached fundamental agreement

on the extent to which the state, through the proper

exercise of its trust power to deal with navigable

waters, may impair without compensation rights. ap-

- purtenant to property riparian or littoral to such

- waters. The ‘servitude with which such property: is

: burdened precludes compensation for impairment or

curtailment of all rights not damaged by permanent

physical i invasion of or encroachment upon fast lands;'

when -the exercise of the power. does cause such

physical invasion or encroachment, the servitude is

inapplicable and rights damaged asa result are com-

' pensable in accordance with article I, section 14, of

the state Constitution.

. We hold that plaintiffs’ right of access from their

eneiliee riparian properties to the waters of: the

channel, whatever its scope as against private parties, .

is burdened with a servitude in favor of the state and

"43

that, since there is heré no direct physical invasion

~ of, or encroachment upon, said properties by the state,

plaintiffs are not entitled to compensation for jn

abridgment or diminution, if any, of such right of

| access as a result of the lawful exercise of the state’s

power to regulate, control and deal with its navigable

waters. |

The judgments are, — each of them is ional.

. | Sullivan, J.

- We concur:

- Traynor, C. J.

McComb, J..

Tobriner, J.

Burke, J.

IS haiti tirncinie a itinsn

Appendix A, Exhibit (4)

Colberg v. State of California.

‘Stephens Marine, Ine. v. State.of Qolifornia

Sac. 7694 2

DIssENTING Opinion by Peters, J.

T dissent.

I cannot agree that hecause the shade wants iy

build two low level highway bridges across the mouth

of an inlet where plaintiffs’ shipyards are located,

plaintiffs must suffer the complete loss caused by. the

impairment of their right of one-way water access to

’ “deep water. Principles of fairness, logic and public

policy suggest that this loss is a part of the cost of

the freeway that should not be borne by plaintiffs but

should be borne by the public. oe should

therefore be allowed.

- The access impaired here is one-way access to the

oceans of the world. Such access is indispensable to.

the operation of plaintiffs’ businesses." So, the im-

pairment is not technical. It is substantial and dif-.

ferent in’ nature and degree from ‘the impairment

suffered by the general public. There is not ,in- .

volved the mere hypothetical damage to vacant land, _

nor are we dealing with speculators, nor with newly

1Colberg alleges that 81 percent of its “eurrent business is

derived from ships unable to reach its shipyard under a bridge but

45 feet in height. Stephens alleges it will lose 35 percent of their

- business if the bridges are built. The Carquinez bridges, it should

- be mentioned, are 135 feet above the water.

created ‘businesses. Both plaintiffs have been oper-

. + ating bona fide shipyards in the inlet for over 60

years. Thus, we.are not involved with a mere inei-

dental impairment of. the right of. access ‘but are

dealing with a*very substantial impairment. The im- ~

pairment is not caused by a construction strictly in

aid of navigation but the bridges are part of a state

freeway. If the freeway impaired land access to the —

same degree such impairment would be a a)

_ These facts are indisputable. i;

The majority hold that, under these facts, case hon

and public policy dictate the conclusion that compen:

‘sation’ should not be allowed. So far as case law is

concertied the majority have done a commendable ‘job:

in collecting the cases discussing -the nature of the’

rights involved. But all that this ‘exhaustive analysis

proves is that there are no definitive cases in Cali-

fornia, and that the decisions of other states reach con- -

flicting results. A decision either way is permissible

under the cases. Thus, the decision in this case is really

_a public policy one, and the majority, recognizing this, —

‘ elaim that public policy supports their conclusion.

~ only access to deep water and so put well established

businesses out of operation without compensation? The

answer is obvious. There can be and is no such. public

policy. The question’ is not’ an open one. It has been

decided that, as a matter of public policy, impairment

of land access under such circumstances requires com-

- pensation. The majority fly i in the face of tags deter-“

mination.

46 -

‘Today government is big and complex and con-

stantly. growing bigger. The legitimate need of

government. for property is constantly expanding. |

Thus, more‘and more frequently, the rights of indi- ~

viduals and the government come into conflict, When‘

this occurs then this court must referee the conflict

and try to protect the rights of the state and the rights

. ofthe individual. In‘doing so we must keep in mind

- the admonition of our Constitution that property .

