6 Cal.2d 765, 14635, Katenkamp v. Union Realty Co.

Docket Nº:14635
Citation:6 Cal.2d 765, 59 P.2d 473
Party Name:Katenkamp v. Union Realty Co.
Attorney:[7] Leland Crawford, A. W. Robertson and Maxwell Nichols for Appellants. [8] Heaney, Price & Postel and Heaney, Price, Postel & Parma for Respondent.
Case Date:July 13, 1936
Court:Supreme Court of California
 
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Page 765

6 Cal.2d 765

59 P.2d 473

J. F. KATENKAMP et al., Appellants,

v.

UNION REALTY COMPANY (a Corporation), Respondent.

L. A. No. 14635.

Supreme Court of California

July 13, 1936

In Bank.

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[Copyrighted Material Omitted]

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COUNSEL

Leland Crawford, A. W. Robertson and Maxwell Nichols for Appellants. Heaney, Price &amp Postel and Heaney, Price, Postel &amp Parma for Respondent

OPINION

THE COURT.

This is an action in equity for a mandatory injunction to compel the removal of groins erected on littoral lands. A demurrer was sustained to plaintiffs' first [59 P.2d 474] amended complaint and, upon failure to further amend within the allowed time, a judgment was entered for defendant, from which plaintiffs appealed.

The first amended complaint in substance alleges: That plaintiffs and defendant are owners of adjoining tracts of land bordering on Miramar Bay, an inlet of the Pacific Ocean, at Santa Barbara, defendant's property being upon the westerly arm of the bay, west of plaintiffs' properties. That in a natural state defendant's land is rocky and devoid of sand or beach but plaintiffs' lands possess a sandy beach of 100 to 200 feet in width to the mean high tide line of the

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bay, and extending beyond some 500 feet under the waters of the bay. That plaintiffs' lands have been used for fifty years past for residential, recreational, bathing and boating purposes and valuable improvements have been erected thereon. That about June 1, 1929, "solely for the purpose of securing the accretion of sand to its shore and upon its property and thereby to create a sandy beach and shore to the front of and upon its said property, defendant ... built upon the easterly line of its said property a certain structure known as a groin or wall ... extending from the foot of the bluff bank ... approximately 100 feet to the mean high tide line of the said waters of Miramar Bay and into the waters thereof at right angles to said shore approximately 100 feet. That at the same time defendant built ... a second groin about 200 feet westerly from the first groin ... extending from the cliff bank upon the said property a distance of approximately 50 feet to the mean high tide line and from said point into said water a distance of approximately 75 feet." That these structures were intended to and had the effect of so changing and diverting the natural, normal action of the tides, currents and waters as to stop the sands carried in suspension in the water from being deposited upon plaintiffs' lands and to cause them to be deposited upon the land of defendant, with the result that there has been a gradual accumulation and accretion of sand covering the natural rocks and creating a sandy beach about 200 feet in width on defendant's land, and a removal of sand from and in front of plaintiffs' lands, leaving exposed gravel, rubble and rocks formerly covered, thereby rendering plaintiffs' lands unsuitable for purposes of their former use, with continued impairment, injury and destruction of the character and enjoyment thereof, not measurable or compensable in damages; also causing the mean high tide line to advance upon plaintiffs' property 50 to 100 feet from the mean high tide line as it existed prior to building of the groins; and also leaving exposed a rocky approach which makes less accessible the waters of the bay.

The prayer of said complaint is that a mandatory injunction be issued requiring defendant to remove such portion of the groins as in the opinion of the court interferes with the natural and normal action of the currents, tides and waters of the ocean upon plaintiffs' properties; that defendant

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be permanently enjoined from erecting upon its property any structures which interfere with the natural and normal flow of the ocean currents, tides, or waters to and upon plaintiffs' properties; and that plaintiffs have general relief and costs.

To this pleading defendant interposed a general and special demurrer alleging in substance: (1) That the complaint fails to state facts sufficient to constitute a cause of action; (2) That the state of California is a necessary party defendant, having an interest in the groins which would be obstructed by granting of the injunction; and (3) that the complaint is uncertain, ambiguous and unintelligible in various respects.

In sustaining this demurrer the trial court rendered a memorandum opinion expressing its view that the complaint is insufficient in that it fails to show that plaintiffs have exhausted the legal remedy to secure removal of the groins afforded them by section 690.10 of the Political Code. A discussion of this point, prefaced by one or two preliminary observations, will first be undertaken. On appeal from a judgment entered, after a demurrer has been sustained to a complaint, all issuable facts well pleaded, legally provable, and not inconsistent with other allegations, will be taken as true; the question of plaintiffs' ability to prove the allegations, or possible difficulty in making such proof, does not concern the reviewing court. (Penziner v. West American Finance Co., 133 Cal.App. 578 [24 P.2d 501]; 21 Cal.Jur., p. 96, sec. 62.)

It should also be noted that the state of California owns "all land...

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