Colberg, Inc. v. State ex rel. Dept. of Public Works

• Decision Date: 03 October 1967
• Citation: 67 Cal.2d 408,432 P.2d 3,62 Cal.Rptr. 401
• Court: California Supreme Court
• Parties: , 432 P.2d 3 COLBERG, INC., et al., Plaintiffs and Appellants, v. STATE of California ex rel. DEPARTMENT OF PUBLIC WORKS, Defendant and Respondent. STEPHENS MARINE, INC., Plaintiff and Appellant, v. STATE of California ex rel. DEPARTMENT OF PUBLIC WORKS, Defendant and Respondent. Sac. 7694.

Page 401

62 Cal.Rptr. 401

67 Cal.2d 408, 432 P.2d 3

COLBERG, INC., et al., Plaintiffs and Appellants, v. STATE of California ex rel. DEPARTMENT OF PUBLIC WORKS, Defendant and Respondent.

STEPHENS MARINE, INC., Plaintiff and Appellant, v. STATE of California ex rel. DEPARTMENT OF PUBLIC WORKS, Defendant and Respondent.

Sac. 7694.

Supreme Court of California In Bank.

Oct. 3, 1967.

Rehearing Denied Nov. 1, 1967.

Daley, Patridge & Garrett, Richard B. Daley, Van Dyke & Shaw and James C. Van Dyke, Stockton, for plaintiffs and appellants.

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

SULLIVAN, Justice.

These consolidated actions ¹ for declaratory relief present the common issue whether plaintiff shipyard owners will have any causes of action for damages under the law of eminent domain arising out of the impairment of their access to the Stockton Deep Water Ship Channel as a result of the construction of two proposed fixed low level parallel bridges spanning a connecting navigable waterway to which their properties are riparian. Separate judgments on the pleadings in favor of defendant State of California were entered below and all plaintiffs have appealed.

The record discloses that although the judgments were entered upon an order granting separate motions for judgment on the pleadings, defendant filed no answer in either case. Its motion therefore had the purpose and effect of a general demurrer (2 Witkin, Cal.Procedure, p. 1706) and on review is to be tested by the same rules. (Dragna v. White (1955) 45 Cal.2d 469, 470, 289 P.2d 428; Chas. L. Harney, Inc. v. Contractors' Bd. (1952) 39 Cal.2d 561, 565, 247 P.2d 913.) Since the motion was used to perform the function of a general demurrer, it 'reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice' (Weil v. Barthel (1955) 45 Cal.2d 835, 837, 291 P.2d 30, 31) and 'admits all material and issuable facts pleaded.' (Flores v. Arroyo (1961) 56 Cal.2d 492, 497, 15 Cal.Rptr. 87, 90, 364 P.2d 263, 266.) We The Stockton Deep Water Ship Channel is a navigable tidal waterway extending from the mouth of the San Joaquin River to the Port of Stockton. From the turning basin adjoining the port, the channel continues easterly for about 5,000 feet and comes to a dead end within the confines of the city. This portion of the waterway is known as the Upper Stockton Channel. Plaintiffs Colberg ³ and Stephens Marine, Inc. (Stephens), own real property in the City of Stockton riparian to the Upper Stockton Channel upon which for more than sixty years they have conducted shipyards for the construction and repair of yachts and ocean-going vessels. Both yards are improved with marine ways, buildings, docks and allied facilities. Colberg's property consists of approximately eight acres; Stephens' of approximately six. Ships and other craft now using the Upper Stockton Channel can proceed to the turning basin and the Stockton Deep Water Ship Channel and thereupon navigate to the open sea by way of the Carquinez Straits and San Francisco Bay.

[432 P.2d 6] proceed to set forth the facts in the light of these principles. ²

The state proposes to construct twin stationary freeway bridges across the Upper Stockton Channel Between plaintiffs' properties and the turning basin. The vertical clearance of these bridges is to be, generally speaking, 45 feet above the water line. Pursuant to federal law the state applied to the Secretary of the Army and the Chief of Engineers for a permit to build such bridges. (See 33 U.S.C.A. § 525, subd. (b)). After a public hearing, consideration of the views of various interested persons including these plaintiffs, and an extensive economic survey, approval of the location and plans of the bridges was granted by federal authorities in February 1964, subject to conditions not here necessary to be detailed.