“‘shall not’ be taken or damaged for public use without

just: compensation. ta

Nowhere ‘is this conflict between the state and the

imdividual made more apparent than by the state’s

need to build new highways and freeways which fre-

quently include, as here, the building of bridges. The

problem became very apparent in the construction of

the freeways and the approaches leading to the San

- Francisco Bay Bridge. Rights of access were obvi-.

ously impaired: In the case of Bacich v. Board of

Control, 23 Cal.2d 343, where the construction of the

approaches to the Bay Bridge placed plaintiff’s land

and property in a cul-de-sac, the problem was directly

presented. Plaintiff had still one-way access to the

general system of streets but his access in the other

’ direction was substantially cut off? There was no con-

_ trolling case in California. Cases elsewhere were in

~ conflict. The court recognized: that it was a problem

2Article I, section 14 of our state Constitution. See also article

XV, section 1 of that Constitution which provides “The right of

eminent domain. is hereby declared to exist in the State to all

frontages on the navigable waters of this State.” .

ae ae

"sé

of first infypression, and that it was required to deter-,

mine the public policy of this state. -It then ‘sHowed

no hesitancy, as it does now, to declare su¢h policy. .

~It held that: when the right of access: was impaired, as

distinguished from a physical taking -or damaging,

there must be a weighing of the conflicting rights.

' Thus, where the impairment is substantial ‘and ‘pe-

culiar to the plaintiff, and can be compensated for

without prohibitive cost, it is ‘compensable. But.

where the impairment is incidental and where the

_ cost of compensation is prohibitive it is not com- .

pensable. Thus, impairment of access to one in a cul-

de-sac was held compensable, but property owners

beyond the next intersecting street were not to be

compensated. Nor were property, owners: to be com-

pensated where their access street was made into a

one-way street or-into a divided highway, or left turns

were prohibited. (See Bacich v. Board of Control,

supra, 23 Cal.2d 343, particularly the concurring.

v. Southern Pac. Co., 61 Cal.2d 659; Valenta v. County

of Los Angeles, 61 Caf® 2d 669.) The courtgshowed: no

reluctance in Bacich and the other cases in declaring

that a material impairment of the right of access

should be compensable as a matter of public policy.

But the majority in the instant case repudiate that

public policy and purport to hold that public policy

now compels a contrary result. The two lines of au-

thority are inconsistent and incompatible. If we were.

right in the land access cases the majority are wrong

in this case,

; | | 1‘ ;

The major error.in the majority opinion is its hold-

ing that all the state’s uses of its navigable waters

~ must be treated in the same identical fashion. It may

be that when the state acts strictly in aid of naviga-

tion that the right of the state is absolute and the

property owner is entitled to no compensation

(Miramar Co. v. City of Santa Barbara, 23 Cal.2d

170) for impairment of his rights. But where the use

by the state is not strictly for navigation purposes,

but, as here, is for freeway purposes, principles of

equity, justice, fairness, and certainly of public policy,

| dictate that the same public policy declared in the

_ land access cases should apply.

When this case was before the Court of ial

of the Third Appellate District, Justice Friedman

prepared a scholarly and exhaustive opinion for the

court that discusses these positions in depth. The _

following portions of that opinion are adopted as part |

of this dissent. (Colberg, Inc. v. State of California

-(Cal.App.) 55 Cal. Rptr. 159.)

