Opposition Brief — Farquhar v. City of Manhattan Beach

OCTOBER TERM, 1996

JOHN P. FARQUHAR, et al.,

Petitioners,

CITY OF MANHATTAN BEACH, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA SUPREME COURT

JOINT BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

DEAN E, DENNIS

Counsel of Record

for Respondent,

Atchison, Topeka and Santa Fe

Railway Company

HILL, FARRER & BURRILL, LLP

445 S. Figueroa Street, 35th Floor

Los Angeles, California 9007}

(213) 629-0460

WILLIAM M. BITTING

BENJAMIN B. SALVATY

HILL, FARRER & BURRILL, LLP

MARCUS M. KAUFMAN

P.O. Box 5808

Newport Beach, California 92658

(714) 721-8061

MICHAEL M. BERGER

Counsel of Record

for Respondent,

City of Manhattan Beach

BERGER & NORTON

1620 26th Street, Suite 200 South

Santa Monica, California 90404

(310) 449-1000

RICHARD D. NORTON

EDWARD G. BURG

BERGER & NORTON

ROBERT V. WADDEN, JR.

City Attorney

1400 Highland Avenue

Manhattan Beach, California 90266

(310) 545-5621

Lawyers Brief Service « Appellate Brief Printers * (213) 613-1013 « (714) 720-1510

on~

WiA

\ YK

o ee

QUESTIONS PRESENTED

1. When a state supreme court examines its own

contract and property law to interpret a 19th century

deed between its citizens for property within its borders,

is any federal question presented for this Court to

review?

2. When a Petitioner charges that a state supreme

court has abused its own processes in order to avoid

enforcing an asserted federal constitutional right, must

the Petitioner demonstrate that it has raised and argued a

federal constitutional issue? Does the fact that not one

of the briefs filed by the Petitioner — including the

Petition for Rehearing below — or the opinions rendered

by the state courts raises any federal issues or even cites

a provision of the United States Constitution belie this

regrettable charge?

a

PARTIES TO THE PROCEEDING

Respondents are the City of Manhattan Beach, a

municipal corporation, and Atchison, Topeka and Santa

Fe Railway Company.

RULE 29.1 STATEMENT

1. The City of Manhattan Beach has no parent or

subsidiary companies.

2. Santa Fe Parent Companies and Nonwholly

Owned Subsidiaries:

Burlington Northern Santa Fe Corporation,

Burlington Northern, Inc.,

Santa Fe Pacific Corporation

Almeda Belt Line

The Belt Railway Company of Chicago

Central California Traction Company

Houston Belt & Terminal Railway

Kansas City Terminal Railway Company

The Oakland Terminal Railway

St. Joseph Terminal Railway Company

Sunset Railway Company

Texas City Terminal Railway Company

TTX Company

The Wichita Union Terminal Railway Company

- iii -

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDING,

RULE 29.1 STATEMENT

LIST OF APPENDICES

TABLE OF AUTHORITIES

ABSENCE OF JURISDICTION

CONSTITUTIONAL PROVISIONS

WERE NEITHER RAISED,

BRIEFED, NOR DISCUSSED

BY THE CALIFORNIA COURTS

OR PETITIONERS

STATEMENT OF THE CASE

Page

il

vi

= i¥ -

REASONS FOR DENIAL OF

THE PETITION

ABSTRACT LEGAL PROPOSI-

TIONS DON’T DECIDE CASES

A

The Decision is Wholly Consistent

With Prior California Law

B

Bashing Respected Retired Jurists

is Improper

THIS COURT’S JURISDICTION

IS PROPERLY RESERVED FOR

CASES RAISING SIGNIFICANT

FEDERAL QUESTIONS

CONCLUSION

Page

10

12

16

a a

:

-V-

LIST OF APPENDICES

APPENDIX 1

FROM PETITIONERS’ BRIEF IN THE

COURT OF APPEAL

APPENDIX 2

FROM PETITIONERS’ FIRST ANSWER

TO PETITION FOR REVIEW IN THE

CALIFORNIA SUPREME COURT

APPENDIX 3

FROM PETITIONERS’ SECOND AN-

SWER TO PETITION FOR REVIEW IN

THE CALIFORNIA SUPREME COURT

APPENDIX 4

FROM PETITIONERS’ BRIEF ON

THE MERITS IN THE CALIFORNIA

SUPREME COURT

APPENDIX 5

FROM PETITIONERS’ PETITION FOR

REHEARING IN THE CALIFORNIA

SUPREME COURT

- Vi -

TABLE OF AUTHORITIES

Page

Cases

Basin Oil Co. v. City of Inglewood,

125 Cal.App.2d 661 (1954) 8,9

Beecher v. Alabama,

389 U.S. 35 (1967) 14

Brinkerhoff-Faris Trust & Sav. Co. v. Hill,

281 U.S. 673 (1930) 14

Broad R.P. Co. v. South Carolina ex rel. Daniel,

281 U.S. 537 (1930) 9,13

Delaware v. Prouse,

440 U.S. 648 (1979) 14

Demorest v. City Bank Farmers T. Co..

321 U.S. 36 (1944) 15

East Alabama R. Co. v. Doe,

114 U.S. 340 (1885) 3

Enterprise Irr. Dist. v. Farmers Mut. Canal Co.,

243 U.S. 157 (1917) 14

Fox River Paper Co. v. Railroad Commn.,

274 U.S. 651 (1927) eS

Graff v. Middleton,

43 Cal. 341 (1872) 6

Henry v. Mississippi,

379 U.S. 443 (1965) 2, 13, 14

- Vii -

Memphis Natural Gas Co. v. Beeler,

315 U.S. 649 (1942)

Michigan v. Long,

463 U.S. 1032 (1983)

Pacific Gas & Elec. Co. v. G.W.

Thomas Drayage & Rigging Co., Inc.,

69 Cal.2d 33 (1968)

Patterson v. Colorado ex rel. Atty. Gen.,

205 U.S. 454 (1907)

Street v. New York,

394 U.S. 576 (1969)

Sullivan v. Davis,

4 Cal. 291 (1854)

Swan v. O'Leary,

225 P.2d 199 (Wn. 1950)

Tidal Oil Co. v. Flanagan,

263 U.S. 444 (1924)

Statutes

California Civil Code

§ 1066

§ 1105

§ 1636

§ 1647

Page

12, 13

15

12

15

s~s~ ~

- Vill -

Constitution

United States Constitution

Fifth Amendment

Fourteenth Amendment

Publications

Lincoln, Notes For A Law Lecture,

2 The Collected Works of Abraham

Lincoln 81 (Rutgers 1953)

2 Miller & Starr, California Real Estate 2d,

Deeds § 6:12 (2d ed. 1989)

Page

WwW WwW

Mmm

10

No. 96-477

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1996

JOHN P. FARQUHAR, et al.

Petitioners,

VS.

