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Marks v. Whitney Expands the Scope of Protection for Lands in the Public Trust

January 1972

Citation: 2 ELR 10007

Issue: 1

The California Supreme Court has restated and clarified the law concerning the protection of lands subject to the public trust.1 See Marks v. Whitney, 2 ELR 20049 (Cal. Dec. 9, 1971). For moving papers available from ELI, see ELR Dig. [187]. In Marks, the court explicitly expanded the public trust notion to include the preservation of lands in their natural state. Equally important, the court found that any member of the public has standing to raise the issue of threatened impairment of lands subject to the trust. Indeed, a court may determine the public trust issue on its own motion, whether raised by the parties or not.

The case arose in the context of a private action to quiet title to tidelands belonging to Marks under a patent granted to his predecessor by the state in 1874. His tidelands constituted almost the entire shoreland in front of Whitney's holdings. Marks proposed to fill the tidelands for the purpose of development, reserving only a 7-foot-wide easement of passage to the bay for Whitney. The California court found that the 1874 patent had not conveyed an unfettered fee simple interest, but that owners of the land took the tidelands subject to a trust in favor of the public.

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