Opinion
For Opinion on Rehearing see 96 Cal.Rptr. 173
Opinion on pages 310 to 321 omitted
REHEARING GRANTED
Thomas C. Lynch, Atty. Gen., Charles A. O'Brien, Chief Deputy Atty. Gen., Jay L. Shavelson, Asst. Atty. Gen., Bertram G. [93 Cal.Rptr. 127] Buzzini, N. Gregory Taylor, Deputy Attys. Gen., Sacramento, for defendant-appellant.
Bruce A. Beckman, Los Angeles, for amicus curiac, Sierra Club.
Edward D. Landels, Landels, Ripley & Diamond, San Francisco, for plaintiffs-respondents.
ELKINGTON, Associate Justice.
The action below was brought by plaintiffs Osborne White and Aileen Dowsett White against the State of California to quiet title and establish boundaries to certain Sonoma County real property (herein called the 'subject land'). Plaintiffs recovered judgment as prayed and the state appeals.
The subject land consists of the greater part of what was formerly an island (herein 'the island') in Petaluma River (sometimes called Petaluma Creek--herein 'the river'), and, extending generally northeastward of the island, some reclaimed land which was once salt marsh and a backwater channel of the river.
An 1860 survey map described as 'U.S.C. & G.S. Topographic Survey, 1860--Register No. 817' indicates that the island was then what might be described roughtly as a narrow triangle pointing generally southeasterly and downstream, with sides about two miles in length and an upstream base about seven-eighths of a mile across. While all sides were extremely irregular, the three points of the triangle stood out clearly. The 1860 survey made no attempt to delineate the courses and distances of the island's outline; instead it consisted of a sort of relief portrayal of the island, the river, and other nearby land. The river then flowed, and now flows, in a general southeasterly direction along the island's southwesterly side.
At the point where it passes the subject land two or three miles upstream from San Francisco Bay, the river historically has been subject to tidal action of the Pacific Ocean, and therefore constitutes tidewater. It is 'an arm of the bay' and since 1853 has been declared by law to be a navigable stream. (Compiled Laws of California, 1850-1853, chapter CXCVII, p. 916; Harbors and Navigation Code section 104.) It has also been navigable in fact; as recently as 1965, according to a publication of the United States Army Corps of Engineers, January 1, 1967, 'Water Resources Development in California,' 305,000 tons of freight were carried on the river. The navigable channel of the stream lies offshore southwestward of the island and the subject land.
Of which judicial notice may be taken--see Evidence Code sections 451, 452.
In 1868 the Legislature enacted 'An Act to provide for the management and sale of the lands belonging to the State,' Part II of which related to the sale and reclamation of 'swamp and overflowed, salt marsh and tide lands.' (Stats. 1867-68, ch. 415, p. 507--herein called 'the Act.') Pursuant to the Act one John Reagan in 1870 made application to purchase and reclaim the island and certain salt marsh and backwater channels lying to the northeastward. He described it as 'a certain tract of swamp and overflowed land being salt marsh land in Sonoma County lying and situate on the north side of Petaluma Creek being the second island below the mouth of the San Antonio Creek.'
In accordance with the Act the county surveyor surveyed the property and on March 13, 1872, filed what he termed 'Swamp and Overflowed Lands Survey No. 58.' It was said to embrace 934.65 acres, but speaking of the island area the surveyor had said 'So swampy a perfect survey cannot be made.' The many calls of the survey began 'at a stake in a bed of broken glass.' The 'stake' and the 'bed of broken glass' have long since disappeared; the consequent uncertainty has resulted in this lawsuit.
The geographical relationship of the county surveyor's 1872 'Swamp and Overflowed Lands Survey No. 58,' to the earlier [93 Cal.Rptr. 128] 'U.S.C. & G.S. Topographic Survey, 1860--Register No. 817' is of importance in our consideration of the issues. At the trial plaintiffs placed in evidence a plat outlining the courses and distances of 'Swamp and Overflowed Lands Survey No. 58.' Placed on transparent film in the same scale as, and superimposed on, the 1860 topographic survey, the plat's angular courses and distances overlap with reasonable precision the northwesterly and southwesterly sides of the island as shown on the older survey. (As we have indicated, the later survey extended beyond the island's northeasterly shore across salt marsh and a backwater channel.) What we have described as the three points of the triangular island are precisely fitted to the corresponding points of the plat. It must reasonably be said that where so intended, i. e., the island's northwesterly and southwesterly sides, the county surveyor's survey conforms to the general outline and physical location of the island.
The property covered by the survey was patented by the state in 1880 to Reagan's successors in interest. It was described in the patent in the same manner as expressed in the 'Swamp and Overflowed Lands Survey No. 58.' One of the first acts of reclamation of the patented land was the construction of a levee immediately landward and northeast of the river's ordinary high tide line.
By mesne conveyances the plaintiffs White are now the owners of the subject land which embraces the greater part of the land covered by the survey.
The specific issue presented to the trial court, and now to this court, concerns the title to approximately 38 acres of tidelands extending some 3,000 feet along the subject land's southwesterly river shore. Plaintiffs contend that these tidelands were included in 'Swamp and Overflowed Lands Survey, No. 58' and the ensuing patent. The state insists that plaintiffs' title runs only to the high tide line of the river.
Tidelands arc defined as the 'lands lying between the lines of ordinary high and low tide.' (People v. California Fish Co., 166 Cal. 576, 583, 138 P. 79, 82.)
The trial court entered judgment for plaintiffs. It was found that the patent through which plaintiffs claim title to the subject land included all of the 'land described in the complaint.' The complaint's description had included the 38 acres of tidelands in dispute.
The state's contention, in effect, is that the trial court's finding was contrary to law and unsupported by substantial evidence. We find merit in this contention and conclude that the judgment must be reversed. Our reasons follow.
Civil Code section 830, as amended 1873-1874, and as pertinent here, states:
'Except where the grant under which the land is held indicates a different intent, the owner of the upland, when it borders on tide-water, takes to ordinary highwater mark; * * *.'
Section 830 codifies a preexisting common law rule (Drake v. Russian River Land Co., 10 Cal.App. 654, 660, 103 P. 167). which has been consistently applied. (See Borax Consolidated Ltd. v. City of Los Angeles, 296 U.S. 10, 22-23, 56 S.Ct. 23, 80 L.Ed. 9; United States v. Pacheco, 2 Wall. 587, 69 U.S. 587, 590, 17 L.Ed. 865; Abbot Kinney Co. v. City of Los Angeles, 53 Cal.2d 52, 57-58, 346 P.2d 385; Boone v. Kingsbury, 206 Cal. 148, 191-192, 273 P. 797; Long Beach Land and Water Co. v. Richardson, 70 Cal. 206, 209, 11 P. 695; Den v. Spalding, 39 Cal.App.2d 623, 632-633, 104 P.2d 81.)
A reasonable consideration of the state's 1880 patent indicates an intent to convey the land of the island which lay upland of the northeasterly side of the river. Certainly the grant itself discloses no intent to convey the tidelands on the navigable stream of the river. Accordingly, by virtue of Civil Code section 830 the state's patent conveyed the subject property to, and not beyond, the 'ordinary high water mark.'
[93 Cal.Rptr. 129] Another applicable principle is that expressed by Civil Code section 1069 which, as relevant here, states:
'[E]very grant by a public officer or body, as such, to a private party, is to be interpreted in favor of the grantor.'
It has repeatedly been held that where an ambiguity exists in such a grant the provisions of section 1069 are mandatory; the ambiguity must be resolved in favor of the grantor public officer or body. (See City of Los Angeles v. San Pedro, etc., R. R. Co., 182 Cal. 652, 654-655, 189 P. 449; City of Oakland v. Oakland Water Front Co., 118 Cal. 160, 174-175, 50 P. 277; City of Los Angeles v. Howard, 244 Cal.App.2d 538, 545, 53 Cal.Rptr. 274.) Assuming that the description of the 1880 patent presented an ambiguity as to its southwest boundary--we find none--such must necessarily be resolved in favor of the grantor, the state.
