I dissent.
I cannot agree that because the state wants to build two low-level highway bridges across the mouth of an inlet where plaintiffs’ shipyards are located, plaintiffs must suffer the complete loss caused by the impairment of their right of one-way water access to deep water. Principles of fairness, logic and public policy suggest that this loss is a part of the cost of the freeway that should not be borne by plaintiffs but should be borne by the public. Compensation should therefore be allowed.
The access impaired here is one-way access to the oceans of the world. Such access is indispensable to the operation of plaintiffs’ businesses.1 So, the impairment is not technical. It is substantial and different in nature and degree from the impairment suffered by the general public. There is not involved the mere hypothetical damage to vacant land, nor are we dealing with speculators, nor with newly created businesses. Both plaintiffs have been operating bona fide shipyards in the inlet for over 60 years. Thus, we are not involved with a mere incidental impairment of the right of access but are dealing with a very substantial impairment. The impairment is not caused by a construction strictly in aid of navigation but the bridges are part of a state freeway. If the freeway impaired land access to the same degree such impairment would be compensable. These facts are indisputable.
The majority hold that, under these facts, case law and public policy dictate the conclusion that compensation should not be allowed. So far as case law is concerned the majority have done a commendable job in collecting the cases discussing the nature of the rights involved. But all that this exhaustive analysis proves is that there are no definitive cases in California, and that the decisions of other states reach *427conflicting results. A decision either way is permissible under the cases. Thus, the decision in this case is really a public policy one, and the majority, recognizing this, claim that public policy supports their conclusion. How can there be a public policy to cut off plaintiffs’ only access to deep water and so put well established businesses out of operation without compensation 1 The answer is obvious. There can be and is no such public policy. The question is not an open one. It has been decided that, as a matter of public policy, impairment of land access under such circumstances requires compensation. The majority fly in the face of that determination.
Today government is big and complex and constantly growing bigger. The legitimate need of government for property is constantly expanding. Thus, more and more frequently, the rights of individuals and the government come into conflict. When this occurs then this court must referee the conflict and try to protect the rights of the state and the rights of the individual. In doing so we must keep in mind the admonition of our Constitution that property “shall not be taken or damaged for public use without just compensation. ’ ’2
Nowhere is this conflict between the state and the individual made more apparent than by the state’s need to build new highways and freeways which frequently include, as here, the building of bridges. The problem became very apparent in the construction of the freeways and the approaches leading to the San Francisco Bay Bridge. Rights of access were obviously impaired. In the case of Bacich v. Board of Control, 23 Cal.2d 343 [144 P.2d 818], where the construction of the approaches to the Bay Bridge placed plaintiff’s land and property in a cul-de-sac, the problem was directly presented. Plaintiff had still one-way access to the general system of streets but his access in the other direction was substantially cut off. There was no controlling case in California. Cases elsewhere were in conflict. The court recognized that it was a problem of first impression, and that it was required to determine the public policy of this state. It then showed no hesitancy, as it does now, to declare such policy. It held that when the right of access was impaired, as distinguished from a physical taking or damaging, there must be a weighing of *428the conflicting rights. Thus, where the impairment is substantial and peculiar to the plaintiff, and can be compensated for without prohibitive cost, it is compensable. But where the impairment is incidental and where the cost of compensation is prohibitive it is not compensable. Thus, impairment of access to one in a cul-de-sac was held compensable, but property owners beyond the next intersecting street were not to be compensated. Nor were property owners to be compensated where their access street was made into a one-way street or into a divided highway, or left turns were prohibited. (See Bacich v. Board of Control, supra, 23 Cal.2d 343, particularly the concurring opinion of Edmonds, J., p. 356, 358 et seq. ; Breidert v. Southern Pac. Co., 61 Cal.2d 659 [39 Cal.Rptr. 903, 394 P.2d 719] ; Valenta v. County of Los Angeles, 61 Cal.2d 669 [39 Cal.Rptr. 909, 394 P.2d 725].) The court showed no reluctance in Bacich and the other cases in declaring that a material impairment of the right of access should be compensable as a matter of public policy. But the majority in the instant case repudiate that public policy and purport to hold that public policy now compels a contrary result. The two lines of authority are inconsistent and incompatible. If we were right in the land access cases the majority are wrong in this ease.
