DIETZ v. KING

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

Lester J. DIETZ and Lotus A. Dietz, Plaintiffs and Appellants, v. Robert B. KING and Helen L. King, Defendants and Respondents.

Civ. 25607.

Decided: August 11, 1969

Timothy O. Stoen, Berkeley, Cal., for appellants. Bell & Cox, Charles R. Bell, Ukiah, Cal., for respondents.

For Opinion on Hearing, see 84 Cal.Rptr. 162, 465 P.2d 50.

In the superior court appellants Lester J. Dietz and Lotus A. Dietz, on behalf of themselves and all others similarly situated (Code Civ.Proc. § 382), sought to enjoin respondents Dr. Robert B. King and Helen L. King, his wife, from blocking public access to an ocean beach.   From a judgment denying them relief they have appealed.

The material facts before the superior court were either admitted or undenied.

On State Highway One in Mendocino County immediately south of the Navarro River one sees an official road sign reading “Navarro Beach Road.”   The sign refers to a side road leading westerly toward the Pacific Ocean.   This road runs across the land of the Navarro Lumber Company, and then through property on which, facing the road, is a small group of buildings dominated by an ancient structure called “Navarro-By-the-Sea Hotel.”   Upon leaving this property (called Navarro-By-the-Sea) the road enters the land of respondents King.   This land borders the south bank of the Navarro River for approximately 1500 feet to its mouth, and then, for roughly a similar distance, its edges on the Pacific Ocean.   Even though our reference may relate to a time before the Kings took title we shall refer to this property as the “King land.”   The Navarro Beach Road will be called the “road.”   The road enters the King land close to the river beach.   Then, hugging the foot of a high bluff, it travels along the beach to a point near the southwesterly end of the King land facing upon the ocean.   It traverses about 2200 feet of the high ground of the continuous river and ocean beach.   The road is the only access to the beach;  entrance from the southwest is blocked by cliffs running into the ocean.

About 100 years ago at least five houses had been built on the high ground of the ocean beach.   A small cemetery plot containing the remains of shipwrecked sailors and natives of the area existed there.   The grandfather of an 80–year–old witness had used the beach in building seven small boats up to 60 feet in length.   Elderly witnesses testified that people traveled over the road during the closing years of the last century.   They came in substantial numbers to camp, picnic, collect and cut driftwood for fuel, and fish for abalone and crabs as well as for finned fish.   Others came down to the beach to decorate the graves which had wooden crosses upon them.   Indians, in groups as large as 50 to 75, came from as far away as Ukiah during the summer months.   They camped on the beach for weeks at a time, drying kelp and catching and drying abalone and other fish.   In decreasing numbers they continued to use the road and the beach until around 1950.

In more recent years the public use of the beach has been greater.   The trial court found on substantial evidence that “for many years members of the public have used and enjoyed the said beach for various kinds of recreational activities, including picnicking, hiking, swimming, fishing, skin diving, camping, driftwood collecting and related activities.”   At times as many as 100 people were on the beach.   They came in automobiles, trucks, campers and trailers.   The beach is used for commercial fishing and during good weather a school for retarded children brings its children to the beach once or twice a week.

Access to the beach has always been by way of the Navarro Beach Road.   From the road people turned their vehicles into the sand and gravel at various points along the beach.

Sometime around 1941, cows belonging to the then owner of the Navarro-By-the-Sea property, straying onto the beach, ate some “deadly nightshade,” and became poisoned.   To prevent a recurrence he installed a heavy post on each side of the road on his property at the point where it bordered on the King land.   Previously, although a fence otherwise divided the two properties, the road was unbarred in any way.   Between the posts he stretched a chain, one end of which was hooked on an upright spike.   The chain was never locked in place;  it was nearly always lying on the ground.   Its only purpose was to restrict cows from the beach.

