Marin County v. Superior Court of Marin County

Decision Date16 February 1960
Citation2 Cal.Rptr. 758,53 Cal.2d 633,349 P.2d 526
CourtCalifornia Supreme Court
Parties, 349 P.2d 526 COUNTY OF MARIN, Petitioner, v. SUPERIOR COURT OF MARIN COUNTY, Respondent, Marin Municipal Water District, Real Party in Interest. S. F. 20346.

Leland H. Jordan, County Counsel, San Rafael, for petitioner.

Robert E. Reed, Harry S. Fenton, Robert F. Carlson and Kenneth G. Nellis, Sacramento, as amici curiae on behalf of petitioner.

No appearance for respondent.

Samuel W. Gardner and Robert Elliott for real party in interest.

WHITE, Justice.

County of Marin petitions for writs of prohibition and certiorari in an attempt to halt proceedings for the condemnation of two county roads brought in the respondent court by the Marin Municipal Water District. The Department of Public Works was granted permission to and did appear as amicus curiae in these proceedings.

Insofar as the factual background of this litigation is concerned, the record reveals that the Marin Municipal Water District (hereinafter referred to as district), real party in interest herein, desires to build a dam and reservoir in aid of its program of development and conservation of the water resources within its jurisdiction. The site selected for the reservoir covers portions of two highways under the jurisdiction of petitioner Marin County. The county has a fee interest as to only a minute portion of the roads, holding easements as to the remainder. The roads, part of the federal-aid secondary system of California, were constructed and are maintained by both federal and state funds. After discovering that the aforesaid roads were to be inundated by its proposed project, district offered to relocate them. Dispute with the county over the terms of such relocation and the accompanying reconstruction caused district to file the eminent domain proceedings in an attempt to have the superior court resolve the conflict.

The county resisted the condemnation actions on the grounds that district had no statutory authority to take the roads. Motions by both parties for judgment on the pleadings were denied, but the court granted district's further motion for an order authorizing it to take immediate possession of the roads and to commence construction. The county thereupon initiated the instant proceedings. Both parties agree that prohibition and certiorari are appropriate remedies.

The power of eminent domain must arise expressly or by necessary implication from specific statutory authority. Southern Pac. R. Co. v. Southern Cal. R. Co., 111 Cal. 221, 227, 43 P. 602. That power is conferred upon municipal water districts in the following language: 'To have and exercise the right of eminent domain and in the manner provided by law for the condemnation of private property for public use, to take any property necessary to supply the district * * * with water * * *. In proceedings relative to the exercise of such right, the district shall have all of the rights, powers and privileges of a city * * *.' Municipal Water District Act, § 12, as amended, States.1951, ch. 62, p. 190, § 11, subd. 7, West's Ann.Water Code App. §§ 20-12, subd 7. Thus we see that the exercise of the power of eminent domain by district is limited to the manner and form of the exercise of such authority by a city. 1 Such procedure is set forth in the Code of Civil Procedure, § 1240, which details the property that is subject to the power of eminent domain: 'The private property which may be taken under this title includes * * *. 3. (Property appropriated to public use.) Property appropriated to public use; but such property shall not be taken unless for a more necessary public use than that to which it has already been appropriated. * * * But property appropriated to the use of any county, city and county, incorporated city or town, or municipal water district, may not be taken by any other county, city and county, incorporated city or town, or municipal water district, while such property is so appropriated and used for the public purposes for which it has been so appropriated. * * *' Section 1241 sets out the facts that must appear before condemnation will be allowed. As to property already appropriated to a public use, subsection 3 of section 1241 provides that 'property appropriated to the use of any county * * * may not be taken by any * * * water district, while such property is so appropriated and used. * * *'

