2 ELR 20049 | Environmental Law Reporter | copyright © 1972 | All rights reserved

Marks v. Whitney

S.F. 22566 (Cal. December 9, 1971)

In a quiet title action, the owner of tidelands (i.e., lands lying between the mean high and low tide) under an 1874 patent from the state, sought a declaration that he had a right to fill and develop the tidelands, even though a portion of those lands were in front of the defendant's property facing the bay. The tidelands are subject to the public trust. The concept of the public trust includes navigation, commerce, fisheries and recreation, but it is also an elastic concept which can include new uses, such as preservation of lands in their natural state. Although the state may determine, through legislative action, that public trust uses should be modified or extinguished, in the absence of such a determination, the trust may not be violated by private actions.Moreover, any member of the public has standing to raise this issue. The defendant in this action has additional rights, since he is a littoral owner. The lower court's determination that the defendant's only right was a prescriptive easement for a wharf to the new shoreline was incorrect. A littoral owner has much wider rights, including the right of access from every part of his frontage. Judgment reversed and remanded.

Counsel for Plaintiff
Wallace S. Myers
Myers, Praetzel & Pierce
1108 Fifth Avenue
San Rafael, Calif. 94901

Counsel for Defendant
Albert M. Monaco
Heller, Ehrman, White & McAuliffe
44 Montgomery Street
San Francisco, Calif. 94104

Before Wright, C.J., Peters, Tobriner, Mosk, Burke, Sullivan and McComb, J.J.

[2 ELR 20049]

McComb, J.

This is a quiet title action to settle a boundary line dispute caused by overlapping and defective surveys and to enjoin defendants (herein "Whitney") from asserting any claim or right in or to the property of plaintiff Marks. The unique feature here is that a part of Marks' property is tidelands acquired under an 1874 patent issued pursuant to the Act of March 28, 1868 (Stats. 1867-68, c. 415, p. 807); a small portion of these tidelands adjoins almost the entire shoreline of Whitney's upland property. Marks asserted complete ownership of the tidelands and the right to fill and develop them. Whitney opposed on the ground that this would cut these tidelands and the navigable waters covering them. He requested a declaration in the decree that Marks' title was burdened with a public trust easement; also that it was burdened with certain prescriptive rights claimed by Whitney.

The trial court settled the common boundary line to the satisfaction of the parties. However, it held that Whitney had no "standing" to raise the public trust issue and it refused to make a finding as to whether the tidelands are so burdened. It did find in Whitney's favor as to a prescriptive easement across the tidelands to maintain and use an existing seven-foot wide wharf but with the limitation that "Such rights shall be subject to the right of Marks to use, to fill and to develop" the tidelands and the seven-foot wide easement area so long as the Whitney "rights of access and ingress and egress to and from the deep waters of the Bay shall be preserved" over this strip.

The appeal is on a limited record, namely, the Clerk's Transcript and designated exhibits, including certified copies of official recorded patent, maps, surveys, surveyor's notes, etc. This court may take judicial notice of these official documents. Only questions of law are presented.

Attached to this opinion is a drawing* prepared by Whitney's counsel and accepted by Marks on appeal which illustrates and identifies various matters contained in the pleadings, exhibits, findings and judgment. This shows the location of the tidelands on the westerly side of Tomales Bay in Marin County, the disputed boundary line, the relative size of the properties involved, and the location of the wharf. The portion of the tidelands adjoining Whitney's property is roughly rectangular in shape, has an average width of 100 feet, and extends 344.48 feet along the 430 foot shoreline of Whitney. There are no improvements other than the wharf on the tidelands.

Appearing as amici curiae on the appeal are: the Attorney General, on behalf of the State Lands Commission, the Bay Area Conservation and Development Commission (BCDC) and as chief law enforcement officer of the state;1 Sierra Club;2 and Westbay [2 ELR 20050] Community Associates.3

Questions: First. Are these tidelands subject to the public trust; if so, should the judgment so declare?

Yes. Regardless of the issue of Whitney's standing to raise this issue the court may take judicial notice of public trust burdens in quieting title to tidelands. This matter is of great public importance, particularly in view of population pressures, demands for recreational property, and the increasing development of seashore and waterfront property. A present declaration that the title of Marks in these tidelands is burdened with a public easement may avoid needless future litigation.4

Tidelands are properly those lands lying between the lines of mean high and low tide (City of Long Beach v. Mansell (1970) 3 Cal.2d 462, 478, Fn.13) covered and uncovered successively by the ebb and flow thereof (People v. Kerber (1908) 152 Cal. 731, 733). The trial court found that the portion of Marks' lands here under consideration constitutes a part of the Tidelands of Tomales Bay, that at all times it has been, and now is, subject to the daily ebb and flow of the tides in Tomales Bay, that the ordinary high tides in the bay overflow and submerge this portion of his lands, and that Tomales Bay is a navigable body of water and an arm of the Pacific Ocean.

