AMIGOS DE BOLSA CHICA INC v. SIGNAL PROPERTIES INC (1983)

OPINION

These are appeals, consolidated for all purposes by order of this court, from purported judgments of dismissal following the trial court's sustaining demurrers without leave to amend to certain counts of plaintiffs' first and second amended complaints.

Plaintiffs are four individuals and an organization called Amigos de Bolsa Chica.   They seek to invalidate a boundary and land exchange agreement made pursuant to Public Resources Code sections 6307, 6336 and 6357 settling various disputed claims between defendant State of California and defendants Signal Properties, Inc., Signal Bolsa Corporation, Signal Landmark, Inc. and Signal Oil and Gas Company, now known as Aminoil U.S.A., Inc.   For convenience the corporate defendants will be referred to collectively as the Signal companies and defendants State of California, the State Lands Commission, the California Department of Fish and Game and the Attorney General of California will be referred to collectively as the State.   All statutory references will be to the Public Resources Code unless otherwise specified.

Plaintiffs would limit review to the facts alleged by them in their first and second amended complaints, pointing out that in essence we are reviewing a judgment of dismissal following the sustaining of a general demurrer.   However, the trial court was requested to and did take judicial notice of numerous public documents and records, and the appropriate rule is that “in the consideration of a pleading the courts must read the same as if it contained a statement of all matters of which they are required to take judicial notice, even when the pleading contains an express obligation to the contrary.”   (Chavez v. Times-Mirror Co. (1921) 185 Cal. 20, 23, 195 P. 666;  accord:  Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604, 176 Cal.Rptr. 824;  Dryden v. Tri-Valley Growers (1977) 65 Cal.App.3d 990, 997, 135 Cal.Rptr. 720;  see 3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, § 328, p. 1996, and cases there cited.)

The property involved (Bolsa Chica) is an area of slightly less than 2,000 acres in Orange County and, generally speaking, is bounded by the Pacific Ocean on the west and the City of Huntington Beach to the north, south and east.   The property is largely separated from the ocean by Pacific Coast Highway and most of the property is cut off from tidal action by a dam built in 1899.   However, historically, Bolsa Chica was subject to the ebb and flow of the tides and some of the area may have been submerged lands.

Prior to the settlement agreement the Signal companies claimed record fee title to all of Bolsa Chica.   Their title was deraigned through two rancho patents confirmed by the United States Government in 1874 and 1877 and two tideland patents issued by the State of California in 1899 and 1903.   The great majority of Bolsa Chica, approximately 1450 acres, was embraced within the meander lines set forth in the survey incorporated in the rancho patents.   The City of Huntington Beach was first incorporated in 1909 and at the time the state tidelands patents were issued there was no incorporated town or city within two miles of Bolsa Chica.

The State did not contest the validity of either the rancho patents or the state tidelands patents.   However, the State did dispute the boundary claimed by the Signal companies with respect to the property conveyed by the rancho patents.   The State also contended that approximately 526 acres of the property conveyed by the state patents were tidelands subject to public trust easements for commerce, navigation and fishing.¹  The State further contended that of the 526 acres some 63 fragmented acres were submerged lands in their last natural condition and were thus not effectively conveyed into private ownership by the tideland patents but continued to be owned in fee by the State.   The State of course also claimed to own the mineral rights underlying those 63 acres.   The Signal companies contended to the contrary in each instance.

In 1970 the Signal companies contacted the State Lands Commission seeking a settlement of all state claims so that they could proceed with planning for development of the area.   To determine what use of Bolsa Chica would best serve the public interest, the State formed an Interagency Task Force on Bolsa Bay.²  The task force began by developing objectives for public use of the area.   The primary objective was to establish a salt water marsh ecological system.

 Extensive investigation and studies were made in an effort to determine the last natural positions of the mean high and mean low water lines in Bolsa Chica.   This task was exceedingly difficult for a number of reasons.   The survey on which the rancho patents were based did not close properly, the survey markers and critical monuments had disappeared over the years;  no precise relocation of boundary had been made since the 1860s;  and, in fact, no fixed line boundary had ever been made.   Similar problems also existed with respect to the boundaries of the state tideland patents.   No contemporary map of the ordinary low tide line was made at the time of the patents, and the patents showed no area to be excluded as submerged lands.   In addition, in the 40 years following construction of a dam in 1899 artificial and natural changes continued.   Fresh water ponding areas were constructed and major fresh water channels were dredged within the area.   Major floods occurred which deposited large amounts of silt within the area, and with the commencement in 1940 of oil production, a pattern of service roads was constructed.   Additionally, housing was constructed over major portions of the northerly and easterly sections of the rancho area.

The configuration of the lands reasonably subject to claims by the State, whether easement or fee, was fragmented and irregular (finger-like) in shape.   The task force concluded that even if the State were able to judicially establish its asserted interest in the area, the configuration of lands as to which it had an interest would not be desirable either for a wildlife habitat or for recreational uses.   It concluded that public trust purposes would be best served if a consolidated parcel of property could be obtained.   Based on this advice, the State's negotiators determined that not only was a boundary settlement necessary but also an exchange.

During the negotiations and after agreement in principle was reached, the task force began a series of more than 25 meetings throughout Orange County with numerous representatives of conservation and civic organizations (e.g., the Sierra Club, the Audubon Society, the Environmental Council, etc.) and members of the public.   During this period, considerable newspaper publicity was had in the major Orange County newspapers.

After more than two years of investigation, study and negotiation, an agreement, entitled “Boundary Settlement and Exchange Agreement Regarding Lands in the Bolsa Chica Area, Orange County, California” (the Settlement Agreement), was concluded on January 25, 1973, between the State Lands Commission and the Signal companies.   The agreement was approved and executed by the Governor of the State of California on March 15, 1973, and the documents implementing the agreement were recorded August 17, 1973.   The major terms of the Settlement Agreement were as follows.

 1. The location of the historic last natural ordinary high water mark, contended by the State to mark the boundary between the rancho lands and the tideland patent lands, was settled and a precise survey line adopted.

2. Fee title to 300 acres theretofore exclusively occupied by the Signal companies and its predecessors and 27.5 acres beneath Pacific Coast Highway were conveyed to the State by the Signal companies.

3. The State received from the Signal companies without payment of rent a 14-year lease to use 230 acres of land adjacent to the 300 acres conveyed in fee to the State together with an option to acquire fee title to the 230 acres without additional payment if a navigable ocean entrance channel were constructed by the State during the term of the lease.

