COLBERG, INC., еt al., Plaintiffs and Appellants, v. THE STATE OF CALIFORNIA EX REL. DEPARTMENT OF PUBLIC WORKS, Defendant and Respondent. STEPHENS MARINE, INC., Plaintiff and Appellant, v. THE STATE OF CALIFORNIA EX REL. DEPARTMENT OF PUBLIC WORKS, Defendant and Respondent.
Sac. No. 7694
In Bank. Supreme Court of California
Oct. 3, 1967.
67 Cal.2d 408 | 62 Cal.Rptr. 401 | 432 P.2d 3
(Consolidated Cases.)
Harry S. Fenton, Robert F. Carlson and Marc Sandstrom for Defendant and Respondent.
SULLIVAN, J. — These consolidated actions1 for declaratory relief present the common issue whether plaintiff shipyard owners will have any causes of action for damages under the law of eminent domain arising out of the impairment of their access to the Stockton Deep Water Ship Channel as a result of the construction of two proposed fixed low level parallel bridges spanning a connecting navigable waterway to which their properties are riparian. Separate judgments on the pleadings in favor of defendant State of California were entered below and all plaintiffs have appealed.
The record discloses that although the judgments were entered upon an order granting separate motions for judgment on the pleadings, defendant filed no answer in either case. Its motion therefore had the purpose and effect of a
The Stockton Deep Water Ship Channel is a navigable tidal waterway extending from the mouth of the San Joaquin River to the Port of Stockton. From the turning basin adjoining the port, the channel continues easterly for about 5,000 feet and comes to a dead end within the confines of the city. This portion of the waterway is known as the Upper Stockton Channel. Plaintiffs Colberg3 and Stephens Marine, Inc. (Stephens), own real property in the City of Stockton riparian to the Upper Stockton Channel upon which for more than sixty years they have conducted shipyards for the construction and repair of yachts and ocean-going vessels. Both yards are improved with marineways, buildings, docks and allied facilities. Colberg‘s property consists of approximately eight acres; Stephens’ of approximately six. Ships and other craft now using the Uрper Stockton Channel can proceed to the turning basin and the Stockton Deep Water Ship Channel and thereupon navigate to the open sea by way of the Carquinez Straits and San Francisco Bay.
Colberg alleges that 81 percent of its current business involves ships standing more than 45 feet above the water line. Plaintiff Stephens alleges that 35 percent of its current business involves such ships. The present minimum clearance between plaintiffs’ yards and the Pacific Ocean is 135 feet, established by the Antioch Bridge. Plaintiffs allege in substance that after the construction of the proposed bridges, no vessel with fixed structure in excess of 45 feet above the water line will be able to enter their respective shipyards; that there is no other access by water to the yards from the San Joaquin River, San Francisco Bay and the oceans of the world; and that plaintiffs, their properties and their businesses will suffer loss and damages because of the impairment of access resulting from the construction of the bridges.4 Plaintiffs in both actions allege that an actual controversy exists (see
Counsel for the state pointed out to us at oral argument that a bridge of vertical clearance sufficient to accommodate plaintiffs’ shipyard traffic would involve greatly increased construction costs because it would entail extended apрroaches;5 that the added height of such approaches would have an
The trial court granted the state‘s motion for judgment on the pleadings in both cases and entered judgments accordingly. In its memorandum opinion it held that diminution of the scope of plaintiffs’ access from their respective properties to the Stockton Deep Water Ship Channel as a result of the state‘s proposed action relative to its navigable waters would not constitute a taking or damaging of private property for which just compensation would be required.
It is not disputed that an actual controversy exists between the parties on this question; that if plaintiffs were required to await construction of the bridge before commencing an action at law, they would suffer irreparable damage because of interference with their businesses during construction; that a declaratory judgment resolving the question of compensability in their favor prior to completion of the bridge project will permit relocation of their respective operations with a minimum of inconvenience; and that plaintiffs will be unable to plan their businesses or enter into necessary long-term business contracts, until such question is settled. We are satisfied that under the above circumstances plaintiffs were entitled to invoke declaratory relief.6
The sole question in this case is whether the alleged impair
In order to put the controversy into proper focus, we must first make some preliminary observations concerning plaintiffs’ position and the nature and extent of their claim.