“The amendment of state- constitutions, including

California’s, to provide compensation when private

property is ‘damaged’ as well as ‘taken’ for public

use, indicates an intent to expand the area of com- -

pensability, requiring the courts to fix its limits by

placing . the’Seconomic interests of the public in

balance against the sacrifices imposed on the land-

owner. (Bacieh v. Board of Control, 23 Cal.2d 343,

350-351, 144 P.2d 818; concurring opinion of Ed-

monds, J. ibid., pp. 358-360, 144 P.2d pp. 826-832; see

Albers v. County of Los Angeles, 62-Cal.2d 250, 262-

49° 7 a5

263, 42 Cal.Rptr. 89, 398 P.2d 129.) The case-by-case

balancing of these competing interests results in

Judicial expansion or contraction of a group,of in-

“tangible rights recognized as compensable ‘private

property.’ Compensable property, it is now recog-

nized, includes not only the physical fand and im-

provements but certain -intangible rights of access

between the land and the outside world. Thus, al-

though the owner uses the streets in common with the

rest of the public, he owns a private easement of ac-

cess which consists of the right- to get into the street

abutting his property and thence.to the general SyS-

tem of public streets and highways. (Valenta v.

County of Los Angeles, 61 Cal.2d. 669, 671, 39 Cal.

‘Rptr. 909, 394 P.2d 725; Breidert v. Southern Pac.

- Co., 61 Cal.2d 659, 663, 39. Cal.Rptr. 903,.394 P.2d

719, citing preceding California decistons; ef. Sneed v.

County of Riverside, 218 Cal.App.2d 205, 32 Cal.

Rptr. 318, re airspace invasion.): Not every impair-

ment of access to the general system of public streets

‘is compensable in eminent domain. Compensability,

rather, requires an individualized finding of substan-

tial impairment, a finding of fact delegated to. the

trial court and not the jury. (Breidert v. Southern

Pac. Co., supra, 61 Cal.2d at pp. 663-665, 39 Cal.Rptr.

903, 394 P.2d 719; People v. Ricciardi, 23 Cal.2d 390, ~

402-403, 144 P.2d 799.) :

“The central problem is to locate a line between

compensable damage to private property and dis-

advantages of the kind called ‘consequential.’ Of the

latter sort are such elements as loss of ‘business and

--50

» .

diminution of traffic caused by diversion of traffic and |

circuity of travel. (People ex rel. Department of

Public Works v. Symons, 54 Cal.2d 855, 860, 9 Cal. -

‘-Rptr. 363, 357 P.2d 451.) Applying the economic

balancing test, the “Supreme Court points out that

awards of the latter sort would severely burden the

public treasury and produce ‘ “an embargo upon the

creation of new and desirable roads.”’ (Ibid., p. 862,

9 Cal.Rptr. 367, 357 P.2d p. 455.)

“The street access doctrine represents an expanded _

notion of the constitutional concept of private prop-

erty whose invasion or damage is compensable . in

eminent domain. It means that “property’ in an

eminent domain sense includes not only a piece of the

earth’s surface but an intangible right of movement _

between it and the outside world; that, although the

channels of movement are -shared- with: the public,

they are ‘private’ and compensable when a public im-

provement devalues: a particular piece of ‘land by.

substantia'ly impairing these channels. Navigable

waterways are channels of movement no less than

streets and highways. (See Chicazo, M. & St. P. Ry.

Co. v. City of Minneapolis, 232 U.S. 430, 442, 34 S.Ct.

400, 58 L.Ed. 671; Wattson v. Eldridge, 207 Cal. 314,

320, 278 P. 236; People v. Gold Run D. & M. Co., 66°

Cal. 138, 147, 4 P. 1152.) There is no differshee in

principle or policy between land and sea access which

affirms an easement of access by land and denies it by

water. df a public project obstructs the owner’s ac-

‘cess to the outside world, he is equally hurt whether

the barrier blocks him by land or by sea. A littoral

‘

property owner’s easement of access includes kth

media of movement.

. ‘Claims for loss of street access often arise because

the public improvement places private property on a

cul-de-sac; restricting accessibility to one direction

only, e. g., Valenta v. County of Los ‘Angeles, supra;

Bacich v. Board of Control, supra. The Colberg and

Stephens shipyards are situated on a natural cul-de-

‘sac. Without the intervention of the public improve-

ment, they have marine access to the outside world in

one direction. only. According to the complaints, con-

struction of the public project will obstruct much of

_ the single marine route between their property and the

outside world. Their private right of access to the

navigable water in front of their property has" little

_value if-that is as far as they can go.’ Location on a

partially blocked, marine cul-de-sac is one element in

the group of circumstances indicating the occurrence

or absence of a substantial impairment of the éasement

of access.

landward side. Shoreline properties have obvious .

economic attributes resulting from their accessibility

by water. Residual access by land may supply scant’

economic solace when marine access. beyond the im-

mediate waterfront is obstructed or destroyed. The

“5At this point we paraphrase’the majority opinion in Bacich v.

