Akins v. State

• Decision Date: 28 January 1998
• Docket Number: No. C015891,C015891
• Citation: 71 Cal.Rptr.2d 314,61 Cal.App.4th 1
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 742, 98 Daily Journal D.A.R. 963 Al Frank AKINS et al., Plaintiffs and Respondents, v. The STATE of California et al., Defendants and Appellants.

Page 314

71 Cal.Rptr.2d 314

61 Cal.App.4th 1, 98 Cal. Daily Op. Serv. 742,

98 Daily Journal D.A.R. 963

Al Frank AKINS et al., Plaintiffs and Respondents, v. The STATE of California et al., Defendants and Appellants.

No. C015891.

Court of Appeal, Third District, California.

Jan. 28, 1998.

As Modified on Denial of Rehearing Feb. 23, 1998.

Review Denied May 13, 1998. ^*

Daniel E. Lungren, Attorney General, Robert L. Mukai, Chief Assistant Attorney General, Marvin Goldsmith and Margaret Rodda, Assistant Attorneys General, Darryl L. Doke, James H. Wernicke and David DeAlba, Deputy Attorneys General, Downey, Brand, Seymour & Rohwer, Thomas N. Cooper, Ronald Liebert, Gordon B. Burns, Hardy, Erich, Brown & Wilson, David S. Worthington and Barbara Gould Archibald, Sacramento, for Defendants and Appellants.

Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Richard M. Frank, Assistant Attorney General, Ellison, Schneider & Lennihan and Martha H. Lennihan, Sacramento, as Amici Curiae on behalf of Defendants and Appellants.

Desmond, Miller & Desmond, Richard F. Desmond, Gary Livaich, Dopkins & Rolfe, William E. Dopkins III, Sacramento, Gordon & Rees, Douglas B. Harvey, San Francisco, Goldstein & Goldstein, David Collins, Kronick, Moskovitz, Tiedemann & Girard and Lloyd Hinkelman, Sacramento, for Plaintiffs and Respondents.

SIMS, Acting Presiding Justice.

Defendants State of California, Reclamation District 1000 (RD 1000), and American River Flood Control District (ARFCD) appeal from a judgment, following a bench trial, finding defendants liable for inverse condemnation claims of 25 plaintiffs whose personal and real property were damaged by flooding during heavy storms in February 1986. ¹

Except for plaintiffs whose properties were located in an area known as Strawberry Manor, plaintiffs' properties were damaged when flood control works that were designed to protect lower-lying lands created a hydraulic dam and backwater effect that caused flooding of plaintiffs' upper-lying lands. As to plaintiffs located in Strawberry Manor, liability was predicated in part on defendants' failure to have a flood-watch plan to close a gap built into a levee, thereby causing a failure in a system designed to protect that territory.

Defendants contend, among other things, that they are not liable because plaintiffs must prove and failed to prove unreasonable conduct by the defendants, pursuant to a rule first enunciated in Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 253 Cal.Rptr. 693, 764 P.2d 1070.

The California Supreme Court granted review of our original opinion in this case, and later transferred the case back to us with directions to vacate our original opinion and reconsider in light of Bunch v. Coachella Valley Water Dist. (1997) 15 Cal.4th 432, 63 Cal.Rptr.2d 89, 935 P.2d 796 (Bunch II ). We vacated our original opinion. All parties filed supplemental briefs. ²

We shall conclude the reasonableness test does not apply if governmental flood control works cause flooding by intentionally diverting water to upstream private property which was not historically subject to flooding, in order to protect lower-lying land. We shall therefore reverse the judgment and remand for the limited purpose of having the trial court make a finding on the issue whether plaintiffs' properties (other than Strawberry Manor) were historically subject to flooding in the absence of the flood control works at issue in this litigation.

We shall also conclude that, although Belair 's reasonableness test applies to the flooding of Strawberry Manor, remand is required for the trial court to evaluate reasonableness under factors first adopted in cases postdating the trial court's decision--Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 27 Cal.Rptr.2d 613, 867 P.2d 724, and Bunch II, supra, 15 Cal.4th 432, 63 Cal.Rptr.2d 89, 935 P.2d 796.

We shall also remand the case for the trial court to consider the proportionate liability of each defendant found to be liable. ³

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs' properties are located in Sutter and Sacramento Counties, generally to the east and north of the public improvements in question. In their natural condition, plaintiffs' lands drained to the west into an area known as the "American Basin." The American Basin is a large area of low-lying lands bounded generally by the Bear River on the north, the Feather River and Sacramento River on the west, the American River on the south, and higher ground to the east. The American River flows west into the Sacramento River. In its natural condition the American Basin eventually drains into the Sacramento River and out to the sea.

The parties have divided the properties that are the subject of this litigation into three distinct geographical areas:

1. "North of Sankey Road"--land in Sutter County lying east of the American Basin and north of Sankey Road;

2. "Rio Linda"--land in Sutter and Sacramento Counties, lying east of the American Basin and south of Sankey Road, bordered by Sankey Road on the north and Dry Creek on the south; and

3. "Strawberry Manor"--a housing development in the City of Sacramento, lying east of the American Basin and south of the other two groups of damaged properties. Strawberry Manor lies within the geographical territory of ARFCD and is adjacent to Arcade Creek and Rio Linda Boulevard.

The public improvements which caused the damage in this case are part of the Sacramento River Flood Control Project (SRFCP). The portions of the SRFCP at issue protect the lower-lying lands to the west and south of plaintiffs' properties, including the American Basin and downtown Sacramento. Levees and the Natomas East Main Drain (NEMD), an artificially-created canal running north to south along the east border of the American Basin, protect the American Basin by diverting surface and stream waters that flow from the east. These public works prevent the flow from entering the American Basin. The diverted waters flow either south in the NEMD into the American River, or north into the artificially-created Natomas Cross Canal (the Cross Canal), which carries the water west to the Sacramento River.

Running along the west side of the NEMD is a "back levee" (which is also called the "east levee" because it borders the east side of RD 1000). Running along the east side of the NEMD are railroad levees with numerous openings that allow water from the east to drain downhill to the west.

The genesis of the public works dates back to 1911, when the state adopted a California Debris Commission Report (the Jackson Report), which provided for the construction of levees along the Sacramento and American Rivers and their tributaries to protect and reclaim the adjacent areas.

RD 1000 was created in 1911 by the state Legislature for the purpose of reclaiming the land of the American Basin and to prevent further flooding of that land. In 1916, RD 1000 designed and constructed the NEMD and back levee. RD 1000, together with another reclamation district to its immediate north, also built the Cross Canal. RD 1000 is thus bounded on the west by the Sacramento River, on the north by the Cross Canal, on the east by the back levee and NEMD, and on the south by the American River. The purpose of the NEMD and back levee was to reclaim land of the American Basin located within RD 1000 by collecting stream and surface waters flowing from the east and diverting those waters into the NEMD. The back levee diverted Dry Creek, Arcade Creek, and other streams from their natural course, obstructing the normal passage of those streams into the American Basin and raising water levels east of the back levee. The NEMD then carried the diverted waters south to the American River and north to the Cross Canal, which in turn carried water west to the Sacramento River. As found by the trial court, the natural drainage was dammed and diverted by the combined effects of the project.

Studies and reports from that time period recognized that the public works created a risk of flooding upstream property to the east under certain circumstances.

In 1927 the state Legislature created the ARFCD, whose territory lies to the east of the NEMD, to protect lands in the cities of Sacramento and North Sacramento and their environs. In 1935, levees were constructed along both sides of the American River and the south side of Arcade Creek.

In the 1950's, the United States Corps of Engineers began constructing a system of integrated flood control facilities in the Sacramento region (SRFCP), including levees in ARFCD's area. The existing works were incorporated into this system.

In 1953, the SRFCP works were transferred to the state. A memorandum of understanding confirmed the state's obligation to operate and maintain all completed works of the SRFCP and to hold the federal government harmless. The state turned the levees over to the local districts for maintenance and operation but maintained responsibility for the project.

One of the levees in ARFCD's territory has a gap where the Rio Linda Bridge crosses Arcade Creek. Defendants had no set plan to close that gap at high flood stages.

By 1956, the Corps of Engineers completed construction of Folsom Dam (which is operated by the United States Bureau of Reclamation), along with additional levees on the American River below the dam. These levees were then turned over to the State of California and accepted by the state for maintenance and operation. The levees were constructed to protect and reclaim low lands of the City of Sacramento and its suburbs, which were then extensively developed as residential areas.

Also in 1956, the state asked the Corps of Engineers to assume responsibility for the entire east side of the NEMD because of the perceived risk to lands to the east. The Corps of Engineers refused.

In February 1986, during unusually heavy storm conditions, when...