The major error in the majority opinion is its holding that all the state’s uses of its navigable waters must be treated in the same identical fashion. It may be that when the state acts strictly in aid of navigation that the right of the state is absolute and the property owner is entitled to no compensation (Miramar Co. v. City of Santa Barbara, 23 Cal.2d 170 [143 P.2d 1]) for impairment of his rights. But where the use by the state is not strictly for navigation purposes, but, as here, is for freeway purposes, principles of equity, justice, fairness, and certainly of public policy, dictate that the same public policy declared in the land access cases should apply.
When this case was before the Court of Appeal of the Third Appellate District, Justice Friedman prepared a scholarly and exhaustive opinion for the court that discusses these positions in depth. The following portions of that opinion are adopted as part of this dissent. (Colberg, Inc. v. State of California (Cal.App.) 55 Cal.Rptr. 159.)
“The amendment of state constitutions, including California’s, to provide compensation when private. property is ‘damaged’ as well as ‘taken’ for - public use, indicates an *429intent to expand the area of compensability, requiring the courts to fix its limits by placing the economic interests of the public in balance against the sacrifices imposed on the landowner. (Bacich v. Board of Control, 23 Cal.2d 343, 350-351 [144 P.2d 818] ; concurring opinion of Edmonds, J. ibid., pp. 358-360, 144 P.2d pp. 826-832 ; see Albers v. County of Los Angeles, 62 Cal.2d 250, 262-263 [42 Cal.Rptr. 89, 398 P.2d 129].) The case-by-ease balancing of these competing interests results in judicial expansion or contraction of a group of intangible rights recognized as compensable ‘private property.’ Compensable property, it is now recognized, includes not only the physical land and improvements but certain intangible rights of access between the land and the outside world. Thus, although the owner uses the streets in common with the rest of the public, he owns a private easement of access which consists of the right to get into the street abutting his property and thence to the general system of public streets and highways. (Valenta v. County of Los Angeles, 61 Cal.2d 669, 671 [39 Cal.Rptr. 909, 394 P.2d 725] ; Breidert v. Southern Pac. Co., 61 Cal.2d 659, 663 [39 Cal.Rptr. 903, 394 P.2d 719], citing preceding California decisions; cf. Sneed v. County of Riverside, 218 Cal.App.2d 205 [32 Cal.Rptr. 318], re airspace invasion.) Not every impairment of access to the general system of public streets is compensable in eminent domain. Compensability, rather, requires an individualized finding of substantial impairment, a finding of fact delegated to the trial court and not the jury. (Breidert v. Southern Pac. Co., supra, 61 Cal.2d at pp. 663-665 [39 Cal.Rptr. 903, 394 P.2d 719] ; People v. Ricciardi, 23 Cal.2d 390, 402-403 [144 P.2d 799].)
“The central problem is to locate a line between compensable damage to private property and disadvantages of the kind called ‘consequential.’ Of the latter sort are such elements as loss of business and diminution of traffic caused by diversion of traffic and circuity of travel. (People ex rel. Department of Public Works v. Symons, 54 Cal.2d 855, 860 [9 Cal.Rptr. 363, 357 P.2d 451].) Applying the economic balancing test, the Supreme Court points out that awards of the latter sort would severely burden the public treasury and produce ‘ “an embargo upon the creation of new and desirable roads.” ’ (Ibid., p. 862, 9 Cal.Rptr. p. 367, 357 P.2d p. 455.)