Board of Control, supra; 23 Cal.2d at p. 354, 144 P.2d-at p. 825,

which states: ‘To be able to get onto the street immediately in _

front of the peepey is of little value if that is as far as e. the

owner] can go.’”

————————eer

™)

52 -

substantial impairment rule supplies a ‘criterion for

determining whether the retention of land’ access and

the destruction or obstruction of mariné access’ result .

in “ compensable damage. :

‘The state contends: that the street access doctrine is

only.an analogy. It suggests that the public policy of

the street access cases,. where economic balancing is*

possible, does not apply to loss of marine access } that

the public can supply-economical alternative routes

to compensate for closed streets but not for closed

waterways; further, that a bridge of limited clearance

- across .a busy waterway may elicit damage claims SO-

_ heavy and widespread as to prevent the project: These

factors evoke no policy considerations excluding access

by water from the general easement of access

recognized in eminent domain. The balancing ap-

proach is much broader than the street access cases.

It is employed to measure the reach of the policy

underlying the eminent domain. provision of the state

‘-Constitution, laying down a line which separates com-

pensable injuries front noncompensable disadvantages.

In Albers v. County of Los Angeles, supra, it is used

‘in the context of a landslide damage claim; in Clement

P.2d 897, to determine compensability of flood damage.

In the course of the latter decision the court states:

‘The decisive consideration is whether the owner of

the damaged property, if uncompensated would con-

tribute more than his proper share to the public under-

taking.’ (Clement v. State Reclamation Board, apres,

ee ore 642, 220 P.2d at p. 905.)

EES a eer eee

‘ 53

‘Viewed in the light of the economic balancing.

criterion, the present injuries are sharply. focused on

two properties. They arouse no concern for the public

purse beyond. that involved in any eminent domain

proceeding. While shared with the general’ public,

“marine passage along Upper Stockton Channel with-

“out a height restriction is a unique economic attribute

of, two ¢emmercial shipyards located on a marine cul-

de-sac.* The prospect of damage claims from the two

owners is not so monumental as to discourage the free-

way project of which the bridges @re a part. The tax-

payers can absorb the cost with far less hardship than .

-the owners. (Albers v. County of Los Angeles, supra,

62 Cal.2d at p. 263, 42 Cal.Rptr. 89, 398 P.2d .129.)

“The selection between a low level bridge and

reasonable alternatives’ is essentially a budgetary and

planning choice by the administrator. Potential dam-

age to the littoral owners may approach.the cost of

' raising the bridge level. At that point the administra-

tor starts thinking of an acceptable alternative, for

example, a higher. bridge. Intangible community

values imperiled by the extended ramps of a high

bridge may impel his return to the low level design. —

Whatever motivates the administrator to ¢hoose a low

level bridge, dollars or intangible community values,

the individual property owner ‘if uncompensated

would contribute mere than his proper share to the

public undertaking.’ (Clement v. State Reclamation

Board, supra, 35 Cal.2d at p. 642, 220 P.2d ato. 905.)

“6 At this point we refrain from anticipating the computation of

damage and from indicating the relationship between loss of busi-

ness and devaluation of property.”

