Linggi v. Garovotti

• Citation: 286 P.2d 15,45 Cal.2d 20
• Court: California Supreme Court
• Decision Date: 22 July 1955
• Parties: Melchior LINGGI, Plaintiff and Appellant, v. Maria GAROVOTTI, Defendant and Respondent. S. F. 19197.

Page 15

286 P.2d 15

45 Cal.2d 20

Melchior LINGGI, Plaintiff and Appellant, v. Maria GAROVOTTI, Defendant and Respondent.

S. F. 19197.

Supreme Court of California, In Bank.

July 22, 1955.

Rehearing Denied Aug. 17, 1955.

Wallace S. Myers, San Anselmo, for appellant.

Freitas, Freitas & Allen, Freitas, Allen, McCarthy & Bettini and Richard V. Bettiini, San Rafael, for respondent.

EDMONDS, Presiding Justice.

Melchior Linggi is endeavoring to condemn a right of way for a sewer line over adjoining land used for residence purposes. His appeal is from a judgment entered upon an order sustaining a demurrer to his complaint.

A two family apartment building stands on land owned by Linggi facing Sir Francis Drake Boulevard. The apartment house is connected with a public sewer in that street which, during certain seasons of the year, according to the complaint, is inadequate to carry off the sewage. At these times, it is alleged, the sewage backs up and overflows on the Linggi property, creating an unhealthy condition and a nuisance.

Adjoining the Linggi property on the south is the residence of Maria Garovotti which fronts on Oak Street. On this street, the complaint asserts, is a public sewer which provides the only adequate outlet for the sewage from the Linggi building. Mrs. Garovotti has refused to convey to Linggi an easement for the construction and maintenance of a pipe line across her property in order to abate the nuisance. Such an easement, the complaint concludes, is for a public use within the meaning of section 1238, subdivision 8 of the Code of Civil Procedure.

The ground of general demurrer is that to give Linggi the right of eminent domain would be in violation both of Article 1, Section 13 of the Constitution of the State, and of the Fourteenth Amendment of the United States Constitution. The demurrer also asserts that the complaint is ambiguous, unintelligible, and uncertain in that it does not appear therein that the public sewer system in Sir Francis Drake Boulevard is inadequate.

Any deficiency in the complaint attacked by the special demurrer could have been corrected by amendment. If the demurrer on these grounds was sustained without leave to amend it was an abuse of discretion. The decisive question, therefore, concerns the sufficiency of the facts pleaded by the complaint to state a cause of action and the constitutionality of the applicable statutes.

Linggi contends that section 1001 of the Civil Code authorizes a private individual to maintain an action to acquire by eminent domain property for any use specified in section 1238 of the Code of Civil Procedure. As he reads these statutes they allow him to obtain by condemnation an easement over private property for the purpose of connecting his building with the mains of the established ublic sewer system in Oak Street. Such an easement, he says, would be for a public use.

Respondent asserts that the court, not the Legislature, is the final arbiter of whether the facts of the particular case justify a condemnation for a public use. A public use is not established, the argument continues, unless the public is entitled, as of right, to use or enjoy the property taken. The complaint also is attacked upon the ground that it does not show wherein the taking of property sought to be condemned is necessary, a requirement specified by section 1241, subd. 2, of the Code of Civil Procedure.

Section 1001 of the Civil Code provides:

'Any person may, without further legislative action, acquire private property for any use specified in section twelve hundred and thirty-eight of the Code of Civil Procedure either by consent of the owner or by proceedings had under * * * (eminent domain); and any person seeking to acquire property for any of the uses mentioned in such title is 'an agent of the State,' or a 'person in charge of such use,' within the meaning of those terms as used in such Title.'

In Moran v. Ross, 79 Cal. 159, 21 P. 547, partners who owned a railroad sought to condemn private property for a right of way across it. The court said: '(T) he power of the state to condemn land for public uses must, in the main, be exercised by agents; and for that reason this power may be delegated by the legislature of the state either to corporations or individuals who act as such agents, and under legislative control.' 79 Cal. at page 160 21 P. at page 548. After quoting from the provisions of the Code of Civil Procedure governing the right of eminent domain and section 1001 of the Civil Code, the court said: 'These provisions of the Codes, taken together, confer upon private individuals the right of eminent domain in this class of cases, in plain and unequivocal terms.' 79 Cal. at page 162, 21 P. at page 548.

