County of Lake v. Smith

• Citation: 278 Cal.Rptr. 809,228 Cal.App.3d 214
• Decision Date: 08 March 1991
• Docket Number: No. A046835,A046835
• Court: California Court of Appeals
• Parties: COUNTY OF LAKE, Plaintiff/Respondent, The People ex rel. State Lands Commission, Plaintiff/Appellant, v. M. Maroni SMITH, as Trustee, etc., et al. Defendant/Appellant.

Page 809

278 Cal.Rptr. 809

228 Cal.App.3d 214

COUNTY OF LAKE, Plaintiff/Respondent The People ex rel. State Lands Commission, Plaintiff/Appellant, v. M. Maroni SMITH, as Trustee, etc., et al. Defendant/Appellant.

No. A046835.

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

March 8, 1991.

Peter F. Windrem, Thomas E. Anderson, Windrem & Brookes, Lakeport, for defendant/appellant M. Maroni Smith.

Daniel E. Lungren, Atty. Gen., N. Gregory Taylor, Asst. Atty. Gen., Michael L. Crow, Deputy Atty. Gen., Attorney General's Office, Sacramento, for the People.

Cameron L. Reeves, County Counsel, Douglas H. Calkins, Deputy County Counsel, Lakeport, for plaintiff/respondent Lake County.

PETERSON, Associate Justice.

Prior judicial decisions have dealt with Clear Lake, a natural and navigable lake in Northern California. Its water level is subject to marked, seasonal fluctuations. Those prior decisions have recognized that, under normal conditions, the "minimum elevation" of the water level is approximated at zero elevation on the Rumsey Gauge, a measuring device placed in the lake in 1873 at the City of Lakeport.

This case presents the question of how the low-water mark of Clear Lake should be determined (as provided in Civ.Code, § 830) for purposes of establishing the common boundary line separating privately owned littoral real property from the area of state owned real property in Clear Lake. For the reasons which follow, we will sustain the trial court in holding that the low-water mark of Clear Lake for such purposes is the level of zero, Rumsey Gauge datum as surveyed by the State Lands Commission in 1967.

I. FACTS AND PROCEDURAL HISTORY

The relevant facts, to which the parties urge application of diverse legal interpretations, are not disputed. The background to this litigation is substantially composed of prior judicial opinions, which have dealt with related legal issues in the factual context of the often shifting shores of Clear Lake.

A. Previous Legal Background

Clear Lake is one of the larger natural lakes in California; and by law (Harb. & Nav.Code, § 101), it is properly classified as navigable, even though it does not appear to have been recently used for substantial commerce by water; the lake is now primarily used for recreation. Littoral real property on Clear Lake has always been a fertile source of litigation, since the level of this relatively shallow lake fluctuates markedly over the course of the seasons--and from year to year--depending upon natural conditions. A means of measuring the lake's depth and fluctuations is provided by the Rumsey Gauge, which measures fluctuations with reference to a zero point which is slightly higher than an elevation of 1,318 feet above sea level. The Rumsey Gauge has established a record of annual and seasonal lake levels from the year 1873. Typical of the fluctuating levels of Clear Lake, it stood at 3.39 feet below the level of zero on the Rumsey Gauge in November of 1977; four months later it had risen more than eleven feet, to stand at 8.23 feet above Zero Rumsey. Such large natural fluctuations have contributed to the dispute on where a permanent "low-water mark" should be placed.

To complicate matters further, the lake's fluctuations have not always been entirely natural. A dam on Cache Creek, the outlet of Clear Lake, was constructed in 1915 by the Yolo Water and Power Company. Lakefront property owners blamed a series of floods during the years 1915-1919 on the operation of the dam; and litigation began which ultimately resulted in a superior court injunction, called the "Gopcevic Decree," governing the dam's future operation as it affected the level of the lake. (Gopcevic v. Yolo Water and Power Company (Super.Ct. Mendocino County, 1920, No. 9118) stipulated decree filed October 7, 1920; cf. Bemmerly v. County of Lake (1942) 55 Cal.App.2d 829, 831, 132 P.2d 249 [recognizing the Gopcevic Decree].)

Under the Gopcevic Decree, the dam operators were "perpetually enjoined and restrained from at any time, or in any way raising the level of said lake in excess of 7.56 feet above zero on said Rumsey Gauge, and from ... lowering the level of said lake below zero on said Rumsey Gauge, ..." except for a limited period during floods or other temporary emergencies. The high level of 7.56 and the low level of Zero Rumsey were chosen because they reflected what was believed to be the natural level of the lake. In 1920, subsequent to the Gopcevic Decree, homes and other lakefront improvements were built by property owners relying on the zero and 7.56 levels as reflecting the range of the low and high levels of the lake.

Significantly, the Gopcevic Decree was recorded at 60 Deeds 49 with the Lake County Recorder's Office. By this and other means, property owners could learn of the Gopcevic Decree and use it to determine their littoral rights.