“The specter of widespread damage claims caused |

‘by a bridge athwart a busy artery of marine commerce

arouses no policy tremors. Potential’ economic injuries

from obstructions to navigation are limited by federal

statutes investing the Chief, of Engineers and the

_ Secretary. of the Army with’ discretionary permit

_ powers in the interest of protecting navigation. (See

33 U.S.C. §§ 401, 403 ; Ryan v..Chicago, B. & Q. R. Co.,

_ 7th Cir.; 59 F.2d 137, 142.) Unless the federal officials

abdicate their responsibilities, a low level, drawless

bridge across the Carquinez Straits or the mouth of

bility. It is reasonable to suggest that the present

bridge project merited a federal permit only because

the 45-foot limitation on. navigation had narrow’ ‘eco-

nomic impact on two shipyards located on a marine

cul-de-sac; that at some point potential injury to addi-

tional maritimé interests would provoke denial of a

federal permit. Injury claims remaining after the

, federal screening must then pass a second screening, .

measures the limit of compensability under the Cali-

fornia Constitution. Finally, the claim must pass the

substantial impairment test. ‘These successive filters

prevent compensable injuries to navigation so widely

~4iffused that they are more public than private.

‘We resist the invitation to follow the nuisance and

equity decisions which deny upstream owners relief -

against downstream bridges which obstruct navigation.

(See cases cited fn. 4, supra.) [Fn. 4. Gilman v. City -

of Philadelphia, 3 Wall. 713, 70 U.S. 713, 18 L.Ed. 96;

Miller v. Mayor, etc., of City of New York, 109 U.S.

385, 3 S.Ct. 228, 27 L.Ed. 971;. Cardwell v. American

River Bridge Co., 113 U.S. 205) 5 S:Ct. 423, 28 L.Ed.

959; Pacifje Inter-Club Yacht Assn. v. Morris, D.C.,

197. F.Supp. 218; Jarvis v. Santa Clara Valley R.R.

Co., 52 Cal. 488; People v. Potrero and Bay View

x. & Co., 67 Cal. 166, 7 P. 445; ef. Hickok et al. v.

- Hine, 23 Ohio St.' 523; see also Sound Marine &

Machine Corp.-v. Westchester County, 2d Cir., 100

F.2d 360.] Such decisions turn largely on the ‘public’

‘character of the right of navigation and the private

plaintiff’s lack of standing to seek relief against a

public nuisance not peculiar to himself. In the search

for an eminent domain ‘concept of ‘private property,’

equity and nuisance decisions are not a trustworthy

‘guide (see Clement v. State Reclamation Board, supra,

35. Cal.2d at -p. 641, 220 P.2d 897). Preferable to

analogies drawn from other branches of the law ‘is ‘the

self-contained ‘easement of access’ doctrine developed

as part of the California law of eminent domain.

‘Eminent domain decisions in other states on com-

pensability of obstructions to navigation vary. The

variation is often prompted by the language. of the

particular state’s constitutional provision. In Pennsyl-

vania, where the Constitution was amended to provide

compensation for property ‘injured’ as well as taken,

a wharf owner was awarded damages when a city

_ bridge prevented vessels from passing upstream to his

‘wharf. (In re Construction of Walnut St. Bridge, 191

Pa. 153, reported sub nom. Gumbes v. City of» Phila-

delphia, 43 A. 88.) In State v. Masheter, supra, where

56 :

the-Ohio Constitution limited compensation to a ‘tak-

ing,’ the court denied recovery under similar facts.

One of the Ohio judges dissented, believing that the

ripariah terminal operator had developed a private

right of navigation which ‘was separate from that of

the public and was ‘taken’ from him by the bridge.’

In New York a similar claim was denied on the theory

(imported from the equity and nuisance. decisions)

that the right of navigation is ‘exclusively a public

right.’ (Marine Air Ways v. State, supra, 201 Misc.

349, 104 N.Y.S.2d-at p. 967, affd. 280 App.Div.. 1021,

‘116 N.Y.S.2d 778.) The Florida courts have adopted

the same rationale. (Moore v. Staté Road Dept., supra _

Com’rs of Dade Co., supra (Fla.App.) 108 So. 2d 318.)

, ACCESS. doctrine evolved:as part of the California law

of ‘eminent domain. None of them considered the |

balancing of policies implicit i in the easement of access

doctrine. — ~

“Both sides seek soiubisit in City of oo Angeles v.

