CITY OF BERKELEY v. SANTA FE LAND IMPROVEMENT COMPANY (1978)

This original proceeding in mandamus involves a conflict between public and private claims regarding the ownership of a tract of land located on the shoreline of San Francisco Bay. Petitioners, the City of Berkeley and the State of California, are the defendants in a consolidated action pending in respondent court.¹ Real parties in interest George W. Murphy and Santa Fe Land Improvement Company, a corporation, are the plaintiffs in the action. They moved for summary judgment upon certain issues tendered and joined in the pleadings. Respondent court granted their motion in an order which has, or portends, the effect of confirming absolute title to the tract in real parties. Petitioners seek a peremptory writ of mandate requiring the court to set the order aside. By reason of the course this proceeding has heretofore taken, the remedy lies.²

A preliminary recital of relevant geographical and historical factors is in order.³ San Francisco Bay extends easterly, and for substantial distances north and south, from its entrance at the Golden Gate. The City, which was incorporated in 1878 (stats.1877-78, ch. 565, p. 888), is in Alameda County and on the east side of the northern reach of the Bay. Its boundaries include about two miles of shoreline on the Bay, the familiar upland area of the City to the east, and a large submerged area of the Bay floor lying to the west. The tract in dispute is entirely within the City, at and immediately offshore from the shoreline.

Because the Bay is an estuary of the Pacific Ocean, its waters are tidal. The lands which now include the disputed tract were consequently tidelands in part, and partly submerged lands, in their natural condition.⁴ They were in that condition when the State was admitted to the Union in 1850, and they were not then held in private ownership. The State accordingly assumed their “ownership” at that time as an incident of its sovereignty, and subsequently held them in trust for public purposes traditionally defined in terms of navigation, commerce and fishing. (City of Long Beach v. Mansell, supra, 3 Cal.3d 462 at p. 482, 91 Cal.Rptr. 23, 476 P.2d 423.) The principal issue joined in the pleadings before us, and addressed by the order under review, is whether the tract in dispute is presently held subject to this so-called “tideland trust.”

The pleadings emerged from a complicated procedural sequence which need not be recited. For purposes of this proceeding, they include separate amended complaints filed by the respective real parties and separate answers to each by the City and the State. Their length and detail preclude reproduction in full, but we describe them as pertinent.

The allegations of the amended complaints may be summarized as follows: Real parties, between them, own a described 79-acre tract of land located at the Berkeley shoreline. By laws enacted in 1868 and 1870, the Legislature “authorized” the State, through its Board of Tide Land Commissioners, to convey certain tidelands and submerged lands into private ownership “free of the trust for commerce, navigation and fishing” described above.⁵ The land which now comprises the 79-acre tract was conveyed to real parties' predecessors in interest, by the Board of Tide Land Commissioners, pursuant to both laws. Consequently, and by devolution, real parties now own the tract free of the trust. It has been filled since their predecessors in interest acquired it. The City and State claim an interest in it and dispute real parties' claims to it. On the strength of these allegations, real parties seek a decree quieting their title and declaratory relief to the same effect.

In their answers, the City and the State generally deny that real parties own the 79-acre tract as alleged in the amended complaint. The City alleges as an affirmative defense that the tract is “subject to the . . . state navigational servitudes and public trust.” The State pleads a similar affirmative defense, but in more explicit terms and alternatively, alleging as follows: The City owns the tract in fee simple, but “subject to the public trust for purposes of commerce, navigation, fisheries, recreational and environmental uses,” by reason of a statutory grant made to it by the Legislature in 1913 and amended in subsequent statutes.⁶ In the alternative, the tract is “burdened with a public-trust easement for the benefit of the People of the State” and for the same purposes, “which easement is administered by the City” pursuant to the 1913 grant as amended.

Real parties' motion was for “partial summary judgment” to the effects (1) that the 79-acre tract had been conveyed by the State, “free of the public trust for commerce, navigation and fishing,” pursuant to the 1868 and 1870 acts (see fn. 5, ante ) and (2) that the City had “received no title to or public trust interest in” the tract by virtue of the 1913 grant as amended. (See fn. 6.)

In support of the motion, real parties produced and authenticated a series of deeds by which the Board of Tide Land Commissioners had conveyed to their predecessors in interest, pursuant to the 1868 and 1870 acts, “all the right, title and interest of the State of California in and to” an array of lots described by reference to a recorded map. The deeds had been executed in various years between 1872 and 1875, inclusive. It was also established by declaration that the lots described in them included the disputed 79-acre tract.

