MIRAMAR COMPANY (a Corporation), Appellant, v. CITY OF SANTA BARBARA, Respondent, 23 Cal. 2d 170

TRAYNOR, J. Plaintiff owns littoral lands, adjacent to Miramar Bay and about two and one-half miles east of the city of Santa Barbara, upon which it operated cottages and a hotel known as Miramar Beach Hotel. On June 8, 1927, the city of Santa Barbara commenced the construction, about three miles west of plaintiff’s property, of a permanent breakwater to extend from the shore bank approximately 2,500 feet into the Pacific Ocean.

The complaint alleged that since the littoral drift along the shore line is from west to east, the effect of the breakwater was to stop the natural flow of sand and to wash away the sand that was there. This action was continuous and progressive, always taking sand but never depositing any to replace that carried away. In time plaintiff’s property was denuded of sand and covered by the sea so that the line of ordinary high tide was advanced. With the disappearance of the sand the hotel ceased to be a beach resort.

On May 15, 1937, seven years after the completion of the breakwater, plaintiff filed its verified claim for loss of property with the Santa Barbara City Council for the sum of $750,000. The claim was disallowed and on October 4, 1939, plaintiff filed the present action on the rejected claim. Following the overruling of its demurrer the defendant filed an answer consisting of a general denial and six separate affirmative defenses. The case was tried before the court without a jury, pursuant to written stipulation of the parties, upon the issues created by the complaint and the 4th and 5th special defenses.

The 4th special defense alleged that plaintiff did not comply with the provisions of Act 5149 ([Deering’s Gen. Laws, 1937]; Stats. 1931, p. 2475) requiring the filing of a verified claim with the secretary of the city council within ninety days after the occurrence of the injury upon which the alleged cause of action is based. The 5th special defense was ba'sed upon an ordinance of defendant city limiting the time of the filing of. certain claims for damages against the city to six months.

The trial court made no finding on that defense but did find that the plaintiff failed to file its claim in compliance with the provisions of Act 5149. The court also held that the complaint did not state facts sufficient to constitute a cause of action. Plaintiff made a motion for a new trial, which was denied. The present appeal was then brought upon the judgment roll.

The complaint charges that “solely as the result of the erection and maintenance by defendant of said breakwater, and immediately and proximately caused thereby, the natural and normal action of the tides, currents, waves, and waters of the Pacific Ocean in that vicinity was changed, and the natural and normal drift of sand in a general easterly direction along the shore was intercepted by said breakwater, and by cutting off and depriving the said Miramar Beach of its natural and normal supply of sand, and causing the waters of the Pacific Ocean gradually, continuously and progressively to come upon, inundate and wash away and destroy during the five (5) years next preceding the filing of the claim attached hereto marked Exhibit ‘A’ all of the sandy beach, included in the real property described in Paragraph III hereof, . . .

That said property so inundated, washed away and taken, consists of approximately all of the sandy beach commonly known as Miramar Beach, used in conjunction' with said hotel. That defendant at all times knew and was put upon notice that the erection and maintenance of said breakwater would inundate, wash away, destroy, damage and take the said property as herein described. ...” This case is not one where private property has been flooded or washed away by the diversion of currents independent of the stoppage of sand.

The breakwater brought about a stoppage of the normal flow of sand that in turn led to the erosion of plaintiff’s sandy beach and the flooding of plaintiff’s property, and this sequence is the essence of the complaint. The complaint is attended by some confusion at the point where it states “and by cutting off and depriving the said Miramar Beach of its natural and normal supply of sand, and causing the waters of the Pacific Ocean gradually, continuously and progressively to come upon, inundate and wash away and destroy ...” etc.

This language, meaningless in itself because it is not coordinated with the rest of the sentence, nevertheless retains the association of stoppage of sand and erosion.

The plaintiff itself at page 2 of its opening brief sets forth the cause and effect relationship between the two as the basis of its action: “The littoral drift and current along the shore line involved is from west to east, and the effect of defendant’s breakwater was to stop the normal and natural flow of sand, so that plaintiff’s property, in the course of time, was denuded of sand, leaving rocks in place of the sands normally and naturally covering the shore of plaintiff’s property. “The loss of sand, by reason of the stoppage of littoral drift by defendant’s breakwater, caused the waters of Mira-mar Bay to advance shoreward, advancing the ordinary high tide line until practically all of plaintiff’s property had eroded away, and the water of Miramar Bay covered the property of plaintiff, formerly covered and protected by sand.” (See also page 2 of plaintiff’s petition for hearing by this court.) A littoral owner may have a right as against an individual to the uninterrupted flow of sand carried to his land by the ocean currents in their natural state (see Katenkamp v.

