Opinion
Hearing Granted by Supreme Court Feb. 11, 1929.
Original application for writ of mandate by R. A. Wattson against Arthur Eldridge and others, as members of and constituting the Board of Public Works of the City of Los Angeles.
Peremptory writ denied.
COUNSEL
Arthur M. Ellis, of Los Angeles, for petitioner.
Hewitt, McCormick & Crump, of Los Angeles, for respondents.
OPINION
THOMPSON, J.
This proceeding seeks the writ of mandate directed to the respondents, as the members of the board of public works of the city of Los Angeles, compelling them to execute a certain contract for the improvement of certain alleged streets in Los Angeles city, under the Improvement Act of 1911 (St. 1911, p. 730). The respondents refused to execute the contract, and, among their reasons, assigned the fact that the work called for included the filling and improving of artificial canals in that part of Los Angeles, formerly Venice, and stated that there was serious doubt as to whether these canals constituted public streets.
It has been stipulated by the petitioner and the respondents that, of the areas to be improved with concrete pavement, curb, gutters, and sidewalks, the following "are now and have been occupied by and used as canals or waterways, to wit: San Juan Avenue, Market Street, Windward Avenue, Grand Boulevard, Kinney Plaza, Second Avenue, Andulusia Avenue, Cabrillo Avenue and Altair Place-and that there is an existing grade of the bottoms, sides and walkways along and adjacent to all of said canals and that the same have been constructed and at all times up to the present maintained at and to such grades. That the plans and profiles for said work referred to in said ordinance show that said canals and waterways are to be filled and graded to the new grades or elevations indicated thereon and that said walkways are to be removed and reconstructed with new sidewalks and curbs in the place thereof."
The parties to this proceeding being unable to agree upon the title to or the use of the areas heretofore used as canals, a commissioner was appointed to try that issue, and he has found, in substance, that the respondents are mistaken in their belief that the city has not the right to fill in and improve as public streets the areas heretofore used as canals, "for the reason that said canals have been continuously used by the public as public waterways for all purposes of public ways for more than twenty years prior to the passage of the Ordinance of Intention, *** namely since about the year 1905, and the same constitute and are public streets in the city of Los Angeles." He has also found, in substance, that the owners of lots in the tract containing the canals have not, nor have the owners of lots abutting upon the canals, a right or easement to have the canals kept and maintained as canals. Specifically he has found that "it is not true that any such right is appurtenant to each or every or any lot in said Venice of America Tract." It is also found, in substance, that it is not true that the lands designated as canals are not now open or dedicated "to public use as streets, avenues, lanes or courts," and that it is untrue that the Abbot Kinney Company, who laid out the Venice of America, "by its acts or conduct or otherwise set said lands apart as canals or waterways for use as such perpetually by the owners of land in said tract or the public generally, or either or any thereof *** that it is true that areas within said lots have at all times herein mentioned been used as public walks and ways, and it is also true that certain areas thereof have been occupied by canals and waterways and have been used for the transportation of persons and things by boat and other water craft, and for recreation and pleasure." Another finding is to the effect that it is not true that certain deeds, which will be later discussed in this opinion, did not convey the fee to the areas now in question to the city of Los Angeles, or to the city of Venice and annexed to the city of Los Angeles since the date of the first deed, subject or subordinate to the right of the owners of lots in the Venice of America tract to have the same kept open and maintained as canals.
