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MARKS v. Jean Marks, Cross-Defendant and Respondent.

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

Larry H. MARKS, Jr., Plaintiff, Cross-Defendant and Respondent, v. Peter D. WHITNEY and Frances Whitney Anderson, Defendants, Cross-Complainants and Appellants, Jean Marks, Cross-Defendant and Respondent.

Civ. 24883.

Decided: October 09, 1970

Albert M. Monaco, Heller, Ehrman, White & McAuliffe, San Francisco, for appellants. William C. Simmons, San Francisco, J. Bert Morgan, Oakland, R. Frederic Fisher, San Francisco, Phillip S. Berry, Orkland, for amicus curiae, Sierra Club. Pillsbury, Madison & Sutro, Noble K. Gregory, Allan N. Littman, John T. Hansen, San Francisco, for amici curiae, Ideal Basic Industries, Inc. and Westbay Community Associates. Thomas C. Lynch, Atty. Gen., Charles A. O'Brien, Chief Deputy Atty. Gen., Jay L. Shavelson, Asst. Atty. Gen., N. Gregory Taylor, E. Clement Shute, Jr., Philli G. Samovar, Deputy Attys. Gen., Los Angeles, for amicus curiae, State of California, State Lands Commission of the State of California, and San Francisco Bay Conservation and Development Commission of the State of California. Myers, Praetzel & Pierce, San Rafael, for respondents.

Plaintiff Marks filed this action to quiet title to certain tidelands in Tomales Bay. Defendants Peter D. Whitney and Frances Anderson (hereafter ‘Whitney’) and others filed a cross-complaint to quiet title to the upland parcel lying immediately back of and to the west of the portion of the Marks tidelands involved herein.

No appeal has been taken from that portion of the judgment which determines the issues arising from the cross-complaint and, therefore, the metes and bounds description and location of the common boundary line between the two properties is conclusive as between the parties herein. This line runs in a general north-south direction and is described by five compass calls having a total length of 344.48 feet, with its northerly terminus at ‘Point Cavalli.’

We are thus left with only the issues raised by Marks' quiet title amended complaint and the answer of Whitney thereto. Marks' amended complaint simply pleads the usual allegations, i. e., that he is the owner of and in possession of the subject property and that ‘defendants herein claim and assert an interest or estate in said [tideland] poperty adverse to plaintiff’ but that the same is without any right.

The relief sought by Marks in his prayer is that Whitney be required to set forth the natrue of any adverse interest claimed by him; that he, Marks, be adjudged to be the owner of the subject property; and that Whitney be debarred from ever asserting any claim therein adverso to Marks. The pretrial conference order simply describes the ‘general nature of the action’ as being ‘a quiet title proceeding involving disputed boundaries between adjacently owned parcels of tidelands, and connected uplands.’

Whitney's answer denies the above allegations except to admit that he does claim an interest in said property adverse to plaintiff in that he, ‘together with the general public, are the owners of and entitled to a perpetual easement for fisheries, commerce and navigation’ over said property.

Marks' tideland parcel is roughly rectangular in shape, whth a 344.48 foot westerly side, as stated above, running north to Opoint Cavalli. From this northwest corner the seaward boundary line commences and runs easterly to the northeast corner, a distance of 66 feet. The line the runs southerly for a distance of 1,409 feet.

One of the two issues raised by Whitney on appeal is that the judgment does not properly describe the low water boundary of Marks' tidelands on the north and east sides.

Although there is serious doubt that Whitney has any standing to raise this issue, he not owning any property contiguous to said seaward boundary line, the parties apparently did litigate it without objection from Marks.

We say ‘apparently’ because Whitney requested alimited transcript on appeal, as provided by rule 5 of the California Rules of Court, and the oral proceedings are not before us. We note that the minutes of the proceedings below show that Marks called as his first witness one Thomas Brunner, a surveyor, and that he was on the witness stand for three full days. We can only conclude that his testimony was directed to the proper location of the boundaries of the subject properties.

Marks acquired title to the subject tidelands (a portion of ‘Tideland Lot 170’) through mesne conveyances pursuant to a patent issued by the State of California on May 15, 1874 to James McM. Shafter. The description of said property was based upon a survey commonly known as ‘Tide Land Survey No. 170.’ Both parties agree that this survey is inaccurate and incorrect and the trial court so found. Marks had a resurvey made in 1962 and it and the patent were both admitted in evidence.

Whitney contends that the judgment description is incorrect in the following particular. It recites that, after leaving the ordinary line of high water at Point Cavalli, the boundary line runs easterly for 66 feet and then runs southerly by compass directions for 1,409 feet. The first two calls are for 184.8 feet and 310.2 feet, respectively, and carry the Marks' property beyond the 344.48 feet frontage of Whitney's property on the opposite side. The two calls of 184.8 feet and 310.2 feet are identical with those in the original patent, except that ‘chains' are converted into ‘feet.’

The patent calls were intended to indicate the line of ordinary low water in 1874. The findings and judgment herein fixed the boundaries ‘as the same existed on January 10, 1963,’ the date of the filing of this action. No attack is made upon this finding.

The reason for this concession is that where a trial court recites in its findings, as it did here, that oral and documentary evidence were received, but there is no recordas as to what evidence was taken on an issue, it must be conclusively presumed on an appeal from the judgment that a finding on such issue is supported by the evidence. (Estate of Hansen (1949) 91 Cal.App.2d 610, 611–612, 205 P.2d 686.)

Whitney's position is that the judgment description of Marks' property, instead of fixing a permanent boundary line, should have inserted the words, ‘along the line of ordinary low water’ immediately before the two calls specified above. He admits that this would create a ‘shifting boundary, going landward with erosion and waterward with accretion’ and that ‘a boundary along a natural call to low water is forever a movable boundary.’ (Inalics ours.)

