Lady thinks she owns part of Lake Murray

Her great-uncle was Bruce Waring

— Merrilee Miller, a resident of Goleta, northwest of Santa Barbara, believes she has the right to vacation in a recreational vehicle on the banks of San Diego's Lake Murray. Or to plant banana trees near the shore, if she likes. That's because of ownership rights she and other members of her family say they have to the land there. But the City of San Diego maintains she cannot use the land, other than walking the public pathway around the lake or playing a round of golf on the Mission Trails Golf Course. Miller says her family owns the land where the 17th hole is located. The golf course now leases the land from the City.

By phone, Miller and I talk about how the situation came about. In the late 1800s, Miller's great uncle, Bruce Waring (Waring Road is named after him), bought property in eastern San Diego, including a canyon near La Mesa. In 1887, Waring's Junipero Land and Water Company entered into an easement agreement with the San Diego Flume Company.

"The easement agreement," says Miller, who has studied the property's history, "was that the San Diego Flume Company had the right to flood the property to a 100-foot depth. A small creek ran through the canyon. In the deal, my great uncle would get the right to obtain water to irrigate from the reservoir. He also had the right to use the land's remaining dry areas agriculturally, and as a park, all in exchange for letting them flood the deepest portion of the property. What he had done already was lease some of the property to a company that grew grapes."

In 1895, the San Diego Flume Company completed the earthen La Mesa Dam a little downstream. The company filled the reservoir with water from other parts of its water-delivery system, inundating much of Waring's property. The dam eventually weakened, especially after San Diego's catastrophic floods of 1916. Two years later, a bigger dam was built, allowing what is now Lake Murray to reach its current 85-foot average depth. "According to SanGIS [San Diego Geographic Information Source] maps," says Miller, "we still have 24 acres of exposed land, when the water is 95 feet deep. That's the same level where a spillway at the lake's southern end prevents the water from rising higher." The 24 acres are that land between the water's edge when the lake is 95 feet deep and when it is 100 feet deep.

But for many years, according to Miller, who is 53, municipal officials have been treating her family's land on the banks of Lake Murray as though the City owns it. In the early 1990s, Miller's older sister Marlene Dawson, a Washington State resident, corresponded at length with the City in an effort to change the situation. In the face of numerous conflicting responses, Dawson eventually gave up.

Last year, Miller took up the fight. She wanted to know how her family could get access to the exposed Lake Murray land. Lane MacKenzie, of San Diego's Real Estate Assets Department, responded in a letter dated August 2, 2006.

MacKenzie dealt with four issues. The first involved two specific sites Miller was claiming were on her family's property: two baseball fields on Lake Murray's western side and the 17th hole of Mission Trails Golf Course, above the reservoir's northern tip. "Although programs like Google Earth is a good reference tool," wrote MacKenzie, "their accuracy can be somewhat questionable. I have enclosed an aerial photo from the City's survey section, on which is depicted several contour lines." The 100-foot contour line "shows clearly that there are no ball fields or golf holes within its boundaries." The point is significant because the land higher than the water's edge at a lake depth of 100 feet would be outside the old Waring property line.

But "the aerial photo [MacKenzie] sent me is bogus," Miller writes me in an e-mail. "There is no official stamp to denote its authenticity. It does not match the San Diego County maps that prove the northern boundary of our property abuts Jackson Drive [several hundred yards above Lake Murray's tip].... There are clearly golf course encroachments on our property. Our property has clearly been incorporated into Lake Murray Park and Mission Trails Regional Park. Google Satellite photos attest to this fact, as does the SanGIS map."

"In MacKenzie's photo that you sent me," I ask, "what's that white rectangular area at the top? It looks like a piece of paper has been placed on the picture."

"The area where the 17th hole would be has been whited out," Miller replies.

The second point MacKenzie raised in his letter seems to express concerns for the safety of anyone camping out on the banks of Lake Murray. Citing a 1981 Army Corps of Engineers report, MacKenzie noted that "if the probable maximum flood were to occur at this reservoir the water would overlap the dam for a period of ten hours and by a maximum of one foot (Contour elevation 102 feet). [The report] further states that the spillway can pass about 75 percent of a probable maximum flood....

"The rights for inundation," MacKenzie continued, "have been exercised in the design of Murray Dam. The area between the 93 and 100 [foot] contour elevation is designed to be inundated if a probable maximum flow were to occur. Therefore, the City cannot vacate any portion of the existing easement."

Here MacKenzie seemed to mix up a flood-control easement with the easement right the City acquired to create and maintain a reservoir. Miller kept her eyes on the City's reservoir rights, which she supports. Realizing that Lake Murray's spillway is at the 95-foot contour line, or 536.5 feet above sea level, she contacted the California Department of Water Resources, Division of Safety of Dams, which then reported on its website that Lake Murray's capacity was 6085 acre-feet of water. At the 95-foot contour line, the dam's capacity would be 4818 acre-feet. Its capacity at the 100-foot contour line, or 542.5 feet above sea level, would be 6085 acre-feet. "The data the Division of the Safety of Dams currently has on file is erroneous," Miller writes me in late May, "and has been perpetuated for decades, because no one in San Diego ever bothered to correct it. MacKenzie is using this incorrect data to attempt to convince me that the dam's capacity is 6085 acre feet, rather than [4818] acre feet...." Chuck Wong, at the dam-safety division, "thanked me for sending him the correct data."

In her note to me, Miller includes Wong's e-mail response. "We have the answer for you," wrote Wong on February 7. "The City of San Diego has confirmed that the current official maximum reservoir storage capacity is 4818 acre-feet at spillway...elevation, not 6085 acre-feet as our records show.... Without further research, we do not know why the storage capacity was based on the dam crest instead of the spillway crest. You were right, with a spillway in place, the dam is not capable to impound water up to the dam crest at Elevation 542.50 for a capacity of 6085 acre-feet. We will update our records to reflect the correct data." When Miller checked recently, the Division of Safety of Dams' website had been changed to reflect the correction.

MacKenzie's third concern involved who had title to the property. He said he had evidence that in 1992 "the County of San Diego Assessor's Office [had] questions about clear title to the property, [and] that the Chicago Title Company could not insure title in the Blunt Heirs." (Joe Blunt had inherited the property from his uncle Bruce Waring in the 1960s and passed it on to the next generation of heirs when he died.)

But a year ago, Miller obtained a title report from Chicago Title showing that members of her family have been on title continuously ever since 1887. "What came as a shock," she tells me by phone, "is that in 1971 two nuns from Mercy Hospital signed a quit claim deed handing the property over to the City. I have no idea where that came from. Mercy Hospital is nowhere else in the title report showing any ownership of the property. I do think, however, that it's no coincidence that the quit claim deed was executed a month after my uncle Joe Blunt lost a court challenge to the City's use of our property."

Joe Blunt suffered from schizophrenia, Miller tells me, and when the Waring property came into his hands, the family set up a Security Pacific Bank conservatorship to handle his financial affairs. In 1964, the bank took the City to court to recover the Lake Murray property. Much of Blunt's financial reserves were wasted in the seven-year fight, according to Miller.

MacKenzie referred to the court case in the final point of his August 2006 letter to Miller. "The trial court," he wrote, "rendered a judgment favorable to the City [in] its use of the property in question for its water system." MacKenzie then wraps up his letter with these words: "It is the City's continued opinion that we are well within our rights in use of the property."

MacKenzie is correct, Miller says, that the court supported the City's use of the land for water services. She and her family have no objection to this use, however, as it was part of the original easement agreement in 1887. But the City's current refusal to acknowledge her and her family's ownership rights is wrong, she feels. "And they have unjustifiably used our land for purposes other than those in the original agreement," she argues.

Former San Diego city attorney John Witt admitted as much in a February 11, 1991, letter to one of Miller's cousins, another heir to the Lake Murray property. "The area below the 100-foot contour line and above the present water line has been continuously utilized by the general public for various park and recreation uses and such use has increased substantially since the 1971 court decision," wrote Witt.

"In fact, in 1990, the City's Water Utility Department caused the construction of a chain link fence around the Lake Murray property with limited access points. There was a substantial public reaction to the fence which has resulted in the City Council's and City Manager's determination to make certain that the property continues to be accessible and available to the public 24 hours a day, 365 days a year," Witt continued.

"Neither Mr. Blunt nor any successors in interest have, to our knowledge, ever given permission to utilize the area for other than water storage purposes and it therefore appears that the City's and the public's 'open and notorious' use of the property over the past fifty years or more has certainly established rights even beyond the rights granted in the original deed."

In his letter, Witt seemed to suggest that the City long ago took possession of the property by "adverse possession." The fancy legal term means that one party may acquire ownership of another's land by using it continuously over a specified period of time without objection. But if the case goes to trial, as Miller is contemplating, her family will argue that the City deceived them about how much of their land the Lake Murray Reservoir uses.

But the City had already tried to put one final nail in the coffin. The San Diego City Council voted in 1989 to rezone the Waring heirs' property from agricultural to open-space land, making it a part of Lake Murray Community Park. Rezoning decisions require that notices be sent to all affected parties, allowing them to protest. Merrilee Miller insists that her family never received such notice. Lane MacKenzie failed to bring up the rezoning as a reason the family could not use its property. He may have overlooked it. Or, given the City's habit of acting as though it owned the land, he may have been sure that, as Miller claimed, the family never was notified. The least he could have done then, you might think, was allow them to park a vehicle on the property.

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