City of Berkeley v. Superior Court

• Decision Date: 22 February 1980
• Docket Number: S.F. 23686
• Citation: 26 Cal.3d 515,162 Cal.Rptr. 327
• Court: California Supreme Court
• Parties: , 606 P.2d 362, 10 Envtl. L. Rep. 20,394 CITY OF BERKELEY et al., Petitioner, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; SANTA FE LAND IMPROVEMENT COMPANY et al., Real Parties in Interest.

Page 327

162 Cal.Rptr. 327

26 Cal.3d 515, 606 P.2d 362, 10 Envtl. L. Rep. 20,394

CITY OF BERKELEY et al., Petitioner, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent SANTA FE LAND IMPROVEMENT COMPANY et al., Real Parties in Interest.

S.F. 23686.

Supreme Court of California.

Feb. 22, 1980.

As Modified on Denial of Rehearing March 27, 1980.

Evelle J. Younger, Atty. Gen., N. Gregory Taylor, Asst. Atty. Gen., Dennis M. Eagan, Deputy Atty. Gen., Michael Lawson, City Atty., Sullivan, Jones & Archer, Richard J. Archer, Kristina M. Hanson, San Francisco and Lee J. Sclar, Oakland, for petitioner.

Hancock, Rothert & Bunshoft, Barry L. Bunshoft, Donald Alford Weadon, Jr., and John D. Hoffman, San Francisco, as amici curiae on behalf of petitioner.

No appearance for respondent.

Edgar B. Washburn, Frederick M. Wooster, Landels, Ripley & Diamond, San Francisco, Paul O. Lamphere and Cox, Cummins & Lamphere, Martinez, for real parties in interest.

Pillsbury, Madison & Sutro, Noble K. Gregory and Allan N. Littman, San Francisco, as amici curiae on behalf of real parties in interest.

MOSK, Justice.

We are concerned in this case with whether tidelands ¹ in San Francisco Bay granted to private parties by the state Board of Tide Land Commissioners (board) in the latter part of the 19th century, pursuant to a legislative act passed in 1870, conveyed title to the purchasers free of the public trust for commerce, navigation, fishing, and related uses. Knudson v. Kearney (1915) 171 Cal. 250, 152 P. 541, and Alameda Conservation Association v. City of Alameda (1968) 264 Cal.App.2d 284, 70 Cal.Rptr. 264, held that these grants were in fee simple and not subject to the rights of the public. We conclude that these decisions were erroneous and must be overturned, but that tracts of land granted by the board that have been improved or filled are, to the degree hereinafter described, free of the public trust.

Santa Fe Land Improvement Company, a corporation, and George W. Murphy (plaintiffs) each brought an action against the City of Berkeley and the State of California (defendants) to quiet title to 79 acres of land located in the City of Berkeley adjacent to the Berkeley Marina, for declaratory relief, and inverse condemnation. Plaintiffs' predecessors in interest had acquired the parcels from the board by deeds issued pursuant to the 1870 act. At the time of acquisition the property was tideland, but all except a small portion has been filled. ² Plaintiffs alleged that they owned these parcels free of any trust on behalf of the public for commerce, navigation and fishing.

Defendants denied that plaintiffs own the 79 acres in question, and the state filed a cross-complaint, ³ claiming that Berkeley owns the property in fee under a grant from the state, ⁴ or, in the alternative, that plaintiffs' title is subject to the public trust. The cross-complaint alleged also that Santa Fe claims 608 acres and Murphy 48 acres of Berkeley's tidelands, comprising 77 percent of that city's entire waterfront, that this additional acreage was, like the 79 acres involved in plaintiffs' complaint, acquired by deeds issued pursuant to the 1870 act, and that Santa Fe asserts that the additional property is also free of the public trust. The cross-complaint sought to include the additional acreage in the action.

Plaintiffs moved for partial summary judgment as to the 79 acres claimed in their complaints. In support of their motion they produced documents establishing that the property had been conveyed by deeds that the board issued between 1872 and 1875 to their predecessors in interest, granting to them "all the right title and interest of the State of California in and to" the property. The trial court granted the motion, deciding under the authority of Knudson and Alameda Conservation that the deeds issued by the board terminated the public trust in the properties conveyed. Defendants seek a writ of mandate to compel the trial court to set aside this order. ⁵

Although plaintiffs' motion for summary judgment involved only 79 acres, almost all of which have been filled, the trial court's ruling that the conveyances granted by the board were free of the public trust as of the time they were made affects all the grants of the board pursuant to the 1870 act.

