Beckley v. Reclamation Bd. of State

• Citation: 23 Cal.Rptr. 428,205 Cal.App.2d 734
• Parties: Clara L. BECKLEY, Administratrix of the Estate of Frank M. Beckley, Deceased, Plaintiff and Appellant, v. The RECLAMATION BOARD OF the STATE of California et al., Defendants and Respondents. C. F. SEAVER and Emma F. Seaver, Plaintiffs and Appellants, v. The RECLAMATION BOARD OF the STATE of California et al., Defendants and Respondents. D. W. GEORGE and Helen May Forry, Plaintiffs and Appellants, v. The RECLAMATION BOARD OF the STATE of California et al., Defendants and Respondents. Katherine Frances ERISEY, Plaintiff and Appellant, v. The RECLAMATION BOARD OF the STATE of California et al., Defendants and Respondents. Civ. 10133.
• Decision Date: 20 July 1962
• Court: California Court of Appeals

Page 428

23 Cal.Rptr. 428

205 Cal.App.2d 734

Clara L. BECKLEY, Administratrix of the Estate of Frank M. Beckley, Deceased, Plaintiff and Appellant, v. The RECLAMATION BOARD OF the STATE of California et al., Defendants and Respondents.

C. F. SEAVER and Emma F. Seaver, Plaintiffs and Appellants, v. The RECLAMATION BOARD OF the STATE of California et al., Defendants and Respondents.

D. W. GEORGE and Helen May Forry, Plaintiffs and Appellants, v. The RECLAMATION BOARD OF the STATE of California et al., Defendants and Respondents.

Katherine Frances ERISEY, Plaintiff and Appellant, v. The RECLAMATION BOARD OF the STATE of California et al., Defendants and Respondents.

Civ. 10133.

District Court of Appeal, Third District, California.

July 20, 1962.

Rehearing Denied Aug. 17, 1962.

Hearing Denied Sept. 11, 1962.

Desmond & Miller, by E. Vayne Miller, Sacramento, for appellants.

Stanley Mosk, Atty. Gen., by Walter S. Rountree and Willard A. Shank, Deputy Atty. Gen., Sacramento, for respondents.

PIERCE, Justice.

These are appeals, in four consolidated inverse condemnation actions, from judgments of dismissal following the sustaining of demurrers without leave to amend.

A whole generation has grown up since the origin of this controversy, initiated by the filing of claims by the four landowners with respondent Board and the Board of Control in 1944. These claims were not acted on for three years. Then they were denied and in 1947 original complaints were filed. Amended complaints were filed in September 1952. (Unexplained is the inertia between 1947 and 1952.) Respondents demurred and the demurrers were sustained without leave to amend. Judgments were entered June 4, 1953. On denial of motions to vacate the judgments (upon grounds not here material) appeals were taken resulting in reversal of the orders by the Supreme Court. (Beckley v. Reclamation Board, 48 Cal.2d 710, 312 P.2d 1098.) Amendments were then filed; demurrers were again sustained. New judgments of dismissal were entered on May 17, 1960 and these appeals followed. They have been consolidated for hearing, with the record in the Beckley case to be used as the basis of the appeals.

The only question is whether the complaints plaints state a cause of action in inverse condemnation under Article I, section 14 of the California Constitution.

The complaints plead that the lands of the plaintiffs are located downstream on the Sacramento River from the point of a spillway known as Moulton Weir, which from is approximately 13 miles upstream from the City of Colusa. The Beckley lands are 4 miles downstream from the weir. These are the southermost of the four parcels involved, all of which are in close proximity. All of the lands affected lie between the presently-constructed river levees (on opposite sides of the river) and the thread of the stream. In other words, they are along the river banks and are unprotected by levees.

The Beckley and Forry lands are on the east side of the river, the Erisey and Seaver lands are on the west side. Perhaps a clearer understanding of the controversy can be had when it is explained that more than an ordinary berm separates the river levees from the stream in this area, particularly in the case of the Forry and Beckley lands which lie in separate horseshoe-shaped bends of the river, with the levee running along the neck of the horseshoe, leaving large acreages (comparable in size to the entire City of Colusa) outside the levees and thus in an overflow area whenever the river rises above its natural banks.