County roads are clearly property appropriated to a public use. The condemnation of such property is, therefore, clearly governed by the provisions of the third subsections of sections 1240 and 1241, Code of Civil Procedure, quoted above. Under the last sentences of each of the said subsections it appears that the Legislature has decided to exempt from condemnation property previously appropriated and used by certain public entities, including counties. By express statutory provisions property appropriated to the use of a county may not be taken by a municipal water district. A more clear or positive legislative mandate would be difficult to envision. District seeks to escape this conclusion by arguing that county roads are not, in fact, appropriated to the use of a county as is other county property but belong to the people of the entire state. Authority for this proposition is assertedly found in People v. Marin County, 103 Cal. 223, 37 P. 203, 26 L.R.A. 659. In that case the authorities at San Quentin State Prison attempted to close a county highway that ran through the prison grounds, alleging that as the state owned the fee in the roads, the highway easement merged with the fee and was extinguished. The court refused to allow the prison authorities to close the highway. It is herein argued that the holding of that case was that the easement was not merged with the fee because the highway easement was held as trustee for all the people of the state while the fee was held in a proprietary capacity. Thus, it is contended, highway easements are different kinds of property than, for example, buildings, in that roads are not appropriated to the use of any county but are held in trust for all the people of the state. An examination of the opinion in the cited case will readily disclose that no such conclusion was reached for no such question was involved.

What was held in that case that 'The authority to close up and alter public highways * * * is conferred upon the board of supervisors of the several counties of the state, and can only be exercised * * * in the mode prescribed by law. * * * No power is given * * * to the board of prison directors to abolish public highways.' People v. County of Marin, supra, 103 Cal. 223, 226-227, 37 P. 203, 204. Further, 103 Cal. at page 232, 37 P. at page 206, the court states: 'To attempt to apply the doctrine of merger to such a case is to wrest it from the objects of its creation and existence. In strictness, all public highways belong to the state, which holds them for public use subject to legislative control. In this commonwealth their custody and control * * * is confided to the supervisors of the several counties * * *. It has provided, by section 2621 of the Political Code that 'a road * * * used as provided in this chapter shall not be vacated * * * until so ordered by the board of supervisors of the county in which said road may be located.' This statute is binding upon the state as well as individuals.' (Emphasis added.) The holding of the case was not, then, that there is a tortured distinction between different kinds of property but that the prison authorities had no legislative mandate to exercise the admitted power of the state over the road. We are impressed that the case would seem to give support to the position taken by petitioner county that the Legislature had committed to its care and discretion the full control over county highways despite an ultimate interest of the people of the entire state in those highways. In a real sense, therefor, the road was held to have been appropriated to the use of the county.

It is fundamental that all roads committed to the care of a county belong, ultimately, to all the people of the state. People v. County of Marin, supra, 103 Cal. 223, 232, 37 P. 203; San Francisco-Oakland Terminal Rys. v. County of Alameda 66 Cal.App. 77, 81, 225 P. 304. By the same token all property under the care and control of a county is merely held the trust by the county for the people of the entire state. The county is merely a political subdivision of state government, exercising only the powers of the state, granted by the state, created for the purpose of advancing 'the policy of the state at large, for purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport, and expressly for the general administration of justice.' 1 Dillon, Municipal Corporations, 5th ed., § 35, p. 64; 1 McQuillin, Municipal Corporations, 3rd ed., § 2.46, pp. 495-500; County of Los Angeles v. Riley, 6 Cal.2d 625, 627, 59 P.2d 139, 106 A.L.R. 903; Singh v. Superior Court, 44 Cal.App. 64, 66, 185 P. 985. The county holds all its property, therefore, not just highway easements, as agent of the state. County of Los Angeles v. Graves, 210 Cal. 21, 25, 290 P. 444; County of Tulare v. City of Dinuba, 205 Cal. 111, 117, 270 P. 201; Reclamation District No. 1500 v. Superior Court, 171 Cal. 672, 679-680, 154 P. 845; Board of Education of City and County of San Francisco v. Martin, 92 Cal. 209, 215-216, 28 P. 799; Dillwood v. Riecks, 42 Cal.App. 602, 607-608, 184 P. 35; United States v. Certain Parcels of Land, etc., D. C., 67 F.Supp. 780, 788; City of Edwardsville v. Madison County, 251 Ill. 265, 96 N.E. 238, 37 L.R.A.,N.S., 101; Harris v. Board of Supervisors, 105 Ill. 445, 451.

The cases above cited are unanimous in holding that, as against the state, the county has no ultimate...

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