People v. Hecker

• Decision Date: 18 April 1960
• Citation: 179 Cal.App.2d 823,4 Cal.Rptr. 334
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of State of California, Plaintiff and Respondent, v. Frederick H. HECKER, City of Santa Monica, R. W. Miller, Crescent Bay Holding Corporation, a corporation, Does One to Thirty, Corporations One to Ten, Defendants. Frederick H. Hecker, Appellant. Civ. 24033.

Page 334

4 Cal.Rptr. 334

179 Cal.App.2d 823

PEOPLE of State of California, Plaintiff and Respondent, v. Frederick H. HECKER, City of Santa Monica, R. W. Miller, Crescent Bay Holding Corporation, a corporation, Does One to Thirty, Corporations One to Ten, Defendants Frederick H. Hecker, Appellant.

Civ. 24033.

District Court of Appeal, Second District, Division 1, California.

April 18, 1960.

Rehearing Denied May 5, 1960.

Hearing Denied June 8, 1960.

William J. Cusack, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., Walter S. Rountree, Asst. Atty. Gen., Benjamin E. King, Manly D. Calof, Deputy Attys. Gen., for the people.

LILLIE, Justice.

Plaintiff sued defendant Hecker and others to condemn certain parcels of land lying seaward to the Pacific Ocean. Although the issue of title was determined by the court, the question of value was heard by the jury. Hecker was declared to be owner of Parcels A, C and D, and the underlying fee of E; as to Parcel B, the trial court found that it consists entirely of artificial accretions, adjudged the State the owner thereof, and denied him any compensable right therein. It is from that portion of the judgment defendant appeals. The issues before us relate solely to the ownership of Parcel B and the existence of a frontage right or right of access to the sea.

Parcel B abuts the ocean and lies seaward ward from Parcel A; and since defendant acquired the property in 1913 the mean high tide line has progressed seaward. Near Parcel B were constructed the Santa Monica Pier in 1909, the Newcomb Pier in 1912 and a breakwater in 1933 and 1934; and it lies approximately 2,100 feet north of Newcomb Pier and 900 feet from the north end of the breakwater, which lies 2,000 feet long and 2,000 feet from shore. No artificial structure was ever erected at Parcel B. Between 1921 and 1954 accretions had extended the beach more than 400 feet seaward of the 1921 mean tide line fixed by the court as the seaward boundary. Muchenberger v. City of Santa Monica, 206 Cal. 635, 275 P. 803, which constitutes all of Parcel B.

Appellant's primary contention is that, where alluvion is gradually and imperceptibly created, however caused, along the shoreline, it belongs to the littoral owner; but if ownership depends on the cause of accretion, the trial court's findings that from 1875 to 1912 the shoreline of Parcel B was in a state of equilibrium and that certain artificial structures were the sole cause of accretion to Parcel B since 1921 are unsupported by the evidence. He further claims that regardless of the ownership of Parcel B, as the littoral owner he possesses a special and vested right of access to the sea, or a frontage right separate from the land, which is compensable.

1] Inasmuch as the law in California, in a controversy between the State and the upland proprietor, favors the view that title to artificially caused accretion vests in the State as the owner of the tidelands, we first review the evidence of the cause and nature of the accretion to Parcel B in support of the trial court's findings ] The determination of the factual issues by the trial court was, in the main, dependent upon extensive evidence admitted through the testimony of two experts for the People, Dr. Kenneth O. Emery and James W. Dunham; the report of a court-appointed expert, Dr. U. S. Grant; various lay witnesses familiar with Santa Monica beaches; and maps, photographs, charts, drawings, historical data, official reports and diagrams. Appellant predicates his argument of insufficiency of the evidence upon what he asserts to be opposing inferences and evidence, and inconsistencies in the expert testimony. It is, of course, for the trier of fact to determine the weight to be given to the opinion of an expert witness (People v. Loop, 127 Cal.App.2d 786, 274 P.2d 885); it is the exclusive judge of the effect and value of the evidence (Sec. 2061, Civil Code of Procedure; Ortzman v. Van Der Waal, 114 Cal.App.2d 167, 249 P.2d 846, 252 P.2d 7; Petroleum Midway Co. v. Zahn, 62 Cal.App.2d 645, 145 P.2d 371) and the credibility of witnesses (Section 1847, Code of Civil Procedure), lay and expert (Estate of Blake, 136 Cal. 306, 68 P. 827; Hirshfield v. Dana, 193 Cal. 142, 233 P. 451); and it has the primary function of resolving factual conflicts. The rule of conflict of evidence applies as well to cases of inconsistencies and contradictions within the testimony of a single witness, all the more for the trier of fact 'for being intestine.' People v. Loop, 127 Cal.App.2d 786, 800, 274 P.2d 885, 895. After carefully dissecting the testimony of the experts, appellant has here offered a factual argument for reversal which would better have been submitted by him to the trial court; he is, in effect, asking us to reweigh the value of the opinion evidence and inferences to be drawn therefrom, and resolve any uncertainties, inconsistencies or conflicts in his favor. This we cannot do.

