Bauer v. Ventura County

• Decision Date: 21 October 1955
• Citation: 289 P.2d 1,45 Cal.2d 276
• Court: California Supreme Court
• Parties: F. Lohr BAUER and Elizabeth Bauer, Plaintiffs and Appellants, v. COUNTY OF VENTURA, Saticoy Storm Drain Maintenance District of the County of Ventura, Board of Supervisors of the County of Ventura, Edward S. Pierce, Robert W. Lefever, R. E. Barrett, L. A. Price, Edwin L. Carty, John Doe, Jane Doe, and John Doe Company, Defendants and Respondents. L. A. 23362.

Page 1

289 P.2d 1

45 Cal.2d 276

F. Lohr BAUER and Elizabeth Bauer, Plaintiffs and Appellants, v. COUNTY OF VENTURA, Saticoy Storm Drain Maintenance District of the County of Ventura, Board of Supervisors of the County of Ventura, Edward S. Pierce, Robert W. Lefever, R. E. Barrett, L. A. Price, Edwin L. Carty, John Doe, Jane Doe, and John Doe Company, Defendants and Respondents.

L. A. 23362.

Supreme Court of California, In Bank.

Oct. 21, 1955.

Rehearing Denied Nov. 16, 1955.

William T. Selby, Ventura, for appellants.

Roy A. Gustafson, Dist. Atty., Bruce A. Thompson, Deputy Dist. Atty., Ventura, and Harry E. Sackett, Los Angeles, for respondents.

SHENK, Presiding Justice.

This is an appeal from a judgment of dismissal in an action to recover damages resulting from the alleged wrongful inundation of the property of the plaintiffs, Mr. and Mrs. Bauer. They own real property located in the vicinity of a watercourse and storm drainage system controlled by the defendants in Ventura County. On Mrach 15, 1952 the waters contained in the defendants' storm drain ditch overflowed upon and damaged plaintiffs' land. Principally upon the theories of inverse condemnation and the tort liability of the defendants, the plaintiffs commenced this action to recover the resulting damages.

The trial court's judgment of dismissal was based upon its orders sustaining demurrers of each defendant to the amended complaint. General and special demurrers of the County were sustained with leave to amend within ten days. The plaintiffs having failed to amend within that time, the action was dismissed as against the County. General demurrers of the Saticoy Storm Drain Maintenance District and the individual members of the County Board of Supervisors were sustained without leave to amend.

The plaintiffs allege that in 1939 the County and District built a system of ditches and levees diverting the waters of the Franklin Barranca, a natural watercourse, away from their natural stream. In its natural course the stream flowed in a direction away from the plaintiffs' land at an approximate distance of one quarter of a mile. The plaintiffs' land and the intervening tract between it and the barranca sloped downward. Because the barranca in its natural state was lower than the plaintiffs' land, the natural overflow, if any, would flow away from and never towards the plaintiffs' land. This was also the case with the ditches. Since, from the viewpoint of the plaintiffs' tract, the far side of the ditch was lower than the level of the plaintiffs' land, any overflow from the ditch would flow downward and away. Then, from 1950 to March 15, 1952, the lower bank at the far side of the ditch was raised by the defendants who placed thereon a quantity of debris and soil which had accumulated in the bottom of the ditch. A pipe was placed across the ditch in such a way that the water flow was obstructed. With the lower bank of the ditch thus raised, its highest points were above the level of the plaintiffs' land. No bank or levee was constructed upon the bank nearest the plaintiffs which would keep the waters in the ditch or continue to permit them to overflow only in a direction away from the plaintiffs' land.

The complaint alleges that as the proximate result of this dangerous and defective condition, the negligent construction, the maintenance and condition of the ditch, the obstructions therein and the acts of the defendants in constructing the ditch, banks and levees, water overflowed onto and damaged plaintiffs' property. Plaintiffs' claim filed with the County was denied. They have received no compensation for the taking and damaging of their property for such public use. They further allege that the work described was done by and under the control of the defendants County and District, and from 1950 to 1952 the work was at all times under the direct supervision of the defendant members of the Board of Supervisors.

The plaintiffs contend that these allegations, assumed to be true for the purpose of considering the demurrers, state a cause of action.

California Constitution Article 1, section 14 provides: 'Private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for, the owner * * *.' The taking of private property by the state for a public use is universally recognized as one of the indisputable attributes of sovereignty. Moran v. Ross, 79 Cal. 159, 21 P. 547; Gilmer v. Lime Point, 18 Cal.229. But the state must, except under special circumstances not here present, follow the constitutional procedure which requires the payment of compensation before the private owner is dispossessed of his property. When this requirement is not fully satisfied, an action will lie against the state to recover the value of the property so taken. Bacich v. Board of Control, 23 Cal.2d 343, 144 P.2d 818; Rose v. California, 19 Cal.2d 713, 123 P.2d 505. Based upon section 14, the appropriate action is sometimes designated a proceeding in inverse condemnation.