CITY OF MANHATTAN BEACH, et al.,

Respondents.

JOINT BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

ABSENCE OF JURISDICTION

This is a pure state law title and contract interpreta-

tion case. It always has been. It involves the 1888 deed

to a railroad right-of-way. All of the state court litiga-

tion was focussed on the state law issues of:

@ What interest was transferred by that deed?

@ To whom was it transferred?

@ Who owned the land in 1986?

@ Who owns it now? |

sis

The Petitioners (Claimants) urged that they were the

true successors in interest to the owners of the land that

underlay some Santa Fe Railway tracks. Their claim

was that, under California law, the 1888 deed transferred

only an easement, leaving fee title in their predecessors.

The Respondents (the City and the Railroad or Santa Fe)

countered that, under California law, the quitclaim deed

transferred fee title to the Railroad’s predecessor so that

when Santa Fe sold the property to the City in 1986, that

sale properly vested fee title in the City.

The California Supreme Court held that the language

of the deed was ambiguous, but that application of famil-

iar and well-settled state rules of contract interpretation

and examination of extrinsic evidence showed that fee

title rather than an easement was transferred to the Rail-

road’s predecessor in 1888. All as a matter of California

law. All without any party raising any issues of federal

law. All without any party even citing any provision of

the United States Constitution.

The Just Compensation Clause, which the Claimants

cite as their jurisdictional entre, played absolutely no

part in this case other than to provide a potential remedy

at the pleading stage in the event the Claimants were

able to prove that they owned the railroad strip. The

essential question, however, of ownership of the prop-

erty was solely one of state law. That is the only issue

that each of the courts below considered. The mere

existence of a federal right to just compensation — if

ownership is proven — does not create a substantial

federal question or confer upon this Court jurisdiction

over the state law title issues.

It would thus appear that this Court has no jurisdic-

tion to review these state court determinations of state

law issues (e.g., Henry v. Mississippi, 379 U.S. 443, 446

oe

[1965]), and the Petition concedes as much (Pet., p. 12).

The matter should end there.

CONSTITUTIONAL PROVISIONS WERE

NEITHER RAISED, BRIEFED, NOR DIS-

CUSSED BY THE CALIFORNIA COURTS

OR PETITIONERS

The Petitioners’ quotation of the Fifth and Fourteenth

Amendments (Pet., p. 3) marks the first mention of those

provisions in the appellate briefing of this case. At-

tached as Appendices 1-5 are the tables of authorities

from the briefs filed by the Petitioners in the California

Court of Appeal and the California Supreme Court —

including the Petition for Rehearing in the California

Supreme Court (App. 5), where one could have expected

the supposed issue of evasion of the Fifth and Fourteenth

Amendments to have been raised if the Petitioners were

serious about it. Instead, the Petitioners’ arguments at

all stages have been targeted wholly on state law con-

tract and deed interpretation issues.

Neither the California Superior Court, nor the Califor-

nia Court of Appeal, nor the California Supreme Court

made any reference to the United States Constitution or

any question of federal law. (Pet., Appendices A, C, E.)

As the Superior Court and Court of Appeal ruled in

favor of the Petitioners, one presumes the Petitioners are

not charging those courts with using state law to evade

federal constitutional issues. The California Supreme

' The one decision of this Court ever referred to by the Petitioners

(East Alabama R. Co. v. Doe, 114 U.S. 340 [1885]) was a decision

dealing with the meaning of the term “right-of-way” under Alabama

property law and had nothing to do with any federal constitutional

issues.

Court — which necessarily has plenary power to deter-

mine the content and application of California law —

viewed the case in the same light as the courts below it:

as a pure matter of California contract and property law.

STATEMENT OF THE CASE

The facts of this case are amply set forth in the deci-

sion of the California Supreme Court attached as Appen-

dix A to the Petition. There is thus no need to burden

this Court with another exhaustive examination of events

that transpired more than a century ago in a far corner of

the nation. It suffices to note that the California

Supreme Court applied settled local precepts of contract,

property, and conveyancing law to those facts and deter-

mined that Santa Fe acquired fee title to the land beneath

its tracks in 1888 and transferred it to the City 98 years

later to create a linear park and jogging trail through the

center of town. The Claimants dissatisfaction with that

result cannot make a federal case out of it.

REASONS FOR DENIAL OF THE PETITION

There are good reasons why this Court abjures cases

based on state law. One of them is jurisdictional: this

Court does not sit as a court of error to review state

court decisions of state law. A related reason is that

such cases tend to be mired in the legal and factual de-

tails of the locality. This case is a paradigm.

It was treated throughout all the proceedings below —

in all courts and in all contexts — as a matter of the

application of state contract and property law to a deed

executed in 1888.

i=

This is not a case in which the state court held that

there was no property interest under state law that could

qualify for protection under the Fifth and Fourteenth

Amendments, although state courts possess the power to

do so (e.g., Fox River Paper Co. v. Railroad Commn.,

274 U.S. 651, 657 [1927]).° All the California Supreme

Court did was to determine who owned a recognized

property interest —- as a matter of California contract

and conveyancing law. That is California's business.

With respect, it is not the sort of thing with which this

Court needs, or ought, to concern itself, or for which this

Court's jurisdiction was created.

ABSTRACT LEGAL PROPOSITIONS

DON’T DECIDE CASES

The Petition is based on a series of abstract legal

propositions about the jurisdiction of this Court to deter-

mine whether a state court has made it appear that a case

was decided on state grounds merely as a subterfuge to

avoid having to deal with a federal issue and to prevent

this Court from reaching it. There’s nothing wrong with

the propositions. They simply have no application here.

2 Thus, the Petitioners’ discussion of the concept that “this Court

has jurisdiction to revisit a state court decision that an asserted

property right never came into existence ...” (Pet., p. 13) is several

leagues wide of the mark, Those cases deal with whether certain

types of interest qualify as “property,” not whether, as here, the

plaintiff or defendant owns the property.

ails

A

The Decision is Wholly Consistent

With Prior California Law

The Claimants recognize that the existence of an

adequate and independent state ground for the decision

deprives this Court of jurisdiction to review the judg-

ment. (Pet., p. 12.) They have thus sought to convince

this Court that the decision below is not so based. To

that end, they repeatedly take the California Supreme

Court to task for supposedly reaching a decision “con-

trary” to its own earlier decisions (Pet., pp. 2, 13, 14),

going so far as to assert that the court “jettisoned its own

settled rules of construction... .” (Pet., p. 19.)

Not so.

First, the form of the deed. One of the keys to the

decision below was that the parties used a quitclaim

deed to transfer the property. Quitclaim deeds have been

in active use in California since the State’s founding.

Indeed, in one of its earliest decisions, the California

Supreme Court recognized that a quitclaim deed trans-

ferred “all the right and title of the grantor.” (Sullivan v.

