Bellman v. County of Contra Costa
| Decision Date | 18 December 1959 |
| Citation | 1 Cal.Rptr. 355 |
| Court | California Court of Appeals Court of Appeals |
| Parties | R. Arthur BELLMAN, as Administrator of the Estate of Bernard R. Maybeck, deceased, and R. Arthur Bellman, as Executor of the Estate of Annie White Maybeck, Deceased, Plaintiffs and Appellants, v. COUNTY OF CONTRA COSTA, Victor W. Sauer, Director of Public Works and Road Commissioner of the County of Contra Costa, Defendants and Respondents. Civ. 18394. |
R. Arthur Bellman, Berkeley, for appellants and in pro. per.
Carlson, Collins, Gordon & Bold, Dean S. Ormsby, Martinez, for respondents.
Since the one year limitation of Government Code sections 29702 and 29704 applies to claims for damages in inverse condemnation, and since appellants filed no such claim until February 5, 1957, appellants cannot recover damages caused by subsidence resulting from respondent county's destruction of lateral support which occurred prior to February 5, 1956.
Bernard and Annie Maybeck owned real property contiguous to a county road. From August to December of 1952 respondent county widened its road, which necessitated cutting laterally into the adjoining land from nine to 27 feet and excavating to a 10 to 15 foot depth. Respondent claimed the cut was on county land; appellants contended that it was on a county-held easement.
Two slides, adversely affecting appellants' property, occurred. The first took place in the rainy season of 1952-53; the second and more serious in 1955. Prior to February 1955, Mrs. Gannon, the daughter of the Maybecks, observed that the dirt extended 'two-thirds of the way across the road.' The cause of the slide, according to civil engineer Swafford, expert in the field of drainage, lay in the removal of lateral support in the widening of the road. Although the county first erected a retaining bin wall and later installed hydrauger pipes, the wall itself is 'rolling slowly towards the street' and the slide at the time of trial continued. The prohibitive cost of approximately $14,000 to erect an effective retaining wall destroys the market value of the property in its present condition.
On February 5, 1957, appellants filed with the County Board of Supervisors their claim for damages; on February 13, 1957, the Board rejected the claim. Appellants filed this action on March 12, 1957. Because of appellants' failure, prior to February 5, 1957, to present the claim to the County Board of Supervisors, pursuant to sections 29702 and 29704 of the Government Code, the trial court granted respondents' motion for nonsuit. Appellant Bellman, as administrator of the Estate of Bernard Maybeck, and as executor of the Estate of Annie Maybeck, appeals from the judgment.
We first consider the crucial issue of whether the statutory filing is required in a case of inverse possession for damages. Two decisions of the District Court of Appeal illuminate this problem; despite appellants' contention that they have been impliedly overruled by the Supreme Court, we shall point out that they still state the applicable rule.
Government Code sections 29702 and 29704 frame the conditions precedent to a claim against a county. Section 29704 reads in part: 'Any claim against the county * * * payable out of any public fund under the control of the board, whether founded upon contract, express or implied, or upon any act or omission of the county * * * shall be presented to the board before any suit may be brought thereon.' Section 29702 provides: 'A claim shall be filed within a year after the last item accrued.'
The predecessor provisions to these sections, section 4075 of the Political Code, read in part: The similarity between this section 4075 and sections 29702 and 29704 of the present Government Code renders this court's prior analysis of section 4075 most persuasive.
This court, in a decision written by Justice Peters, in Veterans' Welfare Board v. City of Oakland, 1946, 74 Cal.App.2d 818, 169 P.2d 1000, held that section 4075 applied to suits of inverse condemnation against a county. In that case in August, 1935, the counties of Alameda and Contra Costa, among other defendants, while engaged in the construction of a tunnel between the two counties, excavated land adjoining plaintiffs' property. The property first suffered damage on March 5, 1940, when it commenced to slide into the excavation. On October 20, 1941, and May 14, 1943, plaintiffs filed their original and first amended complaint, respectively, on the theory that defendants had destroyed their lateral support. Defendants demurred to the first amended complaint because of plaintiffs' failure to allege a timely filing of their claim with defendant counties. Plaintiffs moved to file a second amended complaint prior to the hearing of the demurrer. Sustaining the demurrers the court granted leave to amend but simultaneously denied the motion to file the second amended complaint; plaintiff refused to amend other than as proposed in the second amended complaint, and judgment for defendants followed.
In affirming the trial court as to the defendant counties, this court stated: 'The second count of the first amended complaint * * * is based upon the theory that defendants' acts amounted to a taking and damaging of plaintiffs' property without payment of compensation and without due process.' (74 Cal.App.2d at page 825, 169 P.2d at page 1005.) (74 Cal.App.2d at pages 827-828, 169 P.2d at page 1007.)
Rhoda v. County of Alameda, 1933, 134 Cal.App. 726, 26 P.2d 691, is another and earlier decision which takes the same position. Here plaintiffs sued for damages to property 'in the city of Alameda by reason of the removal of the Webster street bridge across the Oakland estuary and the substitution of a tube under said estuary * * *.' (134 Cal.App. at page 728, 26 P.2d at page 692.) Plaintiffs filed no claim under sections 4075 or 4078 of the Political Code. The court said the section 'is broad enough to require the presentation of a claim for the damages herein sued for as a condition precedent to suit.' (134 Cal.App. at page 734, 26 P.2d at page 695.)
Although we have been somewhat troubled by the language of the Supreme Court in Wilson v. Beville, 1957, 47 Cal.2d 852, 306 P.2d 789, we have concluded that the case does not overrule these previous decisions on the point involved here. It does clearly establish the preemptive domain of the limitation statutes of the state over those of city charter provisions in cases of inverse condemnation. There the City of Los Angeles by virtue of an eminent domain action acquired an easement across certain land for a public street; the city thereupon took possession of this land. The city, however, failed to join plaintiff who had acquired a lien on the property prior to the time the city filed its action of condemnation. Plaintiff subsequently acquired title to the property by virtue of his lien, but the trial court held the property subject to the easement. On appeal plaintiff contended that the easement did not encumber his land but that, if it did, he should be compensated under the doctrine of inverse condemnation.
The court held the filing requirements of the City Charter invalid on the bases of preemption of the field by the State and of equal protection of the laws. In sustaining plaintiff's claim for compensation the Supreme Court stated: (47 Cal.2d at page 862, 306 P.2d at page 794.)
The statement in the opinion that inverse condemnation 'is still an eminent domain proceeding and claims are not necessary in such proceedings.' (47 Cal.2d at page 862, 306 P.2d at page 795) prompts the question asked by Van Alstyne in 'Claims Against Public Entities: Chaos in California Law' (1959), 6 U.C.L.A. Law Rev. 205-268, at 236, ...
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