Bohn v. Albertson

Citation107 Cal.App.2d 738,238 P.2d 128
CourtCalifornia Court of Appeals Court of Appeals
Decision Date30 November 1951
PartiesBOHN et al. v. ALBERTSON et al. Civ. 14722.

Robert L. Mann, Morris M. Grupp, San Francisco, Joseph A. Brown, San Francisco, of counsel, for appellants.

Carlson, Collins, Gordon & Bold, Richmond, Cal., for respondents.

BRAY, Justice.

From a judgment granting plaintiffs a permanent injunction, defendants appeal.

Facts

Plaintiffs are the lessees of the owners of most of the Frank's Tract in Contra Costa County. These owners are the successors in interests of the original patentees of swamp and overflowed land. In February, 1938, the San Joaquin River broke the levee and flooded the entire tract, including lands leased by defendants. It has remained flooded ever since. From 1938 until the making of the lease in 1947 the defendants and the general public in large numbers have gone on the tract in rowboats, skiffs and pleasure boats and have fished there. Subsequent to the making of the lease, plaintiffs have attempted to bar the public therefrom, charging a fee or license for the privilege of fishing on the tract. Plaintiffs brought this action to quiet their title to the land and the waters thereon. Defendants answered, claiming for themselves and the general public the right of navigation and fishing on and in said waters.

Questions Presented

1. In California does a landowner lose title to his land by avulsion?

2. Where, by avulsion, waters inundate land and remain navigable, has the public the right of navigation and fishing in those waters?

3. What are navigable waters?

4. Did the court make a finding on navigability as a fact, and if so, does the evidence support it?

Record and Findings

Plaintiffs filed a complaint seeking an injunction to enjoin defendants permanently from entering or fishing upon the premises therein described, referred to generally as 'Frank's Tract.' Defendants answered severally and each cross-complained against plaintiffs and certain other cross-defendants for an injunction restraining all cross-defendants from interfering with the right of cross-complaint, his agents, employees and customers to use the waters of Frank's Tract for navigation and fishing and for damages for such interference. Certain of the court's findings pertinent here follow. (More detailed findings appear later.) The tract constituted swamp and overflowed land granted to the State of California by the United States government pursuant to the Arkansas Act, passed by Congress September 28, 1850, U.S.Revised Stats. 2479 to 2484, 43 U.S.C.A. §§ 981 to 986; United States patents were issued to the State for said land on September 13, 1870 and February 8, 1873; said land was granted by the State by valid California patents issued pursuant to an Act of March 28, 1868, entitled 'An Act to Provide for the Management and Sale of Lands Belonging to the State', St.1867-1868, p. 511; the cross-defendants, other than plaintiffs, derived title to said land by mesne conveyances from the original patentees of the State and are the owners of said land; the land is situated in Contra Costa County, within the Delta Region, near the San Joaquin River and adjacent sloughs. About the time the California patents were issued it had been fully reclaimed by the construction of levees and surface drainage. From that time until February, 1938, the land was developed for agricultural purposes; homes and buildings were constructed thereon; the land was not upland, frontage or tide land. (The findings concerning the flooding of the land and its effect will be discussed later.) Plaintiffs, in 1947, entered into a lease of said land with the other cross-defendants for 25 years for the purpose of developing it for recreational uses such as boating, hunting, fishing, bathing and other aquatic sports, and have been in possession ever since, attempting to assert their right to its exclusive possession by excluding defendants and the general public therefrom, and licensing users of said land for recreational purposes. Prior to the date of the lease, the owners have permitted defendants and others to use said land and water for recreational purposes and to gain access thereto through breaks in the levees, which use was not under a claim of right, color of title, or adversely to the rights of cross-defendant owners. Defendants have no right to the use of said land and water. The premises have not been reclaimed or used for agricultural purposes since the 1938 break in the levee. Neither the owners nor plaintiffs are violating any obligation or public trust in connection with further rights to reclaim said lands, and their use thereof is not contrary to the public policy of the State. As conclusions of law the court found that plaintiffs are entitled to exclusive use of the land and waters thereon and that neither defendants nor the general public have any right or interest therein. The judgment followed the findings and conclusions and in addition ordered that defendants take nothing by their cross-complaint. Apparently no appeal is taken from the denial of the prayer of the cross-complaint, so the cross-defendants (other than plaintiffs) do not appear on this appeal, and no further consideration will be given to such denial.