The State filed an opposing declaration, and documentation, which showed that part of the full 79-acre tract had been reclaimed and filled since the execution and delivery of the 1872-1875 conveyances. These documents also summarized the activities of the Board of Tide Land Commissioners, pursuant to the 1868 and 1870 acts, as they had affected the tidelands and submerged lands which now comprise the tract, other such lands in the immediate vicinity, and still others located elsewhere in the Bay.

The order granting real parties' motion was embodied in a memorandum decision filed by respondent court. The court reviewed the matters shown on the motion, and stated the principal ground for granting it, in this language:

“Plaintiffs move for partial summary judgment on the ground that they own free and clear of the public trust for commerce, navigation and fisheries 79 acres of former (sic ) tide and submerged lands conveyed to their predecessors in interest pursuant to the act of March 30, 1868, . . . and the supplementary act of April 1, 1870 . . . . The tract in question . . . (is) . . . in the City of Berkeley, and all but a fraction of an acre of it has been filled. Approximately one-third of the tract lies between the 1870 lines of mean high tide and mean low tide and the remainder as of that time was submerged land. . . . For the reasons hereinafter stated partial summary judgment is granted on the ground that the State's right, title and interest, including any public trust for commerce, navigation and fisheries, was sold pursuant to the above statutes.

“Case authority in California squarely holds that conveyances pursuant to the 1868 and 1870 legislative acts of tide and submerged lands in the San Francisco Bay area terminated the public trust for commerce, navigation and fisheries, to which such lands had previously been subject, with the consequences that private grantees received unencumbered fee title thereto as of the date the conveyances were made. (Knudson v. Kearney (1915) 171 Cal. 250, 152 P. 541, Alameda Conservation Assn. v. City of Alameda (1968) 264 Cal.App.2d 284, 70 Cal.Rptr. 264.) The 79 acres here in question were conveyed . . . to plaintiffs' predecessors pursuant to the 1868 and 1870 Acts so that the above cases are binding on this court under the principle of stare decisis . . . (T) he 1913 grant by the State to the City of Berkeley of tide and submerged lands within its boundaries (does not) provide assistance to the defendants because the State could convey no better title to the City than it had itself and, (it) having previously divested itself of any interest in the subject property, it follows that nothing passed to the City of Berkeley in 1913.”

As an additional ground for granting the motion, the court invoked the doctrine of collateral estoppel: “(I)n the Alameda Conservation Association case the State itself as a party successfully resisted a suit to enjoin the dredging and filling of a multi-acre tract of submerged land adjacent to the City of Alameda conveyed by the State in 1873 pursuant to the same statutory authorization as the tract here on the ground that the conveyance terminated the public trust. The State, therefore, is collaterally estopped to assert that the land here, in all respects analogous to that in Alameda, is subject to

the public trust. . . . ” THE DETERMINATION THAT THE 1872-1875 DEEDS PASSED TITLES FREE OF THE TIDELAND TRUST

As respondent court's memorandum decision makes clear, this determination was based exclusively upon the two decisions which the court cited as “binding” interpretations of the 1868 and 1870 acts. (Knudson v. Kearney, supra, 171 Cal. 250, 152 P. 541; Alameda Conservation Assn. v. City of Alameda, supra, 264 Cal.App.2d 284, 70 Cal.Rptr. 264.) Between them, Knudson controls because the later decision follows it on the subject of land titles conveyed by the State pursuant to the two acts. (Alameda Conservation Assn. v. City of Alameda, supra, at p. 287, 70 Cal.Rptr. 264.) The acts enabled one of three distinct statutory programs in which the State disposed of tidelands and submerged lands during the early years of its existence. Knudson was decided when the programs finally converged in the Supreme Court. The question whether it is “binding” here may accordingly be approached through the programs' history which preceded

it. We describe the programs in the sequence in which they developed. The Special-Act Program Affecting The Northern San Francisco Waterfront

The first disposition program was set in motion by a series of statutes enacted by the Legislature during the first decade of statehood. They were so-called “special acts” because they expressly pertained to the State's disposition of tidelands and submerged lands in San Francisco only. Among them, they delineated a mapped line “within the City of San Francisco,” along and offshore from its natural shoreline on San Francisco Bay and generally north of Second Street; established a “permanent water front of said city” on the line; granted or authorized the sale of the State's interest in tidelands and submerged lands located inshore of the line; and confirmed private titles held in the lands under pre-statehood grants or in consequence of the special acts themselves. (Stats.1851, ch. 41, p. 307; stats.1853, ch. 160, p. 219; stats.1855, ch. 181, p. 226; stats.1858, ch. 66, p. 52.)⁷ None of these acts referred to the tideland trust doctrine, but its rudiments were expressed in some early decisions upholding the termination of the trust as to the affected lands in San Francisco. (E. g., Eldridge v. Cowell (1854) 4 Cal. 80, 88; Guy v. Hermance (1855) 5 Cal. 73, 75.) In varying contexts and language, these and other decisions established that private titles to the lands were held free of the trust. All of the decisions reaching this result, and the circumstances underlying it, were later reviewed in People v. California Fish Co. (1913) 166 Cal. 576, 585-586, 138 P. 79. We refer to the circumstances when we reach that decision.

