(AC 35985)

WILLIAM THOMAS ET AL. v. BRUNO PRIMUS

officially released February 4, 2014

Argued November 22, 2013

DiPentima, C. J., and Lavine and Mihalakos, Js.

David S. Rintoul, for the appellants (plaintiffs).

Benjamin Ancona, Jr., for the appellee (defendant).

Opinion

MIHALAKOS, J.

The plaintiffs, William Thomas, Craig B. Thomas and Andrea Thomas Jabs, appeal from the trial court’s declaratory judgment granting an easement by necessity and implication in favor of the defendant, Bruno Primus. On appeal, the plaintiffs claim that the court erred in finding an easement by necessity.1 The plaintiffs also claim that the defendant’s claim for an easement should have been barred by the defense of laches. We affirm the judgment of the trial court.

The following facts, as found by the court, are rele­vant to this appeal. The plaintiffs own property located at 460 Camp Street in Plainville. The defendant owns one and one-quarter acres of undeveloped land abutting the eastern boundary of the plaintiffs’ property. The dispute at issue here concerns the northernmost portion of the plaintiffs’ property, a twenty-five feet wide by three hundred feet long strip of land known as the “passway,” which stretches from the public road on the western boundary of the plaintiffs’ property to the defendant’s property to the east.

Both the plaintiffs’ and the defendant’s properties originally were part of a single lot owned by Martha Thomas, the grandmother of the plaintiffs. In 1959, Mar­tha Thomas conveyed the one and one-quarter acres of landlocked property, currently owned by the defendant, to Arthur Primus, the defendant’s brother. At the con­veyance, which the defendant attended, Martha Thomas and Arthur Primus agreed that access to the landlocked property would be through the passway, which until that time had been used by Martha Thomas to access the eastern portions of her property. In 1969, the defendant took possession of the land. In 2002, the plaintiffs took possession of the western portion of Martha Thomas’ property, including the passway.

In 2008, the plaintiffs decided to sell their property. When the defendant learned of their intention, he sent a letter to the plaintiffs asserting his right to use the passway to access his land. In 2009, the plaintiffs signed a contract to sell their property, but the prospective purchasers cancelled the contract when they learned of the defendant’s claimed right to use the passway. The plaintiffs then brought the action to quiet title that is the subject of this appeal, seeking, among other things, a declaratory judgment that the defendant had no legal interest in the property. The defendant brought a coun­terclaim asking the court to establish his right to use the passway uninterrupted by the plaintiffs. In response to the defendant’s counterclaim, the plaintiffs asserted the special defense of laches.

A trial was held on June 5 and 6, 2012. On August 31, 2012, the court issued its decision, finding in favor of the defendant on the plaintiffs’ complaint and on his counterclaim, and concluding that the defendant had an easement by necessity and an easement by implication over the passway. Specifically, the court found an ease­ment by necessity was created when Martha Thomas conveyed a landlocked parcel to Arthur Primus, as it was absolutely necessary in order to access the prop­erty. The court rejected the plaintiffs’ special defense of laches. On September 20, 2012, the plaintiffs filed a motion to reargue, which subsequently was denied. This appeal followed. Additional facts will be set forth as necessary.

I

EASEMENT BY NECESSITY

On appeal, the plaintiffs claim that the court erred in finding an easement by necessity because (1) the defendant’s predecessor in title had the right to buy reasonable alternative access to the street, (2) the defendant failed to present full title searches of all adjoining properties, and (3) Martha Thomas and Arthur Primus did not intend for an easement to exist.

The plaintiffs’ claims present questions concerning the court’s application of the law of easements by neces­sity, over which our review is plenary. See Christensen v. Reed, 105 Conn. App. 578, 583, 941 A.2d 333 (whether court properly construed burden of party seeking ease­ment by necessity is question of law over which review is plenary), cert. denied, 286 Conn. 912, 944 A.2d 982 (2008); see also Montanaro v. Aspetuck Land Trust, Inc., 137 Conn. App. 1, 27, 48 A.3d 107 (whether alterna­tive access precludes finding of easement by necessity is question of law over which review is plenary), cert. denied, 307 Conn. 932, 56 A.3d 715 (2012). Nonetheless, “[t]he court’s factual findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole . . . . We cannot retry the facts or pass on the credibil­ity of the witnesses. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mis­take has been committed.” (Internal quotation marks omitted.) Christensen v. Reed, supra, 583.

Originating in the common law, easements by neces­sity are premised on the conception that “the law will not presume, that it was the intention of the parties, that one should convey land to the other, in such man­ner that the grantee could derive no benefit from the conveyance . . . .” Collins v. Prentice, 15 Conn. 39, 44 (1842). An easement by necessity is “imposed where a conveyance by the grantor leaves the grantee with a parcel inaccessible save over the lands of the grantor . . . .” Hollywyle Assn., Inc. v. Hollister, 164 Conn. 389, 398, 324 A.2d 247 (1973). The party seeking an easement by necessity has the burden of showing that the easement is reasonably necessary for the use and enjoyment of the party’s property. Schultz v. Barker, 15 Conn. App. 696, 702, 546 A.2d 324 (1988).

A

First, the plaintiffs claim that an easement by neces­sity does not exist because the defendant’s predecessor in title had the right to buy reasonable alternative access to the street. We disagree.

In considering whether an easement by necessity exists, “the law may be satisfied with less than the absolute need of the party claiming the right of way. The necessity need only be a reasonable one.” Hol­lywyle Assn., Inc. v. Hollister, supra, 164 Conn. 399.

In this case, the plaintiffs presented evidence at trial that, at the time he purchased the property from Martha Thomas in 1959, Arthur Primus maintained bonds for deed that allowed him to purchase access to Camp Street through a different piece of property for $900. Although he did not exercise this right, the plaintiffs contend that the fact that Arthur Primus held this option establishes that the defendant’s use of the passway is not reasonably necessary.

The plaintiffs correctly note that the ability of a party to create alternative access through his or her own property at a reasonable cost can preclude the finding of reasonable necessity required to establish an ease­ment by necessity. See Marshall v. Martin, 107 Conn. 32, 38, 139 A. 348 (1927) (“the test of necessity is whether the party claiming the right can at reasonable cost, on his own estate, and without trespassing on his neighbors, create a substitute”). Nonetheless, we are aware of nothing in our case law that suggests that a party is required to purchase additional property in order to create alternative access, even at a reason­able price.2

Furthermore, easements by necessity need not be created at the time of conveyance. See D’Addario v. Truskoski, 57 Conn. App. 236, 247, 749 A.2d 38 (recog­nizing easement by necessity created by state taking and natural disaster), cert. denied, 253 Conn. 918, 755 A.2d 214 (2000); see also Pender v. Matranga, 58 Conn. App. 19, 26, 752 A.2d 77 (2000) (“[a]n easement of neces­sity may occur when a parcel has become landlocked from outside access such that the owner would have no reasonable means of ingress or egress except over lands promised by another and a right-of-way is neces­sary for the enjoyment of the parcel”). Even if we were to assume, arguendo, that Arthur Primus’ bonds for deed made use of the passway unnecessary at the time he owned the property, those bonds for deed expired in 1962, several years before the defendant owned the property, and provide no reasonable alternative access today. Thus, we see no reason to disturb the court’s finding that use of the passway is currently necessary for the use and enjoyment of the defendant’s property.

B

Next, the plaintiffs claim that the court improperly found an easement by necessity because the defendant failed to present full title searches of all adjoining prop­erties. We are not persuaded.

In this case, the court found that the defendant met his evidentiary burden. See Schultz v. Barker, supra, 15 Conn. App. 702. Although the defendant did not provide evidence of title searches for all adjacent properties, the court was presented with maps and deeds of the property at issue and testimony to the effect that the defendant’s property was landlocked. This, coupled with the evidence that the passway traditionally had been used to provide access, was sufficient to support the court’s finding that the easement was reasonably necessary.

The plaintiffs argue that this court’s holding in Chris­tensen v. Reed, supra, 105 Conn. App. 578, imposes an obligation on any party seeking an easement by necessity to perform title searches on all adjacent prop­erties and to present those title searches to the court in order to satisfy the burden of showing reasonable necessity. We decline to subscribe to such a broad inter­pretation of Christensen. In that case, the party defending against the claimed easement by necessity specifically argued that there was alternative access through property owned by a third party, and the trial court found that the party seeking the easement had made use of that property for access on several occa­sions. Id., 584-87. The trial court concluded that, under those circumstances, a title search of that property and other adjacent properties was necessary to show that the purported easement was truly the sole means of access, as the party seeking the easement had claimed. Id., 586-87. On appeal, this court deemed that determi­nation to be proper. Id., 587. In the present case, how­ever, the plaintiffs did not argue at trial that the defendant had access through an alternate property, nor did they present any evidence that the defendant had used alternate access in the past. Thus, the court here acted properly in relying upon the maps, docu­ments, and testimony before it as sufficient evidence to establish the reasonable necessity of the easement.

C

Finally, the plaintiffs argue that an easement by necessity does not exist because Martha Thomas and Arthur Primus did not intend for the easement to exist. We disagree.

The seminal case in this state on easements by neces­sity recognized that “the law will not presume, that it was the intention of the parties, that one should convey land to the other, in such manner that the grantee could derive no benefit from the conveyance . . . . The law, under such circumstances, will give effect to the grant according to the presumed intent of the parties.” Collins v. Prentice, supra, 15 Conn. 44. This rationale does not, as the plaintiffs suggest, establish intent as an element of an easement by necessity. Instead, “[t]he presump­tion as to the intent of the parties is a fiction of law . . . and merely disguises the public policy that no land should be left inaccessible or incapable of being put to profitable use.” (Citation omitted.) Hollywyle Assn., Inc. v. Hollister, supra, 164 Conn. 400. Thus, absent an explicit agreement by the grantor and grantee that an easement does not exist, a court need not consider intent in establishing an easement by necessity. See O’Brien v. Coburn, 46 Conn. App. 620, 633, 700 A.2d 81 (holding that “the intention of the parties [was] irrele­vant” in case establishing easement by necessity), cert. denied, 243 Conn. 938, 702 A.2d 644 (1997).

In this case, the court found that the defendant’s property was landlocked and that access over the pass­way was reasonably necessary for the use and enjoy­ment of the defendant’s property. Therefore, the court found an easement by necessity to exist over the passway. This conclusion was supported by the record and there is no legal deficiency in the court’s analysis.

II

LACHES

The plaintiffs also claim that the trial court incor­rectly concluded that the defendant’s claims for an ease­ment were not barred by the defense of laches.

Whether the defense of laches applies is “[a] conclu­sion . . . of fact for the trier and not one that can be made by this court, unless the subordinate facts found make such a conclusion inevitable as a matter of law. . . . We must defer to the court’s findings of fact unless they are clearly erroneous. . . .

“The defense of laches, if proven, bars a [party] from seeking equitable relief . . . . First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the [opposing party]. . . . The burden is on the party alleging laches to establish that defense. . . . The mere lapse of time does not constitute laches . . . unless it results in prejudice to the [opposing party] . . . as where, for example, the [opposing party] is led to change his position with respect to the matter in question.” (Citations omitted; internal quotation marks omitted.) Caminis v. Troy, 112 Conn. App. 546, 552, 963 A.2d 701 (2009), aff'd, 300 Conn. 297, 12 A.3d 984 (2011).

In this case, the defendant did not assert a right to an easement over the passway until 2008, decades after he took an interest in the property. Nonetheless, the trial court found that this delay was not inexcusable, as the defendant “had not yet decided what to do with his easement but took action when he learned that . . . the sale of the [plaintiffs’ property] would cut off access to his property.”

The plaintiffs contend that, as a matter of law, any claim based on a nonrecord interest in property should be barred by laches in cases where that interest would have been extinguished by the Marketable Title Act3 if the interest had been duly recorded. The plaintiffs’ brief contains no case law or other authority in support of this contention. “We repeatedly have stated that [w]e are not required to review issues that have been improp­erly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without sub­stantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Baranowski v. Safeco Ins. Co. of America, 119 Conn. App. 85, 89 n.4, 986 A.2d 334 (2010). Accord­ingly, we decline to consider this argument.

We are left to review the court’s factual finding that the defendant’s delay in asserting his right to an ease­ment over the passway was not inexcusable. This find­ing is supported in the record by the defendant’s testimony that he had no reason to assert his right until the looming sale jeopardized his access to his property. As such, there is no cause to disturb the court’s conclu­sion that the defendant’s claim is not barred by the defense of laches.

The judgment is affirmed.

In this opinion the other judges concurred.

1

The plaintiffs also claim that the court erred in finding an easement by implication. Because we conclude that the court properly found an easement by necessity, we need not consider this claim.

2

The plaintiffs’ sole authority in support of their position; Griffeth v. Eid, 573 N.W.2d 829 (N.D. 1998); is distinguishable from the case before us. In that case, the North Dakota Supreme Court upheld a trial court’s ruling that a party seeking an easement by necessity had not met his burden of establishing reasonable necessity because potential alternate access existed, including the possibility of purchasing an easement over another abutting property, and the party had not provided evidence that he had pursued these options and found them unavailing. Id., 834. In this case, there is no evidence in the record that the defendant had the opportunity to purchase alternate access.

3

See General Statutes § 47-33b et seq.

Second Dist., Div. Six.

[No. B157490.

JERRY FELGENHAUER et al., Plaintiffs, Cross-defendants and Appellants, v. JENNIFER SONI et al., Defendants, Cross-complainants and Appellants.

Aug. 5, 2004.]

Counsel

Christian E. Iversen for Plaintiffs, Cross-defendants and Appellants.

James L. Hudgens, Cappello & Noel, A. Barry Cappello, Pine & Pine and Norman Pine for Defendants, Cross-complainants and Appellants.

[CERTIFIED FOR PARTIAL PUBLICATION*]

*

Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for partial publication. The portions of this opinion to be deleted from publication are identified as those portions between double brackets, e.g., [[/]].

Opinion

GILBERT, P. J.

Here we hold that to establish a claim of right to a prescriptive easement, the claimant need not believe he or she is legally entitled to use of the easement.

Jerry and Kim Felgenhauer brought this action to quiet title to prescriptive easements over neighboring property owned by Ken and Jennifer Soni. [[/]]*

A jury made special findings that established a prescriptive easement for deliveries. [[/]]*

We affirm.

FACTS

In November of 1971, the Felgenhauers purchased a parcel of property consisting of the front portion of two contiguous lots on Spring Street in Paso Robles. The parcel is improved with a restaurant that faces Spring Street. The back portion of the lots is a parking lot that was owned by a bank. The parking lot is between a public alley and the back of the Felgenhauers’ restaurant.

[[/]]*

From the time the Felgenhauers opened their restaurant in 1974, deliveries were made through the alley by crossing over the parking lot to the restaurant’s back door. The Felgenhauers never asked permission of the bank to have deliveries made over its parking lot. The Felgenhauers operated the restaurant until the spring of 1978. Thereafter, until 1982, the Felgenhauers leased their property to various businesses.

The Felgenhauers reopened their restaurant in June of 1982. Deliveries resumed over the bank’s parking lot to the restaurant’s back door. In November of 1984, the Felgenhauers sold their restaurant business, but not the real property, to James and Ann Enloe. The Enloes leased the property from the Felgenhauers. Deliveries continued over the bank’s parking lot.

James Enloe testified he did not believe he had the right to use the bank’s property and never claimed the right. Enloe said that during his tenancy, he saw the bank manager in the parking lot. The manager told him the bank planned to construct a fence to define the boundary between the bank’s property and the Felgenhauers’ property. Enloe asked the manager to put in a gate so that he could continue to receive deliveries and have access to a trash dumpster. The manager agreed. Enloe “guess[ed]” the fence and gate were constructed about three years into his term. He said, “[Three years] could be right, but it’s a guess.” In argument to the jury, the Sonis’ counsel said the fence and gate were constructed in January of 1988.

The Enloes sold the restaurant to Brett Butterfield in 1993. Butterfield sold it to William DaCossee in March of 1998. DaCossee was still operating the restaurant at the time of trial. During all this time, deliveries continued across the bank’s parking lot.

The Sonis purchased the bank property, including the parking lot in dispute in 1998. In 1999, the Sonis told the Felgenhauers’ tenant, DaCossee, that they were planning to cut off access to the restaurant from their parking lot.

The jury found the prescriptive period was from June of 1982 to January of 1988.

[[/]]*

DISCUSSION

I

[[/]]*

The Sonis contend there is no substantial evidence to support a prescriptive easement for deliveries across their property. They claim the uncontroverted evidence is that the use of their property was not under “a claim of right.”

Whether the elements of a prescriptive easement have been estab­lished is a question of fact, which we review under the substantial evidence rule. (See O’Banion v. Borba (1948) 32 Cal.2d 145, 149-150 [195 P.2d 10].) “In viewing the evidence, we look only to the evidence supporting the prevailing party. [Citation.] We discard evidence unfavorable to the prevailing party as not having sufficient verity to be accepted by the trier of fact. [Citation.] Where the trial court or jury has drawn reasonable inferences from the evidence, we have no power to draw different inferences, even though different inferences may also be reasonable. [Citation.] The trier of fact is not required to believe even uncontradicted testimony. [Citation.]” (Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 241 [71 Cal.Rptr.2d 399].)

At common law, a prescriptive easement was based on the fiction that a person who openly and continuously used the land of another without the owner’s consent, had a lost grant. (See Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 575 [199 Cal.Rptr. 773, 676 P.2d 584].) California courts have rejected the fiction of the lost grant. Instead, the courts have adopted language from adverse possession in stating the elements of a prescriptive easement. The two are like twins, but not identical. (Taormino v. Denny (1970) 1 Cal.3d 679, 686 [83 Cal.Rptr. 359, 463 P.2d 711] [elements necessary to establish prescriptive easement are the same as those required to establish adverse possession, with exception of the payment of taxes].) Those elements are open and notorious use that is hostile and adverse, continuous and uninterrupted for the five-year statutory period under a claim of right. (Ibid.) Unfortunately, the language used to state the elements of a prescriptive easement or adverse possession invites misinterpretation. This is a case in point.

The Sonis argue the uncontroverted evidence is that the use of their property was not under a claim of right. They rely on the testimony of James Enloe that he never claimed he had a right to use the bank property for any purpose.

Claim of right does not require a belief or claim that the use is legally justified. (Lord v. Sanchez (1955) 136 Cal.App.2d 704, 707 [289 P.2d 41].) It simply means that the property was used without permission of the owner of the land. (Ibid.) As the American Law of Property states in the context of adverse possession: “In most of the cases asserting [the requirement of a claim of right], it means no more than that possession must be hostile, which in turn means only that the owner has not expressly consented to it by lease or license or has not been led into acquiescing in it by the denial of adverse claim on the part of the possessor.” (3 Casner, American Law of Property (1952) Title by Adverse Possession, § 5.4, p. 776.) One text proposes that because the phrase “‘claim of right’” has caused so much trouble by suggesting the need for an intent or state of mind, it would be better if the phrase and the notions it has spawned were forgotten. (Cunningham et al., The Law of Property (Law. ed. 1984) Adverse Possession, § 11.7, p. 762.) Enloe testified that he had no discussion with the bank about deliveries being made over its property. The jury could reasonably conclude the Enloes used the bank’s property without its permission. Thus they used it under a claim of right.

The Sonis attempt to make much of the fence the bank constructed between the properties and Enloe’s request to put in a gate. But Enloe was uncertain when the fence and gate were constructed. The Sonis’ attorney argued it was constructed in January of 1988. The jury could reasonably conclude that by then the prescriptive easement had been established.

The Sonis argue the gate shows the use of their property was not hostile. They cite Myran v. Smith (1931) 117 Cal.App. 355, 362 [4 P.2d 219], for the proposition that to effect a prescriptive easement the adverse user “‘“. . . must unfurl his flag on the land, and keep it flying, so that the owner may see, if he will, that an enemy has invaded his domains, and planted the standard of conquest.”’”

