Paull C. Walker and Margery F. Walker (collectively defendants) appeal after the trial court granted Alvin H. Luckenbach and Maria E. Luckenbach's (collectively plaintiffs)
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs own a residential subdivision lot (lot 102) in the town of Bethel Island, California. Defendants own the residential subdivision parcel (comprised of lot 103 and a small portion of lot 104), adjacent to plaintiffs' lot. Both lots have frontage on Taylor Slough, a navigable waterway. This matter involves the question of the proper boundary line between the parties' areas of littoral rights
On September 29, 1998, plaintiffs filed a complaint for damages for trespass to real property and for a temporary restraining order, preliminary injunction, and permanent injunction. The complaint alleged that a houseboat moored to defendants' dock extended onto plaintiffs' property.
On December 27, 2000, defendants filed a motion for summary judgment or, in the alternative, summary adjudication of issues, claiming, inter alia, that the area in question was within the area of navigable water owned by the State of California and that the parties' rights were governed under leases and permits issued by the state.
Also on December 27, 2000, plaintiffs filed a motion for summary judgment or, in the alternative, summary adjudication of issues (summary adjudication motion).
On January 29, 2001, the trial court issued its tentative ruling denying defendants' motion for summary judgment and granting plaintiffs' request for summary adjudication on all but one cause of action.
Also on January 29, 2001, defendants filed a cross-complaint to quiet title to the disputed portion of Taylor Slough, pursuant to a lease they had obtained from the State Lands Commission (Commission) on August 12, 1991. Then, on January 30, 2001, defendants requested and the trial court granted a continuance for discovery, which the court ordered reopened "only with regard to the State Lands Comm[ission]."
On October 5, 2001, defendants served notice that they were dropping their summary judgment motion on the grounds that (1) their lease had expired, (2) they had learned that the state may not own the submerged land, and (3) discovery that certain facts in the parties' joint stipulation of facts were not true.
On February 5, 2002, over one year after the first hearing on plaintiffs' summary adjudication motion, the trial court held another hearing on plaintiffs' motion and took the matter under submission.
On February 8, 2002, defendants filed a motion seeking leave to amend their answer and cross-complaint. In their motion, defendants stated: "The amended pleadings are designed to take into account facts uncovered in October 2001 as to the ownership of the subject portion of Taylor Slough." In particular, the motion asserted that "it has become apparent that the area of the current configuration of Taylor Slough at issue in this action is not a part of the original portion of Taylor Slough that existed, circa 1850, when California received title to submerged lands upon achieving statehood." Based on these facts, defendants' proposed amendments would add defenses and causes of action for adverse possession and a prescriptive easement.
On March 26, 2002, the trial court denied defendants' motion to amend.
On May 4, 2002, the trial court filed an informal ruling—followed by an order on February 3, 2003—granting in part plaintiffs' summary adjudication motion. In its order, the trial court granted summary adjudication as to all causes of action except for the third cause of action for declaratory relief regarding defendants' violation of the CC&R's.
On May 5, 2003, defendants filed a motion seeking leave to file a supplemental answer and cross-complaint to allege that the submerged land was not owned by the state and to assert causes of action for a prescriptive easement and adverse possession.
On July 14, 2003, the trial court entered an order denying defendants' motion to supplement their answer and cross-complaint.
On September 19, 2003, the trial court granted plaintiffs' motion for summary judgment and entered judgment thereon. On February 17, 2004, plaintiffs filed a notice of entry of judgment.
On March 11, 2004, defendants filed a notice of appeal.
On November 8, 2005, this court ordered that all proceedings in this appeal be stayed, in light of bankruptcy proceedings initiated by Alvin H. Luckenbach on October 12, 2005. On March 10, 2008, plaintiffs advised the court that the United States Bankruptcy Court, Northern District of California, had filed an order lifting the stay as to this appeal. On June 19, 2009, we therefore ordered that the stay previously imposed be lifted, and this appeal was restored to active status. We also granted plaintiffs' motion to substitute John T. Kendall, United States Bankruptcy Trustee, etc., as respondent, in place of Alvin H. Luckenbach.
Trial Court's Grant of Plaintiffs' Motions for Summary Adjudication and Summary Judgment
Defendants contend the trial court improperly granted plaintiffs' summary adjudication and summary judgment motions because there were several triable issues of material fact that precluded the granting of these motions.
Grant of Summary Adjudication of Issues
On February 3, 2003, the trial court filed an order granting plaintiffs' summary adjudication motion, on all except the third cause of action (for declaratory relief regarding defendants' violation of the CC&R's).