The General Disposition Program

This program was adopted and developed in a distinct series of early enactments authorizing the sale of State-owned lands. They have been termed “general disposition statutes” because they were statewide in scope and were not addressed to any particular localities except for some they excluded. (See Comment, The Tideland Trust: Economic Currents In A Traditional Legal Doctrine (1974) 21 UCLA L.Rev. 822, 837-839; San Francisco Bay Plan Supplement (1969) p. 428.)⁸

The first three general disposition statutes directed the sale of “swamp and overflowed lands” throughout the State except in or near San Francisco and at certain other designated points. (Stats.1855, ch. 151, ss 1 (p. 189), 11 (pp. 190-191); stats.1858, ch. 235, ss 1 (p. 198), 13 (p. 201); stats.1859, ch. 314, p. 340.) These statutes reached lands granted to the State by the United States, but not tidelands or submerged lands it had acquired by reason of its sovereignty. (People v. Morrill (1864) 26 Cal. 336, 353-358; Taylor, Patented Tidelands: A Naked Fee ? (1972) 47 State Bar J. 420, 484, fn. 3.) An 1861 statute brought State-owned “tide lands” within the general disposition program, but it reiterated the earlier exception by excluding any lands “located within five miles of the City of San Francisco” and in other areas of San Francisco Bay. (Stats.1861, ch. 356, s 1, p. 363.)

The general disposition program remained in effect pursuant to the 1861 enactment and successor statutes which continued the San Francisco exception. (Stats.1863, ch. 397, ss 1 (p. 591), 30 (p. 601); stats.1867-68, ch. 415 (p. 507), ss 28 (p. 514), 70 (p. 528); stats.1871-72, ch. 425, ss 1, 3 (pp. 622-623).) The entire program was incorporated into the Political Code when it was enacted in 1872. (Pol.Code (1872) ss 3440-34931/2, inclusive.) The exception of tidelands in or near San Francisco was retained in the codification. (Id., s 3488.)

Among the several general disposition statutes in this sequence, those which authorized the sale of tidelands did not mention submerged lands. (BCDC Supp., pp. 428, 434.) None of them enabled the sale of State-owned tideland, in or close to San Francisco, because of the persistent exclusion of these lands from the program as described above. By the mid-1860's, no substantial area of tidelands or submerged lands was available for sale in San Francisco, under the earlier special acts, because of those acts' limited geographic reach. These factors apparently brought about the disposition program next described.

The Second Special-Act Program

This program was conducted pursuant to the 1868 and 1870 acts under which real parties in interest claim title to the 79-acre tract in Berkeley. They were also “special acts” because they again pertained to San Francisco in the first instance and to its close vicinity in the second. They may be summarized at this point as follows:

The 1868 act created the Board of Tide Land Commissioners and invested it with the “charge and disposition of all the salt marsh and tide lands belonging to the State of California, situated in the City and County of San Francisco.” (Stats.1867-68, ch. 543, p. 716.) It directed the Board to survey and map the tidelands along the Bay shoreline, and the adjacent submerged land out to 24 feet of water at lowest tide, within the city and county; to establish the “water line front (sic ) of San Francisco” on the map;⁹ to resurvey, and to remap into lots, the tidelands and submerged lands inshore of the “water line front”; and to sell off, at public auction and upon prescribed terms and conditions, the State's interest in the remapped lots. (Id., ss 4-8, pp. 717-721.)

The 1870 act amended and supplemented the 1868 act (see fn. 5, ante ) by investing the Board of Tide Land Commissioners with the further “charge and disposition” of the State's tidelands, and of its adjacent submerged lands “to nine feet of water at extreme low tide, within five statute miles of the exterior boundaries” of the City and County except for lands theretofore granted to the City of Oakland. (Stats.1869-70, ch. 388, s 1, p. 541.) It further directed the Commissioners to have the affected lands surveyed and subdivided into small lots, reserving certain “canals” and related facilities; to map the results; and to sell the State's interest in the mapped lots, again at public auction and upon terms and conditions similar to those prescribed in the 1868 act. (Id., ss 2-3, pp. 541-543.)

The Board's compliance with the 1870 act produced a series of recorded maps showing subdivisions of small lots, extending seaward from the 1870 line of mean high tide, in northern Alameda County and throughout the middle reaches of San Francisco Bay.¹⁰ Some of these subdivided lots were described in the 1872-75 deeds under which real parties in interest claim title to the 79-acre tract in dispute.

The General Disposition Program In The Courts

We have seen that private titles to lands acquired in the early San Francisco waterfront program were soon held to be free of the tideland trust. (E. g., Eldridge v. Cowell, supra, 4 Cal. 80 at p. 88; Guy v. Hermance, supra, 5 Cal. 73 at p. 75.) This result was not reached in contemporaneous decisions involving tidelands acquired under the general disposition program. The variations among them need not be summarized here, but they raised a continuing question whether the State could pass title to these tidelands free of the trust or at all. (See Comment, supra, 21 UCLA L.Rev. 826 at pp. 832-842; Comment, Private Fills In Navigable Waters: A Common Law Approach (1974) 60 Cal.L.Rev. 225, 244-248.) The question was not resolved until 1913, when the Supreme Court decided People v. California Fish Co., supra, 166 Cal. 576, 138 P. 79.

This decision is still definitive on the entire subject of the tideland trust. (See City of Long Beach v. Mansell, supra, 3 Cal.3d 462 at p. 482, fn. 16, 91 Cal.Rptr. 23, 476 P.2d 423; Note, California's Tideland Trust: Shoring It Up (1971) 22 Hastings L.J. 759, 765-766.) It involved private titles to southern California tidelands acquired under the general disposition program as codified in the 1872 Political Code, and to the adjacent submerged lands. (166 Cal. at pp. 582-583, 138 P. 79.) The question was whether the lands were held subject to the trust. (P. 583, 138 P. 79.) After confirming the origins and reach of the trust in terms of navigation, commerce and fishing (p. 584, 138 P. 79), the court stated:

“It is also settled that in the administration of this trust when the plan or system of improvement or development adopted by the state for the promotion of navigation and commerce cuts off a part of these tidelands or submerged lands from the public channels, so that they are no longer useful for navigation, the state may thereupon sell and dispose of such excluded lands into private ownership or private uses, thereby destroying the public easement in such portion of the lands, and giving them over to the grantee, free from public control and use. . . .” (166 Cal. at p. 585, 138 P. at p. 82.)

The court next referred to the early San Francisco waterfront acts (cited in our text at fn. 7, ante ) as “(t)he most striking instance of the exercise of this power of the absolute disposition,” and described the attendant circumstances: “By these laws the water front line was fixed, cutting off from navigation a large area of . . . (tidelands and submerged lands) . . ., upon which line a sea wall was constructed, and the area landward of this wall was subsequently surveyed into lots and streets, sold into private ownership and filled in for private use. This area now constitutes a large portion of the business section of San Francisco.” The court then cited an array of cases which “recognize the authority of the state to make such absolute disposition of these particular lands” in the interest of navigation. The cases cited included Eldridge v. Cowell, supra, 4 Cal. 80, and Guy v. Hermance, supra, 5 Cal. 73. (166 Cal. at pp. 585-586, 138 P. 79.)

From this comparative basis, the court spelled out its principal holdings: All tidelands and submerged lands conveyed pursuant to the general disposition program had passed from the State subject to the trust, and remained impressed with an easement for trust purposes, because none of the statutes enabling the program had indicated any legislative intent to promote, regulate or control navigation. (166 Cal. at pp. 586-592, 138 P. 79.) A purchase under these statutes therefore acquires the “soil” subject to the public's trust rights and the State's right to possess and use the lands for trust purposes. (P. 596, 138 P. 79.)

In the context of the trust purpose of navigation, “(t)he purchaser will not obtain the absolute ownership, unless the public authorities, by erecting a sea wall or otherwise improving the premises for navigation, exclude his land or part thereof from the public use, and it becomes unnecessary for access or approaches thereto, as in the case of the San Francisco water lots. The public servitude will then be removed from such excluded lands.” (166 Cal. at p. 596, 138 P. at p. 87 (emphasis added). See also p. 599, 138 P. 79.) Until that happens, he may use the servient estate as he sees fit. (P. 599, 138 P. 79.) It does not happen when a “pierhead or bulkhead line” is merely “established” on the lands as the site of such wall. The tidelands and submerged lands in shore from the line remain subject to the use for the trust purpose until “erection of the wall.”¹¹ (Pp. 599-600, 138 P. 79 (quoting People v. Kerber (1908) 152 Cal. 733, 737, 93 P. 878, and citing People v. Williams (1884) 64 Cal. 498, 2 P. 393).)

The court returned to the critical issue of underlying legislative intent by holding as follows: “When the state, in the exercise of its discretion as trustee, has decided that portions of the tideland should be . . . excluded from navigation, and sold to private use, its determination is conclusive upon the courts; but statutes purporting to authorize an abandonment of such public use will be carefully scanned to ascertain whether or not such was the legislative intention, and that intent must be clearly expressed or necessarily implied. It will not be implied if any other inference is reasonably possible. And if any interpretation of the statute is reasonably possible which would not involve a destruction of the public use or an intention to terminate it in violation of the trust, the courts will give the statute such interpretation.” (166 Cal. at p. 597, 138 P. at p. 88 (emphasis added).)

Knudson v. Kearney

According to the full impact of People v. California Fish Co., tidelands acquired pursuant to the unrestricted general disposition program of the nineteenth century¹² are held subject to the tideland trust and the prospect of its exercise by the trustee. (See fn. 11, ante.) Due to the statutory patterns of the time as dissected above, the tidelands and submerged lands in San Francisco Bay were excepted from this broad reach of the decision. According to the language of Knudson v. Kearney, decided less than two years later, they were not affected by People v. California Fish Co. We reach Knudson at last.

The decision involved a dispute between two private parties concerning a small parcel of Alameda County shoreland located within the five-mile radius of the 1870 act. Against a complaint seeking to quiet title, the defendant pleaded his right to possession under a lease from a person who had “obtained title” in an 1873 grant from the Board of Tide Land Commissioners pursuant to the 1868 and 1870 acts. On appeal from a judgment for the defendant, the plaintiff contended that the grant had been inadmissible in evidence because “the state had no power thus to convey absolute title to the tide lands” (emphasis added) by reason of People v. California Fish Co., supra, 166 Cal. 576, 138 P. 79. (Knudson v. Kearney, supra, 171 Cal. 250 at pp. 251-252, 152 P. 541.)

Rejecting this contention in less than two paragraphs, the Knudson court cited People v. California Fish Co. as authority for the State's power to terminate the tideland trust in aid of navigation; stated that the 1868 and 1870 acts had been “enacted in aid of navigation”; and cited decisions reached under the early San Francisco waterfront acts as authority for its conclusion, in the defendant's favor, that title had passed from the State to his lessor “in fee.” (171 Cal. at pp. 252-253, 152 P. 541.)

We perceive no necessity for the summarized statements and, consequently, no authority in the conclusion. The decision itself indicates that the plaintiff was no more than a trespasser against whom the defendant claimed superior rights under his lessor's title. (171 Cal. at p. 251, 152 P. 541.) We have confirmed this, and have identified the essential issue as the right to possession of the land, by referring to pertinent portions of the briefs and record on appeal in the Knudson case.¹³ The issue did not require a determination that the defendant's rights were based on an absolute title when the plaintiff was no more than an occupant of the property without right. (See Civ.Code, s 1006.) No question was presented as to whether the land was subject to a tideland trust interest held by the State, which was not a party to the case. The court's statements concerning the 1868 and 1870 acts, and the consequences of either or both, were accordingly dicta. As such, they do not support the order under review.¹⁴ (People v. Clark (1941) 18 Cal.2d 449, 461, 116 P.2d 56; Childers v. Childers (1946) 74 Cal.App.2d 56, 61-62, 168 P.2d 218; 6 Witkin, Procedure, supra, Appeal, ss 676-677, pp. 4589-4591.)

Alameda Conservation Assn. v. City of Alameda

On the question whether private titles to tidelands and submerged lands acquired under the 1868 and 1870 acts are held subject to the tideland trust, Alameda Conservation is not controlling because it strictly follows Knudson v. Kearney. Dicta remains dicta “no matter how often repeated.” (Childers v. Childers, supra, 74 Cal.App.2d 56 at p. 62, 168 P.2d 218.) Two other cases cited by the Alameda Conservation court do not support its specific conclusions, nor do several other decisions which have cited Knudson. (Comment, supra, 55 Cal.L.Rev. 728 at p. 776, fn. 256.) Real parties in interest have argued that the result reached by the Alameda Conservation court should nevertheless control because it has independent validity apart from Knudson. It is true that the Alameda Conservation court had a tideland trust issue before it, that the State was a party, and that neither fact obtained in Knudson. We have pursued both facts in our examination of facts which are not shown in the Alameda Conservation decision but which appear in the briefs and the record on appeal in the case. (See fn. 13, ante.) Their details do not permit a summary, but the results of our examination have not persuaded us that the decision has the independent validity ascribed to it. We disregard it accordingly. (See also Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937; 6 Witkin, Procedure, supra, s 667, par. (1), p. 4580.)