But Myran made the statement in the context of what is necessary to create a prescriptive easement. Here, as we have said, the jury could reasonably conclude the prescriptive easement was established prior to the erection of the fence and gate. The Sonis cite no authority for the proposition that even after the easement is created, the user must keep the flag of hostility flying. To the contrary, once the easement is created, the use continues as a matter of legal right, and it is irrelevant whether the owner of the servient estate purports to grant permission for its continuance.

[[/]]*

The judgment is affirmed. The parties are to bear their own costs.

Yegan, J., and Coffee, J., concurred.

*

See footnote, ante, page 445.

*

See footnote, ante, page 445.

*

See footnote, ante, page 445.

*

See footnote, ante, page 445.

First Dist., Div. Four.

[No. A137815.

JAMES SCOTT RICHARDSON et al., Plaintiffs and Respondents, v. GREG FRANC et al., Defendants and Appellants.

Jan. 27, 2015.]

Counsel

Trombadore Gonden Law Group; David M. Gonden and Donald T. Ramsey for Defendants and Appellants.

Bien & Summers, Elliot L. Bien, Jocelyn S. Sperling; Epstein Law Firm, Robert F. Epstein and Michael B. Lopez for Plaintiffs and Respondents.

Opinion

RUVOLO, P. J.

I.

INTRODUCTION

In order to access their home in Novato, California, James Scott Richardson and Lisa Donetti (respondents) had to traverse land belonging to their neighbors, Greg and Terrie Franc (appellants) on a 150-foot long road which was authorized by an easement for “access and public utility purposes.” Over a 20-year period, both respondents and their predecessors in interest main­tained landscaping, irrigation, and lighting appurtenant to both sides of the road within the easement area without any objection. Six years after purchas­ing the property burdened by the easement, appellants demanded that respondents remove the landscaping, irrigation, and lighting on the ground that respondents’ rights in the easement area were expressly limited to access and utility purposes, and the landscaping and other improvements exceeded the purpose for which the easement was granted. Respondents brought this lawsuit seeking, among other things, to establish their right to an irrevocable license which would grant them an uninterrupted right to continue to maintain the landscaping and other improvements.

After a bench trial, the trial court ruled—irrespective of the terms of the easement—it would be inequitable to deny respondents an irrevocable license given their substantial investment of time and money on the landscaping and other improvements and appellants’ years of acquiescence. Appellants have filed this appeal, claiming the evidence did not support the granting of an irrevocable license in this case. We disagree, and find the court’s decision was sound, equitable, and supported by substantial evidence.

II.

FACTS AND PROCEDURAL HISTORY

The relevant facts are stated in the light most favorable to respondents, the prevailing parties below, giving them the benefit of all reasonable inferences. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631 [85 Cal.Rptr.2d 386].)

In 1989, Karen and Tom Poksay began building their home on undevel­oped property at 2513 Laguna Vista Drive in Novato, California. The project included constructing and landscaping a 150-foot long driveway within the 30-foot wide easement running down to the site of their new home, which was hidden from the street. The driveway was constructed pursuant to an easement over 2515 Laguna Vista Drive, which was then owned by Dan and Jeanne Schaefer. The easement was for access and utility purposes only.

Landscaping along the driveway was important to the Poksays. They “envision[ed] it being natural and beautiful on both sides to be a nice entrance to the home.” They hired a landscaper, who dug holes for plants and trees. Ms. Poksay then added plants and trees along both sides of the driveway in the easement area—hawthorn trees, Australian tea trees, daylil­ies, Mexican sage, breath of heaven, flowering pear trees, and evergreen shrubs.

The landscaper installed a drip irrigation system. It was part of a complex system, including a “major irrigation line” under the driveway, connected to water valve pumps that pumped water to separate drip lines for the individual trees and plants. The lines were operated through a central control box, located behind the house, that regulated a dozen different areas: one on each side of the driveway in the easement area, and the rest on their property. Water fixtures were also installed along the driveway for fire safety. The Poksays also added electrical lighting along the driveway, later replacing the electrical lighting with solar lighting.

During the decade that the Poksays resided at the property Ms. Poksay regularly tended the landscaped area, including trimming and weeding, ensuring the irrigation system was working properly, and replacing plants and trees as necessary. In addition to Ms. Poksay’s own labor, the Poksays paid their landscaper to perform general maintenance, including checking the irrigation system, replanting, and digging holes for Ms. Poksay to add new plants. The Poksays also incurred water bills and other costs over the decade to maintain and improve the landscaping.

Respondents purchased the property in late 2000. As described by the trial court, after taking an onsite tour of the property, “When Ms. Poksay sold the property to [respondents], the 30’ wide easement was improved with a long sloping 12’ wide driveway that was significantly enhanced by borders on each side adorned with trees, landscaping, irrigation, and lighting. A number of the trees had matured along with the landscaping to a beautiful natural entranceway running almost the entire length of the easement .... [T]he mature landscaping in 2000 included tea trees, oleander, Hawthorne, ever­green trees, and a variety of plants.”

Over the years, respondents added new plants and trees, including olean­ders, an evergreen tree, another tea tree, Mexican sage, lavender, rosemary, and a potato bush. Respondent Donetti testified that landscapers came weekly or every other week, and the landscapers spent 40 to 50 percent of their time in the easement area. In addition to hiring landscapers, respondents watered the landscaping every night for 45 minutes, although sometimes the irrigation system was turned off in the winter. During her testimony, respondent Donetti explained, “we’ve paid a lot of money to nurture it and grow it. It’s beautiful. It has privacy. It’s absolutely tied to our house value. It’s our curb appeal.”

Appellants purchased 2515 Laguna Vista Drive in 2004. Appellant Greg Franc admitted he knew appellants were improving the landscaping in the easement area, including employing landscapers. He even admitted that the trees were “beautiful and provide a lot of color and [were] just all-around attractive.” From 2004 to August 2010, appellants and respondents lived in relative harmony, with no indication by appellants that they wished respond­ents to stop maintaining and improving the easement landscaping.

It was not until late 2010—approximately six years after appellants bought the property and two decades after the landscaping and other improvements began—that appellants first raised a concern about the landscaping and other improvements. Prior to that date, no one had ever objected.

In late September or early October 2010, without any notice, appellant Greg Franc cut the irrigation and electrical lines on both sides of the driveway. He cut not only the lines irrigating the landscaping on the easement, but also those irrigating respondents’ own property. The water valve pumps leading to the irrigation lines were disassembled as well. As part of these proceedings, the trial court granted respondents’ motion for prelimi­nary injunction and the irrigation system was restored.

On October 13, 2010, appellants sent a letter through counsel demanding that respondents remove all the landscaping and supporting systems from the easement area within five days. In response, respondents filed this lawsuit on October 18, 2010. The second amended complaint (SAC), which was filed on February 21, 2012, is the operative complaint for our purposes. The SAC alleged claims for an irrevocable parol license and equitable easement, and sought declaratory and injunctive relief.1

Following a bench trial and a site visit to the property, the court issued its statement of decision. While denying relief on the equitable easement cause of action, the court granted respondents’ request for an irrevocable license, stating: “The Court finds by a preponderance of the evidence that [respond­ents] hold an irrevocable parol license for themselves and their successors-in-­interest to maintain and improve landscaping, irrigation, and lighting within the 30’ wide and 150’ long easement.” This appeal followed.

III.

DISCUSSION

A. Standard of Review

Appellants contend that all of the issues presented on appeal are matters of law and are governed by the de nova standard. However, as appellants acknowledge, the grant of an irrevocable license is “based in equity.” After the trial court has exercised its equitable powers, the appellate court reviews the judgment under the abuse of discretion standard. (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 771 [110 Cal.Rptr.2d 861] (Hirshfield).) “Under that standard, we resolve all evidentiary conflicts in favor of the judgment and determine whether the trial court’s decision ‘“falls within the permissible range of options set by the legal criteria.”’ [Citations.]” (Ibid.)

B. General Principles Governing the Grant of an Irrevocable License

Before we address the specific issues appellants raise on appeal, it is helpful to review the law governing the grant of an irrevocable license. “A license gives authority to a licensee to perform an act or acts on the property of another pursuant to the express or implied permission of the owner.” (6 Miller & Starr, Cal. Real Estate (3d ed. 2006) Easements, § 15:2, p. 15-10 (rel. 8/2006) (6 Miller & Starr).) “A licensor generally can revoke a license at any time without excuse or without consideration to the licensee. In addition, a conveyance of the property burdened with a license revokes the license . . . .” (Id. at pp. 15-10 to 15-11, fns. omitted.)

However, a license may become irrevocable when a landowner knowingly permits another to repeatedly perform acts on his or her land, and the licensee, in reasonable reliance on the continuation of the license, has expended time and a substantial amount of money on improvements with the licensor’s knowledge. Under such circumstances, it would be inequitable to terminate the license. (6 Miller & Starr, supra, Easements, § 15:2, p. 15-13.) In that case, the licensor is said to be estopped from revoking the license, and the license becomes the equivalent of an easement, commensurate in its extent and duration with the right to be enjoyed. (See Stoner v. Zucker (1906) 148 Cal. 516, 520 [83 P. 808] (Stoner); see generally 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 430, p. 501.) A trial court’s factual finding that a license is irrevocable is reviewed for substantial evidence. (Hammond v. Mustard (1967) 257 Cal.App.2d 384, 387-388 [64 Cal.Rptr. 829] (Hammond).)

In the paradigmatic case, a landowner allows his neighbor the right to use some portion of his property—often a right-of-way or water from a creek—knowing that the neighbor needs the right to develop his property. The neighbor then builds a house, digs an irrigation ditch, paves the right-of-way, plants an orchard, or farms the land in reliance on the landowner’s acquies­cence. Later, after failing to make a timely objection, the landowner or his successor suddenly raises legal objections and seeks to revoke the neighbor’s permissive usage. (See, e.g., Hammond, supra, 257 Cal.App.2d at pp. 386-387 [private road]; Stepp v. Williams (1921) 52 Cal.App. 237, 257 [198 P. 661] [water from spring]; Stoner, supra, 148 Cal. at p. 517 [irrigation ditch].)

On this factual pattern, the general principles governing the grant of an irrevocable license come into play: “[I]t is well settled in this state that ‘where a licensee has entered under a parol license and has expended money, or its equivalent in labor, in the execution of the license, the license becomes irrevocable, the licensee will have a right of entry upon the lands of the licensor for the purpose of maintaining his structures, or, in general, his rights under his license, and the license will continue for so long a time as the nature of it calls for.’ . . .” (Cooke v. Ramponi (1952) 38 Cal.2d 282, 286 [239 P.2d 638] (Cooke), quoting Stoner, supra, 148 Cal. at p. 520; accord, Noronha v. Stewart (1988) 199 Cal.App.3d 485, 490 [245 Cal.Rptr. 94] (Noronha).)

The facts in Cooke, supra, 38 Cal.2d 282, are similar to the facts in this case. In Cooke, the plaintiffs and their predecessors in interest had used a roadway over the defendants’ property as the only usable roadway permitting access to plaintiffs’ property for many years without interruption. (Id. at p. 283.) The use of the roadway was apparently always made with the consent of defendants’ predecessors in interest. Several years before the commencement of the action, plaintiffs, with the consent of the defendants’ predecessors in interest, began improving the roadway by straightening portions of the road, causing scraping and surfacing work to be done, and culverts to be built. (Id. at p. 284.)

Over the following several years defendants’ property changed ownership several times, but each new owner, including the defendants, permitted plaintiffs to maintain, repair and use the roadway at substantial expense to plaintiffs. Following these expenditures by plaintiffs, the defendants abruptly barricaded the roadway and notified the plaintiffs that they would no longer be permitted to use the roadway. (Cooke, supra, 38 Cal.2d at p. 285.) Plaintiffs then commenced their action seeking to establish their right to use of the road as a means of access to their property. (Ibid.)

The trial court in Cooke, supra, 38 Cal.2d 282, ruled in favor of the plaintiffs, granting them an “irrevocable license to use the road for the purposes of ingress and egress to and from their property,” and the defendants appealed. (Id. at p. 286.) The Supreme Court affirmed the trial court’s ruling that the license was irrevocable for so long as the nature of the use required the continuance of the license. (Ibid.)

In the instant case, the statement of decision serves as a roadmap outlining the evidence presented at trial and its corresponding application to the legal principles governing the grant of an irrevocable license. In a key finding, the statement of decision states: “Because [respondents] adduced sufficient evi­dence at trial concerning their substantial expenditures in the easement area for landscaping, maintenance, care, and physical labor, and because sufficient evidence was presented at trial to support that [respondents’] predecessor-in-­interest, Ms. Poksay, also expended substantial sums in the easement area for landscaping, maintenance, care, and physical labor, and because, as the evidence and testimony at trial showed, that no objection was made to any of this by either [appellants] or [appellants’] predecessor-in-interest, Mr. Schaefer, over the course of more than 20 years, [respondents] have sufficiently met the requirements for an irrevocable parol license for both [respondents], and [respondents’] successors-in-interest. Both law and equity dictate this result.”2

C. Contradictory Findings

Appellants primarily contend that the court’s findings are inherently “con­tradictory and irreconcilable” because the court found that the facts did not support granting respondents an equitable easement but then, on the identical facts, the court granted respondents an irrevocable license. Appellants claim “there is no way to reconcile these contradictory findings . . . .” Conse­quently, they argue “the judgment is fatally defective and must be reversed.”

The trial court found the facts of this case did not fit the definition of an equitable easement, because an equitable easement requires that the party claiming the easement must be without knowledge or means of knowledge of the facts. (See Medina v. Board of Retirement (2003) 112 Cal.App.4th 864, 868 [5 Cal.Rptr.3d 634] [party asserting estoppel must be ignorant of the facts].) In its statement of decision the court found respondents “knew or should have known at the time of their purchase that the Grant Deed, on its face, describes the easement for ‘access and utility purposes.’ The plants and irrigation system that [respondents] seek to maintain for the landscaping do not fall under the easement description. Nor is this a case where [respond­ents] believed that these items were on their property and did not realize they were, in fact, on [appellants’] property. Given [respondents’] knowledge, as evidenced by [respondent] Donetti’s testimony concerning her reading of the Grant Deed, the evidence does not support a finding that [respondents] have a right to an equitable easement.” However, while such knowledge precluded the court from granting respondents an equitable easement, it did not preclude the court from granting them an irrevocable license.

“The terms ‘easement’ and ‘license’ are sometimes used indiscrimi­nately . . . . However, they are clearly distinguishable rights.” (6 Miller & Starr, supra, § 15:2 at p. 15-11, fn. omitted.) A license is authority to do a certain act or acts upon another’s land, with full knowledge of the facts, and may be implied from the relationship of the parties and from usage and custom. Many cases illustrate that if the owner of the land tacitly permits another party to repeatedly do acts upon the owner’s land, without making any specific representations which would lead the party to believe any interest in the land was being created, and the party has in good faith expended money and labor on the strength of this tacit permission, a license to do such acts may be implied from the owner’s failure to object. (Stoner, supra, 148 Cal. at p. 517; Zellers v. State of California (1955) 134 Cal.App.2d 270, 275 [285 P.2d 962] (Zellers); Gravelly Ford Co. v. Pope-Talbot Co. (1918) 36 Cal.App. 717, 738 [178 P. 155] (Gravelly Ford).)

The trial court recognized this distinction, pointing out that while an equitable easement required respondents to be “innocent in their encroach­ment,” a license is a knowing act on someone else’s property—with reason­able reliance “upon statements or conduct of another” granting permission for the encroachment. (Hammond, supra, 257 Cal.App.2d at p. 389.) Therefore, the fact respondents are charged with the knowledge that the landscaping and other improvements were not covered by the express terms of the easement is absolutely irrelevant to the court’s grant of an irrevocable license. We see no inconsistency in the trial court’s findings.

D. Absence of Evidence of Express Permission

Appellants next contend the trial court erred in finding the evidence supported the creation of an irrevocable license because respondents’ reliance on continued permission to landscape and make other improvements in the easement area was not reasonable as a matter of law. Appellants point out the evidence at trial revealed that throughout the history of the ownership of the property, there was never an actual request for permission to make and maintain these improvements and express consent was never given. In essence, appellants contend that tacit permission by silence is insufficient to create an irrevocable license and that respondents were required to show an express grant of permission induced them into undertaking the improvements within the easement area.

Permission sufficient to establish a license can be express or implied. (Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 36 [31 Cal.Rptr.2d 378].) “‘A license to use real property may be . . . proved by circumstances such as tacit permission or acquiescence in acts already done . . . .’” (Zellers, supra, 134 Cal.App.2d at p. 275.) A license may also arise by implication from the acts of the parties, from their relations, or from custom. When a landowner knowingly permits another to perform acts on his land, a license may be implied from his failure to object. (Lusk v. Krejci (1960) 187 Cal.App.2d 553, 555 [9 Cal.Rptr. 703] [“[A]n irrevocable license may be implied from circumstances such as tacit permission or acquiescence in the acts of the licensee.”].) In other words, “a license may result from circum­stances as, for instance, where a person has continued in possession for such a length of time and under such circumstances that objection might well have been expected had there been no assent. [Citations.]” (Gosliner v. Briones (1921) 187 Cal. 557, 561 [204 P. 19].)

In Zellers, supra, 134 Cal.App.2d 270, an irrevocable license was estab­lished in connection with the landowner’s approximate one-year failure to object to the conduct of the licensee. (Id. at p. 272.) Here, the undisputed evidence revealed appellants failed to object to the landscaping and other improvements for six years before appellants first made their demand that the landscaping and other improvements be removed. Thus, with full knowledge that the road providing ingress and egress to respondents’ property was landscaped, irrigated, and lit, and with full knowledge that respondents were maintaining these improvements on an ongoing basis, appellants said nothing to respondents. When coupled with the previous 14 years appellants’ prede­cessors in interest acquiesced in these improvements, this constituted a total of 20 years of uninterrupted permissive use of the easement area for the landscaping and other improvements. Therefore, we find the court had ample evidence to conclude that adequate and sufficient permission was granted to respondents by appellants to maintain the extensive landscaping improve­ments on either side of the roadway.

E. Substantial Expenditures

Appellants next stress that for the license to be irrevocable, there must be substantial expenditures in reliance on the license. (See, e.g., Noronha, supra, 199 Cal.App.3d at p. 490; Cooke, supra, 38 Cal.2d at p. 287; but see Kaler v. Brown (1951) 101 Cal.App.2d 716, 719 [226 P.2d 66] [small improvement did not call for expenditure which would have justified giving licensee permission to use the property permanently].)

In this regard, the trial court made the necessary findings that respondents “have expended substantial monetary sums to improve, maintain, landscape, and care for the easement area, including the retention of professional landscapers on a regular basis . . . .” The court went on to explain that the “nature of the significant expenses incurred” by the original owners and “now by [respondents], as identified by testimony at trial, include monthly payment of water bills, landscapers, gardeners, plus replacement of plants and irriga­tion parts, and credible testimony that [respondent Donetti] personally works in the landscaping area.” Appellants assert the trial court’s finding that substantial funds were expended was speculative because the expenditures “must be substantial in economic terms, and measurable by reference to a monetary amount.”

As appellants emphasize, the cases finding an irrevocable license often include an approximate dollar amount of costly improvements. (See, e.g., Stoner, supra, 148 Cal. at p. 517 [defendants, in reliance on the license, constructed a ditch for purposes of carrying water for irrigation spending over $7,000]; Dinsmore v. Renfroe (1924) 66 Cal.App. 207, 215 [225 P. 886] [license to construct a road given with express permission from co-owner, and license not revoked until hundreds of thousands of dollars were spent]; Gravelly Ford, supra, 36 Cal.App. at p. 738 [objection to building a canal over another’s land made only after $80,000 incurred in construction costs].)