4. The State received the mineral rights in a consolidated 70-acre parcel in exchange for its claim to the mineral rights underlying the 63 fragmented acres of irregular configuration it claimed to own in fee.   The State received a monetary settlement of past oil revenue claims and an agreed share of future oil revenue from the area.

5. The State surrendered to the Signal companies by a waiver and release and a quitclaim form of patent its claims of sovereign interests in the remainder of Bolsa Chica, primarily its claim of fee ownership of the 63 acres of historic submerged lands and its claim of public trust easements over the additional 463 acres of historic tidelands.   However, of the approximately 63 acres claimed as being submerged lands, approximately 45 acres are within the 300-acre parcel to which the State obtained fee ownership and almost 18 acres lie within the 230-acre parcel to which the State obtained a 14-year lease with option to acquire.   And, of course, some of the claimed 463 acres of public trust easement lay within the 300 acres conveyed to the State in fee.

6. Except as to the 300 acres to which the State acquired fee title and to which the public trust attaches by virtue of the Settlement Agreement (see Pub.Resources Code, § 6307), the public trust easement for commerce, navigation and fishing—to the extent it may have burdened the lands confirmed in the Signal companies—was specifically terminated, the State Lands Commission having found that the area:  “A. Has been cut off from navigable waters, improved, filled and reclaimed by [the] Signal companies and their predecessors in interest;  [and] [¶] B. Has thereby been severed from the public channels and waterways and is no longer available or useful or susceptible of being used for commerce, navigation and fishing, and is no longer in fact tidelands or submerged lands and therefore is freed from such public trust.”

 In the years following execution of the Settlement Agreement Signal companies developed several residential subdivisions within the area and the State established an ecological reserve and completed substantial work on the project, including construction of levees, islands, water control structures and public access facilities involving capital outlays in excess of $697,000.   An additional $212,300 was budgeted by the State in fiscal year 1981–1982 for further development of the Bolsa Chica ecological reserve.

In 1979, six years after the Settlement Agreement, plaintiffs filed the present action.

Appealability

Preliminarily, there is a severe question whether there is any appealable judgment in this case.

On March 30, 1979, plaintiffs filed a first amended complaint comprised of twelve counts.   Both the State and the Signal companies demurred.   The court sustained the demurrers with leave to amend as to the first, second, tenth, eleventh and twelfth counts.   The demurrers were sustained without leave to amend as to counts three through nine.   The court then made an order purporting to sever counts three through nine from the remaining counts still pending and thereafter entered an order of dismissal of counts three through nine stating that the dismissal should constitute a judgment in accordance with section 581d of the Code of Civil Procedure.   On January 8, 1980, plaintiffs filed a notice of appeal from the order of dismissal.

Thereafter plaintiffs filed a second amended complaint consisting of nine counts, largely repetitive of and raising the same legal issue as the first amended complaint.   Again both the State and the Signal companies demurred.   Their demurrers to the ninth count was overruled;  their demurrers to the first and second counts were sustained with leave to amend;  their demurrers to the third through eighth counts were sustained without leave to amend.   Again the court made an order purporting to sever counts three through eight and ordered those counts dismissed, stating that the dismissal should constitute a judgment in accordance with Code of Civil Procedure section 581d.   On June 30, 1980, plaintiffs filed a notice of appeal from this purported judgment.

A motion for consolidation of the two pending appeals was granted by this court on September 8, 1980.

Thereafter plaintiffs filed in the trial court a third amended complaint consisting of three counts, apparently amending counts one and two and restating count nine of the second amended complaint.   On December 19, 1980, pursuant to stipulation of the parties the third amended complaint and a cross-complaint filed by the Signal companies were voluntarily dismissed without prejudice pending determination of the two appeals.

In this court the parties did not raise the issue of appealability of the purported judgments, but the matter is jurisdictional and we requested supplemental letter briefs addressed to that question.   All parties urge that we find the orders appealed from were appealable or in the alternative, that we find or invent some means of reviewing the issues posed because of their public nature and the length of time the purported appeals have been pending.   We have concluded that by treating the second appeal as being validated by the subsequent dismissal of the third amended complaint and the Signal companies' cross-complaint, the second appeal may be saved.   However, not only was the first appeal taken from a nonappealable order, the second amended complaint superseded the first amended complaint so that the latter is not reviewable on the second appeal, and there is no imaginable way to save the first appeal.   Since the first amended complaint was superseded by the second, no attempt can be justified to review it by treating the first appeal as a petition for an appropriate prerogative writ.

 The orders of the trial court purporting to sever the counts of the first and second amended complaints as to which demurrers had been sustained without leave to amend and to enter purported judgments dismissing those counts so that they could be immediately subjected to appellate review were made at the urging of one or more of the parties, apparently on the authority of Schonfeld v. City of Vallejo (1975) 50 Cal.App.3d 401, 123 Cal.Rptr. 669.   However, as this court explained and held in Armstrong Petroleum Corp. v. Superior Court (1981) 114 Cal.App.3d 732, 736–737, 170 Cal.Rptr. 767, any purported severance of one or several counts of a complaint from one or more other counts involving the same parties for the sole purpose of obtaining piecemeal appellate review is not authorized by Code of Civil Procedure section 1048 which authorizes severance for separate trial in appropriate cases, is in excess of the Superior Court's authority, and is violative of the one-final-judgment rule.

As we pointed out, in Armstrong Petroleum “․ the Schonfeld court specifically recognized, the Supreme Court has expressly held that ‘ “[t]here cannot be a separate judgment as to one count in a complaint containing several counts [between the same parties].   On the contrary, there can be but one judgment in an action no matter how many counts the complaint contains.   [Citations.]’ ”  (50 Cal.App.3d at p. 417, 123 Cal.Rptr. 669, citing Bank of America v. Superior Court (1942) 20 Cal.2d 697, 701 [128 P.2d 357].)   The Schonfeld court also expressly recognized that ‘even though a cause of action is severed and tried separately, pursuant to Code of Civil Procedure section 1048, a separate judgment is not necessarily the result.   [Citations.]’  (50 Cal.App.3d at p. 417, 123 Cal.Rptr. 669, citing National Electric Supply Co. v. Mount Diablo Unified School Dist. (1960) 187 Cal.App.2d 418, 422 [9 Cal.Rptr. 864].)   The judgments that are appealable are specified by statute.  (See Code Civ.Proc., § 904.1.)  Code of Civil Procedure section 1048 provides no authority for a trial court to enlarge the class of appealable judgments by ordering a ‘severance.’ ”  (Armstrong Petroleum Corp. v. Superior Court, supra, 114 Cal.App.3d at p. 737, 170 Cal.Rptr. 767.)

 Thus the order in this case dismissing counts three through nine of the first amended complaint was not appealable, and the purported appeal therefrom was ineffective.

 The same analysis and reasoning would lead to the conclusion that the notice of appeal from the order dismissing counts three through eight of the second amended complaint was similarly ineffective.   And at the time it was filed, indeed it was.   However, subsequently all the remaining counts, then embodied in a third amended complaint, as well as the Signal companies' cross-complaint were dismissed, albeit without prejudice, so that nothing remained pending in the trial court.   In the interests of justice an appellate court is permitted to treat a notice of appeal that was invalid at the time filed because of the continued pendency of other counts or a cross-complaint between the parties as having been validated by a subsequent dismissal of the other counts or cross-complaint so that the entire controversy has been disposed of so far as the trial court is concerned.  (See 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, §§ 49, 50, 51, pp. 4064–4066.)

 The only real obstacle to validating the second notice of appeal in this fashion is the general rule that the filing of an amended complaint supersedes the original complaint entirely, precluding appellate review of the original complaint.  (See e.g., Schneider v. Brown (1890) 85 Cal. 205, 206, 24 P. 715;  Rolley, Inc. v. Merle Norman Cosmetics (1954) 129 Cal.App.2d 844, 852, 278 P.2d 63;  3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, § 1034, pp. 2613–2614.)   Under the stated rule the filing of the second amended complaint, which was largely repetitive of and based upon the same legal theories as the first amended complaint, clearly precludes appellate review of the allegations of the first amended complaint at this juncture.   However, the third amended complaint contained only three counts and those three counts related only to the three counts of the second amended complaint as to which demurrers had not been sustained without leave to amend.   In other words the third amended complaint did not purport to embody the charging allegations contained in counts three through eight of the second amended complaint.   Since the third amended complaint was subsequently dismissed, there is no good reason now to hold that counts three through eight of the second amended complaint were superseded by the third amended complaint so as to preclude appellate review of the dismissal of those counts.

  We conclude that counts three through eight of the second amended complaint are properly before us on appeal.   The appeal from the dismissal of counts three through nine of the first amended complaint (4 Civil 23146) will be dismissed.

The Merits

Although they are in part based on different factual allegations and seek different forms of relief, the third through eighth counts of plaintiffs' second amended complaint depend upon the invalidity of the Settlement Agreement.   Plaintiffs contend the agreement is invalid because it offends section 3 of article X of the California Constitution prohibiting alienation of tidelands within two miles of an incorporated town or city;  or because it violates the common law tidelands public trust doctrine incorporated into section 4 of article X of the California Constitution;  or because it constituted an unconstitutional gift of public property in violation of article XVI, section 6, of the California Constitution;  or because it did not satisfy the requirements of Public Resources Code section 6307, the statute authorizing it;  or because Public Resources Code section 6307 is itself unconstitutional insofar as it conflicts with California Constitution, article X, section 3.

 The Settlement Agreement was a contract negotiated and executed by the authorized state officers and agencies and for which the State received substantial consideration;  the agreement may not now be invalidated as an unconstitutional gift of public property simply because plaintiffs are dissatisfied with the bargain struck.  (People v. City of Long Beach (1959) 51 Cal.2d 875, 881–882, 338 P.2d 177;  California Sch. Employees Assn. v. Sunnyvale Elementary Sch. Dist. (1973) 36 Cal.App.3d 46, 59, 111 Cal.Rptr. 433.)   We need not consider directly plaintiffs' other claims that the Settlement Agreement is invalid except to the extent they bear upon the question of whether or not plaintiffs' attack on the agreement six years after it was made is barred by the statute of limitations.   The trial court determined it is.   We have reached the same conclusion.

The State Lands Commission is authorized by sections 6336 and 6357 of the Public Resources Code to enter into agreements fixing the boundary lines of tidelands or submerged lands and section 6307 authorizes the Commission in circumscribed circumstances to enter into an agreement for the exchange of such lands in aid of commerce, navigation and fisheries.³  As previously indicated, the Settlement Agreement between the State and the Signal companies was made pursuant to these statutory provisions.   Section 6341 provides in relevant part:  “Any boundary line agreement entered into pursuant to Section 6336 or 6357 ․ or any exchange of land made pursuant to Section 6307, shall be conclusively presumed to be valid unless held to be invalid in any appropriate proceeding in a court of competent jurisdiction to determine the validity of such boundary line agreement ․ or exchange commenced prior to January 1, 1977, or within one year after the execution and recording of such boundary line agreement ․ or exchange, whichever is later.”

 Such a provision is in effect a statute of limitations.  (See Saranac Land & Timber Co. v. Roberts (1900) 177 U.S. 318, 323–324 [20 S.Ct. 642, 645, 44 L.Ed. 786, 790];  Turner v. People of the State of New York (1897) 168 U.S. 90, 93–94 [18 S.Ct. 38, 40, 42 L.Ed.2d 392, 393];  Sears v. County of Calaveras (1955) 45 Cal.2d 518, 520, 289 P.2d 425;  McCaslin v. Hamblen (1951) 37 Cal.2d 196, 198, 231 P.2d 1.)   And it is this statutory provision as well as the general four-year statute of limitations set forth in Code of Civil Procedure section 343 ⁴ that was determined by the trial court to bar plaintiffs' action.   Since the Settlement Agreement was executed in January 1973, plaintiffs had until January 1977 to institute an action challenging validity of the agreement.   However, their action was not instituted until 1979.

Somewhat dramatically, plaintiffs assert that application of the statute of limitations would eliminate the entire public trust doctrine and permit the State to “continue to convey thousands of priceless acres of California coastline ․ to private corporations.”   The substance of the contention, however, is that the recognition of a statute of limitations is inconsistent with the public trust doctrine, that the State may not enact a statute of limitations that will have the effect of freeing former tidelands or submerged lands of public trust easements.

 Initially we observe that it is not the statute of limitations that has the effect of terminating the public trust;  it is the affirmative action of the State taken expressly for that purpose that produces that result.   In any event, however, we do not agree there is an inconsistency between section 6341 and the public trust doctrine where, as here, the State in furtherance of trust purposes has taken affirmative action to terminate the trust.   The State is permitted under appropriate circumstances in furtherance of the trust to terminate the public trust with respect to a particular parcel of property;  its ability to do so is vital to its proper administration of the public trust;  and its enactment of a statute of limitations in aid of its administration of the public trust is wholly consistent with the public trust doctrine.