Colberg alleges that 81 percent of its current business involves ships standing more than 45 feet above the water line. Plaintiff Stephens alleges that 35 percent of its current business involves such ships. The present minimum clearance between plaintiffs' yards and the Pacific Ocean is 135 feet, established by the Antioch Bridge. Plaintiffs allege in substance that after the construction of the proposed bridges, no vessel with fixed structure in excess of 45 feet above the water line will be able to enter their respective shipyards; that there is no other access by water to the yards from the San Joaquin River, San Francisco Bay and the oceans of the world; and that plaintiffs, their properties and their businesses will suffer loss and damages because of the impairment of access resulting from the construction of the bridges. ⁴ Plaintiffs in both Counsel for the state pointed out to us at oral argument that a bridge of vertical clearance sufficient to accommodate plaintiffs' shipyard traffic would involve greatly increased construction costs because it would entail extended approaches: ⁵ that the added height of such approaches would have an adverse effect upon intangible community values; and that a draw or swing bridge would be unsuitable for freeway purposes.

[432 P.2d 7] actions allege that an actual controversy exists (see Code Civ.Proc. § 1060) between each of them and the state as to whether the alleged impairment of access to 'the main channel of the San Joaquin River' is compensable.

The trial court granted the state's motion for judgment on the pleadings in both cases and entered judgments accordingly. In its memorandum opinion it held that diminution of the scope of plaintiffs' access from their respective properties to the Stockton Deep Water Ship Channel as a result of the state's proposed action relative to its navigable waters would not constitute a taking or damaging of private property for which just compensation would be required.

It is not disputed that an actual controversy exists between the parties on this question; that if plaintiffs were required to await construction of the bridge before commencing an action at law, they would suffer irreparable damage because of interference with their businesses during construction; that a declaratory judgment resolving the question of compensability in their favor prior to completion of the bridge project will permit relocation of their respective operations with a minimum of inconvenience; and that plaintiffs will be unable to plan their businesses or enter into necessary long-term business contracts, until such question is settled. We are satisfied that under the above circumstances plaintiffs were entitled to invoke declaratory relief. ⁶

The sole question in this case is whether the alleged impairment of plaintiffs' access to the Stockton Deep Water Ship Channel constitutes a taking or damaging of private property within the meaning of article I, section 14 of the California Constitution. ⁷ In order to answer this question we are led to an examination of the interest of the state in its navigable waters; in the In order to put the controversy into proper focus, we must first make some preliminary observations concerning plaintiffs' position and the nature and extent of their claim. First, it is clear that plaintiffs must assert the taking or damaging of a Private right in order to bring themselves within the protective embrace of article I, section 14. Thus, they cannot ground their claim in the right of navigation, for this is a public right from the abridgment of which plaintiffs will suffer no damage different in character from that to be suffered by the general public. ⁸ (Jarvis v. Santa Clara Val. R.R. Co. (1877) 52 Cal. 438, 440; San Francisco Sav. Union v. R.G.R. Petroleum Co. (1904) 144 Cal. 134, 139, 77 P. 823, 66 L.R.A. 242; Miller v. Mayor of New York (1883) 109 U.S. 385, 394--395, 3 S.Ct. 228, 27 L.Ed. 971; Frost v. Washington County Railroad Co. (1901) 96 Me. 76, 85--86, 51 A. 806, 59 L.R.A. 68; Marine Air Ways v. State of New York (1951) 201 Misc. 349, 350, 104 N.Y.S.2d 964, and cases there cited, aff'd 280 App.Div. 1021, 116 N.Y.S.2d 778; 56 Am.Jur., Waters, § 216, pp. 677--678.) Instead, they must have recourse to the private right of an owner riparian to a navigable waterway to have access to the channel. (See San Francisco Sav. Union v. R.G.R. Petroleum Co., supra, 144 Cal. 134, 139, 77 P. 823; Shirley v. Bishop (1885) 67 Cal. 543, 8 P. 82; 56 Am.Jur., Waters, § 216, p. 677.) However, it appears that the access from plaintiffs' property to the navigable portion of the waterway to which they are riparian, to wit, the Upper Stockton Channel, will not be impaired by the proposed project, so that their private right of access, if limited to its traditional scope, will not be 'taken or damaged' and no claim for compensation can arise. It is therefore plaintiffs' position that the private right of access must be expanded. They assert that the construction of the bridge in question will render their private right of access useless insofar as it pertains to vessels with a fixed structure more than 45 feet above the waterline; that after such construction they 'can launch ships, but they can go nowhere.' Action which renders a right valueless, they urge, effectively 'takes or damages' that right.

[432 P.2d 8] course of this examination we explain the relationship between the state's power to deal with its navigable waters and the extent of its constitutional duty to make compensation for damage caused by the exercise of that power.

We deem is unnecessary to decide this question, for we have determined that, whatever the scope of plaintiffs' right of riparian access As against other private persons, that right must yield without compensation to a proper exercise of the power Of the state over its navigable waters. It is to a discussion of this latter power that we now turn.

The State of California holds all of its navigable waterways and the...