State of California v. United States

• Decision Date: 01 September 1948
• Docket Number: No. 11797.,11797.
• Citation: 169 F.2d 914
• Parties: STATE OF CALIFORNIA v. UNITED STATES (three cases).
• Court: U.S. Court of Appeals — Ninth Circuit

169 F.2d 914 (1948)

STATE OF CALIFORNIA v. UNITED STATES (three cases).

No. 11797.

United States Court of Appeals Ninth Circuit.

September 1, 1948.

Fred N. Howser, Atty. Gen., State of Cal., and Harold B. Haas, and Miriam E. Wolff, Deputy Attys. Gen., for appellant.

A. DeVitt Vanech, Asst. Atty. Gen., M Mitchell Bourquin, Sp. Asst. Atty. Gen., and John F. Cotter, George S. Swarth and Elizabeth Dudley, Attys., Dept. of Justice, all of Washington, D. C. for appellee.

Before GARRECHT, MATHEWS and BONE, Circuit Judges.

GARRECHT, Circuit Judge.

The monetary value, for condemnation purposes, of tide and submerged lands mapped out as streets eighty years ago by the California Board of Tide Land Commissioners, constitutes the central question in these appeals.

Three judgments, involving four parcels of land covered by the waters of San Francisco Bay, awarded the appellant $1 for its interest in each parcel. The actions were consolidated for trial and have been consolidated for purposes of appeal.

The appellant urges that the judgments of the lower court awarding nominal damages in its favor are erroneous, and asks that "this Court either find the value of this property or direct the trial Court to make such finding."

The question involved in these appeals has already been before this Court. State of California v. United States, 9 Cir., 153 F.2d 558, 559. There we held that "It was error to permit the State to intrude into a valuation proceeding a claim which obviously represented only a minor part of its total claim," and we accordingly struck from the judgment below a paragraph denying the State any recovery.

1. The Facts.

Except as to the crucial point of valuation, the facts have been stipulated.

Prior to September 9, 1850, part of the land subject to the condemnation action, and all of the lands claimed by the appellant, were tide and submerged lands covered by the waters of San Francisco Bay. On the said date, the appellant was admitted into the Union of States, and therefore acquired title to all tide and submerged lands involved in these consolidated cases.¹

By an act approved March 30, 1868, the Legislature of California created a Board of Tide Land Commissioners, hereinafter referred to as "the Board." Statutes of California, 1867-8, c. 543, page 716. In that enactment, the Board was authorized and directed to take possession of all the salt marsh and tidelands and lands lying under water, situated in the City and County of San Francisco, and to cause those lands to be surveyed to a point within 24 feet of water at the lowest stage of the tide.

The Board was further directed that, after the completion of this preliminary survey, it should establish the Water Line Front of San Francisco, and cause all of the property belonging to the State lying south of Second Street within the City and County, to be surveyed into lots and blocks.

The Act further authorized the Board to prepare maps of the area as resurveyed, and to cause the lots as so established to be sold at public auction. Pursuant to the statute, the Board caused the surveys to be made, and prepared the "Map of Salt Marsh and Tide Lands and Lands Lying Under Water," which was duly adopted by the Board on March 19, 1869.

None of the lands claimed by the appellant in the answers in these consolidated cases had been reclaimed at the time the present actions were commenced, all the lands so claimed being tide or submerged lands.

The lands in question were taken and condemned under Congressional authority, not here questioned, for the expansion of facilities at the Naval Dry Docks, Hunters Point, San Francisco, California.

2. The Issues.

So great is the gap between the theory urged by the appellant and that maintained by the appellee, that the parties are unable to agree even as to a statement of the issues here presented.

As conceived by the appellant, the question before the court is: "What is the proper value to be ascribed to land retained by the State of California in full fee ownership where the land at the date of the taking lies 20 feet under the waters of the Bay, and where the adjacent property had been conveyed out of the State of California pursuant to an Act of 1868 supra."

The appellee, on the other hand, states the problem as follows: "Whether land retained by the State of California for the sole purpose of providing ingress and egress to lots it had previously sold had more than a nominal value."

The discrepancy between these two statements stems, of course, from the fact that neither is entirely objective. Each is adulterated with a certain amount of argumentative material.

