STATE STATE LANDS COMMISSION v. LOVELACE

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Court of Appeal, Third District, California.

STATE of California ex rel. STATE LANDS COMMISSION, Petitioner, v. SUPERIOR COURT, Sacramento County, Respondent, Richard K. LOVELACE, et al., Real Parties In Interest.

No. C009815.

Decided: December 20, 1993

Daniel E. Lungren, Atty. Gen., Richard M. Frank, Asst. Atty. Gen., Jan Stevens, Kenneth R. Williams, and Michael L. Crow, Deputy Attys. Gen., for petitioner. No appearance for respondent. Washburn, Briscoe & McCarthy, Edgar B. Washburn, Sean E. McCarthy and Lyn Jacobs, San Francisco, for real parties in interest, Richard K. Lovelace, et al., and as amicus curiae, on behalf of real parties in interest California Land Title Association.

 Although this case involves just a twelve-acre parcel of land along the Sacramento River, it implicates issues of statewide importance.   The subject is the accretion process and alluvial deposits, and the basic issue is who owns alluvial deposits that attach to a riparian or a littoral tract when the process of accretion that deposited them was influenced by the works of people who were strangers to the tract.1  Does the state or does the owner of the tract own these deposits?   For reasons that we will explain, we side with the owner of the tract.

Resolution of this dispute turns on an interpretation of Civil Code section 1014 (hereafter, section 1014), which provides:  “Where, from natural causes, land forms by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accumulation of material [accretion] or by the recession of the stream [reliction], such land belongs to the owner of the bank, subject to any existing right of way over the bank.”  (Italics added.)

In resolving this dispute, we attempt to clarify what have become muddied legal waters in California regarding the meaning of the phrase “from natural causes” in section 1014.   As we shall explain, this issue implicates another one:  the issue of artificial accretion on California tidelands.   Since section 1014 and the tideland issue deal with the process of accretion, perhaps they can be forgiven for creating muddied waters.   But the fact is that the overwhelming number of jurisdictions in this country have developed simple, fair and workable principles in this area.  (See Annot., Accretion Caused by Artificial Condition (1974) 63 A.L.R.3d 249, 252–257, 295, (hereafter, 63 A.L.R.3d).)   These principles recognize the pervasive influence of human beings on the modern landscape and hold that alluvial deposits attaching to a riparian or a littoral tract belong to the tract's owner even though the process of accretion was influenced by the works of people who were strangers to the tract.  (63 A.L.R.3d at pp. 252–256, 295.)   To interpret section 1014 based on California's seemingly unique and factually inapposite decisions in Dana v. Jackson Street Wharf Co. (1866) 31 Cal. 118 (Dana ) and the artificial accretion cases that rely upon Dana holds the promise of only more unfairness and confusion, as exemplified by the issues and arguments comprising the present proceeding.  (See 63 A.L.R.3d at pp. 256–257, 295–296.)

Our theme regarding section 1014 is that the term “natural causes,” if construed on the basis of Dana and the artificial accretion cases that rely upon Dana, threatens to assume a prominence in California jurisprudence unwarranted by the ancient property and common law principles that served as the foundation for section 1014.   Unless properly harnessed, this prominence will likely spawn unfair claims to land premised on an impractical view of section 1014.   As we shall explain, neither Dana nor the artificial accretion cases that have followed Dana—Forgeus v. Santa Cruz Co. (1914) 24 Cal.App. 193, 140 P. 1092;  City of Los Angeles v. Anderson (1929) 206 Cal. 662, 275 P. 789;  City of Newport Beach v. Fager (1940) 39 Cal.App.2d 23, 102 P.2d 438;  Carpenter v. City of Santa Monica (1944) 63 Cal.App.2d 772, 147 P.2d 964;  L.A. Athletic Club v. City of Santa Monica (1944) 63 Cal.App.2d 795, 147 P.2d 976;  People v. Hecker (1960) 179 Cal.App.2d 823, 4 Cal.Rptr. 334;  South Shore Land Co. v. Petersen (1964) 230 Cal.App.2d 628, 41 Cal.Rptr. 277 (see also Strand Improv. Co. v. City of Long Beach (1916) 173 Cal. 765, 161 P. 975;  and Curtis v. Upton (1917) 175 Cal. 322, 165 P. 935)—are appropriate bases on which to interpret section 1014.  Dana was not an accretion case involving a riparian or upland owner.   A practical and fair interpretation of section 1014 requires a return to the principles of accretion and alluvion law upon which section 1014 was founded, principles that have gained an almost universal acceptance through ancient and modern times.   Based on these principles and practical considerations, we conclude that the phrase “from natural causes” in section 1014 refers to the action of the water in the accretion and reliction processes.

Our theme regarding artificial accretion on California tidelands employs much of the same analysis.   All of the significant artificial-accretion tideland cases in California are founded on Dana (and are cited immediately above) with the exception of Patton v. City of Los Angeles (1915) 169 Cal. 521, 147 P. 141.   As noted, viewing Dana as an accretion case is suspect.   So too is Patton's analysis, which adopts an unrealistic view of tidelands as static entities regarding the principle of tideland inalienability.  (See Cal.Const., art. 10, § 3;  formerly art. 15, § 3.)

As we shall explain, a fair, workable and legally-supportable rule of accretion, for both section 1014 and the tideland context, is that of a gradual and imperceptible accumulation of material that results from the action of the water, even if artificially-influenced.

BACKGROUND

In this action and cross-action to quiet title and for declaratory relief, plaintiffs allege they own the twelve-acre parcel, which is situated along the Sacramento River at the west end of Seamas Avenue in Sacramento at a point commonly known as Chicory Bend.   Plaintiffs claim they received title by deeds from their predecessor in interest.   The state claims title under the following theory:  in 1850, the area at Chicory Bend was under water and constituted riverbed which came under state ownership when California achieved statehood;  thereafter, due to accretion at Chicory Bend, the river shifted westward;  the alluvion at Chicory Bend was caused by “artificial accretive influences,” i.e., debris (washed into the river) from hydraulic mining activities in the American River and Feather River watersheds beginning in the 1870's, levees constructed at or near Chicory Bend in the 1890's, wing dams erected in the river channel at or near Chicory Bend in the early 1900's, and dredging of the river channel in the vicinity of Chicory Bend;  alluvion deposited on the bank of the Sacramento River at Chicory Bend due to artificial accretion belongs to the state rather than the riparian owner.

Claiming that artificial accretion is limited to that which is caused by placement of a structure or other artificial obstruction in the water which alters the water flow and results in the gradual accumulation of sediment, plaintiffs moved for summary adjudication that “any gradual accumulations of land along the Sacramento River at Chicory Bend consisting, in part, of sediments washed into upstream tributaries in the Feather River and American River watersheds by hydraulic mining, and not caused by any artificial structures or activities at Chicory Bend, are natural accretions that belong to the riparian landowner.”

Plaintiffs' statement of undisputed material facts alleged:  “The Feather River and the American River empty into the Sacramento River north of Chicory Bend.  [¶] During an approximately 25–year period prior to 1884, hydraulic mining operations in the American River and Feather River watersheds washed great quantities of earth into natural streams and watercourses tributary to the American River and Feather River.   Some of the mud and silt, in combination with materials that entered the streams as the product of natural erosion, were transported as suspended sediments and eventually deposited into the bed of the Sacramento River.”

The state disputed these facts only to the extent they “understate [ ] the effect of hydraulic mining debris on the Sacramento River.”   The state asserted:  “The hydraulic mining occurred over a 32–year period between 1852 and 1884․  It had the effect of quintupling for about 100 years the average annual amounts of sediment that would have passed from the Sacramento Basin into the bay under natural conditions․  The hydraulic mining debris had enormous effects on the Sacramento River in the vicinity of Chicory Bend.   Shoals and sand bars emerged, blocking or hindering navigation.   At Chicory Bend, the bed of the river rose 12 to 15 feet between 1872 and 1882.   Levees, wing dams and dredging were direct responses to the problems of flooding and hindrance of navigation caused by hydraulic mining debris.”

In support of their request for summary adjudication, plaintiffs cited section 1014, which provides that alluvion belongs to the riparian landowner where, from natural causes, land forms by imperceptible degrees upon the bank of a river either by accumulation of material or by the recession of the river.   Plaintiffs acknowledged that cases have held that alluvion belongs to the state rather than the riparian owner where it is caused artificially by the construction of piers or other structures which impede the water's natural flow and cause sediment to collect proximate to the obstruction.  (Citing City of Los Angeles v. Anderson, supra, 206 Cal. 662, 275 P. 789;  Carpenter v. City of Santa Monica, supra, 63 Cal.App.2d 772, 789, 147 P.2d 964.)   However, plaintiffs sought to distinguish these cases by arguing that alluvion which was not caused by any structure or other artificial obstruction placed in the water at or near Chicory Bend is not the product of artificial accretion “but occurred naturally, as a result of the River's natural process of depositing suspended sediment along its bank.”

Plaintiffs also argued that, if alluvion resulting from the gradual accumulation of mining debris carried by the natural flow of water is held to be the product of artificial accretion, riparian landowners would face the difficult burden of proving the historical origin of the alluvion on their land.   In support of this argument, plaintiffs cited State of California v. Superior Court (Fogerty) (1981) 29 Cal.3d 240, 172 Cal.Rptr. 713, 625 P.2d 256, an action to determine the boundary between public and private ownership of the shores of Lake Tahoe, which was litigated many years after the construction of a dam that raised the level of the lake.   Noting there are “hundreds of dams in California, some dating back to the early days of statehood[,]” the court held that the “monumental evidentiary problem which would be created by measuring the boundary line between public and private ownership in accordance with the water level which existed prior to the construction of these dams provides a convincing justification for accepting the current level of the lake as the appropriate standard.”  (Id., at p. 248, 172 Cal.Rptr. 713, 625 P.2d 256.)

The state urged the trial court to reject plaintiffs' view that accretion “is ‘natural’ when it consists of an artificial source [of material] and a natural transport process.”   According to the state, the gradual accumulation of mining debris washed downstream by normal flow of the water constitutes artificial accretion because it “would not have occurred absent human actions,” i.e., “the main impetus for the washing of the sediments onto the bank is a human action.”   As to the evidentiary burden asserted by plaintiffs, the state responded:  “Unlike the situation in Fogerty, the legislature has created a specific rule regarding ownership of accretions.   That rule requires the court to make a factual determination of the cause of accretion at Chicory Bend and to hold that the state owns that accretion if it was formed by artificial causes.”

The superior court granted plaintiffs' motion, ruling:  “Civil Code § 1014 provides that accretions from natural causes belong to the adjacent landowner.   While there can be no doubt that enormous quantities of silt found their way into the Sacramento River system after having been dislodged by hydraulic mining, the materials were transported to Chicory Bend by natural causes, the flow of the River.   In many ways, very little remains natural in the strictest sense as to most California rivers.   Dams regulate the flow and alter the extent to which banks are eroded, for example.   But to consider the entire system an artificial one would be inappropriate.   Given the great passage of time since mining dislodged these materials and the distance from the source of the materials, and the time the accretions have existed, it would be unreasonable to interpret § 1014 to require tracing these accretions to their sources.   This would place an inappropriate burden on the parties and the courts.”

In this original writ proceeding (Code Civ.Proc., § 437c, subd. (1)), the state contends the trial court's interpretation of section 1014 “is contrary to well-established controlling case authority which recognizes that deposition of materials washed into the water by human activities but deposited by the natural flow of the water constitute artificial accretion belonging to the state.”   Plaintiffs retort the trial court properly concluded that gradual accumulation of mining debris due to the flow of the river, and not caused by any artificial obstruction in the water at or near Chicory Bend, constitutes accretion by “natural causes” within the meaning of section 1014 because case law has recognized that artificial accretion is limited to situations in which “some man-made structure impedes the flow of water causing accumulation of sediment.”

In an amicus brief filed in our court, the California Land Title Association (CLTA) has waded into the fray.   Although in general agreement with the position of plaintiffs, the CLTA does “not agree with them on the point that only accretions [i.e., alluvion] resulting from hydraulic mining are to be treated as ‘natural,’ inuring to the benefit of the upland owners, and that accretions resulting from wing dams, levees and other structures must be viewed as ‘artificial’ and not attached to the uplands.   In [CLTA's] view, accretions resulting from any of these activities belong to the uplands, so long as the accretions were deposited gradually and imperceptibly through the action of the river's waters.”   This is the position of the overwhelming number of jurisdictions in this country.   Essentially, we agree with this position and conclude that California has deviated from this “mainstream” view through a misapplication of judicial precedent.   Consequently, we deny the writ petition.   We begin our discussion with section 1014.

DISCUSSION

1. The Phrase “From Natural Causes” in Section 1014

We start, as we must, with the words of section 1014:  “Where, from natural causes, land forms by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accumulation of material or by the recession of the stream, such land belongs to the owner of the bank, subject to any existing right of way over the bank.”   Because this statute does not define the phrase “from natural causes,” it poses an ambiguity for judicial resolution.

The state looks to the decision in Dana as the foundation for resolving this ambiguity.   The several California decisions cited above, in the context of resolving tideland claims, have looked to Dana and have concluded that accretion resulting entirely from artificial means does not belong to the upland owner, but rather belongs to the state or its successor.   This principle was stated most broadly by the court in Hecker:  “Throughout the years [Dana ] has been cited for the proposition that accretion resulting from artificial means does not inure to the benefit of the upland owner, but the right to recover possession thereof is in the state or its successor in interest [Citing Anderson, Carpenter, Fager and Forgeus ].”  (179 Cal.App.2d at p. 838, 4 Cal.Rptr. 334.)

The fundamental problem with this interpretation of Dana is that Dana was not an accretion case involving a riparian owner who could gain or lose land depending on the action of the water at the boundary of his land.   Instead, Dana was a purpresture (encroachment) case involving a waterfront landowner whose water boundary remained permanently fixed by statute.

In Dana, the trial court found that the plaintiff was the landowner of a statutorily-created waterfront lot on San Francisco Bay.   The plaintiff sued to eject the defendant, a private company that had built a wharf adjoining the plaintiff's land.   The wharf had resulted in “a permanent accretion by artificial and natural causes to [plaintiff's] water lot.”  (31 Cal. at p. 120.)   Defendant used this wharf and the land created to unload vessels.   For two principal reasons, the high court in Dana concluded that plaintiff could not sue to eject the defendant—only the state could do so.   The court explained the first reason as follows:

“As to the lands gained from the sea by alluvion, i.e. by the washing up of sand or earth, so as in time to make terra firma, the law is held to be that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining.  (2 Bl.Com. 61) The findings, however, make a case of purpresture, or encroachment, by the erection of a wharf in a public harbor, and not a case of marine increase by alluvion, within the definition of that term as fixed by the foregoing citation․  [¶] By the common law any erection below high-water mark, without license, is regarded as an encroachment and intrusion on the King's soil, which the King may demolish, seize or arrent at his pleasure.  (Ang. on T.W. 199.)   This shows decisively that in cases of purpresture, the right of entry is not in the adjacent land-owner but in the crown.  (Dana, supra, 31 Cal. at pp. 120–121.) 2

The second principal reason for the Dana decision was explained in the following terms:

“We do not consider that the plaintiff is a riparian proprietor in the sense in which that term is used in the law of tide-waters.   He is not an owner upon the ‘shore,’ but upon a ‘water-front’ of statute creation.   The water-front established by the act of March 5, 1851, is what that act has made it to be ․  It is provided in the fourth section of the act, that the boundary line described in the first section ‘shall be and remain a permanent water-front of said city;’ ․  If the water-front could be extended on the ground of marine increase by reliction or alluvion, or by any other kind of accretion, so that the owner of the water-lot immediately adjacent would have a right of entry thereon to the exclusion of the State, then the water-front, as limited by the red line of the act, would or might be an ever-shifting, instead of a permanent line.”  (Dana, supra, 31 Cal. at pp. 121–122, emphasis in original.)