Exceptions have been interposed by respondents to these findings, and certain others not necessary now to mention on the ground that the evidence is insufficient to justify them and that they are contrary to the evidence. The transcript of the testimony is before us, together with the exhibits, and there appears little if any dispute in the record. The differences of opinion really arise from the interpretation put upon certain acts and documents. This is made patent by a reading of the commissioner’s memorandum of opinion, which accompanies his findings, wherein he calls attention to the fact that the Venice of America tract was laid out in imitation of "Ancient Venice," but with this difference, that, although the situation of the beautiful and romantic city of the old world required streets of water, the watery public ways of California’s Venice were artificially provided, "their functions, however, being essentially those of streets," and that, although these waterways were dedicated to the city of Venice in 1912, the grantor providing that they should be used "solely and only for perpetual waterways and canals free to the public forever," the same grantor by a subsequent deed abandoned the reservation made in its favor in the deed of 1912. The commissioner having determined that the functions of these canals are akin to those of streets, his findings are, as he says, "predicated upon the theory that it is competent for the governing body in charge of the use to ordain a change in the character of the public ways involved whenever such governing body shall determine that the public weal requires such a change." We therefore proceed to set down those facts which may fairly be said to appear from the record without dispute, and which compel us to depart from the conclusion of the commissioner.
In January, 1905, the Abbot Kinney Company laid out and subdivided the Venice of America tract, and, on the map approved by the trustees of Ocean Park, within the boundaries of which the tract was situated, and who accepted the dedication of the streets, roads, alleys, and highways on behalf of the public, the areas in question were designated as lots, followed by the name of the particular canal, such for example: "Lot H, Grand Canal," with the words underneath in fine print, "not to be dedicated." Out of twenty-three blocks in the tract, comprising several hundred lots, all of the lots, with the exception of a portion of those in five blocks, were made to front upon canals, and vehicular and pedestrian traffic was provided for by streets and alleys. The Abbot Kinney Company, as is recited in the findings, at about the time of recording the map, excavated and dredged the canals, lined them with cement, improved the banks and marginal strips with walkways, and planted them to grass, trees, and shrubs, and erected ornamental structures, including boat landings and stairways, and bridges over the canals for ordinary traffic. They were all so laid out and constructed as to "form a complete system of waterways in said Venice of America Tract, each such canal or waterway being connected with all others, and works, facilities and appliances were installed by said Abbot Kinney Company for the inflow and outflow of water whereby an adequate circulation of salt water from the Pacific Ocean was provided for such system of canals." Since their construction, the canals have been used continuously by the public generally for pleasure and recreation, inclusive of boating, bathing, swimming, and aquatic sports. The lots in the tract were sold by the company, and at least several of the deeds contained the following language:
"To have and to hold all and singular the said premises, together with appurtenances unto the parties of the second part and to their heirs and assigns forever; but there is reserved to the first party, its successors and assigns all rights of way and easements designated or indicated on the aforesaid map as to railways, canals, buildings, arcades, streets, highways, alleys, and like matters and things, and also the exclusive right to lay and maintain any and all pipe deemed necessary or convenient on the said granted premises in the said Venice of America, and also the exclusive right to place and maintain telegraph, telephone and other electric light poles and wires over and upon the said granted premises in such places and position as to the said first party may seem reasonable. *** All of the before mentioned reservations and conditions are for the benefit of the owners of said lots in said Venice of America as well as of said first party, and that said reservations and conditions shall run with the land and be binding upon the heirs, legal representatives and assigns of the said grantee."
In 1909 the Abbot Kinney Company deeded to the city of Venice the marginal strips along each side of the several different canals for street and sidewalk purposes, the deed, however, containing a proviso that the city should not interfere with the trees, plants, shrubs, and other improvements, which, as we have already observed, were placed thereon by the Abbot Kinney Company. In 1912 the entire lots or canals (including the marginal strips) were deeded to the city of Venice, the grant, however, being upon and subject to the following conditions:
"1. Said City of Venice shall not destroy or permit the destruction of the flowers, plants, or trees on any part of the premises herein granted, but shall care for and maintain the same perpetually.
"2. ***
"3. Also the premises herein conveyed shall be used by said second party and its successors solely and only for permanent waterways, and canals, free to the public forever."
The findings recite that prior to the deed in 1912 the Abbot Kinney Company maintained the canals, and that subsequent thereto the city of Venice, and, since its annexation to Los Angeles, the city of Los Angeles, have exercised dominion and control over them and maintained them at public cost, and that they have been used by the public without interruption or interference for like purposes as before the deed. In 1925 and 1926, two deeds were executed and delivered, the latter being a correction deed and the grantee being the city of Los Angeles, to which Venice had meanwhile been annexed, by which the Abbot Kinney Company purported to convey to the city the canal areas in question "to be used as and for" public streets.
Under these facts we cannot escape the conclusion that there was manifest an intention on the part of the grantor to set aside and dedicate the canal areas to the public for use as canals, improved and beautified on both sides with parkways and walks. It is equally obvious that for more than twenty years the public and the owners of lots in the tract have occupied and used the land for the purposes intended. Under these circumstances it is impossible for us to reach any conclusion other than that there has been a dedication to the public for use as canals. Intent is the material factor in determining whether a dedication has occurred. As is said in People v. County of Marin, 103 Cal. 223, 37 P. 203, 26 L. R. A. 659 in speaking of the difference between express and implied dedication: "The substantial difference between the two consists in the mode of proof. In the former case the intention to appropriate the land to public use is manifested by some outward act of the owner manifesting his purpose, while in the latter it is usually by such acts or conduct not directly manifesting the intention, but from which the law will imply the intent." See, also, Myers v. City of Oceanside, 7 Cal.App. 87, 93 P. 686; City of Los Angeles v. Kysor, 125 Cal. 463, 58 P. 90; Anaheim v. Langenberger, 134 Cal. 608, 66 P. 855. In People v. Myring, 144 Cal. 354, 77 P. 976, where the question referred to dedication of certain highways, the court says: "The dedication of a road as a public highway is the setting it apart by the owner of the land for the use of the public, and the subsequent use thereof by the public operates as an acceptance of the same and makes it a public highway. Such dedication may be express, as by a grant to the public, or it may be implied from the circumstances under which the road is set apart and used. The adverse user of the road by the public with the knowledge of the owner for a period of time corresponding to that fixed for conferring a title by prescription establishes as against the owner a presumption of dedication. ‘It affords the conclusive and indisputable presumption of knowledge and acquiescence, while at the same time it negatives the idea of mere license’ (Schwerdtle v. County of Placer, 108 Cal. 589 [41 P. 448]; Hartley v. Vermillion, 141 Cal. 340 [74 P. 987]). Under this rule the evidence before the jury, as above shown, was sufficient to justify them in finding that the road had been dedicated by the defendant as a public highway. There was, moreover, evidence of positive acts on his part tending to confirm this presumption. In 1876, prior to the construction of the road, he had signed a petition to the board of supervisors for the laying out of the road in the vicinity of its route, and had also signed the grant of a right of way therefor, and after the road was built he had, at different times, worked upon it for its repair. ***"
So here, we not only have a user by the public for a period in excess of twenty years, but we have the unambiguous grant of the owner to the city upon condition that the areas be used solely for canal purposes "free to the public forever." And, if there were any doubt concerning the acceptance by user, certainly there can be none concerning the acceptance evidenced by the city when, subsequent and pursuant to the deed, it assumed dominion and control over the canals, and maintained them for more than ten years at public cost. Wolfskill v. County of Los Angeles, 86 Cal. 405, 24 P. 1094. Nor do we find the inconsistency, suggested in the briefs, between the provisions of the several deeds to the effect that the reservation of the canals, etc., shall be "for the benefit of the owners of lots in said Venice of America as well as of" the grantor, and the fact that the map indicated that the canal areas were "not to be dedicated." The rational interpretation to be put upon the words found on the map, and the only one which is reconcilable with all the other acts, is that the words were used in order that the city trustees of Ocean Park should not by their acceptance, on behalf of the public, of streets, alleys, etc., obligate the city for the maintenance of the canals.