Davis, 4 Cal. 291, 292 [1854].) And in the decade be-

fore the Redondo Land Company signed the deed at

issue here, the California Supreme Court noted that

quitclaim deeds “have been in every-day use for the

purpose of transferring title to land ....” (Graff v.

Middleton, 43 Cal. 341, 344 [1872].)

That law has remained constant through the present,

and has always been understood to mean that the

quitclaim form transferred whatever interest in the prop-

erty the grantor owned. This is hornbook law:

a

“A quitclaim deed transfers to the

grantee all of the right, title, and

interest which the grantor had at the

time he executed and delivered the

deed and which is capable of being

conveyed by a deed... . Its sole func-

tion is merely to transfer whatever

interest the grantor had in the de-

scribed property at the time the con-

veyance was made.... The quitclaim

deed transfers whatever interest the

grantor may have in the property,

whether legal or equitable.” (2 Miller

& Starr, California Real Estate 2d,

Deeds § 6:12 at 504-505 [2d ed.

1989]; emphasis added.)

Second, the rules of interpretation. California

deeds are interpreted like other California contracts.

(Cal. Civ. Code § 1066.) The goal of contract interpreta-

tion is to determine and enforce the intent of the parties.

(Pacific Gas & Elec. Co. v. G.W. Thomas Drayage &

Rigging Co., Inc., 69 Cal.2d 33, 38 [1968].) Because the

intent of the contracting parties is the key (Cal. Civ.

Code § 1636), the surrounding circumstances are often

critical to understanding. (Cal. Civ. Code § 1647.)

Where the contract is a deed transferring interests in

real property, there is an overriding consideration which

controls the more general rules of California contract

interpretation:

“A fee simple title is presumed to be

intended to pass by a grant of real

property, unless it appears from the

grant that a lesser estate was in-

tended.” (Cal. Civ. Code § 1105; see

<8

Basin Oil Co. v. City of Inglewood,

125 Cal.App.2d 661, 664 [1954].)

Here, the California Supreme Court hewed to those

standards, giving its full attention to determining the

intent of the Redondo Land Company in 1888. When the

words of the deed failed to provide clarity, extrinsic

evidence was consulted:

“Having canvassed the four corners

of the deed, we end our search frustrat-

ingly little more informed of the

parties’ intention than we _ began.

Judging by the terms ‘remise, release

and quit-claim’ and ‘right of way,’ the

grantor appears to have intended at

one and the same time to convey to

the railway the entire fee estate and a

limited interest confined to an ease-

ment for railroad purposes. The re-

mainder of the language is equally

ambiguous, both supporting and con-

tradicting one or the other conclusion.

We thus turn to extrinsic evidence in

the hope of enlightenment.” (Pet.,

Appendix A, p. A 20.)

That approach is wholly in line with established

California practice.

Third, right-of-way deeds. Although the Claimants

cleave to their theory that earlier California cases held

that rights-of-way are usually easements, and that the

case law from virtually all other jurisdictions holds the

same (Pet., pp. 16-17), the California Supreme Court’s

extensive analysis of the issue justified. the conclusion it

borrowed from the Washington Supreme Court:

co

“The authorities are in hopeless con-

flict. They cannot be reconciled ....

About the only common ground that

can be found [in the right-of-way

decisions from around the country] is

that the intention of the parties to the

conveyance is of paramount impor-

tance and must ultimately prevail in a

given case.” (Pet., Appendix A, p. A

13, fn. 8; quoting with approval from

Swan v. O'Leary, 225 P.2d 199, 200

(Wn. 1950].)°

California right-of-way decisions have historically

sought to determine the intent of the parties. As one of

them put it, “we cannot overlook the fact that if the

grantors really intended to convey only an easement,

they could have easily so expressed that purpose.”

(Basin Oil Co. v. City of Inglewood, 125 Cal.App.2d

661, 666 [1954].)

The decision below is in harmony with the general,

historical approach.

3 Im their criticism of the California Supreme Court’s conclusion

that the authorities are in “hopeless conflict,” it is noteworthy that

the Claimants omit the fact that the court was quoting the conclusion

of the Supreme Court of another state that had reached that conclu-

sion several decades earlier, and they also omit the reasons why both

the California and Washington Supreme Courts reached that conclu-

sion: it’s the facts. Each case turns on its own. There simply are no

generic rules for right-of-way deeds. The Claimants may believe

that to be unwise, but it’s not unconstitutional. (Compare Broad

R.P. Co. v. South Carolina ex rel. Daniel, 281 U.S. 537, 541 [1930]

[“this court will not inquire whether the rule applied by the state

court is right or wrong, OF substitute its own view of what should be

deemed the better rule for that of the state court.”])

ee)

Bashing Respected Retired Jurists is Improper

In what can only be described as a virtual tantrum, the

Claimants urge that the author of the opinion below had

it in for them for some reason and twisted the law (with

the complicity of three of his colleagues) to eviscerate

their federal rights (without ever mentioning them).

(Pet., pp. 11, 19, 23, 25-27.)

But if Justice Arabian expressed concern at oral argu-

ment about people who foment litigation and convince

those who would otherwise not have been in court to file

lawsuits, he was doing no more than following the ad-

vice of Abraham Lincoln who admonished:

“Never stir up litigation. A worse

man can scarcely be found than one

who does this. Who can be more-

nearly a fiend than he who habitually

overhauled the register of deeds in

search of defects in titles, whereon to

stir up strife, and put money in his

pocket?” (Lincoln, Notes For A Law

Lecture, 2 The Collected Works of

Abraham Lincoln 81 [Rutgers 1953].)

The Claimants’ effort to cast aspersions on the subjec-

tive motivation of the majority of the court below based

on a few questions by one of its members is beyond the

pale. This Court — perhaps more than any other — is

familiar with the intensity of questioning that can occur

at oral argument. There is no excuse for the Claimants’

charge. It would have better been left on the cutting

room floor. Were this Court to entertain such

SE ae

challenges, one quails at the thought of the impact on the

incoming load of Petitions for Writ of Certiorari.

First. There is nothing in the record of this case to

give rise to any due process concerns or issues of eva-

sion of constitutional rights. This case was tried,

decided, and appealed on the basis of California contract

and property law. That’s where everyone’s focus was.

That the decision went against the Claimants is no ex-

cuse for their charges of judicial misconduct.

Second. The Claimants sought a rehearing below and

took advantage of the fortuitous retirement of the author

of the opinion in this case and the former Chief Justice

(also a member of the majority below) to openly plead

with their replacements for either of them to join with

the dissenters and decide the case in their favor. Neither

of the new Justices would do so. Rehearing was denied.