Tide and submerged lands are specially held “protected” lands;  they are held by the State “in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties ․  The control of the State ․ can never be lost, except as to such parcels as are used in promoting the interests of the public therein;  or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining.”  (Illinois Central R. Co. v. State of Illinois (1892) 146 U.S. 387, 452–453 [13 S.Ct. 110, 118, 36 L.Ed. 1018, 1042];  see also National Audubon Society v. Superior Court, supra, 33 Cal.3d at pp. 433–434, 189 Cal.Rptr. 346, 658 P.2d 709;  City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 482, 91 Cal.Rptr. 23, 476 P.2d 423;  People v. California Fish Co. (1913) 166 Cal. 576, 597, 138 P. 79.)

 Recently, in reviewing the authority and obligations of the state as the administrator of the public trust, the California Supreme Court stated:  “[T]he dominant theme is the state's sovereign power and duty to exercise continued supervision over the trust.   One consequence ․ is that parties acquiring rights in trust property generally hold those rights subject to the trust, and can assert no vested right to use those rights in a manner harmful to the trust.”  (National Audubon Society v. Superior Court, supra, 33 Cal.3d at p. 437, 189 Cal.Rptr. 346, 658 P.2d 709;  see also City of Los Angeles v. Venice Peninsula Properties, supra, 31 Cal.3d at p. 291, 182 Cal.Rptr. 599, 644 P.2d 792.)   Thus, a conveyance of title to private persons does not necessarily free the property from the trust;  unless the conveyance was made for the purpose of promoting trust goals and the intent to terminate the trust is clear, the grantee takes title subject to the rights of the public.  (National Audubon Society v. Superior Court, supra, 33 Cal.3d at pp. 437–439, 189 Cal.Rptr. 346, 658 P.2d 709;  State of California v. Superior Court (Lyon) (1981) 29 Cal.3d 210, 226, 172 Cal.Rptr. 696, 625 P.2d 239;  City of Berkeley v. Superior Court, supra, 26 Cal.3d at pp. 524–525, 162 Cal.Rptr. 327, 606 P.2d 362;  Marks v. Whitney, supra, 6 Cal.3d at p. 261, 98 Cal.Rptr. 790, 491 P.2d 374;  People v. California Fish Co., supra, 166 Cal. at pp. 598–599, 138 P. 79.)

 However, the administration of the public trust is committed to the state.  (Marks v. Whitney, supra, 6 Cal.3d at p. 260, 98 Cal.Rptr. 790, 491 P.2d 374;  City of Long Beach v. Mansell, supra, 3 Cal.3d at pp. 477, 482, fn. 17, 91 Cal.Rptr. 23, 476 P.2d 423;  People v. California Fish Co., supra, 166 Cal. at p. 597, 138 P. 79;  County of Orange v. Heim (1973) 30 Cal.App.3d 694, 707, 106 Cal.Rptr. 825.)   The power of the state to control and utilize trust properties when acting within the terms of the trust is absolute.  (Marks v. Whitney, supra;  People v. California Fish Co., supra.)   The powers of the state are commensurate with the duties of the trust;  the state has the implied power to do everything necessary to the proper administration of the trust.  (City of Long Beach v. Mansell, supra, 3 Cal.3d at p. 482, 91 Cal.Rptr. 23, 476 P.2d 423;  People v. California Fish Co., supra.)   Accordingly, “the state in its proper administration of the trust may find it necessary or advisable to cut off certain tidelands from water access and render them useless for trust purposes.   In such a case the state through the Legislature may find and determine that such lands are no longer useful for trust purposes and free them from the trust.   When tidelands have been so freed from the trust—and if they are not subject to the constitutional prohibition forbidding alienation—they may be irrevocably conveyed into absolute private ownership.”  (City of Long Beach v. Mansell, supra, 3 Cal.3d at p. 482, 91 Cal.Rptr. 23, 476 P.2d 423;  People v. California Fish Co., supra, 166 Cal. at p. 585, 597, 138 P. 79;  see Illinois Central R. Co. v. State of Illinois, supra, 146 U.S. at pp. 453, 455–456 [13 S.Ct. at pp. 118–119, 36 L.Ed. at pp. 1042, 1043];  National Audubon Society v. Superior Court, supra, 33 Cal.3d at p. 440, 189 Cal.Rptr. 346, 658 P.2d 709;  City of Berkeley v. Superior Court, supra, 26 Cal.3d at p. 523, 162 Cal.Rptr. 327, 606 P.2d 362;  County of Orange v. Heim, supra, 30 Cal.App.3d at p. 717, 106 Cal.Rptr. 825.)

It is apparent that both sections 6307 and 6341 were enacted pursuant to and in furtherance of the state's authority and duty to administer the trust.   Section 6307 permits the exchange of tidelands or submerged lands and termination of the trust as to the lands exchanged only in furtherance of trust purposes and only when the state has expressly made the required findings.   (See fn. 3, ante.)  Section 6341 does not preclude public challenge to the validity of an exchange or boundary agreement;  it simply prescribes the period in which such challenge must be instituted.   As defendants point out, the statute of limitations provided in section 6341 is vital to the State's ability properly to administer the trust.   Unless an exchange can be made immune to attack after a reasonable period of time, no exchange of lands, no matter how beneficial to public trust purposes, could ever be effected as a practical matter.

