Cox v. State of California
| Citation | 82 Cal.Rptr. 896,3 Cal.App.3d 301 |
| Court | California Court of Appeals |
| Decision Date | 07 January 1970 |
| Parties | George B. COX and Thomas J. Cox, Plaintiffs and Appellants, v. STATE of California, Defendant and Respondent. Civ. 11949. |
Reginald M. Watt, Chico, for plaintiffs-appellants.
Thomas C. Lynch, Atty. Gen., by Lloyd Hinkelman, Deputy Atty. Gen., Sacramento, for defendant-respondent.
Plaintiff landowners appeal from a summary judgment granted defendant State of California in an inverse condemnation action.
The charging allegation of plaintiffs' complaint are broadly drafted. They allege that, for a period prior to December 22, 1964 defendant 'participated in the planning, designing, construction, maintenance, and operation of a flood control project on the Feather River in Butte County,' and that on or about that date, as a proximate result of defendant's said activities, 'waters from the Feather River were diverted from natural drainage by the flood control project' onto certain described real property of plaintiffs (hereinafter called 'Lot I'), to its damage. The complaint does not identify or otherwise locate the 'flood control project.'
Defendant's answer generally denies these charging allegations and sets forth numerous affirmative defenses, among which are averments that plaintiffs 'voluntarily assumed the risk of such flooding,' that a right to flood plaintiffs' land 'has long since been gained,' that Lot I 'has been dedicated by plaintiffs or their predecessor in interest for public purposes, namely, a floodway and appurtenant uses,' and that, by an indenture dated February 20, 1946, 'plaintiffs or their predecessor in interest * * * granted to the defendant certain rights of way and easements, necessary for the construction, operation and maintenance of the * * * Sacramento River Flood Control Project,' with the alleged result the 'plaintiffs are * * * estopped from prosecuting this action for any damages that may have occurred as a natural, reasonable indicent of the Project.' The Motion for Summary Judgment
A. Supporting Documents
Defendant based its motion for summary judgment (Code Civ.Proc. § 437c) upon a certified copy of the aforesaid 1946 indenture, signed by plaintiffs' predecessors in title as grantors, as well as upon certified copies of a stipulated judgment and final order of condemnation which were entered in 1957 in the same superior court in a condemnation action brought against the present plaintiffs by the Sacramento and San Joaquin Drainage District, acting by and through the State Reclamation Board. Defendant's motion was also based upon a registered civil engineer's written declaration under penalty of perjury and upon a United States Geological Survey map. On the survey map, the civil engineer had drawn the outline of Lot I (the subject of plaintiffs' inverse condemnation complaint for 1964 flood damages), and he had also delineated the location of the right-of-way and easement granted by the 1946 indenture and the boundaries of the property involved in the 1957 stipulated condemnation. Defendant filed no other declarations.
The following sketch (not drawn to scale) adapted from the engineer's diagram depicts the lands in question and will aid in understanding the positions of the parties:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
Defendant's above-mentioned supporting documents generally show the following: Lot I is approximately a right-angled triangle situated immediately west of the Feather River. The river flows from northwest to southeast at this location. One leg of the triangle runs westerly inland from the river to the point of the right angle. From this point, the second leg of the triangle runs northerly back to the river. The hypotenuse parallels the west side of the river and connects the two legs. By the 1946 indenture, plaintiffs' predecessors granted to the Sacramento and San Joaquin Drainage District, its successors and assignees, 'a perpetual right of way and easement to build, construct, reconstruct, repair and forever maintain the west levee of the Feather River, a part of the Sacramento River Flood Control Plan of the California Debris Commission, including all embankments, ditches and appurtenant structures, incidental works to said levee and bank protection works adjacent thereto. * * *' The right-of-way and easement thus granted is a narrow strip (shown hatched on the diagram) which commences inland at the point of the right angle of Lot I. The strip thence runs northerly to the river, coinciding over this distance with all of the north-south leg (the west boundary) of Lot I. According to the engineer's uncontradicted declaration, the right-of-way and easement 'is the location of the levee on the west side of the Feather River along this reach of the river.' Thus, All of Lot I lies between the west levee and the river.