Section 14, however, is designed not to create new causes of action but only to give the private property owner a remedy he would not otherwise have against the state for the unlawful dispossession, desstruction or damage of his property. The state is therefore not liable under this provision for property damage that is damnum absque injuria. If the property owner would have no cause of action against a private citizen on the same facts, he can have no claim for compensation against the state under section 14. Clement v. State Reclamation Board, 35 Cal.2d 628, 220 P.2d 897; House v. Los Angeles County Flood Control Dist., 25 Cal.2d 384, 153 P.2d 950; Archer v. City of Los Angeles, 19 Cal.2d 19, 119 P.2d 1; San Gabriel Valley Country Club v. County of Los Angeles, 182 Cal. 392, 188 P. 554, 9 A.L.R. 1200; Lamb v. Reclamation Dist. No. 108, 73 Cal. 125, 14 P. 625. The effect of section 14 is to waive the immunity of the state where property is taken or damaged for public purposes. To bring his complaint within the provision, the plaintiff must show not only a taking or damaging for a public use but also that it is actionable under the general law.

It is well established that the diversion of water from its natural course resulting in damage to adjacent property is actionable. Clement v. State Reclamation Board, supra, 35 Cal.2d 628, 220 P.2d 897; House v. Los Angeles County Flood Control District, supra, 25 Cal.2d 384, 153 P.2d 950; Pacific Seaside Home for Children v. Newport Protection District, 190 Cal. 544, 213 P. 967; Elliott v. County of Los Angeles, 183 Cal. 472, 191 P. 899; Smith v. City of Los Angeles, 66 Cal.App.2d 562, 153 P.2d 69; see Powers Farms v. Consolidated Irr. Dist., 19 Cal.2d 123, 119 P.2d 717; Massetti v. Madera Canal & Irr. Co., 20 Cal.App.2d 708, 68 P.2d 260; Tormey v. Anderson-Cottonwood Irr. Dist., 53 Cal.App. 559, 200 P. 814. Mere improvement within an existing watercourse which accelerates rather than diverts the flow does not give rise to a cause of action when damage results from an overflow. Straightening, widening or deepening the channel of a stream to improve the drainage or the collection of surface waters for discharge into their natural stream entails no diversion in the event of a resulting overflow. But to escape liability the improvements thus described must follow the natural drainage of the country or the natural stream. Archer v. City of Los Angeles, supra; San Gabriel Valley Country Club v. County of Los Angeles, supra. In the present case, the plaintiffs' allegations show that the waters of the barranca were diverted away from their natural stream into a ditch running close to the plaintiffs' land, and then permitted to overflow and back up in a direction exactly opposite from their natural flow.

The defendants contend that the damage resulting from negligent maintenance rather than the original construction of a public improvement is beyond the scope of protection offered by section 14. They point to the plaintiffs' allegations that the County and District negligently and carelessly permitted the bank of the ditch to be raised on the far side, permitted obstructions to be placed in the ditch, and allowed debris and stumps to collect and be placed therein. This, it is argued, is negligent maintenance and a consequential property loss is not an express taking or damaging for a public use.

'Public use' within the meaning of section 14 is defined as a use which concerns the whole community or promotes the general interest in its relation to any legitimate object of government. Gilmer v. Lime Point, supra, 18 Cal. 229. To make a use public in character, a duty must fall on the person or corporation holding the property appropriated by eminent domain to furnish the public with the use intended and the public must be entitled to use or enjoy the property taken. Gravelly Ford Canal Co. v. Pope & Talbot Land Co., 36 Cal.App. 556, 178 P. 150; see Thayer v. California Development Co., 164 Cal. 117, 125 P. 21. Hence it is clear that the ordinary taking of private property for the purpose of constructing storm drainage systems is a taking for a public use. The reasons for such a taking are obviously to provide adequate normal drainage, to control flood waters and to provide irrigation waters. The public becomes principally entitled to the use and enjoyment of the private property taken for such purposes.

The drainage system in the present case was constructed pursuant to the Storm Drain Maintenance District Act, Stats.1937, Ch. 265, p. 566, amended by Stats.1949, Ch. 496, p. 854; Stats.1953, Ch. 546, § 1, p. 1805; Water Code, Uncodified Acts, Act 2208, p. 179, which enables County Boards of Supervisors to create and govern a storm drainage maintenance district whenever the maintenance of storm drainage improvements or other watercourses or drainage channels within a territory is not otherwise...