Lyon v. Western Title Ins. Co.

Decision Date21 March 1986
Citation224 Cal.Rptr. 385,178 Cal.App.3d 1191
CourtCalifornia Court of Appeals Court of Appeals
PartiesRaymond R. LYON and Margaret E. Lyon, Plaintiffs and Appellants, v. WESTERN TITLE INSURANCE COMPANY, Defendant and Respondent. AO26746.

Joseph M. Gughemetti, San Mateo, for plaintiffs and appellants.

Steven R. Walker, Silverman, Walker & Teller, Alameda, for defendant and respondent.

ELKINGTON, Associate Justice.

Many years ago the State of California granted title to a patent applicant of about 500 acres of land, between the high water mark and low water mark at the southern end of Clear Lake in Lake County. At the time, as it does now, Civil Code section 830 provided that such a grantee "takes to the edge of the lake ... at low water mark." And it was judicially determined law that the land between the high and low water mark of the lake was "irrevocably conveyed into absolute private ownership" (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 482, 91 Cal.Rptr. 23, 476 P.2d 423) with "unrestricted title to the grantee" (Alameda Conservation Assn. v. City of Alameda (1968) 264 Cal.App.2d 284, 287, 70 Cal.Rptr. 264, overruled on other grounds in City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 532, 162 Cal.Rptr. 327, 606 P.2d 362), "to the low water mark" (United States v. Gossett (U.S.D.C., C.D.Calif.1967) 277 F.Supp. 11, 13), and "to the edge of the lake ... at low-water mark" (23 Ops.Cal.Atty.Gen. (1954) 306-307).

And when such grants by the states are made, the states may not constitutionally "impair the efficacy of the grants, or the use and enjoyment of the property, by the grantee." (Packer v. Bird (1891) 137 U.S. 661, 669, 11 S.Ct. 210, 212, 34 L.Ed. 819.)

Following mesne conveyances of the 500 acres, Raymond R. Lyon and Margaret E. Lyon, his wife (hereafter for convenience in the singular, "Lyon"), purchased the property in 1964, relying on the then law's provision that they were taking absolute title to the lake's low water mark. But then in 1981, the state's Supreme Court in State of California v. Superior Court (Lyon), 29 Cal.3d 210, 172 Cal.Rptr. 696, 625 P.2d 239 (hereafter "Lyon ") rejected the earlier settled law, holding that although title had passed, it was taken subject to a public trust requiring him to restore the land to, and preserve it in, its "natural state." Lyon, and others similarly situated, are thus deprived of any beneficial use of the land they had bought and paid for, under the law's assurance that they were acquiring absolute title to the lake's low water mark.

Few would deny the right of the state, under lawful procedures, to retake such land for a public purpose or need. But few also would quarrel with California's Constitution, article I, section 19, which commands that: "Private property may be taken ... for public use only when just compensation [is] paid to ... the owner." (The emphasis is ours.)

It is the public policy of this state that an opinion of its Courts of Appeal shall be published, among other reasons, if it "criticizes with reasons given, an existing rule" of law. (Rule 976(b)(1), Cal. Rules of Court.) We have certified this opinion for publication for, respectfully, it criticizes with reasons given the rule announced by Lyon.

In the action presently before us, the demurrer of defendant Western Title Insurance Company (hereafter Western) to the first amended complaint (hereafter complaint) of Lyon was sustained by the superior court. Lyon declined to amend his complaint and judgment of dismissal of the action was entered. The instant appeal was taken by Lyon from the judgment of dismissal.

We recount what will reasonably be termed the historical-factual-procedural-legal context of the appeal.

Following our War of Independence the 13 newly created states became the owners of the ocean tidelands bordering upon them, of the navigable waters lying within their borders, and of the land below the natural high water lines of their navigable inland lakes and streams. And upon the adoption of the federal Constitution, the United States similarly held such waters and lands of its nonstate territories in trust for states which might be created in the future. Upon California's admission to the Union in 1850, it succeeded to such tidelands, and water and lands within its borders, upon an "equal footing" with other states. (Montana v. United States (1981) 450 U.S. 544, 551, 101 S.Ct. 1245, 1251, 67 L.Ed.2d 493.)

But such rights which were granted to, or held by, the several states were nevertheless subject to the transcendent authority of Congress over navigable waters, i.e., "to regulate commerce with foreign nations, and among the several states" (U.S. Const. Art. 1, § 8, cl. 3; Montana v. United States, supra, at p. 551, 101 S.Ct. at p. 1251). As to the inland waterways coursing upon two or more states, the federal interest in retaining control over commerce and navigation was substantial; however, as to navigable lakes and streams contained wholly within a state, Congress neither had, nor imposed, any authority.