Because Dana preceded the enactment of section 1014 by six years, it is assumed that the drafters of section 1014 were aware of the decision and incorporated its analysis into that section.   However, since Dana was not an accretion case involving a riparian or littoral (upland) landowner, it was not of great importance to section 1014.   This may explain why the drafters of section 1014, in their annotations to that section, did not list Dana as source for what that section means.  (See Haymond & Burch, Civil Code of California (Annot.) (1874), p. 286.)

It is important to note that the court in Dana, in distinguishing the case before it as one “of purpresture, or encroachment, by the erection of a wharf in a public harbor, and not a case of marine increase by alluvion,” did so by citing Blackstone's well-acknowledged encapsulation of the common law on the subject of alluvion.  (31 Cal. at p. 120–121;  see County of St. Clair v. Lovingston (1874) 90 U.S. (23 Wall.) 46, 23 L.Ed. 59 (Lovingston ).   As accurately characterized by the Dana court, that encapsulation provides:

“As to the lands gained from the sea by alluvion, i.e. by the washing up of sand or earth, so as in time to make terra firma, the law is held to be that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining.  (2 Bl.Com. 61 [see 2 Bl.Com. 262].)”  (Dana, supra, 31 Cal. at p. 120.)

Again, the point is that Dana did not ground its decision on the distinction between natural and artificial causes of accretion, but rather on the doctrine of purpresture.   In doing so, Dana implicitly accepted the common law rule on accretion.   This common law rule did not refer specifically to natural causes, but instead delineated two aspects of “alluvion” law:  the “washing up of sand or earth, so as in time to make terra firma” and “gain ․ by small and imperceptible degrees.”  (31 Cal. at p. 120.)

A look at the pertinent California decisions on the subject of artificial accretion, their factual context, their view of Dana and their view of the distinction between natural and artificial causes is illustrative.

The first pertinent decision in the post–Dana era was a case from this court in 1914, Forgeus v. County of Santa Cruz, 24 Cal.App. 193, 140 P. 1092 (Forgeus ).  Forgeus involved a grant of a highway right of way to a county over land fronting Monterey Bay.   The court held that accretions due to the county's act in raising the roadbed along the right of way go to the riparian owner and not to the county.   As Forgeus stated, “[i]t could hardly be contended that the county by such artificial means could secure the fee to the alluvion as an addition to its right of way.   The alluvion would be an accession to the fee and not to the easement.”  (24 Cal.App. at p. 199, 140 P. 1092.)   In making this determination, the Forgeus court quoted from Tatum v. City of St. Louis (1894) 125 Mo. 647, 654, 28 S.W. 1002 that “ ‘[t]he riparian owner is entitled to the land formed by gradual and imperceptible accretions from the water, regardless of the cause which produced it,’ ” and from Lovingston that “ ‘[t]he proximate cause [of the alluvion] was the deposit[ ] made by the water.   Whether the flow of water was natural or affected by artificial means is immaterial.’ ”  (24 Cal.App. at p. 199, 140 P. 1092.)   In fact, Forgeus has been characterized as “[t]aking the position that where the proximate cause of a deposit of alluvion is gradual accretion caused by a flow of water, the question whether that flow was natural or affected by artificial means is immaterial․”  (63 A.L.R.3d at p. 298.)

After drawing its conclusion, the court in Forgeus noted:

“Clearly, there is a distinction between this case and that where a structure is erected, by the state or municipality, on land below the line of ordinary high water.   In the latter case the deposit of alluvion caused by such structure would not inure to the benefit of the riparian owner.   This is pointed out in Dana v. Jackson Street Wharf Co., 31 Cal. 118, [89 Am.Dec. 164], wherein it is held that ‘In case of purpresture or encroachment by the erection of a wharf in the bay of San Francisco beyond the city front, the right to recover possession is in the people, and not in the owner of the land adjoining on the city front,’ and furthermore:  ‘The owner of a lot upon the water-front of San Francisco, as established by statute, below low water mark, is not a “riparian purprestor” in the sense in which that term is used in the law of tide waters, for the water-front of San Francisco is of statutory construction.’ ”  (Forgeus, supra, 24 Cal.App. at p. 200, 140 P. 1092.)

What Forgeus failed to grasp, however, is that a structure erected by the state or a municipality is a presumably legal structure, whereas Dana was premised on an illegal structure in a public area (a purpresture or encroachment—the erection of an illegal wharf in San Francisco Bay);  it was this illegal nature which vested the right to recover possession in the people.  (Dana, supra, 31 Cal. at p. 121 [“By the common law any erection below high-water mark, without license, is regarded as an encroachment and intrusion on the King's soil, which the King may demolish, seize or arrent at his pleasure.  (Ang. on T.W. 199.)   This shows decisively that in cases of purpresture, the right of entry is not in the adjacent land-owner but in the crown.”].)

A year after Forgeus came Patton v. City of Los Angeles (1915) 169 Cal. 521, 147 P. 141 (Patton ).   In Patton, the upland owner was denied any title to artificially-accreted lands that were caused by a lawful railroad embankment across part of San Pedro Bay.  (169 Cal. at p. 525, 147 P. 141.)   Without citing section 1014 or Dana, the court in Patton reasoned as follows:

“It is first contended that a part of the land south of the boundary has ceased to be tide land because of [the] accretion ․  Regarding this and other claims of accretions by and additions to the upland, or because of erections and embankments of others, it is sufficient to say that the point assumes that it was once tide land, and that this being so, it was reserved from sale, and was not alienable by any state officer under any law, during the time when the alleged accretions occurred, and, therefore, no artificial embankment, made by third persons, or made or suffered by state officers or agents, nor any accretion to the adjacent upland caused thereby, could operate to divest the state of its title to the tide land so reserved․  We can see no plausible reason for the contention that the making of such embankments, or accretions caused thereby, would operate in favor of third persons to divest the state of its title to tide lands covered by the embankment and accretions extending out over it from the adjacent upland, and transfer the title to the owner of the upland.”  (Patton, supra, 169 Cal. at p. 525, 147 P. 141.)

It is clear that Patton was grounded firmly on the California principle of tideland inalienability rather than on any principle of artificial accretion.   (See Cal.Const., art. 10, § 3;  formerly, art. 15, § 3.)

A year after Patton came Strand Improv. Co. v. Long Beach (1916) 173 Cal. 765, 161 P. 975 (Strand ).  Strand merely concluded that the right to alluvion exists in a seashore owner, in conformity with the common law.   Strand cited Dana as recognizing this concept.  Strand also quoted Blackstone's encapsulation of the common law regarding alluvion, noting that it was “practically the universal rule.”  (173 Cal. at p. 771, 161 P. 975.)   Although Strand did not mention anything about natural or artificial causes, the high court, a year later in Curtis v. Upton (1917) 175 Cal. 322, 165 P. 935 (Curtis ), characterized Strand as deciding “that the common law that gradual accretions from natural causes to land abutting upon water belong to the owner of the upland applied to lands fronting upon tidal waters and to the shores of the ocean.”  (Id. at p. 334, 165 P. 935.)

The next significant decision was City of Los Angeles v. Anderson (1929) 206 Cal. 662, 275 P. 789 (Anderson ).  Anderson involved the deposit and lodgment of foreign materials against a lawfully-constructed government breakwater in San Pedro Bay.   The parcel created by this process, said the court, did not attach as alluvion to the upland owner but retained its character as public land, being in the nature of reclaimed or filled-in tideland.  (Id. at p. 667, 275 P. 789.)   The court contrasted the nature of this deposit as filled-in tideland with the “ordinary wash of the ocean.”   (Ibid.) Anderson cited the Blackstone common law encapsulation noted above for the proposition that “[a]t common law, when land was from natural causes and by small and impercetible degrees gained from the sea or formed upon the banks of rivers and streams, either by alluvion or dereliction, it belonged and went to the owner of the upland or of the bank, respectively.”  (Id. at p. 666, 275 P. 789.)   Citing only Strand and Curtis, the Anderson court then noted that “the authorities have consistently declared, in conformity with the common-law acceptation thereof, that, for the owner of the upland to be entitled to the accretions thereto, such accretions must have resulted from natural causes and been of gradual and imperceptible formation.”  (Id. at p. 667, 275 P. 789.)

Then, citing Dana, Forgeus and Patton, the Anderson court stated:

“Where, however, the accretions have resulted, not from natural causes, but from artificial means, such as the erection of a structure below the line of ordinary high water, there is made out a case of purpresture, or encroachment, and the deposit of alluvion caused by such structure does not inure to the benefit of the littoral or upland owner, but the right to recover possession thereof is in the state or its successor in interest, as the case may be.”  (Anderson, supra, 206 Cal. at p. 667, 275 P. 789.)

In this passage, Anderson equates artificial accretions formed by the erection of a structure below the line of ordinary high water with a case of purpresture or encroachment, even though the artificial structure in Anderson was a lawfully-constructed one.  (See State v. Sause (Or.1959) 217 Or. 52, 342 P.2d 803, 823.)   Once again, then, the central premise of Dana—the erection of an illegal wharf in San Francisco Bay creating a purpresture or encroachment rather than an accretion—has been hijacked, without analysis, to apply to artificially-accreted land resulting from a legal structure in the water.   It is also important to emphasize that the land at issue in Anderson involved the equivalent of filled-in tideland.

City of Newport Beach v. Fager (1940) 39 Cal.App.2d 23, 102 P.2d 438 (Fager ) also involved artificially-filled or reclaimed tidelands, this time in Newport Bay and the result of dredging by the city.  (Id. at pp. 29, 31, 102 P.2d 438.)   Relying on Dana, Patton and Anderson, the court in Fager declared, in conclusionary fashion, that “[a]ccretions which have been added to the upland by artificial means do not inure to the benefit of the littoral owner but remain in the state or its successor in interest.”  (Id. at p. 31, 102 P.2d 438.)

That leads to Carpenter v. City of Santa Monica (1944) 63 Cal.App.2d 772, 147 P.2d 964, which undertook an exhaustive survey of the previous decisions.   The issue in Carpenter was “who owns artificially filled or accreted tidelands, formed gradually and imperceptibly, as between the state, or its grantees, and the upland owner?”  (Id. at p. 789, 147 P.2d 964.)   Relying on Patton, Anderson and Fager, the court sided with the state's grantee, the city.   The court was concerned about the state or a grantee of the state transferring into private ownership tidelands which it holds under an irrevocable trust.  (Id. at p. 794, 147 P.2d 964.)

In reaching these conclusions, the court in Carpenter noted that the accretions at issue had been caused entirely by artificial means (a city-constructed breakwater in Santa Monica harbor), and that the issue of accretions resulting from both natural and artificial causes had not been decided in California.  (63 Cal.App.2d at 782, 794, 147 P.2d 964.)   Carpenter also paid the customary homage to Dana, noting that “[a]ll of the more recent cases on the subject cite and rely upon” that early decision.  (Id. at p. 792, 147 P.2d 964.) 3

Forgeus and Carpenter recognize that outside the context of entirely artificially-accreted tidelands, the common law rule set forth in the United States Supreme Court decision in Lovingston probably applies in California.  (The Lovingston rule posits that alluvion is “an addition to riparian land, gradually and imperceptibly made by the water to which the land is contiguous;”  and that if the proximate cause of the alluvion “was the deposits made by the water[,] [t]he law looks no further.   Whether the flow of the water was natural or affected by artificial means is immaterial.”  (90 U.S. (23 Wall) at p. 68, 23 L.Ed. at pp. 63–64.))   As Carpenter explains:

“There are no doubt many federal cases, following the leading case of [Lovingston], which hold that as between competing upland owners, or as between upland owners and others not claiming tidelands as successors of the state, artificial accretions belong to the upland owner.   This is the general common law rule and probably the rule in this state.  ( [Citing Forgeus.]   An entirely different rule may apply, however, where the upland owner attempts to assert title to lands formed by artificial accretions against the claim of the state, or its successor in interest, that such lands are tidelands.”   (Carpenter, supra, 63 Cal.App.2d at p. 787, 147 P.2d 964;  see Forgeus, supra, 24 Cal.App. at pp. 199–200, 140 P. 1092;  see also 63 A.L.R.3d at p. 298.)

This critical point was recognized by our high court in State of California v. Superior Court (Fogerty) (1981) 29 Cal.3d 240, 172 Cal.Rptr. 713, 625 P.2d 256, which noted that the Carpenter court “refused to apply [section 1014] to tidelands, deciding that artificial accretions to tidelands belong to the state, because to hold otherwise would indirectly convey public tidelands into private ownership.”  (Id. at p. 248, fn. 4, 172 Cal.Rptr. 713, 625 P.2d 256.)

That brings us to the broad observation in People v. Hecker, supra, 179 Cal.App.2d at p. 838, 4 Cal.Rptr. 334, based on citations to Forgeus, Anderson, Fager and Carpenter, that “[t]hroughout the years [Dana ] has been cited for the proposition that accretion resulting from artificial means does not inure to the benefit of the upland owner, but the right to recover possession thereof is in the state or its successor in interest.”

While the accuracy of this observation is debatable given its generality, one thing is certain:  the Dana court did not hold that accretion resulting from artificial means goes to the state rather than to the upland owner.  Dana was not an accretion case involving a riparian owner.   Instead, it was a purpresture case involving an owner whose water boundary did not “go with the flow” but rather was fixed permanently by statute.   The point is that Dana has been used by subsequent California decisions, without any analysis but with a great deal of blind adherence, as the foundation for the distinction between natural and artificial causes in the accretion context, a distinction that was not at issue in Dana.   It is as if the post-Dana decisions have artificially accreted themselves on this point.   It is also important to note, once again, that all of the cases in California on artificial accretion involve accretions to coastal tidelands—Forgeus, Patton, Strand, Curtis, Anderson, Carpenter, L.A. Athletic Club v. Santa Monica, supra, 63 Cal.App.2d 795, 147 P.2d 976 (Carpenter 's companion case), Hecker and South Shore Land Co. v. Petersen, supra, 230 Cal.App.2d 628, 41 Cal.Rptr. 277.  (See also 52 Cal.Jur.2d, Waters, § 798.)   California's constitution forbids the grant or sale to private interests of tidelands located within two miles of an incorporated city or town.  (Cal.Const., art. 10, § 3, formerly art. 15, § 3;  see United States v. Aranson (9th Cir.1983) 696 F.2d 654, 661–662.)   In this way, the California decisions on artificial accretion are of little relevance in construing the term “natural causes” in section 1014.

