I respectfully dissent.
*304In my view, the majority seriously errs in at least two respects, either of which independently is wholly sufficient to invalidate its reasoning and result. First, it extends the so-called “public trust doctrine,” contrary to its fundamental rationale, to nonnavigable, nontidal waters on private property in which neither the state nor the federal government ever has asserted any title or interest. Second, it disregards the well established conclusive effect of the federal patent upon the subject property under the Act of 1851. I think the majority is wrong on both counts.
Along the way the majority cavalierly overturns a century-old judicial determination that the premises in question did not consist of tidal navigable waters. Disregarding the earlier federal court finding of fact the majority now, more than 100 years later, substitutes its own retroactive “finding” that the subject property was, indeed, then covered by tidal navigable waters. Resting upon its self-created factual premise, the majority attempts to justify both its disavowal of the federal patent of 1873 which had established the private ownership and nonnavigable character of the land in question and its use of the public trust doctrine, which heretofore has applied only to navigable waters previously owned by public entities. These conclusions, like their common premise, are flawed.
The subject real property consists of two parcels underlying what is popularly referred to as the Ballona Lagoon located in the Marina Del Rey area of Los Angeles. Historically, the lagoon was part of Rancho Ballona. Much of the area of the original lagoon is now dry land as a result of natural and developmental filling. In its present configuration the lagoon consists of a narrow elongated area covered by very shallow water described as “brackish,” and separated from the ocean by a strand or sand barrier. There is a substantial question as to whether sea water presently flows through the lagoon in any significant amount. The majority concedes that the lagoon is seldom navigable, and then only by “shallow draft vehicles.” (Ante, p. 292.)
I emphasize, however, that the current status of the lagoon has — or should have — little legal relevance to a proper resolution of the issues before us. In my view, our decision was foreordained over 100 years ago when it was finally and judicially determined as a matter of fact that Ballona Lagoon was not then an “arm of the sea” but rather belonged, along with the rest of Rancho Ballona of which it was a part, to its then Mexican grantees.
*305Historically, Rancho Ballona was a part of Mexico. In 1839 the Mexican Governor of California granted the rancho, including the lagoon, to Augustin and Ignacio Machado and Filipe and" Tomas Talamantes. On July 7, 1846, following the Mexican War and upon completion of the military occupation of California, the then American military commander, Commodore Sloat, promised that Mexican land titles would be recognized by the United States. This policy was formalized in 1848, when California was ceded by Mexico to the United States, in the Treaty of Guadalupe Hidalgo. In that treaty the United States solemnly committed itself to respect the rights and property of Mexican citizens in newly ceded California. This covenant to protect previously established Mexican property rights affected all forms of ownership, and for over 100 years it has been judicially recognized both by the United States Supreme Court (Knight v. U.S. Land Association (1891) 142 U.S. 161, 184-185 [35 L.Ed. 974, 982, 12 S.Ct. 258]; Beard v. Federy (1865) 70 U.S. (3 Wall.) 478, 490 [18 L.Ed. 88, 92]) and by us (Teschemacher v. Thompson (1861) 18 Cal. 11, 22). Indeed, the majority acknowledges that “under the terms of the treaty, the rights of Mexican citizens to their property were to be ‘inviolably respected.’” (Ante, p. 294.)
Consistent with these treaty obligations, the United States Congress enacted the Act of 1851 (the Act) which established procedures to be administered by a Board of Land Commissioners to confirm these rights. Under the Act, persons asserting ownership of California land through Mexican grants were required to submit their claims to the board, which was given broad powers to adjudicate the claims pursuant to the treaty, the laws of Mexico and the decisions of the United States Supreme court. Upon board approval of the claim, the property was surveyed by the United States Surveyor General and a patent thereupon issued using the survey description.
The Act further mandated that, once issued, the United States patent was to be binding and conclusive as to all persons save and except “third parties” — that is those who had an earlier title recognized under Mexican law. Because any such superior title had to exist prior to 1848 when the land was ceded to the United States, and because the State of California did not itself then exist, it has been consistently held both by the United States Supreme Court and by us that the “third parties” excepted under the Act did not include the state. (Knight v. U.S. Land Association, supra, 142 U.S. at pp. 185-186 [35 L.Ed. at pp. 982-983]; People v. San Francisco (1888) 75 Cal. 388, 403 [17 P. 522].)
