ABBOT KINNEY COMPANY

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District Court of Appeal, Second District, Division 2, California.

ABBOT KINNEY COMPANY, a corporation; Ethel Fraser Prentiss; Fraser Prentiss; Ethel Fraser Carman Ryles; Olive Byrne Jones; Ruth Jones Wright; California Bank, a corporation, as Trustee under decree of distribution IN RE: the Estate of Herbert Richmond Gage, Deceased, Los Angeles County Superior Court case #110526, Probate, Plaintiffs, Appellants and Respondents, v. CITY OF LOS ANGELES, a municipal corporation, Department of Recreation and Parks of the City of Los Angeles, Defendants. City of Los Angeles, a municipal corporation, Defendant, Respondent and Appellant.*

Civ. 23425.

Decided: May 27, 1959

Paul R. Hutchinson, Los Angeles, Davis & Davis, Beverly Hills, for plaintiffs, appellants and respondents. Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., Ralph J. Eubank, Deputy City Atty., Los Angeles, for defendant, respondent and appellant.

Plaintiffs sued for a judgment declaring that the title to certain property situated upon and bounded by the high tide line of Santa Monica Bay of the Pacific Ocean had reverted to them as a result of the violation of certain conditions subsequent upon which their predecessors in interest had conveyed the property to the city of Ocean Park.

The deed provided in the habendum clause that the premises should be held ‘in the hereinafter named trust, forever, as a pleasure park or beach for the use, benefit and enjoyment of the public in general and particularly the inhabitants of said City and the owners of the property lying adjacent to the property hereinbefore described.’ Among the conditions was the requirement that ‘said lands and every part thereof must at all times be kept free from teaming, open and unobstructed for the use and enjoyment of the public and as a pleasure park or beach, and said property shall be kept clean at said City's expense.’1

The trial court found that the conditions had been breached and adjudged a forfeiture of that portion of the premises which has been converted into a parking lot for the use and convenience of persons desiring to visit the beach.

The trial judge having retired, defendant's motion for new trial was heard by another judge who granted it upon grounds of insufficiency of the evidence and errors of law. Plaintiffs appealed from that order and defendant City of Los Angeles took a cross-appeal from the judgment. We shall consider first the order granting a new trial; if that is affirmed the appeal from the judgment becomes moot and must be dismissed. 3 Witkin on California Procedure, § 122, p. 2299; Freeman v. La Morte, 148 Cal.App.2d 670, 675, 307 P.2d 734. We have concluded that the order granting a new trial must be affirmed and therefore we shall refer to plaintiffs as appellants and to defendant City of Los Angeles as respondent.

The rule governing review of an order granting a new trial was stated by us in Brown v. Guy, 144 Cal.App.2d 659, 661, 301 P.2d 413, 414: ‘Upon the consideration of a motion for a new trial the court must make an independent appraisal of the evidence, including all presumptions and reasonable inferences, and must judicially determine whether the judgment effects a miscarriage of justice. In considering such motion the trial court is not bound by a conflict in the evidence but may be governed by any substantial proof that would reasonably warrant a judgment for the moving party even though such evidence consists of nothing more than inferences from established facts. On appeal from the order it will not be reversed unless the reviewing court concludes that as a matter of law there is no substantial evidence to support a contrary judgment.’

Contrary to the contention of appellants the law is settled that a substitute judge occupies the same position as the one who tried the case with respect to granting a new trial for insufficiency of the evidence to support the findings. See, Empire Investment Co. v. Mort, 169 Cal. 732, 736, 147 P. 960; Commander Oil Co., Ltd. v. Bardeen, 48 Cal.App.2d 345, 346, 119 P.2d 969. There is no distinction in this respect between jury and non-jury trials. Both of the cited cases involved non-jury trials, as does the one here on appeal.

Two major questions emerge from the instant record. Does alluvion resulting from a gradual and imperceptible accretion belong to the owner of the upland where that alluvion has resulted from a combination of natural and artificial causes? Is an automobile parking lot a permissible incident to the use of land conveyed to a municipality for a public park or beach upon condition that it be kept ‘open and unobstructed for the use and enjoyment of the public and as a pleasure park or beach’?

First, as to the status of the property which the court held to have reverted to plaintiffs as successors in interest of the grantors.

In 1904, Abbot Kinney and associates laid out the town of Venice on Santa Monica Bay. The site was then but a strip of ocean beach and sand lots. The town was obviously intended as a beach resort. On February 20, 1904, in furtherance of that project, Abbot Kinney, A. R. Fraser, G. M. Jones and H. R. Gage conveyed to the city of Ocean Park2 (within the limits of which the land was situated) some 15 contiguous fractional lots of beach frontage situated in 3 adjoining tracts. The property was described by lots as designated upon the respective subdivision maps, which showed them to be 50 feet (plus or minus) to 70 feet (plus or minus) in depth, bounded on the east by a 10-foot plank walk, and on the west3 by the ocean. The parking lot in question adjoins three of the most northerly lots in the Crescent Bay Tract (the most northerly tract) and extends a north-south distance of approximately 750 feet, and from east to west some 130 to 150 feet.