However, the fact that respondents in this case did not submit a specific dollar amount as to the cost of these improvements is irrelevant. The evidence that was before the trial court provided the court with sufficient information to infer that the costs incurred in maintaining the landscaping and other improvements were substantial. This includes respondents’ testimony that they (1) paid and continue to pay gardeners and landscape workers at least twice a month for maintenance work on the landscaping in the easement area; (2) paid and continue to pay for the water used by the irrigation system which waters the landscaped area for 45 minutes every evening (except during rainy months); (3) paid to replace landscaping as needed, including six oleander plants, an evergreen tree, and various other moderate-sized plants; and (4) paid “a lot” for “electrical bills, costs for fertilizer, woodchips” and “solar lighting.” In addition to these expenditures, the record also demon­strates respondents expended the “equivalent in labor” in assisting with the physical labor of maintaining the landscaping in the easement area. (Cooke, supra, 38 Cal.2d at p. 286.) The court’s finding that there were substantial expenditures of both money and time is fully supported by this evidence.

F. Duration and Scope of Irrevocable License

Appellants next challenge “the unlimited physical scope and duration of the license” granted by the trial court. They claim “the trial court, in derogation of equity and the law, decided that Respondents . . . should have sole and absolute discretion to decide what will happen on property that is owned by [appellants].” In making this argument, appellants ignore the fact that the trial court was vested with broad discretion in framing an equitable result under the facts of this case.

There is a long tradition in equity of according trial courts great latitude to “‘mold and adjust their decrees as to award substantial justice according to the requirements of the varying complications that may be presented to them for adjudication.’ [Citation.]” (Times-Mirror Co. v. Superior Court (1935) 3 Cal.2d 309, 331 [44 P.2d 547]; see Hirshfield, supra, 91 Cal.App.4th at p. 771.) Discretion is abused only when the trial court’s decision “exceeded the bounds of reason.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478 [243 Cal.Rptr. 902, 749 P.2d 339]; see Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193].)

In exercising its discretion, the trial court weighed the testimony and documentary evidence, personally viewed the property, and resolved all factual issues. In determining the essential terms of the irrevocable license, the court also relied on the 20-year course of conduct of the parties and their predecessors with respect to the installation and maintenance of the landscap­ing, irrigation and lighting within the easement. As it was empowered to do, the trial court exercised its broad equitable discretion and fashioned relief to fit the specific facts of this case. The court found “by a preponderance of the evidence that [respondents] hold an irrevocable parol license for themselves and their successors-in-interest to maintain and improve landscaping, irriga­tion, and lighting within the 30’ wide and 150’ long easement.”

Appellants assert “it is wholly erroneous and grossly unfair to make the license irrevocable in perpetuity.” Appellants argue that a proper ruling in this case would be to grant respondents an irrevocable license but “with the license to landscape and garden limited in duration until [respondents] transfer title to anyone else or no longer reside on the property . . . .”

The principles relating to the duration of an irrevocable license were stated by our Supreme Court over a century ago, and these principles are still valid today. An otherwise revocable license becomes irrevocable when the licensee, acting in reasonable reliance either on the licensor’s representations or on the terms of the license, makes substantial expenditures of money or labor in the execution of the license, and the license will continue “for so long a time as the nature of it calls for.” (Stoner, supra, 148 Cal. at p. 520; see Cooke, supra, 38 Cal.2d at p. 286; Hammond, supra, 257 Cal.App.2d at p. 388.) As explained in a leading treatise, “A license remains irrevocable for a period sufficient to enable the licensee to capitalize on his or her invest­ment. He can continue to use it only as long as justice and equity require its use.” (6 Miller & Starr, supra, Easements, § 15:2, p. 15-15.)

The evidence adduced at trial indicates respondents and their prede­cessors in interest expended significant money and labor when they planted and nurtured the landscaping abutting the roadway, installed sophisticated irrigation equipment throughout the easement area, and constructed lighting along the roadway. Under such circumstances the trial court did not abuse its discretion in concluding it would be inequitable to require respondents to remove these improvements when the property is transferred, given the substantial investment in time and money and the permanent nature of these improvements.

Appellants next claim the court erred in granting respondents an irrevo­cable license “to maintain and improve landscaping, irrigation, and lighting within the 30’ wide and 150’ long easement.” Appellants argue the irrevo­cable license should have been “strictly limited to the specific portions of the easement which had in the past been used by [r]espondents for gardening and landscaping.” Again, the trial court is better equipped than we are to fashion equitable relief and we afford it considerable discretion. (Hirshfield, supra, 91 Cal.App.4th at p. 770.) Apparently, the trial court concluded, and we agree, that providing a level of certainty to the parties by defining the scope of the irrevocable license with the precise arithmetic measurements of the easement area, rather than attempting to describe more generally the location of areas previously landscaped, will prevent the parties from returning to court for further clarification as to the scope of the irrevocable license. Thus, the trial court did not abuse its discretion in fashioning relief that is not only fair and effective but is also calculated to avoid possible future litigation for the purpose of enforcement. (Ojavan Investors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th 373, 394 [62 Cal.Rptr.2d 803] [“[i]t is well established the judiciary possesses broad discretion in deciding the type of equitable relief to fit a case’s particular circumstances.”].)

Lastly, we reject appellants’ hyperbolic claim that in fashioning the scope and duration of the irrevocable license granted in this case, “the trial court, without exercising caution, took property that rightfully belonged to [appel­lants] and ceded it to [r]espondents—and their successors—forever.”

This argument ignores that a license does not create or convey any interest in the real property; it merely makes lawful an act that otherwise would constitute a trespass. (See 6 Miller & Starr, supra, § 15:2, 15-10 [“The licensee has a personal privilege but does not possess either an interest or right in the land or any estate in the property.” (fn. omitted)]; San Jose Parking, Inc. v. Superior Court (2003) 110 Cal.App.4th 1321, 1329 [2 Cal.Rptr.3d 505] [“case law makes clear that licenses create no interest in real property”].)

In accordance with this case law, the trial court properly characterized the effect of its decision, stating appellants “continue to have a fee title interest in the easement area. [Appellants’] property will continue to be subject to, and encumbered by, the existing recorded access and utility easement, and now will be subject to, and encumbered by, the irrevocable parol license.” Far from granting respondents “an exclusive easement amounting to fee title” as appellants’ claim, the court’s decision simply maintains the status quo that has existed for over 20 years and was obvious to appellants when they purchased the property a decade ago.

IV.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondents.

Reardon, J., and Rivera, J., concurred.

Appellants’ petition for review by the Supreme Court was denied April 22, 2015, S224885.

1

Appellants filed a cross-complaint. None of appellants’ claims succeeded at trial. Appel­lants have not appealed from the judgment on their cross-complaint so it is unnecessary to discuss it any further.

2

Appellants claim the court’s statement of decision was deficient “because the trial court failed to make any determination regarding key issues in the case.” (Original underscoring.) These issues include pinpointing the exact point in time that the license was created, and clarifying whether respondents reasonably relied on appellants’ action or inaction when they spent money on the landscaping and other improvements. However, the trial court was not required to make “specific factual findings” on every evidentiary point. Rather, “a statement of decision ‘need do no more than state the grounds upon which the judgment rests, without necessarily specifying the particular evidence considered by the trial court in reaching its decision.’” (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 50 [35 Cal.Rptr.3d 716], fn. omitted.)

En Banc.

[No. 51283-3.

Will H. Brown, et al, Petitioners, v. Fred R. Voss, et al, Respondents.

March 6, 1986.]

Dolliver, C.J., and Utter, Pearson, Andersen, Callow, and Durham, JJ., concur.

Goodloe, J., concurs with Dore, J.

Paul L. Stritmatter (of Stritmatter, Kessler & McCau­ley), for petitioners.

Fuller & Fuller, by Herbert H. Fuller, Jay S. Fuller, and Nina Fuller, for respondents.

Brachtenbach, J.

The question posed is to what extent, if any, the holder of a private road easement can traverse the servient estate to reach not only the original dominant estate, but a subsequently acquired parcel when those two combined parcels are used in such a way that there is no increase in the burden on the servient estate. The trial court denied the injunction sought by the owners of the servient estate. The Court of Appeals reversed. Brown v. Voss, 38 Wn. App. 777, 689 P.2d 1111 (1984). We

reverse the Court of Appeals and reinstate the judgment of the trial court.

A portion of an exhibit depicts the involved parcels.

In 1952 the predecessors in title of parcel A granted to the predecessor owners of parcel B a private road easement across parcel A for "ingress to and egress from" parcel B. Defendants acquired parcel A in 1973. Plaintiffs bought parcel B on April 1, 1977, and parcel C on July 31, 1977, but from two different owners. Apparently the previous owners of parcel C were not parties to the easement grant.

When plaintiffs acquired parcel B a single family dwell­ing was situated thereon. They intended to remove that residence and replace it with a single family dwelling which would straddle the boundary line common to parcels B and C.

Plaintiffs began clearing both parcels B and C and mov­ing fill materials in November 1977. Defendants first sought to bar plaintiff's use of the easement in April 1979 by which time plaintiffs had spent more than $11,000 in developing their property for the building.

Defendants placed logs, a concrete sump and a chain link fence within the easement. Plaintiffs sued for removal of the obstructions, an injunction against defendant's inter­ference with their use of the easement and damages. Defendants counterclaimed for damages and an injunction against plaintiffs using the easement other than for parcel B.

The trial court awarded each party $1 in damages. The award against the plaintiffs was for a slight inadvertent trespass outside the easement.

The trial court made the following findings of fact:

VI

The plaintiffs have made no unreasonable use of the easement in the development of their property. There have been no complaints of unreasonable use of the roadway to the south of the properties of the parties by other neighbors who grant easements to the parties to this action to cross their properties to gain access to the property of the plaintiffs. Other than the trespass there is no evidence of any damage to the defendants as a result of the use of the easement by the plaintiffs. There has been no increase in volume of travel on the easement to reach a single family dwelling whether built on tract B or on Tacts [sic] B and C. There is no evidence of any increase in the burden on the subservient estate from the use of the easement by the plaintiffs for access to parcel C.

VIII

If an injunction were granted to bar plaintiffs access to tract C across the easement to a single family residence, Parcel C would become landlocked; plaintiffs would not be able to make use of their property; they would not be able to build their single family residence in a manner to properly enjoy the view of the Hood Canal and the sur­rounding area as originally anticipated at the time of their purchase and even if the single family residence were constructed on parcel B, if the injunction were granted, plaintiffs would not be able to use the balance of their property in parcel C as a yard or for any other use of their property in conjunction with their home. Con­versely, there is and will be no appreciable hardship or damage to the defendants if the injunction is denied.

IX

If an injunction were to be granted to bar the plaintiffs access to tract C, the framing and enforcing of such an order would be impractical. Any violation of the order would result in the parties back in court at great cost but with little or no damages being involved.

X

Plaintiffs have acted reasonably in the development of their property. Their trespass over a "little" corner of the defendants' property was inadvertent, and de minimis. The fact that the defendants counter claim seeking an injunction to bar plaintiffs access to parcel C was filed as leverage against the original plaintiffs' claim for an interruption of their easement rights, may be considered in determining whether equitable relief by way of an injunction should be granted.

Relying upon these findings of fact, the court denied defendant's request for an injunction and granted the plaintiffs the right to use the easement for access to parcels B and C "as long as plaintiffs [sic] properties (B and C) are developed and used solely for the purpose of a single family residence." Clerk's Papers, at 10.

The Court of Appeals reversed, holding:

In sum, we hold that, in denying the Vosses' request for an injunction, the trial court's decision was based upon untenable grounds. We reverse and remand for entry of an order enjoining the use of the easement across parcel A to gain access to a residence any part of which is located on parcel C, or to further the con­struction of any residence on parcels B or C if the con­struction activities would require entry onto parcel C. Washington Fed'n of State Employees v. State, [99 Wn.2d 878, 887, 665 P.2d 1337 (1983)].

Brown v. Voss, supra at 784-85.

The easement in this case was created by express grant. Accordingly, the extent of the right acquired is to be deter­mined from the terms of the grant properly construed to give effect to the intention of the parties. See Zobrist v. Culp, 95 Wn.2d 556, 561, 627 P.2d 1308 (1981); Seattle v. Nazarenus, 60 Wn.2d 657, 665, 374 P.2d 1014 (1962). By the express terms of the 1952 grant, the predecessor owners of parcel B acquired a private road easement across parcel A and the right to use the easement for ingress to and egress from parcel B. Both plaintiffs and defendants agree that the 1952 grant created an easement appurtenant to parcel B as the dominant estate. Thus, plaintiffs, as owners of the dominant estate, acquired rights in the use of the easement for ingress to and egress from parcel B.

However, plaintiffs have no such easement rights in connection with their ownership of parcel C, which was not a part of the original dominant estate under the terms of the 1952 grant. As a general rule, an easement appurtenant to one parcel of land may not be extended by the owner of the dominant estate to other parcels owned by him, whether adjoining or distinct tracts, to which the easement is not appurtenant. E.g., Heritage Standard Bank & Trust Co. v. Trustees of Schs., 84 Ill. App. 3d 653, 405 N.E.2d 1196 (1980); Kanefsky v. Dratch Constr. Co., 376 Pa. 188, 101 A.2d 923 (1954); S.S. Kresge Co. v. Winkelman Realty Co., 260 Wis. 372, 50 N.W.2d 920 (1952); 28 C.J.S. Ease­ments § 92, at 772-73 (1941).

Plaintiffs, nonetheless, contend that extension of the use of the easement for the benefit of nondominant property does not constitute a misuse of the easement, where as here, there is no evidence of an increase in the burden on the servient estate. We do not agree. If an easement is appurtenant to a particular parcel of land, any extension thereof to other parcels is a misuse of the easement. Wet­more v. Ladies of Loretto, Wheaton, 73 Ill. App. 2d 454, 220 N.E.2d 491 (1966). See also, e.g., Robertson v. Robert­son, 214 Va. 76, 197 S.E.2d 183 (1973); Penn Bowling Rec. Ctr., Inc. v. Hot Shoppes, Inc., 179 F.2d 64 (D.C. Cir. 1949). As noted by one court in a factually similar case, "[I]n this context this classic rule of property law is directed to the rights of the respective parties rather than the actual burden on the servitude." National Lead Co. v. Kanawha Block Co., 288 F. Supp. 357, 364 (S.D. W. Va. 1968), aff'd, 409 F.2d 1309 (4th Cir. 1969). Under the express language of the 1952 grant, plaintiffs only have rights in the use of the easement for the benefit of parcel B. Although, as plaintiffs contend, their planned use of the easement to gain access to a single family residence located partially on parcel B and partially on parcel C is perhaps no more than technical misuse of the easement, we con­clude that it is misuse nonetheless.

However, it does not follow from this conclusion alone that defendants are entitled to injunctive relief. Since the awards of $1 in damages were not appealed, only the denial of an injunction to defendants is in issue. Some fun­damental principles applicable to a request for an injunc­tion must be considered. (1) The proceeding is equitable and addressed to the sound discretion of the trial court. (2) The trial court is vested with a broad discretionary power to shape and fashion injunctive relief to fit the particular facts, circumstances, and equities of the case before it. Appellate courts give great weight to the trial court's exer­cise of that discretion. (3) One of the essential criteria for injunctive relief is actual and substantial injury sustained by the person seeking the injunction. Washington Fed'n of State Employees, Coun. 28 v. State, 99 Wn.2d 878, 665 P.2d 1337 (1983); Port of Seattle v. International Long­shoremen's Union, 52 Wn.2d 317, 324 P.2d 1099 (1958).

The trial court found as facts, upon substantial evidence, that plaintiffs have acted reasonably in the development of their property, that there is and was no damage to the defendants from plaintiffs' use of the easement, that there was no increase in the volume of travel on the easement, that there was no increase in the burden on the servient estate, that defendants sat by for more than a year while plaintiffs expended more than $11,000 on their project, and that defendants' counterclaim was an effort to gain "lever­age" against plaintiffs' claim. In addition, the court found from the evidence that plaintiffs would suffer considerable hardship if the injunction were granted whereas no appre­ciable hardship or damages would flow to defendants from its denial. Finally, the court limited plaintiffs' use of the combined parcels solely to the same purpose for which the original parcel was used—i.e., for a single family residence.

Neither this court nor the Court of Appeals may substi­tute its effort to make findings of fact for those supported findings of the trial court. State v. Marchand, 62 Wn.2d 767, 770, 384 P.2d 865 (1963); Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 575, 343 P.2d 183 (1959). Therefore, the only valid issue is whether, under these established facts, as a matter of law, the trial court abused its discretion in denying defendants' request for injunctive relief. Based upon the equities of the case, as found by the trial court, we are persuaded that the trial court acted within its discretion. The Court of Appeals is reversed and the trial court is affirmed.

Dore, J.

(dissenting) — The majority correctly finds that an extension of this easement to nondominant property is a misuse of the easement. The majority, nonetheless, holds that the owners of the servient estate are not entitled to injunctive relief. I dissent.

The comments and illustrations found in the Restate­ment of Property § 478 (1944) address the precise issue before this court. Comment e provides in pertinent part that "if one who has an easement of way over Whiteacre appurtenant to Blackacre uses the way with the purpose of going to Greenacre, the use is improper even though he eventually goes to Blackacre rather than to Greenacre." Illustration 6 provides:

6. By prescription, A has acquired, as the owner and possessor of Blackacre, an easement of way over an alley leading from Blackacre to the street. He buys Whiteacre, an adjacent lot, to which the way is not appurtenant, and builds a public garage one-fourth of which is located on Blackacre and three-fourths of which is located on Whiteacre. A wishes to use the alley as a means of ingress and egress to and from the garage. He has no privilege to use the alley to go to that part of the garage which is built on Whiteacre, and he may not use the alley until that part of the garage built on Blackacre is so separated from the part built on Whiteacre that uses for the benefit of Blackacre are distinguishable from those which benefit Whiteacre.

The majority grants the privilege to extend the agree­ment to nondominant property on the basis that the trial court found no appreciable hardship or damage to the ser­vient owners. However, as conceded by the majority, any extension of the use of an easement to benefit a nondomi­nant estate constitutes a misuse of the easement. Misuse of an easement is a trespass. Raven Red Ash Coal Co. v. Ball, 185 Va. 534, 39 S.E.2d 231, 167 A.L.R. 785 (1946); Selvia v. Reitmeyer, 156 Ind. App. 203, 295 N.E.2d 869 (1973). The Browns' use of the easement to benefit parcel C, especially if they build their home as planned, would involve a con­tinuing trespass for which damages would be difficult to measure. Injunctive relief is the appropriate remedy under these circumstances. Selvia, at 212; Gregory v. Sanders, 635 P.2d 795, 801 (Wyo. 1981). In Penn Bowling Rec. Ctr., Inc. v. Hot Shoppes, Inc., 179 F.2d 64, 66 (D.C. Cir. 1949) the court states:

It is contended by appellant that since the area of the dominant and nondominant land served by the easement is less than the original area of the dominant tenement, the use made by appellant of the right of way to serve the building located on the lesser area is not materially increased or excessive. It is true that where the nature and extent of the use of an easement is, by its terms, unrestricted, the use by the dominant tenement may be increased or enlarged. McCullough et al. v. Broad Exchange Company et al., 101 App.Div. 566, 92 N.Y.S. 533. But the owner of the dominant tenement may not subject the servient tenement to use or servitude in con­nection with other premises to which the easement is not appurtenant. See Williams v. James, Eng.Law.Rep. (1867), 2 C.P. 577. And when an easement is being used in such a manner, an injunction will be issued to prevent such use. Cleve et al. v. Nairin, 204 Ky. 342, 264 S.W. 741; Diocese of Trenton v. Toman et al., 74 N.J.Eq. 702, 70 A. 606; Shock v. Holt Lumber Co. et al., 107 W.Va. 259, 148 S.E. 73. Appellant, therefore, may not use the easement to serve both the dominant and nondominant property, even though the area thereof is less than the original area of the dominant tenement.

See also Kanefsky v. Dratch Constr. Co., 376 Pa. 188, 101 A.2d 923 (1954). Thus, the fact that an extension of the easement to nondominant property would not increase the burden on the servient estate does not warrant a denial of injunctive relief.