Union Realty Co., 6 Cal.2d 765 [59 P.2d 473]; Katenkamp v. Union Realty Co., 11 Cal.App.2d 63 [53 P.2d 387]), but he has no such right as against the state. Littoral rights must give way to any use of the tide lands and water flowing over them that serves the public right of navigation. (Lewis Blue Point Oyster Cultivation Co. v. Briggs, 229 U.S. 82 [33 S.Ct. 679, 57 L.Ed. 1083]; Scranton v. Wheeler, 179 U.S. 141, 163 [21 S.Ct. 48, 45 L.Ed. 126]; United States v. Chandler-Dunbar W. P. Co., 229 U.S. 53, 62 [33 S.Ct. 667, 57 L.Ed. 1063]; Greenleaf-Johnson Lbr. Co. v.

Garrison, 237 U.S. 251 [35 S.Ct. 551, 59 L.Ed. 939]; Bedford v. United States, 192 U.S. 217 [24 S.Ct. 238, 48 L.Ed. 414]; Gibson v. United States, 166 U.S. 269, 271 [17 S.Ct. 578, 41 L.Ed. 996].) The federal government has the paramount right to regulate and control the improvement of navigable waters, but the states also may improve their navigable waters, subject to federal control. (Henry Dalton & Sons Co. v. Oakland, 168 Cal. 463, 466 [143 P. 721]; People v. California Fish Co., 166 Cal. 576, 600 [138 P. 79]; People v. Banning Co., 167 Cal. 643, 649 [140 P. 587]; Oakland v. E. K.

Wood Lumber Co., 211 Cal. 16 [292 P. 1076, 80 A.L.R. 379]; see 26 Cal.Jur. 308.) Ownership of tidelands is governed by state law (Weber v. State Harbor Commrs., 18 Wall. (85 U.S. 18) 57 [21 L.Ed. 798]; Shively v. Bowlby, 152 U.S. 1 [14 S.Ct. 548, 38 L.Ed. 331]; Borax Consolidated v. City of Los Angeles, 296 U.S. 10 [56 S.Ct. 23, 80 L.Ed. 9]), and in California “the state is the owner of all land below tide water. ...” (Cal. Civ.

Code, sec. 670.) The littoral rights of an upland owner who owns no title to tidelands adjoining his property are subject to termination by whatever disposition of the tidelands the state chooses tó make. (Boone v. Kingsbury, 206 Cal. 148 [273 P. 797]; City of Newport Beach v. Fager, 39 Cal.App.2d 23, 28 [102 P.2d 438].) Since navigable waters are held by the state in trust for all the people, any conveyance of tidelands is taken by the grantee subject to the public right of navigation.

The state retains “the right to enter upon such lands and make such erections thereon, or changes therein, as it may find necessary or advisable to adapt the premises for use in navigation and provide access thereto for that purpose, or in furtherance thereof.” (People v. California Fish Co., 166 Cal. 576, 588 [138 P. 79]; Cal. Const., art. XV, see. 2; City of Oakland v. Buteau, 219 Cal. 745, 752 [29 P.2d 177]; People v. Southern Pac. Co., 166 Cal. 627 [138 P. 103]; People v. Banning Co., 167 Cal. 643 [140 P. 587]; Patton v.

Los Angeles, 169 Cal. 521 [147 P. 141]; see Nichols, Eminent Domain (2d ed.) p. 419 et seq.) The state may delegate to a city the power to make improvements in aid of navigation. (City of Long Beach v. Lisenby, 175 Cal. 575 [166 P. 333]; City of Oakland v. Buteau, 219 Cal. 745, 753 [29 P.2d 177]; City of Los Angeles v. Anderson, 206 Cal. 662, 668 [275 P. 789]; Patton v. City of Los Angeles, 169 Cal. 521 [147 P. 141].) The plaintiff in the instant case does not question the right of the city of Santa Barbara to build the breakwater (see Cal.

Stats. 1925, p. 181; Charter of the City of Santa Barbara, sec. 2(11); Cal. Stats. 1927, p. 2061) but alleges that it was constructed and maintained for the purpose of creating a harbor for pleasure yachts and fishing boats. The right of the public to use navigable waters, however, is not limited to any particular type of craft. Pleasure yachts and fishing boats are used for navigation and the state, or the city as its representative, can provide harborage for them as well as for merchant vessels and steamers.

