Marks v. Whitney

• Citation: 98 Cal.Rptr. 790,6 Cal.3d 251,491 P.2d 374
• Decision Date: 09 December 1971
• Docket Number: S.F. 22566
• Court: United States State Supreme Court (California)
• Parties: , 491 P.2d 374, 3 ERC 1437, 2 Envtl. L. Rep. 20,049 Larry H. MARKS, Jr., Plaintiff and Respondent, v. Peter D. WHITNEY et al., Defendants and Appellants. Peter D. WHITNEY et al., Cross-complainants and Appellants, v. Larry H. MARKS, Jr., et al., Cross-defendants and Respondents. In Bank

Page 790

98 Cal.Rptr. 790

6 Cal.3d 251, 491 P.2d 374, 3 ERC 1437, 2 Envtl. L. Rep. 20,049

Larry H. MARKS, Jr., Plaintiff and Respondent, v. Peter D. WHITNEY et al., Defendants and Appellants.

Peter D. WHITNEY et al., Cross-complainants and Appellants, v. Larry H. MARKS, Jr., et al., Cross-defendants and Respondents.

S.F. 22566.

Supreme Court of California,

In Bank.

Dec. 9, 1971.

Albert M. Monaco and Heller, Ehrman, White & McAuliffe, San Francisco, for defendants and appellants and for cross-complainants and appellants.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., Charles A. O'Brien, Chief Deputy Atty. Gen., Jay L. Shavelson, Asst. Atty. Gen., N. Gregory Taylor, E. Clement Shute, Jr., and Phillip G. Samovar, Deputy Attys. Gen., William C. Simmons, J. Bert Morgan, Riverside, Phillip S. Berry, Oakland, R. Frederic Fisher and Lillick, McHose, Wheat, Adams & Charles, San Francisco, as amici curiae on behalf of defendants and appellants and cross-complainants and appellants.

Myers, Praetzel & Pierce and Wallace S. Myers, San Rafael, for plaintiff and respondent and for cross-defendants and respondents.

Pillsbury, Madison & Sutro, Noble K. Gregory, Allan N. Littman and John T. Hansen, San Francisco, as amici curiae on behalf of plaintiff and respondent and cross-defendants and respondents.

McCOMB, Justice.

This is a quiet title action to settle a boundary line dispute caused by overlapping and defective surveys and to enjoin defendants (herein 'Whitney') from asserting any claim or right in or to the property of plaintiff Marks. The unique feature here is that a part of Marks' property is tidelands acquired under an 1874 patent issued pursuant to the Act of March 28, 1868 (Stats.1867--1868, c. 415, p. 507); a small portion of these tidelands adjoins almost the entire shoreline of Whitney's upland property. Marks asserted complete ownership of the tidelands and the right to fill and develop them. Whitney opposed on the ground that this would cut off his rights as a littoral owner and as a mumber of the public in these tidelands and the navigable waters covering them. He requested a declaration in the decree that Marks' title was burdened with a public trust easement; also that it was burdened with certain prescriptive rights claimed by Whitney.

The trial court settled the common boundary line to the satisfaction of the parties. However, it held that Whitney had no 'standing' to raise the public trust issue and it refused to make a finding as to whether the tidelands are so burdened. It did find in Whitney's favor as to a prescriptive easement across the tidelands to maintain and use an existing seven-foot wide wharf but with the limitation that 'Such rights shall be subject to the right of Marks to use, to fill and to develop' the tidelands and the seven-foot wide easement area so long as the Whitney 'rights of access and ingress and egress to and from the deep waters of the Bay shall be preserved' over this strip.

The appeal is on a limited record, namely, the Clerk's Transcript and designated exhibits, including certified copies of official recorded patent, maps, surveys, surveyor's notes, etc. This court may take judicial notice of these official documents. Only questions of law are presented.

Appended to this opinion is a drawing prepared by Whitney's counsel and accepted by Marks on appeal which illustrates and identifies various matters contained in the pleadings, exhibits, findings and judgment. This shows the location of the tidelands on the westerly side of Tomales Bay in Marin County, the disputed boundary line, the relative size of the properties involved, and the location of the wharf. The portion of the tidelands adjoining Whitney's property is roughly rectangular in shape, has an average width of 100 feet, and extends 344.48 feet along the 430 foot shoreline of Whitney. There are no improvements other than the wharf on the tidelands.

Appearing as amici curiae on the appeal are: the Attorney General, on behalf of the State Lands Commission, the Bay Area Conservation and Development Commission (BCDC) and as chief law enforcement officer of the state; ¹ Sierra Club; ² and Westbay Community Associates. ³

Questions: First. Are these tidelands subject to the public trust; if so, should the judgment so declare?

Yes. Regardless of the issue of Whitney's standing to raise this issue the court may take judicial notice of public trust burdens in quieting title to tidelands. This matter is of great public importance, particularly in view of population pressures, demands for recreational property, and the increasing development of seashore and waterfront property. A present declaration that the title of Marks in these tidelands is burdened with a public easement may avoid needless future litigation. ⁴

Tidelands are properly those lands lying between the lines of mean high and low tide (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 478, fn. 13, 91 Cal.Rptr 23, 476 P.2d 423) covered and uncovered successively by the ebb and flow thereof (People ex rel. State Board of Harbor Com'rs v. Kerber (1908) 152 Cal. 731, 733, 93 P. 878). The trial court found that the portion of Marks' lands here under consideration constitutes a part of the Tidelands of Tomales Bay, that at all times it has been, and now is, subject to the daily ebb and flow of the tides in Tomales Bay, that the ordinary high tides in the bay overflow and submerge this portion of his lands, and that Tomales Bay is a navigable body of water and an arm of the Pacific Ocean.

This land was patented As tidelands to Marks' predecessor in title. The patent of May 15, 1874, recites that it was issued by the Governor of California 'by virtue of authority in me vested' pursuant to 'statutes enacted from time to time' for the 'Sale and Conveyance of the Tide Lands belonging to the State by virtue of her sovereignty.' ⁵ (Emphasis added.)

The governing statute was the act of March 28, 1868, ⁶ entitled 'An Act to provide for the management and sale of the lands belonging to the State.' By its terms it repealed all other laws relating to the sale of swamp and overflowed, salt-marsh and tidelands. These laws, including the Act of March 28, 1868, were codified in former Political Code sections 3440--3493 1/2. They were explicitly and expansively considered by this court entirely separate from the restrictions contained in Article 15, sections two and three, of the State Constitution (enacted in 1879)--In Forestier v. Johnson (1912) 164 Cal. 24, 127 P. 156 and People v. California Fish Co., supra, 166 Cal. 576, 589--598, 138 P. 79. Prior to the issuance of this patent it was held that a patent to tidelands conveyed no title (Kimball v. Macpherson (1873) 46 Cal. 103; People ex rel. Pierce v. Morrill (1864) 26 Cal. 336); or a voidable title (Taylor v. Underhill (1871) 40 Cal. 471). It was not until 1913 that this court decided in People v. California Fish Co., supra, 166 Cal. 576, 596, 138 P. 79, 87, that 'The only practicable theory is to hold that all tideland is included, but that the public right was not intended to be divested or affected by a sale of tidelands under these general laws relating alike both to swamp land and tidelands. Our opinion is that * * * the buyer of land under these statutes receives the title to the soil, the Jus privatum, subject to the public right of navigation, and in subordination to the right of the state to take possession and use and improve it for that purpose, as it may deem necessary. In this way the public right will be preserved, and the private right of the purchaser will be given as full effect as the public interests will permit.'

The tidelands embraced in these statutes extend from the Oregon line to Mexico and include the shores of bays and navigable streams as far up as tide water goes and until it meets the lands made swampy by the overflow and seepage of fresh water streams. (People v. California Fish Co., supra, at pp. 591, 596, 138 P. 79.) No issue is here presented of swamp or overflowed lands. These are true tidelands within the meaning of these statutes, the patent of May 15, 1874, and the public trust doctrine. They are, therefore, subject to a reserved easement in the state for trust purposes.

Public trust easements are traditionally defined in terms of navigation, commerce and fisheries. They have been held to include the right to fish, hunt, bathe, swim, to use for boating and general recreation purposes the navigable waters of the state, and to use the bottom of the navigable waters for anchoring, standing, or other purposes. (See Bohn v. Albertson (1951) 107 Cal.App.2d 738, 238 P.2d 128; Forestier v. Johnson, supra, 164 Cal. 24, 127 P. 156; Munninghoff v. Wisconsin Conservation Comm. (1949) 255 Wis. 252, 38 N.W.2d 712; Jackvony v. Powel (1941) 67 R.I. 218, 21 A.2d 554; Nelson v. De Long (1942) 213 Minn. 425, 7 N.W.2d 342; Proctor v. Wells (1869) 103 Mass. 216.) The public has the same rights in and to tidelands.

The public uses to which tidelands are subject are sufficiently flexible to encompass changing public needs. In administering the trust the state is not burdened with an outmoded classification favoring one mode of utilization over another (Colberg, Inc. v. State, 67 Cal.2d 408, 421--422, 62 Cal.Rptr. 401, 432 P.2d 3.) There is a growing public recognition that one of the most important public uses of the tidelands--a use encompassed within the tidelands trust--is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area. It is not necessary to here define precisely all the public uses which encumber tidelands.

'(T)he state in its proper administration of the trust may find it necessary or advisable to cut off certain tidelands from water access...