The Browns are responsible for the hardship of creating a landlocked parcel. They knew or should have known from the public records that the easement was not appurtenant to parcel C. See Seattle v. Nazarenus, 60 Wn.2d 657, 670, 374 P.2d 1014 (1962). In encroachment cases this factor is significant. As stated by the court in Bach v. Sarich, 74 Wn.2d 575, 582, 445 P.2d 648 (1968): "The benefit of the doctrine of balancing the equities, or relative hardship, is reserved for the innocent defendant who proceeds without knowledge or warning that his structure encroaches upon another's property or property rights."

In addition, an injunction would not interfere with the Browns' right to use the easement as expressly granted, i.e., for access to parcel B. An injunction would merely require the Browns to acquire access to parcel C if they want to build a home that straddles parcels B and C. One possibil­ity would be to condemn a private way of necessity over their existing easement in an action under RCW 8.24.010. See Brown v. McAnally, 97 Wn.2d 360, 644 P.2d 1153 (1982).

I would affirm the Court of Appeals decision as a correct application of the law of easements. If the Browns desire access to their landlocked parcel they have the benefit of the statutory procedure for condemnation of a private way of necessity.

Suffolk.

M.P.M. Builders, LLC vs. Leslie Dwyer.1

June 15, 2004.

April 8, 2004.

Robert S. Mangiaratti (Judith S. Yogman with him) for the plaintiff.

Edmund J. Brennan, Jr. (Michael J. Polak with him) for the defendant.

The following submitted briefs for amici curiae:

Edward M. Bloom for Real Estate Bar Association for Mas­sachusetts & another.

William V. Hovey, pro se.

Thomas F. Reilly, Attorney General, & Joseph Callanan, As­sistant Attorney General, for the Attorney General.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

1

We acknowledge the amicus briefs filed by the Attorney General; the Real Estate Bar Association for Massachusetts and The Abstract Club; and William V. Hovey.

Cowin, J.

We are asked to decide whether the owner of a ser­vient estate may change the location of an easement without the consent of the easement holder.2 We conclude that, subject to certain limitations, described below, the servient estate owner may do so.

1. Facts. The essential facts are not in dispute. The defendant, Leslie Dwyer, owns a parcel of land in Raynham abutting property owned by the plaintiff, M.P.M. Builders, L.L.C. (M.P.M.). Dwyer purchased his parcel in 1941, and, in the deed, he was also conveyed an easement, a “right of way along the cartway to Pine Street,” across M.P.M.’s land. The cartway branches so that it provides Dwyer access to his property at three separate points.3 The deed describes the location of the easement and contains no language concerning its relocation.

In July, 2002, M.P.M. received municipal approval for a plan to subdivide and develop its property into seven house lots. Because Dwyer’s easement cuts across and interferes with construction on three of M.P.M.’s planned lots, M.P.M. offered to construct two new access easements to Dwyer’s property. The proposed easements would continue to provide unrestricted access from the public street (Pine Street) to Dwyer’s parcel in the same general areas as the existing cartway. The relocation of the easement would allow unimpeded construction by M.P.M. on its three house lots. M.P.M. has agreed to clear and construct the new access ways, at its own expense, so “that they are as convenient [for the defendant] as the existing cartway[].” Dw­yer objected to the proposed easement relocation, “preferring to maintain [his] right of way in the same place that it has been and has been used by [him] for the past 62 years.”

2. Procedural history. M.P.M. sought a declaration, pursuant to G. L. c. 231 A, that it has a right unilaterally to relocate Dw­yer’s easement. When M.P.M. moved for summary judgment, a Land Court judge found that there were no material issues of fact in dispute, denied M.P.M.’s motion for summary judgment, entered summary judgment against M.P.M., and dismissed the case.

The judge recognized that this case was “a clear example of an increasingly common situation where a dominant tenant is able to block development on the servient land because of the common-law rule which . . . may well be the result of unreflec­tive repetition of a misapplied rationale.” He noted that the rule conflicts with the “right of a servient tenant to use his land in any lawful manner that does not interfere with the purpose of the easement.” Nevertheless, he concluded that under the “settled” common law, once the location of an easement has been fixed it cannot be changed except by agreement of the estate owners. The judge concluded that, unless this court decides “to dispel the uncertainty that now exists and adapt the common law to present-day circumstances,” he was bound to apply the law currently in effect. We granted M.P.M.’s applica­tion for direct appellate review to decide whether our law should permit the owner of a servient estate to change the location of an easement without the easement holder’s consent.

3. Discussion. M.P.M. contends that summary judgment was erroneously entered for Dwyer. Summary judgment is appropri­ate when, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). See Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 393-394 (2003). “Summary judgment, when appropriate, may be rendered against the moving party.” Mass. R. Civ. P. 56 (c). See Perseus of N.E., MA, Inc. v. Commonwealth, 429 Mass. 163, 168 (1999). “An order granting or denying summary judgment will be upheld if the trial judge ruled on undisputed material facts and his ruling was correct as a matter of law.” Route One Liquors, Inc. v. Secretary of Admin. & Fin., 439 Mass. 111, 115 (2003), quoting Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534, 536 (1992).

The parties disagree whether our common law permits the servient estate owner to relocate an easement without the ease­ment holder’s consent. Dwyer, citing language in our cases, contends that, once the location of an easement has been defined, it cannot be changed except by agreement of the parties. See, e.g., Anderson v. DeVries, 326 Mass. 127, 132 (1950); Davis v. Sikes, 254 Mass. 540, 546 (1926); Bannon v. Angier, 2 Allen 128, 129 (1861). On the other hand, relying principally on the Appeals Court’s decision in Lowell v. Piper, 31 Mass. App. Ct. 225 (1991), M.P.M. claims that our common law permits the servient estate owner to relocate an easement as long as such relocation would not materially increase the cost of, or inconvenience to, the easement holder’s use of the ease­ment for its intended purpose. M.P.M. urges us to clarify the law by expressly adopting the modern rule proposed by the American Law Institute in the Restatement (Third) of Property (Servitudes) § 4.8 (3) (2000).

This section provides that:

“Unless expressly denied by the terms of an easement, as defined in § 1.2, the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner’s expense, to permit normal use or development of the ser­vient estate, but only if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.”

Section 4.8 (3) is a default role, to apply only in the absence of an express prohibition against relocation in the instrument creating the easement and only to changes made by the servient, not the dominant, estate owner.4 Id. It “is designed to permit development of the servient estate to the extent it can be ac­complished without unduly interfering with the legitimate interests of the easement holder.” Id. at comment f, at 563. Sec­tion 4.8 (3) maximizes the over-all property utility by increas­ing the value of the servient estate without diminishing the value of the dominant estate; minimizes the cost associated with an easement by reducing the risk that the easement will prevent future beneficial development of the servient estate; and encour­ages the use of easements. See id.; Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229, 1236 (Colo. 2001). Regardless of what heretofore has been the common law, we conclude that § 4.8 (3) of the Restatement is a sensible development in the law and now adopt it as the law of the Commonwealth.

We are persuaded that § 4.8 (3) strikes an appropriate bal­ance between the interests of the respective estate owners by permitting the servient owner to develop his land without unreasonably interfering with the easement holder’s rights. The rule permits the servient owner to relocate the easement subject to the stated limitations as a “fair tradeoff for the vulnerability of the servient estate to increased use of the easement to accom­modate changes in technology and development of the dominant estate.” Restatement (Third) of Property (Servitudes), supra at comment f, at 563. Therefore, under § 4.8 (3), the owner of the servient estate is “able to make the fullest use of his or her property allowed by law, subject only to the requirement that he or she not damage other vested rights holders.” Roaring Fork Club, L.P. v. St. Jude’s Co., supra at 1237.

It is a long-established rule in the Commonwealth that the owner of real estate may make any and all beneficial uses of his property consistent with the easement. See Gerrish v. Shattuck, 132 Mass. 235, 238 (1882); Atkins v. Bordman, 2 Met. 457, 467 (1841); Western Mass. Elec. Co. v. Sambo’s of Mass., Inc., 8 Mass. App. Ct. 815, 818 (1979), and cases cited. These cases make clear that the rights of the owner of the easement are protected notwithstanding changes made by the servient estate owner as long as the purpose for which the easement was originally granted is preserved. See VanBuskirk v. Diamond, 316 Mass. 453, 462 (1944); Dunham v. Dodge, 235 Mass. 367, 372 (1920); Johnson v. Kinnicutt, 2 Cush. 153, 157-158 (1848). We conclude that § 4.8 (3) is consistent with these principles in its protection of the interests of the easement holder: a change may not significantly lessen the utility of the easement, increase the burden on the use and enjoyment by the owner of the ease­ment, or frustrate the purpose for which the easement was created. The servient owner must bear the entire expense of the changes in the easement. See Lewis v. Young, 92 N.Y.2d 443, 452 (1998).

Dwyer urges us to reject the Restatement approach. He argues that adoption of § 4.8 (3) will devalue easements, create uncertainty in property interests, and lead to an increase in litigation over property rights.5 Our adoption of § 4.8 (3) will neither devalue easements nor place property interests in an uncertain status. An easement is by definition a limited, nonpos­sessory interest in realty. See Restatement (Third) of Property (Servitudes) § 1.2 (2000) (“An easement creates a nonposses­sory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement”); 3 Powell, Real Property § 405 at 34-13 (P. Rohan ed. 1992) (“The requirement that the easement involve only a limited use or enjoyment of the servient tenement is a corollary of the nonpossessory character of the interest” [emphasis in original]). The owner of the servient estate is in possession of the estate burdened by the easement. An easement is created to serve a particular objective, not to grant the ease­ment holder the power to veto other uses of the servient estate that do not interfere with that purpose.

The limitations embodied in § 4.8 (3) ensure a relocated easement will continue to serve the purpose for which it was created. So long as the easement continues to serve its intended purpose, reasonably altering the location of the easement does not destroy the value of it. For the same reason, a relocated easement is not any less certain as a property interest. The only uncertainty generated by § 4.8 (3) is in the easement’s location. A rule that permits the easement holder to prevent any reason­able changes in the location of an easement would render an ac­cess easement virtually a possessory interest rather than what it is, merely a right of way. See Lowell v. Piper, 31 Mass. App. Ct. 225, 229 (1991). Finally, parties retain the freedom to contract for greater certainty as to the easement’s location by incorporating consent requirements into their agreement.

“Clearly, the best course is for the [owners] to agree to alterations that would accommodate both parties’ use of their respective properties to the fullest extent possible.” Roaring Fork Club, L.P. v. St. Jude’s Co., supra at 1237. In some cases, the parties will be unable to reach a meeting of the minds on the location of an easement. In the absence of agreement between the owners of the dominant and servient estates concerning the relocation of an easement, the servient estate owner should seek a declaration from the court that the proposed changes meet the criteria in § 4.8 (3). See id. at 1237-1238. Such an action gives the servient owner an opportunity to demonstrate that relocation comports with the Restatement requirements and the dominant owner an opportunity to demonstrate that the proposed alterations will cause damage. Id. at 1238. The servient owner may not resort to self-help remedies, see id. at 1237 (after failing to reach agreement with easement holder, servient owner went forward with construc­tion), and, as M.P.M. did here, should obtain a declaratory judg­ment before making any alterations.

Although Dwyer may be correct that increased litigation could result as a consequence of adopting § 4.8 (3), we do not reject desirable developments in the law solely because such developments may result in disputes spurring litigation. Section 4.8 (3) “imposes upon the easement holder the burden and risk of bringing suit against an unreasonable relocation,” but this “far surpasses in utility and fairness the traditional rule that left the servient land owner remediless against an unreasonable easement holder.” Roaring Fork Club, L.P. v. St. Jude’s Co., su­pra at 1237, quoting Note, Balancing the Equities: Is Missouri Adopting a Progressive Rule for Relocation of Easements?, 61 Mo. L. Rev. 1039, 1060 (1996). We trust that, over time, uncertainties will diminish and litigation will subside as ease­ment holders realize that in some circumstances unilateral changes to an easement, paid for by the servient estate owner, will be enforced by courts. Dominant and servient estate owners will have an incentive to negotiate a result rather than having a court impose one on them. See Lewis v. Young, supra at 451-­452.6

We return to the facts of this case. The Land Court judge ruled correctly under existing law. But we conclude that § 4.8 (3) of the Restatement best complies with present-day realities. The deed creating Dwyer’s easement does not expressly prohibit relocation. Therefore, M.P.M. may relocate the easement at its own expense if the proposed change in location does not significantly lessen the utility of the easement, increase the burdens on Dwyer’s use and enjoyment of the easement, or frustrate the purpose for which the easement was created. M.P.M. shall pay for all the costs of relocating the easement.

Because we cannot determine from the present record whether the proposed relocation of the easement meets the aforemen­tioned criteria, we vacate the judgment and remand the case to the Land Court for further proceedings consistent with this opinion.

So ordered.

2

A servient estate is an estate burdened by an easement (here M.P.M.’s property). A dominant estate is an estate that benefits from an easement (here Dwyer’s property). See Black’s Law Dictionary 567, 569 (7th ed. 1999). The owner of the dominant estate is the easement holder.

3

Although the deed describes the right of way along a single cartway, the judge and the parties characterize the easement as being along the “cartways” or “cartpaths,” presumably because the cartway splits into three separate branches. We use the term “cartway,” as used in the deed.

4

We previously have concluded that the dominant estate owner, that is, the easement holder, may not unilaterally relocate an easement. See Kesseler v. Bowditch, 223 Mass. 265, 269-270 (1916); Jennison v. Walker, 11 Gray 423, 426 (1858). According to the Restatement, many jurisdictions have errone­ously expanded that sensible restriction into one that prevents the owner of the servient estate from relocating the easement without the consent of the easement holder. Restatement (Third) of Property (Servitudes) § 4.8 (3) com­ment f, at 563 (2000).

5

Dwyer correctly states that the majority of jurisdictions require mutual consent to change the location of an easement. See Restatement (Third) of Property (Servitudes), supra at comment f, at 563; Note, The Right of Owners of Servient Estates to Relocate Easements Unilaterally, 109 Harv. L. Rev. 1693, 1694 (1996). However, most of these decisions were issued prior to the publication of the Restatement (Third) of Property (Servitudes) (2000). See, e.g., Davis v. Bruk, 411 A.2d 660 (Me. 1980); Sakansky v. Wein, 86 N.H. 337 (1933); Johnson v. Jaqui, 27 N.J. Eq. 552 (1876); Garraty v. Duffy, 1 R.I. 476 (1863); Moore v. Center, 124 Vt. 277 (1964). Of the State appellate courts that have addressed the issue since § 4.8 (3) was drafted, four have adopted, or referred with approval to, the rule in some form. See Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229, 1236, 1238 (Colo. 2001) (adopting rule but requiring declaratory judgment prior to relocation); Lewis v. Young, 92 N.Y.2d 443, 452 (1998) (adopting rule for easements not expressly defined in grant); Goodwin v. Johnson, 357 S.C. 49, 57-58 (Ct. App. 2003) (adopting Restatement position for easements by necessity); Burkhart v. Lillehaug, 664 N.W.2d 41, 43-44 (S.D. 2003) (applying Restatement § 4.8 [3] to changes made to easement). We have found only two State appellate courts that have expressly rejected it. See Herren v. Pettengill, 273 Ga. 122, 124 (2000); Mac­Meekin v. Low Income Hous. Inst., Inc., 111 Wash. App. 188, 207 (2002).

6

In his amicus brief, the Attorney General asks that, should we adopt § 4.8 (3) of the Restatement, we carve an exception for public easements on a private party’s land. We do not address this proposition as it is not an issue in this case.

No. 54165

254 P.3d 606

JAMES R. LAWRENCE, in His Official Capacity as NEVADA STATE LAND REGISTRAR, Appellant, v. CLARK COUNTY, Respondent.

July 7, 2011

Before the Court En Banc.

Douglas, C.J., and Cherry, Gibbons, Pickering, Hardesty, and Parraguirre, JJ., concur.

Catherine Cortez Masto, Attorney General, and K. Kevin Benson, Deputy Attorney General, Carson City, for Appellant.

David J. Roger, District Attorney, and Paul D. Johnson, Deputy District Attorney, Clark County, for Respondent.

OPINION

By the Court,

Saitta, J.:

This appeal concerns whether state-owned land that was once submerged under a waterway can be freely transferred to respon­dent Clark County, or whether the public trust doctrine prohibits such a transfer. Generally, under the public trust doctrine, a state holds the banks and beds of navigable waterways in trust for the public and subject to restraints on alienability. Although the pub­lic trust doctrine has never expressly been adopted in Nevada, this court has previously applied some of its tenets and its existence is implicit in Nevada law.

Thus, in this opinion, we clarify Nevada’s public trust doctrine jurisprudence by expressly adopting the doctrine and determining its application in Nevada, given the public’s interest in Nevada’s waters and the law’s acknowledgment of that interest. In so doing, after setting forth the facts and procedural history, we will discuss the development of the public trust doctrine in general, and then its development in Nevada specifically. Next, we will set forth Nevada’s public trust doctrine framework, under which we conclude that whether the formerly submerged land is alienable, such that it can be transferred to Clark County, turns on the unanswered questions of whether the stretch of water that once covered the land was navigable at the time of Nevada’s statehood, whether the land became dry by reliction or by avulsion, and whether transferring the land contravenes the public trust. We thus reverse the district court judgment underlying this appeal, which determined that the disputed land is transferable to Clark County, and we remand this matter for determinations as to whether the disputed land was submerged beneath navigable waters at the time of Nevada’s state­hood, how it became dry land, and, if necessary, whether its transfer accords with the public’s interest in it.

FACTS AND PROCEDURAL HISTORY

The Nevada Legislature originally enacted the Fort Mohave Val­ley Development Law (FMVDL) to allow the Colorado River Commission (CRC), an executive state agency, to acquire federal land in the Fort Mohave Valley near Laughlin, within Clark County limits. The FMVDL was recently amended to require the CRC to transfer its Fort Mohave Valley land to Clark County. To effectuate the transfer, the Nevada State Land Registrar, appellant James R. Lawrence, deeded to Clark County the CRC’s interest in the Fort Mohave Valley land, except for approximately 330 acres of land adjacent to the Colorado River that he believed was non­transferable under the public trust doctrine, pursuant to which the state must hold the beds and banks of navigable waterways in trust for the public.

In response, Clark County filed a complaint for declaratory re­lief in district court, seeking an order declaring that Lawrence was required by legislative mandate to transfer the land to Clark County. Lawrence answered the complaint and filed a counterclaim for declaratory relief, seeking a declaration that the disputed land was subject to the public trust doctrine and therefore was not transferable. Clark County filed its answer and a motion for judg­ment on the pleadings, arguing, among other things, that the Leg­islature had already determined that the transfer was in the public’s interest and that nothing in the federal or state constitutions pro­hibited the transfer.

Following a hearing on Clark County’s motion for judgment on the pleadings, during which the parties debated whether the pub­lic trust doctrine applies in Nevada and, if it does, whether the dis­puted land fell within its purview, the district court determined that the disputed land was not subject to the public trust doctrine be­cause it was not within the current channel of the Colorado River. The district court, therefore, granted Clark County’s motion and ordered Lawrence to deed the disputed land to Clark County within 30 days. Lawrence now appeals. The district court granted a stay of its judgment pending the resolution of this appeal.

DISCUSSION

I. Standard of review

Judgment on the pleadings is proper when, as determined from the pleadings, the material facts are not in dispute and the moving party is entitled to judgment as a matter of law. Bonicamp v. Vazquez, 120 Nev. 377, 379, 91 P.3d 584, 585 (2004). We review questions of law, including questions of constitutional interpretation and statutory construction, de novo. See ASAP Storage, Inc. v. City of Sparks, 123 Nev. 639, 644-45, 173 P.3d 734, 738 (2007); City of Reno v. Reno Gazette-Journal, 119 Nev. 55, 58, 63 P.3d 1147, 1148 (2003).