*306In conformity with the Act, the 1839 Mexican grant of Rancho Ballona to the Machados and the Talamantes was formally confirmed by the Board of Land Commissioners in 1854, and affirmed on appeal by the United States District Court in 1855. Thereafter, the subject property was in litigation before the General Land Office for 18 years, the principal issue being the precise westerly boundary of the rancho, and particularly whether the “inner bay” (Ballona Lagoon) was within the rancho or part of the Pacific Ocean. The General Land Office, the duty of which was to “settle conflicting claims to the land surveyed,” concluded that the “inner bay” (Ballona Lagoon) was not an arm of the sea but rather was “dry land used for pasturage” except during storms and times of overflow. Based upon the foregoing, a United States patent on Rancho Ballona was finally issued in 1873 to the predecessors in interest of the present property owners. The description used in the patent included the lagoon. The majority opinion assumes “without deciding” that the above factual determination as to the character of the lagoon “was a final decision on that question and a necessary predicate to the issuance of the patent.” (Ante, p. 295.)
From the foregoing chronology, I conclude that the Rancho Ballona has been owned privately since 1839. The Mexican grant to the Machados and Talamantes, confirmed by the Board of Land Commissioners in 1854, affirmed by the United States District Court in 1855, approved by the Surveyor General of the United States in 1858, and having fully ripened into a United States patent in 1873, vested full legal title in fee simple absolute in the present owners’ predecessors. In my view, this title has been free and clear of any right, title or interest of the State of California or any of its political subdivisions from that day to this.
It is significant that the private ownership of the lagoon was uniformly accepted for almost 100 years. In 1965, however, the City of Los Angeles, subsequently joined by the State of California, filed the present litigation which seeks both declaratory relief and quiet title. Los Angeles attempts, for the first time, to establish a public trust easement for “commerce, navigation and fishing” over the lagoon on a theory that the lagoon is tideland arid navigable ocean water. Alternatively, plaintiffs allege an express or implied public easement over the lagoon. While now conceding, frankly, that defendants presently hold the fee simple title to the lots in question, plaintiffs argue that these lots, along with the entire lagoon, are burdened by a public trust easement.
*307It is obvious that much more is involved in this litigation than the title to two lots. By imposing a public trust easement upon properties which are neither tidal, navigable, nor formerly under public dominion, the majority has removed all heretofore recognized reasonable limitations on the scope of the public trust doctrine. What is left? While the majority refrains from defining the extent of the easement beyond the land under the water of the lagoon, the implications of its decision equally threaten large areas held in private ownership elsewhere in the coastal areas of this state. The private title to such property, and the right to use it, suddenly are clouded by the creation of a state-administered easement even though the state heretofore has neither owned such property nor asserted any interest in it.
There is no precedent for such an extension of public ownership. The Legislature has never reached so far, nor have we. In City of Berkeley v. Superior Court (1980) 26 Cal.3d 515 [162 Cal.Rptr. 327, 606 P.2d 362], a bare majority of this court first expounded the notion that tidelands in navigable waters which had been conveyed by the state to private parties nonetheless were encumbered by a reserved public trust for commerce, navigation, fishing and other uses. (Id., at pp. 523, 528.) In the following year in State of California v. Superior Court (Lyon) (1981) 29 Cal.3d 210 [172 Cal.Rptr. 696, 625 P.2d 239], the same majority extended this new doctrine to lands between high and low water in nontidal navigable lakes which had been granted by the state into private ownership.
It should be carefully noted that the rationale of the public trust doctrine is that public lands conveyed into private ownership remain subject to public use for certain limited purposes unless the intention to extinguish that public right is clearly expressed in the grant. The doctrine operates when the ownership of land and waters vested in California upon its admission to the Union (Borax, Ltd. v. Los Angeles (1935) 296 U.S. 10, 15 [80 L.Ed. 9, 14, 56 S.Ct. 23]) is thereafter conveyed into private hands, the doctrine reserving in the public grantor a public trust. In short, the principle limits subsequently created private property rights. (People v. California Fish Co. (1913) 166 Cal. 576, 583-585 [138 P. 79].)
It seems to me obvious that this reasoning has no application to lands like those before us which never were owned publicly. Indeed, the majority freely acknowledges that we have never before applied the public trust doctrine to such property. (Ante, p. 298.) Nonetheless, my col*308leagues assert, without analysis, that prior government ownership is not essential to the application of that doctrine, but that unadorned, unsupported, bare conclusory assertion is not persuasive. In my view the majority thus errs in applying the public trust doctrine to the property before us, title to which has been exclusively in private ownership since 1839.
The second major error of the majority lies in its failure to acknowledge the binding effect of the federal patent issued to the predecessors in title of the present owpers. After the lapse of a century, it reopens a factual issue conclusively resolved long ago in the federal proceedings. Citing no authority and without other justification, it thus endorses a collateral attack in the trial court upon the general judgment pursuant to which the patent was issued. It approves the superior court’s reweighing of the evidence presented to the land commissioner in the federal proceedings 100 years earlier. It also accepts the superior court’s belated “finding,” based upon? claimed inconsistencies in that evidence, that Ballona Lagoon was an “arm of the sea, subject to the tides.” (Ante, p. 296.) Accordingly, the; majority now concludes that the federal patent of 109 years ago was improperly issued.
Such a collateral attack upon the federal patent is highly improper. The purpose of the proceedings leading to the patent and the effect of its issuance was to settle permanently all claims which were, or which could have been, raised in those proceedings. Over 120 years ago in describing a patent we observed “Upon all matters of fact and law essential to authorize its issuance, it imports absolute verity . .. . ” (Leese v. Clark (1861) 18 Cal. 535, 572.) Among the factual issues resolved in the 1873 patent proceedings were the boundaries and the character of the property which was granted by Mexico to its nationals, and particularly whether the lagoon was an “arm of the sea” or was included in the grant. The United States District Court decided it was the latter.
It is well established that the interpretation of a federal land conveyance is determined by federal law. (Shively v. Bowlby (1894) 152 U.S. 1, 9-10 [38 L.Ed. 331, 335, 14 S.Ct. 548].) This includes federal patents on real property, a ¡portion of which is tidelands. (Borax, Ltd. v. Los Angeles, supra, 296 U.S. at p. 22 [80 L.Ed. at pp. 17-18].) As previously noted, the Ballona patent was issued by the United States government, pursuant to ¡an act of Congress. This congressional action was ordained by the commitments made by our national government in *309a treaty between the United States and Mexico. It is federal not state law that governs the interpretation of the patent before us.
The Act of 1851, pursuant to which the federal patent issued, contemplated not only the definition but also the settlement of titles. (Knight v. U. S. Land Association, supra, 142 U.S. at p. 184 [35 L.Ed. at p. 982]; Beard v. Federy, supra, 70 U.S. at p. 489 [18 L.Ed. at pp. 91-92]; United States v. Coronado Beach Co. (1921) 255 U.S. 472, 487-488 [65 L.Ed. 736, 741-742, 41 S.Ct. 378].) This was equally so whether the subject property was upland or tideland. As Mr. Justice Field sagely observed in his concurring opinion in Knight: “Mexico owned the tidelands as well as the uplands, and it was, of course, in her power to make such disposition of them in the establishment and organization of her pueblos [and ranchos] as she may have judged expedient. And whether she did make such disposition by her laws was a matter exclusively for the United States to ascertain and determine.” (142 U.S., at pp. 201-202 [35 L.Ed. at p. 988], italics added.)
The federal judgment which found that the lagoon was nontidal cannot be ignored, now, 100 years later, by a state court determination that it was then “tidal.” Nor should the majority attempt to vacate a solemn federal conveyance recorded also over 100 years ago, thereby brushing aside both the federal judgment and conveyance and creating a sort of floating “tidal title” in order to extend the “public trust” doctrine to the subject property.
My colleagues insist that “when California was ceded by Mexico, the title of defendants’ predecessors was subject to the interests of the public in the tidelands included in the grant.” (Ante, p. 297.) The majority cites no cases whatever, Mexican, Spanish or American, federal or state, which have so held. In granting this property to the Machados and the Talamantes in 1839 Mexico may have had the power to reserve whatever interest it chose. The point is that there is no evidence whatever that it did limit or condition its grant. Moreover, the record before us is equally devoid of support for the novel proposition that all Mexican grants to private parties 140 years ago were subject to such an uncodified, Mexican or Spanish, “common law public trust.” By its “recognition” of a reserved Mexican public interest 140 years after the fact, the majority retroactively imposes upon 19th Century Mexican jurisprudence a remedy never asserted by Mexico.
*310Serious adverse practical consequences flow from the majority’s reasoning. In creating an iitiplied “reservation” by Mexico of public rights in lands which it had granted to its nationals prior to the cession of California to the United States, the majority circumvents the clear import of section 13 of the federal Act of 1851. Under that section the United States acquired as its property only “lands which had belonged to Mexico and [which] were not patented by the federal government to private parties . . ..” (Ante, p. 296, italics added.) But the subject property here obviously had been patented to private parties. How, then, does the majority justify its assertion that “less than fee interests were retained by Mexico” and excepted from the Mexican grant of 1839 to the Machados and Talamantes, and somehow thereafter passed to the United States with the cession of California in 1846?
The majority seeks support for its theory of an implied reservation of public rights in patented lands by analogy to our decision in Moore v. Smaw (1861) 17 Cal. 199. Because we held in Moore that “mineral rights retained by the Mexican government” when it granted lands to its nationals subsequently passed to the United States on cession, it is urged that public rights in tidelands were similarly retained. (Ante, p. 296, italics added.) What my colleagues fail or refuse to note, however, is a very basic distinction between Moore and the present case. In Moore we stressed that at the time of the Mexican grant to the private Moore grantees “it was the established doctrine of the Mexican law that all mines of gold and silver in the country, though found in the lands of private individuals, were the property of the nation. No interest in the minerals passed by a grant from the Government of the land in which they were contained, without express words designating them .... The Mexican law j on this subject was derived from the Spanish law .... Under Spain, the mines constituted the property of the crown, as part of the royal patrimony.” (17 Cal. at pp. 212-213.) Not so in our case. At the time of the Mexican grant to defendants’ predecessors in title, no similar doctrine traditionally established that such land grants were subject to a reservation of any “public trust rights.”
In the absence of some legal authority or a fáctual determination of such reservation by Mexico, Moore provides absolutely no support for the majority’s inventive! concept that public trust rights were somehow silently “reserved” by Mexico when it conveyed the premises into private ownership in 1839; were then quietly passed to the United States upon cession; thereafter; without either notice or acknowledgment were handed to California upon its admission to the Union; survived the sub*311sequent issuance of a patent by the United States; lay dormant for over 100 years, and then, warmed by 143 summers, like a juridical century plant sprang suddenly into life and full bloom in 1982.
Of even more significance, however, in Moore we wholly destroyed the conceptual underpinnings of the majority’s thesis. In carefully explaining the function of a federal patent, we there held that the patent extinguished every interest of the United States — including the mineral rights which we there concluded had passed to the federal government under established Mexican law pertaining to such rights. (Moore, supra, 17 Cal. at pp. 223-226.) We insisted that “The object of the act [of 1851] is to ‘ascertain and settle’ private land claims in California. This object is declared in the first section. It is not merely to ascertain but ‘to settle’ the claims', that is, to establish them — to perfect them by placing them, so far as the Government is concerned, beyond controversy” (Id., at p. 223, italics added.)
Thus, with due deference to my colleagues, I suggest that even if there was substance to the majority’s view that certain “public rights” were reserved by Mexico after its grant of 1839 to defendants’ predecessors and that such rights somehow passed to the federal government, in Moore we flatly rejected the notion that any such rights could survive the patent process. Our language was unambiguous and explicit: “There is nothing in the act [of 1851] restricting the operation of the patents thus issued to the interests acquired by claimants from the former Government, or distinguishing the patents in any respect from the general class of conveyances made ... by the United States. To all claimants alike, whose, claims have been finally confirmed, patents are to issue without words of reservation or limitation ....” {Id., at p. 224, italics added.) The title and interest which the patentee receives, we described as: “all the interest of the United States, whatever it may have been, in everything connected with the soil, in everything forming any portion of its bed or fixed to its surface, in everything which is embraced within the signification of the term land . ...” {Ibid., italics added.) Thus, all interests, including mineral rights of the United States, were there held confirmed in the patentee upon issuance of the federal patent. It follows that if the federal patent absorbed and passed to the grantees even those rights which Mexico had historically reserved to itself, a fortiori, it would pass to the patentee any rights which Mexico neither expressly reserved nor historically, in its law, had asserted.
*312The fact, of course, that both our language and conclusions in Moore are venerable and that Californians have lived with them for over 100 years does not prove them wrong. Federal patents today remain the firm and stable bedrock of much of California’s land titles. I conclude that the patentees to the property before us received all of the interests of the United States, including any inchoate public trust rights which knowingly or otherwise the United States may have received from Mexico upon the cession of California to the United States. Those interests vested in defendants’ predecessors in title when their patent was properly confirmed in the federal patent proceedings.
The foregoing principles of land title law have been well established in California for a long, long time. Thus, 123 years ago, and 8 years after adoption of the Act and before the issuance of the present patent, we said “The patent, which is the final document issued by the government, is conclusive evidence of the validity of the original grant, and of its recognition and confirmation, and of the survey, and its conformity with the confirmation, and of the relinquishment to the patentee of all the interest of the United States in the land. It cannot be attacked collaterally, even for fraud ...” (Moore v. Wilkinson (1859) 13 Cal. 478, 487, italics added.) We have consistently, and from the beginning, given this same effect to a patent. (Teschemacher v. Thompson, supra, 18 Cal. 11, 26-28; Morrill v. Chapman (1868) 35 Cal. 85, 88; Miller v. Dale (1872) 44 Cal. 562, 578; Chipley v. Farris (1873) 45 Cal. 527, 538-539; Cassidy v. Carr (1874) 48 Cal. 339, 344; People v. San Francisco, supra, 75 Cal. 388, 397.)
The United States Supreme Court has been equally consistent. Over a century ago it characterized as follows the effect of a patent and the nature of the conveyance confirmed thereby: “[T]he patent is a record of the action of the government upon the title of the claimant as it existed upon the acquisitioh of the country .... When informed, by the action of its tribunals and officers, that a claim asserted is valid and entitled to recognition, the government acts, and issues its patent to the claimant. This instrument is, therefore, record evidence of the action of the government upon the title of the claimant. By it the government declares that the claim asserted was valid under the laws of Mexico; that it was entitled to recognition and protection by the stipulations of the treaty, and might have been located under the former government, and is correctly located now, so as to embrace the premises as they are surveyed and described. As against the government this record, so long as it remains unvacated, is conclusive. And it is equally conclusive against parties claiming under the government by title subsequent. It is in this *313effect of the patent as a record of the government that its security and protection chiefly lie.” (Beard v. Federy, supra, 70 U.S. at pp. 491-492 [18 L.Ed. at pp. 92-93], italics added; accord Dominguez De Guyer v. Banning (1897) 167 U.S. 723, 740-744 [42 L.Ed. 340, 345-347, affirming De Guyer v. Banning (1891) 91 Cal. 400, 402-404 [27 P. 761]; Thompson v. Los Angeles Farming & M. Co. (1901) 180 U.S. 72, 77-80 [45 L.Ed. 432, 434-436, 21 S.Ct. 289].)
In United States v. Coronado Beach Co., supra, 255 U.S. 472, the Supreme Court held that the owner of realty, including tidelands, which was acquired by a Mexican grant and subsequently confirmed in federal patent proceedings, could not be deprived of its property without just compensation. The high court specifically emphasized that California never acquired title to the tidelands by virtue of its sovereignty because the property had been included in the Mexican grant, and having been confirmed in the patent proceedings, such title could not be collaterally attacked. (Id., at p. 488 [65 L.Ed. at p. 742].) The same analysis, applicable here, compels a similar legal conclusion.
I find singularly unpersuasive the majority’s attempt to distinguish cases such as United States v. Title Ins. Co. (1924) 265 U.S. 472 [68 L.Ed. 1110, 44 S.Ct. 621], wherein the Supreme Court concluded that the perpetual right of Indians under Mexican law to use and occupy certain lands was lost when those lands were granted to Mexican nationals whose title was subsequently confirmed in the patent process. Finding that the “right to occupy land is a normal incident of title,” the majority correctly concludes that such right must be asserted in the patent process or is lost. (Ante, p. 302.) With respect to the public right to use tidelands, however, the majority concludes otherwise. Offering no rationale for any such distinction, the majority simply declares, ipse dixit, that such a public interest need not be asserted in order to survive the federal patent process because the “conveyance of such lands by the government does not ordinarily free them from the burden of the public trust . .. .” (Ante, p. 302.) Such reasoning is, of course, circular, is sustained by no authority, and cannot be reconciled with our own long established holding that “all the interest of the United States, whatever it may have been” passes to the patentee upon issuance of a patent under the Act of 1851. (Moore v. Smaw, supra, 17 Cal. at p. 224, italics added.)
From all of the foregoing, I conclude that the subject property was owned by the government of Mexico until 1839, at which time it passed *314into private ownership. The State of California at that time, of course, did not exist. Assuming, for discussion purposes, that any “public interest” in such property had been retained by Mexico, such interest thereafter inevitably passed to the United States upon cession by Mexico. Surely, the interest could not have been retained by Mexico after cession. Pursuant to appropriate congressional authorization, the federal government subsequently entertained claims, public and private, to lands within California which formerly were conveyed by the Mexican government into private ownership. The property in question was subjected to these appropriate proceedings. As noted, the claims of defendants’ predecessors in title were considered and affirmed in a valid judgment of the United States District Court which applied the binding federal law, the property vyas surveyed, the boundaries litigated, and finally in 1873 a United States patent was properly issued to defendants’ predecessors. Both the United States and the State of California had ample opportunity in those proceedings to assert any “public trust” interests that they might claim. They did not do so. To me, the record eloquently reflects that for over a century none of the parties harbored the notion that the rancho lands in question contained any lingering “trust” encumbrance. No case, federal or state, American or Mexican, has ever so held before today.
The detailed procedure established by Congress in its Act of 1851 was a forthright, direct and common sense method for resolving title. It is relevant to note that the title confirmatory proceedings were designed to resolve not some but all conflicting and disputed interests.
In the words of the high court: “[T]he purpose of the Act of 1851 was to give repose to titles as well as to fulfill treaty obligations, and ... it not only permitted but required all claims to be presented to the commission, and barred all from future assertion which were not presented within the two years.” (United States v. Title Ins. Co., supra, 265 U.S. at p. 483 [68 L.Ed. at p. 1113].) All claims not so presented were “regarded as abandoned.” (Ibid.) The high tribunal in that case expressed an interpretive principle which has equal application here: ‘“Where questions arise which affect titles to land it is of great importance to the public that when they are once decided they should no longer be considered open. Such decisions become rules of property, and many titles may be injuriously affected by their change. Legislatures may alter or change their laws, without injury, as they affect the future only; but where courts vacillate and overrule their own decisions on the construction of statutes affecting the title to real property, their deci*315sions are retrospective and may affect titles purchased on the faith of their stability. Doubtful questions on subjects of this nature, when once decided, should be considered no longer doubtful or subject to change.’” (Id., at pp. 486-487 [68 L.Ed. at p. 1114].)
The majority, however, purports to discover and by a judicial nudge to waken from its 109-year slumber a dormant public interest of the State of California in the lands in question. It does so at the expense of the constitutionally protected property rights of defendants.
I confess to a growing unease about what I view as an accelerating erosion of private property rights of California citizens. We need look no further than the first section of the very first article of the state Constitution to learn that the sovereign people of California have proclaimed: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” (Italics added.) From this solemn pronouncement of the people, identifying the protection of their property with the defense of their lives and liberty and describing such interests as “inalienable,” I conclude that preserving the sanctity of a citizen’s private property is a singular responsibility of government and its courts. When, therefore, that government itself seeks to trench on such constitutionally protected and “inalienable rights” of its own people, its conduct must be closely scrutinized and its reach carefully measured .by the rule of law.
If the State of California or the City of Los Angeles seeks to “dredge the lagoon, construct sea walls” and otherwise now assert public dominion over the subject property and if either can demonstrate some valid public use, let it frankly, fairly and openly exercise its eminent domain power. Pursuant to the Fifth Amendment to the federal Constitution and article I, section 19 of the California Constitution, let state and city pursue established legal procedures to condemn the property in question, rather than upset long established principles in order to obtain the property “on the cheap,” as it were. In compliance with the constitutional restrictions which are binding upon them, if the state and city now seek the use of the subject property, they should pay for it.
I would reverse the judgment.