Crews v. Johnson

• Decision Date: 09 April 1962
• Citation: 202 Cal.App.2d 256,21 Cal.Rptr. 37
• Court: California Court of Appeals Court of Appeals
• Parties: Charles R. CREWS and Eleanor R. Crews, his wife, Peter Kollet and Daisy L. Kollet, his wife, Plaintiffs and Respondents, v. Arvo John JOHNSON and Monica Johnson, his wife, Defendants and Appellants. Civ. 20160.

Page 37

21 Cal.Rptr. 37

202 Cal.App.2d 256

Charles R. CREWS and Eleanor R. Crews, his wife, Peter Kollet and Daisy L. Kollet, his wife, Plaintiffs and Respondents, v. Arvo John JOHNSON and Monica Johnson, his wife, Defendants and Appellants.

Civ. 20160.

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

April 9, 1962.

Timothy W. O'Brien, Ukiah, for appellants.

Bruce B. Bruchler, Lakeport, for respondents.

SALSMAN, Justice.

The defendants appeal from a judgment permanently enjoining them from constructing or maintaining any pier or piling easterly of the low water line of Clear Lake as that line is described in the decree. At the commencement of the action plaintiffs sought and after a hearing obtained a mandatory preliminary injunction by the terms of which defendants were required to remove piling and a pier extending from defendants' property easterly into Clear Lake. The defendants complied with the terms of the mandatory preliminary injunction and took no appeal.

The plaintiffs own and operate a hotelresort at Clear Lake. Their property borders the arc of a cove on the lake. The defendants own property adjoining that of plaintiffs on the south. The shore line of the lake runs generally in an east-west direction in the easterly portion of plaintiffs' property, and gradually curves to a northsouth direction in the westerly portion of plaintiffs' property.

For several years before this litigation arose plaintiffs had maintained a pier extending south into the lake from the easterly tip of plaintiffs' land. This pier extended across defendants' property line as that line is projected easterly into the lake. In 1958 defendants constructed a line of piling connected by boards from their property easterly into the lake, through plaintiffs' pier and out into deeper water. The effect of defendants' construction was to cut off plaintiffs' access to the lake. Plaintiffs then requested, and the court issued, the mandatory injunction previously referred to.

The permanent injunction by its terms established and found the low water line of the lake with reference to the property of both plaintiffs and defendants, and prohibited defendants from constructing or maintaining any pier or piling easterly of the low water line. It further provided that no proceeding could be brought to enforce the injunction as long as plaintiffs maintained a pier, float or obstruction southerly of the low water line of the lake as described in the decree. Thus the effect of the decree is to prohibit defendants from construction any pier which would block plaintiffs' access to the lake and, in return, the decree would require plaintiffs to shorten their own pier back to the low water mark. Two diagrams, marked 'B' and 'C' follow this opinion as an appendix. These drawings aptly illustrate the situation of the parties as the litigation began, and demonstrate in diagrammatic form the equitable result achieved by the court in its decree.

In their attack upon the judgment the defendants assert that it is not supported by the evidence. This is a vain exercise for defendants to undertake. It is primarily directed towards the court's determination of the low water mark. Both parties concede that private ownership of the submerged land extends only to the low water mark. (City of Newport Beach v. Fager, 39 Cal.App.2d 23, 102 P.2d 438; City of Los Angeles v. Aitken, 10 Cal.App.2d 460, 52 P.2d 585.) The court heard many witnesses, received in evidence a number of diagrams and photographs, as well as official publications, and also viewed the premises. Tested by the rules set out in Crawford v. Southern Pacific Co., 3 Cal.2d 427, 45 P.2d 183, and a host of similar cases, the judgment now before us finds abundant support in the evidence.

The court's findings and judgment make no reference to the preliminary mandatory injunction which ordered defendants to remove the piling and structure they had extended across the front of plaintiffs' property. Defendants contend they were damaged by the effect of the decree and offered evidence on this subject in an attempt to recoup their claimed losses. The court made no finding on this subject. This was proper. This claim was not made in any...