continued 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.