Whatever the effect of the breakwater upon the sand, the littoral owner obtained sand only because of the proximity of its land to the water. The relationship between the land and the water can shift as easily as the sand, and the state can alter it by a variety of improvements. It can even bar access to the water from the land. (Henry Dalton & Sons Co. v. Oakland, 168 Cal. 463, 468 [143 P. 721]; Koyer v. Miner, 172 Cal. 448 [156 P. 1023]; Muchenberger v. City of Santa Monica, 206 Cal. 635, 643 [275 P. 803]; Boone v. Kingsbury, 206 Cal. 148, 170 [273 P. 797]; City of Oakland v.

Buteau, 219 Cal. 745 [29 P.2d 177]; City of Newport Beach v. Pager, 39 Cal.App.2d 23, 28 [102 P.2d 438]; see Nichols, Eminent Domain (2d ed.) p. 421.) Since it is free to set up a barrier that leaves the land without access to water, and therefore without access to the sand, it can clearly erect an improvement that merely checks the flow of sand to the land. There can thus be no vested right in such future ■ accretions. (Cohen v. United States, 162 F. 364, 370-371; Western Pac. R. Co. v. Southern Pac.

Co., 151 F. 376, 398-400 [80 C.C.A. 606]; see 25 Cal.Jur. 1048.) Inevitably the washing away of sand in tidelands must advance the high-water mark if the owner of the uplands takes no steps to prevent that consequence. Plaintiff’s insistence that the high-water mark preceding the erection of the breakwater must be maintained is in effect a claim that the state has no right to check the flow of sand and must maintain the tideland sand as a buffer for the upland sand.

Such a claim could not be recognized without creating a servitude in the tidelands inconsistent with the state’s title and its right to erect improvements in the interest of navigation. The improvement in question was erected at a distance of about three miles from plaintiff’s land. The damage to the land resulted neither from direct invasion nor subjection to public use but as an incidental consequence of the construction of a breakwater. (Southern Pac. Co. v. United States, 58 Ct.Cl. 428, aff’d 266 U.S. 586 [45 S.Ct. 124, 69 L.Ed. 454]; cf. Pumpelly v.

Green Bay etc., 13 Wall. (80 U.S.) 166 [20 L.Ed. 557].) The erosion that changed the face of plaintiff’s land was a gradual process in which the continuous ebb and flow of clear water over a period of years denuded plaintiff’s land of the sand that had been deposited there in years past by the ebb and flow of sandy water. Such transformations are continually occurring up and down the thousand miles and more of California’s seashore and reflect the changes in the action of the ocean resulting from natural causes and public improvements.

Plaintiff’s littoral right to sandy water, like its littoral right to access to the ocean, was derived entirely from the proximity of plaintiff’s land to the 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. 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 of the sandy accretions, constituting the damage to plaintiff’s land, was an incidental consequence of the state’s use of the public domain for a public interest that was at all times superior to private littoral rights. There has therefore been no taking or damaging of private property for public use within the meaning of

article I,

section 14, of the California Constitution. (Henry Dalton & Sons Co. v. Oakland, 168 Cal. 463, 466, 467, 468 [143 P. 721]; People v. Banning Co., 167 Cal. 643 [140 P. 587]; People v. Southern Pac. Co., 166 Cal. 627 [138 P. 103]; Koyer v. Miner, 172 Cal. 448 [156 P. 1023]; Boone v. Kingsbury, 206 Cal. 148 [273 P. 797]; Cory v. City of Stockton, 90 Cal.App. 634 [266 P. 552]; City of Newport Beach v. Fager, 39 Cal.App.2d 23 [102 P.2d 438]; Southern Pac. v. United States, 58 Ct.Cl. 428, aff’d 266 U.S. 586 [45 S.Ct. 124, 69 L.Ed. 454]; United States v. Chandler-Dunbar W. P.

Co., 229 U.S. 53 [33 S.Ct. 667, 57 L.Ed. 1063]; Bedford v. United States, 192 U.S. 217 [24 S.Ct. 238, 48 L.Ed. 414]; Gibson v. United States, 166 U.S. 269 [17 S.Ct. 578, 41 L.Ed. 996]; Scranton v. Wheeler, 179 U.S. 141 [21 S.Ct. 48, 45 L.Ed. 126].) The judgment is affirmed. Gibson, C. J., and Edmonds, J., concurred.