Clement v. State Reclamation Bd., Sacramento San Joaquin Drainage Dist.

• Decision Date: 02 August 1950
• Court: California Supreme Court
• Parties: CLEMENT v. STATE RECLAMATION BOARD, SACRAMENTO SAN JOAQUIN DRAINAGE DIST. et al. Sac. 5962.

Page 897

220 P.2d 897

35 Cal.2d 628

CLEMENT v. STATE RECLAMATION BOARD, SACRAMENTO SAN JOAQUIN DRAINAGE DIST. et al.

Sac. 5962.

Supreme Court of California, in Bank.

Aug. 2, 1950.

Rehearing Denied Aug 31, 1950.

Earl D. Desmond, E. Vayne Miller, Sacramento, and Hudson Ford, Colusa, for appellant.

Fred N. Howser, Attorney General, Walter S. Rountree, Timothy W. O'Brien and Robert E. Reed, Deputy Attorneys General, C. C. Carleton and Henry Holsinger, Sacramento, for respondents.

TRAYNOR, Justice.

In an action in inverse condemnation under article I. section 14 of the California Constitution, ¹ plaintiff alleged that his farm land had been damaged by defendants' construction and maintenance of a flood control project on the east bank of the Sacramento River north of the city of Colusa. The complaint was in two counts. The first alleged a taking or damaging of private property for a public use. The second alleged that the damage to the property resulted from the negligent maintenance of the project. Motions for nonsuit were granted to the individual members of the State Reclamation Board, and the cause was tried against the State of California and the state agencies charged with the maintenance and control of the project. The jury returned a verdict for defendants, and plaintiff appeals from the judgment entered thereon.

Plaintiff's farm is located in the Butte Basin of the Sacramento Valley about a mile and a half northeast of Colusa, and a quarter of a mile east of the east bank of the Sacramento River. It is rectangular in shape, 998.7 feet wide and about a mile in length, and its longitudinal axis extends east and west. During the early settlement of Colusa County, riparian owners cooperated in the construction of flood control dikes and levees along the east bank of the Sacramento River. By 1870 a series of levees seventy-two feet high along the east bank protected the lands in the Butte Basin, including that now owned by plaintiff, from the waters of the Sacramento River at normal flood stage. During the first few years of their maintenance two major breaks occurred in the levees. One, the 'DeJarnatt Break,' was about three miles south of Colusa; the other, the 'Moulton Break,' was about twelve miles north of Colusa. Thereafter, several minor breaks occurred in the levees, some of them directly opposite the lands of plaintiff. At flood stage, the waters of the river passed through the several breaks in the levee and flowed into the Sutter and Butte Basins generally without overflowing the levees. Plaintiff's land was subject to inundation whenever water collected in the Butte Basin. He contends, however, that this inundation was caused by the over-all rise of water in the basin and not by the direct flow of flood water from the river and that he was able to farm his property until 1940.

Shortly after the construction of the farmer levees, the federal government took the first steps toward flood control and reclamation in the Sacramento Valley. In 1893 the California Debris Commission was created by an Act of Congress to accomplish flood control and restore navigation in the Sacramento River. 33 U.S.C.A. § 661 et seq. In 1913 the Legislature formed the State Reclamation Board and the Sacramento-San Joaquin Drainage District, defendants herein, vesting them with broad powers over all flood control matters relating to the Sacramento and San Joaquin Rivers and their tributaries. Further reclamation work was forbidden unless approved proved by these agencies. Pursuant to a comprehensive plan of flood control formulated by these agencies in co-operation with the California Debris Comnmission and the United States Engineers, the latter undertook construction of the project. The cost was shared equally by the federal government and the state. The state furnished the necessary rights of way, purchased flowage rights wherever necessary, and undertook the maintenance of each part of the project as it was completed.

