Opinion
Rehearing Granted October 7, 1969.
Albert M. Monaco, Heller, Ehrman, White & McAuliffe, San Francisco, for appellants.
C. William Simmons, San Francisco, J. Bert Morgan, Oakland, R. Frederic Fisher, San Francisco, Phillip S. Berry, Oakland, for amicus curiae, Sierra Club. Myers, Praetzel & Pierce, San Rafael, for respondents.
AGEE, Associate Justice.
Defendants Peter D. Whitney and Frances Anderson (hereafter "Whitney") appeal from three specified portions of a judgment quieting title in plaintiff (hereafter "Marks") to certain tidelands in Tomales Bay.
Whitney cross-complained to quiet title to an upland parcel lying immediately back of a portion of the Marks tidelands. The judgment fixes the common boundary line of the easterly side of the Whitney uplands and the Marks tidelands as the "line of ordinary high water." This boundary line has a total length of 344.48 feet and its northerly terminus is at "Point Cavilli." No appeal has been taken from this portion of the judgment.
Marks acquired title to the subject tidelands ("Tideland Lot 170") through mesne conveyances pursuant to a patent issued by the State of California on May 15, 1874 under the Act of March 28, 1868. (Stats.1868, ch. 415, p. 507, et seq.) The tract was originally surveyed in 1871. This survey is referred to as "Tide Land Survey No. 170." The trial court found that it was inaccurate and incorrect in a number of respects. Marks had a resurvey made in 1962 and introduced the map thereof in evidence at the trial as Exhibit 5.
Whitney requested a limited transcript on appeal, as provided by rule 5 of the California Rules of Court, and the oral proceedings are not included therein.
Two of the three portions of the judgment appealed from may be considered together. These portions quiet title to the subject tidelands in Marks subject only to a described prescriptive pier or wharf easement, seven feet wide, extending from the easterly boundary line of Whitney's upland parcel across Marks' tidelands to the seaward boundary thereof.
The judgment further provides: "Such [easement] rights shall be subject to the right of MARKS to use, to fill and to develop the [subject tidelands, including the easement area] * * *, so long as such rights of access and ingress and egress to and from the deep waters of Tomales Bay shall be preserved over and across said area seven feet in width and MARKS may use and convey the same for use, for all purposes which do not defeat or substantially interfere with use by WHITNEY of such area for the above stated purposes."
Did the 1874 patent grant an unrestricted title to the grantee thereunder, free of any public trust for purposes of navigation and commerce?
An analogous question was recently answered in the affirmative in Alameda Conservation Assn. v. City of Alameda (1968) 264 Cal.App.2d 284, 70 Cal.Rptr. 264 (hearing denied by California Supreme Court; cert. den. 394 U.S. 906, 89 S.Ct. 1013, 22 L.Ed.2d 217).
That case involved tidelands originally conveyed by the state in 1871, under the authorization of the Act of March 30, 1868 (Stats.1867-68, ch. 543, p. 716) and the Act of April 1, 1870 (Stats. 1869-1870, ch. 388, p. 541.) Plaintiff therein sought to enjoin the dredging and filling of said lands by the defendant-owners. A summary judgment in favor of defendants was affirmed on appeal.
Presiding Justice Draper, speaking for the court, said: "Although a state owns the lands underlying its bays [citations], it holds them in trust for the public for purposes of navigation and commerce [citation]. 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 [citations]. The very acts here involved have been described as '[t]he most striking instance of the exercise of this power of absolute disposition of such tide or submerged lands by the state of California' (People v. California Fish Co., supra, 166 Cal. 576, 585, 138 P. 79). Thus Alameda Conservation, supra, cites Knudson v. Kearney (1915) 171 Cal. 250, 152 P. 541, with approval. This was a quiet title action in which the defendant-lessee relied upon a grant from the state made under said Acts of March 30, 1868 and April 1, 1870. "Plaintiff objected to the introduction of the grant made in pursuance of the foregoing acts upon the ground that the state had no power thus to convey absolute title to the tidelands. There is no force in this objection. His contention is that under the decision of this court in People v. California Fish Co., 166 Cal. 576, , 138 P. 79, the state had no power to alienate tidelands so as to affect the public easement for navigation. The plaintiff has wholly misconceived the effect of that decision. Its purport is that a sale and grant made under the provisions of Political Code, §§ 3440 to 3493 1/2, inclusive, conveys to the grantee only a subordinate estate in the property, subject to the public uses of navigation and fishery, and that the state may at any time take such property for the purposes of navigation and fishery, notwithstanding such grant. The decision was limited to grants made solely on the authority of the said sections of the Political Code." (Italics added.)
By its terms, the tidelands to which the Act of March 30, 1868 applies are those "belonging to the State of California, situated in the City and County of San Francisco." The Act of April 1, 1870 states in its title that it is "supplementary to and amendatory of" the Act of March 30, 1868. The later statute adds to the area covered thereby, "all the * * * tide lands * * belonging to the State of California * * * within five statute miles of the exterior boundaries of said city and county." The tidelands involved in Alameda Conservation, supra, and Knudson, supra, are within this extended area.