Counsel for both sides rely upon a composite map which was introduced in evidence as exhibit ‘J’ and which shows the tide line as depicted by various maps 1946, 1953 and 1956. The tract maps show 1946, 4953 and 1956. The tract maps show the west boundary as a wavy line opposite the word ‘Ocean.’ This implies mean high tide line as the boundary. Strand Improvement Co. v. City of Long Beach, 173 Cal. 765, 770, et seq., 161 P. 975; 8 Cal.Jur.2d, § 11 p. 723.4 The 1876 line as shown on exhibit ‘J’ was taken from a coast survey map which was not designed to locate the high tide line with any accuracy. The subdivision maps were filed in 1902 and said exhibit depicts the 1902 line as a straight one which at the north end separates the fractional lots of Crescent Bay Tract from the parking lot. Those fractional lots opposite the parking area scale less than 50 feet in depth.

It is apparent from the map and other evidence that the parking area is located partially upon upland included in the conveyance of 1904, and partially upon land to the west which is alluvion from some source. The parking lot was laid out in 1954; the map shows that the mean high tide line at that time was more than 400 feet west of the location of the 1902 high tide line as shown on said exhibit. The trial judge found ‘that in or about the year 1946 artificial alluvial was pumped onto the tide land seaward of the ordinary high water mark of the Pacific Ocean, adding about 200 feet of sand seaward. That said artificial alluvial has at all times since been used as a public beach.’ The last survey prior to 1946 was made in 1935 and the tide line was then some 250 feet west of its 1902 location.

All the evidence indicates that this growth prior to the 1946 fill was gradual and imperceptible. Appellants make no claim to the alluvion caused by the 1946 filling, which was done by the city of Los Angeles (corporate successor to Ocean Park and Venice), but insist that the added land caused by accretion prior to 1946 belongs to them, whether induced by natural means or a combination of natural and artificial causes. Respondent's expert witness took the position that any alluvion caused by such a combination of natural and artificial causes requires that it be classified as artificial, with the result that it belongs to the City as grantee of the State. Appellants' expert: ‘Q. Now, Dean, Mr. Oleweiler testified that there were many structures in Santa Monica Bay affecting the movement of the currents of the water within the bay, and that by virtue of the fact that all such currents within the bay were affected by such artificial structures that all accretion that was formed within the bay, in his opinion, was not natural but artificial accretion. Have you ever heard such a doctrine or is there such a doctrine in existence in your profession? A. I have not, no. * * * Q. This map shows that at least between the 1876, * * * down to the time before the fill was put in from the Hyperion development that there was a substantial change in accretion in the shoreline? A. Yes. Q. Now, it isn't your testimony, I take it, that that accretion was wholly natural accretion? A. Up until the time, I would consider it all natural accretion except that that was actually dumped in there or carried in there, yes. Q. In other words, any accretion that may be formed there because of the Santa Monica breakwater or the Santa Monica pier or Ocean Park pier, Venice Pier, Venice Breakwater, would you still call that natural accretion as you use the term? A. Yes.’

Our examination of the record discloses that there is no evidence to warrant a finding that any part of the parking lot is on artificial alluvion5 unless it be true as matter of law that gradual and imperceptible accretion caused by both artificial and natural processes falls within the classification of artificial alluvion which does not accrue to the title of the owner of the upland. The evidence reveals that over the years prior to the filling done by the city of Los Angeles in 1946, there was a fairly constant and gradual accretion process at work along the shores of the bay; that there were from time to time structures built out from the shore, such as groins, piers, breakwaters, etc., which varied in size and were not all present in the bay at the same time; that they had individual tendencies to affect the gradual processes then at work, but to a degree which was never measured and upon the record before us is not measurable.

Consideration of the authorities convinces us that this type of alluvion belongs to the upland owner and not to the public. We are not now speaking of discernible alluvion caused by artificial means, such as the dumping of several thousand tons of dredged material in the neighborhood of the subject property, which was done in 1946 by respondent in furtherance of its tideland trust, improvement of the harbor. ‘The littoral rights of an upland owner who owns no title to tidelands adjoining his property are subject to termination by whatever disposition of the tidelands the state chooses to make. [Citations.] Since navigable waters are held by the state in trust for all the people, any conveyance of tidelands is taken by the grantee subject to the public right of navigation. The state retains ‘the right to enter upon such lands and make such erections thereon, or changes therein, as it may find necessary or advisable to adapt the premises for use in navigation, and provide access thereto for that purpose, or in furtherance thereof.’' Miramar Co. v. City of Santa Barbara, 23 Cal.2d 170, 174, 143 P.2d 1, 3. However, these considerations have no pertinence to changes worked by structures placed by private individuals in navigable waters. They exercise none of the State's prerogatives. Any rule that alluvion resulting from their interference with natural processes creates land belonging to the State would unnecessarily and unreasonably destroy the littoral rights of owners of frontage receiving such alluvion, would cut them off from their ocean frontage, would confer upon the State or its grantee title to untold miles of frontage for which it has no use and no desire.

The result of the California authorities is set forth in Carpenter v. City of Santa Monica, 63 Cal.App.2d 772, 789, 147 P.2d 964, 973, as follows: ‘Thus we start this phase of the discussion with the proposition that accretions to the seashore, formed gradually and imperceptibly by natural causes, belong to the upland owner. It is also admitted by all concerned that artificially filled tidelands, filled rapidly and not gradually and imperceptibly, belong to the state or its grantees and do not belong to the upland owner. The problem we are presented with falls between these two well defined groups—who owns artificially filled or accreted tidelands, formed gradually and imperceptibly, as between the state, or its grantees, and the upland owner?’ At page 794 of 63 Cal.App.2d, at page 975 of 147 P.2d: ‘From these cases it must be accepted as settled in this state that accretions formed gradually and imperceptibly, but caused entirely by artificial means—that is by the works of man, such as wharves, groins, piers, etc., and by the dumping of material into the ocean—belong to the state, or its grantee, and do not belong to the upland owner.’ But the court added, on the same page: ‘It should be noted that we are not presented in this case with the problem as to what is the proper rule where such accretions are the result of both natural and artificial causes. On that subject we express no opinion.’ That is our specific problem.

The nearest approach to it found in the decisions in this State is Forgeus v. County of Santa Cruz, 24 Cal.App. 193, 140 P. 1092. In that case the owner of frontage on Monterey Bay had granted to the county a right of way for a public highway; it had built a raised roadbed which caused accretion and the land so formed was the subject of controversy; neither the State nor its grantee was a party to the action. At page 199 of 24 Cal.App., at page 1094 of 140 P., the court said: ‘Again, if any accretion or reliction was formed it was not caused by any act of Kimble or his successors in interest, but it was due to the act of the county in raising the roadbed along said right of way. It 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.’ It then quoted from an early case decided by the United States Supreme Court, St. Clair County v. Lovingston, 23 Wall. 46, 66, 23 L.Ed 59, 63, as follows: “It is insisted by the learned counsel for the plaintiff in error that the accretion was formed wholly by obstructions placed in the river above, and hence that 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 deposit made by the water. Whether the flow of water was natural or affected by artificial means is immaterial.”

The Lovingston case was followed in 1957 in Littlefield v. Nelson, 10 Cir., 246 F.2d 956. The case involved land deposited by accretion in the Arkansas River and the question of whether it was land formed by imperceptible degrees and from natural causes within the purview of the applicable Oklahoma statute, 60 O.S.1951, § 335. In order to stabilize the shifting course of the river the United States had constructed certain bank stabilization controls; the Kansas City Southern Railroad had also built a revetment to protect its right of way. ‘The opinions of expert engineering witnesses were in sharp conflict as to the extent of the effect of the construction work upon the river's course. The trial court found, however, that the river's channel was not changed suddenly by either revetment project although each may have added impetus or direction to the flow.’ At page 958. The court pointed out that the Oklahoma statute was identical with § 1014 of the California Civil Code, and that each was a codification of the common law. ‘Cases based upon the common law and similar codifications are virtually unanimous in their holdings that a riparian owner is not precluded from acquiring land by accretion where the accumulation is but hastened by artificial constructions lawfully constructed by third parties. See Frank v. Smith, 138 Neb. 382, 293 N.W. 329, 134 A.L.R. 467. Since the additions to plaintiff's riparian lands appeared gradually, were not caused by his own acts and were but hastened by the lawful acts of others we see no fact in the instant case requiring exception to the statement in St. Clair County v. Lovingston, 23 Wall. 46, 23 L.Ed. 59.’ At page 958. The Lovingston case was then quoted and the court added: ‘We think it clear that the influence of the revetment work of the government and others upon the flow and course of the Arkansas River does not defeat plaintiff's title to the accreted lands. The alluvion was occasioned essentitally from natural causes as intended by Oklahoma statute. To interpret sec. 335 to mean ‘entirely from natural causes' would be unrealistic.’ At pages 958–959.

