Abbott Kinney Co. v. City of Los Angeles

• Citation: 340 P.2d 14
• Court: California Court of Appeals Court of Appeals
• Decision Date: 27 May 1959
• Parties: ABBOT KINNEY COMPANY, a corporation; Ethel Fraser Prentiss; Fraser Prentiss; Ethel Fraser Carman Ryles; Olive Byrne Jones; Ruth Jones Wright; California Bank, a corporation, as Trustee under decree of distribution in the matter of the Estate of Herbert Richmond Gage, Deceased, Los Angeles County Superior Court case #110526, Probate, Plaintiffs, Appellants and Respondents, v. CITY OF LOS ANGELES, a municipal corporation, Department of Recreation and Parks of the City of Los Angeles, Defendants. City of Los Angeles, a municipal corporation, Defendant, Respondent and Appellant. * Civ. 23425.

Page 14

340 P.2d 14

ABBOT KINNEY COMPANY, a corporation; Ethel Fraser Prentiss; Fraser Prentiss; Ethel Fraser Carman Ryles; Olive Byrne Jones; Ruth Jones Wright; California Bank, a corporation, as Trustee under decree of distribution in the matter of the Estate of Herbert Richmond Gage, Deceased, Los Angeles County Superior Court case #110526, Probate, Plaintiffs, Appellants and Respondents, v. CITY OF LOS ANGELES, a municipal corporation, Department of Recreation and Parks of the City of Los Angeles, Defendants. City of Los Angeles, a municipal corporation, Defendant, Respondent and Appellant. ^*

Civ. 23425.

District Court of Appeal, Second District, Division 2, California.

May 27, 1959.

Rehearing Denied June 23, 1959.

Hearing Granted July 22, 1959.

Paul R. Hutchinson, Los Angeles, Davis & Davis, Beverly Hills, for plaintiffs, appellants and respondents.

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., Ralph J. Eubank, Deputy City Atty., Los Angeles, for defendant, respondent and appellant.

ASHBURN, Justice.

Plaintiffs sued for a judgment declaring that the title to certain property situated upon and bounded by the high tide line of Santa Monica Bay of the Pacific Ocean had reverted to them as a result of the violation of certain conditions subsequent upon which their predecessors in interest had conveyed the property to the city of Ocean Park.

The deed provided in the habendum clause that the premises should be held 'in the hereinafter named trust, forever, as a pleasure park or beach for the use, benefit and enjoyment of the public in general and particularly the inhabitants of said City and the owners of the property lying adjacent to the property hereinbefore described.' Among the conditions was the requirement that 'said lands and every part thereof must at all times be kept free from teaming, open and unobstructed for the use and enjoyment of the public and as a pleasure park or beach, and said property shall be kept clean at said City's expense.' ¹

The trial court found that the conditions had been breached and adjudged a forfeiture of that portion of the premises which has been converted into a parking lot for the use and convenience of persons desiring to visit the beach.

The trial judge having retired, defendant's motion for new trial was heard by another judge who granted it upon grounds of insufficiency of the evidence and errors of law. Plaintiffs appealed from that order and defendant City of Los Angeles took a cross-appeal from the judgment. We shall consider first the order granting a new trial; if that is affirmed the appeal from the judgment becomes moot and must be dismissed. 3 Witkin on California Procedure, § 122, p. 2299; Freeman v. La Morte, 148 Cal.App.2d 670, 675, 307 P.2d 734. We have concluded that the order granting a new trial must be affirmed and therefore we shall refer to plaintiffs as appellants and to defendant City of Los Angeles as respondent.

The rule governing review of an order granting a new trial was stated by us in Brown v. Guy, 144 Cal.App.2d 659, 661, 301 P.2d 413, 414: 'Upon the consideration of a motion for a new trial the court must make an independent appraisal of the evidence, including all presumptions and reasonable inferences, and must judicially determine whether the judgment effects a miscarriage of justice. In considering such motion the trial court is not bound by a conflict in the evidence but may be governed by any substantial proof that would reasonably warrant a judgment for the moving party even though such evidence consists of nothing more than inferences from established facts. On appeal from the order it will not be reversed unless the reviewing court concludes that as a matter of law there is no substantial evidence to support a contrary judgment.'

Contrary to the contention of appellants the law is settled that a substitute judge occupies the same position as the one who tried the case with respect to granting a new trial for insufficiency of the evidence to support the findings. See, Empire Investment Co. v. Mort, 169 Cal. 732, 736, 147 P. 960; Commander Oil Co., Ltd. v. Bardeen, 48 Cal.App.2d 345, 346, 119 P.2d 969. There is no distinction in this respect between jury and non-jury trials. Both of the cited cases involved non-jury trials, as does the one here on appeal.