Plaintiffs refer us to a number of cases they contend establish that no statute of limitations can ever bar the rights of the public in respect to trust property.  (E.g., People v. California Fish Co., supra, 166 Cal. 576, 138 P. 79;  People v. Southern Pac. R.R. Co. (1913) 166 Cal. 614, 138 P. 94;  People v. Kerber (1908) 152 Cal. 731, 93 P. 878.)   In the cases cited, however, it was the state itself which sought either to avoid a conveyance or to establish that the property was still subject to the public trust and in none of the cases had the state or its properly authorized representatives taken affirmative action expressly to terminate the trust as to the property conveyed in furtherance of trust purposes.   Indeed, in People v. Kerber, the leading case on the point, the court expressly recognized that prior state action to terminate the trust would make all the difference.   After stating the rule, which it found controlling, that “ ‘[t]here can be no adverse holding of such land which will deprive the public of the right thereto or give title to the adverse claimant, or create a title by virtue of the statute of limitations,’ ” the court stated:  “It is true that the public use may, by some lawful act of public authority, be discontinued or abandoned and that, in that event, the property may thereupon cease to be protected by this rule.   If the title is at that time held by the state, it will thereafter hold it as a proprietor and not as a public agent or sovereign in charge of a public use.   If an adverse possession can be maintained, or if the statute of limitations can run against the state, in regard to such proprietary property, it will begin from the date when the public use ceased and not before.   If the power is left to the legislature, it may then provide for the sale of such property in order that it may become the subject of private ownership.   But, as was said in Yolo County v. Barney, 79 Cal. 375 [12 Am.St.Rep. 152, 21 P. 833], the fact that the public authorities in charge of the property have power to discontinue or abandon the public use and sell the property for private use, does not affect the rule above cited, nor enable an occupant to gain it by adverse possession before that event occurs, or to invoke the statute of limitations to protect his possession against the state.”  (152 Cal. at 734–735, 93 P. 878;  emphasis added.)  (See also additional discussion of these cases, infra.)

Plaintiffs also place some reliance on Marks v. Whitney, supra, 6 Cal.3d 251, 98 Cal.Rptr. 790, 491 P.2d 374, but without justification.   The court did not discuss the statute of limitations in that decision;  however, in upholding the right of a member of the public to assert trust claims, the court made clear that that right was dependent upon the absence of affirmative state action to terminate the trust.   It stated:  “We are not here presented with any action by the state or the federal government modifying, terminating, altering or relinquishing the jus publicum in these tidelands or in the navigable water covering them.   Neither sovereignty is a party to this action.   This court takes judicial notice, however, that there has been no official act of either sovereignty to modify or extinguish the public trust servitude upon Marks' tidelands.   The State Attorney General, as amicus curiae, has advised this court that no such action or determination has been made by the state.”  (Id., at p. 260, 98 Cal.Rptr. 790, 491 P.2d 374.)

 We conclude that the statute of limitations set forth in section 6341 is not inconsistent with the public trust doctrine and indeed is a necessary adjunct to the State's authority and duty properly to administer the public trust.

 Next, plaintiffs assert that they have pled facts showing the Settlement Agreement is unconstitutional because it is violative of both sections 4 ⁵ and 3 ⁶ of article X of the California Constitution and urge that the statute of limitations may not bar a claim of constitutional proportions.   Plaintiffs are incorrect in both respects:  their second amended complaint did not allege facts sufficient to establish the unconstitutionality of the Settlement Agreement under either section 4 or 3 of article X, and a statute of limitations may bar constitutional claims as well as all other otherwise legally valid claims.

 Taking the second point first, it is well established both by federal and California decisions that a claim of constitutional origin may be barred by reasonable statutes of limitation just as any other otherwise legally valid claim.   As recently stated by the court in Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 886, 150 Cal.Rptr. 606:  “We have noted that plaintiffs' attack on the validity of the Resolution, and the City's related decision and condition, includes the claimed impairment of constitutional rights.   But even a constitutional right is subject to reasonable statutory periods of limitation within which to commence an action for its vindication.”  (Accord:  Michel v. Louisiana (1955) 350 U.S. 91, 97, 76 S.Ct. 158, 162, 100 L.Ed. 83, 91;  Atchafalaya Land Co. v. Williams Cypress Co. (1922) 258 U.S. 190, 197, 42 S.Ct. 284, 286, 66 L.Ed. 559, 563;  Scheas v. Robertson (1951) 38 Cal.2d 119, 125–126, 238 P.2d 982;  Rand v. Bossen (1945) 27 Cal.2d 61, 65, 162 P.2d 457;  Coombes v. Getz (1933) 217 Cal. 320, 330–331, 18 P.2d 939;  Ocean Shore R.R. Co. v. City of Santa Cruz (1961) 198 Cal.App.2d 267, 273, 17 Cal.Rptr. 892;  Muller v. Muller (1960) 179 Cal.App.2d 815, 819, 4 Cal.Rptr. 419;  Davault v. Essig (1947) 80 Cal.App.2d 970, 972–973, 183 P.2d 39.)

Turning to the pleading deficiencies, plaintiffs' argument that the Settlement Agreement violates section 4 of article X, as distinguished from its argument that section 6341 is in conflict with the common law public trust doctrine, discussed above, is that “[t]he three-prong test [⁷ ] which must be met in order to terminate the public trust imposed by section 4, is the same three-prong test which the Mansell Court held in 1970 must be met in order to convey tidelands within two miles of an incorporated city or town without violating section 3.”   As establishing this proposition plaintiffs cite Atwood v. Hammond (1935) 4 Cal.2d 31, 48 P.2d 20.   Plaintiffs are mistaken.

In the first place, the Atwood v. Hammond decision dealt with a purported conveyance of 18 acres of land within two miles of San Diego, an incorporated city.   Thus, the controlling constitutional provision was not present article X, section 4 (then art. XV, § 2) but present article X, section 3 (then art. XV, § 3).   Although the court recognized that because the conveyance was to a municipal government the constitutional prohibition against alienation was not strictly applicable, it nevertheless felt compelled to deal with the constitutional prohibition against alienation now found in article X, section 3, because “the prohibition against alienation necessarily implies a prohibition against freeing such tidelands from the trust for navigation and dedicating them to other uses while they remain tidelands.”  (4 Cal.2d at p. 42, 48 P.2d 20;  see City of Long Beach v. Mansell, supra, 3 Cal.3d at pp. 483–484, 91 Cal.Rptr. 23, 476 P.2d 423.)   Thus, to the extent the three-pronged test enunciated in Mansell derived from Atwood v. Hammond (see City of Long Beach v. Mansell, supra, 3 Cal.3d at pp. 483–485, 91 Cal.Rptr. 23, 476 P.2d 423), it related not to what is presently article X, section 4, but rather what is presently article X, section 3.

 In any event, the Atwood v. Hammond decision was definitively interpreted in City of Long Beach v. Mansell, and that case and numerous other cases clearly establish that article X, section 4, does not prohibit termination of the trust where the intent of the State to terminate the trust is clear and the State's termination of the trust was effected in furtherance of trust purposes.  (3 Cal.3d at p. 482, 91 Cal.Rptr. 23, 476 P.2d 423;  accord:  People v. California Fish Co., supra, 166 Cal. at pp. 585–597, 138 P. 79;  see Illinois Central R. Co. v. State of Illinois, supra, 146 U.S. at pp. 453, 455–456 [13 S.Ct. at pp. 118–119, 36 L.Ed. at pp. 1042–1043];  National Audubon Society v. Superior Court, supra, 33 Cal.3d at p. 440, 189 Cal.Rptr. 346, 658 P.2d 709;  City of Berkeley v. Superior Court, supra, 26 Cal.3d at p. 523, 162 Cal.Rptr. 327, 606 P.2d 362;  County of Orange v. Heim, supra, 30 Cal.App.3d at p. 717, 106 Cal.Rptr. 825.)

