Alameda Conservation Ass'n v. City of Alameda

• Decision Date: 24 July 1968
• Citation: 70 Cal.Rptr. 264,264 Cal.App.2d 284
• Court: California Court of Appeals Court of Appeals
• Parties: ALAMEDA CONSERVATION ASSOCIATION, a California corporation, Plaintiff and Appellant, v. The CITY OF ALAMEDA, a municipal corporation, Shore Line Properties, Inc., aCalifornia corporation, and the Board of Trustees of Reclamation District 2105of the City and County of Alameda, and the State of California, Defendants andRespondents. Civ. 24287.

Page 264

70 Cal.Rptr. 264

264 Cal.App.2d 284

ALAMEDA CONSERVATION ASSOCIATION, a California corporation, Plaintiff and Appellant, v. The CITY OF ALAMEDA, a municipal corporation, Shore Line Properties, Inc., aCalifornia corporation, and the Board of Trustees of Reclamation District 2105of the City and County of Alameda, and the State of California, Defendants andRespondents.

Civ. 24287.

Court of Appeal, First District, Division 3, California.

July 24, 1968.

Hearing Denied Sept. 18, 1968.

Henry M. Siegel, San Francisco, Benjamin F. Marlowe, Oakland, Neil Cunningham, San Francisco, for appellant.

Thomas C. Lynch, Atty. Gen., Paul M. Joseph, Deputy Atty. Gen., Sacramento, for respondent, State.

Frederick M. Cunningham, City Atty., City of Alameda, Alameda, for respondent, City of Alameda.

Townsend & Alley, Peter L. Townsend, Roy L. Alley and Louis I. Mallette and Lawrence D. Becker, San Francisco, for respondent, Shore Line Properties, Inc.

Orrick, Herrington, Rowley & Sutcliffe, William H. Orrick, Jr., Willoughby C. Johnson, San Francisco, Davis, Craig & Bartalini, James B. Davis, Alameda, for respondent Board of Trustees of Bay Farm Island Reclamation Dist. No. 2105.

DRAPER, Presiding Justice.

Plaintiff sought to enjoin alleged dredging and filling of tidelands. Defendants are the City of Alameda, the board of trustees of Bay Farm Island Reclamation District No. 2105, Shore Line Properties, Inc., and the State of California. Plaintiff alleged that the lands in issue were granted to defendant city by a 1913 act of the California legislature (Stats.1913, c. 348, p. 707, as amended by Stats.1917, c. 594, p. 907). This act specifically conveys the lands in trust, limiting their use to furtherance of commerce and navigation. If these lands were so conveyed, there could well be a question of fact, determinable in this proceeding, whether their present or proposed use is within the limited trust purpose. Defendants, however, asserted that all lands included in this action in fact were acquired almost a century ago, by private owners, through deeds from the state under authorization of acts of 1868 (Stats.1867--8, c. 543, p. 716) and 1870 (Stats.1869--70, c. 388, p. 541), and that the corporate defendant's title derives from those grantees. On this basis, they moved for summary judgment, which was granted. Plaintiff appeals.

No citation of authority is required to establish that reservations of a 1913 grant could not limit title transferred in fee and without restriction many years earlier.

But this does not dispose of the issue. Although a state owns the lands underlying its bays (People v. California Fish Co., 166 Cal. 576, 584, 138 P. 79; see United States v. State of California, 332 U.S. 19, 30, 67 S.Ct. 1658, 91 L.Ed. 1889), it holds them in trust for the public for purposes of navigation and commerce (People v. California Fish Co., supra). But this trust is terminable. Upon proper legislative determination, such lands may be transferred by the state free of the trust. Conveyance of like lands under the acts of 1868 and 1870 does in fact so terminate the trust and pass unrestricted title to the grantee (Knudson v. Kearney, 171 Cal. 250, 152 P. 541; see Boone v. Kingsbury, 206 Cal. 148, 186; Richmond Wharf & Dock Co. v. Blake, 39 Cal.App. 1, 4, 177 P. 508). The very acts here involved have been described as '(t)he most striking instance of the exercise of this power of absolute disposition of such tide or submerged lands by the state of California' (People v. California Fish Co., supra, 166 Cal. 576, 585, 138 P. 79). Thus it has long since been determined that deeds under the acts of 1868 and 1870 do dispose absolutely of the land, and terminate any trust therein. It follows that the 1871 deeds of the lands here involved transferred them to private ownership free of trust, and left no title to be granted or restricted by the act of 1913.

Plaintiff argues that the declarations in support of the motion for summary judgment are insufficient to establish validity of the 1871 deeds from the state to private owners. The acts of 1868 and 1870 require preparation of subdivision maps, sale at public auction of lots shown on such maps, and payment of 25% Of the bid price by each buyer. These steps are shown in detail by the declarations and exhibits incorporated in them. Read together, as they must be, the acts provide that the commissioners shall, upon receipt of payment of 25% Of the high bid, execute deed to the purchaser to be deposited with the state treasurer, who shall deliver it to the grantee only when he has received the remaining 75% Of the bid price. Plaintiff argues that payment of the 75% Remaining due after the initial auction is not properly shown. But the deeds attached to the declarations show that they were delivered, since all have been recovered. Thus the presumption that official duty has been regularly performed (Ev.Code, § 664) applies, and the burden of proving non-payment of the full balance falls upon plaintiff (Ev.Code, § 604). Plaintiff has introduced no evidence on this issue.

Moreover, the declaration of an officer of the state agency having custody of the records here in issue avers that these official records show that 'the lots were paid for in full.' This declaration is not merely conclusory. It directly avers the content of records which are public and thus available to plaintiff. Yet plaintiff never denies the accuracy of the averment. It merely suggests that it is insufficiently detailed. We cannot agree. These transactions of nearly a century ago obviously are not the subject of recollection by persons now living. Only the official records are available and defendants' declarations adequately establish them.

Plaintiff's contention that the deeds could be executed only by the governor is negated by the terms of the acts of 1868 and 1870, which clearly provide for execution by the commissioners. There is no merit in plaintiff's assertion that...