Many years later one of the many successive owners (or operators) of “Navarro-By-the-Sea Hotel” placed a sign at the post reading, “Private Road—Admission 50¢—please pay at hotel.”   For a relatively short time he tried, with moderate success, to collect such tolls.   Some years later a successor resumed the practice.   However, although most people ignored the sign and went on through without paying, the hotel operators never did anything about it.

It bears emphasis that the chain and the toll sign were on the “Navarro-By-the-Sea” property at the entrance to the King land, and, that the toll was exacted for the use of the King land, all without authority of, or payment of the tolls or any part thereof to, the owners of the King land.

By a recorded instrument the present owners of the Navarro-By-the-Sea property have acknowledged that “for over one hundred years there has existed a public easement and right of way” in the road as it crosses their property.

The King land was originally owned by the Southern Pacific Land Company which never, in any manner, objected to or interfered with the public use of the road and beach.   In 1942 that company sold the land to Mr. and Mrs. Oscar Haub.   During the 17–year period that the Haub's owned the King land the public use of the road and beach continued unhindered.

The Kings purchased the land from the Haubs in 1959.   In 1960 a large timber was spiked across the posts at the entrance to the land.   Within two hours it was removed by people wishing to use the beach.   Except for that brief episode, the public throughout the King ownership continued to use the road and beach unrestrained until August 1966.   During that month Dr. King caused a large log to be placed across the road at the entrance to his property.   That barrier also was quickly removed.   He then sent in a caterpillar crew for the purpose of permanently blocking the road.   That operation was stopped by a temporary restraining order issued in the action below.

Throughout the entire history of the road the only interference with its use by the public consisted of the fraudulent collection of tolls by operators of the Navarro-By-the-Sea Hotel for the use of the King land, and the efforts of respondents King since their acquisition of the property.

The trial court, concluding from the foregoing that “Neither the plaintiffs nor the public generally have a right to use said road or said beach,” entered judgment in favor of the respondents King.   We have concluded that this was error and that the judgment must be reversed.

We shall first discuss the Kings' contention, and the trial court's conclusion, that the public had no right to use the beach.

 That part of the beach lying nearer the water constitutes “tidelands,” which are defined as the portion of the shore which is covered and uncovered by the ebb and flow of the tides.  (People ex rel. State Board of Harbor Com'rs v. Kerber, 152 Cal. 731, 733, 93 P. 878.)  Civil Code section 830 provides:  “Except where the grant under which the land is held indicates a different intent [not shown here], the owner of the upland, when it borders on tide-water, takes to ordinary high-water mark;  * * *.”   Giving effect to this statute the Supreme Court in Abbott Kinney Co. v. City of Los Angeles, 53 Cal.2d 52, 57, 346 P.2d 385, 388, stated:  “Absent a showing to the contrary, the upland owner obtains title only to the highwater mark.”   This rule is a codification of the earlier common law rule.  (Borax, Consolidated Ltd. v. City of Los Angeles, 296 U.S. 10, 22–23, 56 S.Ct. 23, 80 L.Ed. 9.)   Title to the land below the high-water mark remains in the state.  (Freeman v. Bellegarde, 108 Cal. 179, 185, 41 P. 289;  Long Beach Land and Water Co. v. Richardson, 70 Cal. 206, 209, 11 P. 695.)

 It is the clear public policy of this state that beach areas owned by the state (at least in the absence of some legitimate public interest to the contrary) shall be open to the use of all persons.  (See Cal. Const., art. I, § 25;  art. XV, § 2;  Gov.Code, §§ 54090–54093;  Fish & G. Code, § 6511;  Pub. Resources Code, § 6008.)   Accordingly, members of the public have had, and now have, the right to use and enjoy at least that portion of the beach which lies below the highwater line of the tides.

 Although the evidence indicates that the entire beach has been used by the public without hindrance from the earliest days of the state, no issue was raised below or in this court concerning public rights above the high-water line.   We therefore refrain from passing upon that question, except to point out that public rights in the road, discussed post, reasonably and necessarily include the right to park vehicles adjacent thereto on the beach.

We turn now to the question of the public right to use the road as it traverses the King land.

