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White v. State of California

21 Cal. App. 3d 738, 99 Cal. Rptr. 58, 1971 Cal. App. LEXIS 1116
California Court of Appeal·Decided December 2, 1971·No. Civ. 28156·Published·Cited by 19 cases

Opinion

Opinion

ELKINGTON, J.

An appeal is taken by the State of California from a judgment in favor of plaintiffs Osborne and Aileen White which quieted title to 38 acres of valuable tidelands of Petaluma River (sometimes called Petaluma Creek). Tidelands are the “land lying between the ordinary high and low tide lines.” (People v. California Fish Co., 166 Cal. 576, 583 [138 P. 79].) The plaintiffs claimed title through a patent issued to their predecessors in interest by the State of California.

I. The Case

At the point where Petaluma River flows over the subject tidelands 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, ch. CXCVII, p. 916; Har. & Nav. Code, § 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, *743 Water Resources Development in California, 1 305,000 tons of freight were carried on the river.

In 1870 one John Reagan filed an application for a patent to 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 San Antonio Creek.” The island had been topographically surveyed in 1860. The relevant portion of this survey is depicted as “Figure One,” page 744, infra. The typewritten markings have been added by us. It will be noted that the main channel of Petaluma River flowed (and still does) off the southwesterly shore of the island, and as indicated, the outlined area of the river which loops around into “Rush Creek” and “False Bay” traces the low tide lines. Also noteworthy is the fact that the island’s northerly, easterly, and southerly sides merge into shallow “saltmarsh tidelands.”

Reagan’s patent application was made under the authority of “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 tidelands.” (Stats. 1867-1868, ch. 415, p. 507—herein called “the Act.”) A condition of such a patent was that the applicant reclaim the land. The statutory cost to the applicant was $1.00 per acre. The Act provided that the county surveyor must .survey the desired land, his survey thereafter to be submitted for approval to the state’s Surveyor General.

As provided by the Act the Sonoma County surveyor thereafter surveyed the island in 1871, following which a record of the survey was submitted to the state Surveyor General for approval. It was called “Swamp and Overflowed Lands Survey No. 58” (hereinafter S & O Survey #58). S & O Survey #58 placed the starting point of its subject land’s boundary as “Beginning at a stake set in a bed of broken glass bearing N 59V2 W from the center cor [¿7c] to section 33 distant 2384 chs.” (The stake and the bed of broken glass have vanished with time; they cannot be found.) There followed 31 counterclockwise zig-zag calls of courses and distances, which finally closed the survey’s plat at the point of beginning.

Also on the recorded survey the county surveyor sketched the survey’s perimeter plat, its courses and distances, and its relation to Petaluma River and to sections 3, 4, 33 and 34, “Base and Meridian of Mount Diablo.” A copy of the survey’s sketch is to be found on “Figure Two,” page 746, infra. The survey’s plat, the river, and sections 3, 4, 33 and 34, *745 are as they appear in the original; for clarity we have superimposed certain captions and markings.

*744

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White v. State of California, 21 Cal. App. 3d 738, 99 Cal. Rptr. 58, 1971 Cal. App. LEXIS 1116 (Cal. Ct. App. 1971).

21 Cal. App. 3d 738 (White v. State of California) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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