White v. State of California

• Decision Date: 02 December 1971
• Citation: 99 Cal.Rptr. 58,21 Cal.App.3d 738
• Court: California Court of Appeals Court of Appeals
• Parties: Osborne WHITE and Aileen Dowsett White, Plaintiffs and Respondents, v. The STATE of California, Defendant and Appellant. Civ. 28156.

Page 58

99 Cal.Rptr. 58

21 Cal.App.3d 738

Osborne WHITE and Aileen Dowsett White, Plaintiffs and Respondents, v. The STATE of California, Defendant and Appellant.

Civ. 28156.

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

Dec. 2, 1971.

Thomas C. Lynch, Atty. Gen. of State of California, Charles A. O'Brien, Chief Deputy Atty. Gen., Jay L. Shavelson, Asst. Atty. Gen., Bertram G. Buzzini, N. Gregory Taylor, Deputy Attys. Gen., Sacramento, for appellant.

Bruce A. Beckman, Los Angeles, amicus curiae, Sierra Club.

Edward D. Landels, Landels, Ripley & Diamond, San Francisco, for respondents.

ELKINGTON, Associate Justice.

An appeal is taken by the State of California from a judgment in favor of plaintiffs Osborne and Aileen White which quieted title to 38 acres of valuable tidelands of Petaluma River (sometimes called Petaluma Creek). Tidelands are the 'land lying between the ordinary high and low tide lines.' (People v. California Fish Co., 166 Cal. 576, 583, 138 P. 79, 82.) The plaintiffs claimed title through a patent issued to their predecessors in interest by the State of California.

I. The Case

At the point where Petaluma River flows over the subject tidelands two or three miles upstream from San Francisco Bay, the river historically has been subject to tidal action of the Pacific Ocean, and therefore constitutes tidewater. It is 'an arm of the bay' and since 1853 has been declared by law to be a navigable stream. (Compiled Laws of California, 1850--1853, Chapter CXCVII, p. 916; Harbors and Navigation Code, section 104.) It has also been navigable in fact; as recently as 1965, according to a publication of the United States Army Corps of Engineers, January 1, 1967, 'Water Resources Development in California,' ¹ 305,000 tons of freight were carried on the river.

In 1870 one John Reagan filed an application for a patent to a 'certain tract of swamp and overflowed land being Salt Marsh Land in Sonoma County, lying and situate on the North side of Petaluma Creek being the Second Island below the mouth of San Antonio Creek.' The island had been topographically surveyed in 1860. The relevant portion of this survey is depicted as 'Figure One'. The typewritten markings have been added by us. It will be noted that the main channel of Petaluma River flowed (and still does) off the southwesterly shore of the island, and as indicated, the outlined area of the river which loops around into 'Rush Creek' and 'False Bay' traces the Low tide lines. Also noteworthy is the fact that the island's northerly, easterly, and southerly sides merge into shallow 'saltmarsh tidelands.'

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Reagan's patent application was made under the authority of 'An Act to provide for the management and sale of the lands belonging to the State,' Part II of which related to the sale and reclamation of 'swamp and overflowed, salt marsh and tide lands.' (Stats. 1867--68, ch. 415, p. 507--herein called 'the Act.') A condition of such a patent was that the applicant reclaim the land. The statutory cost to the applicant was $1.00 per acre. The Act provided that the county surveyor must survey the desired land, his survey thereafter to be submitted for approval to the state's Surveyor General.

As provided by the Act the Sonoma County Surveyor thereafter surveyed the island in 1871, following which a record of the survey was submitted to the state Surveyor General for approval. It was called 'Swamp and Overflowed Lands Survey No. 58' (hereinafter S & O Survey #58). S & O Survey #58 placed the starting point of its subject land's boundary as 'Beginning at a stake set in a bed of broken glass bearing N 59 1/2 W from the center cor (sic) to section 33 distant 2384 chs.' (The stake and the bed of broken glass have vanished with time; they cannot be found.) There followed 31 counterclockwise zig-zag calls of courses and distances, which finally closed the survey's plat at the point of beginning.

Also on the recorded survey the county surveyor sketched the survey's perimeter plat, its courses and distances, and its relation to Petaluma River and to sections 3, 4, 33 and 34, 'Base and Meridian of Mount Diablo.' A copy of the survey's sketch is to be found on 'Figure Two,' page 63 Infra. The survey's plat, the river, and sections 3, 4, 33 and 34, are as they appear in the original; for clarity we have superimposed certain captions and markings.