“The street access doctrine represents an expanded notion of the constitutional concept of private property-whose inva*430sion or damage is compensable in eminent domain. It means that ‘property’ in an eminent domain sense includes not only a piece of the earth’s surface but an intangible right of movement between it and the outside world; that, although the channels of movement are shared with the public, they are ‘private’ and compensable when a public improvement devalues a particular piece of land by substantially impairing these channels. Navigable waterways are channels of movement no less than streets and highways. (See Chicago, etc. Ry. v. City of Minneapolis, 232 U.S. 430, 442, [58 L.Ed. 671, 675, 34 S.Ct. 400] ; Wattson v. Eldridge, 207 Cal. 314, 320 [278 P. 236] ; People v. Gold Run Ditch & Min. Co., 66 Cal. 138, 147 [4 P. 1152, 56 Am.Rep. 80].) There is no difference in principle or policy between land and sea access which affirms an easement of access by land and denies it by water. If a public project obstructs the owner’s access to the outside world, he is equally hurt whether the barrier blocks him by land or by sea. A littoral property owner’s easement of access includes both media of movement.
“Claims for loss of street access often arise because the public improvement places private property on a cul-de-sac, restricting accessability to one direction only, e.g., Valenta v. County of Los Angeles, supra; Bacich v. Board of Control, supra. The Colberg and Stephens shipyards are situated on a natural cul-de-sac. Without the intervention of the public improvement, they have marine access to the outside world in one direction only. According to the complaints, construction of the public project will obstruct much of the single marine route between their properly and the outside world. Their private right of access to the navigable water in front of their property has little value if that is as far as they can go.5 Location on a partially blocked, marine cul-de-sac is one element in the group of circumstances indicating the occurrence or absence of a substantial impairment of the easement of access.
“Doubtless these shipyards have street access on the landward side. Shoreline properties have obvious economic attributes resulting from their accessibility by water. Residual access by land may supply scant economic solace when marine access beyond the immediate waterfront is obstructed or *431destroyed. The substantial impairment rule supplies a criterion for determining whether the retention of land access and the destruction or obstruction of marine access result in compensable damage.
“The state contends that the street access doctrine is only an analogy. It suggests tb,at the public policy of the street access cases, where economic balancing is possible, does not apply to loss of marine access; that the public can supply economical alternative routes to compensate for closed streets but not for closed waterways; further, that a bridge of limited clearance across a busy waterway may elicit damage claims so heavy and widespread as to prevent the project. These factors evoke no policy considerations excluding access by water from the general easement of access recognized in eminent domain. The balancing approach is much broader than the street access cases. It is employed to measure the reach of the policy underlying the eminent domain provision of the state Constitution, laying down a line which separates compensable injuries from noncompensable disadvantages. In Albers v. County of Los Angeles, supra, it is used in the context of a landslide damage claim; in Clement v. State Reclamation Board, 35 Cal.2d 628, 642 [220 P.2d 897], to determine compensability of flood damage. In the course of the latter decision the court states: ‘The decisive consideration is whether the owner of the damaged property if uncompensated would contribute more than his proper share to the public undertaking. ’ (Clement v. State Reclamation Board, supra, 35 Cal.2d at p. 642 [220 P.2d at p. 905].)
“Viewed in the light of the economic balancing criterion, the present injuries are sharply focused on two properties. They arouse no concern for the public purse beyond that involved in any eminent domain proceeding. While shared with the general public, marine passage along Upper Stockton Channel without a height restriction is a unique economic attribute to two commercial shipyards located on a marine culde-sac.6 The prospect of damage claims from the two owners is not so monumental as to discourage the freeway project of which the bridges are a part. The taxpayers can absorb the cost with far less hardship than the owners. (Albers v. *432County of Los Angeles, supra, 62 Cal.2d at p. 263 [42 Cal.Rptr. 89, 398 P.2d 129].)
“The selection between a low level bridge and reasonable alternatives is essentially a budgetary and planning choice by the administrator. Potential damage to the littoral owners may approach the cost of raising the bridge level. At that point the administrator starts thinking of an' acceptable alternative, for example, a higher bridge. Intangible community values imperiled by the extended ramps of a high bridge may impel his return to the low level design. Whatever motivates the administrator to choose a low level bridge, dollars or intangible community values, the individual property owner ‘if uncompensated would contribute more than his proper share to the public undertaking. ’ (Clement v. State Reclamation Board, supra, 35 Cal.2d at p. 642 [220 P.2d at p. 905].)
“The specter of widespread damage claims caused by a bridge athwart a busy artery of marine commerce arouses no policy tremors. Potential economic injuries from obstructions to navigation are limited by federal statutes investing the Chief of Engineers and the Secretary of the Army with discretionary permit powers in the interest of protecting navigation. (See 33 U.S.C. §§ 401, 403 ; Ryan v. Chicago, B. & Q. R.R. Co., 59 F.2d 137, 142.) Unless the federal officials abdicate their responsibilities, a low level, drawless bridge across the Carquinez Straits or the mouth of the Mississippi is a theoretical but not practical possibility. It is reasonable to suggest that the present bridge project merited a federal permit only because the 45-foot limitation on navigation had narrow economic impact on two shipyards located on a marine cul-de-sac; that at some point potential injury to additional maritime interests would provoke denial of a federal permit. Injury claims remaining after the federal screening must then pass a second screening, that imposed by the economic balancing test, which measures the limit of compensability under the California Constitution. Finally, the claim must pass the substantial impairment test. These successive filters prevent compensable injuries to navigation so widely diffused that they are more public than private.
“We resist the invitation to follow the nuisance and equity decisions which deny upstream owners relief against downstream bridges which obstruct navigation., (See cases cited fn. 4, supra.) [Fn. 4. Gilman v. Philadelphia, 70 U.S. (3 Wall.) *433713 [18 L.Ed. 96] ; Miller v. City of New York, 109 U.S. 385 [27 L.Ed. 971, 3 S.Ct. 228] ; Cardwell v. American River Bridge Co., 113 U.S. 205 [28 L.Ed. 959, 5 S.Ct. 423] ; Pacific Inter-Club Yacht Assn. v. Morris, 197 F.Supp. 218 ; Jarvis v. Santa Clara Valley R.R. Co., 52 Cal. 438 ; People v. Potrero & Ray View R.R. Co., 67 Cal. 166 [7 P. 445] ; cf. Hickok v. Hine, 23 Ohio St. 523 [13 Am.Rep. 255] ; see also Sound Marine & Machine Corp. v. Westchester County, 100 F.2d 360.] Such decisions turn largely on the ‘public’ character of the right of navigation and the private plaintiff’s lack of standing to seek relief against a public nuisance not peculiar to himself. In the search for an eminent domain concept of ‘private property,’ equity and nuisance decisions are not a trustworthy guide (see Clement v. State Reclamation Board, supra, 35 Cal.2d at p. 641 [220 P.2d 897]). Preferable to analogies drawn from other branches of the law is the self-contained ‘easement of access’ doctrine developed as part of the California law of eminent domain.
“Eminent domain decisions in other states on compensability of obstructions to navigation vary. The variation is often prompted by the language of the particular state’s constitutional provision. In Pennsylvania, where the Constitution was amended to provide compensation for property ‘injured’ as well as taken, a wharf owner was awarded damages when a city bridge prevented vessels from passing upstream to his wharf. (In re Construction of Walnut Street Bridge, 191 Pa. 153 [43 A. 88], reported sub nom. Cumbes v. City of Philadelphia, 191 Pa. 153 [43 A. 88].) In State ex rel. Andersons v. Masheter, supra, where the Ohio Constitution limited compensation to a ‘ taking. ’ the court denied recovery under similar facts. One of the Ohio judges dissented, believing that the riparian terminal operator had developed a private right of navigation which was separate from that of the public and was ‘taken’ from him by the bridge.7 In New York a similar claim was denied on the theory (imported from the equity and nuisance decisions) that the right of navigation is ‘ exclusively a public right.' (Marine Air Ways v. State, supra, 201 Misc. 349, 104 N.Y.S.2d at p. 967, affd. 280 App.Div. 1021, 116 N.Y.S.2d 778.) The Florida courts have adopted the same rationale. (Moore v. State Road Dept., supra (Fla.App.) 171 So.2d 25 ; Carmazi v. Board of County *434Comrs., supra (Fla.App.) 108 So.2d 318.) None of these decisions considered the easement of access doctrine evolved as part of the California law of eminent domain. None of them considered the balancing of policies implicit in the easement of access doctrine.