Additionally the record indicates a clear intent and belief and construction by plaintiffs' predecessors in interest that the southwesterly boundary of the subject property lay at the river's high tide line.
As we have noted, Reagan in applying for the patent described the desired property as 'lying and situate on the North side of Petaluma Creek being the second island below the mouth of the San Antonio Creek.' (Emphasis added.) From the description of an island at the side of a river an intent to include tidelands beyond the river's edge may not reasonably be inferred.
The clear purpose of the Act was to encourage the reclamation and use of the state's 'swamp and overflowed, salt marsh and tide lands.' The immediate successors in interest to Reagan's rights, fulfilling their obligation to reclaim the patented land, made no effort to reclaim the tidelands here at issue. Instead they constructed a levee near the edge of the river's high tide line, thus eliminating the tidelands from their reclamation plans. This strengthens the inference that the tidelands were neither included nor intended nor believed to be included, in the state's 1880 patent. It was not until many years later that plaintiffs or their more immediate predecessors built another levee at the river's low tide line. If a conveyance is open to construction as to the extent of the grant 'the most reliable circumstance in aid of such construction is the practical construction given it by the acts of the parties' during the years immediately following its execution. (Yocco v. Conroy, 104 Cal. 468, 471, 38 P. 107; see also People v. Ocean Shore Railroad, 32 Cal.2d 406, 414, 196 P.2d 432, 440, 41 P.2d 543.)
As support for the trial court's findings and judgment, plaintiffs point to the following evidence: (1) 'the uncontradicted testimony of two licensed surveyors working independently and their respective surveys'; (2) 'the plat of the 'Swamp and Overflows' Lands Survey No. 58'; and (3) 'the fact that if the boundary is placed * * * at the high tide line approximately 94 acres would be eliminated from the acreage recited in the patent.'
The first of plaintiffs' surveyor witnesses testified to the following. He was unable to find the county surveyor's starting point, the 'stake in a bed of broken glass.' While the survey's delineations actually enclosed 888 (or 850) acres, th recited 934.65 acres. He had difficulty reconciling the two acreages. Since there was a discrepancy existing on the boundary line he 'had to adjust.' So he 'repositioned' the 'boundary or line when the survey was made.' He explained that he had to 'go out of the [patent's] boundary line' to bring the acreage 'reasonably close to the area that was in the patent.' He reasoned: 'the only place that I know of that the area could be balanced, would have to lie in this area between the described patent line' and the 'low water mark' of the river. That, he said, 'is the only place where I know, in my opinion, that there is sufficient area to come anywhere close to the patent amount that was granted.' He [93 Cal.Rptr. 130] agreed with plaintiffs' counsel that the true line 'just had to go out to the low water, otherwise, the acreage is short.' Based on these and other considerations he concluded that the county surveyor in 1872 was really meandering the 'channel and low water mark' although the courses and distances of his survey indicated otherwise.
The result of the witness' 'repositioning' of the county surveyor's southwesterly line to a meander of the 'channel and low water mark' is worthy of note. The delineations of the 1872 survey would no longer closely approximate the island's topography and its northwesterly and southwesterly sides. Instead, the 1872 plat would be moved along the island about 800 feet southward and about half that distance to the east, resulting in a sort of double image similar to that sometimes seen on a malfunctioning television set. To illustrate: proportionate repositioning of the State of California's boundaries would bring the Oregon border south to about Redding or Eureka and the ocean shore about 50 miles inland, while San Diego and the state's southern border would lie well within Baja California. Questioned about such a result the witness replied, 'I did not take topography into consideration.'
The witness' testimony amounts to no more than an irrelevant conclusion, not where the patent's line was drawn, but instead where the county surveyor should have or intended to, but did not, draw it. Such an intent of the surveyor was immaterial; the land conveyed by the state's patent was that which was therein described. And the witness' conclusion was based on a fancied necessity 'to go out of the boundary line' in order to give effect to the patent's statement that 934.65 acres were involved.