The Titles Passed Under The 1868 And 1870 Acts

Since Knudson and Alameda Conservation do not control, the final question requires that we interpret the 1868 and 1870 acts independently of both decisions. The question is whether the Legislature intended the acts to effect a termination of the tideland trust as to the lands they reached. The answer does not require the strict scrutiny which People v. California Fish Co. exacts, and which the Knudson court did not make (see People v. California Fish Co., quoted supra, 166 Cal. 576 at p. 597, 138 P. 79), because it is readily available from a contemporaneous legislative source. The bill proposing the 1868 act was referred to a special committee of the Assembly, to whom the Attorney General reported in writing. He flatly informed the committee, and through it the Legislature, that title to the lands proposed to be sold would pass subject to the tideland trust. (2 Appendix to Sen. and Assem. J. (17th Sess. 1868) pp. 5-6.)¹⁵ The committee included his opinion with its report to the Assembly recommending passage of the bill. (Id., pp. 3-10.) Such committee reports are a reliable source of the intent of the Legislature in enacting the measure reported. (Southern Pac. Co. v. Ind. Acc. Com. (1942) 19 Cal.2d 271, 275, 120 P.2d 880; People v. Swinney (1975) 46 Cal.App.3d 332, 342, 120 Cal.Rptr. 148.) We are aware of no source indicating that the 1868 Legislature did not have the Attorney General's advice in mind when it adopted the 1870 act two years later.

Moreover, there are substantive distinctions between the two acts which tend to show that the Legislature enacted them for different reasons. We have observed from the face of the 1868 act that it was designed to enable an extension of the San Francisco waterfront south of the point to which it had been developed pursuant to the earlier special acts affecting San Francisco only. (See fn. 9, ante.) Apparently for this reason, it closely followed the earlier acts by providing for the establishment of a waterfront “line” and for coordination of the inshore survey with the pattern of San Francisco streets. (Stats.1867-68, ch. 543, s 4, p. 718.) In one of the first decisions involving the earlier acts, the coordination factor was relied upon by the court as an indication of the Legislature's intent to terminate the tideland trust forthwith. (Eldridge v. Cowell, supra, 4 Cal. 80 at p. 87; see Comment, supra, 21 UCLA L.Rev. 826 at p. 839 (text at fn. 58).) The appearance of the factor in the 1868 act imports that the Legislature intended a parallel effect.

No such purpose may be seen in the 1870 act, which ranged far across San Francisco Bay (see fn. 10, ante ) but drew no “water front” line, directed the establishment of none, and was utterly silent on the subject of coordination with any community development in the affected area.¹⁶ (See stats.1869-70, ch. 388, s 2, p. 541.) Except for its passing provisions delegating the establishment of “canals and basins . . . for . . . navigation and the wants of commerce” (ibid.), it may not be equated with the 1868 act in terms of either activity. It follows that the purpose of the 1870 act was not necessarily that of its predecessor.

Having drawn this substantive distinction, we have also found clear indications that the Legislature's real purpose in adopting the 1870 act was not the promotion of navigation, commerce, or any other purpose of the tideland trust. Sales of subdivided land pursuant to the 1868 act were a success. (Scott, The Future Of San Francisco Bay (Inst. of Govtal.Studies, U.C.Berkeley 1969) pp. 5-7); BCDC Supp., p. 430.) In his subsequent message to the 1869-70 Legislature, Governor H. H. Haight stated that its “results have been quite satisfactory,” and that the revenues derived from it would provide a desirable source of support for the University of California. (Assem. J. (18th Sess. 1869) p. 49.) Other sources confirm that revenue, not the purposes of the tideland trust, motivated the Legislature to enter into the wide-ranging subdivision and sale program embodied in the 1870 act. (Scott, loc. cit.; BCDC, loc. cit.; Comment, supra, 60 Cal.L.Rev. 225 at p. 252, fn. 79.)

In sum, we conclude that the titles conveyed to private grantees under both acts were passed subject to the tideland trust.

THE DETERMINATION RELATIVE TO COLLATERAL ESTOPPEL

As respondent court also made clear in its memorandum decision, it reached this determination upon the basis that the State's position in the Alameda Conservation case was contrary to the one it advances now. The determination was made sua sponte ; real parties in interest had not urged it, and the parties apparently did not anticipate it. It occurs to us that any analysis of the State's position on the former appeal presents a partial question of fact which does not permit this determination to stand under the summary judgment law. (Code Civ.Proc., s 437c.) A related problem arises because the court's determination disaffects the City of Berkeley, which was not a party in Alameda Conservation. These problems need not detain us. The essential issues in this proceeding are of sufficient public importance that the doctrine of collateral estoppel should not be applied against either petitioner. (See fn. 10, ante ; Scott, op. cit. supra, pp. 6-8; Marks v. Whitney (1971) 6 Cal.3d 251, 257, 98 Cal.Rptr. 790, 491 P.2d 374; Chern v. Bank of America (1976) 15 Cal.3d 866, 872, 127 Cal.Rptr. 110, 544 P.2d 1310.)

These conclusions remit us to petitioners' successive contentions, pleaded in their respective answers below, that the State's interest in the Berkeley tract, as its trustee, passed to the City of Berkeley under the 1913 grant from the Legislature. (See the text at fn. 6, ante.) We cannot reach this point because it involves factual matters not shown on real parties' motion for summary judgment. Among them is the fact that most of the tract has been filled at some unknown point in time since the 1870's. The fact raises substantial issues which depend upon when it was filled, by whom, and the attendant circumstances. (See People v. Williams, supra, 64 Cal. 498 at p. 499, 2 P. 393; People v. Kerber, supra, 152 Cal. 733 at p. 737, 93 P. 878; People v. California Fish Co., quoted supra, 166 Cal. 576 at pp. 599-600, 138 P. 79. See also City of Long Beach v. Mansell, supra, 3 Cal.3d 462 at pp. 487-501, 91 Cal.Rptr. 23, 476 P.2d 423.) Issues upon this fact have been joined in the pleadings. Those issues and others will be tried when the cause is remanded.

Let a peremptory writ of mandate issue as prayed.

FOOTNOTES

1.  We occasionally refer to petitioners as the “City” and the “State,” respectively. The State has appeared, in respondent court and in this proceeding, through the State Lands Commission.

2.  The petition for a writ of mandate was initially filed in the Supreme Court, which transferred it to this court. We denied it. The Supreme Court granted a petition for hearing, transferred the cause to itself, and retransferred it to this court with directions to issue an alternative writ of mandate. We complied. It has thus been determined that petitioners are without an adequate remedy in the ordinary course of law. (People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 492, 96 Cal.Rptr. 553, 487 P.2d 1193; 5 Witkin, California Procedure (2d ed. 1971) Extraordinary Writs, s 94, pp. 3869-3870.)

3.  This recital, and others which follow, involve a wide range of historical and geographical matters which are subject to judicial notice. Some of them were called to the attention of respondent court in the proceedings upon real parties' motion for summary judgment. Others have been cited in the present proceeding. We consequently resort to judicial notice on a broad scale throughout this opinion. (Evid.Code, ss 451 (subd. (f)), 452 (subds. (g), (h)), 453, 459.) The parties have been placed on notice of our intention to do this.

4.  “Tidelands,” properly speaking, are those lands lying between the lines of mean high tide and mean low tide. “Submerged lands” are properly lands which lie seaward of mean low tide and are not uncovered in the ordinary tidal ebb. (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 478, fn. 15, 91 Cal.Rptr. 23, 476 P.2d 423.)

5.  Real parties expressly cited the 1868 and 1870 laws in their amended complaints. The first is cited as the “act of March 30, 1868,” and is entitled “An act to survey and dispose of certain salt marsh and tide lands belonging to the State of California.” (Stats.1867-68, ch. 543, p. 716.) The second, cited as the “act of April 1, 1870,” is entitled “An act supplementary to and amendatory of” the first one. (Stats.1869-70, ch. 388, p. 541.) We refer to them on occasion as the “1868 act” and the “1870 act,” respectively.

6.  In the first of these enactments, all of which the State expressly cited, it had “granted to the City of Berkeley, a municipal corporation of the State of California, . . . all the right, title and interest of the State of California, held by said state by virtue of its sovereignty, in and to all the salt marsh, tide and submerged lands, whether filled or unfilled, within the present boundaries of said city, and situated below the line of mean high tide . . . , to be forever held by said city . . . in trust” for specified purposes and upon explicit conditions. (Stats.1913, ch. 347, s 1, p. 705 et seq.) The later enactments cited made various changes in the purposes and conditions of the 1913 grant, but not in the language just quoted. (Stats.1915, ch. 534, p. 901; stats.1917, ch. 596, p. 915; stats.1919, ch. 517, p. 1089; stats.1961, ch. 2180, p. 4516; stats.1963, First Ex.Sess.1962, ch. 55, p. 343.)

7.  A few contemporaneous special acts made similar but less explicit grants to other named coastal cities. (See, e. g., stats.1851, ch. 37, p. 305 (Martinez); stats.1851, ch. 83, p. 348 (Benicia); stats.1852, ch. 107, p. 180 (Oakland); stats.1857, ch. 82, p. 76 (Eureka).) Some of these enactments have been sporadically cited in this proceeding, but they are not otherwise involved.

