Respondents Brief in Opposition — Gossett v. United States

.

eS

eee od

eS Bates ”

Tryarr gh tae

ss eer REE CBR FL

-

SUBJECT INDEX

- Page

Opinions Below ...x... ee

Jurisdiction “ mi

Questions Presented ..... , 2

Statement of the Case . : — 2

“Argument 4

a i$ sh ome ne ed

California’ s Ownership of the Bed of the Colorado.

River Extends to the Low-Water Marke sini. a aoe

II ‘

Under California\Law, Title to Sovereign Lands

Cannot Be Acquired by Adverse Possession ...... 6

Conclusion MARC ead CAS Fc asdampapsacah el cate 8

S

ar

*-

. J ere ee eee ‘7.

ii ca aie SR

. " nS

e ‘

TABLE OF AUTHORITIES CITED

Cases Page

Anderson v. Trotter, 213 Cal. ah, 2 P. 2d 373

Gt TRAN ei mcrnse miter rte, Bakes Ran een oe Re eee Ud

Arizona y. Cflifornia, 283 U.S.” 423, 51. S.- Ct.

Oe a

Barney v. Keokuk, 94 U.S. 324, 24 L. Ed. 224

SGU. cscepsamarsnibthenchciseeapictessiacennaoneteuelmeaiaiaseaicesli einen

‘Cimpher v. City of Oakland, 162 Cal. 87, 121 Pac.

MEN ck inset seers pennies petuane:

City of Los Angeles v. Aitken, 10 Cal. _ 2d 460,

52° P, 2d S84 (1935) -..-.-n2cvesceecerncee

City of Los Angeles v. Anderson, 206 Cal. 662, 275

* Als Fl TOY sits cetera cok gra ad:

City of Oakland v. Burns, 46 Cal. 2d 401, 296

P.. 28 333, (1958) .........

City of Oakland v. Wheeler, 34 Cal. Ape. 442, 168

ees Be CADE ) xcainecaccdiggnaaeinas

Colberg, Inc. v. State of California, ex rel. Det

Pub. Wks., 67 Cal. 2d 408 (1967) ........-----seesseeseees

County * of St. Clair v. Lovingston, 90 U. S. —

Wall.) 46, 23 L: ‘Ed. 59 (1874) .2 =F

Craig v. White, 187 Cal. 489, 202 Pac. 648 (1921).

Crews v. Johnson, 202. Cal. _ <5; 256, 21 Cal.

Rptr. 2d 37° (1962) ...... age

Fog v. Johnstofie, 158 Gal. 119, 110 Pac. 294

iC) Rahs N

Hardin v. Jordan, 140 U.S. 371, u = Ct. 808

(1891). ..... - “ 5;

- «» Illinois Central R.R. Co. v. Mindis. 146 U.S. 387

(1892)

6

6

6

6}

7

Packer v. Bird, 137 U.S. 661, 11 S. Ct. 210 (1891)..

Patton v. City of Los Angeles, 169 Cal. 521, 147

Pac. 141 (4915) «.......... Rsscccisiibtntéuiastabnsibeanaais

People v. Banning Co.; 167 Cal. 643, 140 Pac. 587

CSIRO? sscioatsnstipsccestbialbacsaeccansinins diene re

fs i ee eR CEE SS,

Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212,

BA Ds EE, SGD CIBIB) crececcepsreicoccesnce Councils 5,

St. Louis v. Rutz, 138 U.S. 226, 11 S. Ct. 337

(1891) eerneenene

Statutes

California Civil Code, Sec. 670 .....0..0.2..00000...

California. Civil Code, Sec. 830 ..:..:........0ccSsccosscoscsecess

California Code of Civil Procedure, Sec. 2077(5) ..

California Constitution, Art..XXT, Act of - ifaite

sion, 9 Statutes, p. 452 ............ SiniiSoccisiapbedinapiece

Unitéd States Come, Title 28, Sec. 1254(1) edesieniabaide

6

IN THE

Supreme Court of the United States

October Term, 1969

No. 945

CLAUDE S. Gossett, et al.,

Petitioners,

US.

UNITED STATES OF AMERICA, STATE OF CALIFORNIA,

et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF FOR RESPONDENT STATE OF

CALIFORNIA IN OPPOSITION

Opinions Below

The opinion of the District Court, from the judg-

ment following which an interlocutory appeal was taken

to the Court of Appeals, is not reported, but is set

forth on page 9 of the Petition. An earlier opinion and

order of the District Court for the Central District of -

California joining the State of California as a party is

reported in 277 F. Supp. 11. The opinion of the Court

of Appeals for the Ninth Circuit is not yet reported,

but is set forth in the Appendix to the Petition. _

+2

Jurisdiction

Petitioners assert that jurisdiction of this Court

rests on 28 U.S.C. section 1254(1).

Questions Presented

As far as the interests of the State of California are

concerned, the questions presented are:

‘1. Whether the State of California owns the

bed of non-tidal navigable waters to the low-water

or to the high-water mark?

2. Whether lands owned by California in the

beds of navigable waters are subject to acquisition

by private parties by adverse possession ?

Statement of the Case

The United States commenced this action by filing

separate Complaints for Ejectment and for damages

against the Gossetts and against the Williams and

others, alleging that the lands in question were owned

by the United States as part of the public domain and

were withdrawn from entry. Petitioners asserted that

the lands in question lie within the bed of the Colorado

River as it existed at the time California entered the

Union and remained so until the closing of Hoover

Dam. The conclusion drawn by Petitioners from this was

that upon admission of California to the Union the land

-was owned by.the State of California and never there-

after owned by the United States. The Petitioners

never alleged how, if at all, they acquired title from the

State.

—3--

A motion for summary judgment by the United

States was denied, and pursuant to an order of the Dis-

trict Court (277 F. Supp. 11) the State. of California

was made a party to the case. The State filed an an-

swer which in substance (1) admitted that the United

States owned the described land, (2) alleged that as be-

tween the United States and the State of California, the

United States was the owner of the land, and (3) al-

leged that the State was not the owner of the de-

scribed land in its sovereign capacity as the owner of the

beds of navigable bodies of water within the State.

After the filing of the State’s answer, the United

States moved for Judgment as to Possession Only, or in

the alternative Summary Judgment, which motion was

granted. A Judgment as to Possession Only was en-

tered in favor of the United States. This was affirmed

by the Court of Appeals in an interlocutory appeal.

—4—

ARGUMENT

The conflicting claims of this case are a) that of the

United States that the lands in question are part of the

undisposed public domain and b) that of Petitioners that

the lands were or are part of the sovereign lands of the

State of California. — |

The = question presented on appeal, and thus on

certiorari, is whether a genuine issue of fact exists

which would preclude the granting of a motion for sum-

mary judgment. As an adjunct, and among other

issues of law, are’ two questions involving the in-

terests of the State of California; 1) whether Califor-

nia claims sovereign non-tidal lands to the low or high

water mark, and 2) whether private parties can acquire

title to such sovereign/.lands by adverse possession.

Both questions involve hes law. The latter question

_was never raised in the District Court. The former

question is of practical importance since the Petitioners

do not seriously contend, if at all, that the lands in

question lie below the low-water mark of the Colorado

River. The Court of Appeals held that California claims

only to the low-water mark on non-tidal navigable —

waters, and in any event adverse possession does not

run against such sovereign lands under California law.

Respondent State of California contends that the

Court answered both questions correctly.

woeifhicas

I

California’s Ownership of the Bed of the Colorado

River Extends to the Low-Water Mark

The State of California, in its sovereign capacity, is

the owner of all tide lands and beds of navigable water-

ways within its boundaries. Pollard’s Lessee v. Hagan,

44 U.S. (3 How.) 212, 229, 11 L. Ed. 565 (1845);

Shively v. Bowlby, 152 U.S. 3; 43, 14 S. Ct. 548

(1894) ; Hardin v. Jordan, 140 U.S. 371, 383, 11 S. Ct.

~ 808 (1891). 7

The Colorado River, below Black C nyon, is a navi-

gable river (Arizona v. California, 283 U.S. 423, 453, 51

S. Ct. 522 (1931).) The west half of the river from the

thirty-fifth parallel to the boundary of Mexico is within

the boundaries of the State of California (Calif. Const.

Art. XXI; Act of Admission, 9 Stats. 452), and was

thus owned by California upon admission in 1850. This

ownership moved as the river moved naturally and

gradually, and conversely, if the change in the bed of the

river was caused by an avulsion or suddenly, the State’s

ownership remained in the former bed. St. Louis v. Rutz,

138 U.S. 226, 245, 11 S. Ct. 337 (1891); County of.

St. Clair v. Lovingston, 90 U.S. (23 Wall.) 46, 66, 68,

23 L. Ed. 59 (1874). :

As the owner of the beds of navigable waterways,

each state has the option, as a matter of state law,

whether to claim ownership to the high-water mark,

the low-water mark, or allow the adjoining property-

1Petitioners in their Statement of the Case and Argument state

that the lands in question were part of the bed of the Colorado

River in 1850. Respondent does not concede this, but contends

it is legally immaterial, the true question being the location of the

lands in relation to the bed of the river in its last natural position

or, if still in a state of nature, its position today.