It has been consistently held that a deed's statement of the amount of property conveyed is the 'least reliable of all descriptions of land.' (Verdi Dev. Co. v. Dono-Han Mining Co., 141 Cal.App.2d 149, 154, 296 P.2d 429, 433; Phelps v. Pacific Gas & Elec. Co., 84 Cal.App.2d 243, 248, 190 P.2d 209.) And it is also established law that while a statement of acreage in a deed may be of aid in fixing a doubtful boundary, it 'is not at all conclusive or controlling as to the quantum of land in the tract, * * *.' (See Hostetter v. Los Angeles Terminal Ry. Co., 108 Cal. 38, 42, 41 P. 330, 331; Den v. Spalding, 39 Cal.App.2d 623, 631, 104 P.2d 81, supra.) Indeed, plaintiffs make no serious contention to the contrary. In their brief they finally concede that 'there is no question a recital of excess or shortage is not grounds for altering the boundaries in a patent.' Here the witness seems not to have found the pertinent boundary of the patent to be doubtful; instead he had to 'adjust' and 'reposition' it in order to bring the acreage 'reasonably close to the area that was in the patent.'
Plaintiffs' second surveyor witness was a title insurance company employee. He took no field measurements and made no attempt to develop physical information on the ground. This 'inspection' of the subject property was by means of an aerial 'photo map.' Unlike the first witness he was not 'too concerned with the acreage.' And again unlike the first witness he concluded that the county surveyor's 1872 boundary description 'didn't close.'
Looking through 'title records seeking old deeds' he came to 'the conclusion' that a point by Lakeville Road (apparently several miles from the island) 'was a reasonably good position' to start. So he said, 'I started searching, going back and forth until I found the line here that seemed to line up with my record.' He was led to 'believe that my positioning was relatively close to what the people had been doing with the land.' He then 'plotted in the rest of the S and O's and there is where it fell, somewhere in the vicinity of this line [the disputed southwest shore line of the island].' In his computations he 'did find errors that would cause us to shift one way or another and we did try to reconcile them [apparently without success].' Things 'didn't quite fit here or there, and the dimensions were minor, 10 or [93 Cal.Rptr. 131] 20 or 50 feet, something of that nature.' One of the errors appears to have been where the Petaluma Rancho line on which he relied 'doesn't meet' (it does not appear with what the line failed to connect). The errors apparently presented little difficulty for the witness said 'I just allowed errors to fall there' at the river line. All of this, and other things, caused him to 'feel now [we] are relatively close to where I believe the original surveyor must have set his corners.' The witness concluded that the original surveyor 'was attempting to follow what appears to be the main channel of the Petaluma Creek' where the water was '6, 12 and 18 feet' deep and well beyond even the low tide line. He added that it 'would appear to me that [the original county surveyor] was working out to the visible water as it would normally be used by a boat,' and that other 'people were visibly looking at the creek and that he, perhaps, did also.'
If one were to consider credible the witness' conclusions based upon such a pyramiding of uncertainties, he must go further; he must also believe that the State of California by its reclamation patent authorized the reclamation of a river, navigable by law and in fact, to a point somewhere in its main channel. A similar patent on the other shore followed by the required reclamation would have resulted in the damming of the river, or at least a 2-mile long sluiceway in which its waters would be narrowly confined.
It must be said that from the testimony of plaintiff's surveyor witnesses inconsistent conclusions might be drawn. The first would be that the outline of the county surveyor's courses and distances as shown on plaintiffs' plat fitted and followed the outline of the island's shores, but that in order to 'make up the acreage' they had to go 'outside the boundary described in the patent' and distort and expand it from its original bounds. This of course for reasons we have pointed out, and to which plaintiffs now agree, is impermissible.
A second theory of the witnesses seems to be that the outline of the county surveyor's survey was not intended by him to follow the island's shore line. Instead they point out that it was intended to follow a line somewhere out in the river's channel, thus bringing about the described double image when the 1860 'U.S.C. and G.S. Topographic Survey' is compared with that of 1872. This theory in our opinion defies reason. Furthermore, we are concerned hire with the boundaries as delineated on the patent, not as the county surveyor might have intended them.
The third explanation of the witnesses was that, working from the line of the Petaluma Rancho some miles away, they finally concluded that the county surveyor's survey of the island did not conform or fit into the pattern of, and overlapped, adjacent patents--and for this reason they 'moved' the island's patent delineations in the manner described. Even assuming the doubtful premises to be founded on fact, such title as plaintiffs may have is based upon the patent as written and filed. They acquired no additional rights by this subsequent 'movement' of the patent's southwesterly line from the island's edge into the river.
Without hesitation we conclude that the testimony of plaintiffs' surveyor witnesses does not constitute 'substantial evidence' (sec Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc., 66 Cal.2d 782, 784-785, 59 Cal.Rptr. 141, 427 P.2d 805) in support of the trial court's findings and judgment. As was said in United Professional Planning, Inc. v. Superior Court, 9 Cal.App.3d 377, 392-393, 88 Cal.Rptr. 551, 560, 'Substantial evidence means more than a mere scintilla; it means 'such relevant evidence as a reasonable man might accept as adequate to support a conclusion.' * * * Improbable conclusions will not be sustained where testimony is at variance with the physical facts and the repugnance is material and self evident. * * *' (See also People v. Gibson, 275 Cal.App.2d 198, 210-211, 79 Cal.Rptr. 693; [93 Cal.Rptr. 132] Franco Western Oil Co. v. Fariss, 259 Cal.App.2d 325, 329, 66 Cal.Rptr. 458; San Bernardino Valley Water Dev. Co. v. San Bernardino Valley Municipal Water Dist., 236 Cal.App.2d 238, 257, 45 Cal.Rptr. 793; Estate of Teed, 112 Cal.App.2d 638, 644, 247 P.2d 54.)
For reasons we have already pointed out the remaining evidence relied upon by plaintiffs, i. e., 'the plat of the 'Swamp and Overflow Lands Survey No. 58,'' and 'the fact that if the boundary is placed at the high tide line approximately 94 acres would be eliminated from the patent's acreage,' also does not tend to support the determination of the trial court.
Plaintiffs raise an incidental contention--that the patenting of tidelands elsewhere in the area tends to establish an intent to include the contested tidelands in the patent under which they claim title. It does not appear that such other tidelands were in the main stream of the river. And we note again that even the island's patent included salt marsh and backwater channel tidelands beyond its northeasterly side. The point is without merit.
We hold that the state's 1880 patent which is the subject of this appeal does not include within its boundaries the disputed 38 acres beyond the river's high tide line.
It becomes unnecessary to a resolution of this appeal to pass upon the state's contention that, assuming a state conveyance of the disputed tidelands, they are nevertheless subject to a retained easement for the purpose of navigation and fisheries.
The state now, on this appeal, asks that we declare the reclaimed salt marsh land and backwater channel northeastward of the island which was included in the 1880 patent, to be subject to the abovementioned easement for navigation and fisheries. It is conceded that this issue was not presented, and this relief not sought, in the trial court. Under established appellate procedure we decline now to consider the point. 'The general rule is * * * that points not urged in the trial court may not be urged for the first time on appeal.' (Damiani v. Albert, 48 Cal.2d 15, 18, 306 P.2d 780, 782-783.)
The judgment of the superior court, on appropriate findings, will be modified (1) by excluding from the land to which plaintiffs', title is quieted, the tidelands lying riverward of the ordinary high tide line of the southwesterly side of the island, and (2) declaring such tidelands to be owned in fee simple by defendant State of California by virtue of its sovereignty. As so modified the judgment is affirmed. Defendant State of California will have its costs on appeal.
MOLINARI, P. J., and SIMS, J., concur.