This land was patented as tidelands to Marks' predecessor in title. The patent of May 15, 1874, recites that it was issued by the Governor of California "by virtue of authority in me vested" pursuant to "Statutes enacted from time to time" for the "Sale and Conveyance of the Tide Lands belonging to the State by virtue of her sovereignty."5 (Emphasis added.)

The governing statute was the act of March 28, 1868,6 entitled "An Act to provide for the management and sale of the lands belonging to the State." By its terms it repealed all other laws relating to the sale of swamp and overflowed, salt-marsh and tidelands. These laws, including the Act of March 28, 1868, were codified in former Political Code sections 3440-3493 1/2. They were explicitly and expansively considered by this court entirely separate from the restrictions contained in Article 15, sections two and three, of the State Constitution (enacted in 1879) — In Forestier v. Johnson (1912) 164 Cal. 30, and People v. California Fish Co., supra, 166 Cal. 576, 589-598. Prior to the issuance of this patent it was held that a patent to tidelands conveyed no title (Kimball v. MacPherson (1873) 46 Cal. 104; People ex rel. Pierce v. Morrill (1864) 26 Cal. 336); or a voidable title (Taylor v. Underhill (1871) 40 Cal. 471). It was not until 1913 that this court decided in People v. California Fish Co., supra, 166 Cal. 576, 596, that "The only practicable theory is to hold that all tide land is included, but that the public right was not intended to be divested or affected by a sale of tide lands under these general laws relating alike both to swamp land and tide lands. Our opinion is that . . . the buyer of land under these statutes receives the title to the soil, the jus privatum, subject to the public right of navigation, and in subordination to the right of the state to take possession and use and improve it for that purpose, as it may deem necessary. In this way the public right will bepreserved and the private right of the purchaser will be given as full effect as the public interests will permit."

The tidelands embraced in these statutes extend from the Oregon line to Mexico and include the shores of bays and navigable streams as far up as tide water goes and until it meets the lands made swampy by the overflow and seepage of fresh water streams. (People v. California Fish Co., supra, at pp. 591, 596.) No issue is here presented of swamp or overflowed lands. These are true tidelands within the meaning of these statutes, the patent of May 15, 1874, and the public trust doctrine. They are, therefore, subject to a reserved easement in the state for trust purposes.

Public trust easements are traditionally defined in terms of navigation, commerce and fisheries.They have been held to include the right to fish, hunt, bathe, swim, to use for boating and general recreation purposes the navigable waters of the state, and to use the bottom of the navigable waters for anchoring, standing, or other purposes. (See Bohn v. Albertson (1951) 107 Cal.App.2d 738; Forestier v. Johnson, supra, 164 Cal.24; Munninghoff v. Wisconsin Conservation Comm'n. (1949) 255 Wis. 252; Jackvony v. Powel (1941) 67 RI 218; Nelson v. De Long (1942) 213 Minn. 425; Proctor v. Wells (1869) 103 Mass. 216.) The public has the same rights in and to tidelands.

The public uses to which tidelands are subject are sufficiently flexible to encompass changing public needs. In administering the trust the state is not burdened with an outmoded classification favoring one mode of utilization over another (Colberg, Inc. v. State, 67 Cal. 2d 408, 421-422.) There is a growing public recognition that one of the most important public uses of the tidelands — a use encompassed within the tidelands trust — is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area. It is not necessary to here define precisely all the public uses which encumber tidelands.

"[T]he state in its proper administration of the trust may find it necessary or advisable to cut off certain tidelands from water access and render them useless for trust purposes. In such a case the state through the Legislature may find and determine that such lands are no longer useful for trust purposesand free them from the trust. When tidelands have been so freed from the trust — and if they are not subject to the constitutional prohibition forbidding alienation — they may be irrevocably conveyed into absolute private ownership." (City of Long Beach v. Mansell, supra, 3 Cal. 3d 462, 482.)

The power of the state to control, regulate and utilize its navigable waterways and the lands lying beneath them, when acting within the terms of the trust, is absolute (People v. California Fish Co., supra, p. 597), except as limited by the paramount supervisory power of the federal government over navigable waters (Colberg, Inc. v. State, supra, 67 Cal.2d 416-422). We are not here presented with any action by the state or the federal government modifying, terminating, altering or relinquishing the jus publicum in these tidelands or in the navigable waters covering them. Neither sovereignty is a party to this action. This court takes judicial notice, however, that there has been no official act of either sovereignty to modify or extinguish the public trust servitude upon Marks' tidelands. The State Attorney General, as amicus curiae, has advised this court that no such action or determination has been made by the state.