First, it is clear that plaintiffs must assert the taking or damaging of a private right in order to bring themselves within the protective embrace of
We deem it unnecessary to decide this question, for we have determined that, whatever the scope of plaintiffs’ right of riparian access as against other private persons, that right must yield without compensation to a proper exercise of the power of the state over its navigable waters. It is to a discussion of this latter power that we now turn.
The State of California holds all of its navigable waterways and the lands lying beneath them “as trustee of a public trust for the benefit of the people.” (People v. Gold Run Ditch & Min. Co. (1884) 66 Cal. 138, 151 [4 P. 1152, 56 Am.Rep. 80]; see also Martin v. Waddell (1842) 41 U.S. (16 Pet.) 367, 410 [10 L.Ed. 997, 1012]; Shively v. Bowlby (1894) 152 U.S. 1, 11-18 [38 L.Ed. 331, 336-338, 14 S.Ct. 548]; Eldridge v. Cowell (1854) 4 Cal. 80, 87; Ward v. Mulford (1867) 32 Cal. 365, 372; People v. California Fish Co. (1913) 166 Cal. 576, 584-585 [138 P. 79] and cases there cited; Henry Dalton & Sons v. Oakland (1914) 168 Cal. 463, 465, 467-468 [143 P. 721]; City of Long Beach v. Lisenby (1917) 175 Cal. 575, 579 [166 P. 333]; Atwood v. Hammond (1935) 4 Cal.2d 31, 40 [48 P.2d 20]; Katenkamp v. Union Realty Co. (1936) 6 Cal.2d 765, 769 [59 P.2d 473]; Miramar Co. v. City of Santa Barbara (1943) 23 Cal.2d 170, 174 [143 P.2d 1]; see generally 51 Cal.Jur.2d pp. 466-467, 508-509; 56 Am.Jur. pp. 698-699.) Its power to control, regulate and utilize such waters within the terms of the trust is absolute except as limited by the paramount supervisory power of the federal government over navigable waters. (Gray v. Reclama-
The courts have construed the purposes of the trust with liberality to the end of benefiting all the people of the state. In the early case of People ex rel. Board of State Harbor Comrs. v. Potrero & Bay View R.R. Co. (1885) 67 Cal. 166 [7 P. 445], defendant, under authority of a franchise granted by the Legislature, constructed a railroad bridge across Islais Creek, a navigable waterway. The bridge was an obstruction to navigation, and the Board of State Harbor Commissioners sought to have it abated as a nuisance. It was contended that the legislative act granting the right to build the bridge was in conflict with the act of Congress admitting California into the Union, which act provided that ” ‘all the navigable waters within the State shall be common highways and forever free, as well to the inhabitants of said State as to the citizens of the United States, without any tax, impost, or duty therefor.’ ” This court rejected this contention, holding inter alia that “while the power of the State with respect to the construction, regulation, and control of bridges . . . is subordinatе to that of Congress, still until Congress acts on the subject, the power of the State is plenary.” (67 Cal. at p. 168.) Though we there made no explicit reference to the extent of the trust relating to navigable waters, we impliedly held that the spanning of navigable waters by a railroad bridge was an act
In Boone v. Kingsbury (1928) 206 Cal. 148 [273 P. 797], the state surveyor-general had refused to issue to plaintiffs permits to prospect for oil and gas upon tidal lands covered by navigable sea waters upon the ground, inter alia, that the granting of such permits would constitute an act without the scope of the trust because such prospecting would not be “in aid and furtherance of commerce and navigation.” We rejected that contention, holding that the relationship of gasoline to commerce was manifest. “Gasoline is the power that largely moves the commerce of nations over lands and sea; . . . Gasoline is so closely allied with state and national welfare as to make its production a matter of state and national concern. If it can be said of any industry that its output is ‘in aid and furtherance of commerce and navigation,’ and its production ‘a public benefit,’ the production of gasoline, by reason of the motive elements that inhere in it and its universal use and adaptability to varied uses and the convenient and portable form in which it may be confined, would entitle it to a high classification in the scale of useful, natural products. It is a mover of commerce and fills the office of ‘a public benefit.’ ” (206 Cal. at p. 181.)