134 A.L.R. has an annotation of the subject: ‘Waters: rights in respect of changes by accretion or reliction due to artificial conditions.’ At page 467. At page 468, it is said: ‘Generally, a riparian owner is not precluded from acquiring land by accretion or reliction, notwithstanding the fact that the accumulation is brought about partly by artificial obstructions erected by third persons, where the riparian owner had no part in erecting the artificial barrier.’ See, to this effect, Nordale v. Waxberg, D.C.Alaska, 84 F.Supp. 1004, 1005; Adams v. Frothingham, 3 Mass. 352, 362; Burke v. Commonwealth, 283 Mass. 63, 186 N.E. 277, 279; State v. 6.0 Acres of Land, 101 N.H. 228, 139 A.2d 75, 77; Frank v. Smith, 138 Neb. 382, 293 N.W. 329, 334, 134 A.L.R. 458; Solomon v. Sioux City, 243 Iowa 634, 51 N.W.2d 472, 476; State v. Gill, 259 Ala. 177, 66 So.2d 141, 145; State ex rel. Duffy v. Lakefront East Fifty-Fifth Street, Corp., 137 Ohio St. 8, 27 N.E.2d 485, 486; Block v. Franzen, 163 Neb. 270, 79 N.W.2d 446, 452; Tatum v. City of St. Louis, 125 Mo. 647, 28 S.W. 1002, 1003; Whyte v. City of St. Louis, 153 Mo. 80, 54 S.W. 478, 480; In re Hutchinson River Parkway Extension, Sup., 14 N.Y.S.2d 692, 693; 4 Tiffany Real Property (3d Ed.) § 1223, p. 626; 65 C.J.S. Navigable Waters § 82, p. 178; 56 Am.Jur. § 486, p. 899.

Of course, the same rules of accretion apply to tidal and non-tidal navigable waters. See, Brundage v. Knox, 279 Ill. 450, 117 N.E. 123, 128–129; City of Los Angeles v. Anderson, 206 Cal. 662, 666, 275 P. 789; 56 Am.Jur. § 477, p. 894; § 491, p. 902.

City of Los Angeles v. Anderson, supra, is not opposed to these views. It holds that alluvion caused in perceptible degrees by a breakwater belonged to the city and not the upland owner whose access to the water it cut off. See discussion of this case in Carpenter v. City of Santa Monica, supra, 63 Cal.App.2d 772, 790, 147 P.2d 964.

There was no evidence in the instant case of any alluvion caused by artificial means employed by City or State at any time before the filling of 1946, and there is no evidence that the alluvion caused by that artificial process is included in the parking lot area; exhibit ‘J’ shows it to be approximately 100 feet seaward of the westerly line of the parking lot.

On this state of the record the trial court could not grant a new trial upon the theory of insufficiency of the evidence to support a finding that the entire parking area is situated upon original upland plus gradual accretion which has become a part of that upland. We have discussed the problem because it will inevitably arise upon the new trial (Code Civ.Proc. § 53), which was properly granted for the reasons hereinafter set forth.

Whether th subject parking lot was a proper incidential use of the beach park presents an ultimate question of fact. Appellant's counsel assert that as matter of law the devoting of a part of the deeded premises to parking lot use was a violation of these conditions subsequent; namely, that the beach be kept ‘open and unobstructed for the use and enjoyment of the public and as a pleasure park or beach’; that ‘said property shall be kept clean at said city's expense’; that ‘no house or houses or buildings of any kind or character’ shall be erected or operated upon the beach; that ‘said lands and every part thereof must at all times be kept free from teaming’; and finally, that the parking lot ‘violated the over-all plan’ of the grantors. But counsel at the trial impliedly recognized these questions to be fact questions. They resorted to parol evidence to show that the parking lot, which is paved, has a house for an attendant and a building containing public toilets at the rear of the park, and that these things did violate ‘the basic intent’ of the grant and the ‘over-all plan’ of the grantors. To the end of further showing that this parking lot was not necessary for use of the beach, plaintiffs introduced evidence of the condition of the premises which were granted and those retained by the grantors in 1904, the wholly residential nature of the properties fronting on the bay in that area, the existence or building of pleasure piers in the bay, the gradual change of the neighborhood from residential to one preponderantly commercial, the meaning of the word ‘teaming’ in 1904, particularly whether it fairly included the use of automobiles, the extent of obstruction to the ocean view caused by the parking lot and its buildings and use by automobiles, the noise and fumes emanating from the same. Indeed it even appeared from plaintiffs' proof that one of them, Mrs. Carman-Ryles, owned a block 220 feet long fronting upon the north end of the parking lot, and that about nine years before the trial she had built a motel and a public parking lot upon it. After her sale of same the purchaser devoted part of that property to use as a Bridgo or Bingo Parlor, retaining and using the auto park in connection therewith. Respondent also introduced evidence upon the original conditions, changes therein and present uses of the frontage in the tracts from which the fractional lots had been deeded, a frontage of approximately 3500 feet.

