PUB00109

• Year: 1995
• Title: Califormia Water
• CWCB Section: Interstate & Federal
• Author: Arthur L. Littlewort
• Description: History, overview, and explanation of water rights and legislation of California
• Publications - Doc Type: Historical

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These principles were applied in City of Berkeley v.
Superior Court (1980) 26 Cal.3d 515, in which a
private company had acquired land within the city
of Berkeley. The title to these lands was traceable
to grants made by the Board of Tideland Commis-
sioners (which was created by the legislature to
oversee tideland development), and the issue was
whether this sale of land pursuant to an 1870 act
of the legislature had terminated the public trust so
that the land was now held free of the public trust.
Following the California Fish guidelines set
forth above, the court examined the grant to deter-
mine if it was made in promotion of navigation,
commerce, or fisheries. Berkeley, page 525. Under Eldridge, the
state could absolutely dispose of tidelands for these purposes.
Eldridge, page 87. The court found that the grants were not made
for these purposes, but rather that they may have been made for
revenue-raising purposes. Berkeley, page 530. In light of this evi-
dence, the court followed California Fish and strictly construed the
statute not to constitute an absolute grant of land free of the public
trust. Berkeley, pages 528, 532.
In determining the existing title to the property, the court,
unlike the court in California Fish, did not rule that all the lands
were subject to the public trust-

Dedication of LADWP Aqueduct bringing
Owens Valley water into Los Angeles

\tVe choose, instead, an intermediate course: the appropriate
resolution is to balance the interests of the puhlic in tidelands con-
veyed pursuant to the 1870 act against those of the landowoers
who hold property under these conveyances. In the harmonizing
of these claims, the principle we apply is that the interests of the
puhlic are paramount in property that is still physically adaptahle
for trust uses, whereas the interests of the grantees and their suc-
cessors should prevail insofar as the tidelands have been rendered
substantially valueless for those purposes.
In keeping with this principle. we hold that suhmerged lands as well
as lands suhject to tidal action that were conveyed hy hoard deeds
under the 1870 act are suhject to the puhlic trust. Properties that
have heen filled, whether or not they have been substantially im-
proved, are free of the trust to the extent the areas of such parcels
are not suhject to tidal action. Berkeley, page 534, fn. omitted
Although the court upheld the principles of California Fish and
Illinois Central by limiting the legislature's ability to convey tide-
lands, its opinion introduced the concept of "balancing" to the public

80 CALIFORNIA WATER