Third, and most importantly. In their Petition for

Rehearing, the Claimants did not voice any concern that

their federal constitutional rights had been surrep-

titiously violated through the pretext of deciding a ques-

tion of state law. In fact, as Appendix 5 shows, the

Claimants failed so much as to cite any provision of the

U.S. (or even California) Constitution. Plainly, the

argument is a make-weight concocted belatedly to give

some color to this petition which simply presents no

federal issues.

oe

THIS COURT’S JURISDICTION IS PROP-

ERLY RESERVED FOR CASES RAISING

SIGNIFICANT FEDERAL QUESTIONS

The party seeking certiorari has the burden to demon-

strate this Court’s jurisdiction. (Memphis Natural Gas

Co. v. Beeler, 315 U.S. 649, 651 [1942].) The Claimants

have not done that.

First, no constitutional issue raised or decided

below. The opinions below fail even to mention the

constitution. The decisions deal with state law — of

contract and property conveyancing. (Pet., App., A, C.)

Where no constitutional issues are decided by the state

court, the petitioner must demonstrate that a federal

constitutional question was properly raised. (Street v.

New York, 394 U.S. 576, 582 [1969].)

Lacking any constitutional decision below, one is left

to determine whether a federal issue was raised. There

is no showing that one was raised, and the briefs filed

below belie it. Attached to this brief as Appendices 1-5

are the tables of authorities filed by the Claimants

below. In none is there even a citation to the U.S. Con-

stitution. Even in the Petition for Rehearing in the

California Supreme Court, the Claimants failed to men-

tion the constitution. They merely rehashed their re-

jected arguments about state contract and property law

and unblushingly asked the two newest Associate Jus-

tices to vote contrary to the way that Associate Justice

Arabian and Chief Justice Lucas had voted on this case

before their retirement. If a constitutional issue was

created by the California Supreme Court’s decision, that

was surely the time to raise it.

Second, adequate nonfederal grounds. When a

state court decides a case on either a sole issue of state

law or an alternative issue of state law, this Court has no

ae

jurisdiction to review that decision as long as the state

law determination is adequate and independent of the

federal issue. (Broad R. P. Co. v. South Carolina ex rel.

Daniel, 281 U.S. 537, 540-541 [1930]; Michigan v.

Long, 463 U.S. 1032, 1037 {1983].) When the state

court decides the case on substantive, rather than proce-

dural, grounds, this Court’s lack of jurisdiction is even

more plain. (Henry v. Mississippi, 379 U.S. 443, 446

[1965].)

Here, the nonfederal grounds are not merely the domi-

nant thing, they are the only thing. The state courts

decided what sort of property interest was transferred by

a deed executed and performed in California, and they

interpreted an unclear deed in light of actions done in

California contemporaneously with the deed — actions

that included two turn-of-the-century proceedings in the

California Superior Court. Based on that, the court

decided who owned the property. How to interpret an

unclear deed is a classic state law issue.

Third, no subterfuge to evade the U.S. Constitu-

tion. Although lacking any evidence in this case to

support the plea, the Claimants have discovered a series

of cases in which this Court has exercised jurisdiction to

determine whether an ostensible state law ground of

decision was merely a smokescreen for evading the

protection of a federal constitutional right. (E.g.,

Michigan v. Long, 463 U.S. 1032, 1037 [1983].)*

But the kinds of cases in which this Court examines

state law decisions have historically fallen into recog-

nizable categories: (1) cases in which the state court

clearly relied on the federal ground even though it could

4 Even when engaging in such an examination, this Court generally

defers to state court interpretations of state law. (E.g., Memphis

Natural Gas Co. v. Beeler, 315 U.S. 649, 654-655 [1942].)

ey

have relied on the state ground (Beecher v. Alabama,

389 U.S. 35 [1967]); (2) cases in which the state court

interpreted state law in light of what it believed to be a

controlling precept of federal law (Delaware v. Prouse,

440 U.S. 648 [1979]); (3) cases in which the federal

ground and the nonfederal ground are so interwoven that

the state law issue is not independent (Enterprise Irr.

Dist. v. Farmers Mut. Canal Co., 243 U.S. 157 [1917]);

and (4) cases in which state procedures have prevented

the raising of a federal issue and the state procedures fail

to serve a legitimate state interest (Henry v. Mississippi,

379 U.S. 443 [1965]).

This case is none of the above. It deals with state law

of conveyancing. Here, the state courts decided who

transferred what property interest as a. matter of state

law.

The contrast, for example, with Michigan v. Long,

463 U.S. 1032, 1037 (1983) is stark. There, this Court

noted that “[t]he court below referred twice to the State

Constitution in its opinion, but otherwise relied exclu-

sively on federal law.” In that context, this Court could

conclude that the state ground was plainly not “adequate

and independent” enough to sustain the judgment. (463

U.S. at 1043-1044.) Here, however, none of the courts

below even mentioned any federal law (Pet., Appendices

A, C, E), nor did any of the Claimants’ own briefs

(Appendices 1-5 hereto). Plainly, this is not a case in

which state law was some sort of smokescreen to avoid

dealing with properly raised federal issues.

Even if the Claimants were correct (which they are

not) that the California Supreme Court changed the law

in this case, that would not present a federal constitu-

tional issue. This Court has repeatedly so held:

Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S.

673, 681, fn. 8 (1930) [“State courts, like this court, may

£18

ordinarily overrule their own decisions without offend-

ing constitutional guaranties, even though parties may

have acted to their prejudice on the faith of the earlier

decisions.”]; Fox River Paper Co. v. Railroad Commn.,

274 U.S. 651, 657 (1927) [“We are not concerned with

the correctness of the rule adopted by the state court, its

conformity to authority, or its consistency with related

legal doctrine.”]; Demorest v. City Bank Farmers T. Co.,

321 U.S. 36, 49 (1944) (Douglas, J., concurring) [“That

is a question of New York law on which the New York

court has the final say. It is none of our business —

whether we deem that interpretation to be reasonable or

unreasonable, sound or erroneous.”]; Tidal Oil Co. v.

Flanagan, 263 U.S. 444, 450 (1924) [“... the mere fact

that the state court reversed a former decision, to the

prejudice of one party, does not take away his property

without due process of law.”]; Patterson v. Colorado ex

rel. Atty. Gen., 205 U.S. 454, 461 (1907) [“There is no

constitutional right to have all general propositions of

law once adopted remain unchanged. Even if it be true

_ that the supreme court of Colorado departed from

earlier and well-established precedents to meet the ex-

igencies of this case, whatever might be thought of the

justice or wisdom of such a step, the Constitution of the

United States is not infringed.”}.

In short, this Court is not a court of error. The Claim-

ants have done no more than reargue their state law

submission along with a plea that this Court reach a

different decision on no better a basis than their partisan,

subjective surmise as to the motivation of the author of

the opinion below.

re’ ys

CONCLUSION

For all the fervor displayed in the Petition for Writ of

Certiorari, the issues in this case do not even begin to

give rise to a federal, much less a constitutional, ques-

tion. The Petition presents only a state law issue, and in

the end quarrels with the California Supreme Court's

exercise of its prerogative in construing state conveyanc-

ing law.

