Locklin v. City of Lafayette, No. S030595

CourtUnited States State Supreme Court (California)
Writing for the CourtBAXTER; LUCAS; PANELLI; MOSK
Citation867 P.2d 724,7 Cal.4th 327,27 Cal.Rptr.2d 613
Parties, 867 P.2d 724 Harry LOCKLIN, et al., Plaintiffs and Appellants, v. CITY OF LAFAYETTE, et al., Defendants and Respondents.
Docket NumberNo. S030595
Decision Date28 February 1994

Page 613

27 Cal.Rptr.2d 613
7 Cal.4th 327, 867 P.2d 724
Harry LOCKLIN, et al., Plaintiffs and Appellants,
CITY OF LAFAYETTE, et al., Defendants and Respondents.
No. S030595.
Supreme Court of California,
In Bank.
Feb. 28, 1994.
Rehearing Denied April 13, 1994.

Page 617

[867 P.2d 728] [7 Cal.4th 336] Pillsbury & Wilson, Pillsbury, Wilson & Post, Pillsbury, Levinson & Mills, Philip L. Pillsbury, Jr., Goldstein & Goldstein, Burton J. Goldstein and David Collins, for plaintiffs and appellants.

William M. Pfeiffer, Judith K. Herzberg and Megan C. Sheridan as amici curiae, on behalf of plaintiffs and appellants.

John H. Tallett, John Pound, James W. Rosenquist, Esther Low, Jospeh A. Montoya, William M. McMillan, Robert J. DeFea, Kenneth G. Nellis, Donald M. Velasco, Lucille Y. Baca, Daniel C. Murphy, Gordon, DeFraga, Watrous & Pezzaglia, Timothy J. Ryan, Lepper, Falco & Schaefer, Abend, Lepper, Jacobson, Schaefer & Hughes and Gary M. Lepper, for defendants and respondents.

McDonough, Holland & Allen, Mark A. Wasser, Michael V. Brady and James R. Ross as amici curiae, on behalf of defendants and respondents.

[7 Cal.4th 337] BAXTER, Justice.

Is a public entity liable in tort or inverse condemnation for damage to downstream riparian property caused by the discharge of surface waters into a natural watercourse abutting its property? The Court of Appeal held that there could be no liability, 16 Cal.App.4th 1135, 21 Cal.App.4th 1190, 13 Cal.Rptr.2d 889.

We granted the petition of plaintiffs, owners of damaged properties, to consider whether the "natural watercourse rule" stated in Archer v. City of Los Angeles (1941) 19 Cal.2d 19, 119 P.2d 1 (Archer ), by which the Court of Appeal believed itself bound, was properly applied in this case, and to decide whether article I, section 19 of the California Constitution 1 compels compensation for damage caused by an increased flow of stream water that is traceable to surface water runoff from improvements on public property.

We conclude that Archer does not correctly state the principles presently applicable to the liability of riparian landowners. To the extent that Archer also held that article I, section 19 of the California Constitution did

Page 618

[867 P.2d 729] not create liability, it has been overruled by subsequent decisions of this court.

When alterations or improvements on upstream property discharge an increased volume of surface water into a natural watercourse, and the increased volume and/or velocity of the stream waters or the method of discharge into the watercourse causes downstream property damage, a public entity, as a property owner, may be liable for that damage. The test is whether, under all the circumstances, the upper landowner's conduct was reasonable. This rule of reasonableness applies to both private and public landowners, but it requires reasonable conduct on the part of downstream owners as well. This test requires consideration of the purpose for which the improvements were undertaken, the amount of surface water runoff added to the streamflow by the defendant's improvements in relation to that from development of other parts of the watershed, and the cost of mitigating measures available to both upper and downstream owners. Those costs must be balanced against the magnitude of the potential for downstream damage. If both plaintiff and defendant have acted reasonably, the natural watercourse rule imposes the burden of stream-caused damage on the downstream property.

We also conclude that a governmental entity may be liable under the principles of inverse condemnation for downstream damage caused by an [7 Cal.4th 338] increased volume or velocity of surface waters discharged into a natural watercourse from public works or improvements on publicly owned land. It will be liable if it fails to use reasonably available, less injurious alternatives, or if it has incorporated the watercourse into a public drainage system or otherwise converted the watercourse itself into a public work. Compensation is compelled by the same constitutional principles which mandate compensation in inverse condemnation actions generally. The downstream owner may not be compelled to accept a disproportionate share of the burden of improvements undertaken for the benefit of the public at large. Because downstream riparian property is burdened by the servitude created by the natural watercourse rule, however, consistent with that rule the downstream owner must take reasonable measures to protect his property. Liability on an inverse condemnation theory will not be imposed if the owner has not done so.

