Clay v. City of Los Angeles

• Decision Date: 29 November 1971
• Citation: 98 Cal.Rptr. 582,21 Cal.App.3d 577
• Court: California Court of Appeals Court of Appeals
• Parties: John E. CLAY and Helen P. Clay, Plaintiffs and Appellants, v. CITY OF LOS ANGELES, Defendant and Respondent. Civ. 38139.

Page 582

98 Cal.Rptr. 582

21 Cal.App.3d 577

John E. CLAY and Helen P. Clay, Plaintiffs and Appellants, v. CITY OF LOS ANGELES, Defendant and Respondent.

Civ. 38139.

Court of Appeal, Second District, Division 2, California.

Nov. 29, 1971.

Hearing Denied Feb. 10, 1972.

Hackett & Hubbard, and Monta W. Shirley, Los Angeles, for plaintiffs and appellants.

Roger Arnebergh, City Atty., Peyton H. Moore, Jr., Asst. City Atty., Leslie R. Pinchuk, Deputy City Atty., for defendant and respondent.

COMPTON, Associate Justice.

Is a homeowner entitled to redress in the courts for the failure of a municipality to take any action by way of either restoring, or vacating with just compensation to the homeowner, a city street which has been washed out by flood, when the circumstances are such that the homeowner's property has been rendered totally inaccessible?

Plaintiffs Mr. and Mrs. Clay (hereinafter plaintiffs) claim that they are entitled to such redress and attempted to assert their claim by filing a complaint for damages against the City of Los Angeles (hereinafter defendant), an action which is essentially grounded on the theory of inverse condemnation.

The question is before us on an appeal by plaintiffs from the sustaining of a general demurrer.

Thus the following facts gleaned from the complaint are deemed to be true.

Plaintiffs for many years prior to January 25, 1969, have been owners and occupants of property abutting a street known as Revello Drive, which street was dedicated to the defendant and has been maintained as such for more than forty years. Plaintiffs' property known as 17480 Revello Drive is legally described and recorded in the Los Angeles County Recorder's office.

The street and the property are situated in hilly terrain. In January 1969, Revello Drive through no fault of defendant was damaged by a prolonged rainstorm and since January 25, 1969, all street access to plaintiffs' home has been completely cut off. Plaintiffs have been required in going to and from their home to traverse neighboring private property on foot for a distance of 300 feet over a dangerous, unpaved slope. It has, since that date, been impossible for any motor vehicle to be driven nearer than four hundred feet from plaintiffs' home.

Demands were made upon the defendant to provide access for the plaintiffs by way of suitable restoration of Revello Drive. Defendant has refused to do so.

On November 20, 1969, and within one year after the flood damage, plaintiffs duly presented to the defendant their written claim for damages in the amount of $75,000 for loss of value of the real property, plus $100.00 per day from January 25, 1969 for the loss of use and enjoyment thereof. On January 14, 1971, defendant rejected the claim. Nothing more has been done save the filing of this action.

Simply stated the defendant's position is that plaintiffs' loss of access is not the result of any affirmative act by defendant, the flood and resultant washout of the road being an act of God, and that the repair and maintenance of the street is a matter of governmental discretion, a discretion which it is properly exercising in choosing not to repair the street. Thus defendant asserts that it is not accountable in damages because it did not cause the loss of access nor has it breached any duty owing to plaintiffs in failing to restore it.

Plaintiffs recognize defendant's discretion but contend that defendant is abusing that discretion when it refuses to either restore the access or pursue the other option available to it, that of vacating the street under appropriate statutory procedure. The exercise of this latter option would presumptively permit plaintiffs to recover just compensation for this loss of access.

The rights of a landowner whose property abuts on a public street have been discussed in many California cases covering a span of time from the post Civil War era to the present. No case has given a more definitive treatment to the subject than Bacich v. Board of Control, 23 Cal.2d 343, 144 P.2d 818. At pages 349--350, 144 P.2d at page 823 therein it is stated, 'The property right of access generally is firmly established. It has long been recognized in this state and elsewhere that an owner of property abutting upon a public street has a property right in the nature of an easement in the street which is appurtenant to his abutting property and which is his private right, as distinguished from his right as a member of the public. That right has been described as an easement of ingress and egress to and from his property or, generally, the right of access over the street to and from his property, and compensation must be given for an impairment thereof.' (See Rose v. State of California, 19 Cal.2d 713, 123 P.2d 505; Eachus v. Los Angeles, etc., Ry. Co., 103 Cal. 614, 37 P. 750; People ex rel. Dept. Public Works v. Lipari, 213 Cal.App.2d 485, at 489, 28 Cal.Rptr. 808; Brown v. Board of Supervisors, 124 Cal. 274, 57 P. 82; Lane v. San Diego Elec. Ry. Co., 208 Cal. 29, at 33, 280 P. 109; and Breidert v. Southern Pac. Co., 61 Cal.2d 659, 39 Cal.Rptr. 903, 394 P.2d 719.)