Two major questions emerge from the instant record. Does alluvion resulting from a gradual and imperceptible accretion belong to the owner of the upland where that alluvion has resulted from a combination of natural and artificial causes? Is an automobile parking lot a permissible incident to the use of land conveyed to a municipality for a public park or beach upon condition that it be kept 'open and unobstructed for the use and enjoyment of the public and as a pleasure park or beach'?

First, as to the status of the property which the court held to have reverted to plaintiffs as successors in interest of the grantors.

In 1904, Abbot Kinney and associates laid out the town of Venice on Santa Monica Bay. The site was then but a strip of ocean beach and sand lots. The town was obviously intended as a beach resort. On February 20, 1904, in furtherance of that project, Abbot Kinney, A. R. Fraser, G. M. Jones and H. R. Gage conveyed to the city of Ocean Park ² (within the limits of which the land was situated) some 15 contiguous fractional lots of beach frontage situated in 3 adjoining tracts. The property was described by lots as designated upon the respective subdivision maps, which showed them to be 50 feet (plus or minus) to 70 feet (plus or minus) in depth, bounded on the east by a 10-foot plank walk, and on the west ³ by the ocean. The parking lot in question adjoins three of the most northerly lots in the Crescent Bay Tract (the most northerly tract) and extends a north-south distance of approximately 750 feet, and from east to west some 130 to 150 feet.

Counsel for both sides rely upon a composite map which was introduced in evidence as exhibit 'J' and which shows the tide line as depicted by various maps 1946, 1953 and 1956. The tract maps show 1946, 4953 and 1956. The tract maps show the west boundary as a wavy line opposite the word 'Ocean.' This implies mean high tide line as the boundary. Strand Improvement Co. v. City of Long Beach, 173 Cal. 765, 770, et seq., 161 P. 975; 8 Cal.Jur.2d, § 11 p. 723. ⁴ The 1876 line as shown on exhibit 'J' was taken from a coast survey map which was not designed to locate the high tide line with any accuracy. The subdivision maps were filed in 1902 and said exhibit depicts the 1902 line as a straight one which at the north end separates the fractional lots of Crescent Bay Tract from the parking lot. Those fractional lots opposite the parking area scale less than 50 feet in depth.

It is apparent from the map and other evidence that the parking area is located partially upon upland included in the conveyance of 1904, and partially upon land to the west which is alluvion from some source. The parking lot was laid out in 1954; the map shows that the mean high tide line at that time was more than 400 feet west of the location of the 1902 high tide line as shown on said exhibit. The trial judge found 'that in or about the year 1946 artificial alluvial was pumped onto the tide land seaward of the ordinary high water mark of the Pacific Ocean, adding about 200 feet of sand seaward. That said artificial alluvial has at all times since been used as a public beach.' The last survey prior to 1946 was made in 1935 and the tide line was then some 250 feet west of its 1902 location.

All the evidence indicates that this growth prior to the 1946 fill was gradual and imperceptible. Appellants make no claim to the alluvion caused by the 1946 filling, which was done by the city of Los Angeles (corporate successor to Ocean Park and Venice), but insist that the added land caused by accretion prior to 1946 belongs to them, whether induced by natural means or a combination of natural and artificial causes. Respondent's expert witness took the position that any alluvion caused by such a combination of natural and artificial causes requires that it be classified as artificial, with the result that it belongs to the City as grantee of the State. Appellants' expert: 'Q. Now, Dean, Mr. Oleweiler testified that there were many structures in Santa Monica Bay affecting the movement of the currents of the water within the bay, and that by virtue of the fact that all such currents within the bay were affected by such artificial structures that all accretion that was formed within the bay, in his opinion, was not natural but artificial accretion. Have you ever heard such a doctrine or is there such a doctrine in existence in your profession? A. I have not, no. * * * Q. This map shows that at least between the 1876, * * * down to the time before the fill was put in from the Hyperion development that there was a substantial change in accretion in the shoreline? A. Yes. Q. Now, it isn't your testimony, I take it, that that accretion was wholly natural accretion? A. Up until the time, I would consider it all natural accretion except that that was actually dumped in there or carried in there, yes. Q. In other words, any accretion that may be formed there because of the Santa Monica breakwater or the Santa Monica pier or Ocean Park pier, Venice Pier, Venice Breakwater, would you still call that natural accretion as you use the term? A. Yes.'

Our examination of the record discloses that there is no evidence to warrant a finding that any part of the parking lot is on artificial alluvion ⁵ unless it be true as matter of law that gradual and imperceptible accretion caused by both artificial and natural processes falls within the classification of artificial alluvion which does not accrue to the title of the owner of the upland. The evidence reveals that over the years prior to the filling done by the city of Los Angeles in 1946, there was a...