Finally, because the development of any property in the watershed of a natural watercourse may add additional runoff to the stream, all of which may contribute to downstream damage, it would be unjust to impose liability on an owner for the damage attributable in part to runoff from property owned by others. Therefore, an owner who is found to have acted unreasonably and to have thereby caused damage to downstream property, is liable only for the proportion of the damage attributable to his conduct.

Although we conclude that the Court of Appeal erred in holding that the natural watercourse rule insulated defendants from both tort and inverse condemnation liability, we shall affirm the judgment. After a review of the record we are satisfied that the court properly held that Reliez Creek, the watercourse which is the focus of this litigation, had not itself become a public improvement at the time the damage of which plaintiffs complain occurred and that no public improvements in the creekbed contributed to the damage suffered by plaintiffs. That review also satisfies us that the evidence does not support a conclusion that the damage to any plaintiff's property was the result of unreasonable conduct by any defendant in the manner in which it discharged surface water runoff into Reliez Creek, or establish that there was damage to plaintiffs' properties that could not have been prevented had they undertaken reasonable measures to protect their properties.


Plaintiffs are the owners of property abutting Reliez Creek in Contra Costa County. The ownership interest of each plaintiff extends to the center [7 Cal.4th 339] of the creek and includes the creekbed and banks along the frontage of his or her property. Reliez Creek is a natural watercourse which drains a watershed of approximately 2,291 acres. It is several miles long, and runs from the hills to a confluence with Las Trampas Creek.

Page 619

Plaintiffs'properties[867 P.2d 730] lie on the final 1,500 feet before Reliez Creek joins Las Trampas Creek. Over the last 50 years development in the watershed has transformed an essentially rural environment into one in which 1,294 acres are developed. Public and private improvements in the watershed have prevented or lessened absorption of surface waters. Paving and other treatment has made some ground impervious to water, and the manner in which surface water runoff reaches Reliez Creek has been altered. The result has been an increase in the volume of surface waters discharged into Reliez Creek and in the velocity of the waters in the creek, particularly during times of heavy rains. In recent years the flow has caused scouring, undercutting, and erosion of the banks of the creek on plaintiffs' properties. The area of improvement is not limited to that owned by defendants, however. Development in the City of Walnut Creek, part of which is in the Reliez Creek watershed, and improvement on the grounds of Acalanes High School adjacent to Reliez Creek, as well as private development of other nonriparian property within the watershed, have added surface water runoff to Reliez Creek.

Plaintiffs purchased their respective properties at various times between 1965 and 1978. Many inspected the creek bank at the time they purchased their property. None observed any erosion. Although some erosion of the creek banks occurred subsequently, damage to the creek banks during the winter of 1981-1982, a period of unusually heavy rainfall, was more significant. There was evidence that the increased flow of waters led to failure of the creek banks adjacent to plaintiffs' properties, widening the creek in some locations from a width of 40 feet to a width of 110 feet. There was also evidence that the city and county were aware that the increased flow of surface waters caused by development was causing and would cause damage to the creek banks. The damage to the creekside property might have been prevented by check dams and dikes, upstream diversion structures, and retention basins. That evidence did not relate the need for such structures to the increased runoff from defendants' properties or demonstrate that it would be reasonable to impose the cost of such structures on the named defendants, whose property comprised a small percentage of the watershed. 2

In 1983, plaintiffs filed this action to recover for "extensive landslide" damage to their properties adjacent to the Reliez Creek, damage allegedly [7 Cal.4th 340] caused by defendants' storm drainage system. 3 The failure to maintain the drainage system was alleged to have "extensively eroded Plaintiffs' real property, triggering landslides which have damaged Plaintiffs' real property and which now threaten the stability of the remaining portions of Plaintiffs' real property." They sought to recover damages on theories of inverse condemnation, nuisance, dangerous condition of public property, and trespass to real property, and, in addition, they sought injunctive relief.

Named as defendants were the City of Lafayette (City), the County of Contra Costa (County), the Contra Costa County Flood Control District (District), the California Department of Transportation (CalTrans), the Bay Area Rapid Transit District (BART),

Page 620

[867 P.2d 731] and private parties whose involvement is not in issue here. 4 Each...

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