II. The public trust doctrine’s emergence and development

As noted, whether the disputed land is transferable turns on whether it is subject to the public trust doctrine and, if so, how that doctrine applies in Nevada. To answer those questions, we begin with a discussion of the public trust doctrine’s origins and development.

A. Origins

The public trust doctrine is an ancient principle thought to be traceable to Roman law and the works of Emperor Justinian. See State v. Sorensen, 436 N.W.2d 358, 361 (Iowa 1989). Justinian de­rived the doctrine from the principle that the public possesses in­violable rights to certain natural resources, noting that “[b]y the law of nature these things are common to mankind—the air, run­ning water, the sea, and consequently the shores of the sea." The Institutes of Justinian, Lib. II, Tit. I, § 1 (Thomas Collett Sandars trans. 5th London ed. 1876). He also stated that “rivers and ports are public; hence the right of fishing in a port, or in rivers, is com­mon to all men.” Id. § 2.

The doctrine was thereafter adopted by the common law courts of England, which espoused the similar principle that “title in the soil of the sea, or of arms of the sea, below ordinary high-water mark, is in the King” and that such title “is held subject to the public right.” Shively v. Bowlby, 152 U.S. 1, 13 (1894).

B. The development of the public trust doctrine in the United States

Courts in this country have readily embraced the public trust doctrine. In 1821, in the first notable American case to ex­press public trust principles, the Supreme Court of New Jersey ob­served that citizens have a common right to sovereign-controlled waterways:

The sovereign power itself . . . cannot, consistently with the principles of the law of nature and the constitution of a well ordered society, make a direct and absolute grant of the wa­ters of the state, divesting all the citizens of their common right. It would be a grievance which never could be long borne by a free people.

Arnold v. Mundy, 6 N.J.L. 1, 78 (N.J. 1821).

Thereafter, the United States Supreme Court similarly recog­nized that “when the Revolution took place, the people of each state became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use.” Martin et al. v. Waddell, 41 U.S. 367, 410 (1842).

Fifty years later, in what has become the seminal public trust doctrine case, the Supreme Court decided Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892). In Illinois Central, the Court noted that because the State of Illinois was admitted to the United States on “equal footing” with the original 13 colonies, it, like the colonies, was granted title to the navigable waters and the lands un­derneath them. Id. at 434. For Illinois, that meant that upon its ad­mission, it held title to its portion of the waters of and lands be­neath Lake Michigan. Id. at 434, 452. However, the waters and lands underneath Lake Michigan were not freely alienable by the State of Illinois—its title to those areas was “different in charac­ter from that which the State holds in lands intended for sale.” Id. at 452. More specifically, it possessed only “title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private par­ties.” Id. As a result, the Court concluded that the Illinois Legis­lature’s attempted relinquishment of such trust property to the Illi­nois Central Railroad

is not consistent with the exercise of that trust which requires the government of the State to preserve such waters for the use of the public. . . . The State can no more abdicate its trust over property in which the whole people are interested than it can abdicate its police powers in the administration of government and the preservation of the peace.

Id. at 453.

While the Court noted that such lands need not, under all cir­cumstances, be perpetually held in trust, it recognized that in ef­fecting transfers, the public interest is always paramount, provid­ing that “[t]he control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining.” Id.

C. Nevada’s embrace of public trust doctrine principles

Although Nevada has never expressly adopted the public trust doctrine, our caselaw has adhered to several principles relevant to the existence of the public trust doctrine in this state. The follow­ing three cases illustrate that, while the doctrine was not formally adopted, this state has previously embraced the tenets on which it is based.

1. State Engineer v. Cowles Bros., Inc.

The first case in which we recognized concepts foundational to the public trust doctrine is a 1970 case, State Engineer v. Cowles Bros., Inc., 86 Nev. 872, 478 P.2d 159 (1970). Cowles involved an application with the State Engineer by the owner of “lands ad­joining the dry bed of Winnemucca Lake . . . to drill a well on property located in the dry Winnemucca Lake bed.” Id. at 873, 478 P.2d at 160. In determining whether the State Engineer could permissibly grant such an application, we noted that the state owns the waters and the beds beneath them, based on their navi­gable status at the time of statehood, providing that

[w]hen a territory is endowed with statehood one of the many items its sovereignty includes is the grant from the federal government of all navigable bodies of water within the par­ticular territory, whether they be rivers, lakes or streams. If the body of water is classified as non-navigable at the time of the creation of the state, the underlying land remains the property of the United States, but if it is navigable under the definition hereinafter stated, the water and the bed beneath it becomes the property of the state.

Id. at 874, 478 P.2d at 160. Thus, Cowles set the foundation on which future cases involving public trust doctrine principles rest, by recognizing that navigable waterways are owned by the state.

2. State v. Bunkowski

We furthered the application of public trust doctrine principles with respect to state-owned navigable waterways two years later in State v. Bunkowski, 88 Nev. 623, 503 P.2d 1231 (1972). In Bunkowski, we reiterated “‘[i]t is settled law in this country’” that, by virtue of a state’s admission into the United States, “‘lands underlying navigable waters within [the] State belong to the State in its sovereign capacity.’” Id. at 627, 503 P.2d at 1233 (quoting United States v. Holt Bank, 270 U.S. 49, 54 (1926)). Sig­nificantly, we then pointed out that the state holds those lands in trust for its citizens, which prevents the transfer of those lands, ab­sent proper legislative determination:

It has been held, in what appears to be a majority of cases, that the states hold title to the beds of navigable watercourses in trust for the people of their respective states. Titles to nav­igable water beds are normally inalienable. In Alameda Con­servation Association v. City of Alameda, 70 Cal. Rptr. 264 (Cal. App. 1968), it was held that while the state owns land under bays, such lands can be transferred by the state free of trust upon proper legislative determination, citing People v. California Fish Co., 138 P. 79 (Cal. 1913).

Id. at 634, 503 P.2d at 1237-38 (citations omitted). In so recog­nizing, we implicitly acknowledged the public trust doctrine, ulti­mately concluding that “[t]he State holds the subject lands in trust for public use.” Id. at 635, 503 P.2d at 1238 (emphasis added). Although we recognized that under certain circumstances the Leg­islature could alienate public trust lands without breaking the pub­lic trust, we did not further elaborate on that concept, apart from indicating that the Legislature must make an “express” and “proper” determination. Id. at 634, 503 P.2d at 1237-38. The cases we referenced, however, indicate that legislative conveyances of trust lands must account for the public’s interest in maintaining such waterways for their public use. See, e.g., California Fish Co., 138 P. at 88.

3. Mineral County v. State, Department of Conservation

The most recent case dealing with issues connected to the pub­lic trust doctrine, Mineral County v. State, Department of Conser­vation, 111 Nev. 235, 20 P.3d 800 (2001), was an original writ proceeding concerning rights to withdraw surface or groundwater from Walker River and Walker Lake. Id. Although this court de­nied the petition on procedural grounds, Justice Rose issued a concurring opinion expressing his belief that this court should fi­nally “affirmatively address the existence and role of the public trust doctrine in the State of Nevada.” Id. at 246, 20 P.3d at 807 (Rose, J., concurring). Citing the seminal Supreme Court case, Illinois Central, Justice Rose emphasized that the state holds all land beneath Nevada’s navigable waters in trust for the benefit of the state’s citizenry, as an incident of Nevada’s statehood. Id. Jus­tice Rose further asserted that the public trust doctrine in Nevada is contained in NRS 533.025, which provides that “‘[t]he water of all sources of water supply within the boundaries of the state whether above or beneath the surface of the ground, belongs to the public.’” Id. at 247, 20 P.3d 808. Regarding NRS 533.025, he wrote:

This court has itself recognized that this public ownership of water is the “most fundamental tenet of Nevada water law.” Additionally, we have noted that those holding vested water rights do not own or acquire title to water, but merely enjoy a right to the beneficial use of the water. This right, however, is forever subject to the public trust, which at all times “forms the outer boundaries of permissible government action with respect to public trust resources.” In this manner, then, the public trust doctrine operates simultaneously with the sys­tem of prior appropriation.

Id. (quoting Desert Irrigation, Ltd. v. State of Nevada, 113 Nev. 1049, 1059, 944 P.2d 835, 842 (1997); Kootenai Environ. Alliance v. Panhandle Yacht, 671 P.2d 1085, 1095 (Idaho 1983)).

Justice Rose noted that every Nevada citizen has a vested inter­est in the water from Walker River and expects the state’s natural resources to be preserved. Id. at 248, 20 P.3d at 808. Finally, he described this court’s vital role of ensuring the continuance of this stewardship:

If the current law governing the water engineer does not clearly direct the engineer to continuously consider in the course of his work the public’s interest in Nevada’s natural water resources, then the law is deficient. It is then appropri­ate, if not our constitutional duty, to expressly reaffirm the en­gineer’s continuing responsibility as a public trustee to allo­cate and supervise water rights so that the appropriations do not “substantially impair the public interest in the lands and waters remaining.” “[T]he public trust is more than an affir­mation of state power to use public property for public pur­poses. It is an affirmation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust.” Our dwindling natural re­sources deserve no less.

Id. at 248-49, 20 P.3d at 808-09 (alteration in original) (quoting Illinois Central Railroad v. Illinois, 146 U.S. 387, 452 (1892); Nat. Audubon Soc. v. Super. Ct. of Alpine Cty., 658 P.2d 709, 724 (Cal. 1983)).1

III. The sources and functions of the public trust doctrine in Nevada

With the foregoing discussion in mind, we turn to the parties’ arguments regarding the public trust doctrine in this matter. Lawrence argues that this state has adopted the public trust doc­trine and, consequently, that the disputed land is not transferable. But as Justice Rose recognized, although Nevada law embraces public trust doctrine principles, this court has never expressly adopted that doctrine. Further, as the caselaw noted above indicates and common sense dictates, the public trust doctrine does not al­ways prohibit the transfer of trust land.

Clark County argues that we should not adopt the public trust doctrine to review the Legislature’s conveyances of trust property, because the public trust doctrine is rooted in common law and, thus, cannot supersede legislation. See, e.g., Gwathmey v. State through Dept. of Envir., 464 S.E.2d 674, 682-84 (N.C. 1995) (ex­plaining that, in North Carolina, the public trust doctrine has not been codified in the state constitution, and thus, while the common law doctrine creates a presumption that the state did not transfer public trust lands in a manner inimical to the public trust, the state legislature, as representatives of the people, was free to do so with­out reservation of any public trust rights). In addition, as it con­tended during oral argument, Clark County asserts that adopting the public trust doctrine is unwise because, in Clark County’s estimation, the doctrine assigns to courts the allegedly impossible task of determining if at any point a given parcel of land was beneath a navigable waterway to ascertain its trust status. In so arguing, however, Clark County fundamentally misapprehends the sources and functions of the public trust doctrine in Nevada and exaggerates the difficulty of determining a land parcel’s trust status.

A. Sources of the Nevada public trust doctrine

As an initial matter, we note that the public trust doctrine is not simply a common law remnant. Indeed, in addition to the Nevada caselaw discussed above, public trust principles are contained in Nevada’s Constitution and statutes and are inherent from insever­able restraints on the state’s sovereign power.

1. Public trust doctrine principles in the Nevada Constitution

Article 8, Section 9 of the Nevada Constitution prohibits the gift or loan of public funds and credit: "The State shall not donate or loan money, or its credit, subscribe to or be, interested in the Stock of any company, association, or corporation, except corporations formed for educational or charitable purposes.” Similar provisions in other state constitutions are referred to as gift clauses, as they generally prohibit gifts of taxpayer funds.

In considering Nevada’s gift clause, we have stated that trans­actions disbursing public funds must be struck down if not made for a public purpose. State ex rel. Brennan v. Bowman, 89 Nev. 330, 332-34, 512 P.2d 1321, 1322-23 (1973). We have also closely examined such transactions to ensure that the state actually receives valuable benefit. See Clark County v. Lewis, 88 Nev. 354, 357, 498 P.2d 363, 365 (1972). Our caselaw stresses the importance of the dispensing state entity reviewing “[a]ll facts, figures and nec­essary information” when making a dispensation; when the entity has done so, it will not be second-guessed by the courts. Id.

Thus, the Legislature’s ability to dispose of the public’s re­sources is expressly limited by the gift clause, at the core of which lays the principle that the state acts only as a fiduciary for the pub­lic when disposing of the public’s valuable property. See Brennan, 89 Nev. at 332-34, 512 P.2d at 1322-23; Lewis, 88 Nev. at 357, 498 P.2d at 365. The public trust doctrine is based on that same principle upheld by the gift clause: the state must carefully safe­guard public trust lands by dispensing them only when in the pub­lic’s interest. Stated differently, the public trust doctrine, like the gift clause, requires the state to serve as trustee for public re­sources. We see no reason for treating public trust waterways any differently than public money and credit, insofar as the state must act as trustee to preserve the public’s interest in that property. Therefore, we conclude that the constitutional policy contained in the gift clause infers the people’s intent to constrain the Legisla­ture’s ability to alienate public trust lands as well as public funds.

2. Public trust doctrine principles in Nevada statutes

Another source of Nevada law that evinces the public trust doc­trine is our statutory law, specifically, NRS 321.0005 and NRS 533.025.

NRS 321.0005 provides, in pertinent part:

The Legislature declares the policy of this State regarding the use of state lands to be that state lands must be used in the best interest of the residents of this State, and to that end the lands may be used for recreational activities, the production of revenue and other public purposes.

(Emphasis added.) Thus, by its express language, NRS 321.0005 contemplates fiduciary-type duties with regard to the state’s ad­ministration of state lands.

NRS 533.025 provides that “[t]he water of all sources of water supply within the boundaries of the State whether above or beneath the surface of the ground, belongs to the public.” Notably, NRS 533.025 does not provide that Nevada’s water belongs to the state; rather, it belongs to the public. Thus, as Justice Rose proposed, NRS 533.025 provides grounding for the Nevada public trust doc­trine. See Mineral County v. State, Dep’t of Conserv., 117 Nev. 235, 247, 20 P.3d 800, 808 (2001) (Rose, J., concurring). So too does NRS 321.0005. Both provisions recognize that the public land and water of this state do not belong to the state to use for any pur­pose, but only for those purposes that comport with the public’s in­terest in the particular property, exemplifying the fiduciary princi­ples at the heart of the public trust doctrine. In sum, NRS 321.0005 and NRS 533.025 effectively statutorily codify the prin­ciples behind the public trust doctrine in Nevada.

3. Public trust doctrine principles inherent from limitations on the state’s sovereign power

The final underpinning of our formal adoption of the public trust doctrine arises from the inherent limitations on the state’s sover­eign power, as recognized in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892). In Illinois Central, the United States Supreme Court established the principle that “[t]he State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, . . . than it can abdicate its police powers in the administration of government and the preservation of the peace.” Id. at 453. In other words, be­cause the state holds such property in trust for the public’s use, the state is simply without power to dispose of public trust property when it is not in the public’s interest. See id. (“A grant of all the lands under the navigable waters of a State has never been ad­judged to be within the legislative power; and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation.”); Kootenai Environ. Alliance v. Panhandle Yacht, 671 P.2d 1085, 1088 (Idaho 1983) (“[A] state, as adminis­trator of the trust in navigable waters on behalf of the public, does not have the power to abdicate its role as trustee in favor of private parties.”); Coxe v. State, 39 N.E. 400, 402 (N.Y. 1895) (“The title of the state to the seacoast and the shores of tidal rivers is dif­ferent from the fee simple which an individual holds to an estate in lands. It is not a proprietary, but a sovereign, right; and it has been frequently said that a trust is ingrafted upon this title for the benefit of the public, of which the state is powerless to divest it­self.”). Under the public trust doctrine, the Legislature has the power only to act as a fiduciary of the public in its administration of trust property. The public trust doctrine is thus not simply com­mon law easily abrogated by legislation; instead, the doctrine con­stitutes an inseverable restraint on the state’s sovereign power.

In sum, although the public trust doctrine has roots in the com­mon law, it is distinct from other common law principles because it is based on a policy reflected in the Nevada Constitution, Nevada statutes, and the inherent limitations on the state’s sovereign power, as recognized by Illinois Central. Accordingly, in the words of Jus­tice Rose, it is “appropriate, if not our constitutional duty,” to ex­pressly adopt the doctrine to ensure that the state does not breach its duties as a sovereign trustee, and we do so here. Mineral County, 117 Nev. at 248, 20 P.3d at 808 (Rose, J., concurring). Thus, contrary to the County’s position, any legislation that pur­ports to convey public trust lands is subject to judicial review. See San Carlos Apache Tribe v. Superior Court, 972 P.2d 179, 199 (Ariz. 1999) (“It is for the courts to decide whether the public trust doctrine is applicable to the facts. The Legislature cannot by legislation destroy the constitutional limits on its authority.”).

B. Determining whether land is public trust land

With regard to Clark County’s argument that adopting the pub­lic trust doctrine unwisely assigns to courts the difficult task of de­termining if, at any point, a given parcel of land was beneath a navigable body of water in order to determine its trust character, we disagree.

1. Establishing whether the land was submerged beneath navigable waters

As an initial matter, the public trust doctrine is rooted in our constitutional and statutory law and inherent limitations on the state’s power and, thus, cannot be relaxed simply because it may present courts with difficult factual questions. And in any event, Clark County overstates the complexity of determining the char­acter of land for public trust doctrine purposes.

Determining whether land is held in trust for the public by the state begins by reference to whether the land was submerged be­neath navigable water when Nevada joined the United States on October 31, 1864, as Nevada joined the United States on equal footing with other states in every respect, State v. Bunkowski, 88 Nev. 623, 628, 503 P.2d 1231, 1234 (1972), and, consequently, obtained title to all land below the high-water mark of Nevada’s navigable waters on the date of its admission to the Union. See Utah v. United States, 403 U.S. 9, 10 (1971); Illinois Central, 146 U.S. at 434; Bunkowski, 88 Nev. at 628, 503 P.2d at 1234. Thus, determining whether land is subject to the public trust does not re­quire consideration as to whether land was at any time underwater, as Clark County claims. Rather, it requires consideration of whether the land was beneath navigable waters on October 31, 1864. See Bunkowski, 88 Nev. at 628, 503 P.2d at 1234 (explain­ing that, for purposes of determining state ownership, the factual question of whether the Carson River is navigable is determined by reference to its condition October 31, 1864). Further, determining the navigability of a segment of a body or channel of water, which under federal law refers to the “ordinary and natural condition of the watercourse,” may be accomplished through “expert testi­mony, historical surveys, and news clippings from the relevant time,” as the Arizona Court of Appeals recognized in Arizona Center for Law v. Hassell, 837 P.2d 158, 164-65 (Ariz. Ct. App. 1991); see also State Engineer v. Cowles Bros., Inc., 86 Nev. 872, 874, 478 P.2d 159, 160 (1970) (“A body of water is navigable if it is used or is usable in its ordinary condition as a highway of commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water.” (citing Brewer Oil Co. v. United States, 260 U.S. 77, 86 (1922))).

2. Establishing how the land became dry

If land was beneath navigable waters when Nevada joined the United States, but is now exposed, whether that land remains sub­ject to the public trust doctrine generally depends on the manner in which it became dry—whether by reliction2 or avulsion.3 See Cowles, 86 Nev. at 875, 478 P.2d at 161. When the exposure is caused by reliction, the gradual and imperceptible exposure of the land, title to the dry water bed is passed to the adjoining shoreland owners. Id. The event causing the exposure of the water bed may be considered reliction even when the gradual changes to the water bed come about by artificial means:

When the exposure is due wholly or in part to artificial causes and those causes are not the act of the party owning the shoreland the rules that prevail as to the ownership of the ac­creted or relicted land are the same as in the case of accretion or reliction solely by natural causes.

Id.

In contrast, when changes to the water bed occur by avulsion, that is, by “sudden changes in the course of a stream,” title is not taken away or bestowed. Peterson v. Morton, 465 F. Supp. 986, 997 (D. Nev. 1979) (applying Nevada state law), vacated in part on other grounds by Peterson v. Watt, 666 F.2d 361, 364 (9th Cir. 1982). Thus, because artificial actions, such as draining, damming, or channeling a waterway, may result in rapid exposure of the water bed, those events are often appropriately considered avulsions. See id. at 1003 (determining that where the strip of land in ques­tion became dry “as a result of a sudden deliberate and obvious engineering relocation of the waters within the artificial banks of the permanently channelized river,” such an event was considered an avulsion under Nevada law and therefore the state retained title to the land); see also New Jersey v. New York, 523 U.S. 767, 770-­71, 784 (1998) (holding that the federal government’s filling of a portion of the Hudson River was an avulsion, and, as a conse­quence, ownership of the new dry land remained unchanged); Garrett v. State, 289 A.2d 542, 546, 548 (N.J. Super. Ct. Ch. Div. 1972) (the filling and rerouting of a tidal stream constituted an avulsion, and accordingly, the state retained title to the streambed).

In Cowles, we applied the doctrine of reliction in determining that the state had lost its title to once-submerged land that had gradually and imperceptibly become dry. 86 Nev. at 874-75, 478 P.2d at 161. In the same way, the avulsion doctrine is useful for de­termining whether the state retains its title to land held in trust for the public after it has become dry. Applying these doctrines bal­ances land gain and loss opportunities in a fair manner and oper­ates as a disincentive to artificially diverting water from public trust lands in an effort to increase personal landholdings near nav­igable waters. See id. at 876-77, 478 P.2d at 162.

Here, whether the disputed land became dry through reliction or avulsion is critical. If it was through reliction, the public trust doc­trine does not apply to that land. But if the portion of the Colorado River covering the land was navigable at the time of Nevada’s statehood, and the land thereafter became dry through avulsion, the public trust doctrine applies. And if the public trust doctrine applies, whether the disputed land is transferable turns on whether the transfer serves the public’s interest in the land and comports with the state’s trustee obligations, as discussed next.

C. Determining whether public trust land is transferable

Resolution of disputes over title to public trust land is a matter of state law. See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 484-85 (1988). Thus, state courts considering the public trust doctrine have developed their own frameworks for examining the administration of lands held in public trust. See District of Co­lumbia v. Air Florida, Inc., 750 F.2d 1077, 1082 (D.C. Cir. 1984) (“In this country the public trust doctrine has developed almost ex­clusively as a matter of state law.”). Although several approaches to making a determination regarding the transferability of public trust land exist, the approach taken by Arizona deserves concerted attention, as its constitution contains a gift clause nearly identical to Nevada’s.4 Moreover, Arizona’s approach is instructive because it faces many of the same challenges that this state faces in main­taining its public trust property, given its arid desert climate and rapidly expanding urban population. See Tracey Dickman Zobenica, The Public Trust Doctrine in Arizona’s Streambeds, 38 Ariz. L. Rev. 1053, 1054 (1996).

In Arizona Center for Law v. Hassell, 837 P.2d 158 (Ariz. Ct. App. 1991), a case with facts and issues remarkably similar to those presented here, the Court of Appeals of Arizona extensively considered the relationship between the public trust doctrine and the Arizona gift clause. In Hassell, the Arizona Legislature en­acted legislation relinquishing, through an uncompensated quit­claim, the state’s claim to any “interest in all watercourses other than the Colorado, Gila, Salt, and Verde Rivers and in all lands formerly within those rivers but outside their current beds.” Id. at 162. The legislation also allowed “record titleholder[s] of lands in or near the beds of the Gila, Salt, or Verde Rivers” to obtain a quitclaim deed for just $25 per acre. Id.

The Arizona Center for Law in the Public Interest and several individuals (collectively, Arizona Center) commenced a lawsuit against Arizona Land Commissioner Milo J. Hassell, the state land department, and the State of Arizona (collectively, Land Commis­sioner). Id. at 163. Arizona Center sought to invalidate the legis­lation, alleging that it “violated the gift clause of the Arizona Constitution . . . and the state’s sovereign duty to protect the pub­lic [interest].” Id. (citations omitted). The trial court granted the Land Commissioner summary judgment, determining that “[e]ven if the rivers were navigable at statehood, . . . the state could legally relinquish its claims to the riverbeds for the purpose of ‘un-­clouding title.’” Id. Arizona Center appealed. Id.

Although the parties in Hassell briefed the gift clause and pub­lic trust issues separately, the Arizona Court of Appeals considered them in unison. Id. at 166. The court explained, “Because the gift clause of the Arizona Constitution explicitly limits governmental freedom to dispose of public resources, it provides an appropriate framework for judicial review of an attempt by the legislative and executive branches to divest the state of a portion of its public trust.” Id. Relying upon Arizona’s gift clause jurisprudence, the Hassell court then fashioned the following test for reviewing the validity of dispensations of trust property:

[W]hen a court reviews a dispensation of public trust property, . . . public purpose and fair consideration[ ] must be shown. . . .

[A]ny public trust dispensation must also satisfy the state’s special obligation to maintain the trust for the use and enjoy­ment of present and future generations.

Id. at 170. Applying this test, the Hassell court concluded that the legislation being challenged was “invalid under the public trust doctrine and [the gift clause] of the Arizona Constitution.” Id. at 173.

Because we find the reasoning enunciated in Hassell persuasive and harmonious with our own gift clause and public trust ju­risprudence, we adopt the Hassell approach to reviewing dispen­sations of public trust property. Accordingly, when assessing such dispensations, courts of this state must consider (1) whether the dispensation was made for a public purpose, (2) whether the state received fair consideration in exchange for the dispensation, and (3) whether the dispensation satisfies “the state’s special obligation to maintain the trust for the use and enjoyment of present and fu­ture generations.” Id. at 170. The first two considerations are common to any dispensation of public trust property, see, e.g., State ex rel. Brennan v. Bowman, 89 Nev. 330, 332-34, 512 P.2d 1321, 1322-23 (1973); Clark County v. Lewis, 88 Nev. 354, 357, 498 P.2d 363, 365 (1972), while the third consideration is specific to navigable waterways under the public trust. Hassell, 837 P.2d at 169-70. In addition, cognizant of the fact that public trust land “may . . . undergo[ ] such changes over time that it is no longer suitable for public trust purposes,” id. at 170, when reviewing the third consideration, courts should also evaluate the following fac­tors to determine whether a given conveyance comports with the state’s trustee duties:

“[T]he degree of effect of the project on public trust uses, navigation, fishing, recreation and commerce; the impact of the individual project on the public trust resource; the im­pact of the individual project when examined cumulatively with existing impediments to full use of the public trust resource . . . ; the impact of the project on the public trust re­source when that resource is examined in light of the primary purpose for which the resource is suited, i.e. commerce, nav­igation, fishing or recreation; and the degree to which broad public uses are set aside in favor of more limited or private ones.”

Id. at 170-71 (quoting Kootenai Environ. Alliance v. Panhandle Yacht, 671 P.2d 1085, 1092-93 (Idaho 1983)). Finally, we note that when the Legislature has found that a given dispensation is in the public’s interest, it will be afforded deference. See id. at 171; Lewis, 88 Nev. at 357-58, 498 P.2d at 365-66. This is not to say that the courts of this state will merely “rubber-stamp” the Leg­islature’s finding. Hassell, 837 P.2d at 171. Rather, while courts will give the Legislature due deference, they will carefully exam­ine whether the Legislature made an informed and appropriate conveyance under the rubric set forth above.

CONCLUSION

We expressly adopt the public trust doctrine in Nevada. We de­cline, however, to consider in this appeal whether the amended portions of the FMVDL comport with the public trust doctrine, as that determination would be premature.5 Specifically, whether the land is transferable by the state to Clark County initially turns on whether it was submerged beneath a navigable stretch of the Col­orado River at the time of Nevada’s statehood, and if it was, whether it became dry through reliction or avulsion. As the district court entered judgment on the pleadings, those material questions of fact remain unanswered. We therefore conclude that judgment on the pleadings was improper, and we reverse the district court’s judgment and remand this case to the district court with instruc­tions to evaluate whether the disputed land was beneath a naviga­ble waterway at the time of Nevada’s statehood and how it became dry. If, on remand, the district court finds that the disputed land was beneath navigable waters and became dry through avulsion, the district court must then determine whether the portions of the FMVDL conveying those lands to Clark County contravene the public trust.

1

Our remaining case in the public trust realm, Pyramid Lake Paiute Tribe v. Washoe County, 112 Nev. 743, 918 P.2d 697 (1996), did not significantly advance the blueprint of the Nevada public trust doctrine and therefore does not warrant extended discussion. Pyramid Lake is noteworthy, however, in that Justice Springer dissented on the ground that the manner in which the State Engineer was assessing water applications violated the public trust doctrine. Id. at 162-63, 918 P.2d at 709 (Springer, J., dissenting). Although we do not necessarily subscribe to Justice Springer’s vision of the public trust doctrine, his dissent further demonstrates the existence of the doctrine in Nevada jurisprudence.

2

Reliction is defined as “[a] process by which a river or stream shifts its lo­cation, causing the recession of water from its bank.” Black’s Law Dictionary 1404 (9th ed. 2009). A companion concept is accretion. However, reliction dif­fers in that it “is applied to land made by the withdrawal of the waters by which it is covered,” 93 C.J.S. Waters § 177 (2001) (emphasis added), whereas accretion is “[t]he gradual accumulation of land by natural forces.” Black’s Law Dictionary 23 (9th ed. 2009) (emphasis added).

3

Avulsion, as it relates to waterways in the instant context, is “the sudden and rapid change of the channel of the stream which is the boundary, whereby it abandons its old and seeks a new bed.” 93 C.J.S. Waters § 183 (2001) (foot­note omitted).

4

Article 9, Section 7 of the Arizona Constitution provides, in relevant part, that the state “shall [not] ever give or loan its credit in the aid of, or make any donation or grant, by subsidy or otherwise, to any individual, association, or corporation.” While we note that Arizona’s gift clause does not include a ref­erence to money like Nevada’s gift clause, this textual difference does not have any practical significance as it pertains to the public trust doctrine because both clauses reflect a strong policy limiting the state’s ability to dispose of public resources.

5

The County argues that the amended FMVDL is not within the scope of the public trust doctrine because it does not directly convey the disputed land to a private entity. We cannot agree.

If we were to accept the County’s argument, the state could easily use a government subdivision as a conduit to circumvent its trustee duties. See 65 C.J.S. Navigable Waters § 131 (2010) (explaining that although the state may generally grant public trust land to municipalities, such transfers must be made for a purpose that is consistent with the public trust doctrine); Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Inter­vention, 68 Mich. L. Rev. 471, 490 (1970) (“When a state holds a resource which is available for the free use of the general public, a court will look with considerable skepticism upon any governmental conduct which is calculated ei­ther to reallocate that resource to more restricted uses or to subject public uses to the self-interest of private parties.”). We therefore conclude that legislation conveying public trust property from the state to a government subdivision is within the ambit of the public trust doctrine and must be analyzed to determine whether such a conveyance results in a violation of the public trust.

VIRGINIA MATTHEWS, PLAINTIFF-APPELLANT, AND STAN­LEY C. VAN NESS, PUBLIC ADVOCATE OF THE STATE OF NEW JERSEY, PLAINTIFF-INTERVENOR-APPELLANT, v. BAY HEAD IMPROVEMENT ASSOCIATION, A NON-PROFIT CORPORATION OF THE STATE OF NEW JERSEY; PHILIP D. REED, JR.; PAUL E. PARKER & CATHERINE PARKER, H/W; JAMES L. TYSON & DAVID O. TYSON; JOHN BOWMAN DEL­ANEY; ROBERT L. JOHNSON & ROBERTA JOHNSON, H/W; HELEN LOBLEIN; MARTHA L. VAN EMBURGH; H. CORBIN DAY; CAROL C. SCHMITZ; BENJAMIN BARNETT & CATH­ERINE, H/W; KATHERINE W. FORTENBAUGH; GEORGE P. EGBERT; LESTER D. EGBERT; GEORGE O. NODYNE; AN­DREW H. CAMPBELL; JOSEPH SHELBY & MIRIAM ROHRER SHELBY; BRUCE B. SWENSON & NANCY T. SWENSON, H/W; FERDINAND W. ROEBLING, III; DOROTHY ANDERSON & CLIFFORD O. ANDERSON; ESTATE OF EILEEN RUCKER; MARY G. HILL; ROBERT S. CORBIN; JOHN A. BROWN; GEORGE R. SCHULTZ; EDWARD MCGRATH & ELIZABETH MCGRATH, H/W; WALTER H. BROWN & CATHERINE BROWN, H/W; ALFRED E. JOHNSON, JR.; EDWARD F. & JOAN VAN JOHNSON, H/W; JOHN MAGEE & ELIZABETH MAGEE, H/W; FRANK J. O’BRIEN; EDITH WELLS PARDOE­; GEORGE H. & ESTELLE M. SANDS, H/W AND CLYDE A. SZUCH, DEFENDANTS-RESPONDENTS, AND JOSEPH DECI­BUS & HAZEL DECIBUS, H/W; FREDERICK MELLOR; WIL­LIAM DE BRAY & VILMA DE BRAY, H/W; ELIZABETH M. HEATH; F.W. CLARK & LUCILLE CLARK, H/W; HENRY THUMAN; ELIZABETH MATTHEWS; PAUL SAMBORN; HOWARD MCCLINTIC; DONALD LUSARDI; HENRY C. DAY; M. DICKINSON; MARGARET B. DUNN; DICK ZUVER & JEAN ZUVER, H/W; ALBERT ROBERT JOHNSON; ANDREW CONTE; RICHARD OTTO & JUDITH OTTO, H/W; GORDON A. WILLSPANGH; ELIZABETH HANUS; REBEKAH COLLINS; MARIA A. CARMICHAEL; HERBERT J. GARMBOW; CARO­LYN L. OTTLEY; FRANK E. CURRAN, JR.; DARWIN JAMES, JR.; WILLIAM H. NIMICK, III; CLARK ESTATE; MARIAN R. REICHEL; LAWRENCE BATHGATE & PAMELA BATHGATE, H/W; RICARDO MESTRES; BEVERLY ROBERTSON; WIL­LIAM SPOFFORD; AUSTIN STARKEY; HENRY GIBSON; HENRY SMITH; BARR ELIZABETH LOIZEAUX; ALBERT DITTMAN; TRISTINA JOHNSON; QUAIL HILL ESTATES; ASH ASSOCIATION; MALVERN C. BURROUGHS; HERB & ANN DRAESEL, H/W; FLORENCE EBERHARDT; PETER HAUSMANN; THOMAS JONES & VERA JONES, H/W; JAMES W. KELLEY; MORGAN MACOM & MARY MACOM, H/W; JOHN F. MOORE; DONALD A. PICKERING & DOROTHY PICK­ERING, H/W; ELIZABETH H. STRECCH; ZORLAS, JAMES & BARBARA, H/W; WALTER & MARION BRAUN, H/W; DAVID & SHIRLEY GAESFORD, H/W; HERBGMARTH-TAYLOR ROSS & AMY WRIGHT, H/W AND MARX & GUILIANA RENZULLI, H/W, DEFENDANTS, AND MRS. PAUL HAY; EDWARD H. HEIN; HAROLD L. HERBERT; ROBERT KING; HERMAN SCHMITZ; CHRISTINE WILDER; SAMUEL B. FORTEN-­BAUGH, JR.; GREGORY GIBSON; ANN F. MESTRES; DORO­THY L. CORBIN; MAX HABERNICKEL, III & GAEL S. HA­BERNICKEL, H/W; J. STUART HILL; RICARDO A. MESTRES, JR.; ANNE K. NODYNE AND ELIZABETH B. REED, RESPON­DENTS NOT NAMED IN THE COMPLAINT.

Decided February 2, 1984.

Argued May 10, 1983

Sandra T. Ayres, Deputy Public Advocate, Division of Public Interest Advocacy, argued the cause for appellants (Joseph E. Rodriguez, Public Advocate, attorney).

Alvin Weiss argued the cause for respondents Clifford O. Anderson & Dorothy Anderson; Benjamin & Catherine Barnett, h/w; John A. Brown; Walter H. Brown & Catherine Brown, h/w; Andrew H. Campbell; H. Corbin Day; Samuel B. Forten­baugh, Jr. & Katherine W. Fortenbaugh, h/w; Gregory Gibson; Mrs. Paul Hay; Edward H. Hein; Harold L. Herbert; Edward F. & Joan Van Johnson, h/w; Robert King; Edward McGrath & Elizabeth McGrath, h/w; Ann F. Mestres; Paul E. Parker & Catherine Parker, h/w; Philip D. Reed, Jr.; Estate of Eileen Rucker; George H. & Estelle M. Sands, h/w; Herman Schmitz; Joseph Shelby & Miriam Rohrer Shelby; David O. Tyson; James L. Tyson and Christine Wilder (Riker, Danzig, Scherer & Hy­land, attorneys; Glenn Clark and Andrew Manshel, on the brief).

John R. Weigel argued the cause for respondents John A. Brown; Robert S. Corbin & Dorothy L. Corbin, h/w; Samuel B. Fortenbaugh, Jr. & Katherine W. Fortenbaugh, h/w; Max Habernickel, III & Gael S. Habernickel, h/w; J. Stuart Hill & Mary G. Hill, h/w; Ricardo A. Mestres, Jr.; George O. Nodyne & Anne K. Nodyne, h/w; Philip D. Reed, Jr. & Elizabeth B. Reed, h/w; Ferdinand W. Roebling, III; Carol C. Schmitz; George R. Schultz and Bruce B. Swenson & Nancy T. Swenson, h/w (John R. Weigel and Joseph M. Clayton, Jr., attorneys; Joseph M. Clayton, Jr., on the brief).

Richard H. Woods argued the cause for respondents Bay Head Improvement Association, etc.; John Bowman Delaney; George P. Egbert; Lester D. Egbert; Alfred E. Johnson, Jr.; Robert L. Johnson and Roberta Johnson, h/w; Helen Loblein; John Magee & Elizabeth Magee, h/w; Edith Wells Pardoe and Martha L. Van Emburgh (Schuman & Butz, attorneys).

Frank J. O’Brien submitted a letter brief, pro se.

Clyde A. Szuch submitted briefs, pro se (Clyde A. Szuch, attorney; J. Michael Nolan, Jr., Jeri E. Ruscoll and Peter A. Scarpato, on the briefs).

The opinion of the Court was delivered by

SCHREIBER, J.

The public trust doctrine acknowledges that the owner­ship, dominion and sovereignty over land flowed by tidal waters, which extend to the mean high water mark, is vested in the State in trust for the people. The public’s right to use the tidal lands and water encompasses navigation, fishing and recreation­al uses, including bathing, swimming and other shore activities. Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296, 309 (1972). In Avon we held that the public trust applied to the municipally-owned dry sand beach immediately landward of the high water mark.1 The major issue in this case is whether, ancillary to the public’s right to enjoy the tidal lands, the public has a right to gain access through and to use the dry sand area not owned by a municipality but by a quasi-public body.

The Borough of Point Pleasant instituted this suit against the Borough of Bay Head and the Bay Head Improvement Associa­tion (Association), generally asserting that the defendants pre­vented Point Pleasant inhabitants from gaining access to the Atlantic Ocean and the beachfront in Bay Head. The proceed­ing was dismissed as to the Borough of Bay Head because it did not own or control the beach. Subsequently, Virginia Mat­thews, a resident of Point Pleasant who desired to swim and bathe at the Bay Head beach, joined as a party plaintiff, and Stanley Van Ness, as Public Advocate, joined as plaintiff-inter­venor. When the Borough of Point Pleasant ceased pursuing the litigation, the Public Advocate became the primary moving party. The Public Advocate asserted that the defendants had denied the general public its right of access during the summer bathing season to public trust lands along the beaches in Bay Head and its right to use private property fronting on the ocean incidental to the public’s right under the public trust doctrine. The complaint was amended on several occasions, eliminating the Borough of Point Pleasant as plaintiff and adding more than 100 individuals, who were owners or had interests in properties located on the oceanfront in Bay Head, as defendants.