 The question then still remains:  what does the term “natural causes” mean in section 1014?   The answer to that question requires an examination of the law on the subject at the time section 1014 was drafted and the sources used by the drafters of section 1014.   The answer also requires that principles of fairness and practical application be considered, recognizing that little in the California landscape or its significant waterways remains in a completely natural state.

The words of section 1014 are identical to section 443 of the Field Code (1865).  (Commissioners of the Code, The Civil Code of the State of New York, Report Complete (1865), pp. 134–135;  David Dudley Field was only one of the New York Commissioners, but he is credited for having drafted most of the Civil Code—see Furlong Ent. v. Sun Exploration & Prod. (N.D.1988) 423 N.W.2d 130, 135, fn. 17.)

In California, as in New York, there was a Code Commission appointed (in 1870 in California) to draft a complete system of laws for presentation to the Legislature.  (Haymond & Burch, Civil Code of California (Annotated) (1874) [hereafter, Haymond & Burch], California Code Commission Preface.)  Section 1014, enacted in 1872 in the Civil Code, was part of this effort.   Two of the three California Code Commissioners—Creed Haymond and John C. Burch—published an annotated version of the Civil Code to help the judiciary interpret the statutes.  (Haymond & Burch, supra.)   As these two gentlemen stated in the preface to their annotated work:

“The reasons which prompt the publication of an annotated edition may be briefly stated:  In the interpretation of statute law, Courts have always professed to be governed to some extent by the intent of the Legislature, and to take judicial notice of the right sought to be established or the mischief intended to be avoided․  It is, then, the object of the notes attached to the various sections of the Codes to explain the reason and intent of the law, to make it clear and easy of comprehension, and to show its application, not only generally, but to circumstances which, though within the principle, may not fall strictly within the letter of the statute․  In some places the Code modifies or alters what has heretofore been the law.   Wherever this occurs the reason for the change is given—the hardships which existed under the former law, and how the present enactment applies to prevent their future occurrence.”  (Haymond & Burch, supra, Preface, p. vi, emphasis in original.)

The notes following a particular statute, then, are critical in the statute's interpretation.   The notes following section 1014 are as follows:

“NOTE.—Code Napoleon, Arts. 556, 557;  Civil Code of Louisiana, Art. 501;  Morgan vs.   Livingston, 6 M., p. 216;  Livingston vs. Herman, 9 M. R., p. 656.  ‘That ground which a river has added to your estate by alluvion, becomes your own by law of nations;  and that is said to be alluvion which is added so gradually that no one can judge how much is added in each moment of time.’—Cooper's Justinian, Lib. 2, Tit. 1;  3 Barn. & Cress., p. 91.   Imperceptible.—Halsey vs. McCormack, 18 N.Y., p. 147;  Emans v. Turnbull, 2 Johns., p. 313.   If the formation is sudden;  held in New York that it belonged to the State.—Id.   Accumulation of material.—Emans vs. Turnbull, 2 Johns., p. 313.   The rule of the common law gave to riparian owners the soil formed by imperceptible or inconsiderable augmentation or deposits, on the ground or principle that the profits and advantages of a thing belong of right to him who, under a change of circumstances, is exposed to suffer its damages and losses.—See U.S. Land Office Report, 1868, by J.S. Wilson, p. 127.”  (Haymond and Burch, supra, p. 286.)

A review of the Haymond and Burch annotations to section 1014 shows that two critical components comprise the accretion process.   The first, as noted by all of Haymond and Burch's annotations to section 1014, is that of a gradual and imperceptible increase of land.   The second, as disclosed by almost all of these annotations, is that this increase must result from the action of the water.  (See Livingston v. Heerman (1821) 9 M.R. 656, 717 [“all a river thus adds, by alluvion, to our field, becomes ours by the law ․ common to all countries];  Cooper's Institutes of Justinian, Lib. 2, Tit. 1 [“That ground which a river has added to your estate by alluvion, becomes your own by law of nations”];  Halsey v. McCormick (1858) 18 N.Y. 147, 150 [cited by Lovingston for the following proposition:  “The proximate cause [of the alluvion] was the deposits made by the water.   The law looks no further.   Whether the flow of the water was natural or affected by artificial means is immaterial”];  3 Barn. & Cress. 91 [in that case, the land “formed gradually by ooze and soil deposited by the sea”].)   What is not mentioned in these annotated sources, with the singular exception of Halsey, which we discuss later, is any requirement regarding “natural causes.”   Again, these annotations are grounded on the concepts of an imperceptible increase caused by the action of the water, and artificial influence on the action of the water is apparently irrelevant.

 According to Haymond and Burch, these annotations are to be used to interpret section 1014.  (Haymond & Burch, supra, Preface, p. vi.)   In doing that, the phrase “from natural causes” in section 1014 becomes a “natural” fit for the concept involving the action of water, even if artificially influenced.   This is because section 1014 explicitly includes the concept of “land form[ed] by imperceptible degrees,” but does not say anything explicitly on the concept of water action.   If the phrase “from natural causes” is deleted from section 1014, the statute reads:  “Where ․ land forms by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accumulation of material or by the recession of the stream, such land belongs to the owner of the bank, subject to any existing right of way over the bank.”   Without the phrase “from natural causes” in section 1014, there is nothing in that section explicitly setting forth the requirement that the accumulation of material must have been done by the action of the water.   Without the phrase “from natural causes,” section 1014 could be deemed to include new land that results from the direct act of human beings rather than from the action of the water.   Land that forms from the direct act of human beings is not within the concept of accretion, however.  (See 63 A.L.R.3d at p. 253.)

Interpreting section 1014 in this manner accords with well-settled ancient and common law principles governing accretion.   As noted in New Orleans v. United States (1836) 35 U.S. (10 Pet.) 662, 717, 9 L.Ed. 573, 594,

“The question is well settled at common law that the person whose land is bounded by a stream of water which changes its course gradually by alluvial formations, shall still hold the same boundary, including the accumulated soil.   No other rule can be applied on just principles.   Every proprietor whose land is thus bounded is subject to loss by the same means which may add to his territory;  and as he is without remedy for his loss, in this way, he cannot be held accountable for his gain.”

And the United States Supreme Court in Lovingston, just two years after section 1014 was adopted, summarized many of the ancient and common law sources relied upon by the California Code Commissioners in drafting section 1014.   That summary provides:

“It is insisted by the learned counsel for the plaintiff in error that the accretion was caused wholly by obstructions placed in the river above, and that hence the rules upon the subject of alluvion do not apply.   If the fact be so, the consequence does not follow.   There is no warrant for the proposition.   The proximate cause was the deposits made by the water.   The law looks no further.   Whether the flow of the water was natural or affected by artificial means is immaterial.  Halsey v. McCormick, 18 N.Y. 147;  3 Washb. R. Prop., 48.  [¶]  The law in cases of alluvion is well settled.  [¶] In the Institutes of Justinian it is said:  ‘Moreover, the alluvial soil added by a river to your land becomes yours by the law of nations.   Alluvion is an imperceptible increase, and that is added by alluvion which is added so gradually that no one can perceive how much is added at any moment of time.’   Lib. II., tit. I., § 20․ [¶]  The Code Napoleon declares:  [¶] ‘Accumulations and increase of mud formed successively and imperceptibly on the soil bordering on a river or other stream is denominated “alluvion.”   Alluvion is for the benefit of the proprietor of the shore, whether in respect of a river, a navigable stream or one admitting floats or not;  ․’   Book II. of Prop., etc., § 556.   [¶] Such was the law of France before the Code Napoleon was adopted.   4 Nouv. Dict. de Brillon. 278;  Morgan v. Livingston, 6 Mart. 243․  [¶] Blackstone thus lays down the rule of the common law:  ‘And as to lands gained from the sea, either by alluvion, by the washing up of land and earth, so as in time to make terra firma, or by dereliction, as when the sea shrinks below the usual water marks;  in these cases the law is held to be that if the gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining.   For de minimis non curat lex [the law does not concern itself about trifles];  and besides, these owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is, therefore, a reciprocal consideration for such possible charge or loss․  2 Com., 262;  see, also Woolrych, L. Waters, 34;  and Shultes, Aquatic Rights, 116.”  (Lovingston, supra, 90 U.S. (23 Wall.) at pp. 66–67, 23 L.Ed. at p. 63.)

The Lovingston court then concluded:  “In the light of the authorities, alluvion may be defined as an addition to riparian land, gradually and imperceptibly made by the water to which the land is contiguous.”  (90 U.S. (23 Wall.) at p. 68, 23 L.Ed. at p. 64, emphasis added.)   Ironically, Dana cited with approval Blackstone's common law rule on alluvion, a rule whose central components, as accurately characterized by Dana, are the “washing up of sand or earth” and “gain ․ by small and imperceptible degrees.”  (Dana, supra, 31 Cal. at p. 120.)

It appears that with one exception, state and federal courts construing statutes similar or identical to section 1014 have interpreted them as a codification of the common law;  and have noted that the common law is virtually unanimous in holding that a riparian owner is not precluded from acquiring land by accretion where the accumulation is but hastened or influenced by artificial structures or means lawfully constructed by third parties.  (Littlefield v. Nelson (10th Cir.1957) 246 F.2d 956, 958;  Willett v. Miller (1935) 176 Okl. 278, 55 P.2d 90, 92;  Goins v. Merryman (1938) 183 Okl. 155, 80 P.2d 268;  City of Missoula v. Bakke (1948) 121 Mont. 534, 198 P.2d 769, 772;  Frank v. Smith (1940) 138 Neb. 382, 388–390, 293 N.W. 329;  134 A.L.R. 467;  63 A.L.R.3d 249;  see Jackson v. United States, supra, 56 F.2d at pp. 341–343 [applying section 1014;  see fn. 3, ante.) ].)   The one exception is Furlong Ent. v. Sun Exploration & Prod. (N.D.1988) 423 N.W.2d 130, 133–135.   That case, relying on a law review article's characterization of Halsey v. McCormick, supra, 18 N.Y. 147, claims that the phrase “from natural causes” in a North Dakota statute identical to section 1014 represents a departure from common law principles.   We examine Halsey below and conclude this claim misconstrues Halsey.

Interpreting the section 1014 phrase “from natural causes” as referring to the action of the contiguous waters, even if artificially influenced, not only accords with well-settled and almost universally-applied common law principles, but aligns with accepted legal definitions for the term “accretion.”   That term has been defined as “[t]he act of growing to a thing;  usually applied to the gradual and imperceptible accumulation of land by natural causes, as out of the sea or a river” (Black's Law Dict. (6th ed. 1990) P. 20);  and as “ ‘the gradual and imperceptible addition of sediment to the shore by the action of water;  it is created by operation of natural causes.’ ”  (Gifis Law Dict. (1975), p. 4.)   Indeed, as noted in the California decision of South Shore Land Co. v. Petersen, supra, 230 Cal.App.2d at p. 630, 41 Cal.Rptr. 277:  “Although it is true that an owner of upland may see the quantity of his land increased by natural accretion, that is, by the action of tides washing soil up along the shoreline, it is settled that such owner, having no rights or title in the tidelands, acquires no interest therein when they are filled by artificial means.”  (First emphasis added, second emphasis in original;  see also Brundage v. Knox (1917) 279 Ill. 450, 462–463, 117 N.E. 123.)   This interpretation is also consistent with the accepted lay definition for the term “alluvion” (allivium), which is defined as “[s]ediment deposited by flowing water” and “[t]he flow of water against a shore or bank.”  (The American Heritage Dict. (2d College ed. 1976), p. 96;  see also Lovingston, supra, 90 U.S. (23 Wall.) at pp. 68–69, 23 L.Ed. at p. 64 for legal definition in accord.)

Equating the section 1014 phrase “from natural causes” to the action of water also aligns with Haymond and Burch's statement regarding one of the purposes of their annotated Civil Code.   These two gentlemen explain in the preface to that work that wherever the California Code Commission modified or altered “what has heretofore been the law,” the reason for the change is given in the annotations—“the hardships which existed under the former law, and how the present enactment applies to prevent their future occurrence.”  (Haymond & Burch, supra, Preface, p. vi.)   The annotations to section 1014, as we have seen, do not say anything about a change in the law of accretion but instead cite the venerable authorities on that issue which refer generally to the gradual and imperceptible addition of sediment to the shore by the action of water.

 The interpretation of “from natural causes” in section 1014 to mean the action of the water also creates a parallel consistency in section 1014 between the two subjects covered in that section:  accretion and reliction.   Reliction is the gradual and imperceptible withdrawal of water from land which it covers.  (Gifis Law Dict. (1975), p. 175.)   The phrase “accumulation of material” in section 1014 refers to accretion, while the phrase “recession of the stream” refers to reliction.   The processes of accretion and reliction are the two ways of creating alluvion.   Interpreting the phrase “from natural causes” in section 1014 to refer to the action of the contiguous water, even if artificially influenced, works in a consistent and simple fashion for both accretion and reliction because a central component of each is the action of the adjoining water.   In this way, section 1014 's focus is always on the concepts of imperceptibility and water action, rather than on the ever-changing and complex issues of what can be considered artificial and what can be considered natural in the setting of a highly-developed and developing modern waterway.

That leads to perhaps the most important reason for construing the phrase “from natural causes” in section 1014 to mean the action of the water, even if artificially influenced.   That reason is workability and fairness.   The question of what is natural and what is artificial in the context of California's highly-developed waterways is one of bewildering complexity.   For example, in this case, is the entire Sacramento River south of Shasta Dam to be considered artificial?   If so, what does that mean for the multitudes of landowners along its banks, many of whose families have been there for generations?   Does the state actually own everything on the Sacramento River banks south of Shasta Dam?   What about the artificial levees, wing dams, bypasses, revetments, new channels, dikes, jetties, bulkheads, groins, wharves and embankments, not to mention the lawfully-constructed docks, marinas and piers?   How do they affect land ownership along the Sacramento River?   And where are the lines drawn between natural and artificial in this complex setting?   An essential and inherent attribute of riparian ownership is owning land abutting the water.  (See Lovingston, supra, 90 U.S. (23 Wall.) at pp. 68–69, 23 L.Ed. at p. 64.)   As part of this attribute, the riparian owner is entitled to imperceptible gain of land from the action of the water, and, correspondingly, must bear the similarly-caused imperceptible loss.  (Id. at pp. 67–69, 23 L.Ed. at pp. 63–64.)   In colloquial terms, the riparian owner gets the gain because he or she must bear the pain.