"If they [the states] choose to resign to the riparian proprietor, rights which properly belong to them in their sovereign capacity, it is not for others to raise objections." (Barney v. Keokuk (1877) 4 Otto 324, 338, 94 U.S. 324, 338, 24 L.Ed. 224.) "This rule has been followed consistently." (70 C.L.R. p. 1141.) "[I]t depends on the law of each state to what waters and to what extent this prerogative of the state over the lands under water shall be exercised." (Hardin v. Jordan (1891) 140 U.S. 371, 382, 11 S.Ct. 808, 812, 35 L.Ed. 428.) "[I]t has become established almost without argument that ... the effect of the grant on the title to adjoining submerged land will be determined by the law of the state where the land lies." (Hardin v. Shedd (1903) 190 U.S. 508, 519, 23 S.Ct. 685, 47 L.Ed. 1156.) And when such grants by the states are made, the states may not constitutionally "impair the efficacy of the grants, or the use and enjoyment of the property, by the grantee." (Packer v. Bird, supra, 137 U.S. 661, 669, 11 S.Ct. 210, 212.)

The courts of California had long been in agreement.

"The administration of [the entrusted submerged lands] by the state is committed to the Legislature, and a determination of that branch of government made within the scope of its powers is conclusive in the absence of clear evidence that its effect will be to impair the power of succeeding legislatures to administer the trust in a manner consistent with its broad purposes.... In such a case the state through the Legislature may find and determine that such lands are no longer useful for trust purposes and free them from the trust. When [such lands] have been so freed from the trust ... they may be irrevocably conveyed into absolute private ownership." (City of Long Beach v. Mansell, supra, 3 Cal.3d 462, 482, 91 Cal.Rptr. 23, 476 P.2d 423, and see fn. 17.) "The attitude of the Supreme Court of the United States has been consistent in leaving the question of private water rights, which do not involve federal or interstate interests, to the control of local state policies." (Peabody v. City of Vallejo (1935) 2 Cal.2d 351, 366, 40 P.2d 486, and see authority there collected.) "Although a state owns the lands underlying its bays ..., it holds them in trust for the public for purposes of navigation and commerce.... But this trust is terminable. Upon proper legislative determination, such lands may be transferred by the state free of the trust. Conveyance of like lands under the acts of 1868 and 1870 does in fact so terminate the trust and pass unrestricted title to the grantee." (Alameda Conservation Assn. v. City of Alameda, supra, 264 Cal.App.2d 284, 287, 70 Cal.Rptr. 264.) And when a grant or patent of land sometimes submerged by an adjoining watercourse is issued by the state, it conveys "the fee simple title to said lands." (Perry v. State of California (1956) 139 Cal.App.2d 379, 380-381, 293 P.2d 480.) (The emphasis of this paragraph is ours.)

"[T]he same incidents of the trust applicable to tidelands also apply to nontidal navigable waters." (Lyon, 29 Cal.3d p. 231, 172 Cal.Rptr. 696, 625 P.2d 239.)

Long ago (1874), the Legislature of California enacted Civil Code section 670 which iterated, as here relevant, the above-noted rule that upon the state's admission to the Union, it became the absolute owner of land below tide water and below the water of all navigable lakes and streams lying wholly within its borders. The statute, as here relevant, declared: "The State is the owner of all land below tidewater, and below ordinary high-water mark, ...; of all land below the water of a navigable lake or stream." 1

But contemporaneously with Civil Code section 670 the Legislature chose to treat differently the land below tidewater, and land below its inland navigable lakes and streams. While retaining title to land below tidewater, by enactment of Civil Code section 830, it ceded to the riparian owners of the state's inland navigable streams and lakes, all land between their high and low water marks. Section 830, as here relevant, has since provided that where a riparian owner's land "borders upon a navigable lake or stream ..., the owner takes to the edge of the lake or stream, at low water mark...." (The emphasis is ours.) 2

And with the adoption of Civil Code section 830, the Legislature (1874) amended Code of Civil Procedure section 2077, subdivision (5), to read, as relevant: "When a navigable lake ... is the boundary, the rights of the grantor to low-water mark are included in the conveyance." 3

Thus, for more than a hundred years, Civil Code section 830 and Code of Civil Procedure section 2077 were deemed to have "irrevocably conveyed into absolute [our emphasis] private ownership" (City of Long Beach v. Mansell, supra, 3 Cal.3d p. 482, 91 Cal.Rptr. 23, 476 P.2d 423), with "unrestricted [o...

To continue reading

Request your trial
2 cases
  • County of Lake v. Smith
    • United States
    • California Court of Appeals Court of Appeals
    • March 8, 1991
    ...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......
  • Bess v. County of Humboldt
    • United States
    • California Court of Appeals Court of Appeals
    • February 28, 1992
    ...v. State of California (1986) 187 Cal.App.3d 224, 241, fn. 12, 231 Cal.Rptr. 810.); and see, also, Lyon v. Western Title Ins. Co. (1986) 178 Cal.App.3d 1191, 1204, 224 Cal.Rptr. 385.)3 These rules have been altered by statute. Thus, Civil Code sections 813 and 1009 now provide, essentially,......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT