Holtz v. Superior Court

• Decision Date: 19 October 1970
• Docket Number: S.F. 22739
• Citation: 90 Cal.Rptr. 345,3 Cal.3d 296,475 P.2d 441
• Court: California Supreme Court
• Parties: , 475 P.2d 441 Max HOLTZ et al., Petitioners, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT et al., Real Parties in Interest.

Page 345

90 Cal.Rptr. 345

3 Cal.3d 296, 475 P.2d 441

Max HOLTZ et al., Petitioners, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent;

SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT et al., Real Parties in Interest.

S.F. 22739.

Supreme Court of California,

In Bank.

Oct. 19, 1970.

Hanson, Bridgett, Marcus & Jenkins and William J. Bush, San Francisco, for petitioners.

No appearance for respondent.

Bledsoe, Smith, Cathcart, Johnson & Rogers, David J. Van Dam and Robert A. Seligson, San Francisco, for real parties in interest.

TOBRINER, Justice.

Plaintiffs Max and Harry Holtz seek a writ of mandate to compel the Superior Court of the City and County of San Francisco to reinstate certain allegations stricken from their complaint upon motion of defendants San Francisco Bay Area Rapid Transit District (BART) and the City and County of San Francisco. Plaintiffs own improved real property fronting on Market Street in San Francisco, and in their first amended complaint in the underlying action they allege that, as a result of the extensive excavation of Market Street undertaken by defendant BART in connection with its construction of an underground rapid transit system, their land and buildings have been substantially damaged.

Specifically, plaintiffs claim that the excavation of the land adjacent to the northern boundary of their property, reaching a depth of 80 feet, caused the lateral support of their land to be withdrawn, with the consequence that portions of their land moved downward and laterally onto the defendant city's property, so that plaintiffs' building and other improvements settled and cracked. Plaintiffs sought recovery for the damage incurred on two distinct theories: (1) In count one of their complaint plaintiffs claimed that defendants were 'strictly liable,' i.e., liable without negligence, on a theory of inverse condemnation for the physical injuries proximately resulting from the construction of the public improvement as deliberately planned and designed; (2) In the second count plaintiffs alternatively claimed that defendants had been negligent in the excavation activities and were thus liable for damages which were proximately caused by this negligence. Plaintiffs prayed for $30,000 damages to both the land and the improvements in each of the two counts of the complaint.

After the court overruled defendants' general demurrer to both causes of action, defendants moved to strike those allegations of the complaint alleging damage to the buildings and improvements. In support of this motion, defendants relied on section 832 of the Civil Code, which sets out the general mutual rights and duties of coterminous owners with respect to lateral and subjacent support. ¹ Defendants argued that section 832 rendered an excavating coterminous owner liable for damages to a neighbor's improvements only if the foundation of the neighbor's improvement equalled or exceeded the 'standard depth,' then defined as 12 feet; ² since the complaint revealed that the depth of the foundation of plaintiffs' building was only six feet, defendants claimed that they could not be liable for damages to the buildings or improvements and requested that such allegations be stricken. The trial court correctly concluded that section 832 does not absolve a Negligent excavator from liability even if his neighbor's foundation does not reach 'standard depth' and thus it denied the motion to strike with respect to the negligence count. The court granted the motion to strike with respect to the initial 'strict liability' inverse condemnation count, however, apparently concluding that section 832 establishes the limits of liability for damages resulting from the withdrawal of lateral support when such damage is caused by public entities as well as when it is caused by private coterminous owners. ³

Plaintiffs now seek a writ of mandate to compel the trial court to reinstate the stricken allegations, ⁴ contending that the trial court's order conflicts with prevailing inverse condemnation principles. ⁵ For the reasons discussed below, we conclude that defendant public entities may be liable on an inverse condemnation theory for the alleged physical damage to plaintiffs' property proximately caused by the excavation as deliberately planned and designed without a showing of negligence.

Defendants' primary contention, as we understand it, is that since under section 832 a private excavating coterminous owner would not be liable, absent negligence, for the damage incurred by plaintiffs in this case, defendants, though public agencies, should likewise not be liable unless negligent. In thus equating the liability of public and private entities, defendants ignore, however, the distinct constitutional source of a public entity's responsibility to compensate for damages resulting from the construction of a public improvement and overlook the unique purpose of the inverse condemnation duty. Article I, section 14, of the California Constitution, provides that: 'Private property shall not be taken or damaged for public use without just compensation * * *' and it is this provision, rather than section 832, in which plaintiffs' inverse condemnation claim is fundamentally rooted. (See Rose v. California (1942) 19 Cal.2d 713, 724, 123 P.2d 505.) In such cases the purposes of the constitutional clause, rather than the limits established by a rule of statutory or common law allocating rights and responsibilities between private parties, must fix the extent of a public entity's responsibility.

In Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 42 Cal.Rptr. 89, 398 P.2d 129, this court explicitly rejected the notion that there need be a congruence between public and private liability in inverse condemnation actions. Considerable physical damage to plaintiffs' homes had resulted in Albers from a landslide caused by the county's construction of a road; the landslide was completely unforeseeable, however, and the trial court explicitly found that the county had not been negligent in the construction of the road. The county, relying on a rather substantial body of cases, ⁶ argued that since a Private party would not be liable for unforeseeable damages, the county, on these facts should likewise be free from a duty to compensate.

After undertaking an extensive review of all of our inverse condemnation cases, we concluded in Albers that the decisions declaring that '(i)f the property owner would have no cause of action were a private person to inflict the damage, he can have no claim for compensation from the state' (Archer v. City of Los Angeles (1941) 19 Cal.2d 19, 24, 119 P.2d 1, 4), had stated 'the rule * * * much more broadly than required * * *' (62 Cal.2d at p. 260, 42 Cal.Rptr. at p. 95, 398 P.2d at p. 127); we reaffirmed the vitality of earlier precedent which stated that 'the right assured to the owner by this provision of the constitution is not restricted to the case where he is entitled to recover as for a tort at common law. If he is consequently damaged by the work done, whether it is done carefully and with skill or not, he is still entitled to compensation for such damage under this provision.' (62 Cal.2d at p. 257, 42 Cal.Rptr. at p. 93, 398 P.2d at p. 125, quoting Reardon v. City and County of San Francisco (1885) 66 Cal. 492, 505, 6 P. 317.) ⁷ On the facts of Albers itself we proceeded to affirm a judgment rendering the county liable for the actual physical damage proximately caused by its construction, and we generalized our holding by establishing that, with only two exceptions (to be discussed below) 'any actual physical injury to real property proximately caused by the improvement as deliberately designed and constructed is compensable under article I, section 14, of our Constitution whether foreseeable or not.' (62 Cal.2d at pp. 263--264, 42 Cal.Rptr. at p. 97, 398 P.2d at p. 129.) (Italics added.)

As the Albers opinion carefully made clear, its general rule of compensability did not derive from statutory or common law tort doctrine, but instead rested on the construction, 'as a matter of interpretation and policy' (62 Cal.2d at p. 262, 42 Cal.Rptr. at p. 96, 398 P.2d at p. 128), of our constitutional provision. The relevant 'policy' basis of article I, section 14, was succinctly defined in Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 642, 220 P.2d 897, 905: 'The decisive consideration is whether the owner of the damaged property if uncompensated would contribute more than his proper share to the public undertaking.' In other words, the underlying purpose of our constitutional provision in inverse--as well as ordinary--condemnation is 'to distribute throughout the community the loss inflicted upon the individual by the making of the public improvements' (Bacich v. Board of Control (1943) 23 Cal.2d 343, 350, 144 P.2d 818, 823): 'to socialize the burden * * *--to afford relief to the landowner in cases in which it is unfair to ask him to bear a burden that should be assumed by society' (Mandelker, Inverse Condemnation: The Constitutional Limits of Public Responsibility, 1966 Wis.L.Rev. 3, 8).

In announcing our holding in Albers in the generalized form quoted above, while of course most fundamentally influenced by this 'loss distribution' premise, ⁸ we did not overlook the competing considerations which caution against an open-ended, 'absolute liability' rule of inverse condemnation. Recognizing that 'fears have been expressed that compensation allowed too liberally will seriously impede, if not stop, beneficial public improvements because of the greatly increased cost' (Bacich v. Board of Control (1943) 23 Cal.2d 343, 350, 144 P.2d 818, 823), we deemed it prudent to focus our policy inquiry on situations which shared a general factual similarity with that present in Albers. Thus we limited our holding of inverse condemnation liability, absent fault, to 'physical injuries of...