City of San Diego v. Sloane
| Decision Date | 08 May 1969 |
| Citation | 272 Cal.App.2d 663,77 Cal.Rptr. 620 |
| Parties | The CITY OF SAN DIEGO, a municipal corporation, Plaintiff and Respondent, v. Paul E. SLOANE, Defendant and Appellant. Joseph F. Sinnott, Edgar L. Sinnott, John Sinnott, Jr., Edgar A. Luce, Jr., Gordon C. Luce and Sylvia Heitzmann, Defendants. Civ. 8600. |
| Court | California Court of Appeals Court of Appeals |
*
The City of San Diego initiated this action in eminent domain to acquire title to 8.56 acres of land which lie in and south of the San Diego River bed in the Mission Gorge region of San Diego County. The 8.56 acres, sought to be condemned, are a part of a larger parcel of land consisting of approximately 83 acres belonging to the same owners. A portion of the land to be taken (4.75 acres) lies in the southerly half of the riverbed, extending approximately 1,900 feet along the course of the river at an average width of 132 feet. The City of San Diego owns the northerly half of the riverbed, and the common line dividing the two properties near the center of the river is also the city limit of the City of San Diego. Crossing the riverbed, half on land already owned by the City and half on the land sought to be taken, is the old Padre Mission Dam. This dam was built in the early 1800's and is now an historical landmark. It stands approximately seven feet above the riverbed and is 106 feet in length. Throughout the year, at least some water flows over a breach near the top of the dam. At times, a significant volume of water flows over the dam, down the river, and on into the sea some 15 miles away.
All of defendants' land, that is, the entire 83 acres, is within the watershed of the San Diego River. Prior to the taking of the 8.56 acres, all of defendants' land was riparian to the river. The effect of the taking of the 8.56 acres is to separate the remaining portion of defendants' land from the river so that it is no longer riparian land (Hudson v. Dailey, 156 Cal. 617, 624, 105 P. 748).
After trial in the superior court, a jury found the market value of the land taken to be $10,000, and further found that there was no severance damage to the remaining portion of the defendants' land. This verdict was incorporated into findings of fact, conclusions of law, judgment and final order of condemnation, all of which were signed by the trial court. Paul E. Sloane, one of the owners of the land, appeals from the entire judgment.
The main issue presented on appeal centers upon defendants' water rights as owners of land riparian to the San Diego River, and how these rights are to be treated in a condemnation action brought by the City of San Diego. Throughout the trial of this case, the City was successful in preventing defendants from introducing any evidence concerning the water rights riparian to their land. At the City's urging no testimony was allowed as to what effect these rights might have on the market value of the land taken, and all instructions submitted by the defendants with respect to such rights were rejected and not given. Similarly, on the question of severance damage, neither the jury nor any witness was permitted to consider that the effect of the condemnation was to separate defendants' remaining land from the river, extinguishing any riparian rights that had theretofore existed in that land. The City consistently takes this same position on appeal, stating in its brief, '* * * the trial court properly excluded all evidence proffered by appellant relating to his so-called secondary rights to the river waters, which purported rights are non-existent in this case since the City of San Diego appropriated all the land and waters in question for its municipal purpose.'
The City bases its position that defendants' 'so-called secondary rights' are non-existent on two cases, bearing the same titles, decided by the California Supreme Court on the same day: City of San Diego v. Cuyamaca Water Co., 209 Cal. 105, 287 P. 475; and City of San Diego v. Cuyamaca Water Co., 209 Cal. 152, 287 P. 496. We believe the City's reliance on these two cases to establish the proposition of law urged in the trial court and now on appeal is misplaced.
The first Cuyamaca case was brought by the City of San Diego to establish its prior and paramount right to the waters of the San Diego River as the successor to all the right in those waters possessed by the Pueblo of San Diego under Spanish and Mexican law. The action was declaratory only. The defendants in that action were owners of land riparian to the San Diego River in the area where the City's El Capitan Dam now stands. After a lengthy trial, a final judgment was entered and an appeal was taken to the Supreme Court. That court basically approved the trial court's findings, but modified the judgment to read in pertinent part:
'It is adjudged, ordered, and decreed that the plaintiff, the city of San Diego, was at the time of the commencement of this action and now is the owner in fee simple of the prior and paramount right to the use of all the water (surface and underground) of the San Diego River, including its tributaries, from its source to its mouth, for the use of said the city of San Diego and of its inhabitants, for all purposes, and that said defendants, and each of said defendants, said cross-complainants, and each of said cross-complainants, and said interveners, and each of said interveners, have not, and no one or more of them have, any estate, right, title, or interest in or to said waters, or any part thereof, or in or to the use of the same, or any right to take or use said waters, or any part thereof, save in subordination and subject to said prior and paramount right of the plaintiff, the city of San Diego, and that the plaintiff is entitled to no other or further relief herein than that afforded by the remedy of the declaratory judgment above set forth.' (City of San Diego v. Cuyamaca Water Co., 209 Cal. 105, 151, 287 P. 475, 496.)
The effect of the first Cuyamaca case is to establish as law the prior and paramount right of the City of San Diego to the surface and underground waters of the San Diego River. But the right of riparian owners is not extinguished. While their right is subordinate and subject to the City's prior and paramount right, they may use the waters of the river not needed or used by the City. (City of L.A. v. City of Glendale, 23 Cal.2d 68, 75, 79, 142 P.2d 289.) Appellant in this action concedes the prior and paramount right of the City, but maintains that his land had subordinate rights which enhanced the value and which should have been given consideration in the condemnation action.
The second Cuyamaca case again involved the City of San Diego and owners of land riparian to the San Diego River. In that case, the City of San Diego sought to condemn 200 acres of land for the purpose of building El Capitan Reservoir so that it could assert and use for the benefit and need of the City of San Diego and its inhabitants the waters of the San Diego River to which the earlier Cuyamaca case had adjudicated its prior and paramount right. It is of some importance, we think, that this condemnation action was instituted pursuant to a formal resolution of the governing body of the City declaring the need and necessity of the City to the waters involved and to the land sought to be condemned for the purpose of constructing a retaining dam, (City of San Diego v. Cuyamaca Water Co., Supra, 209 Cal. 152, 165, 287 P. 496.) In that action, the trial court specifically found that the need of the City of San Diego for such water existed and that the condemnation of the land was necessary so that the City could exercise its prior and paramount right to the use of the waters involved. (City of San Diego v. Cuyamaca Water Co., Supra, 209 Cal. 152, 165, 287 P. 496.)
In the second Cuyamaca case, the owners of the land sought to be taken vigorously opposed the City of San Diego's right to condemn their lands. Insofar as is pertinent to the instant case, that was the only controversy presented to the Supreme Court on appeal and it was disposed of by the court in these words:
'In view of the law, as heretofore declared, and again...
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