By 1932 the project was completed from the northern boundary of Colusa County south to the confluence of the Sacramento River and San Francisco Bay. In that year the Monulton and DeJarnatt Breaks were closed by levees. The channel of the Sacramento River north of plaintiff's property was deepened and widened and its carrying capacity increased from an undetermined but substantially smaller capacity to 145,000 cubic feet of water per second. South of plaintiff's property, the narrower channel of the river had a maximum carrying capacity of 65,000 cubic feet of water per second. Under these dircumstances no system of levees without relief openings could be constructed within the limits of reasonable engineering. To provide a relief opening to carry off 80,000 cubic feet of water per second before the flow of the Sacramento River reached its narrower channel to the south, the Colusa Weir was constructed by cutting the sixty-two year old farmer levee to a height of 61.8 to 64 feet leaving the levee north and sough of the cut at 72 feet. The south end of the 1650-foot wide cut lay about 500 feet northwest of the northwest corner of plaintiff's farm. The cut was surfaced with concrete, and parallel levees known as training levees were built at its north and south ends, which extended eastward for about a mile and gradually widened out so that at their termini they were about half a mile apart. The north boundary of plaintiff's farm ran parallel to the south training levee, being separated therefrom by an 80-foot wide strip of land through which ran a ditch or borrow pit caused by the excavation of dirt to build the training levee. The northeast corner of plaintiff's land was directly opposite the east terminus of the south training levee. The training levees were designed to direct the water flowing over the surfaced cut into the Butte Basin to the east where it would fan out and thereby relieve the flow and pressure on the main river levees.

From the Colusa Weir to the end of the training levees, the downward gradient is about 9 feet per mile, abruptly levelling off at the mouth of the weir, thus decreasing the high velocity of the water flowing over the cut, caused by the deepened channel of the river to the north and the steep gradient between the training levees. As a result of the decreased velocity, the carrying capacity of the water was substantially reduced, and as the water began to fan out at the mouth of the weir it deposited silt and sand in the form of an alluvial fan or delta that by the winter of 1939-1940 had reached a sufficient height to impede and divert the flow of water pouring over the cut and through the weir to the east. The flow was no longer permitted to fan out into the basin but was diverted by the delta at the mouth of the weir so that if flowed between the delta and the termini of the training levees. The water that flowed between the delta and the end of the south training levee, instead of flowing out into the basin, backed up and overflowed the east end of plaintiff's farm. Plaintiff alleges that the water deposited sediment and debris at the east end of his farm, forming a delta thereon that made farming impossible on that part of his property after 1940. It is also alleged that the high velocity flow cut channels over the east part of the farm and filled the borrow pit between the farm and the training levee, turning back toward the river and spilling over onto the central portion of plaintiff's property, cutting new channels and depositing silt thereon. It is alleged that as a result of this diversion of the water onto his land, plaintiff's farm depreciated in value from $30,000 to $8,000.

Plaintiff assigns as error certain instructions ² given by the trial court with respect to defendants' right under the 'common enemy doctrine' to construct flood control projects without incurring liability to private landowners for damage to their land caused thereby.

By the challenged instructions, the jury was instructed that the natural banks of the Sacramento River were the walls of the river channel cut by the action of the flowing water without reference to artificial dikes or levees constructed thereon before 1870 by riparian owners; that the natural stream waters were only those waters that were contained by the natural banks of the river as defined by the court and did not include waters that would have been contained by the farmer levees; and that all waters that would have overflowed the natural banks of the river were flood waters. On the basis of these definitions, the court instructed the jury that if the water flowing over the Colusa Weir was flood water that would have overflowed the natural banks had the farmer levees never been constructed, damage caused thereby was not compensable; that defendants' liability under article I, section 14 was limited to damage caused by the river waters only if the cutting of the levee and the construction of the Colusa Weir cut away the natural banks of the river and allowed the natural stream waters to escape, and if the alleged damage was caused by the diversion of the natural stream waters. After the jury had retired, they requested a clarification of these instructions, which were then repeated and summarized by the trial court as follows: 'If you don't understand that, in so many words it is this: If the defendants in this case caused the natural stream water of the river to flow onto the lands of the plaintiff they would be liable; if they didn't, they wouldn't.'

Plaintiff contends that the challenged instructions in effect erroneously directed a verdict for defendants. He does not attack the instruction explaining the common enemy doctrine to the jury, but he objects to the definitions upon which the instruction was based. In his view, the construction of the farmer levees in 1870 and their continued maintenance until 1932 created a new natural condition, in effect making the channel between the farmer levees...