Finally, in the case of Gray v. Reclamation Dist. No. 1500, supra, 174 Cal. 622, plaintiffs sought to enjoin the operations of defendant district, which was engaged in efforts to reclaim land and prevent flooding, with incidental benefits to navigation, near the confluence of the Sacramento and Feather Rivers. We there rejected plaintiffs’ contention that the state had no power to deal with its navigable waters unless its dominant purpose was to improve navigation. “The supreme control of the state over its navigable waters was early declared in Eldridge v. Cowell, 4 Cal. 80, approved in United States v. Mission Rock Co., 189 U.S. 391 [47 L.Ed. 865, 23 S.Ct. 606]. This right of control embraces within it not alone the power to destroy the navigability of certain waters for the benefit of others, but extends in the case of streams to the power to regulate and control the navigable or non-navigable tributaries, as in the debris cases, to the erection of structures along or across the stream, to deepening or changing the channel, to diverting or arresting tributaries; in short, to do anything subserving the great purpose, . . .” (Italics added.) (174 Cal. at p. 636.)
We have referred above to the paramount supervisory power of the federal government over navigable waters. This power, though superior to that of the state, is not grounded in ownership of the navigable waterways upon which it operates, but rather derives from the commerce clause of the United States Constitution, and it has been statеd that it may properly be exercised only in order to aid navigation. (Port of Seattle v. Oregon & W. R.R. Co. (1921) 255 U.S. 56, 63 [65 L.Ed. 500, 506, 41 S.Ct. 237]; United States v. Kansas City Life Ins. Co. (1950) 339 U.S. 799, 808 [94 L.Ed. 1277, 1284, 70 S.Ct. 885]; see also United States v. River Rouge Improv. Co. (1926) 269 U.S. 411, 419 [70 L.Ed. 339, 345, 46 S.Ct. 144]; but see United States v. Twin City Power Co. (1956) 350 U.S. 222 [100 L.Ed. 240, 76 S.Ct. 259]; United States v. Commodore Park (1945) 324 U.S. 386, 391-392 [89 L.Ed. 1017, 1021-1022, 65 S.Ct. 803]; United States v. Gerlach Live Stock Co. (1950) 339 U.S. 725 [94 L.Ed. 1231, 70 S.Ct. 955, 20 A.L.R.2d 633]; see generally Morreale, Federal Power in Western Waters (1963) 3 Nat‘l Resources J. 1, 9-19.) The Fifth Amendment to the United States Constitution9 is of course applicable to the exercise of the federal navigational power within its proper scope, just as
As we have shown above, thе power of the State of California to deal with its navigable waters, though subject to the superior federal power, is considerably wider in scope than that paramount power. The state, as owner of its navigable waterways subject to a trust for the benefit of the people, may act relative to those waterways in any manner consistent with the improvement of commercial traffic and intercourse.
We are of the further view that the law of California burdens property riparian or littoral to navigable waters with a servitude commensurate with the power of the state over such navigable waters, and that “when the act [of the state] is done, if it does not embrace the actual taking of property, but results merely in some injurious effect upon the property, the property owner must, for the sake of the general welfare, yield uncompensated obedience.” (Gray v. Reclamation Dist. No. 1500, supra, 174 Cal. 622, 636.)
We have arrived at this conclusion after an examination of cases from other jurisdictions. It appears that in some states the servitude operates only when the state acts upon its navigable waters for the purpose of improving navigation, and that private rights “damaged” by acts not in aid of navigation are therefore compensable. (Beidler v. Sanitary Dist. (1904) 211 Ill. 628, 637 [71 N.E. 1118, 67 L.R.A. 820]; Natcher v. City of Bowling Green (1936) 264 Ky. 584, 592-593 [95 S.W.2d 255]; State ex rel. Andersons v. Masheter (1964) 1 Ohio St.2d 11, 12-13 [203 N.E.2d 325]; In re Construction of Walnut Street Bridge (1899) 191 Pa. 153 [42 A. 88];
The limitation of the servitude to cases involving a strict navigational purpose stems from a time when the sole use of
It is clear that the conclusions above expressed dispose of plaintiffs’ contention that their right of access to the navigable waters fronting on their respective properties must, in order to be of utility, include the right to navigate freely to the sea.14 Whatever the scope and character of their right to have access to those navigable waters,15 we hold that such right is burdened with a servitude in favor of the state which comes into operation when the state properly exercises its power to control, regulate, and utilize such waters.