Construing the phrase “from natural causes” in section 1014 to mean something apart from the action of the water and to require the precise delineation of what is artificial and what is natural in the complex modern environment of the California water system is both unrealistic and unfair.   (See Littlefield v. Nelson, supra, 246 F.2d at pp. 958–959 [construing a statute identical to section 1014].)   It is not difficult to see that great uncertainty and much litigation would ensue if such a doctrine were established and enforced.  (See Strand, supra, 173 Cal. at pp. 770–771, 161 P. 975;  see also State v. Superior Court (Fogerty), supra, 29 Cal.3d at p. 248, 172 Cal.Rptr. 713, 625 P.2d 256;  State v. Sause, supra, 342 P.2d at p. 819.) 4  Basing an interpretation of the phrase “from natural causes” on the action of the water, as set forth herein, bypasses these difficulties and inevitable injustices by returning to principles that have gained nearly universal acceptance because of their inherent simplicity and fairness.   This interpretation still accounts for the public interest by recognizing the doctrines relating to the tidelands and to the public trust.

That leaves the thorn of the 1858 New York decision in Halsey v. McCormick, 18 N.Y. 147.   Section 443 of the Field Code, the text of which is adopted verbatim by section 1014, provides in its annotated version as follows:

“Where, from natural causes, land forms by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accumulation of material, or by the recession of the stream, such land belongs to the owner of the bank, subject to any existing right of way over the bank.

“Halsey v. McCormick, 18 N.Y., 147;  Emans v. Turnbull, 2 Johns., 313.   If the formation is sudden, it belongs to the state (Ib ).

“Emans v. Turnbull, 2 Johns., 313.

“Code Napoleon, Art. 556, 557.”

Section 1014 cites Halsey in its annotations in the following passage:  “Imperceptible—Halsey vs. McCormack [sic], 18 N.Y., p. 147;  ․”   (Haymond & Burch, supra, p. 286.)

Halsey involved a dispute between two private riparian owners with the plaintiff claiming some land as alluvion.   The evidence showed that the defendant had rechanneled the stream, leaving the land in question bare.   The court held that although the defendant may have violated the plaintiff's riparian rights, the plaintiff could not obtain the land on an alluvion theory.   To acquire title to land as alluvion, the Halsey court held, it is necessary that the increase of land should be imperceptible—that the amount added in each moment of time should not be perceived.  (18 N.Y. at p. 149.)   The evidence in Halsey showed that the land was not formed in this way.

In dicta, the Halsey court then noted:

“As the case stands, it is not necessary to pass upon the question whether there is a distinction between the case of alluvion formed by natural or artificial means.   I find no such distinction in the books.   If, by some artificial structure or impediment in the stream, the current should be made to impinge more strongly against one bank, causing it imperceptibly to wear away, and causing a corresponding accretion on the opposite bank, I am not prepared to say that the riparian owner would not be entitled to the alluvion thus formed, especially as against the party who caused it.”  (Halsey, supra, 18 N.Y. at p. 150.)

One law review commentator, in discussing North Dakota's alluvion statute, which is identical to section 443 of the Field Code and therefore identical to section 1014, noted, based on this language in Halsey, that “[i]t would appear that Field who drafted the code knew what he was doing when he used the term ‘natural causes' and intended to exclude land forming from artificial causes ․  The distinction between natural and artificial causes is not made in the French Civil Code [i.e. Code Napoleon, Art. 556, 557], the second of the three authorities cited by Field, nor is it made in the third authority cited [i.e., Emans v. Turnbull, 2 Johns., 313].”  (Beck, The Wandering Missouri River:  A Study in Accretion Law, (1967) 43 N.Dak.L.Rev. 429, 450.)   In dicta, the Supreme Court of North Dakota has taken this view and deemed the North Dakota statute a departure from the common law on this point.  (Furlong Ent. v. Sun Exploration & Prod., supra, 423 N.W.2d at p. 133.)   Identical statutes in Montana and Oklahoma, however, have not foreclosed those courts from applying the traditional common law principles regarding alluvion to a situation involving “ ‘made’ land created by a city dump” (City of Missoula v. Bakke, supra, 198 P.2d at p. 772) or a situation where the accretion process was hastened by artificial structures.  (Littlefield v. Nelson, supra, 246 F.2d at pp. 958–959 [applying Oklahoma law].)   In fact, the Oklahoma statute has been held declarative of the common law.  (Littlefield, supra, at p. 958;  Willett v. Miller, supra, 55 P.2d at p. 92;  Goins v. Merryman, supra, 183 Okl. 155, 80 P.2d 268.)   Even the law review commentator noted above commended the City of Missoula result to the North Dakota courts.  (Beck, supra, 43 N.Dak.L.Rev. at p. 451.) 5

A careful reading of Halsey discloses that it cannot be used to conclude that the phrase “from natural causes” in section 1014 represents a significant departure from the common law of accretion.  Halsey noted the irrelevance of the distinction between natural and artificial causes, not in the context of a general characterization of the common law, but rather in the context of their effect on the action of the water:  “If, by some artificial structure or impediment in the stream, the current should be made to impinge more strongly against one bank, causing it imperceptibly to wear away, and causing a corresponding accretion on the opposite bank, I am not prepared to say that the riparian owner would not be entitled to the alluvion thus formed․”  (18 N.Y. at p. 150.)   This aspect of Halsey is consistent with the interpretation advanced in this opinion, which interprets the phrase “from natural causes” in section 1014 as referring to the action of the water, even if artificially influenced.

This point was noted in the 1874 decision of Lovingston.   In stating that the law of alluvion is well-settled, the Supreme Court in Lovingston cited Halsey as follows:

“It is insisted by the learned counsel for the plaintiff ․ that the accretion was caused wholly by obstructions placed in the river above, and that hence the rules upon the subject of alluvion do not apply.   If the fact be so, the consequence does not follow.   There is no warrant for the proposition.   The proximate cause was the deposits made by the water.   The law looks no further.   Whether the flow of the water was natural or affected by artificial means is immaterial.  Halsey v. McCormick, 18 N.Y. 147․”  (Lovingston, supra, 90 U.S. (23 Wall.) at p. 66, 23 L.Ed. at p. 63.)

After reviewing the ancient and common law principles on the definition of alluvion, Lovingston concluded that “[i]n the light of the authorities, alluvion may be defined as an addition to riparian land, gradually and imperceptibly made by the water to which the land is contiguous.”  (Id. at p. 68, 23 L.Ed. at p. 64.)

This point is also illustrated by the most recent A.L.R. annotation on the subject.   There it is stated that a riparian owner has the right “to new land formed against his premises by the natural processes of accretion or reliction, where such processes have been influenced by various works of man in which the riparian owner took no part;”  that “the process herein under discussion may be characterized as natural accretion artificially caused.   In all cases the actual depositing of alluvion must have been done by the flow of the waters [i.e., ‘the process of accretion must be the direct result of the action of the waters']”;  and, finally, that this situation is in contrast to “reclamation, landfill ․ and like situations ․ since these situations do not actually involve the processes of accretion or reliction, in that the formation of the new land is the result of the direct act of man, rather than of the action of the water, and is obvious and rapid rather than gradual and imperceptible.”  (63 A.L.R.3d at pp. 252–253;  see also pp. 255–257, 295–296.)

This point is also consistent with Haymond and Burch's failure to mention in their annotations to section 1014 that section 1014 represents a departure from the ancient and common law principles of accretion.   Their reliance on many of the most venerable of these principles, most of which were summarized in Lovingston, argues against a change in accretion law occasioned by section 1014.

 In sum, then, we conclude that the phrase “from natural causes” in section 1014 refers to the action of the water in the accretion and reliction processes that form alluvion.   Read this way, section 1014 encompasses the two long-recognized components of the “accretion” or “reliction” process:  the imperceptible “accumulation of material” (accretion) or “recession of the stream” (reliction) that results from the action of the water.  (See 63 A.L.R.3d at pp. 252–253.)   In the accretion context, the phrase “from natural causes” in section 1014 requires that the actual depositing of alluvion must have been done by the flow of the waters;  so long as “accretion-alluvion” results from the action of the waters, it is immaterial to section 1014 that the course of such waters has been influenced by artificial means.   A distinction in section 1014 between artificially and naturally-caused accretion cannot be grounded on Dana because Dana was not an accretion case involving an upland (riparian) owner—it was a purpresture case involving a landowner whose water boundary was fixed permanently by statute.   Nor can such a distinction be found in the post–Dana artificial accretion cases, all of which encompass accretions to coastal tidelands caused entirely by artificial structures.   And such a distinction cannot be traced to the New York decision of Halsey v. McCormick, which deemed irrelevant the distinction between natural and artificial means as they affect the flow of the water.   Basing an interpretation of the section 1014 phrase “from natural causes” on the action of the water, even if artificially influenced, does not contravene California precedent and aligns section 1014 with principles that have gained near universal acceptance because of their simplicity and fairness.   It creates a sensible and workable rule that recognizes the realities of the extensive human imprint on California waterways where distinguishing between what is artificial and what is natural may be a task fraught with difficulty and arbitrariness.   And it works without sacrificing the public interest because the doctrines relating to tidelands and to the public trust remain in full force.6

To the extent that the land at issue in this case was formed by the gradual and imperceptible accumulation of hydraulic mining debris carried by river water to Chicory Bend, that land is alluvion within the meaning of section 1014 and belongs to the riparian owner rather than to the state under that section.   So long as the alluvion was deposited gradually and imperceptibly by the flow of the waters, it does not matter, under section 1014, that this flow was influenced by artificial means such as levees or wing dams.   To the extent this land was formed by reclamation, landfill, or like situations, the land is not alluvion under section 1014 since it formed from the direct act of human beings rather than from action of the water, and was not formed in a gradual and imperceptible way.   We turn now to the issue of tidelands.

2. The Accretion Process and Tidelands

 This issue arises because the state, in its cross-complaint to quiet title, alleges that the Sacramento River at Chicory Bend is tidal and therefore the land at that location constitutes sovereign land owned by the state.   The plaintiffs concede that there are tidelands on the Sacramento River at Chicory Bend and that the state owns these lands, in trust, up to the ordinary high-water mark.   What is disputed, according to plaintiffs, is the location of that ordinary high-water mark in view of the accretion process at Chicory Bend.  (See Civ.Code, §§ 670, 830.)   This dispute invokes the issue of artificially-influenced accretions to California tidelands.

As we shall explain, the definition of the accretion process set forth above—a gradual and imperceptible accumulation of material that results from the action of the water, even if artificially-influenced—applies with similar force to tidelands.   With the exception of Patton, all of the significant artificial-accretion tideland cases in California are founded upon Dana.   That foundation, as noted above, is suspect.   So too is Patton's analysis.   Keeping the accretion process focused on a gradual and imperceptible accumulation of material that results from the action of the water, even if artificially-influenced, renders a fair, consistently-workable and legally-supportable rule that does no harm to the special protections afforded California tidelands.

 Some background is in order.   The term “tidelands” refers to those lands between the lines of mean high tide and mean low tide, covered and uncovered in the ordinary ebb and flow of the tide.  (City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 518–519, fn. 1, 162 Cal.Rptr. 327, 606 P.2d 362 (City of Berkeley );  Marks v. Whitney (1971) 6 Cal.3d 251, 257–258, 98 Cal.Rptr. 790, 491 P.2d 374 (Marks ).)   The term “submerged lands” refers to those lands that are seaward of mean low tide and that remain covered in the tide's ordinary ebb and flow.  (City of Berkeley, supra.)   For simplicity, we use the term “tidelands” to refer to both types of property.

 The State of California holds title to the navigable waterways and to the tidelands within its borders as trustee for the public.  (Graf v. San Diego Unified Port Dist. (1992) 7 Cal.App.4th 1224, 1228, 9 Cal.Rptr.2d 530 (Graf );  City of Berkeley, supra, 26 Cal.3d at p. 521, 162 Cal.Rptr. 327, 606 P.2d 362;  Marks, supra, 6 Cal.3d at p. 258, fn. 5, 98 Cal.Rptr. 790, 491 P.2d 374.)   Tidelands, therefore, are included in the public trust.   (Ibid.)

As explained by City of Berkeley:

“The doctrine that the public owns the right to tidelands for purposes such as commerce, navigation and fishing originated in Roman law, which held the public's right to such lands to be ‘illimitable and unrestrainable’ and incapable of individual exclusive appropriation.  (See Note, The Public Trust in Tidal Areas (1970) 79 Yale L.J. 762, 763, fn. 7.)   The English common law developed similar limitations upon private authority over such property:  the rights of the public prevailed over the rights of private persons claiming under tideland grants made by the crown.  (See Note, California's Tideland Trust:  Shoring It Up (1971) 22 Hastings L.J. 759, 761–762.)   After the American Revolution the people of each state acquired “absolute right to all ․ navigable waters, and the soils under them, for their own common use․”  (Martin v. Waddell (1842) 41 U.S. (16 Pet.);   367, 410 [10 L.Ed. 997, 1013].)  [¶] When California was admitted to statehood in 1850, it succeeded to title in the tidelands within its borders not in its proprietary capacity but as trustee for the public.  (City of Long Beach v. Mansell, supra, 3 Cal.3d 462, 482 [91 Cal.Rptr. 23, 476 P.2d 423 (1970) ];  People v. Kerber (1908) 152 Cal. 731, 733 [93 P. 878];  Ward v. Mulford (1867) 32 Cal. 365, 372.)   Although early cases expressed the scope of the public's right in tidelands as encompassing navigation, commerce and fishing, the permissible range of public uses is far broader, including the right to hunt, bathe or swim, and the right to preserve the tidelands in their natural state as ecological units for scientific study.  (Marks v. Whitney (1971) 6 Cal.3d 251, 259–260 [98 Cal.Rptr. 790, 491 P.2d 374].)  [¶]  There were limitations imposed by this ancient doctrine upon the alienation of tidelands to private parties.  Illinois Central Railroad Company v. Illinois (1892) 146 U.S. 387 [13 S.Ct. 110, 36 L.Ed. 1018], was the seminal case on the scope of the public trust doctrine and remains the primary authority even today, almost nine decades after it was decided.   The decision established the principle that a state, as administrator of the trust in tidelands on behalf of the public, does not have the power to abdicate its role as trustee in favor of private parties.”  (City of Berkeley, supra, 26 Cal.3d at p. 521, 162 Cal.Rptr. 327, 606 P.2d 362;  See also People v. California Fish Co. (1913) 166 Cal. 576, 583–603, 138 P. 79.)

These principles are embodied in California constitutional and statutory law.  Article 10, section 3 (formerly art. 15, § 3) of the California Constitution provides in pertinent part:

“All tidelands with[in] two miles of any incorporated city, city and county, or town in this State, and fronting on the water of any harbor, estuary, bay, or inlet used for the purposes of navigation, shall be withheld from grant or sale to private persons, partnerships, or corporations;  ․”

Article 10, section 4 of the state Constitution (formerly art. 15, § 2) mandates:

“No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water;  and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof.”