From the point on the river bank which comprises the northern terminus of Lot I, the 1946 right-of-way and easement (i.e., the west levee of the Feather River) continues northwesterly along the river until it meets, and coincides with, the western boundary of the property which was the subject of the 1957 judgment and final order of condemnation. As noted above, that judgment and final order were stipulated to by the present plaintiffs. 1 The 1957 judgment and order condemned to the Sacramento and San Joaquin Drainage District, its successors and assignees, for 'a public use authorized by law as a part of the flood control project required by the plans of the California Debris Commission * * *,' a small parcel in the shape of a tipped over isosceles triangle. The base of that triangle runs northwesterly and coincides with the northerly segment of the 1946 right-of-way and easement (i.e., the base is part of the west levee). The area bounded by the isosceles triangle (herein called 'Parcel No. 1') lies between the west levee and the Feather River to the east, toward which the apex of that triangle points and against which river that apex abuts.
b. Waiver Clauses
By the terms of the 1946 indenture, for which the grantee paid $1,400.00, plaintiffs' predecessors expressly waived 'all claim or claims for any and all compensation for and on account of the location, establishment and construction of said levee, embankments and appurtenant structures upon the right of way' which was thereby granted. By the terms of the 1957 stipulation, judgment, and final order in condemnation, for which plaintiffs received $615.00, they expressly waived further payment for 'all damages of every kind and nature suffered by (them) * * * by reason of the taking of (the isosceles-shaped Parcel No. 1) * * * and the construction of said levee on said property for the said public use. * * *'
The sole ground for summary judgment advanced by defendant in the trial court was that, because of the 1946 indenture and the 1957 judgment in condemnation, and the waiver clauses thereof, 'plaintiffs are estopped to claim any damages in inverse condemnation reasonably to be anticipated by the construction of the levee on the west side of the Feather River.' On this appeal, defendant adheres to that ground in support of the judgment.
In opposition to the motion, plaintiffs filed the declaration of their attorney. That declaration submitted to the trial court certain photocopies furnished to plaintiffs' counsel by the Attorney General. The photocopies are of documents apparently related to the 1946 indenture, including project and disbursement records which purport to show the area and extent of interest acquired and the amount of money paid for the right-of-way and its appurtenances. Some of those underlying documents appear themselves to have been purported copies or unsigned. (See, Evid.Code § 1401, subd. (b).) Premised upon the photocopies, plaintiffs' opening and closing briefs are replete with conclusionary arguments that there was 'a lack of consideration' for the 1946 and 1957 waivers, and that they were 'unconscionable * * * contracts of adhesion' arrived at through 'a disparity of bargaining power.' Quite apart from questions concerning authentication of the photocopied documents relied on, those papers do not support plaintiffs' arguments. It is hardly necessary to point out that statements of plaintiffs' attorney in his briefs are not part of the record on appeal. (Gantner v. Gantner (1952) 39 Cal.2d 272, 278, 246 P.2d 923; Truslow v. Woodruff (1967) 252 Cal.App.2d 158, 163--164, 60 Cal.Rptr. 304; Williams v. Reed (1919) 43 Cal.App. 425, 430, 185 P. 515.)
Plaintiffs' more persuasive argument is that factual issues were present which could not be decided against them on the present record. In substance, defendant claims a 'flowage easement' over Lot I by virtue of the 1946 indenture and the 1957 judgment in condemnation. It could reasonably have been anticipated--defendant urged to the trial court--that the construction of a levee on the right-of-way would result in flooding the lands between the levee and the river, and that such flooding might cause damage to lands located in such an area. Conversely, plaintiffs contend that the indenture and judgment are silent as to the creation of a flowage easement and that so broad a right cannot be acquired by implication.
In the context of this case, however, concentration on the existence Vel non of a flowage easement misses the mark. Because the possible sources of future flood damage are infinite, as is the range of foreseeability of such damage, not all flowage easements carry the same legal consequences. Indeed, defendant's theory that a flowage easement was created seeks a meaningless label, one that fails to identify the issues determinative of its motion.
As to future damage to the remainder, the effect of a taking by consent or conveyance...
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