A fairer phrasing, we think, might perhaps be the following: "What is the proper valuation in a condemnation proceeding for tracts of land laid out as streets by the California Board of Tide Land Commissioners in 1869, which tracts were under 20 feet of water at the time of taking, in 1942?"

It will simplify the consideration of the present controversy if the areas of agreement and of disagreement between the parties are even more precisely outlined. In its statement of points on which it intends to rely on this appeal, the appellant asserts that the court below "erred in not finding that said property was never laid upon the grounds as streets."

Furthermore, Harold E. George, an associate civil engineer of the appellant's Division of State Lands, testified that the pink markings on a certain "blown-up" map indicated "the areas that were intended as streets by the surveyor who made this map for the Tide Land Commissioners." The blown-up map was made from a portion of the Tide Land Commissioners' map of March 19, 1869, supra. Both maps are in evidence here, and the appellant plainly states in its opening brief that "The parcels, which are the subject of this appeal, are marked in pink" on the blown-up map, which is one of the appellant's own exhibits.

Accordingly, we can take as an established fact that the areas in question at least were laid out as streets on the map of the Tide Land Commissioners.

The real issue between the parties as to the status of those areas is whether or not, in law and in fact, the strips of land were actually streets at the date of the taking in condemnation. Assuming that the designation of the tracts as "streets" on the map of the Tide Land Commissioners was at most only an "offer of dedication," the appellant stoutly denies that such offer was ever accepted by any authority.

Moreover, the appellant argues that even if this Court should find that the State of California retained the strips of land for the purpose of providing ingress and egress to the lots, the appellant is entitled to more than a nominal value for the tracts, because they were not actually used for ingress and egress and were in exactly the same condition as the adjacent property.

Finally, the appellant condemns the method of valuation employed by the appellee's two witnesses, one of whom was Director of Property for the City and County of San Francisco. They testified that "the value that was in the area taken by the streets is absorbed by the land that is sold plus an additional value to that land," and that "the value of the roadways, streets, strips, or whatever you choose to call them is reflected in the abutting property." Each of these two experts stated on the stand that the strips in each parcel were worth an aggregate of $1, or $4 for the entire group of street areas here in question.

It is agreed, however, "that the condemner must compensate for property in the condition that he finds it."

In reality, the present controversy involves two separate issues of law and fact:

1. At the time of taking, were the strips of land "streets," in the contemplation of law?

2. If so, what was the proper valuation that should have been given to them in a condemnation proceeding?

With the questions thus clarified, we can now proceed to a consideration of the case on its merits.

3. The Law That Governs.

During the oral argument, there was some discussion as to whether federal or state law controlled the instant case. The answer, of course, is that each plays a certain part in the determination of the issues here presented.

In United States v. Miller, 317 U.S. 369, 379, 380, 63 S.Ct. 276, 283, 87 L.Ed. 336, 147 A.L.R. 55, rehearing denied, 318 U.S. 798, 63 S.Ct. 557, 87 L.Ed. 1162, the rule was broadly laid down that matters of substantive right were to be determined according to federal law, while questions of form and procedure were to be settled by the law of the State. There the court said: "We need not determine what is the local law, for the federal statutes upon which reliance is placed require only that, in condemnation proceedings, a federal court shall adopt the forms and methods of procedure afforded by the law of the State in which the court sits. They do not, and could not, affect questions of substantive right, — such as the measure of compensation, — grounded upon the Constitution of the United States."

In a later decision, there was recognized the thrust of state law in the classification of property taken in condemnation. In United States ex rel. T. V. A. v. Powelson, 319 U.S. 266, 279, 63 S.Ct. 1047, 1054, 87 L.Ed. 1390, the court used the following language: "The right of the United States to exercise the power of eminent domain is `complete in itself' and `can neither be enlarged nor diminished by a State.' Case cited Though the meaning of `property' as used in § 25 of the Tennessee Valley Authority Act of 1933, 16 U.S.C.A. § 831× and in the Fifth Amendment is a federal question, it will normally obtain its content by reference to local law."

Finally, the rule was further clarified in the case of United States v. Petty Motor Co., 327 U.S. 372, 380, 381, 66 S.Ct. 596, 600, 90 L.Ed. 729. That case involved problems relating to the just compensation for tenants in condemnation proceedings to take their entire leaseholds...