Appellant's reply brief says: ‘We do not dispute the right of a city which has condemned and dedicated land for a public park, to put in an auto park where necessary for people to use in getting to the park, but the case is not authority in the instant situation for two reasons:

‘First, the land in the instant case was not dedicated by the City, but was received as a gift under conditions that expressly or by fair construction prohibited such use.

‘Second, the evidence did not show that the auto park was necessary for the use of the beach. This is just a supposition which defendant would seek to have taken for granted by virtue of the increasing population in Southern California. But the evidence rebutted the assumption.’

Bearing particularly upon the question of whether an automobile park was necessary for the use of the beach in this instance, respondent also showed that prior to its construction this beach had been little used, due largely to inadequate parking facilities in the immediate vicinity; that the use of automobiles has grown to such an extent since 1904 that the crowds at the various beaches now vary in proportion to the availability and adequacy of parking facilities; that this parking lot was conceived, authorized and constructed as an inducement and aid to fuller enjoyment of the beach by the general public and the result has been a very substantial increase in attendance.

There is, as appellant contends, a recognized distinction between parks located upon land belonging to a municipality and those upon property dedicated to park use through deed of a private owner. See, 37 Cal.Jur.2d § 16, p. 293; 39 Am.Jur., § 27, p. 823; 64 C.J.S. Municipal Corporations § 1820, p. 304. In Spinks v. City of Los Angeles, 220 Cal. 366, 368, 31 P.2d 193, 194, it is said: ‘Where a tract of land is donated to a city with a restriction upon its use—as, for instance, when it is donated or dedicated solely for a park—the city cannot legally divert the use of such property to purposes inconsistent with the terms of the grant. A less strict construction is adopted as to dedications made by the public. Slavich v. Hamilton, 201 Cal. 299, 303, 257 P. 60.’ In that case the court upheld the extension of Wilshire Boulevard across Westlake Park in Los Angeles. In Spires v. City of Los Angeles, 150 Cal. 64, 87 P. 1026, the building of a public library in a public park was held legally permissible. Harter v. San Jose, 141 Cal. 659, 665–666, 75 P. 344, held that a lease of a portion of a public park for hotel purposes was a legitimate park use. Ritzman v. City of Los Angeles, 38 Cal.App.2d 470, 101 P.2d 541, made a like ruling with respect to extension of a highway through Arroyo Seco Park within said city. These cases involved parks which had not been dedicated by private donors.

Wattson v. Eldridge, 207 Cal. 314, 278 P. 236, grew out of Abbot Kinney's founding of the city of Venice, as does the instant case. The subdivision map showed a system of waterways and canals resembling those of the famous Italian city. On May 20, 1912, the Abbot Kinney Company conveyed to the city of Venice certain areas which had been designated and used as canals. The deed stated that ‘the premises herein conveyed to the shall be used by said second party and its successors solely and only for permanent waterways, and canals, free to the public forever.’ 207 Cal. at page 317, 278 P. at page 237. These canals were operated by the city as ways open to the use of the public for boating, bathing, swimming, transportation of persons for hire, etc. In 1929 plaintiff Wattson sought a writ of mandamus to compel the city of Los Angeles (corporate successor to Venice) to execute a contract which had been awarded to him for the filling and improving for surface streets the areas theretofore used as canals and artificial waterways. Respondents were members of the Board of Public Works of the city. In granting the writ and holding that conversion of the canals into dirt highways was a lawful use of the dedicated areas the court said, 207 Cal. at page 320, 278 P. at page 238: ‘In support of their position that the municipality is without authority to ‘divert’ these canal areas to surface streets, the respondents rely upon the universally accepted rule of law that land which has been dedicated to definite and specific purpose must be used in conformity with the terms of the dedication, and not diverted to any other purpose or use. [Citations.] With this rule we have no quarrel. However a dedication must be understood and construed with reference to its primary object and purpose. [Citation.] In Hall v. Fairchild-Gilmore-Wilton Co., 66 Cal.App. 615, 624, 227 P. 649, 653, it is declared that ‘nothing is improper which conduces to that object.’ The real question always is, therefore, whether the use in a particular case, and for designated purpose, is consistent or inconsistent with such primary object. Whether or not a particular use amounts to a diversion from that for which the dedication was made depends on the circumstances of the dedication and the intention of the party making it. It has been held that such use is authorized as is fairly within the terms of the dedication and reasonably serves to fit the property for enjoyment by the public in the manner contemplated. Spires v. City of Los Angeles, 150 Cal. 64, 68, 87 P. 1026, 11 Ann.Cas. 465. In other words, the dedicator is presumed to have intended the property to be used in such way by the public as will be most convenient and comfortable, and according to not only the proprieties and usages known at the time of the dedication, but also to those justified by lapse of time and change of conditions.' (Emphasis added.) At page 321 of 207 Cal., at page 239 of 278 P.: ‘There cannot, therefore, by any question but that a canal is a highway of a peculiar kind. [Citation.] The dedication of a highway to public use authorizes any ordinary use for highway purposes. With changing conditions of travel and use a city has the right to adapt and appropriate its highways from time to time to such uses as in its judgment would be most conducive to the public good, and the courts should be slow to interfere with the exercise of this discretion. [Citation.] In our opinion, it would be most unreasonable to conclude that the Abbot Kinney Company by its dedication of the canal areas ‘for permanent waterways and canals free to the public forever’ intended thereby to indelibly and irrevocably impress upon these lands a trust solely for canal purposes. A liberal interpretation and one more conducive to the public good, which the dedicator is presumed to have had in mind when making the dedication, warrants the conclusion that it was merely intended by the employment of the quoted language to secure to the public generally some manner or means of ingress and egress. When these canals were originally acquired by the City of Venice from the Abbot Kinney Company it may not have been actually contemplated by any of the parties to the acquisition and grant that they would be used for surface highways or streets, yet it may properly be said to have been within the legal contemplation of all that they were to be used for all purposes by which the object of their creation—as public highways or thoroughfares—could be promoted. It cannot reasonably be supposed that the dedicator intended otherise than that they should respond to whatever demands, new improvements, and increased facilities might make upon them, so only that such demands must always be consistent with their character and purpose as public highways. In our opinion, the filling in and improving of these canal areas as surface thoroughfares constitutes but a new adaptation of their original dedication to the advancement of public convenience—a more suitable and more economical enjoyment of them by the public as highways. The contemplated improvements would rather increase than diminish their fitness and convenience as public highways. We conclude, therefore, that the improvement of the canal areas as surface streets is fairly within the scope of the powers which it was reasonably contemplated the municipal authorities might exercise from time to time during the years subsequent to the original dedication for public purposes.' (Emphasis added.)