 Plaintiffs' allegations in the second amended complaint in respect to this problem are found in the fifth count which purports to state a cause of action for a declaration that the public trust has not been terminated in respect to the Bolsa Chica lands conveyed to the Signal companies.   The charging allegations are:  “Under common law and Article X section 4 of the California constitution and case law thereunder ․ there is a public trust imposed on tide and submerged lands.   The State of California is the trustee and the citizens and residents of California are the beneficiaries.   Neither a conveyance to a private party nor the filling of the tidelands will destroy or remove the public trust ․  Any conveyance from the State of California (the trustee) pursuant to a sale, land exchange, or grant, can, at most, convey only bare legal title still subject to and encumbered by the trust.”

 But, of course, plaintiffs of necessity had to and did plead the existence of the Settlement Agreement and the trial court properly took judicial notice of it and the public documents relating to it.   These include the waiver and release executed by the State Lands Commission in which it made the findings required by section 6307 and expressly terminated the trust in furtherance of trust purposes.   Thus, the facts pled and judicially noticed show the trust was expressly terminated by the State in furtherance of trust purposes after making all required findings.   The second amended complaint is therefore insufficient to establish a violation of article X, section 4 of the California Constitution.

With respect to article X, section 3, the situation is even less complicated.   The allegations of the second amended complaint concerning article X, section 3, are found in the sixth count, seeking declaratory relief with respect to ownership and rights to oil revenues derived from Bolsa Chica.   The charging allegations are:  “Plaintiffs contend that under California Constitution Article 10 section 3, prior relevant statutes, and relevant case law, all submerged lands, and tidelands within two (2) miles of a town or incorporated city when originally conveyed from the State of California into private ownership, are not validly conveyed.   Plaintiffs contend that in fact all of BOLSA CHICA was either submerged lands and/or tidelands within two (2) miles of a town or incorporated city when originally conveyed into private ownership, and thus that said lands were never legally conveyed into private ownership.   Plaintiffs contend that said conveyances were and are void, that title to said lands remained in the state, and that all of the oil rights on said lands belong to the citizens of California.”  (Emphasis added.)

 These allegations are legally deficient in two vital respects to establish any violation of article X, section 3.   First, the allegation is that at the time the property was originally conveyed it was within two miles of either “a town” or an “incorporated city.”   But the constitutional provision does not prohibit alienation of tidelands within two miles of a town, only within two miles of an incorporated town.  (See fn. 6, ante.)   Secondly, the allegations are directed at invalidity at the time the property was “originally conveyed from the State of California into private ownership.”   That was in 1899, and the trial court properly took judicial notice of the fact that in 1899 the property was not within two miles of an incorporated town or city.   Huntington Beach was not incorporated until 1909.

Finally, focusing on the quitclaim patent executed by the State in 1973 in conjunction with and to carry out the Settlement Agreement, plaintiffs contend that the conveyance to the Signal companies in 1973 was violative of article X, section 3, of the California Constitution because the property was then within two miles of the incorporated City of Huntington Beach;  that the conveyance was therefore absolutely void, rather than just voidable;  and that, being void, the conveyance could not be validated by any statute of limitations.   In this connection, plaintiffs also contend that to the extent they would validate conveyances otherwise void as being violative of article X, section 3, sections 6307 and 6341 are themselves unconstitutional.   In support of these propositions plaintiffs cite People v. California Fish Co., supra, 166 Cal. at pp. 601–612, 138 P. 79;  People v. Banning Co. (1913) 166 Cal. 630, 632, 138 P. 100;  People v. Southern Pac. R.R. Co., supra, 166 Cal. 614, 138 P. 94;  and People v. Banning Co. (1914) 167 Cal. 643, 140 P. 587.   Plaintiffs and amicus National Audubon Society also cite and analogize to a number of decisions involving the validity of deeds to real property sold for delinquent taxes (e.g., Paul v. Los Angeles County Flood Control Dist. (1974) 37 Cal.App.3d 265, 112 Cal.Rptr. 274;  Nutting v. Herman Timber Co. (1963) 214 Cal.App.2d 650, 29 Cal.Rptr. 754).

We have already noted the insufficiency of the factual allegations of plaintiffs' second amended complaint to establish a violation of section 3 of article X of the California Constitution.   In addition to misreading the section as prohibiting alienation of tidelands within two miles of any town, the allegations were not even directed to the invalidity of a conveyance in 1973;  the allegations were that the property “was either submerged lands and/or tidelands within two (2) miles of a town or incorporated city when originally conveyed into private ownership․”  (Emphasis added.)   However, there were some allegations directed at this point in the first amended complaint, and on the supposition that the second amended complaint might again have been amended to properly present the problem, a sense of caution moves us to treat the issues.

 It is true that in People v. California Fish Co., supra, 166 Cal. at page 601, 138 P. 79, the court stated:  “[I]t is proper to say that the tide land laws do not authorize a sale of land below low tide in any case.   So far as such patent, or any other of the patents, embrace such land, they convey no title whatever, the officers who executed them being without power under these statutes to sell or convey lands of that character.”  (Emphasis added.)   However, the case does not stand for the proposition that any and all conveyances of submerged lands are void.   The quoted statement was based on an absence of statutory authority.   The court expressly recognized the State's authority to convey submerged lands in appropriate circumstances and with appropriate statutory authority.  (166 Cal. at p. 585, 138 P. 79;  see also City of Berkeley v. Superior Court, supra, 26 Cal.3d at pp. 518–519, fn. 1, 523, 524, 162 Cal.Rptr. 327, 606 P.2d 362, including fn. 8.)   To the extent plaintiffs claim that any conveyance made in 1973 in furtherance of the Settlement Agreement is void simply because former submerged lands might have been included, their contention is wholly without merit.