We are confronted with the issue, however, whether the trial court may restrain or bar a private party, namely, Whitney, "from claiming or asserting any estate, right, title, interest in or claim or lien upon" the tidelands quieted in Marks. The injunction so made, without any limitation expressing the public servitude, is broad enough to prohibit Whitney from asserting or in any way exercising public trust uses in these tidelands and the navigable waters covering them in his capacity as a member of the public. This is beyond the jurisdiction of the court. It is within the province of the trier of fact to determine whether any particular [2 ELR 20051] Ward Redwood Co. (1964) 225 Cal.App.2d 385, 389; Den v. Spalding (1940) 39 Cal.App.2d 623, 627; McLeod v. Reyes (1935) 4 Cal.App.2d 143, 154.)

The retention of the words "along the line of ordinary low water" in the description in the decree would have been more explicit and would have avoided some of the problems encountered on the appeal. The failure to include these words however does not refute the fact that the judgment describes a natural monument, i.e., "the line of ordinary low water."

The seaward boundary is a common boundary line as between Marks and the state, owner of the adjoining submerged lands. Section 6463 of the Public Resources Code authorizes any person claiming title under a parent of tideland issued by the state to bring suit against the state, or against the state with others, to quiet title or otherwise determine the validity of such patent or establish boundaries. Section 6357 authorizes the State Lands Commission to establish ordinary low-water mark or ordinary high-water mark by agreement, arbitration or action to quiet title whenever it is deemed expedient or necessary. The state was not made a party hereto and no action has been taken by the State Lands Commission to change the seaward boundary of these tidelands from the description given in the original patent. Should there be any dispute as to where the actual line of low water lies which would make uncertain spatial limitations on the exercise by members of the public or littoral owners of rights across these tidelands, the commission has jurisdiction to take the necessary steps to define such limits and protect such rights, or litigation could be brought pursuant to section 6463 of the Public Resources Code.

Judgment is reversed and remanded for proceedings not inconsistent with this opinion.

* [Ed. note — Drawing omitted in ELR]

1. California holds the state-wide public easement in tidelands and owns the submerged lands abutting the tidelands. The Legislature has vested in the State Lands Commission "All jurisdiction and authority remaining in the State as to tidelands and submerged lands as to which grants have been or may be made" and has given the commission exclusive administration and control of such lands. (Pub. Resources Code, § 6301.) BCDC is charged with specific duties concerning dredging and filling in San Francisco Bay (Gov. Code, §§ 66600-66610). The Attorney General is presently involved in litigation involving lands in San Francisco Bay which were patented under the Act of March 28, 1868 and other statutes. The Attorney General asks this court to declare the existence of the public easement and to recognize the right of Whitney as a member of the public and as a littoral owner to have the existence of the easement in these tidelands declared in this action.

2. Sierra Club expresses the concern of its 60,000 members in public questions raised herein. It asks this court not only to declare that these lands are subject to the public easement and that Whitney has standing to raise this issue but asks this court to declare the scope and extent of the public servitude in areas of navigable waters over tidelands.

3. Westbay Community Associates is also involved in San Francisco Bay Area litigation. It asks this court to limit its consideration of early patents to land situated on Tomales Bay and, because of the pending litigation, not to consider patents to lands situated on San Francisco Bay.

4. There has been sufficient confusion already engendered in this lawsuit. After the first Court of Appeal opinion herein the Los Angeles Metropolitan News, Sept. 16, 1969, headlined its new release thereon "Patent Title to Tidelands Unrestricted." See also, critique by Professor Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention (1970) 68 Mich. L. Rev. 473, 530-531.

5. California acquired title to the navigable waterways and tidelands by virtue of her sovereignty when admitted to the Union in 1850. (Borax, Ltd. v. Los Angeles (1935) 296 U.S. 10, 15-16.) This title is different in character from that which the state holds in lands intended for sale. (Illinois Cent. R.R. v. Illinois (1892) 146 U.S. 387, 452; Oakland v. Oakland Waterfront Co. (1897) 118 Cal. 160, 208-209.) The state holds tidelands in trust for public purposes, traditionally delineated in terms of navigation, commerce and fisheries. (City of Long Beach v. Mansell (supra) 3 Cal. 3d 362, 482.)

6. (Stats. 1867-68, p. 507.) The Act of March 28, 1868 is distinguishable from the Act of March 30, 1868 and the amendatory Act of April 1, 1870 (Stats. 1867-68, p. 716; Stats. 1869-70, p. 541.) The latter were enacted in aid of navigation and for the purpose of providing for the improvement of designated parts of San Francisco Bay and they operated to free such tidelands from the public trust. (Knudson v. Kearney (1915) 171 Cal. 250, 252-253; Alameda Conservation Ass'n v. City of Alameda (1968) 264 Cal.App.2d 284, 287.) Some of the cases upholding the authority of the state to make an absolute disposition of tidelands consistent with the public trust are reviewed in People v. California Fish Co. (1913) 166 Cal. 576, 585-586, and City of Long Beach v. Mansell, supra, 3 Cal. 3d 362, 483-486.

2 ELR 20049 | Environmental Law Reporter | copyright © 1972 | All rights reserved