Aitken, 10 Cal.App.2d 460, 52 P.2d 585. The action

was one to condemn littoral rights-on a navigable lake

whose level would be lowered by the condemnirg

agency’s diversion of tributary streams. The defendant

owried shoreline resort property. According to the

opinion, the marginal owner’s privilege of boating was

not itself compensable, but constituted ‘an élement in

the valuation of his shoreline property. The case sup-

“7Cf. Miramar Co. v. City of Santa Berbers, 23 Cal.2d 170,°183,

143 P.2d 1, dissent of Carter, * ag

plies no, precedent here, since it involves a destruction

of the littoral owner’s pr ivate right of access to navig-

able water directly fronting on his property.

‘‘The second major question i is posed by the doctrine .

a denying compensation. when a littoral owner’s interests.

-in navigable water are ‘damaged through the exercise

of the ‘navigation servitude,’ that is, through ‘the pub-

_lie’s paramount power to control navigable: waters in-

_ the interest of navigation and commerce. (See gen- |

* erally Miramar Co. v. City of Santa Barbara, supra,

_ 23 Cal.2d 170, 143 P.2d 1; 2 Nichols [on Eminent

Domain (3d. ed.)] op. cit., ‘pp. 247-258.) The state

* relies upon cases which seemingly extend the doctrine

to public improvements which aid commerce as well

/ as those aiding navigation. (Henry Dalton & Sons Co.

_ v. Oakland, supra, 168 Cal. 463,.467, 143 P. 721; City

_ of Newport Beach v. Fager, supra, 39 Cal.App.2d at p. .

28, 102 P.2d 438.) -It points out -that. the -proposed

- bridges are part of an interstate freeway project which

will improve access to Stockton harbor and benefit —

land and water transportation. |

.**Broad dicta in some of the decisions permit identi- .

fication of the navigation servitude with the promotion -

of ‘commerce’ without express restriction: to water-—

‘- ‘borne commerce. Such statements should not be taken

out-of context. Decisional law rejects the notion that

any projéct facilitating commerce is { pso facto within

the sovereign power over waterways. Nor do the

parallel powers of the federal and state governments -

‘over navigation include every public project affecting

the navigable capacity of water. Although most gen-

{

- -eralizations entail some peril, the general tenor of the

decisions is that the navigation servitude is limited

to public works designed to aid or control navigation, }

excluding projects for other pur/poses.* A leading case

refers to the navigation servitude as one embracing

‘such use of the submerged lands and of the waters

flowing over them as may be consistent with or. de-

manded by the public right of navigation.’ (Scranton

v. Wheeler, 179 U.S. 141, 163, 21 S.Ct. 48, 57, 46 L.Ed.

126.) Freeways and streets along the waterfront: are

outside the scope of the navigation servitude (In.re. -

City of New York, 168 N.Y. 134, 61 N.E. 158, 56

ete., 256 N.Y. 382, 176 N.E. 539; Crance v. State,

supra, 205 Misc. 590, 128 N.Y.S.2d 479) although there

is contrary authority (Crary v. State Highway Comm.,

219 Miss. 284, 68 So. 2d 468). Deepening the channel:

of a stream to prevent overflows harmful to roads and

bridges is not an exercise of the navigation power.

(Conger v. Pierce Co., 116 Wash. 27, 198 P..377, 18

_A.L.R. 393.) The proposed freeway bridges across the

Upper Stockton Channel will not aid its development

as a medium of commerce. Rather they will obstruct

its navigability, albeit the obstruction will be sanc-

" tioned by federal law. ‘(See Southlands Co. v. City of

_ San Diego, 211 Cal. 646, 297 P. 521.)

. “8United States v. River Rouge Imp. Co., supra, 269 U.S. at p. -

419, 46 S.Ct. 144, 70 L. Ed. 339; United States v. 50 Foot Right of

Way in Bayonne, N.J., 337 F.2d 956, 959; United States’ v.

412. 115 Acres of Land, 53 F.Supp. 143, 149; City of Los Angeles

v. Aitken, supra, 10 Cal. App.2d at p. 470, 52 P.2d 585; Crance:v.

State, 205 Mise. 590, 128 N.Y.S.2d 479, 481, ‘reversed on other

grounds 309 N.Y. 680, 128 N.E.2d 324; 26 Am.Jur.2d, Eminent

Domain, § 191, p. 870; Note: 18 A.L.R. 403.”