 Similarly unmeritorious is the contention that sections 6307 and 6341 are themselves unconstitutional because on their face they would authorize and bar any attack upon conveyances by the State of tidelands with two miles of an incorporated town or city in violation of California Constitution article X, section 3.   No state statute may supersede or contravene a provision of the state constitution, and sections 6307 and 6341 must be read together with and in light of the prohibition found in article X, section 3, of the state constitution.  (People v. Globe Grain & Mill. Co. (1930) 211 Cal. 121, 127, 294 P. 3.)   It is a cardinal principle of statutory construction that a statute will be interpreted in a manner consistent with the requirements of the constitution.  (California Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575, 594, 131 Cal.Rptr. 361, 551 P.2d 1193;  San Francisco Unified School District v. Johnson (1971) 3 Cal.3d 937, 948, 92 Cal.Rptr. 309, 479 P.2d 669.)

 Turning to the cited cases said to involve conveyances held absolutely void because they violated the constitutional prohibition against the alienation of tidelands within two miles of an incorporated town or city, it cannot be denied that there is language in the cases that can be so understood.   However, a careful reading of the cases indicates that they do not really stand for the proposition for which they are now cited, that when properly authorized representatives of the State have purportedly made an exchange of tidelands pursuant to statute and the constitutional requirements as interpreted in the Mansell decision, no reasonable period of limitations may be imposed by the State to bar actions by members of the public challenging the validity of the exchange.   On the contrary, the leading case, People v. California Fish Co., supra, 166 Cal. 576, 138 P. 79, suggests the contrary.   We see no need to discuss the other cases in detail because with one exception they rely entirely on the California Fish Co. case.

Speaking of several of the tidelands patents there in issue, the court in People v. California Fish Co., supra, 166 Cal. at page 610, 138 P. 79, stated:  “The incorporation of Wilmington by the act of 1872, therefore, immediately became effective to put into operation the reservation of lands within two miles of incorporated cities and towns and make it applicable to lands within that distance of Wilmington.   This reservation [⁸ ] continued to apply to all such lands until the repeal of the act in 1887.   The patents based on payments, all of which were made while the reservation was in force, and the proceedings taken during that time, were unauthorized and void.”

In discussing another patent on the next succeeding pages of the opinion (166 Cal. at pp. 611–612, 138 P. 79) the court stated:  “The appellants claim that the patent thus issued after the restriction was removed is valid, although all the previous proceedings were forbidden at the time they were had, but they do not argue the point or present authorities to support it.   Cases holding that a patent is conclusive against collateral attack are not applicable here.   This action is by the state itself, in effect to declare the patent invalid.   It is a direct attack, by the party authorized to make it.   The rule regarding sales of public lands is that all acts of the administrative officers of the state toward such sale, in respect to the lands which the state has withheld from sale, or which are not yet subject to sale, are void, not merely voidable but absolutely void for want of power in the officers, and no subsequent action by the officers themselves can give validity to the void act or ratify it in any way.  [Citations.]  ․  The patent might have been ratified and confirmed by the state, but not by the executive officers whose authority to issue patents was limited to cases where the previous proceedings were authorized․  [¶] In the present case, the period of limitation has not begun to run.   The patent, as we have shown, is absolutely void.   Its issuance without authority and contrary to the constitutional prohibition did not set the statute in motion․”  (Emphasis added.)

 As earlier observed, much of the court's language is attributable to the absence of statutory authority for issuance of patents, indeed a statutory disability with respect to lands within two miles of any town or city.  (166 Cal. at p. 603, 138 P. 79.)   In any event, however, the fundamental distinction between the California Fish Co. case and the case at bench is that here, the state through its duly authorized officers and agencies has, pursuant to the statute and in furtherance of trust purposes, expressly terminated the trust as to the properties involved.   Contrary to the absence of subsequent state action in the California Fish Co. case, here there was affirmative state action to terminate the trust.   That was sufficient to start the statute of limitations running, as the quoted language expressly recognized it should.

This conclusion is confirmed by analysis of People v. Banning Co., supra, 167 Cal. at page 650, 140 P. 587.   It relies both on California Fish Co. and the rule that “there can be no adverse possession sufficient to set in motion the statute of limitations against any action by the state or its authorized agencies to assert the public right or so as to give title by prescription to the adverse claimant against the public easement.”   For the latter the court expressly relied on People v. Kerber, supra, 152 Cal. 731, 93 P. 878.   But as we have earlier observed, the court in Kerber expressly recognized that the stated rule would be inapplicable if the State had “by some lawful act of public authority, ․ discontinued or abandoned” the public trust, in which case it would “thereafter hold [the property] as a proprietor and not as a public agent or sovereign in charge of a public use” and “then provide for the sale of such property in order that it may become the subject of private ownership.”  (152 Cal. at pp. 734–735, 93 P. 878.)

The cited cases do not hold or otherwise indicate that the Legislature may not prescribe a reasonable period of limitations in which a member of the public must commence an attack on a boundary and exchange agreement made in furtherance of the public trust and in connection with which the State has expressly terminated the trust.

We believe the cited tax deed cases have little bearing on the problem at hand.   In Paul v. Los Angeles County Flood Control Dist., supra, 37 Cal.App.3d 265, 272, 112 P. 274, and Nutting v. Herman Timber Co., supra, 214 Cal.App.2d 650, 656–657, 29 P. 754, the respective courts held that the statute of limitations set forth in Revenue and Taxation Code section 3521 could not bar an attack on a tax deed void on its face because issued pursuant to a nonexistent or already paid tax lien.   Even if these cases can be said to have some relevancy, the pleaded and judicially noticed facts in the case at bench do not show that the Settlement Agreement or the quitclaim patent issued in furtherance of it were absolutely void or void on their face.   The defendants make rather persuasive arguments that the land exchange portion of the Settlement Agreement fully satisfied the three-pronged requirements of Mansell,⁹ but we are not required to determine whether in fact that is so.   On its face the land exchange was not void.   The judicially noticed facts establish that the public trust was terminated in furtherance of trust purposes and that the authorized state agency made the findings required by both the Mansell decision and section 6307.   The only possible question is whether the exchange involved a relatively small parcel of the area involved within the contemplation of the Mansell decision.   Plaintiffs' very contention that the answer to that question would depend on factual proof at trial constitutes an admission that the Settlement Agreement and the quitclaim patent issued pursuant thereto are not void on their face.   Finally, decisions of the California Supreme Court and of this court, both before and after the Paul and Nutting decisions establish that even as to so-called “jurisdictional” defects the Legislature has the power to prescribe reasonable periods of limitation.  (Kaufman v. Gross & Co. (1979) 23 Cal.3d 750, 754, 153 Cal.Rptr. 577, 591 P.2d 1229;  Davault v. Essig, supra, 80 Cal.App.2d at pp. 972–973, 183 P.2d 39.)

