Colberg, Inc. v. State

• Decision Date: 01 December 1966
• Citation: 55 Cal.Rptr. 159
• Court: California Court of Appeals Court of Appeals
• Parties: COLBERG, INC., a California corporation, Wilton Colberg, Jack Colberg and Gordon Colberg, copartners, doing business as Colberg Boat Works, Plaintiffs and Appellants, v. The STATE of California etc., Defendant and Respondent. STEPHENS MARINE, INC., a California corporation, Plaintiff and Appellant, v. The STATE of California etc., Defendant and Respondent. Civ. 11259.

Page 159

55 Cal.Rptr. 159

COLBERG, INC., a California corporation, Wilton Colberg, Jack Colberg and Gordon Colberg, copartners, doing business as Colberg Boat Works, Plaintiffs and Appellants, v. The STATE of California etc., Defendant and Respondent.

STEPHENS MARINE, INC., a California corporation, Plaintiff and Appellant, v. The STATE of California etc., Defendant and Respondent.

Civ. 11259.

Court of Appeal, Third District, California.

Dec. 1, 1966

For Opinion Hearing, see 62 Cal.Rptr. 401, 432 P.2d 3.

Richard B. Daley, of Daley, Patridge & Garrett, Stockton for plaintiffs-appellants Colberg.

James C. Van Dyke, of Van Dyke & Shaw, Stockton, for plaintiff-appellant Stephens Marine, Inc.

Harry S. Fenton, Robert F. Carlson, Marc Sandstrom, by Marc Sandstrom, Sacramento, for respondent.

FRIEDMAN, Justice.

This declaratory relief action poses the question whether shipyard owners are entitled to eminent domain damages caused by the erection of a low-level, state highway bridge across a navigable waterway, curtailing ship access to their yards.

The appeal embraces two consolidated actions. For 60 years or more plaintiffs Colberg, Inc., and Stephens Marine, Inc., have conducted neighboring shipyards in the City of Stockton, building and repairing ships, yachts and small boats. The Colberg yard occupies about 8 acres, the Stephens yard about 6. Both yards are situated on the Upper Stockton Channel, a natural, navigable waterway extending easterly from the turning basin of the Port of Stockton. The channel comes to a dead end about 5,000 feet east of the turning basin. Oceangoing and smaller vessels use the Upper Stockton Channel to pass between plaintiffs' yards and the turning basin, from which they may navigate to the sea by way of the Stockton Deep Water Channel, Carquinez Straits and San Francisco Bay. Both yards are improved with marine ways, buildings, docks and allied facilities. Both are riparian to the Upper Stockton Channel.

The State Division of Highways proposes to construct twin freeway bridges across the Upper Stockton Channel, between plaintiffs' shipyards and the turning basin. These will be stationary bridges with a vertical clearance of 45 feet above water level. In conformity with federal law the state applied for and received a permit from the Secretary of the Army and the Chief of the Corps of Engineers, specifying the 45-foot clearance. The bridge will prevent ships over 45 feet in height from passing through the channel to plaintiffs' yards. Colberg alleges that 81 percent of its current business involves ships which will be unable to reach its yard after the bridges are installed. Stephens declares that curtailment of marine access to its yard will cost it 35 percent of its business. Both declare that the impairment of access will substantially diminish the value of their yards. The present height restriction between these shipyards and the world's oceans is 135 feet, established by the twin bridges of Interstate Highway 80 over the Carquinez Straits.

At oral argument counsel for the State Division of Highways explained that a bridge high enough to accommodate plaintiffs' shipyard traffic would require elevated and extended approaches through the heart of the City of Stockton, producing a variety of adverse effects; that draw or swing bridges are unsuitable for a freeway. Such conditions necessitated selection of the low level, stationary bridge design.

The trial court held that financial injury caused by the bridge project would not be compensable as a taking or damaging of private property under the eminent domain provisions of the California Constitution; ¹ that construction of these interstate freeway bridges pursuant to a federal permit is an exercise of the State's inherent power to control the use of its navigable waters. Accordingly, it ordered entry of judgments on the pleadings in favor of the State. The shipyard owners appeal.

The parties apparently agree that adjudication of the compensability question should not await conventional condemnation or inverse damage suits. The complaints declare that the shipyard owners have substantial investments in their yards; that damage litigation after construction of the bridge project will occupy much time, during which their business operations will be cut back or cut off; that a declaratory judgment establishing compensability will enable them to relocate their respective operations with a minimum interruption of business; that the state rejects the plaintiffs' claim of compensability under existing eminent domain law. These conditions make declaratory relief appropriate.

The appeal presents two major questions: First, since the state proposes no physical taking of private lands but only an offsite obstruction to access by water, is there a taking or damaging of private property within the scope of article I, section 14, of the California Constitution? Second, is the state acting under its sovereign power over navigable water, a power to which private water rights are usually subordinate?

Initially, a line must be drawn between two kinds of rights enjoyed by the owner of property abutting on public, navigable water. One is the right of access from the upland to his own waterfront, a private right. ² The other is the right of navigation, a right which--generally speaking--the owner shares with the public. We are here concerned with a physical impairment of the latter right, not the former. Article I, section 14 of the California Constitution declares compensability for the taking or damaging of "private property" only. If, as many of the authorities hold, the littoral owner's right of navigation is purely public and not at all private, he has no compensable interest, though he suffers economic loss from the obstruction to navigation.

According to the weight of authority, a littoral owner's right to navigate between his land and the world's oceans is not a private right, but one which he shares with the general public; hence he has no constitutional right of eminent domain compensation when a downstream bridge 'without draws' cuts him off from the outside world. ³ The holding is consistent with cases denying the upstream owner injunctive relief against the obstruction of navigation by a downstream bridge built in compliance with public laws controlling navigability. ⁴

The rule against compensation for interferences with navigation is just as fixed or malleable as the concept of private property embodied in the eminent domain provision of a state's constitution. Mr. Justice Jackson once warned: 'But that a closed catalogue of abstract and absolute 'property rights' in water hovers over a given piece of shore land, good against all the world, is not in this day a permissible assumption. We cannot start the process of decision by calling such a claim as we have here a 'property right;' whether it is a property right is really the question to be answered.' (United States v. Willow River Power Co., 324 U.S. 499, 502-503, 65 S.Ct. 761, 764, 89 L.Ed. 1101.)

The amendment of state constitutions, including California's, to provide compensation when private property is "damaged" as well as "taken" for public use, indicates an intent to expand the area of compensability, requiring the courts to fix its limits by placing the economic interests of the public in balance against the sacrifices imposed on the landowner. (Bacich v. Board of Control, 23 Cal.2d 343, 350-351, 144 P.2d 818; concurring opinion of Edmonds, J. ibid., pp. 358-360, 144 P.2d pp. 826-832; see Albers v. County of Los Angeles, 62 Cal.2d 250, 262-263, 42 Cal.Rptr. 89, 398 P.2d 129.) The case-by-case balancing of these competing interests results in judicial expansion or contraction of a group of intangible rights recognized as compensable "private property." Compensable property, it is now recognized, includes not only the physical land and improvements but certain intangible rights of access between the land and the outside world. Thus, although the owner uses the streets in common with the rest of the public, he owns a private easement of access which consists of the right to get into the street abutting his property and thence to the general system of public streets and highways. (Valenta v. County of Los Angeles, 61 Cal.2d 669, 671, 39 Cal.Rptr. 909, 394 P.2d 725; Breidert v. Southern Pac. Co., 61 Cal.2d 659, 663, 39 Cal.Rptr. 903, 394 P.2d 719, citing preceding California decisions; cf. Sneed v. County of Riverside, 218 Cal.App.2d 205, 32 Cal.Rptr. 318, re airspace invasion.) Not every impairment of access to the general system of public streets is compensable in eminent domain. Compensability, rather, requires an individualized finding of substantial impairment, a finding of fact delegated to the trial court and not the jury. (Breidert v. Southern Pac. Co., supra, 61 Cal.2d at pp. 663-665, 39 Cal.Rptr. 903, 394 P.2d 719; People v. Ricciardi, 23 Cal.2d 390, 402-403, 144 P.2d 799.)

The central problem is to locate a line between compensable damage to private property and disadvantages of the kind called "consequential." Of the latter sort are such elements as loss of business and diminution of traffic caused by diversion of traffic and circuity of travel. (People ex rel. Department of Public Works v. Symons, 54 Cal.2d 855, 860, 9 Cal.Rptr. 363, 357 P.2d 451.) Applying the economic balancing test, the Supreme Court points out that awards of the latter sort would severely burden the public treasury and produce ' 'an embargo upon the creation of new and desirable roads.' ' (Ibid., p. 862, 9 Cal.Rptr. p. 367, 357 P.2d p. 455.)

The street access doctrine represents an expanded notion of the constitutional concept of private property whose invasion or damage is compensable in eminent domain. It means that "property" in an eminent domain sense includes not only a piece of the earth's surface but an intangible right of movement between it and the outside world; that,...