That question is answered by the Supreme Court in Union Transp. Co. v. Sacramento County, 42 Cal.2d 235, 240–241, 267 P.2d 10.   There the court pointed out cases holding that an offer to dedicate land may be inferred from the owner's long acquiescence in a public use of the property under circumstances which negative the idea that the use was under a license.   It quoted with approval language found in Schwerdtle v. County of Placer, 108 Cal. 589, 593, 41 P. 448, 449, as follows:  “But where the claim of the public rests upon long-continued adverse use, that use establishes against the owner the conclusive presumption of consent, and so of dedication.   It affords the conclusive and indisputable presumption of knowledge and acquiescence, while at the same time it negatives the idea of a mere license.”

 The evidence is uncontradicted that for a period of close to a hundred years the successive owners of the King land acquiesced in the use of the road and beach by the public.   There is no evidence of interference with that use by such owners until 1960.   Under the circumstances this long continued adverse use, as stated in Schwerdtle v. County of Placer, supra, and Union Trans. Co. v. Sacramento County, supra, “affords the conclusive and indisputable presumption of knowledge and acquiescence.”   We conclude that the evidence before the superior court reasonably allowed but one result—that of an implied dedication of the road to public use.

 Respondents King rely heavily on the sometimes collection of tolls from persons who from lack of knowledge of their rights, or otherwise, chose not to ignore the sign.   Even though the tolls were collected without authority, by strangers to the King land title, they contend that the court, relying on such evidence, could reasonably have found the public use of the road to be “permissive.”   This is not the law.   Public rights in a road are acquired by long acquiescence of the owner in the public use.   As pointed out by Union Transp. Co. v. Sacramento County, supra, 42 Cal.2d 235, 241, 267 P.2d 10, 13, dedication is “inferred from the acts of the owner or from his acquiescence in public user.”  (Emphasis added.)   And we note that the toll collection practice of the owners or operators of Navarro-By-the-Sea Hotel commenced within the last 15 years, long after the public use in the road had vested.

 There is no evidence that prior to 1942 any member of the public ever sought permission from the owner of the King land to use the road or beach.   As we have pointed out, “ ‘[W]here the claim of the public rests upon long-continued adverse use, that use establishes against the owner the conclusive presumption of consent, and so of dedication.   It affords the conclusive and indisputable presumption of knowledge and acquiescence, while at the same time it negatives the idea of a mere license.’ ”  (Union Transp. Co. v. Sacramento County, supra, 42 Cal.2d 235, 241, 267 P.2d 10, 13;  Schwerdtle v. County of Placer, supra, 108 Cal. 589, 593, 41 P. 448, 449.)   It follows that when the Haubs took title to the King land the public use had already attached.

 Mrs. Haub, questioned if she and her husband gave permission to use the road and beach when it was requested, responded “We sure did.”   She then testified that when she and her husband bought the property in 1942 they were told about the public use of the road and beach.   She said that it “was a free beach for anyone to go down there”;  that “You could go in and out as you pleased”;  and “We intended that the beach be free for anybody to go down there and have a good time.”  (The testimony of Mrs. Haub was by a deposition offered in evidence by respondents King.)   From this and other uncontradicted evidence it must be concluded that the public use continued to be adverse.   Further, assuming arguendo no prior dedication, the conduct, acquiescence, and intent of the Haubs as shown during their 17 years of ownership, and by her testimony, is conclusive evidence of an implied dedication of the road to a public use.   “Dedication by adverse user has been characterized as dedication implied by law, while a dedication inferred from the acts of the owner or from his acquiescence in public user may be termed a dedication implied in fact.”   (Union Transp. Co. v. Sacramento County, supra, 42 Cal.2d 235, 241, 267 P.2d 10, 13.)