However, the Cache Creek Dam was not the only human attempt to control the level of the lake which has resulted in litigation. The level of the lake is also affected by a rock formation called the Grigsby Riffle, whose impoundment of the waters at the lake outlet on Cache Creek resulted in the initial formation of Clear Lake. Floods during 1937 and 1938 caused respondent County of Lake (hereafter county) to begin excavation and dredging of the Grigsby Riffle so as to allow flood waters to escape more quickly from the lake, and to avoid exceeding the lake level set by the Gopcevic Decree. Downstream property owners believed this attempted dumping of excess water, in order to benefit properties littoral to Clear Lake, would flood their properties, riparian to Cache Creek; and litigation began again through Bemmerly v. County of Lake, supra.

In Bemmerly, Division One of this district (per Justice Bray) affirmed the terms of another injunction which forbade any efforts to enlarge the channel of Cache Creek at the Grigsby Riffle, although efforts to safeguard the existing flow of water were allowed. (55 Cal.App.2d at pp. 838-839, 132 P.2d 249.) In so doing, the Bemmerly court, inter alia, adopted the terms of the prior Gopcevic Decree as approximating the "normal elevations" of the high- and low-water levels of Clear Lake. (P. 831, 132 P.2d 249.)

Our Supreme Court then revisited the shores of Clear Lake in State of California v. Superior Court (Lyon) (1981) 29 Cal.3d 210, 172 Cal.Rptr. 696, 625 P.2d 239, dealing with a property dispute concerning the ownership of the extensive Anderson Marsh which lies between the high- and low-water levels of Clear Lake. The Supreme Court held that a private landowner owned a fee interest in the marsh down to the low-water mark under Civil Code section 830 (and the Supreme Court indicated Zero Rumsey "may represent" the low-water mark, see id. at p. 225, fn. 13, 172 Cal.Rptr. 696, 625 P.2d 239), but the Court subjected this fee interest to a public trust for recreational use. (Id. at pp. 226-233, 172 Cal.Rptr. 696, 625 P.2d 239.)

Subsequently, Division One of this district again dealt with the Anderson Marsh along the shores of Clear Lake in Lyon v. Western Title Ins. Co. (1986) 178 Cal.App.3d 1191, 224 Cal.Rptr. 385, an appeal concerning title insurance to the same property upon which the Supreme Court had imposed a public trust. Division One, per Justice Elkington, criticized the Supreme Court's decision in State of California v. Superior Court (Lyon), supra, as an unconstitutional taking of private property without just compensation, reasoning the Supreme Court had thereby effectively deprived shoreland property owners of the beneficial use of their land, through imposition of a new public trust requiring that the property be maintained as wilderness areas open to the public. (Lyon v. Western Title Ins. Co., supra, 178 Cal.App.3d at p. 1203, 224 Cal.Rptr. 385.) Justice Racanelli, in a concurrence and dissent, did not take issue with the majority's criticisms of the Supreme Court's rule on the merits, but suggested such extensive criticism of the Supreme Court was unseemly. (Id. at p. 1205, 224 Cal.Rptr. 385.)

In a series of other cases between private landowners disclosed by our own research, the courts have also dealt with vexing questions concerning boundaries set by the low-water mark of Clear Lake--which the courts appear to have equated with the low level set by the 1920 Gopcevic Decree, although the matter is not specifically addressed. (Cf., e.g., Maginnis v. Hurlbutt (1920) 49 Cal.App. 460, 193 P. 606; Anderson v. Trotter (1931) 213 Cal. 414, 2 P.2d 373; Crews v. Johnson (1962) 202 Cal.App.2d 256, 21 Cal.Rptr. 37; Woods v. Johnson (1966) 241 Cal.App.2d 278, 50 Cal.Rptr. 515.) At this point, no appellate court has expressly decided the methodology of establishing the low-water mark of Clear Lake for purposes of Civil Code section 830. ¹ The Supreme Court in State of California v. Superior Court (Lyon), supra, suggested that it "may" be zero on the Rumsey Gauge. (29 Cal.3d at p. 225, fn. 13, 172 Cal.Rptr. 696, 625 P.2d 239.)

B. Factual Background of This Case

Appellant trust fund, U.A. Local 38 Convalescent Trust Fund, and its trustee, M. Maroni Smith, (hereafter jointly referred to as appellant) own a large parcel which is littoral to Clear Lake. During the 1960's, appellant improved the parcel which now consists of a substantial resort property, the Konocti Harbor Inn. Significantly, one of the calls in appellant's deed to the property sets its lakeward boundary as "the low water line of Clear Lake under ordinary conditions ...." (Emphasis added.)

During the 1960's, appellant through dredging and filling expanded the parcel lakeward, so that the former natural shoreline is no longer extant; there is now an artificial bulge of dry land out over the lake bed owned by the state and county. Although the state warned appellant that a permit would be necessary for any filling below the level of Zero Rumsey, which it claimed as the boundary line of state...