In City of Newport Beach v. Fager, supra, 39 Cal.App.2d 23, defendants’ access to navigable waters over their littoral
We also reject plaintiffs’ contention that our highway access cases (see Bacich v. Board of Control (1943) 23 Cal.2d 343 [144 P.2d 818]; Breidert v. Southern Pac. Co. (1964) 61 Cal.2d 659 [39 Cal.Rptr. 903, 394 P.2d 719]) require that compensation be paid for any substantial impairment of plaintiffs’ right of access. We are not persuaded that the analogy between highway access and navigational access will bear close scrutiny. The right of access to a land highway
Finally, we emphasize that the state servitude upon lands riparian or littoral to navigable waters, like the federal servitude burdening such lаnds, does not extend to cases wherein the proper exercise of state power results in actual physical invasion of or encroachment upon fast lands. In the case of Miramar Co. v. City of Santa Barbara, supra, 23 Cal.2d 170, plaintiff was the owner of lands littoral to a navigable bay and defendant, a political subdivision of the state, constructed a permanent breakwater in the bay about three miles to the west of plaintiff‘s property. The effect of this breakwater upon natural drifts and currents operated in the course of time to denude plaintiff‘s property of sandy beach, rendering the property valueless as a beach resort. It was alleged that defendant, before it built its breakwater, knew that the effect complained of would occur. Plaintiff sued in inverse condemnation, and the trial court entered a judgment of dismissal after sustaining defendants’ demurrer without leave to amend. Upon affirmance of the judgment by this court it was said: “Plaintiff‘s littoral right to sandy water [which provided the accretion necessary to offset tidal washing], like its littoral right to access to the ocean, was derived entirely from the proximity of plaintiff‘s land to thе ocean. It gave to plaintiff‘s land the advantage of sandy accretions. Nevertheless, the enjoyment of that advantage did not constitute a right to its perpetuation, for plaintiff‘s littoral rights were always subordinate to the state‘s right to improve navigation.17 The duration of the sandy accretions depended entirely upon the continuation of the littoral right, which from the beginning was subject to termination by the state. The withdrawal
It therefore appears that this court in the Miramar case, though divided as to the proper result under the facts there at issue, reached fundamental agreement on the extent to which the state, through the proper exercise of its trust power to deal with navigable waters, may impair without compensation rights appurtenant to property riparian or littoral to such waters. The servitude with which such property is burdened precludes compensation for impairment or curtailment of all rights not damaged by permanent physical invasion of or encroachment upon fast lands; when the exercise of the power does cause such physical invasion or encroachment, the servitude is inapplicable and rights damaged as a result are compensable in accordance with
We hold that plaintiffs’ right of access from their respective riparian properties to the waters of the channel, whatever its scope as against private parties, is burdened with a servitude in favor of the state and that, since there is here no direct physical invasion of, or encroachment upon, said properties by the state, plaintiffs are not entitled to compensation for the abridgment or diminution, if any, of such right
The judgments are, and each of them is affirmed.
Traynor, C. J., McComb, J., Tobriner, J., and Burke, J., concurred.
PETERS, J. — I dissent.
I cannot agree that because the state wants to build two low-level highway bridges across the mouth of an inlet where plaintiffs’ shipyards are located, plaintiffs must suffer the complete loss caused by the impairment of their right of one-way water access to deep water. Principles of fairness, logic and public policy suggest that this loss is a part of the cost of the freeway that should not be borne by plaintiffs but should be borne by the public. Compensation should therefore be allowed.
The access impaired here is one-way access to the oceans of the world. Such access is indispensable to the operation of plaintiffs’ businesses.1 So, the impairment is not technical. It is substantial and different in nature and degree from the impairment suffered by the general public. There is not involved the mere hypothetical damage to vacant land, nor are we dealing with speculators, nor with newly created businesses. Both plaintiffs have been operating bona fide shipyards in the inlet for over 60 years. Thus, we are not involved with a mere incidental impairment of the right of access but are dealing with a very substantial impairment. The impairment is not caused by a construction strictly in aid of navigation but the bridges are part of a state freeway. If the freeway impaired land access to the same degree such impairment would be compensable. These facts are indisputable.