Original Title

There can be no question but that the basic character of the land was determined to be swamp and overflowed lands by the 'Arkansas Swamp Land Act' of 1850, and the official surveys, People ex rel. Pierce v. Morrill, 26 Cal. 336; Edwards v. Rolley, 96 Cal. 408, 31 P. 267; Newcomb v. City of Newport Beach, 7 Cal.2d 393, 60 P.2d 825; Foss v. Johnstone, 158 Cal. 119, 110 P. 294, and that when the State conveyed the land to the predecessors in interest of the present owners such conveyances were without express limitation and without express reservation to the State or its inhabitants of the rights of navigation and fishery. Plaintiffs assume that because there was no express right of navigation and fishing in the patents of their lessors' predecessors, such right was not reserved to the State. Such assumption, however, is erroneous if there were navigable waters on the land at the time of the patents. That such right was reserved, although not expressed in the Constitution or in conveyances of swamp and overflowed lands, has been definitely decided in this State. See Forestier v. Johnson, 164 Cal. 24, 127 P. 156; People v. California Fish Co., 166 Cal. 576, 138 P. 79; People ex rel. Robarts v. Russ, 132 Cal. 102, 64 P. 111.

Thus, had there been navigable waters on the lands of Frank's Tract at the time of the patents, the landowners' rights therein would have been subject to the nevigation and fishing rights of the public. Apparently there were no navigable waters thereon at that time. But if there are now (assuming that because there were no navigable waters originally plaintiffs' lessors' title was free from restrictions), in determining plaintiffs' rights in those waters, the character of the deposit of the waters thereon and the question of their navigability must be considered.

To determine whether the waters are navigable it is necessary to consider what are the recognized tests of navigability, and then, to examine the findings and the evidence in the light of those tests.

What Are Navigable Waters?

In United States v. Utah, 283 U.S. 64, 76, 51 S.Ct. 438, 441, 75 L.Ed. 844, the court said: 'The test of navigability has frequently been stated by this Court. In The Daniel Ball, 10 Wall. 557, 563, 19 L.Ed. 999 [1001], the Court said: 'Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.' In The Montello (United States v. The Montello) 20 Wall. 430, 441, 442, 22 L.Ed. 391 , it was pointed out that 'the true test of the navigability of a stream does not depend on the mode by which commerce is, or may be, conducted, nor the difficulties attending navigation,' and that 'it would be a narrow rule to hold that in this country, unless a river was capable of being navigated by steam or sail vessels, it could not be treated as a public highway.' The principles thus laid down have recently been restated in United States v. Holt State Bank, 270 U.S. 49, 56, 46 S.Ct. 197, 199, 70 L.Ed. 465 , where the Court said: '* * * navigability does not depend on the particular mode in which such use is or may be had--whether by steamboats, sailing vessels or flatboats--nor on an absence of occasional difficulties in navigation, but on the fact, if it be a fact, that the stream in its natural and ordinary condition affords a channel for useful commerce.''

Navigability 'is largely a question of fact, to be determined from the character of the stream, its situation and availability as a highway of commerce, and the other surrounding circumstances affecting the question.' Mintzer v. North American Dredging Co., D.C., 242 F. 553, 559.

It has been held that navigability is to be determined by the condition at the date of the admission of California to the Union. United States v. Utah, supra, 283 U.S. 64, 51 S.Ct. 438, 75 L.Ed. 844; Newcomb v. City of Newport Beach, supra, 7 Cal.2d 393, 60 P.2d 825. However, this rule is limited to the title to the lands under the water and riparian rights. Navigability for the purpose of commerce may arise later. United States v. Appalachian Electric Power Co., 311 U.S. 377, 408, 61 S.Ct. 291, 85 L.Ed. 243. Thus, if the evidence showed the creation of a new channel of the river, the fact that there was no such channel in 1850 would not prevent the assertion by proper public authority of the right to use that channel for...

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