Monterey County Flood Control and Water Conservation Dist. v. Hughes

• Decision Date: 12 March 1962
• Citation: 201 Cal.App.2d 197,20 Cal.Rptr. 252
• Court: California Court of Appeals Court of Appeals
• Parties: MONTEREY COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT, etc., Plaintiff and Respondent, v. L. V. HUGHES and Daisy E. Hughes, Defendants and Appellants. Civ. 24640.

Page 252

20 Cal.Rptr. 252

201 Cal.App.2d 197

MONTEREY COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT, etc., Plaintiff and Respondent, v. L. V. HUGHES and Daisy E. Hughes, Defendants and Appellants.

Civ. 24640.

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

March 12, 1962.

Hearing Denied May 9, 1962.

Edmond Gattone, Los Angeles, Paul P. Selvin, Beverly Hills, for appellants.

Heller, Ehrman, White & McAuliffe, Albert M. Monaco, San Francisco, Stave & Bryan, Joseph A. Stave, Salinas, for respondent.

BALTHIS, Justice.

This action in eminent domain was brought by plaintiff, Monterey County Flood Control and Water Conservation District, against defendants, L. V. Hughes and Daisy E. Hughes (the singular is hereafter used), to condemn property located in San Luis Obispo County for a dam and reservoir. From the interlocutory and final judgments of condemnation in favor of plaintiff and fixing the monetary damages defendant appeals.

The principal questions presented on the appeal are: (1) Is the taking of property for recreational areas and facilities proper as an incident to an acquisition of land for flood control and water conservation? (2) Was the judgment (for convenience, both judgments are treated as one) one of excess condemnation as to the area of property taken? (3) Was the judgment one of excess condemnation in that the fee simple title as to a portion of the property was taken rather than a flowage easement?

There are additional questions presented as to whether on the trial as to monetary damages the trial court improperly admitted evidence as to other sales, and also as to whether as to one parcel the United States is an indispensable party.

The facts of the case are these: The plaintiff district (consisting of all of the territory within Monterey County) was created in 1947 by the Monterey County Flood Control and Water Conservation District Act (Stats.1947, Ch. 699, p. 1739; West's Water Code App., Ch. 52; sometimes herein called the 'act'). By the act, the district is vested with certain enumerated powers (§ 52-5, Water Code App.), including 'the right of eminent domain, either within or without said district,' and 'to take any property necessary to carry out any of the objects or purposes' of the act. (§ 52-6, Water Code App.) Section 4 of the act as originally adopted in 1947 and before the 1956 amendment hereinafter referred to is set forth in the margin ¹.

It is to be noted that the objects as stated include the control of flood waters and the conservation of such waters for beneficial and useful purposes.

The board of supervisors of the district adopted a resolution of public necessity as to parcels 1 and 2 belonging to defendant on September 20, 1955, and the action to condemn said parcels for the dam and reservoir project was filed on the same date. Approximately two months later on November 15, 1955, the court made an order for immediate possession. Before defendant appeared the district filed an 'amended' complaint on November 16, 1956. In the meantime, on April 25, 1956, section 4 of the act was amended (Stats.1957, Ch. 60, p. 452) to clarify the purposes of the act to include the objective of the construction, maintenance and operation of recreational facilities 'as an incident to any works, dam or reservoir heretofore or hereafter constructed.'

The 'amended' complaint pleaded the district's statutory right to maintain the action and specifically referred to said Chapter 60 and also added a third parcel to the other two parcels sought in fee simple.

Defendant did not appear in the action until March 20, 1957, when a demurrer was filed to the 'amended' complaint. April 30, 1957, plaintiff filed its 'second amended' complaint. This second amended complaint had additional allegations bearing on necessity, and specifically disclaimed any intention of condemning the interests of the United States as the owner of parcel 3. The added allegations as to necessity were (a) that flooding would occur up to an elevation of 825 feet; (b) that all lands above, as well as below 825 feet, were necessary for water conservation purposes; (c) that defendant's lands about upon a minimum pool that would be available for recreational purposes and that plaintiff desired all the lands in fee that adjoined said pool. This second amended complaint again asserted that plaintiff relied on Chapter 60. After defendant's demurrer to this second amended complaint was overruled, the defendant answered the second amended complaint.