The majority hold that, under these facts, case law and public policy dictate the conclusion that compensation should not be allowed. So far as case law is concerned the majority have done a commendable job in collecting the cases discussing the nature of the rights involved. But all that this exhaustive analysis proves is that there are no definitive cases in California, and that the decisions of other states reach
Today government is big and complex and constantly growing bigger. The legitimate need of government for property is constantly expanding. Thus, more and more frequently, the rights of individuals and the government come into conflict. When this occurs then this court must referee the conflict and try to protect the rights of the state and the rights of the individual. In doing so we must keep in mind the admonition of our Constitution that property “shall not be taken or damaged for public use without just compensation.”2
Nowhere is this conflict between the state and the individual made more apparent than by the state‘s need to build new highways and freeways which frequently include, as here, the building of bridges. The problem became very apparent in the construction of the freeways and the approaches leading to the San Francisco Bay Bridge. Rights of access were obviously impaired. In the case of Bacich v. Board of Control, 23 Cal.2d 343 [144 P.2d 818], where the construction of the approaches to the Bay Bridge placed plaintiff‘s land and property in a cul-de-sac, the problem was directly presented. Plaintiff had still one-way access to the general system of streets but his access in the other direction was substantially cut off. There was no controlling case in California. Cases elsewhere were in conflict. The court reсognized that it was a problem of first impression, and that it was required to determine the public policy of this state. It then showed no hesitancy, as it does now, to declare such policy. It held that when the right of access was impaired, as distinguished from a physical taking or damaging, there must be a weighing of
The major error in the majority opinion is its holding that all the state‘s uses of its navigable waters must be treated in the same identical fashion. It may be that when the state acts strictly in aid of navigation that the right of the state is absolute and the property owner is entitled to no compensation (Miramar Co. v. City of Santa Barbara, 23 Cal.2d 170 [143 P.2d 1]) for impairment of his rights. But where the use by the state is not strictly for navigation purposes, but, as here, is for freeway purposes, principles of equity, justice, fairness, and certainly of public policy, dictate that the same public policy declared in the land access cases should apply.
When this case was before the Court of Appeal of the Third Appellate District, Justice Friedman prepared a scholarly and exhaustive opinion for the court that discusses these positions in depth. The following portions of that opinion are adopted as part of this dissent. (Colberg, Inc. v. State of California (Cal. App.) 55 Cal.Rptr. 159.)
“The amendment of state constitutions, including California‘s, to provide compensation when private property is ‘damaged’ as well as ‘taken’ for public use, indicates an
“The central problem is to locate a line between compensable damage to private property and disadvantages of the kind called ‘consequential.’ Of the latter sort are such elements as loss of business and diminution of traffic caused by diversion of traffic and circuity of travel. (People ex rel. Department of Public Works v. Symons (1960) 54 Cal.2d 855, 860 [9 Cal.Rptr. 363, 357 P.2d 451].) Applying the economic balancing test, the Supreme Court points out that awards of the latter sort would severely burden the public treasury and produce “an embargo upon the creation of new and desirable roads.“’ (Ibid., p. 862, 9 Cal.Rptr. p. 367, 357 P.2d p. 455.)
“The street access doctrine represents an expanded notion of the constitutional concept of private property whose inva
“Claims for loss of street access often arise because the public improvement places private property on a cul-de-sac, restricting accessability to one direction only, e.g., Valenta v. County of Los Angeles, supra; Bacich v. Board of Control, supra. The Colberg and Stephens shipyards are situated on a natural cul-de-sac. Without the intervention of the public improvement, they have marine access to the outside world in one direction only. According to the complaints, construction of the public project will obstruct much of the single marine route between their property and the outside world. Their private right of access to the navigable water in front of their property has little value if that is as far as they can go.5 Location on a partially blocked, marine cul-de-sac is one element in the group of circumstances indicating the occurrence or absence of a substantial impairment of the easement of access.