Both sides moved for summary judgment. The trial court granted the defendants’ motions except with respect to the plaintiff’s claim that the public had acquired rights in the dry sand beach resulting from an implied dedication or prescriptive easement prior to 1932. When the plaintiff abandoned these claims, the trial court entered a final judgment in favor of the defendants. Upon plaintiff’s appeal, the Appellate Division affirmed, one judge dissenting. Plaintiff appealed as of right, R. 2:2-1(a), and also filed a petition for certification, which we granted. 91 N.J. 559 (1982).

The facts as gleaned from the record consisting of deposi­tions, answers to interrogatories, admissions2 and the pleadings are substantially undisputed.

I

Facts

The Borough of Bay Head (Bay Head) borders the Atlantic Ocean. Adjacent to it on the north is the Borough of Point Pleasant Beach, on the south the Borough of Mantoloking, and on the west Barnegat Bay. Bay Head consists of a fairly narrow strip of land, 6,667 feet long (about 1 1/4 miles). A beach runs along its entire length adjacent to the Atlantic Ocean. There are 76 separate parcels of land that border the beach. All except six are owned by private individuals. Title to those six is vested in the Association.

The Association was founded in 1910 and incorporated as a nonprofit corporation in 1932. Its certificate of incorporation states that its purposes are

the improving and beautifying of the Borough of Bay Head, New Jersey, cleaning, policing and otherwise making attractive and safe the bathing beaches in said Borough, and the doing of any act which may be found necessary or desirable for the greater convenience, comfort and enjoyment of the residents.

Its constitution delineates the Association’s object to promote the best interests of the Borough and “in so doing to own property, operate bathing beaches, hire life guards, beach clean­ers and policemen . . . .”

Nine streets in the Borough, which are perpendicular to the beach, end at the dry sand. The Association owns the land commencing at the end of seven of these streets for the width of each street and extending through the upper dry sand to the mean high water line, the beginning of the wet sand area or foreshore. In addition, the Association owns the fee in six shore front properties, three of which are contiguous and have a frontage aggregating 310 feet. Many owners of beachfront property executed and delivered to the Association leases of the upper dry sand area. These leases are revocable by either party to the lease on thirty days’ notice. Some owners have not executed such leases and have not permitted the Association to use their beaches. Some also have acquired riparian grants from the State extending approximately 1,000 feet east of the high water line.

The Association controls and supervises its beach property between the third week in June and Labor Day. It engages about 40 employees, who serve as lifeguards, beach police and beach cleaners. Lifeguards, stationed at five operating beaches, indicate by use of flags whether the ocean condition is danger­ous (red), requires caution (yellow), or is satisfactory (green). In addition to observing and, if need be, assisting those in the water, when called upon lifeguards render first aid. Beach cleaners are engaged to rake and keep the beach clean of debris. Beach police are stationed at the entrances to the beaches where the public streets lead into the beach to ensure that only Association members or their guests enter. Some beach police patrol the beaches to enforce its membership rules.

Membership is generally limited to residents of Bay Head. Class A members are property owners. Class B are non-owners. Large families (six or more) pay $90 per year and small families pay $60 per year. Upon application residents are routinely accepted. Membership is evidenced by badges that signify permission to use the beaches. Members, which include local hotels, motels and inns, can also acquire badges for guests. The charge for each guest badge is $12. Members of the Bay Head Fire Company, Bay Head Borough employees, and teachers in the municipality’s school system have been issued beach badges irrespective of residency.

Except for fishermen, who are permitted to walk through the upper dry sand area to the foreshore, only the membership may use the beach between 10:00 a.m. and 5:30 p.m. during the summer season. The public is permitted to use the Association’s beach from 5:30 p.m. to 10:00 a.m. during the summer and, with no hourly restrictions, between Labor Day and mid-June.

No attempt has ever been made to stop anyone from occupy­ing the terrain east of the high water mark. During certain parts of the day, when the tide is low, the foreshore could consist of about 50 feet of sand not being flowed by the water. The public could gain access to the foreshore by coming from the Borough of Point Pleasant Beach on the north or from the Borough of Mantoloking on the south.

Association membership totals between 4,800 to 5,000. The Association President testified during depositions that its re­strictive policy, in existence since 1932, was due to limited parking facilities and to the overcrowding of the beaches. The Association’s avowed purpose was to provide the beach for the residents of Bay Head.

There is also a public boardwalk, about one-third of a mile long, parallel to the ocean on the westerly side of the dry sand area. The boardwalk is owned and maintained by the munici­pality.

The trial court held that the Association was not an arm of the Borough of Bay Head, that the Association was not a municipal agency, and that nothing in the record justified a finding that public privileges could attach to the private proper­ties owned or leased by the Association. A divided Appellate Division affirmed. The majority agreed with the trial court that the Association was not a public agency or a public entity and that the action of the private owners through the Associa­tion established no general right in the public to the use of the beaches.

Judge Greenberg dissented. He argued that the Association’s beaches are de facto public to a limited extent, being public to residents and visitors who stay in hotels. They are private to everyone else. He reasoned that Bay Head residents have the advantage of living in a municipality with public beaches, but are not troubled by having their beaches made available to outsiders. Judge Greenberg concluded that the Association’s beaches must be open to all members of the public. However, he would not preclude any lessor from terminating his lease with the Association and thereby eliminating the public right of access to that part of the beach.

II

The Public Trust

In Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296, 303 (1972), Justice Hall alluded to the ancient principle “that land covered by tidal waters belonged to the sovereign, but for the common use of all the people.” The genesis of this principle is found in Roman jurisprudence, which held that “[b]y the law of nature” “the air, running water, the sea, and consequently the shores of the sea” were “common to mankind.” Justinian, Institutes 2.1.1 (T. Sandars trans. 1st Am. ed. 1876). No one was forbidden access to the sea, and everyone could use the seashore3 “to dry his nets there, and haul them from the sea . . . . ” Id., 2.1.5. The seashore was not private property, but “subject to the same law as the sea itself, and the sand or ground beneath it.” Id. This underlying concept was applied in New Jersey in Arnold v. Mundy, 6 N.J.L. 1 (Sup.Ct.­1821).

The defendant in Arnold tested the plaintiff’s claim of an exclusive right to harvest oysters by taking some oysters that the plaintiff had planted in beds in the Raritan River adjacent to his farm in Perth Amboy. The oyster beds extended about 150 feet below the ordinary low water mark. The tide ebbed and flowed over it. The defendant’s motion for a nonsuit was granted. The Supreme Court denied the plaintiff’s subsequent motion to set aside the nonsuit.

Chief Justice Kirkpatrick, in an extensive opinion, referred to the grant by Charles II of the land comprising New Jersey with “all rivers, harbors, waters, fishings, etc., and of all other royalties, so far as the king had estate, right, title or interest therein” to the Duke of York. 6 N.J.L. at 85 (2d ed. 1875) (emphasis deleted). The duke had been delegated the same power as the king with respect to the land, and by virtue of the charter could divide and grant only those properties and inter­ests that the king could. The Chief Justice’s analysis then turned to the power of the English king. According to English law, public property consisted of two classes. Some was neces­sary for the state’s use, and the remainder was common proper­ty available to all citizens. Chief Justice Kirkpatrick wrote that “[o]f this latter kind, according to the writers upon the law of nature and of nations, and upon the civil law, are the air, the running water, the sea, the fish and the wild beasts.” Id. at 86. He argued that “though this title, strictly speaking, is in the sovereign, yet the use is common to all the people.” Id. He pointed out the significant difference between public property necessary for the state and common property:

The title of both these, for the greater order, and, perhaps, of necessity, is placed in the hands of the sovereign power, but it is placed there for different purposes. The citizen cannot enter upon the domain of the crown and apply it, or any part of it, to his immediate use. He cannot go into the king’s forests and fall and carry away the trees, though it is the public property; it is placed in the hands of the king for a different purpose; it is the domain of the crown, a source of revenue; so neither can the king intrude upon the common property, thus understood, and appropriate it to himself, or to the fiscal purposes of the nation, the enjoyment of it is a natural right which cannot be infringed or taken away, unless by arbitrary power; and that, in theory at least, could not exist in a free government, such as England has always claimed to be. [Id. at 87-88 (emphasis supplied).]

The Chief Justice traced the use of common property by the kings and concluded that appropriation of common property by William the Conqueror and his successors was questionable and that the Magna Charta rectified the prior improper conduct by providing “that where the banks of rivers had first been defend­ed in his time, (that is, when they had first been fenced in, and shut against the common use, in his time) they should be from thenceforth laid open.” Id. at 88. A charter of Henry III confirmed this principle at least to the extent that only grants of common property made before the reign of Henry II were valid. Id. at 89.4

Chief Justice Kirkpatrick concluded that all navigable rivers in which the tide ebbs and flows and the coasts of the sea, including the water and land under the water, are “common to all the citizens, and that each [citizen] has a right to use them according to his necessities, subject only to the laws which regulate that use . . . . ” Id. at 93. Regulation included erect­ing docks, harbors and wharves, and improving fishery and oyster beds. This common property had passed from Charles II to the Duke of York. Upon surrender of all rights of govern­ment in 1702, the common property reverted to the Crown of England, and upon the Revolution these royal rights became vested in the people of New Jersey. Id. at 94. See also J. Angell, A Treatise on the Right of Property in Tidewaters and in the Soil and Shores Thereof 42-43 (2d ed. 1847); D. Ducsik, Shoreline for the Public 89-91 (1974). Later, in Illinois Central R.R. v. Illinois, 146 U.S. 387, 453, 13 S.Ct. 110, 118, 36 L.Ed. 1018, 1043 (1892), the Supreme Court, in referring to the common property, stated that “[t]he State can no more abdicate its trust over property in which the whole people are interested . . . than it can abdicate its police powers . . . .”5

In Avon, Justice Hall reaffirmed the public’s right to use the waterfront as announced in Arnold v. Mundy. He observed that the public has a right to use the land below the mean average high water mark6 where the tide ebbs and flows. These uses have historically included navigation and fishing. In Avon the public’s rights were extended “to recreational uses, including bathing, swimming and other shore activities.” 61 N.J. at 309. Compare Blundell v. Catterall, 5 B. & Ald. 268, 106 Eng.Rep. 1190 (K.B.1821) (holding no right to swim in common property) with Martin v. Waddell’s Lessee, 41 U.S. (16 Pet.) 367, 10 L.Ed. 997 (1842) (indicating right to bathe in navigable waters). The Florida Supreme Court has held:

The constant enjoyment of this privilege [bathing in salt waters] of thus using the ocean and its fore-shore for ages without dispute should prove sufficient to establish it as an American common law right, similar to that of fishing in the sea, even if this right had not come down to us as a part of the English common law, which it undoubtedly has. [White v. Hughes, 139 Fla. 54, 59, 190 So. 446, 449 (1939).]

It has been said that “[h]ealth, recreation and sports are encom­passed in and intimately related to the general welfare of a well-balanced state.” N.J. Sports & Exposition Authority v. McCrane, 119 N.J.Super. 457, 488 (Law Div.1971), aff’d, 61 N.J. 1, appeal dismissed sub nom. Borough of East Rutherford v. N.J. Sports & Exposition Authority, 409 U.S. 943, 93 S.Ct. 270, 34 L.Ed.2d 215 (1972). Extension of the public trust doctrine to include bathing, swimming and other shore activities is conso­nant with and furthers the general welfare. The public’s right to enjoy these privileges must be respected.

In order to exercise these rights guaranteed by the public trust doctrine, the public must have access to municipally-owned dry sand areas as well as the foreshore. The extension of the public trust doctrine to include municipally-owned dry sand areas was necessitated by our conclusion that enjoyment of rights in the foreshore is inseparable from use of dry sand beaches. See Lusardi v. Curtis Point Property Owners Ass’n, 86 N.J. 217, 228 (1981). In Avon we struck down a municipal ordinance that required nonresidents to pay a higher fee than residents for the use of the beach. We held that where a municipal beach is dedicated to public use, the public trust doctrine “dictates that the beach and the ocean waters must be open to all on equal terms and without preference and that any contrary state or municipal action is impermissible.” 61 N.J. at 309. The Court was not relying on the legal theory of dedica­tion, although dedication alone would have entitled the public to the full enjoyment of the dry sand. Instead the Court depended on the public trust doctrine, impliedly holding that full enjoy­ment of the foreshore necessitated some use of the upper sand, so that the latter came under the umbrella of the public trust.

In Van Ness v. Borough of Deal, 78 N.J. 174 (1978), we stated that the public’s right to use municipally-owned beaches was not dependent upon the municipality’s dedication of its beaches to use by the general public. The Borough of Deal had dedicated a portion of such beach for use by its residents only. We found such limited dedication “immaterial” given the public trust doctrine’s requirement that the public be afforded the right to enjoy all dry sand beaches owned by a municipality. 78 N.J. at 179-80.

III

Public Rights in Privately-Owned Dry Sand Beaches

In Avon and Deal our finding of public rights in dry sand areas was specifically and appropriately limited to those beaches owned by a municipality. We now address the extent of the public’s interest in privately-owned dry sand beaches. This interest may take one of two forms. First, the public may have a right to cross privately owned dry sand beaches in order to gain access to the foreshore. Second, this interest may be of the sort enjoyed by the public in municipal beaches under Avon and Deal, namely, the right to sunbathe and generally enjoy recrea­tional activities.

Beaches are a unique resource and are irreplaceable. The public demand for beaches has increased with the growth of population and improvement of transportation facilities. Fur­thermore, the projected demand for salt water swimming will not be met “unless the existing swimming capacities of the four coastal counties are expanded.” Department of Environmental Protection, Statewide Comprehensive Outdoor Recreation Plan 200 (1977). The DEP estimates that, compared to 1976, the State’s salt water swimming areas “must accommodate 764,812 more persons by 1985 and 1,021,112 persons by 1995.” Id. See also Note, “Public Access to Beaches: Common Law Doctrines and Constitutional Challenges,” 48 N.Y.U.L.Rev. 369 (1973). Sensitivity to the increased demand and limited supply was voiced by Justice Pashman in Lusardi v. Curtis Point Property Owners Ass’n, 86 N.J. 217, 227-28 (1981), when he wrote:

Oceanfront property is uniquely suitable for bathing and other recreational activities. Because it is unique and highly in demand, there is growing concern about the reduced “availability to the public of its priceless beach areas,” Van Ness v. Borough of Deal, 78 N.J. 174, 180 (1978). This concern is reflected in a statewide policy of encouraging, consonant with environmental demands, greater access to ocean beaches for recreational purposes. Expressions of this policy can be found in three sources: the decisions of this Court concerning the public trust doctrine, Van Ness v. Borough of Deal, supra; Hyland v. Borough of Allenhurst, 78 N.J. 190 (1978); Borough of Neptune City v. Borough of Avon-by-the-Sea, supra, legislation such as the Beaches and Harbors Bond Act of 1977, L.1977, c. 208, and the Coastal Resource and Development Policies promulgated by the Department of Environmental Protection, N.J.A.C. 7:7E-1.1 to -9.23.

Exercise of the public’s right to swim and bathe below the mean high water mark may depend upon a right to pass across the upland beach. Without some means of access the public right to use the foreshore would be meaningless. To say that the public trust doctrine entitles the public to swim in the ocean and to use the foreshore in connection therewith without assuring the public of a feasible access route would seriously impinge on, if not effectively eliminate, the rights of the public trust doctrine. This does not mean the public has an unrestrict­ed right to cross at will over any and all property bordering on the common property. The public interest is satisfied so long as there is reasonable access to the sea.

Judge Best, in his dissent in Blundell v. Catterall, 5 B. & Ald. 268, 275, 106 Eng.Rep. 1190, 1193 (K.B.1821), stated that passage to the seashore was essential to the exercise of that right. He believed that bathing in the tidal waters was an essential right similar to that of navigation and served the general welfare by promoting health and the ability to swim. 5 B. & Ald. at 278-79, 106 Eng.Rep. at 1194 (Best, J., dissenting). Though respecting the interest of the private owner, Judge Best ob­served that the greatest part of the seashore had been barren and therefore had not become exclusive property. “It is useful only as a boundary and an approach to the sea; and therefore, ever has been, and ever should continue common to all who have occasion to resort to the sea.” Id. at 283-84; 106 Eng.Rep. at 1196. Judge Best would have held on principles of public policy “that the interruption of free access to the sea is a public nuisance. . . . The principle of exclusive appropriation must not be carried beyond things capable of improvement by the indus­try of man. If it be extended so far as to touch the right of walking over these barren sands, it will take from the people what is essential to their welfare, whilst it will give to individu­als only the hateful privilege of vexing their neighbours.” Id. at 287, 106 Eng.Rep. at 1197.

The touchstone of Judge Best’s reasoning is that the particu­lar circumstances must be considered and examined before arri­ving at a solution that will accommodate the public’s right and the private interests involved. Thus an undeveloped segment of the shore may have been available and used for access so as to establish a public right of way to the wet sand. Or there may be publicly-owned property, such as in Avon, which is suitable. Or, as in this case, the public streets and adjacent upland sand area might serve as a proper means of entry. The test is whether those means are reasonably satisfactory so that the public’s right to use the beachfront can be satisfied.

The bather’s right in the upland sands is not limited to passage. Reasonable enjoyment of the foreshore and the sea cannot be realized unless some enjoyment of the dry sand area is also allowed.7 The complete pleasure of swimming must be accompanied by intermittent periods of rest and relaxation beyond the water’s edge. See State ex rel. Thornton v. Hay, 254 Or. 584, 599-602, 462 P.2d 671, 678-79 (1969) (Denecke, J., concurring). The unavailability of the physical situs for such rest and relaxation would seriously curtail and in many situa­tions eliminate the right to the recreational use of the ocean. This was a principal reason why in Avon and Deal we held that municipally-owned dry sand beaches “must be open to all on equal terms . . . .” Avon, 61 N.J. at 308. We see no reason why rights under the public trust doctrine to use of the upland dry sand area should be limited to municipally-owned property. It is true that the private owner’s interest in the upland dry sand area is not identical to that of a municipality. Nonetheless, where use of dry sand is essential or reasonably necessary for enjoyment of the ocean, the doctrine warrants the public’s use of the upland dry sand area subject to an accommodation of the interests of the owner.8

We perceive no need to attempt to apply notions of prescrip­tion, City of Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73 (Fla.1974), dedication, Gion v. City of Santa Cruz, 2 Cal.3d 29, 465 P.2d 50, 84 Cal.Rptr. 162 (1970), or custom, State ex rel. Thornton v. Hay, 254 Or. 584, 462 P.2d 671 (1969), as an alternative to application of the public trust doctrine. Archaic judicial responses are not an answer to a modern social problem. Rather, we perceive the public trust doctrine not to be “fixed or static,” but one to “be molded and extended to meet changing conditions and needs of the public it was created to benefit.” Avon, 61 N.J. at 309.

Precisely what privately-owned upland sand area will be available and required to satisfy the public’s rights under the public trust doctrine will depend on the circumstances. Location of the dry sand area in relation to the foreshore, extent and availability of publicly-owned upland sand area, nature and extent of the public demand, and usage of the upland sand land by the owner are all factors to be weighed and considered in fixing the contours of the usage of the upper sand.

Today, recognizing the increasing demand for our State’s beaches and the dynamic nature of the public trust doctrine, we find that the public must be given both access to and use of privately-owned dry sand areas as reasonably necessary. While the public’s rights in private beaches are not co-extensive with the rights enjoyed in municipal beaches, private landowners may not in all instances prevent the public from exercising its rights under the public trust doctrine. The public must be afforded reasonable access to the foreshore as well as a suitable area for recreation on the dry sand.

V

The Beaches of Bay Head

The Bay Head Improvement Association, which services the needs of all residents of the Borough for swimming and bathing in the public trust property, owns the street-wide strip of dry sand area at the foot of seven public streets that extends to the mean high water line. It also owns the fee in six other upland sand properties connected or adjacent to the tracts it owns at the end of two streets. In addition, it holds leases to approxi­mately 42 tracts of upland sand area. The question that we must address is whether the dry sand area that the Association owns or leases should be open to the public to satisfy the public’s rights under the public trust doctrine. Our analysis turns upon whether the Association may restrict its membership to Bay Head residents and thereby preclude public use of the dry sand area.