It will be noted that the survey's plat is firmly anchored on its southerly side to the southerly line of section 3, and on its easterly side to the easterly line of section 3 and the southerly line of section 34. It will also be observed that the survey's plat is bounded partially on the north by 'Tide Land Corrected Survey No. 21,' and on all remaining landward sides by 'Swamp and Overflowed Lands Survey No. 15.'

It is also notable that the starting point of the survey's calls, the 'stake set in a bed of broken glass,' was at the point of the most westerly projection of the plat, which was also one of the points of a south- westerly call of Tide Land Corrected Survey No. 21. And a comparison of the topographic survey of Figure One with the plat of Figure Two will disclose that much salt marsh tideland to the north and east, and probably to the south, was included within the limits of S & O Survey #58.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

A patent to the land embraced by S & O Survey #58, executed by the state's Governor, was issued to Reagan's successors in interest in 1880. It followed exactly the calls and courses and distances of the survey.

Plaintiffs' claim rests upon the 1880 patent. The disputed 38 acres of tidelands are somewhere in the area shown at Figure One immediately above the word 'River.'

Firmly established at the trial was the fact that the boundaries of the many patents along the northeasterly bank of Petaluma River fitted together closely, somewhat on the order of the common jigsaw puzzle. They were tied into several sections, in our case the lines of sections 3 and 34, as established in relation to Mount Diablo Base and Meridian (see Figure Two). Plaintiffs' witnesses generally conceded, indeed insisted, that the several patents 'fit together,' that adjoining boundaries were 'identical,' that '58 and 21 joined' and that they were 'all part of one solid map,' the 'whole figure (of which) is rigid, fits in there and there and goes on down around San Pablo Bay.' It is emphasized by the same witnesses that S & O Survey #58 closely dovetailed with its nearby surveys. They said 'the entire area of the survey all fit together as described in the patent.' The contention continues in plaintiffs' briefs on appeal; strangely, in light of the evidence produced and relied upon by them, they say, 'The contention that Survey 58 can be moved around (and courses changed) so as to put is boundaries where one would like to see them is the kind of 'surveying' nonsense which has bedevilled this controversy from the beginning.'

With the courses and distances of S & O Survey #58 fixed on the earth's surface, the patent's riverside boundary's angular calls are found to approximately follow the ordinary high tide mark. The disputed tidelands are located outside of the patent's plat.

This state of affairs would reasonably seem to indicate an intent of the county surveyor not to include this property in his survey. But plaintiffs' expert witnesses Passarino and Robinson testified otherwise. From their involved studies they concluded that the county surveyor Intended to locate the subject tidelands Within his survey lines. Passarino offered his own survey in which he had Changed 22 of the 31 calls of S & O Survey #58. This Amended survey went out into the river and embraced the 38 acres of tidelands sought by plaintiffs. Robinson also made a survey. He testified that he positioned his survey in the same manner as did Passarino; he said 'the two surveys (his and Passarino's) do fit together.' Both witnesses testified that the altered surveys were as really Intended by the county surveyor in 1871.

The changes of the survey lines which would add the 38 acres of riverfront tidelands to plaintiffs' acreage may best be illustrated by a comparison of S & O Survey #58 with the Passarino survey. (We have italicized the points of difference.)

                -------------------------------------------------------------------------------
                                   S & O Survey #58                  Passarino Survey
                County      -------------------------------------------------------------------
                Surveyor'S
                Call                              Distance                             Distance
                Number            Courses         in Feet            Courses           in Feet
                -------------------------------------------------------------------------------
                    26      N 57  W     1089.66  N 56  37' 10"    1089.78
                                                              W
                    27      S 43  30'   1168.86  S 43  50' 30"    1167.78
                              W                               W
                    28      S 74  30'   1230.24  S 74  52' W      1229.44
                              W
                    29      N 82  W     1825.56  N 81  27' 30"    1825.00
                                                              W
                    30      S 87  W      429.00  S 87  22' 20"     428.79
                                                              W
                    31      S 22  W      256.08  S 22  19' 10"     255.84
                                                              W
                       1    S 34  30'    574.86  S 34  13' 20"     574.58
                  2       E                               E
                    2       S 70  45'    426.36  S 70  28' 50"     426.42
                              E                               E
                    3       S 34  E      366.30  S 33  43' 30"     366.12
                                                              E
                    4       S 43  45'    762.96  S 43  28' 40"     762.72
                              E                               E
                    5       S 45  E      822.36  S 44  43' 40"     822.12

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