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Berkeley, City of v. Superior Court of Alameda County

Citation: 10 ELR 20394
No. No. S.F. 23686, 606 P.2d 362/26 Cal. 3d 515, (Cal., 02/22/1980)

The California Supreme Court issues a writ of mandamus compelling the trial court to set aside an order vesting fee simple ownership of a tract of land on the shore of San Francisco Bay in the Santa Fe Land Improvement Company, whose predecessors in interest had acquired it by a deed issued under an 1870 statute. Favoring a presumption in supportof continuation of the public trust, the court holds that state conveyances of tidelands to private citizens remain subject to the public trust unless it is clear from the act authorizing such sales that the legislature expressly determined the sales to be the best means of furthering the public interest in commerce and navigation. The majority reasons that an intent to abandon the public trust must be clearly expressed in, or necessarily implied from, the language and history of the statute. If any interpretation which would preserve the public interest in the land is reasonably possible, it should be followed. Finding in the 1870 act no explicit intent to grant conveyances in fee, the court holds that the public's easement for navigation and commerce and the state's right to enter and possess for the preservation and advancement of public uses should be maintained. The court overrules two prior cases which held that grants pursuant to the 1870 statute were free of trust obligations, but declines to make its decision fully retroactive to avoid undermining reasonable expections built upon these earlier decisions. The court therefore declares that the public trust attaches to all property conveyed under the statute which is either submerged or subject to tidal action and thus still adaptable to trust uses. Conversely, tracts which have been filled or imporved are deemed to be held in fee simple to the extent they are free of tidal action and as long as the filling or improvements were done in accordance with applicable and use regulations. The court rejects the notion that making unfilled unimproved land subject to the trust constitutes a "taking," noting that any economic loss suffered by its owners is purely speculative because of the severe federal and state restrictions which now limit the filling or improvement of such properties.

A dissent argues that the 1870 statute clearly purported to convey land in fee, that private parties in so construing it have taken action furthering the broad trust purposes of public use of the bay, and that the court should not override the legislative intent on constitutional grounds since a trust-free conveyance did not impair the power of future legislatures to promote the public interest in commerce and navigation through regulation.

Counsel for Petitioner
Evelle J. Younger, Attorney General
State Capitol, Sacramento CA 95814
(916) 445-4334

Michael Lawson, City Attorney
2180 Milvia Ave., Berkeley CA 94704
(415) 644-6380

Richard J. Archer
Sullivan, Jones & Archer
Hallidie Bldg., 130 Sutter St., San Francisco CA 94104
(415) 397-7667

Counsel for Real Parties in Interest Santa Fe Land Improvement Co. et al.
Paul Lamphere
Cox, Cummins & Lamphere
P.O. Box 1111, Martinez CA 94553
(415) 228-7300

BIRD, C.J., and TOBRINER and NEWMAN, JJ., concur.