Such a result would be intolerable. No one owning tidelands could safely construct improvements thereon without running the risk of encroaching upon land that might otherwise be carried away by future erosion. The law favors stability of title to real property and the boundaries thereof. Appellant's contention that the judgment should provide for a ‘shifting’ or ‘movable’ seaward boundary line is without merit.

Was The Original Patent Subject To An Implied Reservation Of Public Rights?

This issue is directed to two portions of the judgment, the first of which may be summarized as follows: title to the subject tideland property is quieted in Marks subject only to a described prescriptive pier or wharf easement, seven feet wide, extending from the easterly boundary line of Whitney's upland parcel across Marks' tideland to the seaward boundary thereof.

The second portion of the judgment relating to this issue provides that Whitney's easement rights ‘shall be subject to the right of MARKS to use, to fill and to develop [all of the subject property, including the Whitney easement area] * * * so long as such [Whitney] rights of access and ingress and egress to and from the deep waters of Tomales Bay shall be preserved over and across said area seven feet in width and MARKS may use and convey the same for use, for all purposes which do not defeat or substantially interfere with use by WHITNEY of such area for the above stated purposes.’

As we shall point out, the trial court intended this portion of the judgment to relate only to the Whitney easement and not to the entire subiect property.

The parties agree that the controlling statute under which the 1874 patent was granted to Shafter is the Act of March 28, 1868 (Stats.1868, ch, 415, p. 507). This Act by its terms authorizes the unconditional sale of tide lands belonging to the State. Neither the Act nor the patent granted to Shafter contains or refers to any reservation of public rights. Hence, any such public rights are by implication only.

However, the trial court was fully aware of the fact that these rights might exist and that it could adjudicate only the rights of the parties before it, Marks and Whitney. (See Chapman v. Moore, 151 Cal. 509, 514–515, 91 P. 324; Kuenzel v. Grettemberg, 88 Cal.App.2d 656, 658, 199 P.2d 732.)

In its memorandum opinion the court made this clear, stating: ‘Actually the State is not a party to this action and therefore nothing that is said regarding public rigbts is any more than an expression of opinion. * * * It is possible that the State has retained some public rights. These may be expressed and controlled only be the State and not be a private individual. No attempt will be made to adjudicate herein the existence or extent of any possible reserved control which may yet be handled by the State Tidelands Commission except between the parties. Neither the State nor the Tidelands Commission are parties to this action. Defendant Whitney does not own the public rights and can neither express nor control them. * * * The United States Government has certainly reserved some public rights and the State could not and did not dispose of the rights reserved by the United States Government * * *. The extent of that power will not be adjudicated herein.’

In paragraph 3 of the judgment the court describes the Whitney easement in detail and then states its purposes, as follows: ‘Said easement has been and shall be for the purposes following, to wir: for using and maintaining a pier or wharf from the lands described as Parcel One in Exhibit B hereto [Whitney's parcel] easterly to and beyond the northeasterly boundary of the lands described in Exhibit A hereto [Marks' parcel] for access and ingress and egress to and from the deep waters of Tomales Bay for pedestrians, fisheries, navigation and other purposes.’

Then follows the provision which has caused deveral amici curiae to enter the case with great vigor. The provision is as follows:

‘Such rights shall be subject to the right of Marks to use, to fill and to develop the lands described in Exhibit A hereto (including those within the adove defined area seven feet in width), so long as such rights of access and ingress and egress to and from the deep waters of Tomales Bay shall be preserved over and across said area seven feet in width and Marks may use and convey the same for use, for all purposes which do not defeat or substantially interfere with use by Whitney of such area for the avove state purposes.’ (Italics ours.)

If the above provision had been so worded as to make it applicable to the Whitney easement alone, it would have expressed the true intention of the trial court. The inclusion of the entire Marks parcel (Exhibit A) was not in accord with such intention.

So far as the record shows, this error was not called to the attention of the trial court. Appellant did not move for a new trial.

As stated before, only Marks and Whitney were before the court and it had jurisdiction to determine their separate rights but not the rights of parties who were not before it. It follows that any such party, including the federal and state governments and their public agencies, has not had its rights adjudicated but may assert them when and if the occasion arises. At present the subject property is only a relatively small arcel of unimproved tideland. There is no indication in the record, and it is entirely hypothetical to assume, that there has been any interference by Marks with any public right of navigation or commerce. Marks brought a simple action to quiet title. He did not seek to barr or enjoin the public from the rightful use of any navigational waters for navigational purposes.

Furthermore, in his effort to represent the public, Whitney has failed to plead or make any showing that the public authorities have failed to perform their duties with respect to protecting the public rights involved herein. In Dunn v. Long Beach Land and Water Co., 114 Cal. 605, 46 P. 607, it was held that a citizen cannot maintain an action in behalf of a city against a third person unless the bringing of such action is a duty devolving on the authorities of the city, as to which they have no discretion, and which they have refused to perform. (See Elliott v. Superior Court (1960) 180 Cal.App.2d 894, 897, 5 Cal.Rptr. 116; Schaefer v. Berinstein (1956) 140 Cal.App.2d 278, 289, 295 P.2d 113; Whitson v. City of Long Beach (1962) 200 Cal.App.2d 486, 506, 19 Cal.Rptr. 668.)

We therefore hold that the portion of the judgment last quoted above should be modified by deleting therefrom the words ‘Exhibit A hereto (including those within’, and the closing parenthesis, so as to make this provision read ‘described in the above defined area seven feet in width’.

As so modified, the judgment is affirmed. Respondents are to reconver costs on appeal.

AGEE, Associate Justice.

SHOEMAKER, P. J., and TAYLOR, J., concur.

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