In Beals v. City of Los Angeles, 23 Cal.2d 381, 144 P.2d 839, it was held that an abutting property owner had standing to seek to enjoin the partial vacation of an alley, which vacation would impair his access, even where other means of ingress and egress were available. The court there said at page 387, 144 P.2d at pages 842--843, 'We agree, however, with plaintiff's contention that the complaint states a cause of action. Closing of the alley results in the taking or damaging of private property for a public use. It is settled that the ascertainment and payment of damages is a condition precedent to the right of a city to do public work which will destroy or damage private property. (Wilcox v. Engebretsen, 160 Cal. 288, 116 P. 750; Geurkink v. City of Petaluma, 112 Cal. 306, 44 P. 570; Bigelow v. Ballerino, 111 Cal. 559, 44 P. 307 * * *.)'

The obligation to make compensation arises from the constitutional provision that '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 * * *.' (Cal.Const., art. I, § 14.)

'The general rule is that persons specially injured by the vacation of a street or highway are entitled to recover such damages as they may sustain, even in the absence of a statute providing therefor. The discontinuance of a public street upon which a parcel of land abuts, if such street constitutes the only means of access to the parcel in question, would in legal effect be the same as the construction of an impassable barrier around such land, and discontinuance in such a case is generally held to constitute a taking of the property so cut off, inasmuch as total deprivation of access if equivalent to a taking, especially when the easement of access to the street is recognized by the substantive law of the state.' (26 Am.Jur.2d Eminent Domain, § 241.) (Breidert v. Southern Pac. Co., Supra, 61 Cal.2d 659, 39 Cal.Rptr. 903, 394 P.2d 719.)

Defendant apparently would agree with the foregoing principles and would agree that plaintiffs have such an easement and consequent right of access as described in the cited cases.

The defendant, however, sharply challenges the relevance of the cited law to the particular fact situation, arguing, as stated, that no liability can be imposed on it since the defendant was not the cause in fact of the damages to Revello Drive nor to plaintiffs' property right of access. Defendant conceives the damage as coincident with the storm and bound in time to its passage and consequent effects.

Plaintiffs on the other hand find damage in the refusal of the defendant to repair and do not seek to place the onus on defendant for the physical fact of the flood. They calim damage in the deprivation, a continuing and lineal view, rather than eo instante damage.

Defendant maintains that plaintiffs' private easement of access, though not presently usable, continues to exist. The practical result of accepting such a position would be to reduce the easement to An empty right somewhat akin to a door opening on a brick wall. To hold that under these circumstances the easement remains unimpaired would mean that in no case could compensation for any taking of an easement be awarded. In any case where supervening physical impediment to the exercise of the easement existed, the taking would be excused by mere assertion that only the power to exercise had been taken but the right remained undisturbed. The contention is obviously without practical merit or support in law or equity.

It is self evident that plaintiffs have suffered an impairment of their recognized property right of access.

Thus the question to be answered is whether under these circumstances the non-action of the defendant is in effect action on its part and amounts to a taking of private property for which it must pay compensation.

It is crystal clear that a duty to act must exist before any liability can be based on a failure to act. Since we are dealing with governmental liability, this duty must have either a contractual, statutory or constitutional basis. (See Coffey v. City of Berkeley, 170 Cal. 258, 149 P. 559; South v. County of San Benito, 40 Cal.App. 13, 180 P. 354; Winbigler v. City of Los Angeles, 45 Cal. 36; Chope v. City of Eureka, 78 Cal. 588, 21 P. 364; Sutfin v. State of California, 261 Cal.App.2d 50, 67 Cal.Rptr. 665.) We look first at the nature of the dedication process by which a city acquires property for its streets, and the reasonable expectations of abutting property owners.

Dedication has been defined as 'the intentional appropriation or donation of land, or of an easement or interest therein, by its owner for some proper public use.' (23 Am.Jur.2d § 1, p. 4.) A dedication is said to have the characteristics of a contract, in that it requires both an...