Civil Code section 670 specifies in relevant part:

“The State is the owner of all land below tide water, and below ordinary high-water mark, bordering upon the tide water within the State, [and] of all land below the water of a navigable lake or stream;  ․”

And Civil Code section 830 states:

“Except where the grant under which the land is held indicates a different intent, the owner of the upland, when it borders on tidewater, takes to ordinary high-water mark;  when it borders upon a navigable lake or stream, where there is no tide, the owner takes to the edge of the lake or stream, at low-water mark;  when it borders upon any other water, the owner takes to the middle of the lake or stream.”

With these principles in mind, we turn to the question of artificially-influenced accretions to tidelands.  Carpenter pithily noted the rule in this context:  “[T]he rule in this state is that in a controversy between the state, or its grantees, and the upland owner, artificial accretions belong to the state, or its grantees, as the owner of the tidelands.”  (63 Cal.App.2d at p. 787, 147 P.2d 964.)   A review of the pertinent decisions discloses that the opinions in Dana and Patton comprise the two legs on which this rule stands.  (See, e.g., Carpenter, supra, 63 Cal.App.2d at pp. 787–793, 147 P.2d 964;  Hecker, supra, 179 Cal.App.2d at pp. 838–839, 4 Cal.Rptr. 334.)

As noted above, however, Dana was not an accretion case involving a riparian owner—instead, it was a purpresture case involving a landowner with a permanently fixed water boundary.   Relying on Dana, the courts in Forgeus and Anderson erroneously equated artificially-influenced accretions resulting from lawfully-constructed artificial structures that altered the flow of water with a case of purpresture, or encroachment, and therefore held that alluvion formed in this manner belonged to the state or its grantee.   Carpenter and Fager followed suit, setting the stage for the broad and conclusionary observation in Hecker:  “Throughout the years [Dana ] has been cited for the proposition that accretion resulting from artificial means does not inure to the benefit of the upland owner, but the right to recover possession thereof is in the state or its successor in interest [citing Forgeus, Anderson, Carpenter and Fager ].”  (179 Cal.App.2d at p. 838, 4 Cal.Rptr. 334.)   For these reasons, which are discussed in more detail in our section 1014 analysis, not much weight can be placed on the Dana leg.

That leaves the single leg of Patton.  Patton involved accretions to tidelands caused by a lawful railroad embankment.   This was a peripheral issue in Patton, however.   The principal issue concerned a claim to the tidelands based on adverse possession.  (169 Cal. at pp. 525–537, 147 P. 141.)   In denying the upland owner any title to the artificially-accreted lands, the court in Patton did not cite any authority but referred implicitly to the constitutional provision of tideland inalienability;  on this issue, the court reasoned as follows:

“It is first contended that a part of the land south of the boundary has ceased to be tide land because of an accretion to the mainland caused by the erection of an embankment leading from the upland by the Southern Pacific Railroad Company along the line of its road leading from the mainland across a part of the bay.   Regarding this and other claims of accretions by and additions to the upland, or because of erections and embankments of others, it is sufficient to say that the point assumes that it was once tide land, and that this being so, it was reserved from sale, and was not alienable by any state officer under any law, during the time when the alleged accretions occurred, and therefore, no artificial embankment, made by third persons, or made or suffered by state officers or agents, nor any accretion to the adjacent upland caused thereby, could operate to divest the state of its title to the tide land so reserved.   There was an interval of nearly a year, being the period between March 12, 1887, the date of the repeal of the act incorporating Wilmington, and March 1, 1888, the date of the incorporation of the city of San Pedro, during which there was no incorporated city or town within two miles of this land and it was free from the reservation aforesaid.   We do not think this fact could have effect to attach to the upland, as part thereof, the previously formed accretions and embankments, or to divest the state of its title to the tide land with which it had not previously parted.   The railroad embankments were made pursuant to a license from the state under the Civil Code.   We can see no plausible reason for the contention that the making of such embankments, or accretions caused thereby, would operate in favor of third persons to divest the state of its title to tide lands covered by the embankment and accretions extending out over it from the adjacent upland, and transfer the title to the owner of upland.”  (Patton, supra, 169 Cal. at p. 525, 147 P. 141.) 7

Thus, Patton appears to invoke a principle that since tidelands are inalienable, what was once tideland is always tideland.   In view of the ever-changing nature of tidelands and the fact that the accretion process, as defined herein, involves a gradual and imperceptible accumulation of material caused by the action of the water, we find this reasoning less than convincing.   Implicitly, so did the same court in a unanimous opinion just a year after Patton–Strand Imp. Co. v. Long Beach, supra, 173 Cal. 765, 161 P. 975.

The court in Strand concluded that although the accretion process defined in section 1014 refers only to rivers and streams, the same principle applies to lands abutting the ocean, in conformity with the common law.  (173 Cal. at p. 773, 161 P. 975.)   The court's principal reason for this decision was explained as follows:

“The claim of the city [the state's grantee] to such accretions is based entirely on the proposition that the law of this state is that land formed by alluvion along the shore of the sea does not belong to the owner of the adjoining upland, but remains the property of the state in virtue of its sovereignty, as it was while the tides flowed over the space covered by the alluvion.   The proposition, considered in the light of its practical application and consequences, is certainly a most extraordinary one.   California has more than one thousand miles of seashore to which land is continually being added by alluvion, and from which land is continually being taken away by [erosion].   The actual line of mean high tide, as it existed when the state was formed, or as it was in 1872, when the Civil Code was enacted, has never been surveyed, and in places where relictions or alluvions have changed the shore line, the original line is unknown and cannot be ascertained with any degree of certainty.   If the doctrine is correct, the state is the real owner of innumerable parcels of land added to the shore by alluvion which hitherto have been supposed to belong to the respective owners of the upland to which they have been added and the boundaries of which cannot now be ascertained.   It is not difficult to see that great uncertainty, confusion, and much litigation would ensue if such doctrine were established and enforced.”  (Strand, supra, 173 Cal. at pp. 770–771, 161 P. 975.)

Strand did not say what caused the accretions in that case.   A year later, the high court in Curtis v. Upton, supra, 175 Cal. at p. 334, 165 P. 935, characterized Strand as deciding “that the common law that gradual accretions from natural causes to land abutting upon water belong to the owner of the upland applied to lands fronting upon tidal waters and to the shores of the ocean.”

Thus, Patton assumes that tidelands are static creatures fixed in time.   Strand recognizes, as do the elements of nature and the extensive human imprint on the modern environment, that this rigidity fails to reflect the reality “on the ground” (and I daresay in the water).  Strand also recognizes the multitude of problems that can arise by ignoring the realities of the accretion process along tidelands and burying one's head in the sands of Patton.

Therefore, both Dana and Patton provide nothing more than a foundation of shifting sand on which to base the distinction between artificial and natural accretions regarding California tidelands.   Furthermore, this distinction has never been adequately explained, and it causes only mischief in the practical world.

The best effort to explain this distinction was put forth in Carpenter.   That court stated:

“If accretions along an entire bay caused by the construction of a pier or wharf were held to belong to the upland owners as against the state, or its grantee, it would mean, in some cases, that the power of the municipality to improve its harbor would be cut off unless the accreted areas were condemned.   It would mean that every time the state or its grantee determined to build a wharf or pier, or to grant a permit or franchise for such construction, it would be granting away a material portion of the tidelands along the entire bay that might later be covered by artificial accretions.   Such a rule would mean that the state or its grantee could thus grant into private ownership tidelands which it holds under an irrevocable trust.   Such rule would permit the state or its grantees thus indirectly to convey away these tidelands, held in trust, when it cannot do so directly.   Such a rule would be violative of fundamental concepts of public policy.”  (Carpenter, supra, 63 Cal.App.2d at p. 794, 147 P.2d 964.)

In a prefatory statement to this quoted passage, the Carpenter court stated:  “In addition to the many reasons for this rule [i.e., the rule that artificial accretions go to the state] suggested in the opinions above referred to [i.e., Forgeus, Patton, Strand, Curtis, Anderson, Fager and Dana ] the following thought may be added.”  (Carpenter, supra, 63 Cal.App.2d at p. 794, 147 P.2d 964.)   However, a reading of these opinions and Carpenter's comprehensive summation of them fails to disclose any reasons for this distinction aside from Dana's concept of purpresture, Patton's concept of tideland inalienability, and the concept of reclaimed or filled-in tidelands.  (Id. at pp. 787–794, 147 P.2d 964.)   All of these reasons have previously been discredited in light of the accretion process defined in this opinion.

The additional rationale advanced in Carpenter does not fare any better in the context of an accretion process defined, in the traditional sense that we have adopted, as a gradual and imperceptible accumulation of material that results from the action of the water, even if artificially-influenced.   In applying this view of accretion, there are no problems with the gain or loss of land between private and public owners.   Each simply gains or loses as dictated by the accretion process.   Private lands do not have to be condemned—they are simply lost as a result of the customary workings of the accretion process influenced by lawful harbor structures.   Nor are public tidelands lost—they simply now border on the accreted land that has gradually and imperceptibly resulted from the action of the water, even if artificially-influenced.

A further look at these pertinent decisions also shows how California may have been diverted from applying these well-settled and traditional principles of accretion law in the tideland context.   That examination reiterates the irrelevance of Dana, which was not even mentioned in Patton.   And Patton's holding has been characterized by the California Supreme Court as follows:  “ ‘․ accretions caused by railroad embankments cannot operate to divest the title of the state to its tidelands, or to transfer them to the adjoining littoral owners.   And so if tidelands are reclaimed, the change in the character of the land does not have the effect of transferring it to the owners of the abutting land.’ ”  (Miller v. Stockburger (1938) 12 Cal.2d 440, 444, 85 P.2d 132, citing Patton and quoting from 26 Cal.Jur. at p. 306, emphasis added.)  Anderson and Fager, too, involved artificially-filled or reclaimed tidelands or their functional equivalent.   In fact, the only three significant cases in the tideland context that actually involve a true accretion process (i.e., a gradual and imperceptible accumulation by water action)—as contrasted with a fill or a reclamation process—are Strand, Forgeus and Carpenter.

Strand did involve an accretion process evidently without any artificial influence.  (See Curtis, supra, 175 Cal. at p. 334, 165 P. 935.)  Forgeus, however, involved an accretion process that was artificially-influenced;  accretions there were formed by the raising of a roadbed.   Yet Forgeus held that these accretions went to the upland owner.  (24 Cal.App. at pp. 199–200, 140 P. 1092.)  Forgeus distinguished this situation from one “where a structure is erected, by a state or municipality, on land below the line of ordinary high water.”  (Id. at p. 200, 140 P. 1092.)   Citing Dana, Forgeus concluded that such a structure results in a purpresture and therefore an alluvion deposit caused thereby would inure to the state.   As noted previously, this view fails to consider that a purpresture is an illegal structure whereas a state-built structure is not.   And it was the principles set forth in Dana, Forgeus, Patton, Strand, Anderson and Fager that circumscribed the court of appeal in Carpenter and led to its decision.  (63 Cal.App.2d at pp. 787–794, 147 P.2d 964.)

So a survey of the pertinent California decisions regarding artificial accretion on tidelands shows some ill-considered avenues of departure from the simple, fair and workable principles of traditional alluvion law.   There is the illegal nature of a purpresture—rather than any artificial accretion principle—that results in state control over the land formed by it.  (Dana, supra.)   There is the unworkable and unreal principle of once a tideland, always a tideland.  (Patton, supra.)   Finally, there are the situations involving reclamation or landfill (Anderson, supra;  Fager, supra ), “situations [that] do not actually involve the processes of accretion or reliction, in that the formation of the new land is the result of the direct act of man, rather than of the action of the water, and is obvious and rapid rather than gradual and imperceptible.”  (63 A.L.R.3d at p. 253.)   That leaves Forgeus and Strand which recognize that the accretion process applies to tidelands, even if artificially-influenced (or so says Forgeus ), and which acknowledge the mischief that can result from a contrary holding.   Literally and figuratively, then, the artificial accretion distinction regarding tidelands in California is an artificial one.

Although California's artificial accretion principle, in the tideland context, is without basis, has never been adequately explained, and can only result in great uncertainty, unfairness and litigation, it cannot be jettisoned without considering another issue central to tidelands:  their public trust nature.

The state holds title to the navigable waterways and to the tidelands within its borders as a trustee for the public.  (Graf, supra, 7 Cal.App.4th at p. 1228, 9 Cal.Rptr.2d 530;  City of Berkeley, supra, 26 Cal.3d at p. 521, 162 Cal.Rptr. 327, 606 P.2d 362;  Marks, supra, 6 Cal.3d at p. 258, fn. 5, 98 Cal.Rptr. 790, 491 P.2d 374.)   The public trust purposes have been traditionally defined in terms of navigation, commerce and fisheries.   (Marks, supra, at p. 259, 98 Cal.Rptr. 790, 491 P.2d 374;  State of California v. Superior Court (Lyon) (1981) 29 Cal.3d 210, 229, 172 Cal.Rptr. 696, 625 P.2d 239 (Lyon ).)   These were the public trust purposes in the era of Patton.  (Ibid.)  That leads to yet another criticism of the Patton analysis because the conduct of these water-related activities upon accreted, dry land is a bit difficult.   The more reasonable approach would be to have these purposes move with the tidal water boundaries that have moved with accretion.

Nevertheless, later decisions have determined that the permissible range of public trust purposes is far broader, encompassing the right to use the water to fish, hunt, bathe, swim, boat and pursue general recreational purposes, the right to use the bottom of the navigable waters for anchoring or standing, and the right to preserve the tidelands in their natural state for scientific study, as open space, as wildlife habitat and as a favorable influence on the scenery and climate of an area.  (See Marks, supra, 6 Cal.3d at pp. 259–260, 98 Cal.Rptr. 790, 491 P.2d 374;  Lyon, supra, 29 Cal.3d at p. 229, 172 Cal.Rptr. 696, 625 P.2d 239;  Graf, supra, 7 Cal.App.4th at p. 1228, 9 Cal.Rptr.2d 530.)

Aside from the preservation purpose, these expanded public trust purposes remain water-related.   In that respect, the definition of alluvion and accretion established here does not adversely affect the furtherance of these purposes—they simply move with the tidal water boundary.   The preservation purpose is focused on population increases and development pressures.   (Marks, supra, 6 Cal.3d at pp. 259–261, 98 Cal.Rptr. 790, 491 P.2d 374;  City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 479, 91 Cal.Rptr. 23, 476 P.2d 423;  see City of Berkeley, supra, 26 Cal.3d at pp. 534–535, 162 Cal.Rptr. 327, 606 P.2d 362;  see also State of California v. Superior Court (Fogerty), supra, 29 Cal.3d 240, 245, 172 Cal.Rptr. 713, 625 P.2d 256 (Fogerty ).)   But the accretion process defined here is compatible with this preservation focus because it encompasses only a gradual and imperceptible accumulation of material that results from the action of the water, and does not contemplate a sudden process of tideland destruction or tideland fill for the purposes of development.8

Thus a gradual and imperceptible accumulation of material (or withdrawal of water) that results from the action of the water, even if artificially influenced, does no violence to the public interest in tidelands.   Harbor or tideland improvements on behalf of the public are not foreclosed.   The public retains its tideland ownership (and preservation interests) subject to gradual and imperceptible gains and losses in the water boundaries.   And the public trust purposes are not diminished.   In this way, the well-settled principle is maintained that a littoral owner cannot assert an interest in the intervening tidelands as against the right of the state to hold and control such lands in furtherance of public trust purposes.  (See People v. Southern Pacific R.R.Co. (1915) 169 Cal. 537, 541, 147 P. 274;  Henry Dalton & Sons Co. v. Oakland (1914) 168 Cal. 463, 143 P. 721;  Koyer v. Miner (1916) 172 Cal. 448, 156 P. 1023;  Carpenter, supra, 63 Cal.App.2d at p. 792, 147 P.2d 964;  L.A. Athletic Club, supra, 63 Cal.App.2d at p. 799, 147 P.2d 976.)