“Doubtless these shipyards have street access on the landward side. Shoreline properties have obvious economic attributes resulting from their accessibility by water. Residual access by land may supply scant economic solace when marine access beyond the immediate waterfront is obstructed or
“The state contends that the street access doctrine is only an analogy. It suggests that the public policy of the street access cases, where economic balancing is possible, does not apply to loss of marine access; that the public can supply economical alternative routes to compensate for closed streets but not for closed waterways; further, that a bridge of limited clearance across a busy waterway may elicit damage claims so heavy and widespread as to prevent the project. These factors evoke no policy considerations excluding access by water from the general easement of access recognized in eminent domain. The balancing approach is much broader than the street access cases. It is employed to measure the reach of the policy underlying the eminent domain provision of the state Constitution, laying down a line which separates compensable injuries frоm noncompensable disadvantages. In Albers v. County of Los Angeles, supra, it is used in the context of a landslide damage claim; in Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 642 [220 P.2d 897], to determine compensability of flood damage. In the course of the latter decision the court states: ‘The decisive consideration is whether the owner of the damaged property if uncompensated would contribute more than his proper share to the public undertaking.’ (Clement v. State Reclamation Board, supra, 35 Cal.2d at p. 642 [220 P.2d at p. 905].)
“Viewed in the light of the economic balancing criterion, the present injuries are sharply focused on two properties. They arouse no concern for the public purse beyond that involved in any eminent domain proceeding. While shared with the general public, marine passage along Upper Stockton Channel without a height restriction is a unique economic attribute to two commercial shipyards located on a marine cul-de-sac.6 The prospect of damage claims from the two owners is not so monumental as to discourage the freeway project of which the bridges are a part. The taxpayers can absorb the cost with far less hardship than the owners. (Albers v.
“The selection between a low level bridge and reasonable alternatives is essentially a budgetary and planning choice by the administrator. Potential damage to the littoral owners may approach the cost of raising the bridge level. At that point the administrator starts thinking of an acceptable alternative, for example, a higher bridge. Intangible community values imperiled by the extended ramps of a high bridge may impel his return to the low level design. Whatever motivates the administrator to choose a low level bridge, dollars or intangible community values, the individual property owner ‘if uncompensated would contribute more than his proper share to the public undertaking.’ (Clement v. State Reclamation Board, supra, 35 Cal.2d at p. 642 [220 P.2d at p. 905].)
“The specter of widespread damage claims caused by a bridge athwart a busy artery of marine commerce arouses no policy tremors. Potential economic injuries from obstructions to navigation are limited by federal statutes investing the Chief of Engineers and the Secretary of the Army with discretionary permit powers in the interest of protecting navigation. (See
“We resist the invitation to follow the nuisance and equity decisions which deny upstream owners relief against downstream bridges which obstruct navigation. (See cases cited fn. 4, supra.) [Fn. 4. Gilman v. Philadelphia (1866) 70 U.S. (3 Wall.)
“Eminent domain decisions in other states on compensability of obstructions to navigation vary. The variation is often prompted by the language of the particular state‘s constitutional provision. In Pennsylvania, where the Constitution was amended to provide compensation for property ‘injured’ as well as taken, a wharf owner was awarded damages when a city bridge prevented vessels from passing upstream to his wharf. (In re Construction of Walnut Street Bridge, supra, 191 Pa. 153 [43 A. 88], reported sub nom. Gumbes v. City of Philadelphia, 191 Pa. 153 [43 A. 88].) In State ex rel. Andersons v. Masheter, supra, where the Ohio Constitution limited compensation to a ‘taking,’ the court denied recovery under similar facts. One of the Ohio judges dissented, believing that the riparian terminal operator had developed a private right of navigation which was separate from that of the public and was ‘taken’ from him by the bridge.7 In New York a similаr claim was denied on the theory (imported from the equity and nuisance decisions) that the right of navigation is ‘exclusively a public right.’ (Marine Air Ways v. State of New York, supra, 201 Misc. 349, 350 [104 N.Y.S.2d at p. 967], affd. 280 App.Div. 1021 [116 N.Y.S.2d 778].) The Florida courts have adopted the same rationale. (Moore v. State Road Dept., supra (Fla.App.) 171 So.2d 25; Carmazi v. Board of County Comrs., supra (Fla.App.) 108 So.2d 318.) None of these deci-
“Both sides seek support in City of Los Angeles v. Aitken, 10 Cal.App.2d 460 [52 P.2d 585]. The action was one to condemn littoral rights on a navigable lake whose level would be lowered by the condemning agency‘s diversion of tributary streams. The defendant owned shoreline resort property. According to the opinion, the marginal owner‘s privilege of boating was not itself compensable, but constituted an element in the valuation of his shoreline property. The case supplies no precedent here, since it involves a destruction of the littoral owner‘s private right of access to navigable water directly fronting on his property.