The trial court (Hon. Richard S. Flier) granted summary adjudication of the first cause of action in plaintiffs' first amended complaint, "Declaratory Relief Re: Location of Littoral Rights," declaring "that the location of the boundary separating the Luckenbach littoral rights from the Walker littoral rights is `LINE "B"' as depicted upon the survey map [attached to the order as exhibit A]." (A copy of the survey map is attached as appendix A at the end of this opinion.) The court found "[t]here is no disputed issue of fact with respect to the boundary, but only questions of law, which are resolved in plaintiffs' favor in accordance with applicable authority. ([See Fraser's etc. P. Co. v. Ocean Park P. Co. (1921) 185 Cal. 464, 472-473 [198 P. 212] (Fraser's); Marks v. Whitney, supra, 6 Cal.3d 251, 256, 262-263].) The boundary line is not determined by any projection or extension of the upland property lines into the water. Rather, it is determined by a line drawn into the water which is perpendicular to the shore line, that is, to the general course of
The trial court granted summary adjudication of plaintiffs' second cause of action, "Declaratory Relief Re: Paramount Rights Conferred by Army Authorization," declaring "that: (a) plaintiffs are authorized to construct a dock upon a portion of the area occupied by the WALKER houseboat, by virtue of a written authorization letter from the United States Department of the Army, Corps of Engineers, and that defendants WALKER have no rights in that area which are paramount to such authorization; and (b) the aforesaid authorization from the United States Department of the Army, Corps of Engineers, confers upon the plaintiffs the right to construct a dock, which right is paramount to any alleged rights of anyone else to moor a boat in the same location. [¶] Plaintiffs have federal authority to relocate their dock in an area which is encroached upon by defendants' houseboat."
The trial court also granted summary adjudication of plaintiffs' fourth cause of action, "Relief from Nuisance due to Encroachment on Littoral Rights." The court ordered that "a permanent injunction shall be issued enjoining defendants WALKER from in any way encroaching upon the littoral rights belonging to the plaintiffs, including an encroachment by mooring a boat (such as a houseboat) within any part of plaintiffs' littoral rights."
The trial court granted summary adjudication of the plaintiffs' fifth cause of action, "Relief from Nuisance due to Violation of CC&Rs," ordering that "a permanent injunction shall be issued enjoining defendants WALKER from in any way mooring a houseboat, or other type of floating residence, at the structure referred to in U.S. Army Corps of Engineers permit No. 5118. . . . [¶] The houseboat is a floating residence, and thus violates the CC&Rs. Defendants have failed to show that plaintiffs do not have standing or the right to enforce the CC&Rs. [Citation.]"
Finally, the trial court granted summary adjudication of the plaintiffs' sixth cause of action, "Relief for Trespass to Littoral Rights," and ordered that "a permanent injunction shall be issued enjoining defendants WALKER from in any way encroaching upon the littoral rights belonging to the plaintiffs,
Waiver of Second and Fifth Causes of Action *
Applicable Law Regarding Littoral Rights
Moreover, it is owners of land abutting on "the waterfront line who, under legal sanction, may . . . build into the deeper public waters beyond." (Shirley v. City of Benicia (1897) 118 Cal. 344, 346 [50 P. 404].) Erection of a private wharf that would preclude upland owners from building a wharf on part of their waterfront constitutes a nuisance in the navigable waters of the state, which the upland owner may have abated. (Shirley v. Bishop (1885) 67 Cal. 543, 546 [8 P. 82]; 63 Cal.Jur.3d (2005) Water, § 774, p. 128.)
In Fraser's, supra, 185 Cal. 464, our Supreme Court discussed the proper line of division between adjoining littoral landowners. Fraser's was concerned with the boundaries of a city over the waters of the ocean and whether a pier built out into the ocean by a private owner was fully within the jurisdictional limits of the city of Santa Monica or partly within the limits of the city of Venice, for purposes of determining the proper tax assessments against the cities. (Id. at p. 471.)
The court then noted that the same general rule applied to the boundaries of municipal jurisdictions over the waters of the ocean, and that the line dividing the jurisdictions of Santa Monica and Venice over the ocean "is a line drawn from the intersection of that boundary with the shore line into the ocean in a direction perpendicular to the general course of the shore line at that place. If the shore line is circular it will be perpendicular to a tangent drawn on the circle at the point of such intersection." (Fraser's, supra, 185 Cal. at p. 473.)