‘ ‘ Both sides seek support in City of Los Angeles v. Aitken, 10 Cal.App.2d 460 [52 P.2d 585], The action was one to condemn littoral rights on a navigable lake whose level would be lowered by the condemning agency’s diversion of tributary streams. The defendant owned shoreline resort property. According to the opinion, the marginal owner’s privilege of boating was not itself compensable, but constituted an element in the valuation of his shoreline property. The case supplies no precedent here, since it involves a destruction of the littoral owner’s private right of access to navigable water directly fronting on his property.
■“The second major question is posed by the doctrine denying compensation when a littoral owner’s interests in navigable water are damaged through the exercise of the ‘navigation servitude,’ that is, through the public’s paramount power to control navigable waters in the interest of navigation and commerce. (See generally Miramar Co. v. City of Santa Barbara, supra, 23 Cal.2d 170 [143 P.2d 1] ; 2 Nichols [on Eminent Domain (3d ed.)] op. cit., pp. 247-258.) The state relies upon cases which seemingly extend the doctrine to public improvements which aid commerce as well as those aiding navigation. (Henry Dalton <& Sons Co. v. Oakland, supra, 168 Cal. 463, 467 [143 P. 721] • City of Newport Beach v. Fager, supra, 39 Cal.App.2d at p. 28 [102 P.2d 438].) It points out that the proposed bridges are part of an interstate freeway project which will improve access to Stockton harbor and benefit land and water transportation.
“Broad dicta in some of the decisions permit identification of the navigation servitude with the promotion of ‘commerce’ without express restriction to waterborne commerce. Such statements should not be taken out of context. Decisional law rejects the notion that any project facilitating commerce is ipso facto within the sovereign power over waterways. Nor do the parallel powers of the federal and state governments over navigation include every public project affecting the navigable capacity of water. Although most generalizations entail some peril, the general tenor of the decisions is that the navigation servitude is limited to public works designed to aid or *435control navigation, excluding projects for other purposes.8 A leading case refers to the navigation servitude as one embracing ‘such use of the submerged lands and of the waters flowing over them as may be consistent with or demanded by the public right of navigation.’ (Scranton v. Wheeler, 179 U.S. 141,163 [45 L.Ed. 126,137, 21 S.Ct. 48].) Freeways and streets along the waterfront are outside the scope of the navigation servitude (In re City of New York, 168 N.Y. 134 [61 N.E. 158, 56 L.R.A. 500] ; In re Jamaica Bay, 256 N.Y. 382 [176 N.E. 539] ; Crance v. Slate, supra, 205 Misc. 590 [128 N.Y.S.2d 479]) although there is contrary authority (Crary v. State Highway Com., 219 Miss. 284 [68 So.2d 468]). Deepening the channel of a stream to prevent overflows harmful to roads and bridges is not an exercise of the navigation power. (Conger v. Pierce County, 116 Wash. 27 [198 P. 377,18 A.L.R. 393].) The proposed freeway bridges across the Upper Stockton Channel will not aid its development as a medium of commerce. Rather they will obstruct its navigability, albeit the obstruction will be sanctioned by federal law. (See Southlands Co. v. City of San Diego, 211 Cal. 646 [297 P. 521].)
“The state seeks to extend the navigation servitude on the strength of decisions permitting improvements on publicly owned tidelands without compensation for the upland owner’s loss of access, e.g., Miramar Co. v. City of Santa Barbara, supra, 23 Cal.2d 170 [143 P.2d 1] ; Henry Dalton & Sons Co. v. Oakland, supra, 168 Cal. 463 [143 P. 721] ; City of Newport Beach v. Pager, supra, 39 Cal.App.2d 23 [102 P.2d 438], In those eases the public’s immunity is said to extend not only to tideland projects promoting navigation but to any ‘lawful use or purpose.' (People v. Hecker, 179 Cal.App.2d 823, 840 [4 Cal.Rptr. 334] ; City of Newport Beach v. Fager, supra, 39 Cal.App.2d at p. 28 [102 P.2d 438].) The tideland cases turn upon the principle that the littoral rights of an owner whose land adjoins publicly owned tidelands may be terminated by whatever disposition of the tidelands the public *436chooses to make. (Miramar Co. v. City of Santa Barbara, supra, 23 Cal.2d at p. 174 [143 P.2d 1].) Although public tidelands are held in trust for commerce, navigation and fishery, projects on tidelands may have nothing to do with navigation. Subject to the restrictions in statutory grants, public tidelands may be devoted to any use which does not prejudice the public fights of navigation and fishing. (Mallon v. City of Long Beach, 44 Cal.2d 199, 206 [282 P.2d 481] ; Boone v. Kingsbury, 206 Cal. 148, 183, 189 [273 P. 797].) Thus the public’s power to improve its tidelands without compensating littoral owners is not a measure of the navigation servitude when tideland use is not involved.
“Finally, the state urges that the federal permit to construct the low level bridge project across Upper Stockton C'hánnel is ‘conclusive.’ Perhaps it is, in the limited sense that ,a court may not restrain an obstruction to navigation permitted'by federal law. (See cases cited fn. 4, supra.) The permit is only a declaration of federal assent, not a delegation of power.9 Federal assent to the project does not shield the state from the eminent domain provision of its own constitution. ‘It must be remembered . . . that damage may be inflicted within the meaning of such a constitutional provision by the mere exercise of unquestioned public rights. ’ (2 Nichols, op.cit., p. 265.) . "
“We conclude that the bridge project is not an exercise of the state’s navigation servitude; that the project will cause compensable damage to plaintiffs’ private properties if, in an appropriate proceeding, a court finds substantial impairment of their respective easements of access.”
For these reasons I believe the judgments should be reversed.
Mosk, J., concurred.
Appellants’ petition for a rehearing was denied November 1, 1967. Peters, J., and Mosk, J., were of the opinion that the petition should be granted.
Colberg alleges that 81 percent of its current business is derived from ships unable to reach its shipyard under a bridge but 45 feet in height. Stephens alleges it will lose 35 percent of its business if the bridges are built. The Carquinez bridges, it should be mentioned, are 135 feet above the water.
Article I, section 14 of our state Constitution. See also article XV, section 1 of that Constitution which provides “The right of eminent domain is hereby declared to exist in the State to all frontages on the navigable waters of this State.”
"At this point we paraphrase the majority opinion in Bacich v. Board of Control, supra, 23 Cal.2d at p. 354 [144 P.2d at p. 825], which states: ‘To be able to get onto the street immediately in front of the property is of little value if that is as far as [the owner] can go. ’ ”
"At this point we refrain from anticipating the computation of damage and from indicating the relationship between loss of business and devaluation of property.”
"Cf. Miramar Co. v. City of Santa Barbara, 23 Cal.2d 170, 183 [143 P.2d 1], dissent of Garter, J.”
"United States v. River Rouge Improv. Co., supra, 269 U.S. at p. 419 [70 L.Ed. 339, 345, 46 S.Ct. 144] ; United States v. 50 Foot Right of Way in Bayonne, 337 F.2d 956, 959 ; United States v. 412.715 Acres of Land, 53 F.Supp. 143, 149 ; City of Los Angeles v. Aitken, supra, 10 Cal.App.2d at p. 470 [52 P.2d 585] ; Crance v. State, 205 Misc. 590 [128 N.Y.S.2d 479, 481], reversed on other grounds 309 N.Y. 680 [128 N.E.2d 324] ; 26 Am.Jur.2d, Eminent Domain, §191, p. 870 ; Note: 18 A.L.R. 403.”
"Cummings v. City of Chicago, 188 U.S. 410, 430-431 [47 L.Ed. 525, 531-532, 23 S.Ct. 4721] Pembroke v. Peninsular Terminal Co., 108 Fla. 46 [146 So. 249, 255] ; Cobb v. Lincoln Park Comrs., 202 1ll. 427 [67 N.E. 5, 9, 63 L.R.A. 264] ; Wilson v. Hudson County Water Co., 76 N.J. Eq. 543 [76 A. 560, 565-566] ; Sullivan v. Booth & Flinn, 210 App.Div. 347, [206 N.Y.S. 360, 363].”