Because of the nature of the action no reference was made in the Wattson opinion to the fact that the deed under consideration was made upon conditions subsequent. However, examination of the record shows that such was the fact.

The case discloses that the rule of strict construction voiced in Spinks v. City of Los Angeles, supra, 220 Cal. 366, 31 P.2d 193, and similar cases, is but an aid to ascertainment and enforcement of the primary purposes and objects of the dedication, whether made by private donor or by a municipality with respect to land owned by it.

The same philosophy as that of the Wattson case is voiced in 16 Am.Jur., § 61, p. 407, as follows: ‘Whether a particular use amounts to a diversion from that for which the dedication was made depends on the circumstances of the dedication and the intention of the parties making it, and is, therefore, largely a question of fact. Furthermore, a different construction is placed on dedications made by individuals from those made by the public, the former being construed more strictly than the latter. In any case, however, such use is authorized as is fairly within the terms of the dedication and reasonably serves to fit the property for enjoyment by the public in the manner contemplated. The dedicator is presumed to have intended the property to be used by the public, within the limitations of the dedication, in such way as will be most convenient and comfortable and according to not only the proprieties and usages known at the time of the dedication, but also to those justified by lapse of time and change of conditions.’

Courts of other states have in numerous instances held an automobile parking lot to be an appropriate incident to the use of a public park. Blank v. Browne, 217 App.Div. 624, 216 N.Y.S. 664, 668; Pansmith v. Incorporated Village of Island Park, Sup., 72 N.Y.S.2d 575, 578; Hanna v. Sunrise Recreation, Fla., 94 So.2d 597, 601; McLauthlin v. City and County of Denver, 131 Colo. 222, 280 P.2d 1103, 1106; Odell v. Pile, Mo., 260 S.W.2d 521, 525.

The Wattson decision also points to the conclusion that the question of whether a given use violates a specific condition ordinarily presents a question of fact. Clearly, such is the situation here and the evidence is in substantial conflict. We need go no further, for the evidence would have sustained a finding in defendant's favor upon this cardinal issue and the order granting a new trial must be affirmed.

In view of necessity of a new trial certain other matters will be considered as an aid to correct further proceedings.

Respondent contends that plaintiff Abbot Kinney Company has no right to maintain the action and that, Abbot Kinney having died, his heirs are indispensable parties. The record shows that Abbot Kinney and the other grantors named in the original deed of February 20, 1904, owned equal interests in the land, which would imply tenancy in common. Plaintiffs other than Abbot Kinney Company are heirs of the respective grantors, Fraser, Jones and Gage.

The deed of February 20, 1904, made as it was upon condition subsequent, left in the grantors a possibility of reverter, which is recognized as a contingent estate and transferable under § 1046, Civil Code.6 Taylor v. Continental Southern Corp., 131 Cal.App.2d 267, 273, 280 P.2d 514; Johnston v. City of Los Angeles, 176 Cal. 479, 486, 168 P. 1047.