Having concluded that the canals were dedicated to public use as canals or waterways, the next question to be considered is whether the legislative body of the city may convert them into surface streets in the manner followed in this proceeding. We are convinced that it cannot. The books abound with authorities to the effect that property dedicated to a particular public use cannot be put to other public use inconsistent with the use of the original dedication. To illustrate to what extent this rule is carried we refer to the case of Spires v. City of Los Angeles, 150 Cal. 64, 87 P. 1026, 11 Ann. Cas. 465, where the Supreme Court determined that, while a public library might be erected upon property dedicated to use as a public park on the ground that it was conducive to the increased use and enjoyment of the land as a park, nevertheless it was held that space could not be provided therein for the use of the board of education. It is there said: "If any part of such building could be used for one administration purpose, it might gradually be devoted to another. If one municipal board or municipal officer of the city having no direct relation to the library can be located therein, so many another, and so the building which the city has a right to erect as a library building solely in aid of the public enjoyment of the park may be gradually invaded for administration purposes and ultimately devoted to those purposes." In Hall v. Fairchild-Gilmore-Wilton Co., 66 Cal.App. 615, 227 P. 649, it was held that an attempt to devote a portion of a public park to street purposes was void and beyond the authority of the legislative body of the city. Numerous authorities are therein cited to uphold the statement that, where the public accepts property designated for use for certain purposes, its acceptance is burdened with the use thus designated, and the object and purpose of the dedication cannot be destroyed by its use for other purposes. Reference may also be had to Archer v. Salinas City, 93 Cal. 43, 28 P. 839, 16 L. R. A. 145, and Slavich v. Hamilton, 201 Cal. 299, 257 P. 60, the latter of which points out that the rule is more strict and the use more narrowly limited where the dedication is by private individuals than where the land is acquired by public purchase. Carrying the rule one step further, it has been determined in Mulvey v. Wangenheim, 23 Cal.App. 268, 137 P. 1107 (and this applies directly to the right of the owners of lots abutting upon and facing the canals), that the owner of property abutting upon a public park is entitled to enjoin the city officials from extending a public street through it, the court saying: "The plaintiffs purchased said property with respect to its location abutting upon said portion of said park and in reliance upon the uses and trusts upon which the title to said park lands is held. No compensation has been provided to be paid to plaintiffs on account of the damage which they claim that they will suffer by the opening and construction of said street." In accord with this enunciation is that found in Riverside v. MacLain, 210 Ill. 308, 71 N.E. 408, 66 L. R. A. 288, 102 Am. St. Rep. 164, where a similar situation was in question. And so we think are the authorities of Eachus v. Los Angeles Ry. Co., 103 Cal. 614, 37 P. 750, 42 Am. St. Rep. 149, and Bigelow v. Ballerino, 111 Cal. 559, 44 P. 307, in which it was held that "the right of the owner of a city lot to the use of the street adjacent thereto is property which cannot be taken from him for public use without compensation."
Is the use proposed to be made of these canal areas consistent with the use to which they were dedicated? It is hardly necessary for us to deal with any legal refinements in an effort to distinguish by definition an artificial canal used for boating, swimming, and aquatic sports from a public street filled with automobiles, street cars, and pedestrians. No one would be so hardy as to argue that the use of Broadway in Los Angeles, Market street in San Francisco, Pennsylvania avenue in Washington, or Fifth avenue in New York as canals would be consistent with the use to which they have been set aside and dedicated as public streets. Why is not the converse true? The artificial canals of Venice are as fully a distinguishing characteristic of the latter place as the individual boulevards are of either of the former cities. They are not so much highways as they are in the nature of public parks-true, they may by means of the water itself be used as watery ways of transportation-but they are chiefly used as places of amusement and recreation. As streets, the means of transportation heretofore made use of would be destroyed, and, instead of places of amusement and recreation, they would be filled with a wriggling mass of noisy and offensive smelling vehicles. Desirable as it may be to open additional surface arteries of traffic, it cannot be successfully argued that their use for vehicles, animals, and