“aa

owner to own to the middle of the streams. Hardin v.

Jordan, supra, 140 U.S. 371, 382, 11 S.Ct. 808 (1891);

Packer v. Bird, 137 U.S. 661, 669-70, 11 S. Ct. 210

(1891); Barney v. Keokuk, 94 U.S. 324, 337, 24 L.

Ed. 224 (1876). |

The State of California, pursuant to this option, has

clearly declared that as to lands covered by tidewater,

the State takes to the high-water mark, and on non-

tidal navigable waterways, the State takes to the low-

water mark. Calif. Civ. Code §§ 670, 830; Calif. Code

Civ. Proc. § 2077 (5). Craig v. White, 187 Cal. 489,

491-92; 202 Pac. 648 (1921); Anderson v. Trotter, 213

Cal. 414, 421, 2 P. 2d 373 (1931); Foss v. Johnstone,

158 Cal. 119, 127; 110 Pac. 294 (1910); City of Los

Angeles v. Aitken, 10 Cal. App. 2d 460, 52 P. 2d 584

(1935); Crews v. Johnson, 202 Cal. App. 2d 256, 258;

21 Cal. Rptr. 2d 37 (1962).

The Court of Appeals correctly ruled as a matter of

California, law that California claims the bed of the west

half of the Colorado River only to the low water mark.

II

Under California Law, Title to Sovereign Lands

Cannot Be Acquired by Adverse Possession

a

As the Court of Appeals aptly stated, “In some mys-

terious manner, not disclosed by the record, they [peti-

'tioners] claim title from California.” (App. to Ptn. p.

3.) Assuming, for the.sake of argument, that the

lands in question were owned by California as sovereign

riverbed land, title could only have devolved on petition-

ers in one of two theoretical ways: a grant or patent

from the State, or by adverse possession. No grant or

patent has been produced. Similarly, title to sovereign

sila

lands, under California law, may not be acquired by ad-

verse possession. .

Lands beneath navigable waters, as well as tide and

submerged lands, which are owned. by a state, are

owned in their sovereign capacity. Pollard’s Lessee v.

Hagan, 44 U.Sa(3 How.) 212, 229; 11 L. Ed. 565

(1845). In turn, these lands are held by the State in

trust for purposes of commerce, navigation and fish-

— eries. Illinois Central R.R. Co. v. Illinois, 146 U.S. 387,

452-54 (1892); Colberg, Inc. v. State of California, ex

rel. Dept. Pub. Wks., 67 Cal. 2d 408, 416 (1967). As

‘such, they come within the rule of California law that

land owned by the State which is dedicated or held for

public use is not subject to loss by adverse possession.

People v. Chambers, 37 Cal. 2d 552, 556-57, 233 P. 2d

557 (1951); City of Oakland v. Burns, 46 Cal. 2d 401,

406-07, 296 P. 2d 333 -(1958).. This rule has been

applied numerous times by California courts to sovereign |

lands. People v. Kerber, 152 Cal. 731, 733-34, 93 Pac.

878 (1908) ; City of Los Angeles v. Anderson, 206 Cal.

662, 668, 275 Pac. 789 (1929) (actual and reclaimed

tidelands) ; Patton v. City of Los Angeles, 169 Cal. 521,

147 Pac. 141 (1915) (filled tidelands) ; People v. Ban-

ning Co., 167 Cal. 643, 649-50, 140 Pac. 587 (1914)

(tidelands as distinguished from swamp and overflowed

lands acquired by grant from the United States and

held for sale by the State); Cimpher v. City of Oak- —

land, 162 Cal. 87, 90, 121 Pac. 374 ( 1912) (tidelands) ;

City of Oakland v. Wheeler, 34 Cal. App. 442, 454, 168 .

Pac. 23 (1917) (tidelands).

Thus, again, the Court of Appeals correctly ruled that

the title to lands in question was not derived from the

State of California.

EE

od

Conclusion:

The dispute in this matter isftruly whether petitioners

own or afe-entitled to remain on a portion of the Fed-.

eral public domain. The resolution of the question is of

no official concern to the State of. California. As to the

questions relating to the: State’s interest, the Court of.

Appeals correctly decided these, and it is respectfully

submitted that the petition for a writ of certiorari

should be denied as to those questions.

oe

Respectfully submitted,

Tuomas C. LYNcH,

e Attorney General,

Jay L. SHAVELSON,

Assistant Attorney General,

~ 'WarrEN J. ABBOTT,

Deputy Attorney General,

Attorneys for Respondent The State of

California. |

January 1970