CLTA Affiliate Member Contribution: State Claims “Public Trust Easement” Slashing through Tahoe Homes

By John Briscoe, Briscoe Prows Kao Ivester & Bazel LLP

With no fanfare, no flourishes of trumpets, the State of California has laid title claims of “public trust” slicing through Tahoe shorefront properties – and through the homes that stand on them. Negotiations are underway between the owners and the State, and so the victims and their properties are not identified here.

What is this oddly named “public trust”?

Our rules of real  property – who owns land, what does “own” mean? – congealed in 13th century England, beginning with King John’s coerced, one might say, signing of the Magna Carta in 1215. For the Magna Carta created the common law and equity courts which, during the balance of that century worked out the rules of property law (and contract law, and more) that we exist with to this day. The rules, and the language of real property, have remained much the same since then. Think just of our language in the field of property– fee simple, fee tail, feoffment, estoppel en pais. These words are from Old French – which, since the Norman conquest of 1066 had become the language of the King’s Court, and would become the language of the (lower-case) courts established by the Magna Carta.

The Magna Carta did something else to assure that the notions of real property, its rights and obligations, would endure. It codified, in versions after 1215, the notions of due process, itself another archaism from Old French, the principle that no person should be deprived of life, liberty, or property without due process of law. If courts were to redefine what land ownership means, to the detriment of the landowner, everyone but certain judges and state officials would consider that a taking of property without due process of law. 

Recently, though, courts have sought to diminish or eliminate whole slices of land ownership through a judicial sleight-of-hand that has been given the name, ironically, the “public trust.” The object of a court when wielding the scimitar of the public trust is to take what had been private property, and transfer it to the public. This can mean a transfer to some government entity, or simply to the public at large, which presumably may use the newly seized property for homeless encampments and the like. No court has been more forcefully engaged in this chaotic business than the California Supreme Court. Take just the five years of 1980 through 1984. During those five years the Court handed down five decisions, each imposing the “public trust,” by judicial fiat on some property where it had never existed before, and had that property transferred to the amorphous public. In two decisions in 1981, for example, the court invented, created from whole cloth a “public trust easement“ over the areas between high and low water on the shores of two navigable lakes, Clear Lake and Lake Tahoe.  

But even the avaricious State could not bring itself then to lay claims to people’s homes. 

After the lapse, however, of these 45 years, the State is now emboldened, for opaque political reasons, to make what would have been unthinkable claims before – to the homes of people whose titles sometimes trace back to grants, patents from the State.  The CLTA crafted new “wetlands” exceptions for those cataclysmic court decisions.  But there are still shorefront properties along navigable lakes in California that have title insurance policies predating the 1981 court decisions that may have relevant exceptions or exclusions, but that do not have a separate and specific wetlands exception.  
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The clock is ticking on whether the State may someday claim a public trust interest in any of those properties.