One final issue deserves mention.   As the owner of the tidelands in trust for the public, the state also owns the minerals underneath the tidelands.   (Boone v. Kingsbury (1928) 206 Cal. 148, 170, 273 P. 797;  City of Long Beach v. Marshall (1938) 11 Cal.2d 609, 614, 82 P.2d 362.)   These minerals, obviously, do not shift with a change in water boundaries occasioned by the accretion process.   This issue poses a special and limited problem that certainly should not derail the general, comprehensive and practical analysis set forth herein.   No issue regarding mineral rights is asserted in this case and it is unnecessary to resolve that issue now.   One possible resolution, without derogating any others, would be to analogize this situation to the common occurrence where land is granted to one party subject to a reservation of mineral rights in the grantor.   In this way, the public interest would not be diminished.

In conclusion, to the extent that the land at Chicory Bend was once tideland but has now been covered by a gradual and imperceptible accumulation of material that has resulted from the action of the waters, even if artificially influenced, that land remains in private ownership—subject to new tideland at the water boundary of the accreted land (at the ordinary high-water mark) that is owned by the state in trust for the public.

DISPOSITION

The petition for writ of mandate is denied.   The alternative writ, having served its purpose, is discharged.

I concur in the result but disagree with the majority's reasoning.

In construing Civil Code section 1014 (section 1014), the majority adopts an interpretation, advanced by amicus curiae, that any gradual and imperceptible accumulation of material upon the bank of a river which results from “the action of the water” constitutes accretion “from natural causes” within the meaning of section 1014, even if it is the product of the placement in public waters of an artificial obstruction which alters the natural flow of the water and causes alluvion to accumulate proximate to the obstruction.

To reach this result, the majority criticizes and departs from our state's long-established legal precedent on artificial accretion.   Rather than build upon controlling law, the majority's stream of analysis attempts to erode and leave in its wake California Supreme Court holdings, as well as a number of Court of Appeal decisions, which are inconsistent with the majority's analysis.   While the statutory construction adopted by the majority is logical, fair and arguably preferable, it does not wash because the majority's effort to avoid California Supreme Court precedent is unconvincing.   In my view, this court is precluded by Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937 (Auto Equity) from adopting the majority's interpretation of section 1014.  (Id., at p. 455, 20 Cal.Rptr. 321, 369 P.2d 937 [under the doctrine of stare decisis, decisions of the California Supreme Court are binding upon and must be followed by the courts of appeal and trial courts in this state.] )

As I shall explain, the trial court's ruling must be affirmed because, in granting plaintiffs' motion for summary adjudication that “any gradual accumulations of land along the Sacramento River at Chicory Bend consisting, in part, of sediments washed into upstream tributaries in the Feather River and American River watersheds by hydraulic mining, and not caused by any artificial structures or activities at Chicory Bend, are natural accretions that belong to the riparian landowner” (italics added), the trial court correctly applied our state's common law rule of accretion espoused by the California Supreme Court in 1866, and codified by section 1014 in 1872, that alluvion belongs to the riparian owner except when accretion results from the placement in public waters of a structure or other artificial obstruction which alters the natural flow of the water and causes the gradual and imperceptible accumulation of land proximate to the obstruction.   Under California's narrow artificial-accretion exception, it is the artificial nature of the ultimate cause of the accretion, not the artificial nature of the source of the resulting alluvion, which determines whether the alluvion inures to the benefit of the state or the riparian owner.   Accordingly, although enormous quantities of debris were deposited artificially into the Sacramento River system after having been dislodged by hydraulic mining, any alluvion resulting from the gradual and imperceptible accumulation of mining debris transported to, and lodged at, Chicory Bend by the flow of the water was formed by “natural causes” within the meaning of section 1014 assuming the accumulation was not caused by artificial structures placed in the water at Chicory Bend.1

I begin my analysis with a brief historical overview.   During a colorful time in California history, hydraulic gold mining altered both the wealth of miners and the character of California's waterways.   Large quantities of water funneled with great pressure through monitors dislodged millions of cubic yards of earth in California's gold mining region.   Along with the dislodged clay, sand, gravel and stone, mixed with particles of gold, the water was channeled through flumes, sluices and other conduits where the gold was extracted.   The water and debris then were discharged into reservoirs and streams.   Massive portions of the tailings were washed into Northern California rivers, including the Feather, American, and Sacramento rivers.   By 1884, the bed of the American River had been raised 10 to 12 feet, and the bed of the Sacramento River had risen 6 to 12 feet.   Due to the shallowing of these rivers, there was frequent flooding and thousands of acres of farmland were covered by mining debris.   The flow of water also carried the debris through the Suisun bay and into the San Pablo and San Francisco bays.   The adverse effect hydraulic mining had on state waterways was so great that the operations of certain mining companies were declared to be a public nuisance and were enjoined permanently.   In 1893, Congress enacted legislation which prohibited hydraulic mining from harming state river systems and created the California Debris Commission.   The commission was empowered to regulate hydraulic mining and prevent the discharge of mining debris into California waterways, and to commence the process of restoring the navigability of rivers and protecting their banks.  (See People v. Gold Run D. & M. Co. (1884) 66 Cal. 138, 4 P. 1152;  Gray v. Reclamation District No. 1500 (1917) 174 Cal. 622, 163 P. 1024;  United States v. North Bloomfield G. M. Co. (1897) 81 F. 243;  Woodruff v. North Bloomfield G. M. Co. (1884) 18 F. 753.)

This bit of history is of significance to the quiet title litigation between real parties in interest (plaintiffs) and petitioner (the state) regarding a twelve-acre parcel along the Sacramento River at the west end of Seamas Avenue in Sacramento, a point commonly known as Chicory Bend.   Plaintiffs allege they own the land, having received title by deeds from their predecessor in interest.   The state claims that, because the land was formed by the accumulation of hydraulic mining debris carried by river water to Chicory Bend, it is the product of artificial accretion belonging to the state rather than the riparian owner.

As the majority correctly observes, resolution of the parties' dispute turns on an interpretation of section 1014, which provides:  “Where, from natural causes, land forms by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accumulation of material or by the recession of the stream, such land belongs to the owner of the bank, subject to any existing right of way over the bank.”  (Italics added.)

According to the state, accretion cannot be said to occur from “natural causes” where, as here, human activity polluted the river with the material which later accreted.   In the state's view, “[t]aken to its logical conclusion, the argument that accretion from a man-made source is nevertheless natural for purposes of Civil Code section 1014 means that there can be no such thing as artificial accretion.”   Thus, the state contends:  “Correct interpretation of section 1014 requires that hydraulic mining debris be considered an artificial cause of accretion.”

Plaintiffs counter that artificial accretion occurs only when “some artificial structure impedes the flow of water causing accumulation of sediment.”   Therefore, they argue, although hydraulic mining washed large amounts of sediment into upstream tributaries, the gradual accumulation of mining debris transported by the normal flow of the water and placed upon the bank of the Sacramento River due to the river's natural process of depositing suspended material along its bank, unaffected by any nearby structure or other artificial obstruction in the river, constitutes accretion “from natural causes” within the meaning of section 1014.

While in “general agreement” with plaintiffs, amicus curiae California Land Title Association (CLTA) does not endorse plaintiffs' acknowledgment that accretion caused by an artificial obstruction in the water is not accretion from “natural causes” within the meaning of section 1014.   CLTA asserts that, even though influenced by an artificial obstruction in the water, accretion is nonetheless “natural” because “the mechanism effecting the change is the flowing water.   Consequently, no distinction [should be] made between accretions and erosions occurring from totally natural causes and those induced by man, so long as the process itself is accomplished by the action of the water and is gradual and imperceptible.”   Thus, in CLTA's view, the phrase “natural causes” in section 1014 “refers to the action of water that provides the mechanism for forming the accretion, and not some manmade structure or activity of man which may have put in motion the chain of events that placed material in or permitted the water to transport the material upon the riparian owner's shore.”

To determine which position is correct, I examine the common law which preceded the enactment of section 1014 in 1872 because section 1014 “codifies the California view of the common law of accretions on rivers or streams.”  (Carpenter v. City of Santa Monica (1944) 63 Cal.App.2d 772, 788, 147 P.2d 964 (Carpenter );  see also City of Los Angeles v. Anderson (1929) 206 Cal. 662, 666–667, 275 P. 789 (Anderson).) 2  The common law also applies to accretion on land abutting the ocean.  (Strand Imp. Co. v. Long Beach (1916) 173 Cal. 765, 772–773, 161 P. 975.)

Accretion is a doctrine of ancient common law origin.   Its ancestry was traced by the United States Supreme Court in the leading case of St. Clair Co. v. Lovingston (1874) 90 U.S. (23 Wall.) 46, 23 L.Ed. 59(Lovingston ).  “In the Institutes of Justinian it is said:  ‘Moreover, the alluvial soil added by a river to your land becomes yours by the law of nations.   Alluvion is an imperceptible increase, and that is added by alluvion which is added so gradually that no one can perceive how much is added at any one moment of time.’ ․ [¶] The Code Napoleon declares:  [¶] ‘Accumulations and increase of mud formed successively and imperceptibly on the soil bordering on a river or other stream is denominated “alluvion.”   Alluvion is for the benefit of the proprietor of the shore․’  ․ [¶] Blackstone thus lays down the rule of the common law:  [¶] ‘And as to lands gained from the sea, either by alluvion, by the washing up of land and earth, so as in time to make terra firma, or by dereliction, as when the sea shrinks below the usual water marks;  in these cases the law is held to be that if the gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining.   For de minimis non curat lex [the law disregards trifles];  and besides, these owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is, therefore, a reciprocal consideration for such possible charge or loss․'  ․ [¶] In light of the authorities, alluvion may be defined as an addition to riparian land, gradually and imperceptibly made by the water to which the land is contiguous․  The riparian right to future alluvion is a vested right.   It is an inherent and essential attribute of the original property.”  (Id., at pp. 66–69, 23 L.Ed. at pp. 63–64;  see State of Nebraska v. State of Iowa (1891) 143 U.S. 359, 361–367, 12 S.Ct. 396, 397–399, 36 L.Ed. 186, 188–189;  5A Powell on Real Property (1993) Accretion, ¶ 717[2], p. 66–4 et seq.;   2 Miller & Starr, Cal. Real Estate (2d ed. 1989) Deeds, § 6:55, pp. 608–610;  1 Waters and Water Rights (1991 ed.)   Introduction to Riparian Rights, § 6.03(b)(2), pp. 188–189.)

Several rationales for the common law rule have been identified.   One, based on the Roman doctrine of accession, posits that, “just as where the owner of a tree which produces fruit becomes the owner of such fruit, so the owner of riparian land owns accreted lands.   Another rationale postulates that where a watercourse forms a boundary between landowners, such watercourse should remain as the legal boundary even though it has changed its location.   Also used as a reason for the existence of the doctrine of accretion is the thought that where accretion or reliction produces dry land little by little, such new land should go to the owner of the adjoining riparian premises under the maxim ‘de minimis non curat lex.’   A fourth rationale is identified as the ‘productivity theory,’ under which it is reasoned that a riparian owner can more quickly and completely utilize accreted land and that the policy of the law favors productive land use.   The ‘compensation theory’ is identified as a fifth reason for the existence of the doctrine;  here it is reasoned that since a riparian owner is subject to losing land through erosion, such owner ought to be allowed to benefit from any addition to his tract.   Since the quality of being riparian is usually seen as being a valuable asset and an integral part of the ownership of riparian land, a sixth ‘and perhaps most important reason’ for the doctrine is to preserve the riparian character of lands abutting upon waters.”  (Annot., Accretion Caused by Artificial Condition (1975) 63 A.L.R.3d 249, 258–260;  see Bonelli Cattle Co. v. Arizona (1973) 414 U.S. 313, 326, 94 S.Ct. 517, 526, 38 L.Ed.2d 526, overruled on other grounds in State Land Bd. v. Corvallis Sand & Gravel Co. (1977) 429 U.S. 363, 365, 97 S.Ct. 582, 584, 50 L.Ed.2d 550;  Lovingston, supra, 90 U.S. (23 Wall.) at p. 69, 23 L.Ed. at p. 64;  5A Powell on Real Property, op. cit. supra, ¶ 717 [3], p. 66–9 et seq.;   1 Waters and Water Rights, op. cit. supra, § 6.03(b)(2), pp. 190–192.)

Numerous courts have considered the riparian owner's right to accreted land where, as here, the natural process has been influenced by human activities, i.e., where such activity has served as an artificial catalyst for the natural process.  (See cases collected in Annot., op. cit. supra, 63 A.L.R.3d at p. 252, et seq.)   Most jurisdictions, whether in suits between private parties and governmental entities or in actions between private litigants, award alluvion to the riparian owner irrespective of whether human activity has caused or contributed to the natural process of accretion.   (Id., at pp. 256–257;  5A Powell on Real Property, op. cit. supra, ¶ 717 [2], p. 66–4 et seq.;   2 Miller & Starr, op. cit. supra, § 6:55, pp. 608–610;  1 Waters and Water Rights, op. cit. supra, § 6.03(b)(2), pp. 193–194.) 3

In Lovingston, the United States Supreme Court succinctly rejected any distinction between accretion from natural causes and accretion from artificial causes:  “It is insisted by the learned counsel for the plaintiff in error that the accretion was caused wholly by obstructions placed in the river above, and that hence the rules upon the subject of alluvion do not apply.   If the fact be so, the consequence does not follow.   There is no warrant for the proposition.   The proximate cause was the deposits made by the water.   The law looks no further.   Whether the flow of the water was natural or affected by artificial means is immaterial.”  (90 U.S. (23 Wall.) at p. 66, 23 L.Ed. at p. 63;  see also California ex rel. State Lands Com. v. U.S. (1982) 457 U.S. 273, 278, 102 S.Ct. 2432, 2435, 73 L.Ed.2d 1, 7 [“under long-established federal law, accretion, whatever its cause, belongs to the upland owner”];  but see fn. 4, ante.)

However, prior to Lovingston, California had charted its own course on the question of artificial accretion.  (Annot., op. cit. supra, 63 A.L.R.3d at pp. 295–303;  5A Powell on Real Property, op. cit. supra, § 720 [1], p. 66–29;  2 Miller & Starr, op. cit. supra, § 6:55, pp. 610–611.)