pedestrians is consistent with their dedicated use for boats and bathers. There is much more reason for arguing that the use of public parks with walkways and driveways could be converted into commercial thoroughfares, and at least the same amount of reason for saying that the lakes of our parks, used as they are for boating, could be transformed into highways. It has been almost useless to search the books for a parallel situation, because common knowledge informs us that there is probably no other city in our country with an artificial canal system. The nearest approach to our problem which we have been able to find appears in the case of Perkins v. Town of Colebrook, 68 Conn. 113, 35 A. 772, in which the court uses this language: "In the case at bar it is apparent that the way prayed for was substantially a way over the waters of a pond-a waterway. Whether a private way over water, like the present one, can be laid out at all *** may well admit of doubt. The statute, in speaking of public highways and private ways, seems to contemplate solid ways that can be worked and repaired, over which men and animals may pass on foot, and whereon wheeled vehicles may be drawn, and whose limits are defined by permanent solid objects, and not an air-drawn line. It contemplates a road or path as distinguished from a ferry or right of ferriage. In Imlay v. Railroad Co., 26 Conn. 249, 256 [68 Am. Dec. 392] this court said: ‘The term "public highway," as employed in such of our statutes as convey the right of eminent domain, has certainly a limited import. Although, as suggested at the bar, a navigable river or canal is, in some sense, a public highway, yet an easement assumed under the name of a highway would not enable the public to convert a street into a canal. The highway, in the true meaning of the word, would be destroyed."’
We have yet to inquire into the effect, if any, of the deeds of 1925 and 1926. As already noted, the commissioner concluded that the Abbot Kinney Company abandoned the reservation that the areas were to be used only and solely for canals. The language we have quoted from the deed of 1912 does not, however, indicate a reservation, but designates the purposes of the use. It would be strange, indeed, after a dedication were complete, if the grantor could revoke the dedication, and dedicate the property to other and different purposes, or if the right could still reside in the grantor to release the conditions imposed by the original conveyance. As soon as the dedication is complete the right of the public is fixed and the former owner loses all control over the property. Such is the declaration of the Supreme Court in Slavich v. Hamilton, supra, and the cases therein cited, and by the petitioner herein is concluded.
Even if we were to assume, contrary to the fact, that there had been no dedication, there would then be another obstacle to the obliteration of these canals in the manner here attempted. It is conceded that they have been used by the owners of lots in the Venice of America tract, as well as by the public, for more than twenty years before the present proceeding. There is a unanimity in the decisions to the effect that the same rights may be acquired in an artificial water course by user over that period of time as in a natural watercourse, even to the extent of holding where the waters of a natural water course are diverted by a dam from the main to a smaller channel, that one who has used the water thus diverted for power purposes is entitled to have the same maintained. Murchie v. Gates, 78 Me. 300, 4 A. 698. For the authorities generally on this subject, see Cole v. Bradbury, 86 Me. 380, 29 A. 1097; Dority v. Dunning, 78 Me. 381, 6 A. 6; Stimson v. Inhabitants of Brookline, 197 Mass. 568, 83 N.E. 893, 16 L. R. A. (N. S.) 280, 125 Am. St. Rep. 382, 14 Ann. Cas. 907; Watkins v. Peck, 13 N.H. 360, 40 Am. Dec. 156; Shepardson v. Perkins, 58 N.H. 354; Ranney v. St. Louis & S. F. R. Co., 137 Mo.App. 537, 119 S.W. 484.
It has been suggested that the case of Schultz v. City of Venice, 200 Cal. 50, 251 P. 914, has an important bearing upon the proceeding and may be conclusive upon us. As we understand the holding therein, it has no bearing upon the questions before us. All that the Supreme Court determined in that case was that they could not review the testimony to determine its insufficiency to support the findings without specifications of insufficiency in the bill of exceptions, where the pleadings tendered, and it was apparent that the cause was tried upon the theory that the pleadings sufficiently tendered, the issues covered by the findings.
Other objections are argued by the respondents why the writ should not issue; particularly it is said that there is a lack of definiteness in the ordinance of intention, but no useful purpose would be served, nor is it necessary to discuss them further.
Peremptory writ of mandate denied.
We concur: WORKS, P. J.; CRAIG, J.