Respondents pray that the Petition be denied.

DATED: October 25, 1996.

Respectfully submitted,

Dean E. Dennis Michael M. Berger

Counsel of Record Counsel of Record

for Respondent for Respondent

Atchison, Topeka and City of Manhattan Beach

Santa Fe Railway Company

William M. Bitting Richard D. Norton

Benjamin B. Salvaty Edward G. Burg

Hill, Farrer & Burrill, LLP Berger & Norton

Marcus M. Kaufman Robert V. Wadden, Jr.

City Attorney

APPENDIX 1

FROM PETITIONERS’ BRIEF IN

THE COURT OF APPEAL

TABLE OF AUTHORITIES

Page

Cases

Abercrombie v. Simmons (1905)

71 Kan. 538, 541-47, 81 P. 208, 210-211 ... .14

Adoption of Matthew B. (1991)

52 Cal.Apeo.od 1236, 1267n.16 ........ 3

Allen v. Hall (1903)

a, Se I he OS ak ale os Kew 26

Atlantic Coast Line R. Co. v. Duval County (1934)

Li4 Pee, 2G SOG, Lae Oe. SSL, Sad. oN ek ws 17

Breidert v. Southern Pacific Co. (1964)

em Ga se elk ae whee 45

Bridgestone/Firestone, Inc. v.

Superior Court (1992)

pae eek Ne 8 ere ero 5

Brown v. Penn Central Corp. (Ind. 1987)

See i eR ae Clk ee el SS 15, 17

Casey v. Leggett (1899)

See eng OD ho Gk otk A etek ee Se 39

Cash v. Southern Pacific R.R. Co. (1981)

bade RS ge Se ern ere 38

Cincinnati, I., St. L. & C. Ry. Co. v. Geisel (1889)

aye) Mee Re 8 Rey Pear 25

City of Eunice v. Sunland Properties, Inc.

(La.App. 1992) 597 So.2d 1198, 1201 ...... 15

Fah ee,

Pe ee te Aree

mm

Page

Concord & Bay Point Land Co. v.

City of Concord (1991) ...... 3, 14, 18, 20, 22

229 Cal.App.3d 289, 297-298 ...... 24, 31, 43

Coon v. Sonoma Magnesite Co. (1920)

132 Cal, SP Oe aa a ea a 14

Crum v. Butler (Miss. 1992)

601 30.20 $34, 83636 oS Se we 17

East Alabama Railroad Co. v. Doe (1885)

114 U.S. 340, 349-51 [29 L.Ed. 136,

139-40, 5 3.04, BOS, Siottaee oc are st ek 14

Estate of Lynch (1978)

QS Cu Ag6 38 2s Se ee 4

Estate of Rockafellow v. Lihs

(Iowa App. 1992)

496 We fees tae) 6a a ea we tae

Eureka Teachers Assn. v. Board

of Education (1988)

199 COL AMD SE Gods MOR oe sk eae aca ee 48

G.M. Morris Boat Co., Inc. v. Bishop

(Mo.App. 1982) 631 S.W.2d 84, 87-88. ..... 25

Gerhard v. Stephens (1968)

OS Cal. 24-066, FIG-PiI9.. i eke 4,47

Highland Realty Co. v. City of

San Rafael (1956) 13, 16-18, 21-23

6 CALE SOP So oS BSNS 28, 29, 34, 37

- iii -

Imen v. Glassford (1988)

201 Cal.App.3d 898, CRTC SS Pea ae ter 42

- Johnson v. Ocean Shore Railroad

Company (1971)

16 Cal.App.3d 429, 433... ----:-: 14, 22, 28

Keystone Bituminous Coal Assn. v.

DeBenedictis (1987) 480 U.S. 470,

488, n.18 [94 L.Ed.2d 472, 490 n. 18,

107 S.Ct. 1232, 1243 n.18).. 2... eee eee 45

Krueger v. Superior Court (1979)

89 Cal.App.3d 934,939... .-- +s sees 5

Loretto v. Teleprompter Manhattan

CATV Corp. (1982) 458 U.S. 419,

435-438 [73 L.Ed.2d 868, 882-84,

102 S.Ct. 3164, 3178-77] ..-- eee ees 45

Macerich Real Estate Co. v. City of Ames

(Iowa 1988) 433 N.W.2d 726, c, wok ae 15, 17

Machado v. Southern Pacific

Transportation Co. ( 1991)

233 Cal.App.3d 347, 355-56. . . 14, 18, 22, 30, 31

Mallett v. Superior Court (1992)

6 Cal.App.4th 1853 ....--- +e eee 5

Moakley v. Los Angeles Pacific

Railway Co. (1934)

139 Cal.App.421 ...-- +--+ ee: 17, 30, 37

= iV ~

Page

Moody v. Butler (1885)

GS TON. SIG Bleeds so Ras Ace es 26

Napa Valley Wine Train, Inc. v. Public

Utilities Commission (1990)

SO RRL SPCR RIE ica Fe a 12

Niederer v. Ferreira (1987)

IG? Cal AneoG 146A 1510) bio S wot ices 48

Ocean Shore Railroad Co. v. Doelger (1954)

LS? COAG Sree SO sk Ae Se Ae 14, 19

Pacific Iron Works v. Bryant Lumber &

Shingle Mill Co. (1910)

60 Wash. 502, 505-06, 111 P.578,579 ..... 25

Parsons v. Bristol Development Co. (1965)

G2 Cauca OR! See ook oon a ee eS 32

Penn Central Corp. v. U.S. Railroad

Vest Corp. (7th Cir. 1992)

POF Oe RA GOs CAOE e565 oe ee oe re a8 15

People v. Ocean Shore Railroad, Inc. (1948)

32 COLE GOR, GER i a Es 16, 23, 44

People v. Thompson (1954)

RP CASE 3S BE i Ba BeOS eR Oe RE 16

Presault v. ICC (1990)

494 U.S. 1, 11-14 [108 L.Ed.2d 1, |

boi, BEG BAA O86, Balaee 6 6 ew 10

Ullery v. County of Contra Costa (1988)

202 Cal.App.3d 562,568. ..-.--++-+>:

Veach v. Culp (1979)

92 Wash.2d 570, 599 P.2d526.......--.

Warren v. Atchison, Topeka & Santa Fe

Railway Co. (1971)

19 Cal.App.3d 24,35 ....-- + ee ees

White v. McGilliard (1903)

140 Cal. 634, 654-53. 6 ck es

Winchell v. Lambert (1956)

146 Cal.App.2d 575,579. ..--- +++:

Yox v. City of Whittier (1986)

182 Cal.App.3d 347, 352. ..---+-+:+::

Statutes

is Tae Se SS aie Ace 8 8k eee

Oe Ce OR i a ee oe we

Civ. Code, § 880.020... ett tt ees

Civ. Code, § 885.010... . 2. - eee eee ees

Civ. Code, $ 887.010... 2-2 - eee ete

Civ, Code, 6 1ORS big ccs we eae et ts

ie: Cite © Se oo oko eee we

i: Ch BAe ink as Re Ket ce

tu Come S FIGS uk ce 6.0, 4c ee 8

Code of Civil Procedure Section 1036 ......