In Dana v. Jackson Street Wharf Co. (1866) 31 Cal. 118 (Dana ), the defendant erected a wharf in a public harbor.   The structure, which was located immediately adjacent to the plaintiff's waterfront lot, caused “ ‘permanent accretion by artificial and natural causes' ” to build up under and around the wharf.  (Id., at pp. 119–120.)   The defendant used the wharf and accreted land as a landing place for vessels and their cargoes.   (Id., at p. 120.)   The alluvion continued to grow until it adjoined the plaintiff's waterfront property.   Apparently claiming ownership of this newly-formed land along his lot, the plaintiff asserted he had a right to enter the accreted land and the wharf which, in the plaintiff's view, inured to his advantage even though it was built by the defendant.  (Ibid.)

In rejecting the plaintiff's claim, the California Supreme Court cited the common law rule that “[a]s to the lands gained from the sea by alluvion, i.e., by the washing up of sand or earth, so as in time to make terra firma, the law is held to be that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining.  (2 Bl.Com. [2]61.)”  (31 Cal. at p. 120, italics in original.)   However, the court declined to apply this rule to the alluvion which had attached to the plaintiff's waterfront lot because the court found the accretion was triggered by the erection of the wharf:  “The findings, however, make a case of purpresture, or encroachment, by the erection of a wharf in a public harbor, and not a case of marine increase by alluvion, within the definition of that term as fixed by the foregoing citation.”  (Id., at p. 120.)   The portion of Blackstone's Commentaries cited by the court summarizes the common law relating to natural accretion, but contains no discussion of accretion caused in part by artificial influences.   It follows that the California Supreme Court concluded the common law rule of accretion should not apply to the accreted land in Dana because the alluvion proximate to the wharf was caused by an artificial structure in the water rather than by natural causes.   Accordingly, the alluvion did not inure to the benefit of the riparian owner.4

Hence, prior to the enactment of section 1014, California common law differed from the majority rule which provides that alluvion resulting from artificially-induced accretion belongs to the riparian owner.   Under California common law espoused in Dana, when the placement of a wharf or other artificial obstruction in public waters causes accretion proximate to the obstruction, the resulting alluvion belongs to the state or its successor in interest, not the upland owner.

My colleagues in the majority suggest Dana did not depart from the common law rule of accretion because, they assert, “Dana was not an accretion case involving a riparian owner.”   In their view, “Dana did not ground its decision on the distinction between natural and artificial causes of accretion, but rather on the doctrine of purpresture.   In doing so, Dana implicitly accepted the common law on accretion.”   This claim is unpersuasive for two reasons.

First, the facts and analysis of Dana belie the majority's interpretation of the case.  Dana was not an action by the public to eject one who had encroached upon public waters.   Rather, it was a dispute between two private parties, one of which had erected a wharf into a public harbor off shoreline property adjacent to the plaintiff's water lot.   The court's discussion of encroachment would have had no application to the plaintiff in Dana if the case did not involve accretion.   This is so since the purpresture (the wharf) affected the plaintiff only because the structure caused alluvion to build up on his waterfront lot.   But for this accretion, the plaintiff would not have been before the California Supreme Court seeking entitlement to use the accreted land and the wharf which caused it.   Although the court's initial holding is terse and somewhat opaque, under the facts of the case it necessarily constitutes a conclusion that, because the accreted land was caused by the purpresture, the alluvion was not the product of natural accretion as defined by Blackstone's Commentaries and, thus, the common law rule of accretion should not apply.   The fact that the court then rejected the plaintiff's claim on other grounds—as noted in footnote 4, ante, and as discussed by my colleagues—does not undermine the Supreme Court's initial ruling on artificial accretion.  (Southern Cal. Ch. of Associated Builders etc. Com. v. California Apprenticeship Council (1992) 4 Cal.4th 422, 431, fn. 3, 14 Cal.Rptr.2d 491, 841 P.2d 1011;  Bank of Italy etc. Assn. v. Bentley (1933) 217 Cal. 644, 650, 20 P.2d 940 [where two or more independent reasons are given for a decision, each is of equal validity as the judgment of the court.)

Second, my interpretation of Dana is supported by a subsequent California Supreme Court holding which construed Dana as an artificial accretion case.  (Anderson, supra, 206 Cal. 662, 275 P. 789.)  Anderson was presented with a dispute between the public and the riparian owner over three-quarters of an acre of land which was formed when the erection of a breakwater in San Pedro Bay caused the area of land to build up along the shore at the base of the breakwater.  (Id., at pp. 663–666, 275 P. 789.)   Ruling that the land belonged to the public, rather than to the riparian owner, the Supreme Court cited Dana for the following principle:  “Where, however, the accretions have resulted, not from natural causes, but from artificial means, such as the erection of a structure below the ordinary high water mark, there is made out a case of purpresture, or encroachment, and the deposit of alluvion caused by such structure does not inure to the benefit of the littoral or upland owner, but the right to recover possession thereof is in the state or its successor in interest, as the case may be.”  (Id., at p. 667, 275 P. 789, italics added.)   If, as the majority suggests, this interpretation of Dana is wrong, it is for the California Supreme Court, not our court, to discard it.  (Auto Equity, supra, 57 Cal.2d at p. 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

In sum, stare decisis dictates that I follow Anderson and other appellate authority which consistently have recognized that, prior to the enactment of section 1014, the California Supreme Court in Dana fashioned a narrow exception to the common law rule that accretion, whether from natural or artificial causes, belongs to the riparian owner.   Under California common law espoused in Dana, when the placement of a wharf or other artificial obstruction in public waters causes accretion proximate to the obstruction, the resulting alluvion belongs to the state or its successor in interest, not the upland owner.  (See South Shore Land Co. v. Petersen (1964) 230 Cal.App.2d 628, 630, 41 Cal.Rptr. 277;  People v. Hecker (1960) 179 Cal.App.2d 823, 838, 4 Cal.Rptr. 334;  Carpenter, supra, 63 Cal.App.2d at pp. 793–794, 147 P.2d 964;  City of Newport Beach v. Fager (1940) 39 Cal.App.2d 23, 31, 102 P.2d 438;  Forgeus v. County of Santa Cruz (1914) 24 Cal.App. 193, 200, 140 P. 1092;  United States v. Aranson (9th Cir.1983) 696 F.2d 654, 661;  see also Patton v. City of Los Angeles (1915) 169 Cal. 521, 525–526, 147 P. 141 (Patton).) 5

An examination of the Code Commissioners' note to section 1014, and the authorities cited therein, reveals nothing indicating that the Legislaturedisagreed with the reasoning in Dana or intended to abrogate the Supreme Court's holding.   In the absence of such an indication, I must presume that, in enacting section 1014 to codify the “California view of the common law of accretions” (Carpenter, supra, 63 Cal.App.2d at p. 788, 147 P.2d 964), the Legislature was aware of Dana and enacted section 1014 in light of it.  (See Viking Pools, Inc. v. Maloney (1989) 48 Cal.3d 602, 609, 257 Cal.Rptr. 320, 770 P.2d 732 [the Legislature is presumed to act in light of pertinent existing judicial decisions].)

Therefore, I must presume that, by specifying alluvion shall belong to the riparian owner when it results “from natural causes,” the Legislature intended that accretion resulting from the placement in public waters of an artificial obstruction which interferes with the natural flow of the water and causes the gradual accumulation of land proximate to the obstruction is not accretion “from natural causes” within the meaning of section 1014 and, thus, the alluvion proximate to the obstruction does not belong to the riparian owner pursuant to that section.

The state asks this court to interpret the phrase “from natural causes” in section 1014 to exclude more than the aforesaid accretion caused by an artificial obstruction in public waters.   In the state's view, artificial accretion is not limited to that caused by an artificial obstruction in the water.   Rather, the state urges that “materials washed into the water by human activities but deposited by the natural flow of the water constitute artificial accretion belonging to the state.”   Thus, the state claims:  “Land formed as a result of hydraulic mining debris falls squarely within the ambit of the artificial accretion doctrine” regardless whether it accumulated gradually and imperceptibly due to the natural flow of the water or due to obstruction of the water flow by a wharf or other artificial object in the water.

In effect, the state would have this court construe section 1014 beyond the California common law of accretion (espoused in Dana ) which existed when the statute was enacted to codify California common law.   In urging such a construction, the state relies primarily on the facts and certain language of Anderson and Carpenter to suggest that the source of the accreted material, not just the ultimate cause of the accretion, determines whether the accretion is natural or artificial.

As I noted above, Anderson was presented with a dispute over three-quarters of an acre of land which was formed when the erection of a breakwater in San Pedro Bay caused said area of land to build up along the shore at the base of the breakwater.  (206 Cal. at pp. 663–666, 275 P. 789.)   The trial court had found that the land was formed by accretion, that a portion of the deposited sediment consisted of material a contractor had dumped over neighboring bluffs, and that the accretion was from “ ‘artificial means—was caused by [the] breakwater.’ ”  (Id., at p. 665, 275 P. 789.)   In upholding the trial court's determination that the land belonged to the public, and not the riparian owner, the California Supreme Court noted the land “resulted, as found by the trial court on abundant evidence, not from natural causes and by imperceptible degrees, but from the deposit and lodgment of foreign materials, as distinguished from the ordinary wash of the ocean, against the artificial obstruction offered by the government breakwater below the mean high-tide line․”  (Id., at p. 667, 275 P. 789.)

Seizing on this language, the state suggests that the “foreign” character of the material which was deposited at the base of the breakwater was a factor in the court's determination that the resulting land was not the product of accretion by natural causes.   I disagree.   My reading of Anderson reveals its holding was not predicated on the “artificial” nature of a portion of the substance deposited at the base of the breakwater.   Rather, it was the artificial nature of the ultimate cause of the land being formed, i.e., the erection of the breakwater in public waters, which made the land a product of “artificial means.”   Indeed, the evidence in Anderson established that “the reason or cause for the formation of these accretions was the ‘presence of the obstruction made by the breakwater’;  that if the obstruction offered by the breakwater had not been present when portions of the neighboring bluffs had broken off, those accretions would not have formed, for the material ‘would have been driven farther and farther north, so that most of it would have been worn out in transit ․’ ” and that “all subsequent accretions” of material dumped into the ocean by the contractor were due to the presence of the breakwater.  (Id., at p. 665, 275 P. 789.) 6

In Carpenter, the owner of waterfront property intervened in a lawsuit brought by its conservator against the City of Santa Monica for damages after the city's construction of a breakwater interfered with the natural current of the ocean so that “sand which would otherwise be carried to [the waterfront] property no longer was carried there” and, thereafter, erosion washed away a large portion of the beach in front of the property.  (63 Cal.App.2d at pp. 773–774, 147 P.2d 964.)   In concluding that the city was not liable for the erosion, the trial court found “that all of the eroded beach had been artificially created by man made structures erected in Santa Monica Bay,” and “held that accretions so formed do not belong to the upland owner but belong to the state or its grantee as the owner of the tide and submerged lands bordering the ocean.”  (Id., at p. 775, 147 P.2d 964.)   Hence, since the eroded beach did not belong to the intervenor, its conservator was not injured by the erosion.  (Id., at p. 779, 147 P.2d 964.)   The appellate court concluded the evidence supported a determination that the beach in front of the intervenor's property was the product of accretion caused by artificial means.  (Id., at pp. 779–782, 147 P.2d 964.)   Citing Dana and cases which have relied on Dana (id., at pp. 790–793, 147 P.2d 964), the Carpenter court then observed “it must be accepted as settled in this state that accretions formed gradually and imperceptibly, but caused entirely by artificial means ․ belong to the state, or its grantee, and do not belong to the upland owner.”  (Id., at p. 794, 147 P.2d 964.)   Applying this rule, the court concluded that, because the area eroded by construction of the breakwater had been created artificially and, thus, did not belong to the intervenor, the conservator suffered no legal damage by the erosion.   (Ibid.)

The artificial means referred to in Carpenter included numerous groins, piers and other structures placed in Santa Monica Bay.  (63 Cal.App.2d at pp. 777–778, 147 P.2d 964.)   In addition, the court noted that “vast quantities of material” had been dumped into the bay during the building of the coast highway and the development of various subdivisions in Santa Monica and later was deposited on the beach.  (Id., at pp. 776–777, 781, 147 P.2d 964.)   Thus, Carpenter characterized the artificial means of the accretion in that case as “the works of man, such as wharves, groins, piers, etc. and by the dumping of materials into the ocean․”  (Id., at p. 794, 147 P.2d 964.)   The state cites this language to support its claim that the source of the accreted sediment is material to the determination whether the accretion was from natural or artificial means.   Again, I disagree.   The evidence in Carpenter established that the source of much of the sediment, i.e., the materials dumped into the ocean, would not have resulted in the accretion but for the structures in the water.   As one expert pointed out, at other nearby beaches where there were no structures in the water, there was either erosion or no accretion.  (Id., at p. 781, 147 P.2d 964.)   In fact, the witness testified that, “ ‘[i]f none of the structures here mentioned had been erected by man and the beach from Santa Monica Canyon was in a state of nature,’ ” the line of mean high tide would have been in the same position as it was in 1876.  (Id., at pp. 781–782, 147 P.2d 964.)   Therefore, the basis for the artificial accretion holding in Carpenter necessarily was the ultimate cause of the accretion, i.e., the construction of piers, wharves and other structures in the water which altered its flow and resulted in sediment accumulating gradually and imperceptibly on the beach.

Accordingly, under California's narrow artificial-accretion rule, it is the artificial nature of the ultimate cause of the accretion, not the artificial nature of the source of the resulting alluvion, which determines whether the alluvion inures to the benefit of the state or the riparian owner.

As the majority notes, the state also places great reliance on People ex rel. Dept. Pub. Wks. v. Shasta Pipe etc. Co. (1968) 264 Cal.App.2d 520, 70 Cal.Rptr. 618 (Shasta Pipe ).   In that case, after the location of the Feather River near Oroville had shifted south “as a result of unnatural forces,” the court held the state did not lose title to the land over which the Feather River flowed originally.  (Id., at p. 535, 70 Cal.Rptr. 618.)   Noting that the “unnatural forces” which caused the river channel to shift were hydraulic gold mining operations and dredging (id., at p. 524, 70 Cal.Rptr. 618), the state claims Shasta Pipe stands for the proposition that accretion caused by hydraulic mining constitutes artificial accretion which inures to the benefit of the state.   However, as the majority points out, Shasta Pipe is not authority for the state's position because it is unclear whether the shift in the river was caused by accretion or was due to avulsion, and because the opinion did not discuss Dana, Patton, Anderson, Carpenter or section 1014.

