Marin Municipal Water Dist. v. Northwestern Pac. R. Co.

• Decision Date: 01 August 1967
• Citation: 61 Cal.Rptr. 520,253 Cal.App.2d 83
• Court: California Court of Appeals Court of Appeals
• Parties: MARIN MUNICIPAL WATER DISTRICT, a public corporation, Plaintiff and Appellant, v. NORTHWESTERN PACIFIC RAILROAD COMPANY, a corporation, Defendant andRespondent. Civ. 22931.

Page 520

61 Cal.Rptr. 520

253 Cal.App.2d 83

MARIN MUNICIPAL WATER DISTRICT, a public corporation, Plaintiff and Appellant, v. NORTHWESTERN PACIFIC RAILROAD COMPANY, a corporation, Defendant andRespondent.

Civ. 22931.

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

Aug. 1, 1967.

As Modified on Denial of Rehearing Aug. 30, 1967.

Hearing Denied Sept. 27, 1967.

Leland H. Jordan, Robert W. Elliott, San Rafael, for appellant.

Bledsoe, Smith, Cathcart, Johnson & Rogers, San Francisco, Robert A. Seligson, San Francisco, of counsel, for respondent.

RATTIGAN, Associate Justice.

This appeal involves the pleading of rights and duties incident to subjacent support of land, and a determination--apparently not heretofore made by an appellate court--of whether the common law rule of subjacent support has been modified by statute in California.

Appellant, plaintiff below and herein called 'district,' owned a public water system which included two pipe mains installed in the land surface on the crest of a hill. Respondent (herein 'railroad') owned a railroad tunnel which ran through the hill beneath the district's mains. The tunnel collapsed, whereupon the surface land above it subsided and the mains were disrupted. The district thereafter commenced this action for damages against the railroad.

The district's complaint, setting forth the above facts, undertook to assert the railroad's liability in four counts. In one--numerically, the third cause of action--liability was based upon the railroad's alleged negligence in constructing and maintaining the underground tunnel. For reasons which we mention after deciding the appeal on its merits, the negligence count is not involved on this appeal and the complaint before us does not allege the railroad's negligence in any respect.

The appeal's merits are defined by this sequence of events in the lower court: Upon first appearance, the railroad moved to strike the first, second and fourth counts in the complaint and demurred, both generally and specially, to each. The trial court granted the motion to strike and ruled that its order striking the three counts mooted the demurrers to each. The court thereupon entered judgment dismissing the first, second and fourth counts. The appeal is from the judgment.

The record discloses, and the parties agree, that the trial court struck each of the counts mentioned upon the ground that none stated a cause of action against the railroad. The judgment of dismissal having followed, it is to be considered in the same light as a judgment upon sustaining of a general demurrer without leave to amend and, on appeal, will be subject to the same test. (McKay v. County of Riverside (1959) 175 Cal.App.2d 247, 249, 345 P.2d 949.) The question, then, is whether the first, second or fourth counts state a cause of action.

The district does not allege in any count the nature or extent of its estate in the land involved. It apparently did not occupy the surface under an express grant. As to its surface ownership, it alleges alternative facts by which, the district claims, it was a lawful occupant of the surface under any of several theories, and entitled to subjacent support from the subsurface strata. It is alleged that the district is organized under the Municipal Water District Act (now § 71000 et seq., Water Code), and that its water mains in this case were located in a city street and in a county highway which traverse the surface above the railroad tunnel. It claims that it is lawfully a surface owner upon theories invoked by other allegations as follows:

(1) In the first count, the district alleges that its water mains were 'placed, owned and maintained' in the surface highways under claim of right and without protest from the railroad for more than five years. It claims an estate in the surface by adverse possession. There is no allegation, however, that the pipes are located in any property of the railroad, and various other allegations import to the contrary. Therefore, the complaint does not sustain the district's claim to surface ownership by adverse possession.

(2) On the same facts, the district claims status as a surface owner by 'inverse condemnation,' subject only to the right of the railroad to be compensated. (Provident Irrigation Dist. v. Cecil (1954) 126 Cal.App.2d 13, 17, 271 P.2d 157.) But, again, no allegation places the district's water mains in or upon property of the railroad as an 'inverse condemnee'; and, again, this theory of surface ownership will not apply.

(3) In the second count, the district alleges that its water mains are lawfully located because they are in public highway easements on the surface. Under these allegations, the district had the right to install its mains in the street and in the highway under the Municipal Water District Act. (Section 71697, Water Code.) ¹ Exercising its right, it became a lawful occupant of the land surface.