. €

bod

“The state seeks to extend the navigation servitude

on the strength of decisions permitting improvements

on publicly owned tidelands without compensation for

~ the upland owner’s loss of access, e.g., Miramar Co. v.

City of Santa Barbara, supra, 23 Cal.2d 170, 143 P.2d

_ 1;-Henry Dalton & Sons Co. v. Oakland, supra, 168

| Cal. 463, 143 Pp. 721; City of Newport Beach v. Fager,

supra, 39 Cal.App.2d 23, 102 P.2d 438. In those cases

the public’s immunity is said to extend not only to—

tideland projects promoting navigation but to any

‘lawful use or purpose.’ (People v. Hecker, 179 Cal.

App.2d 823, 840, 4 Cal.Rptr. 334; City of Newport °

Beach v. Fager, supra, 39 Cal.App.2d at p. 28, 102 P.:

2d 438.) The tideland cases turn upon the principle

that the littoral rights pf an owner whose land adjoins

publicly owned tidelands may be terminated by what-

ever disposition of the tidelands the public chooses to

make. (Miramar Co. v. City of Santa Barbara, supra,

23 Cal.2d at-p. 174, 143 P.2d 1.) Although public tide-

lands are held in trust for commerce, navigation and

fishery, projects ofi tidelands may have nothing to do |

with navigation. Subject to the restrictions in statu-

- tory grants, public tidelands. may be devoted to any

use which does not prejudice the public rights of

navigation and fishing. (Mallon v. City of Long Beach,

44-Cal.2d 199, 206, 282 P.2d 481; Boone v. Kingsbury,

206 Cal. 148, 183, 189, 273 P. 797.) Thus the public’s

power to improve its tidelands without compensating

littoral owners ‘is nota measure ofthe navigation

servitude when tideland use is not involved. *

‘

‘Finally, the state urges that the federal permit

to construct the low level bridge project across Upper

- Stockton Channel is ‘conclusive.’ Perhaps it is, in the

‘ limited sense that a court may not restrain an ob-

struction to navigation permitted by federal law. (See

cases cited fn. 4, supra.) The permit is only a declara;

tion of federal assent, not a delegation of power.® Fed-

. eral assent to the project does not shield the state from

the eminent domain provision of its own constitution.

‘It must be remembered . . . that. damage may be in-

flicted within the meaning of such a constitutional pro-

vision by the mere exercise of unquestioned public ~

. rights.’ (2 Nichols, op. eit., p. 269.)

‘‘We conclude that the bridge project is not an ex-

ercise of the state’s navigation servitude; that the

project. will cause compensable damage to: plaintiffs’

private properties if, in an appropriate proceeding, a

court finds rogue, impairment of their weapons

.easements of access.”

¢ For these reasons ‘ believe the judgments should be

reversed,

; Peters, J.

I Concur: °

Mosk, J.

Filed, October 3, 1967,

William I. Sullivan, Clerk. ~

rt SO City of Chicago, 188 U.S. 410, *430-431, 23 S.Ct.

472,47 L.Ed. 525; Pembroke v. Peninsular Terminal Co., 108 Fla.

46, 146 So. 249, 255; Cobb v. Lineoln Park Com’rs., 202 Til. 427,

67 N.E. 5, 9, 63 L.R. A. 264; Wilson v. Hudson County Water Co.,

76-N.J. Eq. 543, 76 A. 560, 565-566; Sullivan v. Booth & Flinn,

210 App.Div. 347, 206 N.Y.S. 360, 363.”

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Prepared by 2.) Dette: Sept. ‘962

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PROPOSED |

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LEGEND

Alignment of proposed freeway.

Navigation facility (listed in table IZ)

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Water’ level gage

Appendix B, Exhibit [) | |

SCALE IW FEET

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UPPER STOCKTON: CHANNEL

STOCKTON, CALIFORNIA |

. BRIOGE CLEARANCE STUDY

LOCATION MAP

Corps of Engineers "Sacramento, California

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.