The instant action involves tidelands outside the above areas and therefore the controlling statute is the Act of March 28, 1868. Section 28 thereof provides in part that "The * * * tide lands belonging to the State shall be sold at the rate of one dollar per acre in gold coin, * * *" Section 29 provides in part that "Whenever any resident of this State desires to purchase * * * any portion of the tide lands belonging to the State above low tide, he shall make affidavit * * * that he desires to purchase said lands (describing them) under the laws of the State providing for the sale of the * * * tide lands of the State, * * *" Section 1 provides in part that, "For the purpose of * * * selling any lands, the title of which is * * vested in the State * * *, an office shall be established * * *, the chief officer of which shall be known [as] * * * Register of the State Land Office." Section 5 provides in part that "Whenever final payment shall have been made for any tract of land sold by authority of the State, * * * it shall be the duty of the Reigster of the State Land Office, * * * to prepare a patent for said land and send the same to the Governor," to be signed by him.
The patent issued in the instant case, on May 15, 1874, contains the following pertinent wording: "Whereas, The Legislature of the State of California has provided for the Sale and Conveyance of the Tide Lands belonging to the State by virtue of her sovereignty, by Statutes enacted from time to time; * * *
"Now Therefore, All the requirements of the Acts of the State Legislature, in relation to Tide Lands, having been fully complied with, I Newton Booth Governor of the State of California, by virtue of authority in me vested, have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey unto James McM. Shafter all the above described lands, with the appurtenances thereunto belonging, to have and to hold, unto him the said The extent of the grant authorized to be issued by the Governor of the State of California under the Act of March 28, 1868, is as broad as that authorized under the Act of March 30, 1868. We therefore think that the Alameda Conservation case, supra, is controlling of the issue under discussion.
Is the easterly-waterward boundary line of the Marks tidelands sufficiently described in the findings and judgment?
The remaining portion of the judgment appealed from has reference to the northerly and easterly boundary lines of the Marks tidelands, both of which boundaries are seaward and not contiguous to any part of the Whitney uplands.
The description of the northerly boundary line in the 1874 patent is clearly in error and the trial court so found. It describes such line as leaving the northwesterly corner of the Marks tidelands (found by the trial court to be at "Point Cavilli") "thence along the line of ordinary low water N 71 1/4° E 1.00 chs." (Italics added.)
The court held that it was the intention of the parties to the patent to run the northerly boundary line from Point Cavilli, which was found to be on the ordinary line of high water, to the nearest point on the ordinary line of low water, a distance of 1 chain, or 66 feet. It is obvious that a boundary line which leaves the ordinary line of high water and runs to the ordinary line of low water cannot be described as one running "along the line of ordinary low water."
Hence, the court adopted the description depicted on the 1962 resurvey map and described the northerly boundary line in its judgment as follows: "thence leaving said line of ordinary high water [at Point Cavilli] and along the boundaries of the lands described in the patent to James McM. Shafter dated May 15, 1874, * * * North 71° 15' East 66 feet;" The propriety of this correction is obvious.
Whitney complains that the judgment description of the easterly boundary line of Marks' tidelands fails to include a recitation that it is the "line of ordinary low water," but instead is described by course and compass direction only.
Whitney points out that, in fixing the common boundary line between the westerly side of the Marks tidelands and the Whitney uplands, the judgment recites that it is the "line of ordinary high water * * *." This line is then described by five courses and compass directions from south to north, ending at Point Cavilli. Whitney does not complain of this description.
The findings of fact declare that "MARKS is the owner of all that certain real property situate and being in the County of Marin, State of California, more particularly described in Exhibit A, attached hereto and made a part hereof * * *."
The description in Exhibit A of the northerly and easterly boundary lines of the Marks property is as follows: "thence leaving said line of ordinary high water [at Point Cavilli] and along the boundaries of the lands described in the patent to James McM. Shafter dated May 15, 1874, * * * North 71° 15' East 66 feet; thence South 19° 15' East 184.8 feet; thence South 28° 15' East 310.2 feet * * *."
These last two calls are identical with those in the original patent, except that "chains" are converted into "feet." These patent calls indicated the line of ordinary low water in 1874. The findings and judgment herein fixed the boundaries "as the same existed on January 10, 1963," the date of the filing of this action. There is no evidence before us that such line changed between these two dates.
It is true that a boundary marked by a water line may shift from time to time, going landward with erosion and waterward with accretion. There is no evidence, as we have stated, as to whether either of these changes took place. If there was accretion, then Marks was entitled to more tideland than that to which his title was quieted. If there was erosion, then Marks was entitled to less. We do note, however, that the minutes contained in such record show that Marks called as his first witness one Thomas Brunner, a surveyor, and that he was on the witness stand for three full trial days. In the light of the issues involved herein, we can only conclude that the surveyor's testimony was directed to the proper location of boundaries.
Where a trial court recites in its findings and judgment, as it did here, that oral and documentary evidence was received, but there is no record as to what evidence was taken on an issue, it must be conclusively presumed on an appeal from the judgment that a finding on such issue was supported by the evidence. (Estate of Hansen (1949) 91 Cal.App.2d 610, 611-612, 205 P.2d 686.)
This being so, it is unnecessary to discuss Marks' contention that Whitney, not owning any property contiguous to the seaward boundary lines of the Marks tidelands, has no right to appeal from this portion of the judgment.
It has been stipulated that the 1874 patent is recorded in Book B of Patents at page 215, et seq., and that wherever the pagination, "48 to 56 inclusive," appears in the findings or judgment, it may be deemed to have been corrected accordingly.
As so modified, the judgment is affirmed. Respondents are to recover costs on appeal.
SHOEMAKER, P.J., and TAYLOR, J., concur.