Conclusion and Disposition

We conclude as did the trial court that the claims asserted are barred by the statute of limitations.   In 4 Civil 23778 the judgment is affirmed.   In 4 Civil 23146 the appeal is dismissed.

FOOTNOTES

1.   It was not until 1982 that it was judicially determined that the public trust may attach to former tidelands included in a rancho grant as well as a tidelands grant.  (City of Los Angeles v. Venice Peninsula Properties (1982) 31 Cal.3d 288, 296–303, 182 Cal.Rptr. 599, 644 P.2d 792.)The tidelands public trust has traditionally been described in terms of commerce, navigation and fisheries but it is established that the trust purposes are much more inclusive than those terms would suggest, including also recreational, ecological and aesthetic uses.  (See, e.g., National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 434, 189 Cal.Rptr. 346, 658 P.2d 709;  City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 521, 162 Cal.Rptr. 327, 606 P.2d 362;  Marks v. Whitney (1971) 6 Cal.3d 251, 259–260, 98 Cal.Rptr. 790, 491 P.2d 374.)

2.   This task force included representatives of the State Lands Commission, the Department of Fish and Game, the Department of Parks and Recreation, the Department of Navigation and Ocean Development (now Boating and Waterways), the Resources Agency and the Office of the Attorney General.

3.   Public Resources Code section 6307 reads in part:“Whenever it appears to the commission to be in the best interests of the state, for the improvement of navigation, aid in reclamation, or for flood control protection, or to enhance the configuration of the shoreline for the improvement of the water and upland, on navigable rivers, sloughs, streams, lakes, bays, estuaries, inlets, or straits, and that it will not substantially interfere with the right of navigation and fishing in the waters involved, the commission may exchange lands of equal value, whether filled or unfilled with any state agency, political subdivision, person, or the United States or any agency thereof.   Any land so acquired shall have the same status as to administration, control and disposition as the lands for which it was exchanged.   The state may release the mineral rights in the land conveyed, as provided in Section 6401, if it receives the mineral rights in the land conveyed to it.   The lands exchanged may be improved, filled, and reclaimed by the grantee, and upon the adoption of a resolution by the State Lands Commission finding and declaring that such lands have been improved, filled, and reclaimed, and have thereby been excluded from the public channels and are no longer available or useful or susceptible of being used for navigation and fishing, and are no longer in fact tidelands or submerged lands, such lands shall thereupon be free from the public trust for navigation and fishing.”

4.   Section 343 of the Code of Civil Procedure provides:  “An action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued.”

5.   California Constitution, article X, section 4 (previously art. XV, § 2), provides now as it did in the constitution of 1879, as follows:  “No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water;  and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof.”

6.   California Constitution, article X, section 3, reads in pertinent part:  “All tidelands within two miles of any incorporated city, city and county, or town in this State, and fronting on the water of any harbor, estuary, bay, or inlet used for the purposes of navigation, shall be withheld from grant or sale to private persons, partnerships, or corporations ․”Article XV, section 3, of the California Constitution of 1879 read:  “All tidelands within two miles of any incorporated city or town in this State, and fronting on the waters of any harbor, estuary, bay or inlet used for the purposes of navigation, shall be withheld from grant or sale to private persons, partnerships, or corporations.”

7.   The so-called three-pronged test was enunciated by the Mansell court as follows:  “To reiterate, we conclude that when lands within two miles of an incorporated city or town which were subject to the ebb and flow of the tide at the date of the adoption of the Constitution—and which therefore are ‘tidelands' within the meaning of article XV, section 3 [now art. X, § 3]—(1) have been found and determined by the Legislature to be valueless for trust purposes and are freed from the public trust ․ and (2) have been or are to be reclaimed pursuant to and in the course of a highly beneficial public program of harbor development, such lands—if they constitute a relatively small parcel of the total acreage involved—thereupon cease to be ‘tidelands' within the meaning of the constitutional provision and are subject to alienation into absolute private ownership.”  (3 Cal.3d at pp. 485–486, 91 Cal.Rptr. 23, 476 P.2d 423, fn. omitted.)

8.   The reservation was contained in a state statute enacted April 4, 1870.  (166 Cal. at p. 603, 138 P. 79.)

9.   Defendants' arguments are that the Settlement Agreement and quitclaim patent issued pursuant thereto were merely confirmatory in nature insofar as they released claims that the former tidelands, as opposed to submerged lands were subject to the public trust (cf. City of Long Beach v. Mansell, supra, 3 Cal.3d at pp. 479–481, 91 Cal.Rptr. 23, 476 P.2d 423;  Muchenberger v. City of Santa Monica (1929) 206 Cal. 635, 275 P. 803), and that in any event the mere release of trust claims is not a conveyance of tidelands to which article X, section 3 applies.   Thus, they contend that the only possible conveyance of tidelands involved relates to the approximately 63 acres of former submerged lands and that as to that portion of the property, the exchange meets the three-pronged requirements of City of Long Beach v. Mansell, supra, 3 Cal.3d at pp. 484–486, 91 Cal.Rptr. 23, 476 P.2d 423.   They urge, and we have agreed, that the judicially-noticed facts establish without contradiction that the findings required by the Mansell decision were made by the State Lands Commission, the authorized state agency, and that the trust was expressly terminated in furtherance of trust purposes.   As to the “relatively small parcel” requirement they point out that of the approximately 63 acres involved, 45.8 acres lie within the 300-acre parcel being retained by the State and the other approximately 17.9 acres are included within the 230-acre parcel for which the State has a 14-year lease with option to acquire.   They point out that if the second phase of the State's plan for development goes forward, a new ocean entrance will be constructed by the State, the 230-acre parcel including the remaining 17.9 acres of former submerged lands will be owned by the State in fee, and the net effect will be that no title to any fee-owned property will have been conveyed by the State to the Signal companies.   If the second phase of the State's development does not proceed as planned, only approximately 17.9 acres of claimed fee-owned land will have been conveyed to the Signal companies, and that, defendants contend, is a relatively small parcel of the entire acreage involved.  (See City of Long Beach v. Mansell, supra, 3 Cal.3d at p. 486, 91 Cal.Rptr. 23, 476 P.2d 423.)   As stated in the text, we are not required to pass on the merits of these arguments.

 KAUFMAN, Associate Justice.

MORRIS, P.J., and McDANIEL, J., concur.