8] Where findings are attacked on the ground of insufficiency of the evidence, the power of the reviewing court begins and ends with a determination of whether there exists in the record substantial evidence, contradicted or not, which will support the same (Primm v. Primm, 46 Cal.2d 690, 299 P.2d 231; Grainger v. Antoyan, 48 Cal.2d 805, 806, 313 P.2d 848) and if there is, the strength of the opposing evidence or inferences is immaterial, for evidence is not weighed on appeal (Estate of Jamison, 41 Cal.2d 1, 256 P.2d 984). Likewise, we are bound to liberally construe the findings in support of the judgment indulging in all reasonable inferences, resolving every substantial conflict in the testimony and construing any uncertainties in their favor (Estate of Bristol, 23 Cal.2d 221, 143 P.2d 689; Brewer v. Simpson, 53 Cal.2d 567, 2 Cal.Rptr. 609; Estate of Moore, 143 Cal.App.2d 64, 300 P.2d 110).

, 10] Following these rules and viewing the evidence in the light most favorable to the judgment we conclude that there is substantial evidence to support the trial court's finding (XII) that from 1875 to 1912 the shoreline in the location of Parcel B was generally in a state of equilibrium, subject to seasonal fluctuation; and that this finding is not inconsistent with any other.

As to the status of the shoreline prior to 1912, Dr. Emery described a beach subject to seasonal variations based upon maps and charts; asked if he would describe it as a 'static' beach in equilibrium, he answered: 'It looks like it for that period.' Relative to the sand budget in that area he explained that if there were no artificial structures natural forces would prevent any accumulation of accretion, for under normal conditions as much sand as goes into the Santa Monica Bay that would cause natural accretion would leak out the south end of the Bay through Redondo Canyon and '(t)hat would mean there would be no net increase of the beach per unit of time.' He concluded: 'In reality, if there had been no structures (speaking of construction after 1912) we would have expected all of the sands which entered the Bay would have escaped through Redondo Canyon, and there wouldn't have been any widening at all.' Mr. Dunham's opinion was that the area, under natural conditions, was 'neither accreting nor prograding, nor receding prior to the construction of the Santa Monica Pier' in 1912, for 'a natural balance of shore processes had manifested themselves in this area prior' thereto, in that the littoral material entering Santa Monica Bay would not accumulate to widen the beaches, but would flow out naturally into Redondo Canyon. He concluded that 'prior to 1912 this segment of shore was considered generally stable.'

Dr. Grant's report, contrary to that urged by appellant, does not state that there was a natural progradation of the shoreline after 1895. Dr. Grant discussed 'prehistoric beach widening' and said that it was not possible to determine with certainty whether it would have continued to move the mean high tide line seaward. He reported that it might have reached an average static condition, for it seems unlikely the early rate of natural accretion would have continued undiminished. In speaking of beaches generally he concluded that the 'early rate of natural beach progradation' would unlikely continue indefinitely, on the premise that they prograde to a limit 'at which equilibrium is reached between constructive and destructive processes.' Dr. Grant not only did not state that the beach before 1912 was not static; but an inference that the shoreline was in equilibrium runs through his entire report--for instance, he acknowledged that the beach behind the breakwater had prograded from an approximate equilibrium position (Ex. F, p. 8); and in another part of his report stated, in describing a further condition, '(I)f the equilibrium of the interacting shore processes had not been upset.' (p. 21). Any inference that the beach was naturally prograding between 1875 and 1912, from Dr. Grant's assumption that the accretion between 1921 and 1933 was 'natural,' is wholly unreasonable for the latter is based on a self-admitted highly questionable and arbitrary premise. Dr. Grant 'assumed' that the accretion between 1921 and 1933 was 'natural' solely because he was unable to evaluate with any certainty the effects of the artificial structures after 1912, which 'assumption' he concedes in his report 'is vulnerable to challenge' and 'arbitrary.' The trial court was entirely justified in failing to give as much weight to this evidence as to the definite opinions of the other two experts who directly asserted that a state of equilibrium existed subject to seasonal fluctuations, giving their reasons therefor.

Appellant relies upon the 1876 line of mean high tide to show an early progradation. This line was surveyed by the United States Coast and Geodetic Survey, and maps thereof were received in evidence; but it acknowledged a possible error of thirty feet in its survey. In...