8.  The “Supplement” cited here is part of a report made to the Governor and the Legislature by the San Francisco Bay Conservation and Development Commission pursuant to 1965 legislation which established the Commission for the purpose of regulating use and development of the Bay. (Stats.1965, ch. 1162, s 1, pp. 2940-2941, 2946.) We hereinafter cite the Supplement as “BCDC Supp.”

9.  The location of the new waterfront line at 24 feet of water represented engineers' judgment of the maximum depth to which the lands within should be filled or at which piers should be built to provide access for deep-water ships. (BCDC Supp., p. 430.) The language of the 1868 act itself shows that the new line was to be an extension, south from Second Street, of the “permanent water front” line established in the first of the special San Francisco waterfront acts. (See stats.1867-68, ch. 543, s 4, p. 718, citing the “Act” of March 26, 1851.)

10.  In the 1870's, the “exterior boundaries” of the City and County of San Francisco were on the floor of the Bay and well offshore from the San Francisco upland. Their configuration extended the 5-mile reach of the act for substantially greater distances away from the upland. Its water-depth specification (“nine feet . . . at extreme low tide”) limited its reach to the shallower waters on the periphery of the Bay. In consequence of these factors, the subdivisions mapped by the Board, and still of record, are located along the shoreline of San Mateo County as far south as the present location of San Francisco International Airport; along the Marin County shoreline between Sausalito and the present site of Hamilton Air Force Base; and along the East Bay shoreline from Oakland to San Leandro on the south and from Oakland to San Pablo on the north. (See BCDC Supp., p. 432.) The subdivided lots run in rows which are uninterrupted except for “canals” mapped by the Board at various points. It was shown on real parties' motion that the subdivisions now include approximately 36 square miles of the Bay floor below the 1870 line of mean high tide, and that two-thirds of this area (approximately 24 square miles) is covered by the waters of the Bay.

11.  We perceive in this language a clear holding that a State grant of tidelands, even if made under a statutory program which contemplates improvements in aid of navigation, does not operate to vest absolute title in a private grantee until the improvements are made. This means that absolute title vests when the trust is exercised on the lands, and not when the grant is made. (See People v. Williams, supra, 64 Cal. 498 at p. 499, 2 P. 393; People v. Kerber, supra, 152 Cal. 733 at pp. 736-737, 93 P. 878; Atwood v. Hammond (1935) 4 Cal.2d 31, 40, 48 P.2d 20.) Various writers have expressed divergent views on this point. (See Comment, supra, 21 UCLA L.Rev. 826 at pp. 844-845, fn. 90.)

12.  This reference is to the scheme in which the State disposed of tidelands pursuant to the successive statutes which emerged as sections 3440-34931/2 of the 1872 Political Code. The program was substantially “unrestricted” until the people imposed limitations upon the use of tidelands, and their disposition by the State, in sections 2 and 3 of article XV of the California Constitution (now sections 3 and 4 of article X). We mention this because petitioners rely in part upon a retroactive effect claimed for either or both of the constitutional provisions added in 1879. Within the limited context of the present proceeding, in which the pertinent private titles originated prior to 1879, we do not reach this issue of retroactivity.

13.  We may do this in aid of distinguishing ratio decidendi from dictum. (See 6 Witkin, California Procedure (2d ed. 1971) Appeal, s 677, p. 4591 and cases there cited. See also fn. 3, ante, relative to judicial notice.) We have also done it in reviewing Alameda Conservation Assn. v. City of Alameda, supra, 264 Cal.App.2d 284, 70 Cal.Rptr. 264.

14.  This analysis disparaging the authority of Knudson has apparently not been made by any court. It has nevertheless been suggested. (See County of Orange v. Heim (1973) 30 Cal.App.3d 694, 725, fn. 21, 106 Cal.Rptr. 825 (characterizing a recent Supreme Court citation of Knudson as “a dictum” in itself). See also Comment, San Francisco Bay: Regional Regulation For Its Protection And Development (1967) 55 Cal.L.Rev. 728, 776, fn. 256.)

15.  “ . . . (T)he State may, through . . . properly appointed agents, preserving the mode laid down by her law-makers, vest the title of the State in others through the action of the Commissioners. The State, in making this disposition of those lands, passes the title with the same disability which obtains with the State. Her purchaser can acquire from the State no such title as will enable the owner or holder of them to use them to the detriment, destruction or prejudice of commerce or navigation. For such uses the public have an easement, and the Government retains and has the authority to enforce the right. . . . ” (Ibid.)

16.  There was substantial community development, and some waterfront activity, along the East Bay shoreline in and before 1870. (Bowman, Birthdays of Urban Communities (1952) 31 Calif.Hist.Soc'y Quarterly 328.)

RATTIGAN, Associate Justice.

CALDECOTT, P. J., and WILSON (Assigned by the Chairperson of the Judicial Council), J., concur.