Page

Publications

4 Witkin, Summary of Cal. Law (9th ed. 1987)

Real Property, §§ 137 and 138 ......... 26

5 Miller & Starr, California Real Estate

(2d ed. 1992) Easements, §15.1 ......... 21

5 Miller & Starr, California Real Estate Law

(2d ed. 1992) Easements, §15:5,p.401 ..... 29

7 Witkin, Cal. Procedure (3d ed. 1985)

SMGmERU, BS SDL Ee ge ok ye ace ce ste 42

23 AmJur 2d, Deeds, § 339,p.299.......... 26

A (dS SOOGE OS FPR POR ew eae Rw 25

28 Cal.Jur.3d Easements and Licenses,

SD Sic Re SOs ak UK, Se 29

28 Cal.Jur.3d, Railroads, § 66,p.557......... 45

GS AIF. 3G, RROORE, OTS tR sk es ck ee 17

Annot., Deed to Railroad Company As

Conveying Fee Or Easement (1966)

6 A.L.R.3d 973 and later cases

(PRs WORN Tg SG ae A ce 16

Condemnation Pract. in Cal. (Cont.Ed.Bar

supp. 1993) Peuise Uee, $6.4. Sw 46

- Vii -

Page

Eisenberg, Horvitz & Wiener, Cal. Prac.

Guide: Civil Appeals And Writs

(The Rutter Group 1992) { 15: 153, p.

15-38.3 through p. 15-38.4. ...--- sees 5

Eisenberg, Horvitz & Wiener, Cal. Prac.

Guide: Civil Appeals And Writs

(The Rutter Group 1992)

q 8.67-8.68, p. 8-21... 2. eee ees 32

Eisenberg, Horvitz & Wiener, Cal. Prac.

Guide: Civil Appeals And Writs

(The Rutter Group 1992) 8.64, p.8-20..... 32

APPENDIX 2

FROM PETITIONERS’ FIRST ANSWER

TO PETITION FOR REVIEW IN THE

CALIFORNIA SUPREME COURT

TABLE OF AUTHORITIES

Cases

Baker v. Burbank-Glendale-Pasadena

Airport (1985) 39 Cal.3d 862,867.....

Breidert v. Southern Pacific Co. (1964)

ef eee See a ee

Keystone Bituminous Coal Assn. v.

DeBenedictis (1987) 480 U.S. 470,

488, fn.18 [94 L.Ed.2d 472, 490 fn. 18;

phe >. Me of OR) eee

Loretto v. Teleprompter Manhattan

CATV Corp. (1982)

458 U.S. 419, 435-438 [73 L.Ed.2d 868,

882-84; 102 S.Ct. 3164, 3175-77]... ..

People ex rel. Dept. of Transportation v.

Diversified Properties Co. III (1993)

4 Cal.App.4th 429,443 ..........

Presault v. ICC (1990)

494 U.S. 1, 11-14 [108 L.Ed.2d 1,

Me Bete Bo A 4 yO Se

Statutes

Cal. Rules of Court, rule 28 (e)(5) .......

SS ck a A Sig ee a

Page

ye

Page

Publications

5 Witkin, Summary of Law, (9th ed. 1987)

Sy ee a Ka EE oe Oe eee 6

28 Cal.Jr.3d, Ejectment and Related

OG. SE eS eR OO ee 6

53 Cal.Jur.3d, Railroads, § 66,p.557......... 6

wy. & Ee Be eee ye pote 6

APPENDIX 3

FROM PETITIONERS’ SECOND ANSWER

TO PETITION FOR REVIEW IN THE

CALIFORNIA SUPREME COURT

—

TABLE OF AUTHORITIES

Cases i

AIU Insurance Co. v. Superior Court (1990)

Pa TE OER okie a kee Sek Wes

Appeal of the North Beach and Mission

Railroad Company in the Matter of

Widening Kearny Street (1867)

PC SoA ae ee 8 ee oe we

Atlantic Coast Line R. Co. v.

Duval County (1934)

114 Fla. 254, 258; 154 So. 331,332... .

Bay Cities Paving & Grading, Inc. v.

Lawyers’ Mutual Insurance Co. (1993)

ee Ss Pe a eer ae

Bridgestone/Firestone, Inc. v.

Superior Court (1992)

7 Cal.App.4th 1384, 1389n.4.......

Brown v. Penn Central Corp. (Ind. 1987)

RR a ee ree eee ae

Casey v. Leggett (1899)

eo OD : » See eae eee as cra

Cash v Southern Pacific R.R. Co. (1981)

123 Cal.App.3d 974,978..........

Cincinnati, I., St. L. & C. Ry. Co.

v. Geisel (1889)

ao Re eh Se: ee aoe

Page

City of Eunice v. Sunland Properties, Inc.

(La.App. 1992) 597 So.2d 1198, 1201 ...... 11

City of Los Angeles v. Igna (1962)

ae CAL. ADO.28 S38, SUAS = 86 hs Se 20

Concord & Bay Point Land Co. v.

City of Concord (1991)

a6Y UAL ADDOG 40M OPO bic ke Se 18, 24, 25

Coon v. Sonoma Magnesite Co. (1920)

Ss Cee: Bets ek ook eek eee ee 10, 12

East Alabama Railroad Co. v. Doe (1885)

114 U.S. 340, 349-51 [29 L.Ed. 136,

SS Dds ee TOE FG ee ek eee 11

Estate of Lynch (1978)

SS SO AOE BOs 6 Sik pa see a 2

Estate of Rockafellow v. Lihs

(Iowa App. 1992) 494 N.W.2d 734. ....... 23

G.M. Morris Boat Co., Inc v. Bishop

(Mo.App. 1982) 631 S.W.2d 84, 87-88... ... 23

Gerhard v. Stephens (1968)

GS CaL.2e GOS, Pir ee Se oN es 2, 2a, 29

Havemeyer v. Superior Court (1890)

9 CA. Sats ais PRE yoo a eee ee ak 27

Highland Realty Co. v. City of San Rafael (1956)

46 Cal.2d 669,678. .... 7, 10, 12, 14-17, 20, 22

Johnson v. Ocean Shore Rairoad Co. (1971)

16 Cal.App.3d 429,435... 1.1.2.2 22 eee 19

Krueger v. Superior Court (1979)

89 Cal.App.3d 934,939... 5... ee eee 2

Macerich Real Estate Co. v. City of Ames

(Iowa 1988) 433 N.W.2d 726,728. ....... 11

Machado v. Southern Pacific

Transportation Co. (1991)

233 Cal.App.3d 347 ..... 12. 13, 35-17, 19, 25

Mallett v. Superior Court (1992)

GCOLASD.SU ISDS re ec ee 2

Moakley v. Los Angeles Pacific

Railway Co. (1934)

139 Cal.App. 421, 423-25. ........----. 19

Napa Valley Wine Train, Inc. v.

Public Utilities Commission (1990)

Sgt By Mey. Oy Aa eran eee Sere ae 11

Ocean Shore Railroad Corp. v. Doelger (1954)

127- Cal. AOO.26 394, FPF. i ee 22

Pacific Gas and Electric Co. v. G.W. Thomas

Drayage & Riggins Company, Inc. (1968)

Ee Rie ka Ee ee 21

Pacific Iron Works v. Bryant Lumber &

Shingle Mill Co. (1910)

60 Wash. 502, 505-06, 111 P.578,579 ..... aa

° 1¥ «

Page

Parks v. Gates (1921)

BOG CLs Eos Soe ne wants ae ee 10

Parsons v. Bristol Development Co. (1965)

G2 (81.26 BGs; BGGs 6 A ie ae 25, 26

Penn Cental Corp. v. U.S. Railroad Vest Corp.

(7th Cis, 1992) 95a Fae foes SOO seal ON 11

People v. Ocean Shore Railroad, Inc. (1948)

34 Go. COB aaa KS ea erties 10, 16

People v. Thompson (1954)

AS GAS Sa BE elk ke ee ee 10, 12

Pierpont Inn, Inc. v. State of California (1969)

70 CAL. fas 208 bee Cu Wee Xe eae 26

Spolter v. Four-Wheel Brake Service Co. (1950)

99 CAL. ADD. AG GA Oe ee ea a ee Oe 27

Tahoe National Bank v. Phillips (1971)

S&B Rp a ra ray ee a 24

Veach v. Culp (1979)

Pe Wate.2G ST Sao Pies OR. sh SSO EA 2 23

Warren v. Atchison, Topeka and

Santa Fe Railway Co. (1971)

2D CULM OR Be ess SF ae EN 20

White v. McGilliard (1903)

140 Cal. G55, Go6ehow hie Ea a 6

Page

Statutes

as, ees OF Comit, fie Ze CONE) oo ek ee wee 29

ey OE ik oe kde ep ire ek wae 10, 11

rey I Oa tat a ig eng ican 21, 26

a en eg ee gg! Bg ue 24

es Ce Eo ea a Orie ee oe ee 22

Re i ee eS os ne Se ae eek ee 27

Or Se EM he a eS a a ech 27

Publications

5 Miller & Starr, California Real Estate Law

(2d ed. 1992) Easements, § 15:5, p.401 ..... 19

Zo AR: FATA: RONG, BD Sas he SOO: so shee 23

20 (ses Ss BS a Oe PE se ee Nee es 23

53 Cal.Jur.sa, (Quieting Title, § 74... cw ee a 7

Annot., Deed to Railroad Company As

Conveying Fee Or Easement (1966)

i Ce a Sa ee. 6 we es 14

Eisenberg, Horvitz & Wiener, Cal. Prac.

Guide: Civil Appeals And Writs

(The Rutter Group 1992) { 15:153, p.

eee Be A hk Pa ar ee ee 2

APPENDIX 4

FROM PETITIONERS’ BRIEF ON THE MERITS

IN THE CALIFORNIA SUPREME COURT

TABLE OF AUTHORITIES

Page

Cases

AIU Insurance Co. v. Superior Court (1950)

7 ce 2 obs oe ee a kw hws «ee 17

Appeal of the North Beach and Mission

Railroad Company in the Matter of

Widening Kearny Street (1867)

nc. ba elk 8 aoe be os 8 24, 25, 39

Atlantic Coast Line R. Co. v.

Duval County (1934)

Sen Gee eo 6 es ts 6 eee 27

Auto Equity Sales, Inc. v. Superior Court (1962)

ee a ar ae 39

Basin Oil Co. v. City of Inglewood (1954)

pe GE ae ae ae ee 27

Bay Cities Paving & Grading, Inc. v.

Lawyers’ Mutual Insurance Co. (1993)

IE de Gta~b oe OS '6 Wl aie ee 6 8 31

Boring v. Filby (1957)

Bigs 2 8) eee ee eee ee 45

Brown v. Green (1994)

TRE es as eek we ea es 48

Brown v. Penn Central Corp. (Ind. 1987)

ae ae a ae 36

Brown v. Terra Bella Irrigation Dist. (1958)

er eee a. ee Coe lee go 6 6 ce 45

me fe

Casey v. Leggett (1899)

fae Re. GOS. ho WSS hos eb os A 10

Cincinnati, I., St. L. & C. Ry. Co.

v. Geisel (1889)

LED Sad. 77, 25 Pee SPO fo 8 eae Ce 24

City of Eunice v. Sunland Properties, Inc.

(La.App. 1992) 597 So.2d 1198 ......... 36

City of Glendora v. Faus (1957)

£48 Cal Ame oe Bee 6s 6 ae Bas ee eee 23

City of Los Angeles v. Decker (1977)

OS GE OG ek i aes sue Wee ee 4

City of Los Angeles v. Igna (1962)

MOR COL. ARSE Se 68 6 Sow Se OR 34

City of Manhattan Beach v. Cortelyou (1938)

1 CO ee Oe 6 ak case eee 8 12

Concord & Bay Point Land Co. v.

City of Concord (1991)

229 Cal.App.3d 289 . . . 17, 27, 28, 30, 35, 42, 43

Coon v. Sonoma Magnesite Co. (1920)

OOS COME SF 6 aie a ie se 35, 39

East Alabama Railroad Co. v. Doe (1885)

114 U.S. 340 [29 L.Ed. 136,

5 ES ak eee ae ee a ok ee 25

Estate of Rockafellow v. Lihs

(Iowa App. 1992) 494 N.W.2d 734. ....... 24

a

e+

G.M. Morris Boat Co., Inc v. Bishop

(Mo.App. 1982) 631 S.W.2d 84 .)........ 24

Gerhard v. Stephens (1968)

gw 0 A re 3, 23, 48, 49

Hadian v. Schwarts (1994)

kk 48

Hall v. Shotwell (1885)

ES 47

Havemeyer v. Superior Court (1890)

Sy 14

Highland Realty Co. v. City of

San Rafael (1956) i his ads oe

ee 8 Bn 27-29, 32, 35, 39, 50

Hostetter v. Los Angeles Terminal

Railway Co. (1895) 108 Cal.38 .......... 47

Johnson v. Ocean Shore Rairoad Co. (1971)

SURO 3 4 5 sw sw ct tt + 1 aD, 32, 36

Kripp v. Curtis (1886)

ES Sy

Macerich Real Estate Co. v. City of Ames

(owe 19ee) 400 N.W.ee726.......... 36

Machado v. Southern Pacific

Transportation Co. (1991) 22, 27, 28

peo eR SS By 30, 33, 38, 39, 44

= 1¥ «

Moakley v. Los Angeles Pacific

Railway Co. (1934)

bk fe 8: Serra arte eee et 29, 33

Napa Valley Wine Train, Inc. v.