Aside from citing the aforesaid cases which do not support its position, the state advances a public policy argument.   In its view, the trial court's ruling has the “indirect effect of conveying public tidelands into private ownership,” thereby violating article X, section 3 of the California Constitution, which prohibits the alienation of tidelands.7  (Citing Patton, supra, 169 Cal. at pp. 525–526, 147 P. 141;  Carpenter, supra, 63 Cal.App.2d at p. 794, 147 P.2d 964.)   Among other things, Patton and Carpenter held that accretion caused by, and proximate to, an artificial obstruction placed in the water cannot be deemed to belong to the riparian owner because this would violate public policy which precludes conveying away public tidelands.   I see no reason why this principle relating to artificial accretion should apply to accretion by “natural causes.”   By enacting section 1014 to codify California common law, the Legislature has established as a matter of public policy that accretion from natural causes upon the bank of a river or stream belongs to the owner of the bank.   This determination does not contravene the intent of, and public policy expressed in, article X, section 3 of the California Constitution.8  As noted by the California Supreme Court in Strand, a contrary rule would be unworkable (173 Cal. at pp. 770–771, 161 P. 975) and, in my view, absurd.

In the absence of a compelling reason to do otherwise, I decline the state's invitation to construe section 1014 more broadly than the California common law which the section was intended to codify.   Consistent with the California Supreme Court's holding in Dana, I interpret section 1014 to provide that alluvion belongs to the riparian owner except when it results from the placement in public waters of a wharf or other artificial obstruction which alters the natural flow of the water and causes the gradual accumulation of land proximate to the obstruction.

This interpretation is particularly appropriate in light of the evidentiary problem which would be created by construing the phrase “from natural causes” in section 1014 to refer to the source of the alluvion rather than to the ultimate cause of its accumulation.  (Cf. State of California v. Superior Court (Fogerty) (1981) 29 Cal.3d 240, 248, 172 Cal.Rptr. 713, 625 P.2d 256.)   In plaintiffs' words, the trial court “appropriately concluded that it would be improper to require a party claiming ownership to riparian land to trace the accretions back to their source given the period of time which has elapsed since hydraulic mining took place․  [S]uch a burden would be monumental, if not impossible.”   I agree.   This case is but one example of the many human activities which, for better or for worse, have altered our landscape, causing erosion of earth that ends up in California's waterways.   It would be unreasonable to impose upon a party the onerous and often unattainable burden of tracing alluvion to its original source in order to determine if it resulted from natural or artificially-created erosion.   Narrowly limiting artificial accretion to that caused by, and proximate to, readily-ascertainable artificial obstructions in public waters provides a practical interpretation of section 1014 which is consistent with California common law in effect at the time of the statute's enactment.

Contrary to the state's claim, my interpretation of section 1014 (unlike the majority's holding) does not mean “there can be no such thing as artificial accretion.”   In this case, for example, under my construction of the statute, triable issues of fact would remain as to whether the accretion was caused artificially by levees and wing dams erected in the Sacramento River at Chicory Bend or whether the land in question was the product of avulsion caused by dredging there.

Moreover, contrary to the state's assertion, the trial court's ruling does not hold that the land in question is in fact made up of hydraulic mining debris.   Consistent with my interpretation of section 1014, the ruling simply provides that, assuming any gradual and imperceptible accumulation of land at Chicory Bend consists of hydraulic mining debris carried by river water to that location, and not caused by any artificial obstruction in the water at or near Chicory Bend, it is accretion from “natural causes” which inures to the benefit of the riparian owner.

For the reasons stated above, while I do not agree with the majority's analysis, I concur that the petition for writ of mandate must be denied.

FOOTNOTES

1.   “Accretion” denotes the process by which an area of land is increased by the gradual deposit of soil due to the action of a boundary river, stream, lake, pond or tidal waters.   The process is to be distinguished from the actual substances which comprise the land that is formed.   The accreted substance generally is called “alluvion” or “alluvium.”  (5A Powell on Real Property (1993) Accretion, ¶ 717[1], p. 66–2;  see 2 Miller & Starr, Cal. Real Estate (2d ed. 1989) Deeds, § 6:55, p. 608;  1 Water and Water Rights (1991 ed.) Introduction to Riparian Rights, § 6.03. (b)(2), p. 188.)   These terms are often used interchangeably, however.

2.   “Purpresture” has been defined as “[a]n encroachment upon public rights and easements by appropriation to private use of that which belongs to public.  Hill Farm, Inc. v. Hill County, Tex., 436 S.W.2d 320, 321” (Black's Law Dict. (6th ed. (1990), p. 1236.);   and as a “wrongful appropriation of land subject to the rights of others․ an encroachment upon or enclosure of real estate subject to common or public rights (as highways, rivers, harbors, forts).”  (Webster's Third New Internat. Dict. (1971), p. 1847.)  “Encroachment” means “[a]n illegal intrusion in a highway or navigable river, with or without obstruction.  Hartford Elec. Light Co. v. Water Resources Commission, 162 Conn. 89, 291 A.2d 721, 730.”  (Black's Law Dict., supra, p. 527.)

3.   A 1959 decision from the Second District—Abbot Kinney Company v. City of Los Angeles 340 P.2d 14—did conclude, in affirming an order granting a new trial, that alluvion resulting from a gradual and imperceptible accretion belongs to the upland owner where that alluvion has resulted from both natural and artificial causes.   The court based this decision on common law authorities and the unrealistic posture of limiting alluvion to natural causes.   However, this decision has been superseded by an opinion of the California Supreme Court—Abbot Kinney Co. v. City of Los Angeles (1959) 53 Cal.2d 52, 346 P.2d 385.   The high court decision, which also affirmed the order granting the new trial, was limited to the issue of whether the state was an indispensable party in the action, and did not discuss the legal principle concerning natural and artificial causes delineated in the Second District's opinion.A 1932 decision from the Ninth Circuit, Jackson v. United States, 56 F.2d 340, in construing the term “natural causes” in section 1014, did uphold the right of an upland owner to land created by accretion which partially resulted from artificial causes stemming from activities of persons other than the owner.   The court noted that the artificial means were employed in a purely defensive nature to keep out the sea, that all the additions were imperceptible, and that no evidence had been introduced to show that the shore line would have been any different had there been no artificial means.  (56 F.2d at pp. 341–342.)

4.   As we explain in the next section of this opinion, none of what we say should be construed as diminishing the public interest established in the legal principles governing tidelands and the public trust doctrine.

5.   Apparently, only five or six American jurisdictions—the Dakotas, Montana, Idaho, California and perhaps Oklahoma—ever adopted the Field Code (Civil Code).  (See Fisch, Civil Code:  Notes for an Uncelebrated Centennial, (1967) 43 N.Dak.L.Rev. 485, 486.)

6.   The state also places great reliance on People ex rel. Dept. Pub. Wks. v. Shasta Pipe etc. Co. (1968) 264 Cal.App.2d 520, 70 Cal.Rptr. 618 (Shasta Pipe), in which this court concluded that, when the location of the Feather River near Oroville shifted south “as a result of unnatural forces,” the state did not lose title to the land over which the river originally flowed.  (Id., at p. 535, 70 Cal.Rptr. 618.)   The “unnatural forces” which caused the river channel to shift were hydraulic gold mining operations that occurred “in the immediate area and upstream” in the 1860's and further mining and dredging operations that occurred later.  (Id., at p. 524, 70 Cal.Rptr. 618.)   Noting these facts, the state suggests Shasta Pipe stands for the proposition that accretion caused by hydraulic mining constitutes artificial accretion which inures to the benefit of the state.However, in Shasta Pipe it is unclear whether the shift in the river was caused by accretion or was due to avulsion, which is the process by which there is a sudden and perceptible change in the location of a body of water.  (5A Powell on Real Property, op. cit. supra, § 717[1] p. 66–4;  2 Miller & Starr, op. cit. supra, § 6.55, pp. 611–612;  1 Water and Water Rights, op. cit. supra, § 6.03(b)(2), p. 189.)   This uncertainty is significant because, as the state recognizes, a sudden and perceptible change in watercourse, either from natural or artificial causes, does not result in a shift in the boundary.  (People v. Ward Redwood Co. (1964) 225 Cal.App.2d 385, 388–389, 37 Cal.Rptr. 397;  see State of Nebraska v. State of Iowa (1891) 143 U.S. 359, 361–363, 12 S.Ct. 396, 397–398, 36 L.Ed. 186, 188.)   For this reason, and because the opinion did not discuss Dana, Patton, Anderson, Carpenter or section 1014, Shasta Pipe is not authority for the state's claim that the gradual accumulation of hydraulic mining debris deposited by the natural flow of the river constitutes artificial accretion which inures to the state.

7.   As a preface to this tideland “analysis,” Patton cites People v. California Fish Co., supra, 166 Cal. 576, 138 P. 79.  (169 Cal. at pp. 524–525, 147 P. 141.)  California Fish, however, merely sets forth the public trust nature of tidelands and does not discuss the accretion process.  (166 Cal. at pp. 596–599, 138 P. 79.)

8.   In City of Long Beach v. Mansell, supra, 3 Cal.3d 462, 91 Cal.Rptr. 23, 476 P.2d 423, the court concluded that the word “tidelands” in the constitutional provision on tideland inalienability (then art. 15, § 3;  now art. 10, § 3) denotes lands which were seaward of the mean high tide line when this constitutional provision was adopted in 1879.   This conclusion, however, was not reached in the accretion context but rather in its polar opposite.   As Mansell noted, “[i]t would be contrary to the spirit and purpose of article XV, section 3, to conclude that the word ‘tidelands' as used therein denotes only those public lands which retain the physical characteristics of tidelands at the time of the proposed alienation, for such a construction would permit parties to remove public tidelands from the reach of the constitutional provision by simply filling so that such lands were no longer covered and uncovered by the flow and ebb of the tide.   It is clear that the framers did not intend to establish a prohibition which could be so easily avoided.   We therefore conclude that the word ‘tidelands' as used in article XV, section 3, denotes lands which were seaward of the mean high tide line when the provision was adopted in 1879.”  (Id. at p. 479, 91 Cal.Rptr. 23, 476 P.2d 423.)   As is evident, the concern expressed in Mansell does not exist in the accretion context as defined herein.

1.   Plaintiff's motion for summary adjudication and the ruling thereon were made prior to the effective date of amendments to Code of Civil Procedure section 437c (stats. 1990, ch. 1561, § 2) which are intended to “stop the practice of adjudication of facts or adjudication of issues that do not completely dispose of a cause of action or a defense.”   (Id., § 1.)

2.   The Code Commissioners' note to section 1014 indicates the statute was based on numerous common law authorities, including Justinian, the Code Napoleon, and New York and Louisiana authorities:  “NOTE.—Code Napoleon, Arts. 556, 557;  Civil Code of Louisiana, Art. 501;  Morgan vs. Livingston, 6 M., p. 216;  Livingston vs. Herman, 9 M.R., p. 656.   ‘That ground which a river has added to your estate by alluvion, becomes your own by law of nations;  and that is said to be alluvion which is added so gradually that no one can judge how much is added in each moment of time.’—Cooper's Justinian, Lib. 2, Tit. 1;  3 Barn. & Cress., p. 91.   Imperceptible.—Halsey vs. McCormack, 18 N.Y., p. 147;  Emans vs. Turnbull, 2 Johns., p. 313.   If the formation is sudden;  held in New York that it belonged to the state.—Id.   Accumulation of material.—Emans v. Turnbull, 2 Johns., p. 313.   The rule of the common law gave to riparian owners the soil formed by imperceptible or inconsiderable augmentation or deposits, on the ground or principle that the profits and advantages of a thing belong of right to him who, under a change of circumstances, is exposed to suffer its damages and losses.—See U.S. Land Office Report, 1868, by J.S. Wilson, p. 127.”  (Haymond & Burch, Civil Code of California (1872), p. 286.)

3.   However, “[w]hen the artificial cause is a construction made by the claimant himself, the courts are less likely to apply the doctrine of accretion.”  (5A Powell on Real Property, op. cit. supra, § 720[1] pp. 66–27, 66–28;  1 Water and Water Rights, op. cit. supra, § 6.03. (b)(2), p. 193.)

4.   The plaintiff also claimed he had “a right to ‘wharf out’ his land and, thus, was entitled to the alluvion and use of the wharf.  (31 Cal. at p. 120.)   The Supreme Court rejected this claim for two reasons.   First, the court noted:  “A riparian proprietor on navigable water has no right at common law to wharf out his own land.   By common law any erection below high water mark, without license, is regarded as an encroachment and intrusion on the King's soil, which the King may demolish, seize or arrent at his pleasure.  (Ang. on T.W. 199.)   This shows decisively that in cases of purpresture the right of entry is not in the adjacent land owner but in the crown.”  (Ibid., italics added.)   Moreover, the court found the plaintiff was not a riparian proprietor “in the sense in which that term is used in the law of tide waters” because his waterfront lot had been established by a statute which specified that the boundary line adjoining the water “ ‘shall be and remain a permanent water front of [the] city [.]’ ”  (Id., at p. 121.)   Since the plaintiff's rights as owner of the waterfront property existed “only in subordination to” the statute which established private ownership of the property and fixed its waterfront boundary line, the court concluded the plaintiff was “not an owner upon the ‘shore,’ but upon a ‘water front’ of statute creation,” the boundary of which could not be extended by accretion or “wharfing out” the land.   (Ibid.)

5.   In Patton, the California Supreme Court held that alluvion in the bay of San Pedro resulting from accretion caused by the erection of an embankment leading from the mainland across part of the bay did not belong to the riparian owner.  (169 Cal. at pp. 525–526, 147 P. 140.)   Although it did not cite section 1014 or Dana, the court concluded:  “We can see no plausible reason for the contention that the making of such embankments, or accretions caused thereby, would operate in favor of third persons to divest the state of its title to tide lands covered by the embankment and accretions extending out over it from the adjacent upland, and transfer the title to the owner of the upland.”  (Id., at p. 525, 147 P. 141.)

6.   Moreover, despite the trial court's characterization of the process as “accretion,” the facts of Anderson, which indicate the land formed over a relatively short period (206 Cal. at p. 665, 275 P. 789), and the Supreme Court's observation that land was not formed “by imperceptible degrees” (id., at p. 667, 275 P. 789), suggests it was not accretion within the meaning of section 1014 which requires that, in order for land to inure to the benefit of the riparian owner, it must form “by imperceptible degrees” from natural causes.

7.   Article X, section 3 of the California Constitution, added June 8, 1976, provides:  “All tidelands within two miles of any incorporated city, city and county, or town in this State, and fronting on the water of any harbor, estuary, bay, or inlet used for the purposes of navigation, shall be withheld from grant or sale to private persons, partnerships, or corporations;  provided, however, that any such tidelands, reserved to the State solely for street purposes, which the Legislature finds and declares are not used for navigation purposes and are not necessary for such purposes may be sold to any town, city, county, city and county, municipal corporations, private persons, partnerships or corporations subject to such conditions as the Legislature determines are necessary to be imposed in connection with any such sales in order to protect the public interest.”The parties agree that the Sacramento River at Chicory Bend is tidal water.

8.   Article X, section 3 is derived from former article XV, section 3, which was adopted to halt the practice of granting harbor tidelands into private, and often monopolistic, ownership.  (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 478–479, 91 Cal.Rptr. 23, 476 P.2d 423.)

DAVIS, Associate Justice.

PUGLIA, P.J., concurs.