The fact that Mr. Kinney's interest in the reversion was an undivided one does not affect the efficacy of said deed, for ‘[e]ach cotenant, whether he be a joint tenant or a tenant in common, may sell or encumber his interest in the property forming the subject of the tenancy at his pleasure, regardless of the knowledge, consent, or approval of the other cotenants.’ 13 Cal.Jur.2d § 38, p. 325.

In 1905, Abbot Kinney and wife conveyed to Abbot Kinney Company (the husband's wholly owned corporation) all his property. This was done by deed recorded on March 6, 1905, which in paragraph (15) transferred ‘[a]ll the right title and interest of the parties of the first part, not hereinbefore mentioned in and to those certain tracts of land'7 in which the subdivisions covered by the 1904 deed to the city were situated, and added: ‘And the land lying between the Westerly line of said 115.945 acre allotments and the line of ordinary high tide of the Pacific Ocean.’ Also: ‘Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof.’

We see no merit in the contention that Mrs. Kinney's joinder in this deed implied an intent to convey only jointly owned property and therefore the reversion in question did not pass because she had no interest in the subject property. As the court judicially knows, the custom of having the wife join in the husband's conveyance has been so general, both before and after the 1927 amendment to the community property law, that Mrs. Kinney's joinder in this deed implies nothing more than a desire to pass title to the exclusion of any questions or problems concerning present or potential interest of the wife in the property. ‘[I]t is plain from the decisions that as to community property acquired previous to 1927 her joinder in a deed thereof is in legal effect but an expression of her assent to the transfer by the husband.’ Riley v. Gordon, 137 Cal.App. 311, 315, 30 P.2d 617, 619.

By deed of April 8, 1905, the grantors named in the 1904 deed conveyed to the city of Ocean Park the identical land described in that deed upon the same conditions except that the words ‘water or sewer’ were omitted from the first proviso of the 1904 instrument. Respondent says: ‘This act conclusively shows that all four grantors considered their interest to be joint, and further it shows that Kinney's intent was that such interest had not been conveyed to the corporation.’ We think this deeding carries no such inferences. If it did, the fact would be immaterial for Kinney's interest in the land had passed out of him in 1904 and this 1905 deed was nugatory.

It is further contended by respondent that the conditions of the 1904 deed were waived through the making of a quitclaim deed by Abbot Kinney Company, Fraser, Jones and Gage to the city covering the northeasterly 20 feet of the lands originally conveyed in 1904. This deed says: ‘The above described strip of land adjoins the board walk on the west, along the Ocean Front, from the southerly line of Marine street extended, to the Northerly line of Horizon Avenue.’ Also: ‘It being hereby understood and agreed, that said strip of land is to be used for the construction of a public side-walk and for no other purpose.’ Manifestly, the conveyance was made in order to widen the walk, the ten-foot plank walk, which was part of the original dedication; and it plainly was in furtherance of the purposes therein specified, beach park purposes. There is no evidence to warrant a contrary inference.

Waiver, when implied, rests essentially upon elements of estoppel. First Nat. Bank of Los Angeles v. Maxwell, 123 Cal. 360, 367–368, 55 P. 980; Stewart v. Leasure, 12 Cal.App.2d 652, 656, 55 P.2d 917; Hopson v. Nat. Union, etc., Cooks and Stewards, 116 Cal.App.2d 320, 325, 253 P.2d 733; Roberson v. Industrial Acc. Comm., 146 Cal.App.2d 627, 629, 304 P.2d 202. Nothing in the nature of an estoppel is shown here. The sole effect of this 20-foot deed is to release that strip from operation of the conditions subsequent, not to lift them as to the entire area of which the strip was a part.

In line with this waiver argument respondent points to the fact that the city adopted, on September 30, 1924, an ordinance designating as a public sidewalk the easterly 40 feet of the lots conveyed by the 1904 deed, thus increasing the width of the public thoroughfare by 10 additional feet. The entire width has been paved and used and known as Ocean Front Walk. At a pretrial hearing it was stipulated: ‘A portion of the property deeded to the City was thereafter taken by the City as a public walk and is not involved in this proceeding. The land involved is that described in plaintiffs' complaint, except the east 40 feet thereof, used as a public walk.’ The city's action in this regard presented a case of inverse condemnation of the reversionary rights of the donors, but, the statute of limitations having run against recovery of compensation, plaintiffs herein are remediless with respect to the additional 10 feet seized pursuant to this ordinance.