Public Utilities Commission (1990)

TO RE Se Ce ek Re 25, 26, 29, 37

Niederer v. Ferreira (1987)

SGD Ge SON, SOO. as kk A we 20

Ocean Shore Railroad Corp. v. Doelger (1954)

vege Fo 8 | re ee ee ae ee 22, 36

Pacific Gas and Electric Co. v. G.W. Thomas

Drayage & Rigging Company, Inc. (1968)

ge he er earns a ge gre 21

Pacific Iron Works v. Bryant Lumber &

Shingle Mill Co. (1910)

Oe Ws Dede CUO Eee. 6 6 6 8 ww SG 24

Parks v. Gates (1921)

SOG Gate Se oho we ee re era eo a eee 27

Parsons v. Bristol Development Co. (1965)

ek fe eee oe ie ae 18, 19

Penn Cental Corp. v. U.S. Railroad Vest Corp.

Cra Cit. PEs BSS ree 66s 6 ee SS 36

People v. Ocean Shore Railroad, Inc. (1948)

a GL WO As ee ee Oe ee 4, 5, 42, 43

People v. Thompson (1954)

So Ciien bees se ee eek eee eee 35, 39

j

-WV-«

Page

Pierpont Inn, Inc. v. State of California (1969)

Pe os ee eee es oe ae 19

Roeder Co. v. Burlington Northern, Inc. (1986)

105 Wash.2d 269,714 P.2d1170 ........ 28

Southern Pacific Company v. City and

County of San Francisco (1964)

a Ie ee a ae eg bk am 5

Tahoe National Bank v. Phillips (1971)

Rae Cee Co ee oS ek ee 17, 18

Veach v. Culp (1979)

Se Wea oI SPO Ora O2e. ke 24

Wagner v. Chambers (1965)

ee SD Wa a ne Ske as 3 ws 46

Warren v. Atchison, Topeka and Santa Fe

Railway Co. (1971) 19 Cal.App.3d 24. . . .35, 36

White v. McGilliard (1903)

Gr eo Ce Se a 10

Statutes and Rules

ee aa ar a ane rae 25, 37, 38

SUA RES So ce a Sha ka two ek ee 37, 38

GE sk Ss we bb eck sk we 25, 37

i A a Ey kk we ee a 23

Se SS ey a ks Se 6 8 Swe Wow we ek eh 45

et a oka ny via 6° a 60 oe eae 21

ae Re 17

tes I ae gg i 21

Code Civ. Proc. Section 1250.220 .......... 4

a

Publications

5 Miller & Starr, California Real Estate

(2d ed. 1992) Easements, § 15.1.....

26 C.J.S., Deeds, § 116, PB. 999 oo ee es

26 Cal.Jur.3d, Deeds, §§198-200.......

53 Cal.Jur.3d, Quieting Title,§ 74 ......

Annot., Deed to Railroad Company As

Conveying Fee Or Easement (1966)

6 ALAR 36 Fis 6 eS SAY

Eisenberg, Horvitz & Wiener, Cal. Prac.

Guide: Civ. Appeals And Writs

(The Rutter Group 1992) J 13:14,

pe 1968s Ta eis Fa ee ea

Serpico, Santa Fe Route To The Pacific

FESS RE ek Sw ec eee ee

Page

APPENDIX 5

FROM PETITIONERS’ PETITION

FOR REHEARING IN THE

CALIFORNIA SUPREME COURT

By ee

TABLE OF AUTHORITIES

Page

Cases

Arkansas Improvement Co. v. Kansas

City Southern Ry. (1938)

hr a, OAL, TE ee Re Feces ake As 7

Auto Equity Sales, Inc. v. Superior Court (1962)

Te Ee es ke EA ERS 8

Basin Oil Co. v. City of Inglewood (1954)

Pe Rae OR eee Ake <a se Ds 7

Brown v. Penn Central Corp. (Ind. 1987)

Peet SU PE ee Fs Ws EE eI 8

City of Eunice v. Sunland Properties, Inc.

(La.App. 1992) 597 So.2d 119, 1201. ...... 8

Concord & Bay Point Land Co. v.

City of Concord (1991)

yx Be ey A ee era ar 7,11

Coon v. Sonoma Magnesite Co. (1920)

SR Ge TPE ee Be hee ha 8S 7

East Alabama Railroad Co. v. Doe (1885)

114 U.S. 340, 349-51 [29 L.Ed. 136,

te a Re yy Oy) DR ee ee 13

Highland Realty Co. v. City of

San Rafael (1956)

ee Oe ty, Sear rere 5-7, 9, 24

Johnson v. Ocean Shore Rairoad Co. (1971)

56 Cae RG Re ee oe we ees 8

ae

| Page

4 Kripp v. Curtis (1886)

i ER aes Wie Ro ee ee ea ee 13

i

! Macerich Real Estate Co. v. City of Ames

(Iowa 1988) 433 N.W.2d 726,728........ 8

a

i Machado v. Southern Pacific

| Transportation Co. (1991)

) Bae Gee Pe 5a 6 8 ee 8,9

i

| Matter of Widening Kearny Street (1867)

i Ee OI Wee eee eae 12

, ‘ Napa Valley Wine Train, Inc. v.

| Public Utilities Commission (1990)

i SO A Si Stee oo EER Sea 13

) | Ocean Shore Railroad Corp. v. Doelger (1954)

i EST COLAO Ae ods Sees 8s 6 8, 15

i

iii

i Parks v. Gates (1921)

i Ss Se he Se AS a ae ee Os 5

1

| Penn Cental Corp. v. U.S. Railroad Vest Corp.

| | (7th Cir. 1992) 955 F.2d 1158, 1160....... 8

| | People v. Ocean Shore Railroad, Inc. (1948)

| Bee Ra PR ee on ae We ee es 6, 21

|

People v. Thompson (1954)

Pierpont Inn, Inc. v. State of California (1969)

Fee Le Sear A a oe ee ee 3,17

{

|

| | fe Se ERTS RR Moa ie Ne 7

i

- iii -

Page

Southern Pacific Company v. City and

County of San Francisco (1964)

nt ere ea ee ey, 6

Warren v. Atchison, Topeka and

Santa Fe Railway Co. (1971)

eR AE ep ack ke ak le 8 ee 8

Statutes/Codes

eee ee I BGS oa yg wake we ja ee os 13

Coens Ge GENO IE hn Sk he a es aw we 13

Miscellaneous

Serpico, Santa Fe Route To The Pacific

DU I ey ea ee ke se wie, 8) 19