A pre-trial order in the case was made as of November 1, 1957. This order recognized that a motion to amend might be made by plaintiff. The motion for leave to amend was filed by plaintiff on December 5, 1957, and proposed certain amendments which, in effect, repeated the allegations of the prior second amended complaint that public interest, necessity and convenience required the acquisition of parcels 1, 2 and 3 for use in connection with the dam and reservoir, and added the allegation that public interest, necessity and convenience required the acquisition in fee simple of parcels 1 and 2 as an incident to the dam and reservoir for recreational areas and facilities.

After objection to the motion by defendant the court granted plaintiff's motion to amend.

Prior to the trial with a jury on the question of damages, there was a preliminary trial at which the issues of necessity, excess condemnation and all other legal points were tried by the court sitting without a jury.

Defendant's first contention is that the plaintiff district did not have power to condemn property for recreational uses and the court was without jurisdiction to make a judgment condemning property for such purpose.

Defendant argues that on the critical and important date of September 20, 1955, when the action was filed, the district did not have the power to condemn property for recreational uses; that Chapter 60 adopted in 1956 and amending section 4 of the act was not retroactive and did not apply to actions pending at the time; that if construed to be retroactive it would be unconstitutional as a violation of the due process and equal protection clauses of the Constitution.

In examining the original act as it existed at the time the action was brought and prior to the amendment of section 4 by Chapter 60 the entire statute as a whole and the objectives and purposes sought to be accomplished should be considered.

Section 34 of the act reads:

'This act, and every part thereof, shall be liberally construed to promote the objects thereof, and to carry our its intents and purposes.'

The second paragraph of section 6 provides that the power of eminent domain includes the right to take the fee or any lesser estate 'in any real property which the board of supervisors * * * shall determine is necessary for carrying out the purposes of this act.' [Italics added.]

This language plainly vests a wide discretion in the supervisors to determine what property is necessary to be taken for the carrying our of the purposes of the act as a whole.

Section 4 of the act (without considering the amendment made by chapter 60 in 1956) expressly declared that the objects and purposes of the Legislature in adopting the act were to conserve 'waters for beneficial and useful purposes' and also 'to obtain, retain and reclaim * * * waters for beneficial use within the district.' [Italics added.]

Section 5 of the act and its several subdivisions contain similar language implying, if not expressly conferring, broad discretion on the supervisors. Subdivision 4 permits acquisition by purchase or condemnation and the sale or disposition of real property, and the construction and operation of any works 'necessary or proper to carry out any of the objects or purposes of this act and convenient to the full exrecise of its powers.' Subdivision 5 permits storage in reservoirs and conservation of stored water 'for any purpose useful to the district.' Subdivision 6 permits control and conservation of waters 'for beneficial and useful purposes of said district.' Subdivision 9 permits acquisition by purchase or condemnation of property 'necessary or convenient for * * * lands for reservoirs for storage of necessary water, and all necessary appurtenances.' Subdivision 12 permits the district 'to do all acts necessary for the full exercise of all powers vested in said district * * * by this act.' [Italics added.]

Thus, when the act is read and construed as a whole, it would appear that the act not only confers broad discretion on the district's supervisors with respect to the particular lands or areas deemed necessary, proper or convenient for any project, but it also confers substantial discretion upon them to determine what may be nesssary or proper or convenient to carry out any object or purpose of the act, thus including power to determine whether recreational uses of the stored waters will be beneficial and useful to the district.

The basic policy of the state with respect to the conservation of water is expressed in the Constitution, article XIV, section 3, which provides: 'It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, * * *.'

Several sections of the Water Code indicate that the recreational use of water is a beneficial use thereof and is to be considered or planned in flood control and water conservation projects.

Section 12578 provides 'that the people of the State have a primary interest in the control and conservation of flood waters * * * and use of the State's water resources in the general public interest.' Section 12579 provides in part that 'The control, storage and full beneficial use of flood waters * * * are proper functions and activities of the State, in cooperation with counties, cities, state agencies and public...