MARKS v. Jean Marks, Cross-Defendant and Respondent. (1970)

OPINION ON DENIAL OF REHEARING

Appellants' petition for rehearing is denied. The State, as amicus curiae, has requested that we on our own motion order such rehearing. The State correctly acknowledges that it ‘is not a part in the present case, and therefore not bound by this decision,’ but that the decision ‘creates serious practical problems for the State in subsequent actions * * *.’ We think that the State should face such potential problems as they may arise but that this is not a sufficient reason for setting aside our decision herein. The request is therefore denied.

Our approval of the trial court's fixing of the seaward boundary line, as between the parties hereto, is not inconsistent with the concept that boundaries along tidal shores may change from time to time by natural accretion or deliction. (See People v. Wm. Kent Estate Co. (1966) 242 Cal.App.2d 156, 160, 51 Cal.Rptr. 215.)

In the Kent case, the defendant owned the upland and the State the submerged land. In 1950 defendant obtained a quiet title decree which located the common boundary line by courses and distances but also included in the designation thereof, ‘the ordinary high-water mark on the shore of the Pacific Ocean.’

In a subsequent action by the State to enjoin defendant from interfering with the public use of said submerged land, the appellate court refused to uphold the granting of such relief on the ground that the judgment was ‘too uncertain to be enforced.’ (P. 159, 51 Cal.Rptr.215.)

In remanding the case for retrial, the court stated: ‘No effort was made by the parties to determine whether these movements [of sand] are of substantially the same distance each year, thus affording a basis for fixing an average, mean, or ordinary line of the shore against which the average plane of the water at high tide may be placed to determine a reasonably definite boundary line. This effort should be made upon retrial. We recognize that * * * [a] somewhat greater certainty should be possible than the constantly moving line contemplated by the present decree.’ (P. 161, 51 Cal.Rptr. P. 219; emphasis added.) In the instant case it was shown by undisputed evidence that the seaward boundary line was identically the same in 1963 as it was in 1874, when the original patent was issued. The insufficient record encountered in Kent was thus avoided herein.

BY THE COURT: