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State v. Superior Court of Placer County

ELR Citation: 11 ELR 20483
Nos. No. S.F. 24035, 625 P.2d 256/29 Cal. 3d 240, (Cal., 03/20/1981)

The court reverses the trial court's conclusion that the "last natural" low watermark of Lake Tahoe, prior to construction of a dam in 1870, is the appropriate mark to measure the boundary line between public and private ownership. The court first finds that the state may not be estopped from asserting the public's right to those lands if it would nullify a policy adopted to benefit the public. California's attempt to protect fragile shore zones from development constitutes such a strong public policy. Further, the court rules that the low water mark, which is the boundary between public and private ownership, is determined with reference to Lake Tahoe in its current condition, not to the "natural" level prior to he construction of a dam in 1870. Not only would there be a monumental evidentiary problem in measuring the "natural" level, but since the dam has been in existence since 1870, the artificial condition has now become a prescriptive right. The court further notes that private landowners may not use the shore-zone for purposes incompatible with the public trust.

A dissent would apply the public trust doctrine only to tide and submerged lands and would estop the state from asserting the public trust with regard to nontidal, navigable waters.

Counsel for Petitioner
Richard M. Frank, Deputy Attorney General
555 Capitol Mall, Suite 350, Sacramento CA 95814
(916) 445-9555

Counsel for Real Party in Interest Charles F. Fogerty
Edgar B. Washburn
Washburn, Kemp & Wagenseil
Suite 2407, One Embarcadero Center, San Francisco CA 94111
(415) 981-2121

Counsel for Respondent Placer County
William T. Chidlaw, P.C.
Suite 191, 1455 Response Rd., Sacramento CA 95815
(916) 920-0202

Joined by Bird, Tobriner, and Newman, JJ.