County of San Luis Obispo v. Hart

NOURSE, P. J.

This is a motion to affirm a judgment on the grounds that the appeal was taken for delay only and that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument. (Rule V, sec. 3, Rules for Supreme Court and District Courts of Appeal.)

The litigation involves the title to nine blocks of land lying between Strand Avenue and the mean high tide of the ocean at Océano Beach in San Luis Obispo County. The action was one brought by the county to quiet title, the county claiming title to the disputed strip through dedication of the defendants and by adverse possession. The trial court found adversely to the county on all issues and the sole burden of this appeal is that these findings are not supported by the evidence. The first and second points raised by appellant are related to the appellant’s theory that the predecessor in interest of the respondents and certain selling agents acting for him made a dedication to the public of Strand Avenue and all lands lying between the westerly boundary thereof and the ocean. On this issue the evidence is not conflicting. It overwhelmingly supports the finding of the trial court that there was no dedication and as dedication to the public is purely a matter of fact, there is nothing on this point to be presented on this appeal.

[367]

Appellant’s third point is that when the subdivision map was filed the westerly line of Strand Avenue was the mean high water-mark of the ocean. On this issue the evidence of the witnesses as well as the photostatic copy of the subdivision map in evidence negatives appellant’s claim. As this issue likewise was a pure question of fact, the trial court’s findings are conclusive.

In its fourth point the county argues that subsequent accretions are subject' to an easement in the public, and that the trial court erred in not finding on this special issue. Going back to the first point, it must be borne in mind that the trial court found that Strand Avenue was never dedicated as a public street. The undisputed evidence shows that it was never improved and never used as a public street but that on the contrary the only vehicular traffic was on the wet sands 100 feet or more to the west of the westerly street line as delineated upon the subdivision map. Appellant’s claim to the accretions therefore falls because there is no base to stand on. But the evidence unmistakably demonstrates that there was no appreciable change in the line of the mean high tide since the filing of the map in 1905 to the date of the trial in January, 1930. This evidence would have demanded a finding adverse to the appellant, but the failure to make a special finding on that evidence is not available to the appellant at this time because the trial court found that the appellant did not have any right, title or interest in any portion of the land in controversy and this, of course, would include the accretions if there were any.