“The second major question is posed by the doctrine denying compensation when a littoral owner‘s interests in navigable water are damaged through the exercise of the ‘navigation servitude,’ that is, through the public‘s paramount power to control navigable waters in the interest of navigation and commerce. (See generally Miramar Co. v. City of Santa Barbara, supra, 23 Cal.2d 170 [143 P.2d 1]; 2 Nichols [on Eminent Domain (3d ed.)] op. cit., pp. 247-258.) The state relies upon cases which seemingly extend the doctrine to public improvements which aid commerce as well as those aiding navigation. (Henry Dalton & Sons Co. v. Oakland, supra, 168 Cal. 463, 467 [143 P. 721]; City of Newport Beach v. Fager, supra, 39 Cal.App.2d at p. 28 [102 P.2d 438].) It points out that the proposed bridges are part of an interstate freeway project which will improve access to Stockton harbor and benefit land and water transportation.
“Broad dicta in some of the decisions permit identification of the navigation servitude with the promotion of ‘commerce’ without express restriction to waterborne commerce. Such statements should not be taken out of context. Decisional law rejects the notion that any project facilitating commerce is ipso facto within the sovereign power over waterways. Nor do the parallel powers of the federal and state governments over navigation include every public project affecting the navigable capacity of water. Although most generalizations entail some peril, the general tenor of the decisions is that the navigation servitude is limited to public works designed to aid or
“The state seeks to extend the navigation servitude on the strength of decisions permitting improvements on publicly owned tidelands without compensation for the uрland owner‘s loss of access, e.g., Miramar Co. v. City of Santa Barbara, supra, 23 Cal.2d 170 [143 P.2d 1]; Henry Dalton & Sons Co. v. Oakland, supra, 168 Cal. 463 [143 P. 721]; City of Newport Beach v. Fager, supra, 39 Cal.App.2d 23 [102 P.2d 438]. In those cases the public‘s immunity is said to extend not only to tideland projects promoting navigation but to any ‘lawful use or purpose.’ (People v. Hecker, 179 Cal.App.2d 823, 840 [4 Cal.Rptr. 334]; City of Newport Beach v. Fager, supra, 39 Cal.App.2d at p. 28 [102 P.2d 438].) The tideland cases turn upon the principle that the littoral rights of an owner whose land adjoins publicly owned tidelands may be terminated by whatever disposition of the tidelands the public
“Finally, the state urges that the federal permit to construct the low level bridge project across Upper Stockton Channel is ‘conclusive.’ Perhaps it is, in the limited sense that a court may not restrain an obstruction to navigation permitted by federal law. (See cases cited fn. 4, supra.) The permit is only a deсlaration of federal assent, not a delegation of power.9 Federal assent to the project does not shield the state from the eminent domain provision of its own constitution. ‘It must be remembered . . . that damage may be inflicted within the meaning of such a constitutional provision by the mere exercise of unquestioned public rights.’ (2 Nichols, op.cit., p. 265.)
“We conclude that the bridge project is not an exercise of the state‘s navigation servitude; that the project will cause compensable damage to plaintiffs’ private properties if, in an appropriate proceeding, a court finds substantial impairment of their respective easements of access.”
For these reasons I believe the judgments should be reversed.
Mosk, J., concurred.
Appellants’ petition for a rehearing was denied November 1, 1967. Peters, J., and Mosk, J., were of the opinion that the petition should be granted.
Notes
“50 foot vertical clearance above mean sea level: $27,448,000.00
“63 foot vertical clearance above mean sea level: $38,724,000.00
“100 foot vertical clearance above mean sea level: $46,398,000.00
“No estimate of cost has been made by the defendant for a bridge 135 feet above mean sea level“; further alleges that “the determination of the defendant to construct said bridges with a vertical clearance of 50 feet above mean sea level, and to construct them without facilities for a lift type or draw-bridge type bridge, has been made solely upon considerations of economy and the advantages to motor vehicle traffic safety and utility, and not upon any consideration to improve navigation. Plaintiffs further allege that said bridges are an obstruction to navigation and do not improve navigation in аny manner whatsoever.” At this point we paraphrase the majority opinion in Bacich v. Board of Control, supra, 23 Cal.2d at p. 354 [144 P.2d at p. 825], which states: ‘To be able to get onto the street immediately in front of the property is of little value if that is as far as [the owner] can go.’