The shoreline in this case, as shown on the 1944 subdivision map utilized by the court and the parties, comes to a point where the dividing line between the properties meets the shore, and then angles slightly up from that point on both sides, which plaintiffs describe as looking something like the bottom of a stop sign. Plaintiffs' surveyor, Ronald C. Greenwell, made three boundary measurements on the map. Line A is a line perpendicular to defendants' shoreline boundary; line C is a line perpendicular to plaintiffs' shoreline boundary. These lines make a "V" out from the dividing line at the shore. Line B, which the trial court found to be the proper line dividing the parties' areas of littoral rights, comes out from the base of the "V" and is "the mathematical equal split" of lines A and C. (See appendix A.)
Defendants did not challenge the results of plaintiffs' survey until they raised the issue in their opposition to plaintiffs' subsequent summary judgment motion, by which time the littoral rights issues to which the map of the shoreline and mathematical formula pertained had already been adjudicated. Accordingly, defendants have waived these issues on appeal. (See Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 640 [134 Cal.Rptr.2d 273] [appellate court "will consider only those facts that were before the trial court [i.e., contained in parties' separate statements] when it ruled on the motion"].)
In any event, even were we to address defendants' claims regarding determination of the original shoreline and the proper dividing line of the parties' areas of littoral rights, we would find them to be without merit.
First, with respect to the alleged failure to determine the course of the original shoreline, Swarzwald explained the term "ancient shore line" discussed in Fraser's: "What is meant by the original general shore line is the general course of the line marking the margin of the properties as a whole." (Swarzwald, supra, 220 Cal. at p. 445.) Thus, the question is not what the
In the present case, defendants presented no evidence that the general course of the shoreline was not that depicted in the 1944 subdivision map used to determine the littoral boundary between the properties. Thus, there was no material factual dispute on this point.
Second, regarding defendants' claim that Swarzwald sets forth the rule that any determination of littoral boundaries requires an equitable determination, on the contrary, Swarzwald states an exception to the general rule set forth in Fraser's, and holds that an equitable determination is required only when "deep indentations or sharp projections" distort the shoreline such that the general rule of Fraser's cannot equitably be utilized in determining the boundaries. (Swarzwald, supra, 220 Cal. at pp. 443-444.)
In this case, while there is a slight angle in the shoreline where the parties' property line meets the shore, that angle is not equivalent to the dramatic indentations or projections described in Swarzwald that required equitable consideration to avoid an unjust result. Hence, Fraser's general rule applies, just as it does when the shoreline is circular, and the trial court properly determined the littoral boundaries in this case using that method. (See also Emerson v. Taylor, supra, 9 Me. 42, 44-45 [discussing Colonial Method, which was used in this case by the Commission to arrive at same result reached by trial court].)
Finally, defendants contend their adverse possession and prescriptive rights claims raised a triable issue of material fact—whether the state did or did not own the land—requiring denial of plaintiffs' summary adjudication motion,
In conclusion, the trial court properly granted summary adjudication of issues on the first, fourth and sixth causes of actions in plaintiffs' first amended complaint related to plaintiffs' littoral rights.
Grant of Summary Judgment *
The judgment is affirmed. Plaintiffs are entitled to their costs on appeal.
Lambden, J., and Richman, J., concurred.
Also, in the very early case of Emerson v. Taylor (1832) 9 Me. 42, 44-45, the Supreme Court of Maine discussed the so-called Colonial Method for determining the littoral boundary on a shoreline that is not straight. The court explained: "The mode of applying the principle is this. Draw a base line from the two corners of each lot, where they strike the shore; and from these two corners, extend parallel lines to low-water-mark, at right angles with the base line. If the line of the shore be straight, as in the case before us, there will be no interference in running the parallel lines. If the flats lie in a cove, of a regular or irregular curvature, there will be an interference in running such lines, and the loss occasioned by it must be equally borne or gain enjoyed equally by the contiguous owners . . . ."
Defendants also cite Woods v. Johnson (1966) 241 Cal.App.2d 278 [50 Cal.Rptr. 515], for the proposition that plaintiffs are not entitled to an injunction against the mooring of defendants' houseboat, absent a factual showing and weighing of evidence to determine "whether the few feet on [plaintiffs'] side of the `boundary' occupied by [defendants'] boat were necessary to [plaintiffs'] `reasonable access' to navigable water." Woods v. Johnson, however, is plainly distinguishable from the present case in that, there, "[a]dmittedly, respondents' fill does not encroach on lands of appellants, nor does it lie upon land directly lakeward to appellants' property." (Id. at p. 280.)