Similar reasoning has been employed to authorize the use of eminent domain by a private water company, San Joaquin & Kings River Canal & Irrigation Co. v. Stevinson, 164 Cal. 221, 128 P. 924, and in University of Southern California v. Robbins, 1 Cal.App.2d 523, 37 P.2d 163, a private university was allowed to condemn land for use as part of a landscaping program in connection with its library building.

The respondent particularly relies upon the terms of the applicable statute for her position that, although an individual may maintain an action in eminent domain, the purpose pleaded by the complaint is not one specified by section 1238 of the Code of Civil Procedure. Under that statute, 'the right of eminent domain may be exercised in behalf of the following public uses: * * *

'8. Sewerage of any incorporated city, city and county, or of any village or town, whether incorporated or unincorporated, or of any settlement consisting of not less than 10 families, or of any buildings belonging to the State, or to any college or university, also the connection of private residences and other buildings, through other property, with the mains of an established sewer system in any such city, city and county, town or village.' (Emphasis added.)

A fundamental principle of the law of eminent domain was stated in University of Southern California v. Robbins, 1 Cal.App.2d 523, 37 P.2d 163, as follows: "The legislature must designate, in the first place, the uses in behalf of which the right of eminent domain may be exercised, and this designation is a legislative declaration that such uses are public, and will be recognized by courts; but whether, in any individual case, the use is a public use, must be determined by the judiciary from the facts and circumstances of that case.' (citation) 'If the subject-matter of the legislation be of such a nature that there is any doubt of its character, or if by any possibility the legislation may be for the welfare of the public, the will of the legislature must prevail over the doubts of the court." 1 Cal.App.2d at pages 525-526, 37 P.2d at page 164.

No appellate court of California has considered the question as to whether an inividual may maintain an action under section 1238 of the Code of Civil Procedure for the purpose of acquiring an easement to be used for a sewer connection from a single residence. City of Pasadena v. Stimson, 91 Cal. 238, 27 P. 604, was an action by a municipal corporation to condemn a right of way for a sewer over several lots. In unholding the right of the municipality to condemn the land for that purpose, the court said: 'A sewer in the neighborhood of dwellings may be an evil, but it is evident that the legislature regards it as a necessary evil, since it allows private property to be taken for the construction of sewers. Sewers are in fact a necessary evil; but when they are planned and constructed with reasonable regard to the results of sanitary teachings they are authorized by statute * * *.' 91 Cal. at pages 254-255, 27 P. at page 608.

It Machado v. Board of Public Works of Arlington, 1947, 321 Mass. 101, 71 N.E.2d 886, one DiMaggio owned property abutting on the Parkway and adjacent to the land owned by Machado. DiMaggio's residence was serviced by a cesspool, which was declared to be 'impractical'. His application to the Board of Public Works to have a sewer installed in the Parkway was denied upon the ground that the cost would be prohibitive. DiMaggio renewed his application, suggesting that a pipe line be constructed across Machado's lot and another owned by Machado to the rear of it to connect with a sewer on Decatur Street, a block south of the Parkway. The board upon condition that DiMaggio bear the cost of the 'easement rights', granted the application and condemned an easement across Machado's two lots. Machado sought certiorari to quash the proceedings. In affirming the judgment, the court held:

"The purpose of the legislature * * * was to place in possession of the city council the means of abating nuisances offensive to the community and dangerous to the health of the people. The objects therefore to be accomplished by the exercise of the power it confers are so obviously connected with means to be adopted for the promotion of the general welfare of the community, and in which all citizens have a common interest, that the suggestion of a want of constitutional power in the legislature for its enactment seems to be entirely without foundation.' (Hildreth v. City of Lowell, 11 Gray, Mass., 345, 350, 351.)

'It is true that the immediate purpose of the easement taken in the petitioners' land was to afford DiMaggio access to the sewer in Decatur Street, and it might seem at first blush that he alone was benefited. But actually that is not so. As the return shows, one of the reasons, if not the chief one, which gave rise to his application was the unsatisfactory condition of his cesspool, which the board of health had ordered him to remedy. It requires no discussion to demonstrate that this was a condition of such concern to the health and welfare of the town that its elimination by the means here adopted was a public purpose. This is not a case, therefore,...