If the ordinance and subsequent use of the entire 40 feet as a sidewalk be said to be a violation pro tanto of the conditions of the grant, it does not follow that the entire property could have been forfeited as a result. Such a violation can effect only a partial reversion where the remainder of the property continues to be used in conformity with the terms of the conditions of the grant. Quatman v. McCray, 128 Cal. 285, 289, 60 P. 855; Tamalpais Land & Water Co. v. Northwestern Pac. R. R. Co., 73 Cal.App.2d 917, 929, 167 P.2d 825; 14 Cal.Jur.2d § 77, p. 86.

Moreover, respondent's brief says: ‘In view of this quitclaim deed and ordinance, the parties to this action stipulated that the easterly forty feet of the fifteen lots in dispute was not subject to the provisions of either of the deeds of February 20, 1904, or April 8, 1905, and hence was not involved in this action.’

No other points require discussion.

Order granting new trial affirmed; appeal from judgment dismissed.

FOOTNOTES

1.  The grant conveyed: ‘Lot 179, of the Crescent Bay Tract, as per Maps recorded in Book 2, Pages 13 and 14 of Maps. ‘Lots ‘A’, ‘B’, ‘C’, ‘D’, ‘E’, ‘F’, G', ‘H’ and ‘I’ of the Golden Bay Tract, as per Map recorded in Book 2 Page 15 of Maps. ‘Also Blocks 8, 9, 10, 11, and 12, of the Country Club Tract, as per Map recorded in Book 3, Page 76 of Maps. ‘Together with all and singular the tenements, hereditaments, and appurtenances, thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof. ‘To Have and To Hold, all and singular the said premises together with the appurtenances unto the said party of the second part and its successors and assigns, in the hereinafter named trust, forever, as a pleasure park or beach of the use, benefit and enjoyment of the public in general and particularly the inhabitants of said City and the owners of the property lying adjacent to the property hereinbefore described; provided, that this conveyance is made upon the condition that no house or houses or building of any kind or character, or miniature, steam, street, or electric railway or roadway, or any gas, water or sewer pipe shall ever be erected, constructed, laid, maintained or operated, or be permitted or allowed to be erected, constructed, laid, maintained, or operated, in, along, upon or over said lands or any part thereof; and that no games of any kind shall ever be permitted to be conducted or carried on upon said lands or any part thereof, and said lands and every part thereof must at all times be kept free from teaming, open and unobstructed for the use and enjoyment of the public and as a pleasure park or beach, and said property shall be kept clean at said City's expense. ‘Provided, further, that if said party of the second part or its successors or assigns shall at any time violate said trust or at any time, either directly or indirectly, violate either or any of the conditions or restrictions hereinbefore contained, immediately thereupon, all right and title hereby conveyed shall revert to and become vested in the said parties of the first part their heirs or assigns, and said parties of the first part, their heirs, administrators or assigns shall be entitled to immediate possession of said lands and every part thereof.’

2.  Ocean Park later changed its name to Venice, and Venice was consolidated with the City of Los Angeles in 1925.

3.  The coast in this locality runs northwesterly and southeasterly, but counsel have discussed the case as if the coast line runs due north and south and for convenience we shall do likewise.

4.  Such a line cannot be located by the naked eye. It is an engineering concept,—the projection upon the land of a determined elevation, in this instance 4.66 feet above the datum plane of mean lower low water (see, Borax Consolidated v. City of Los Angeles, 296 U.S. 10, 26–27 56 S.Ct. 23, 80 80 L.Ed. 9). ‘The plane of ordinary high tide is an imaginary plane fixed by observation and calculation as to the average high tide, and its location is fixed by running of this level on the shore.’ Miller & Lux, Inc. v. Secara, 193 Cal. 755, 762, 227 P. 171, 172.

5.  The testimony of Thornton Kinney to the effect that part of the parking lot area was below mean high tide mark until 1946 does not amount to substantial evidence because he was attempting to locate it from memory based upon the location of the ‘crest’ of the sand and its relation to what he deemed to be the mean high tide line. As we have pointed out, that line cannot be located by the naked eye. Hence any attempt so to do does not constitute substantial evidence. See, as to those exceptional instances in which evidence should be declared inherently improbable evidence, People v. Headless, 18 Cal.2d 266, 267, 115 P.2d 427; Herbert v. Lankershim, 9 Cal.2d 409, 471–472, 71 P.2d 220; Hall v. Osell, 102 Cal.App.2d 849, 853, 228 P.2d 293; In re Estate of Teed, 112 Cal.App.2d 638, 644, 247 P.2d 54. This is one of those occasions. On a parity with the Kinney testimony about the location of the mean high tide line is that of Mrs. Ethel Fraser Carman-Ryles, who, looking back over 50 years, said she ‘felt’ it was 200 feet from the cement (formerly plank) walk.

6.  Civ.Code, § 1046: ‘A right of reen̈try, or of repossession for breach of condition subsequent, can be transferred.’

7.  Describing certain ‘allotments.’

ASHBURN, Justice.

FOX, P. J., and HERNDON, J., concur.