Freeman v. Contra Costa County Water Dist.

• Decision Date: 24 June 1971
• Court: California Court of Appeals Court of Appeals
• Parties: Douglas H. FREEMAN et al., Plaintiffs and Appellants, v. CONTRA COSTA COUNTY WATER DISTRICT, a subdivision of the State of California, Defendant and Respondent. Civ. 28717.

Page 852

95 Cal.Rptr. 852

18 Cal.App.3d 404

Douglas H. FREEMAN et al., Plaintiffs and Appellants, v. CONTRA COSTA COUNTY WATER DISTRICT, a subdivision of the State of California, Defendant and Respondent.

Civ. 28717.

Court of Appeal, First District, Division 4, California.

June 24, 1971.

James H. Disney, Concord, for plaintiffs-appellants.

Jeffrey D. Polisner, Bold & Polisner, Richmond, for defendant-respondent.

Evelle J. Younger, Atty. Gen., Sanford N. Gruskin, Asst. Atty. Gen., Roderick Walston, Charlton G. Holland, Deputy Attys. Gen., San Francisco, for amicus curiae State Dept. of Public Health in support of contentions of respondent Contra Costa County Water Dist.

CHRISTIAN, Associate Justice.

Appellants are the owners of residences in the City of Concord served by the water system of respondent Contra Costa County Water District. Each of the appellants maintains on his property a well from which water is drawn for such purposes as gardening and car-washing. Although appellants had not connected their well water systems to the pipes of the district's public system, the district threatens to terminate service until the affected householders agree to have installed, at their own expense, a 'double check valve assembly,' designed to prevent water from the auxiliary supply from 'backing up' into and contaminating the public water supply. Appellants sought from the court protection against the district's threat; judgment was for the district, and the present appeal followed. We affirm the judgment.

The record shows without contradiction that contamination of a water system can occur if there is a physical connection between the public system and auxiliary water supply, such as where the two systems are connected by pipes, or where the auxiliary water is 'impounded' (e.g., in a swimming pool or fish pond) and an ordinary garden hose from the public water supply is allowed to lie in water from the auxiliary system. In the latter situation a temporary loss of pressure can result in contaminated water being drawn into the public system.

Protection against this risk can be provided by installing in the consumer's water meter box a device which prevents a backward flow of water. The directors of respondent district have established an installation charge of $35, and a $.25 per month maintenance charge, for such devices, based on the cost thereof to the district. Appellants receive no special benefit from the device other than that which they receive as members of the general public.

It will be useful to outline the statutory framework under which respondent is requiring the installation of the back flow prevention device. Health and Safety Code section 203 provides that the State Department of Public Health 'shall examine and may prevent the pollution of sources of public domestic water * * * supply.' The department may 'adopt and enforce rules and regulations' for this purpose. (Health & Saf.Code, § 208.) Pursuant to these statutes, the department adopted administrative regulations designed to prevent contamination or pollution of any public water supply as a result of 'actual Or potential cross-connections' with auxiliary water supplies. (Cal.Admin.Code, tit. 17, § 7583, emphasis added.) An auxiliary water supply is defined as 'any water supply on or available to the premises other than the public water supply.' (Cal.Admin.Code, tit. 17, § 7590.) A protective device is required to be installed on any premises receiving water from the public water system and containing an auxiliary water supply, regardless of whether the auxiliary water supply is connected to the public water system. (Cal.Admin.Code, tit. 17, § 7603.) The regulations specify various types of protective devices, depending on the 'degree of hazard' involved; where the auxiliary and public water supplies are not connected, the protective device required is a 'double check valve assembly,' which is what respondent desires appellants to install. (Cal.Admin.Code, tit. 17, § 7604, subd. 1.) Responsibility for installing the protective device is placed on the water user. (Cal.Admin.Code, tit. 17, § 7603.) Pursuant to the foregoing state regulations, respondent adopted its own regulations providing for discontinuance of water service to any consumer who failed to install the required device.

Appellants contend that the requirement that they install a protective device constitutes a taking of property which must be compensated. They argue that they have the right to take water from their wells and that respondent's demand infringes on their right to use their property as they wish. This contention confuses an exercise of the police power with an exercise of the power of eminent domain; 'the constitutional guaranty of just compensation attached to an exercise of the power of eminent domain does not extend to the state's exercise of its police power, and damage resulting from a proper exercise of the police power is simply Damnum absque injuria' (Lees v. Bay Area Air, etc. Control Dist. (1965) 238 Cal.App.2d 850, 856, 48 Cal.Rptr. 295, 299; see also Goldblatt v. Town of Hempstead (1962) 369 U.S. 590, 593, 82 S.Ct. 987, 8 L.Ed.2d 130; Beverly Oil Co. v. City of Los Angeles (1953) 40 Cal.2d 552, 557, 254 P.2d 865). A governmental regulation will be upheld as a valid exercise of the police power if it is reasonably necessary to 'protect the order, safety, health, morals and general welfare of society.' (Lees v. Bay Area Air, etc. Control Dist., Supra, 238 Cal.App.2d at p. 857, 48 Cal.Rptr. at p. 299, citing In re Rameriz (1924) 193 Cal. 633, 649, 650, 226 P. 914.) A regulation is presumed to be valid; therefore, appellants have the burden of proving unreasonableness. (Goldblatt v. Town of Hempstead, Supra, 369 U.S. at p. 596, 82 S.Ct. 987.) It cannot be denied that prevention of water pollution is a legitimate governmental objective, in furtherance of which the police power may be exercised. Appellants argue, however, that it is unreasonable to require them to install a protective device when their water well is not connected to the domestic water supply. Therefore, it is argued, there is no possibility of contamination and the danger that respondent seeks to protect is 'imagined and speculative.' But the state need not wait until the public safety has actually suffered injury; it may take reasonable steps to protect a...