The general rule is that courts will not compel admis­sion to a voluntary association. See Rutledge v. Gulian, 93 N.J. 113, 118 (1983); Higgins v. American Society of Clinical Patholo­gists, 51 N.J. 191, 199 (1968). Ordinarily, a society or association may set its own membership qualifications and restrictions. However, that is not an inexorable rule. Where an organization is quasi-public, its power to exclude must be reasonably and lawfully exercised in furtherance of the public welfare related to its public characteristics. See Guerrero v. Burlington Cty. Memorial Hospital, 70 N.J. 344, 358 (1976).

In Greisman v. Newcomb Hospital, 40 N.J. 389 (1963), plain­tiff, holder of a degree of osteopathy and licensed to practice medicine and surgery, sought to be admitted to the courtesy staff of the defendant hospital. The defendant hospital refused to permit the plaintiff to file an application. The defendant contended that it was a private hospital and that its actions were not reviewable by a court. Justice Jacobs, writing for the Court, responded:

They are private in the sense that they are nongovernmental but they are hardly private in other senses. Newcomb [Hospital] is a nonprofit organization dedicated by its certificate of incorporation to the vital public use of serving the sick and injured, its funds are in good measure received from public sources and through public solicitation, and its tax benefits are received because of its nonprofit and non-private aspects. Cf. Fairmount Hospital, Inc. v. State Board of Tax Appeals, 122 N.J.L. 8, 11 (Sup.Ct.1939), aff’d 123 N.J.L. 201 (E. & A.1939). It constitutes a virtual monopoly in the area in which it functions and it is in no position to claim immunity from public supervision and control because of its allegedly private nature. Indeed, in the development of the law, activities much less public than the hospital activities of Newcomb, have commonly been subjected to judicial (as well as legislative) supervision and control to the extent necessary to satisfy the felt needs of the times. [40 N.J. at 396.]

In considering the public interest, Justice Jacobs noted that the defendant hospital was the only available hospital where the plaintiff practiced and that the hospital was operated not for private ends but for the benefit of the public. Justice Jacobs concluded that “courts would indeed be remiss if they declined to intervene where . . . the [hospital’s] powers were invoked at the threshold to preclude an application for staff membership, not because of any lack of individual merit, but for a reason unrelated to sound hospital standards and not in furtherance of the common good.” Id. at 404.

In Falcone v. Middlesex Cty. Medical Society, 34 N.J. 582 (1961), plaintiff, a doctor of osteopathy licensed to practice medicine and surgery, was refused membership in the defendant County Medical Society. The effect of the refusal was that the plaintiff could not obtain staff privileges at any hospital in the area. Recognizing the judiciary’s reluctance to interfere with the internal affairs of membership associations, the Court stated that it would do so “in particular situations, where considera­tions of policy and justice were sufficiently compelling....” Id. at 590. Noting that the Medical Society was not simply a social organization, the Court viewed membership as an econom­ic necessity and asserted that courts “must be particularly alert to the need for truly protecting the public welfare and advanc­ing the interests of justice by reasonably safeguarding the individual’s opportunity for earning a livelihood while not im­pairing the proper standards and objectives of the organization.” Id. at 592.

A principle that may be distilled from Greisman and Falcone is that a nonprofit association that is authorized and endeavors to carry out a purpose serving the general welfare of the community and is a quasi-public institution holds in trust its powers of exclusive control in the areas of vital public concern. See also Marjorie Webster Jr. College v. Middle States Ass’n of Colleges and Secondary Schools, Inc., 302 F.Supp. 459, 469 (D.D.C.1969) (stating that court may be forced to intervene in affairs of a voluntary association where the association “enjoys monopoly power in an area of vital public concern”), rev’d on other grounds, 432 F.2d 650 (D.C.Cir.), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970). When a nonprofit associa­tion rejects a membership application for reasons unrelated to its purposes and contrary to the general welfare, courts have “broad judicial authority to insure that exclusionary policies are lawful and are not applied arbitrarily or discriminately.” Greis­man, 40 N.J. at 395; see also Oates v. Eastern Bergen County Multiple Listing Service, Inc., 113 N.J.Super. 371, 387-89 (Ch.­Div.1971); Davis v. Morristown Memorial Hospital, 106 N.J.Su­per. 33, 42 (Ch.Div.1969). That is the situation here.

Bay Head Improvement Association is a non-profit corpora­tion whose primary purpose as stated in its certificate of incor­poration is the “cleaning, policing and otherwise making attrac­tive and safe the bathing beaches” in the Borough of Bay Head “and the doing of any act which may be found necessary or desirable for the greater convenience, comfort and enjoyment of the residents.” Its constitution states:

The objects of this corporation shall be to promote the best interests of the Borough of Bay Head and in so doing to own property, operate bathing beaches, hire life guards, beach cleaners and policemen and do any and all things which, in the judgment of their Executive Committee, may be in the best interests of the Borough of Bay Head....

Shortly after the Association was incorporated and had estab­lished a plan to operate beaches that would be open to all residents of Bay Head, the Bay Head Borough Council, after discussion with the Association’s members, adopted resolutions approving the plan and agreeing to cooperate with the Associa­tion in carrying out this plan “insofar as it lies within the power of the Council so to do.” The municipality evidenced its cooper­ation thereafter in a number of ways. It provided office space without charge in the Borough Hall between 1934 and 1973. Until 1975 seven parcels that ran from public streets to the mean high tide, all owned by the Association, were not assessed and the Association paid no realty taxes for those properties. The Borough’s blanket liability insurance policies in effect be­tween 1962 and 1968 covered the Association’s activities on the beach area. The Borough appropriated public funds for the Association’s benefit, $600 annually between 1936 and 1941, and $1,000 in 1969. Six groins (stone jetties) have been installed on the beach. The Borough paid one quarter of their cost; Ocean County, one quarter; and the State, one half.

The Association’s activities paralleled those of a munici­pality in its operation of the beachfront. The size of the beach was so great that it stationed lifeguards at five separate loca­tions. The beach serviced about 5,000 members. The lifeguards performed the functions characteristic of those on a public beach. They posted warnings with respect to the safety of swimming. They stood ready to render assistance to anyone in need of aid. These guards were available daily throughout the summer months. The beach was maintained and kept clean by crews who worked each day. These crews cleaned the beach from end to end, including properties not leased to the Associa­tion. Membership badges were sold and guards were stationed at entrances to the beach to make certain that only those licensed could gain admittance. Further, some guards patrolled the beach to make certain that members and guests complied with the Association’s rules and regulations. When viewed in its totality—its purposes, relationship with the municipality, communal characteristic, activities, and virtual monopoly over the Bay Head beachfront—the quasi-public nature of the Associ­ation is apparent. The Association makes available to the Bay Head public access to the common tidal property for swimming and bathing and to the upland dry sand area for use incidental thereto, preserving the residents’ interests in a fashion similar to Avon.9

There is no public beach in the Borough of Bay Head. If the residents of every municipality bordering the Jersey shore were to adopt the Bay Head policy, the public would be prevent­ed from exercising its right to enjoy the foreshore. The Bay Head residents may not frustrate the public’s right in this manner.10 By limiting membership only to residents and fore­closing the public, the Association is acting in conflict with the public good and contrary to the strong public policy “in favor of encouraging and expanding public access to and use of shoreline areas.” Gion v. City of Santa Cruz, 2 Cal.3d 29, 43, 465 P.2d 50, 59, 84 Cal.Rptr. 162, 171 (1970). Indeed, the Association is frustrating the public’s right under the public trust doctrine. It should not be permitted to do so.

Accordingly, membership in the Association must be open to the public at large. In this manner the public will be assured access to the common beach property during the hours of 10:00 a.m. to 5:30 p.m. between mid-June and September, where they may exercise their right to swim and bathe and to use the Association’s dry sand area incidental to those activities. Al­though such membership rights to the use of the beach may be broader than the rights necessary for enjoyment of the public trust, opening the Association’s membership to all, nonresidents and residents, should lead to a substantial satisfaction of the public trust doctrine. However, the Association shall also make available a reasonable quantity of daily as well as seasonal badges to the nonresident public. Its decision with respect to the number of daily and seasonal badges to be afforded to nonresidents should take into account all relevant matters, such as the public demand and the number of bathers and swimmers that may be safely and reasonably accommodated on the Associ­ation’s property, whether owned or leased. The Association may continue to charge reasonable fees to cover its costs of life­guards, beach cleaners, patrols, equipment, insurance, and ad­ministrative expenses. The fees fixed may not discriminate in any respect between residents and nonresidents. The Associa­tion may continue to enforce its regulations regarding cleanli­ness, safety, and other reasonable measures concerning the public use of the beach. In this connection, it would be entirely appropriate, in the formulation and adoption of such reasonable regulations concerning the public’s use of the beaches, to encour­age the participation and cooperation of all private beachfront property owners, regardless of their membership in or affiliation with the Association.

The Public Advocate has urged that all the privately-owned beachfront property likewise must be opened to the public. Nothing has been developed on this record to justify that conclusion. We have decided that the Association’s membership and thereby its beach must be open to the public. That area might reasonably satisfy the public need at this time. We are aware that the Association possessed, as of the initiation of this litigation, about 42 upland sand lots under leases revocable on 30 days’ notice. If any of these leases have been or are to be terminated, or if the Association were to sell all or part of its property, it may necessitate further adjudication of the public’s claims in favor of the public trust on part or all of these or other privately-owned upland dry sand lands depending upon the circumstances. However, we see no necessity to have those issues resolved judicially at this time since the beach under the Association’s control will be open to the public and may be adequate to satisfy the public trust interests. We believe that the Association and property owners will act in good faith and to the satisfaction of the Public Advocate. Indeed, we are of the opinion that all parties will benefit by our terminating this prolonged litigation at this time.

The record in this case makes it clear that a right of access to the beach is available over the quasi-public lands owned by the Association, as well as the right to use the Association’s upland dry sand. It is not necessary for us to determine under what circumstances and to what extent there will be a need to use the dry sand of private owners who either now or in the future may have no leases with the Association. Resolution of the compet­ing interests, private ownership and the public trust, may in some cases be simple, but in many it may be most complex. In any event, resolution would depend upon the specific facts in controversy.

None of the foregoing matters were fully argued or briefed, the disputes concerning rights in and to private beaches having been most general. All we decide here is that private land is not immune from a possible right of access to the foreshore for swimming or bathing purposes, nor is it immune from the possibility that some of the dry sand may be used by the public incidental to the right of bathing and swimming.

We realize that considerable uncertainty will continue to surround the question of the public’s right to cross private land and to use a portion of the dry sand as discussed above. Where the parties are unable to agree as to the application of the principles enunciated herein, the claim of the private owner shall be honored until the contrary is established.

The modifications in the membership and daily badge practice we have decided upon here shall be made effective for the next summer season commencing June 1, 1984.

The judgment of the Appellate Division is reversed in part and affirmed in part. Judgment is entered for the plaintiff against the Association. Judgment of dismissal against the individual property owners is affirmed without prejudice. No costs.

For reversal in part; affirmance in part—Chief Justice WIL­ENTZ and Justices CLIFFORD, SCHREIBER, HANDLER, POLLOCK and O’HERN—6.

Opposed—None.

1

The dry sand area is generally defined as the land that lies landward of the high water mark to the vegetation line or, where there is no vegetation to a seawall, road, parking lot or boardwalk. New Jersey Beach Access Study Commission, Public Access to the Ocean front Beaches: A Report to the Gover­nor and Legislature of New Jersey 2 (1977).

2

Individual defendants claim that a co-defendant’s admissions may not be used against them on a summary judgment motion. We do not agree. For the purpose of the motion, admissions are similar to an affidavit of a person other than the party to the motion. We perceive of no reason why these admissions are not available for this purpose.

3

The seashore extended to the limit of the highest winter flood, Justinian, supra, 2.1.3, and not the mean high water mark.

4

Chief Justice Taney in Martin v. Waddell’s Lessee, 41 U.S. (16 Pet.) 367, 410, 10 L.Ed. 997, 1013 (1842), came to substantially the same conclusion that Chief Justice Kirkpatrick did, and wrote:

The question is not free from doubt, and the authorities referred to in the English books cannot, perhaps, be altogether reconciled. But ... the question must be regarded as settled in England against the right of the king since Magna Charta to make such a grant [of a portion of the soil covered by navigable waters].

It is doubtful whether the sections of the Magna Charta upon which the Chief Justices relied support the proposition that the crown could not make grants involving the tidal waters. See Note, “The Public Trust in Tidal Areas: A Sometime Submerged Traditional Doctrine,” 79 Yale L.J. 762 (1970).

5

Despite the language in Arnold v. Mundy, there developed the notion that a shoreowner could obtain unrestricted ownership rights in the tidelands. See Gough v. Bell, 22 N.J.L. 441 (Sup.Ct.1850), aff'd, 23 N.J.L. 624 (E. & A.­1852); see also Ross v. Mayor of Edgewater, 115 N.J.L. 477, 485 (Sup.Ct.1935), aff'd o.b., 116 N.J.L. 447 (E. & A.), cert. denied, 299 U.S. 543, 57 S.Ct. 37, 81 L.Ed. 420 (1936) (noting that owner of upland contiguous to the shore could appropriate the land between high and low water marks, provided he did not injuriously interfere with paramount right of navigation and that upon appropriation the owner had an “exclusive and indefeasible right of proper­ty”). This principle exists despite the fact that the State’s title in tidelands cannot be lost by adverse possession or prescription. O’Neill v. State Hwy. Dep’t, 50 N.J. 307, 320 (1967). The Legislature, at least up to the 1860’s, granted corporate charters that included powers to occupy, possess and enjoy tide-flowed land. See, e.g., L. 1833, p. 92. In addition, the Legislature had from time to time made direct grants of riparian lands. No general supervi­sion or control seems to have been exercised by the State until 1851, when the Legislature enacted the Wharf Act, which authorized counties to grant licens­es to riparian owners to construct wharves in tidal waters. L. 1851, p. 335.

The Wharf Act was modified in 1869 to exclude the Hudson River, New York Bay and Kill Von Kull. L.1869, c. 383, § 3. It was repealed in 1891, and the Riparian Commission was authorized to sell riparian grants. L. 1891, c. 124, § 3; N.J.S.A. 12:3-4. The Commission’s administration was extremely lax and it frequently sold or leased in perpetuity riparian rights for inadequate amounts. See 1873 Report of the Riparian Commissioners 5, which states that “[t]he Commissioners, in all cases, favor a liberal arrangement with shore owners, and deem that it is for the mutual interest and advantage of the riparian owners and of the State, to fix a valuation where the lands under tidal water along the whole frontage of the riparian owner are taken at one time, at such reasonable rates as will enable such owners, for a moderate sum which will not be burdensome, to acquire the ownership and control of such lands, and also secure an immediate return therefor to the State treasury.” See Report of the New Jersey Committee to Investigate Granting of Riparian Lands by the State, Etc. (1907); see also Platt, “With Rivers and Harbors Unsurpassed: New Jersey and Her Tide­lands, 1860-1870,” 99 N.J.Hist. 145 (1981). One commentator states that decisional law post-Arnold acquiesced in legislative and private derogation of the common rights so that by 1973 the “legal and equitable tidalwater resource title had, practically, been squeezed from the citizenry.” Jaffee, “The Public Trust Doctrine Is Alive and Kicking in New Jersey Tidalwaters: Neptune City v. Avon-By-The Sea—A Case of Happy Atavism?,” 14 Nat. Resources J. 309, 310 (1974).

We are not unmindful of the principle that proceeds received by the State from the sale of property lying under water constitute a part of the permanent school fund. N.J.S.A. 18A:56-5, -6; see N.J. Const. (1947), Art. VIII, § IV, par. 2; N.J. Const. (1844), Art. IV, § VII, par. 6. The fact that compensation has been paid for grants and leases may not eliminate per se the public’s right to some use of the common property for a public purpose. Compare Schultz v. Wilson, 44 N.J.Super. 591, 597 (App.Div.), certif. denied, 24 N.J. 546 (1957), which stated that “[t]he Legislature has the power, absolute and limited, to regulate, abridge or vacate public rights in tidal waters except in the field reserved to Congress by the Federal Consti­tution,” with Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296, 308 (1972), asserting that the Legislature may not have had unlimited power to convey trust lands or “at least that they are impliedly impressed with certain obligations on the grantee to use the conveyed lands only consistently with the public rights therein. For example, the convey­ance of tide-flowed lands bordered by an ocean dry sand area in private ownership to the owner thereof may well be subject to the right of the public to use the ocean waters.” See also N.J. Sports & Exposition Authority v. McCrane, 61 N.J. 1, 67-68 (Hall, J., concurring in part and dissenting in part) (stating that the public trust doctrine does not prohibit all alienation by the state of riparian lands, but that conveyances are subject to use by the public depending on the nature of the land), appeal dismissed sub nom. Borough of East Rutherford v. N.J. Sports & Exposition Authority, 409 U.S. 943, 93 S.Ct. 270, 34 L.Ed.2d 215 (1972). The leasing and granting of foreshore and ocean beach property by the state not inconsistent with the public interest are unquestionably valid.

6

The high water mark is the “line formed by the intersection of the tidal plane of mean high tide with the shore.” O’Neill v. State Hwy. Dep’t, 50 N.J. 307, 323 (1967). The mean or ordinary high tide is a mean of all high tides over a period of 18.6 years. Id. at 324; see also Borax Consolidated, Ltd. v. City of Los Angeles, 296 U.S. 10, 26-27, 56 S.Ct. 23, 31, 80 L.Ed. 9, 20 (1935).

7

Some historical support for this proposition may be found in an analogous situation where fishermen, in exercising the right of public fishery in tidal waters, were permitted to draw nets on the beach above the ordinary high water mark in the act of fishing. S. Moore & H. Moore, The History and Law of Fisheries 96 (1903).

8

The Coastal Resource and Development Policies of the Department of Environmental Protection espouse a similar goal. N.J.A.C. 7:7E-3.21(c) states: “Unrestricted access [to the beaches, the area landward from the mean high water line] for recreational purposes is desirable so that the beaches can be enjoyed by all residents and visitors of the state.”

9

There are nine public streets, which run in an east-west direction, that terminate at the upper dry sands of the oceanfront. With respect to seven of these streets, the Association owns the strip of dry sand stretching from the ends of these streets to the wet sands, where the public has a right to bathe and swim. The Association acquired those properties to enable all Bay Head residents to enjoy the public’s common interest in the beach—both swimming and bathing in the water and incidental uses in the dry sand adjacent thereto. The municipality extended its public streets, which run in an east-west direction, into the upper dry sand area in order to give the public a means of access to the beach. That this was its probable intent becomes apparent when noting the location of the terminals of these streets. The east-west streets run beyond East Avenue, which runs parallel to the ocean and is the most easterly highway running north-south in the Borough, to the upland sands. The land beyond is barren. The only apparent purpose in extending these streets to the upper sands was to provide a means of ingress to and egress from the beach.

Because of our holding herein, we need not decide whether the public streets may be deemed to extend to the foreshore or whether the public's right of way from the public streets to the foreshore exists because of an easement by necessity, dedication, or prescription. It has been contended that “trespass actions will not lie against New Jersey citizens who, without injuring improve­ments, traverse upland beach abutting a public road or street to reach fore­shore." Jaffee, supra n. 4, at 316. See Mayor of Jersey City v. Morris Canal and Banking Co., 12 N.J.Eq. 545 (E. & A. 1859) (holding that public was entitled to an extension of the street to tide water over land filled in by shore owner in front of terminus of the street as if land filled in were an alluvion).

10

According to a report of the New Jersey Beach Access Study Commis­sion, supra n. 1, at 21-22, app. 5, only four of the forty-eight municipalities have no publicly-owned dry beach.