(We note that some of the few authorities dealing with support of land state that even a surface trespasser is entitled to it. (5 Powell, Real Property, § 699, pp. 287--288; Rest., Torts, § 820, subsec. (1), com. g.) We do not so hold, but neither do we establish as the law of the case that the district had to be a 'lawful' occupant of the surface in order to be entitled to subjacent support from the subsurface. In commenting upon the district's claims enumerated above, we are responding to the allegations in the complaint before us.)

The complaint--and we refer hereinafter to the second count--does not allege either, the nature or extent of the railroad's ownership of the subsurface: it alleges only that the railroad owned a tunnel through the hill and beneath the district's water mains. The complaint contains no allegations, however, under which the railroad is shown to have owned any part of the land Surface involved, adjoining the district's occupancy or otherwise. Accordingly, for purposes of stating a cause of action under the law of subjacent support, the complaint sufficiently alleges that the railroad is a subsurface owner.

Again, the complaint is less than explicit as to whether the tunnel is an artificial excavation in the hill and whether the railroad did the excavating. However, from the structure depicted in common usage of the term 'railroad tunnel,' from various references to its 'construction' and to the right of the railroad 'to construct' a tunnel, and from allegations that 'at all times' the railroad owned, possessed and controlled the tunnel, we find the fair import of an allegation that the tunnel in question was excavated by the railroad, and that the tunnel was constructed in the subsurface before the district's mains were installed in the surface.

Thus, although the complaint is replete with uncertainties and inferential pleading, it alleges that the railroad, acting as a subsurface owner, excavated an underground tunnel; that, after the tunnel was built, the district installed its water mains in the land surface above the tunnel; and that the tunnel subsequently collapsed, causing subsidence and the district's damage.

At common law, where one person owns the surface of land and another the subjacent land, the owner of the surface is entitled to have it remain in its natural condition, without subsidence by reason of the subsurface owner's withdrawal of subjacent support. (Rest., Torts, § 820; 3 Tiffany, Real Property (3d ed. 1939) § 754, p. 196; 5 Powell, Real Property (1962) § 703, p. 308; 2 Thompson, Real Property (4th ed. 1961) § 415, p. 646; VI-A Amer.Law of Property (1954) § 28.36, pp. 99--100; Humphries v. Brogden (1850) 12 Q.B. 739, 744--745 (116 Eng.Rep. 1048, 1050); and see Empire Star Mines Co. v. Butler (1944) 62 Cal.App.2d 466, 533--534, 145 P.2d 49.)

The same authorities agree that the common law right of subjacent support is closely analogous to that of lateral support (e.g., 3 Tiffany, supra, § 754, pp. 196--197; 5 Powell, supra); each of two of the treatises concurs to the extent that each treats the two subjects together. (2 Thompson, supra, § 415, p. 640; VI-A Amer. Law of Property, supra.) Under all the authorities, also, the common law obligation of subjacent support is 'absolute.' (E.g., Rest., Torts, supra, § 820, subsec. (1), com. b; 5 Powell, supra; 2 Thompson, supra.) The authorities--California courts included--also agree that the common law obligation of lateral support is similarly 'absolute.' (Wharam v. Investment Underwriters (1943) 58 Cal.App.2d 346, 349, 136 P.2d 363; Rest., Torts, § 817, subsec. (1), com. b; 5 Powell, supra, § 699, p. 290; 2 Thompson, supra, § 415, p. 642.)

'Support is lateral when the supported and supporting lands are divided by a vertical plane. Support is subjacent when the supported land is above and the supporting land is beneath it. Such is the situation when one person owns an upper stratum of land and another person owns a stratum under it. It most frequently arises from a transfer of minerals in place, the rest of the land being retained, or from a transfer of the land, excepting the minerals.' (Rest., Torts, ch. 39, 'Scope and Introductory Note,' p. 183; accord, 5 Powell, supra, § 703, p. 308.)

On this appeal, the district contends that the common law rule of absolute liability for deprivation of subjacent support is still in effect in California, unmodified by statute, and that its complaint states a cause of action at common law. The railroad asserts that the Legislature changed the common law rule by enacting Civil Code section 832 (hereinafter 'section 832'). From this premise, the railroad argues in substance that the complaint does not state a cause of action because it does not allege that the excavator of the tunnel failed to give notice of the excavation or to use ordinary care in excavating, both of which are required by section 832.

In its present form, ² section 832 relieves an excavating Surface owner from the absolute duty to provide Lateral...