No contention is made that the Kings took title to their land without knowledge of the existing public use of the road.   Even without such actual knowledge they would be charged with notice of its plainly visible and continuous adverse user.  (See Scott v. Henry, 196 Cal. 666, 671, 239 P. 314;  Saxon v. DuBois, 209 Cal.App.2d 713, 719, 26 Cal.Rptr. 196;  Amerco, Inc. v. Tullar, 182 Cal.App.2d 336, 338, 6 Cal.Rptr. 71.)   The Kings, then, took title subject to the existing public right to use the road.   The evidence clearly discloses, and no contrary contention is made, that the general public use of the road during their ownership was open and adverse.   Indeed, it was this adverse use that brought about the instant litigation.

 Dr. King testified that during his time of ownership, one or more, but not many, persons asked permission to use the road.   However, the right to use the road had already vested in the public generally;  it could not be destroyed by the occasional act of an individual seeking permission.

The Kings point to the testimony of ten witnesses, who, they say, support their contention that the public use of the road and beach was permissive, not adverse.   Of these, witnesses Ross, Wilson, Parker, and Heryford obtained their permission at the bar of the Navarro-By-the-Sea Hotel.   Witness Hall stated:  “You would have to get permission from the party that owned the motel [sic].”  Witness Carlyle spoke of permission from some undescribed person to take truckloads of sand from the beach, an activity quite beyond the scope of any public use or easement.   Witness Mack, apparently under the impression that the “lumber company” owned the beach, said the company gave “permission to anybody who wanted to go down * * *.   It was open road with a car * * * it is an open road, always has been.”   Asked if “it is also fair to state that as far as you know everyone went out there with the permission of the owners?”   witness Geneva Ray answered, “I would say so, yes.”   Her husband Frank Ray said they sometimes stopped at the Navarro-By-the-Sea Hotel because they knew the people there and would say they were going into the beach;  he believed they asked permission to go in and out.   Speaking of the property “to the west” (the King land) he said, “Those people never claimed anything.”   The tenth witness was Mrs. Haub whose testimony we have discussed.   The testimony of these witnesses falls far short of establishing or tending to establish, a “permissive use” which is defined as “a license exercised in subordination to” a claim of ownership of, and right of revocation by, the licensor.   (Crawford v. Lambert, 136 Cal.App. 617, 620, 29 P.2d 428;  Alper v. Tormey, 7 Cal.App. 8, 10, 93 P. 402.)   At no time prior to the King ownership was such a “license” or “permissive use” indicated;  instead, as related by Mrs. Haub, it “was a free beach” and so “intended” by the prior owners.

We have considered the recital in Burk v. City of Santa Cruz, 163 Cal. 807, 812, 127 P. 154, 156, pointed out by respondents King, to the effect:  “Where a dedication rests in acts and conduct and not in grant, the rule is well settled and has been many times repeated by this court to the effect that ‘property cannot be taken for public use without compensation, unless the owner is willing, and this willingness should be manifested by clear and unmistakable acts.   Parties may not be done out of their property by doubtful implications no matter how greatly the public may be inconvenienced.’ ”   Here there are no doubtful implications or inferences;  the evidence conclusively shows knowledge of, and acquiescence in, the long continued adverse public use.

Respondents King make only brief mention here of matters which constituted the greater part of their case below.   First, they insist that the public use of the beach impairs the value of their property, and secondly they assert that unsanitary conditions on the beach, caused by the public, have brought them problems with the county health authorities.   At the trial's conclusion the court held these contentions to be irrelevant;  we do also.   We note evidence that the county recreation department now polices other beaches along the Mendocino Coast;  it may be, with a determination of the public right in the Navarro beach, that the county will choose to police that beach also.

 Finally the respondents King point to the substantial evidence rule, that the power of an appellate court begins and ends with a determination whether there is any substantial evidence, contradicted or uncontradicted, in support of the decision of the trier of fact.  (Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429, 45 P.2d 183.)   As we have already noted the material evidence before the trial court was admitted or uncontradicted;  we find no substantial evidence in support of the judgment.

The judgment is reversed;  the superior court will enter judgment in favor of plaintiffs Lester J. Dietz and Lotus A. Dietz as prayed.