The City of Berkeley is in Alameda County. It borders on the eastern side of the northern reaches of San Francisco Bay (the Bay), and its boundary includes more than two miles of shoreline and a large submerged area to the west. The 79-acre tract involved in plaintiffs' motion borders on the extension of University Avenue running west of the Eastshore Freeway. Approximately one-third of the tract lies between the 1870 lines of mean high tide and mean low tide, and the remainder was submerged land at that time.

The doctrine that the public owns the right to tidelands for purposes such as commerce, navigation and fishing originated in Roman law, which held the public's right to such lands to be "illimitable and unrestrainable" and incapable of individual exclusive appropriation. (See Note, The Public Trust in Tidal Areas (1970) 79 Yale L.J. 762, 763, fn. 7.) The English common law developed similar limitations upon private authority over such property: the rights of the public prevailed over the rights of private persons claiming under tideland grants made by the crown. (See Note, California's Tideland Trust (1971) 22 Hastings L.J. 759, 761-762.) After the American Revolution, the federal government acquired "absolute right to all . . . navigable waters, and the soils under them, for (its) own common use . . . ." (Martin v. Waddell (1842) 41 U.S. 367, 410, (16 Pet.) 10 L.Ed. 997.)

When California was admitted to statehood in 1850, it succeeded to title in the tidelands within its borders not in its proprietary capacity but as trustee for the public. (City of Long Beach v. Mansell, supra, 3 Cal.2d 462, 482, 91 Cal.Rptr. 23, 476 P.2d 423; People v. Kerber (1908) 152 Cal. 731, 733, 93 P. 878; Ward v. Mulford (1867) 32 Cal. 365, 372.) Although early cases expressed the scope of the public's right in tidelands as encompassing navigation, commerce and fishing, the permissible range of public uses is far broader, including the right to hunt, bathe or swim, and the right to preserve the tidelands in their natural state as ecological units for scientific study. (Marks v. Whitney (1971) 6 Cal.3d 251, 259-260, 98 Cal.Rptr. 790, 491 P.2d 374.)

There were limitations imposed by this ancient doctrine upon the alienation of tidelands to private parties. Illinois Central Railroad Company v. Illinois (1892) 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018, was the seminal case on the scope of the public trust doctrine and remains the primary authority even today, almost nine decades after it was decided. The decision established the principle that a state, as administrator of the trust in tidelands on behalf of the public, does not have the power to abdicate its role as trustee in favor of private parties.

In 1869, the Illinois Legislature granted to the Illinois Central Railroad Company in fee simple 1,000 acres of tide and submerged lands, representing virtually the entire waterfront of Chicago. The only limitations upon the grant were that the railroad company could not authorize obstruction of the harbor or impair the public right of navigation, and that the Legislature retained the right to regulate wharfage fees when docks were built. Four years later, the Legislature thought better of its action and enacted a measure to revoke the grant, an action which was challenged by the railroad.

The court held that the grant was revocable, and that the state could resume exercise of its trust rights at any time. The decision recognized that parcels of land under navigable waters conveyed to private parties for wharves or docks and other structures in aid of commerce may be granted free of the public trust because such uses are consistent with trust purposes. ⁶ But it determined that the Legislature did not have the power to convey the entire waterfront of the city to a private party free of the trust. The court declared that one legislature does not have the power to "give away nor sell the discretion of its successors" to "exercise the powers of the State" in the execution of the trust and that legislation "which may be needed one day for the harbor may be different from the legislation that may be required at another day." (See also Mallon v. City of Long Beach (1955) 44 Cal.2d 199, 207, 282 P.2d 481; People v. California Fish Co. (1913) 166 Cal. 576, 593, 138 P. 79.)

The principles of Illinois Central have suffered a checkered history in California. Soon after statehood, the Legislature began to sell into private ownership vast tracts of tidelands, often at public auction. In San Francisco Bay, large parcels were sold by deeds purporting to transfer title in fee simple absolute. Many of these transfers were fraudulently made. ⁷ In 1868, the Legislature created the Board of Tide Land Commissioners. It was directed to take possession of marshland, tideland and submerged land in the City of San Francisco, to establish a waterfront line for the city, and to sell lots within that line, reserving parcels for certain purposes. (Stats.1867-1868, ch. 543, §§ 1, 4, 5, [26 Cal.3d 523] pp. 716-720.) The territorial jurisdiction of the board was extended by a supplementary act in 1870. (Stats.1869-1870, ch. 388, §§ 1, 2, 3, pp. 541-542.) The property involved in this proceeding was conveyed by board deeds under its extended jurisdiction. The history and content of these measures will be discussed in further detail, Infra.

The widespread abuses in the disposition of tidelands led to the adoption in 1879 of article XV, sections 2 and 3 of the Constitution (now art. X, §§ 3 & 4). These provisions prohibit the sale to private persons of tidelands within two miles of an incorporated city, and state that no...