It is alleged that commencing about 75 years prior to the adoption of the Sacramento River Flood Control Project by the state, the 'farmer-landowners' of the vicinity had constructed, with nature's aid, their own 'flood control system.' This consisted of the utilization of banks of the river naturally raised by alluvial deposits; and these banks were raised in elevation by the landowners themselves. Thereafter the lands were continuously maintained at their increased elevations all along both the east and west sides of the river on its course through Colusa County. It is further alleged that these raised banks came to the 'fixed, permanent, natural banks of the Sacramento River.' Also as a part of the system, these landowners are alleged to have provided an opening in the east bank of the river at a point known as the 'Old Moulton Break' located about four miles north of the Beckley property. It is said that this opening 'relieved the capacity of the stream of the Sacramento River at a certain flood stage by allowing natural stream waters from the natural channel of the Sacramento River to pass into another and secondary natural channel of the Sacramento River and thence through a natural channel in Butte Basin and thence onward and into the sea.' It is alleged that 'this flood control system was adequate and did at all times protect the afore-described lands of plaintiff from the natural stream waters of the Sacramento River at flood stage and no damage had occurred to plaintiff's lands by the waters of the Sacramento River prior to the construction by defendants of the Sacramento River Flood Control Project.'

It is then alleged that the Sacramento and San Joaquin Drainage District, managed by the State Reclamation Board, formulated in 1925, and thereafter executed, a plan which destroyed and eliminated the old farmer-landowner flood control system and substituted therefor a new flood control system comprising a new system of river levees on both the east and west sides of the river commencing at Ord's Ferry in Bette County and running through the whole of Colusa County. Also as a part of said works two artificial weirs were planned and built, one approximately at the opening in the east levee described above, a fixed crest spillway, called the Moulton Weir, which 'closed the opening' to the height of the weir crest, the other, the Colusa Weir, located in the east levee about 2 miles north of Colusa. The complaint alleges that this new 'flood control system would have the effect of creating a new artificial channel for the Sacramento River both upstream and downstream, of plaintiff's property and would completely change the regimen of the stream.' It is further alleged that this new system was planned and constructed 'in a grossly incompetent manner and contrary to good engineering practices;' that the works failed to make the artificial river channel of sufficient size to accommodate the augmented volume of waters, and they failed to construct the Moulton Weir of sufficient capacity to 'accommodate natural waters of the Sacramento River in flood season.' The result alleged to have accrued to plaintiffs is that the 'waters, did for the first time in the history of Colusa County, overflow onto and inundate plaintiff's lands to the extent that they were caused serious and permanent damage.' It is further alleged that no damage was occasioned the lands of plaintiffs until within two years of 1944 when their claims were filed.

It is the theory of the Attorney General, representing defendants, that however clearly plaintiffs may have pleaded otherwise, this court must take judicial notice that all of the waters which are here alleged to have damaged plaintiffs are in fact 'flood waters.' From this they syllogize that being flood waters they are the 'common enemy' which any private owner may repel even though the effect of the repulsion be to shunt the waters onto his neighbor; that any attendant damage is damnum absque injuria. Then they invoke the rule that what the private individual may do without liability the state may do, and they reach the conclusion that the state, therefore, is not liable. We feel that defendants oversimplify the problem and by such oversimplification reach an unjustified conclusion.

The history and general features of the Sacramento River Flood Control Project have been given full exposition in earlier decisions. (See: Gray v. Reclamation District No. 1500, 174 Cal. 622, 163 P. 1024; Miller & Lux, Inc. v. Sacramento & San Joaquin Drainage Dist., 182 Cal. 252, 254-256, 187 P. 1041; In re Sutter-Butte By-Pass Assessment No. 6, 191 Cal. 650, 655- 660, 218 P. 27; Reclamation District No. 1500 v. Riley, 192 Cal. 147, 150-152, 218 P. 762; Sacramento, etc., Drainage Dist. v. Johnson, 192 Cal. 211, 216-218, 219 P. 442; American River Flood Control District v. Sweet, 214 Cal. 778, 781-782, 7 P.2d 1030; Clement v. State Reclamation Board, 35 Cal.2d 628, 632-633, 220 P.2d 897.)

The Gray case, supra, contains an excellent statement (by the author of the opinion, Justice Henshaw) of geological and topographical conditions on the Sacramento River and its tributaries, in a state of nature, the early history of hydraulic mining, farming and reclamation in the valley as related to problems of flood control and an outline of the original flood control plan. The opinion decribes the silt-saturated river entering the valley, with the high gradient and velocity of flow arrested as the river meets the valley floor and the resultant gradual depositing of materials and building up of banks as flood waters 'passed over them in slowmoving sheets.' And it shows the rivers moving 'along the center of ridges of their own construction.' It describes the low-lying river basins beyond the higher banks and points out that while the height of the banks prevented the flooding of the lands along them, except during extremely wet years, the low-lying lands in the basins beyond experienced regularly-recurring annual floods from waters pouring into them 'in low places and breaks through the banks, known as sloughs,' with well-defined channels feathering out 'into nothingness as the sloughs poured their waters into the vast flat area of the basins' low lands.'

Having described the river in a state of nature, the opinion then recounts the increase in sedimentation in the river due to hydraulic mining and to the loosening of...