Pacific Gas & Electric Co. v. Superior Court

• Decision Date: 21 July 1983
• Citation: 193 Cal.Rptr. 336,145 Cal.App.3d 253
• Court: California Court of Appeals Court of Appeals
• Parties: PACIFIC GAS AND ELECTRIC COMPANY, Petitioner, v. The SUPERIOR COURT OF SHASTA COUNTY, Respondent, Mark SUNDBERG, Real Party in Interest. Civ. 21070.

Page 336

193 Cal.Rptr. 336

145 Cal.App.3d 253

PACIFIC GAS AND ELECTRIC COMPANY, Petitioner, v. The SUPERIOR COURT OF SHASTA COUNTY, Respondent, Mark SUNDBERG, Real Party in Interest.

Civ. 21070.

Court of Appeal, Third District, California.

July 21, 1983.

Charles T. Van Deusen, James C. Logsdon, David Anderson and Steven P. Burke, San Francisco, for petitioner.

No appearance for respondent.

The Boccardo Law Firm, Stephen J. Walwyn and Edward Niland, San Jose, for real party in interest.

PUGLIA, Presiding Justice.

Petitioner, Pacific Gas and Electric Company (P.G. & E.), is the defendant in a personal injury action brought by real party in interest, Mark Sundberg (plaintiff). P.G. & E. seeks a writ of mandate ordering respondent superior court to set aside a ruling denying P.G. & E.'s motion for summary judgment. We issued an alternative writ to consider whether Civil Code section 846 immunizes P.G. & E. from liability for injuries plaintiff sustained while engaged in recreational boating on navigable waters which flow over P.G. & E.'s land. As we conclude that petitioner is not entitled to the protection of section 846, we shall deny the writ. ¹

On May 29, 1978, plaintiff and his family were camping at a United States Forest Service campground bordering Lake Shasta. Plaintiff launched his sailboat, a catamaran with an aluminum mast, from a nearby launching ramp supervised by Forest Service employees. Plaintiff's purpose was recreational. Once in the water, the boat drifted, the mast came into contact with P.G. & E. power lines overhanging the water, and plaintiff sustained the injuries which are the subject of the underlying action.

The P.G. & E. power lines pass over Bailey Cove, an arm of Lake Shasta, and are suspended from steel towers located on land on either side of the Cove. A wooden pole sunk in the ground underneath the water supports the lines midway between the two towers. The pole is visible from the launch ramp and has affixed to it two signs reading "Danger" and at least one sign warning of "High Voltage."

P.G. & E. owns the land over which its power lines run and on which its towers and pole are situated. Its ownership is subject to a perpetual right of the federal government to overflow the property with water impounded by Shasta dam. P.G. & E. concedes that the waters of Lake Shasta flowing over its property are navigable.

P.G. & E.'s motion for summary judgment was based on Civil Code section 846, a statutory exception to the general rule that landowners are responsible for injuries occasioned to another by want of ordinary care in the management of their property. (See Civ.Code, § 1714.) At the time of plaintiff's injury, section 846 provided that an "owner of an estate in real property owes no duty of care to keep the premises safe for entry or use by others" for designated "recreational purpose[s]" including "water sports." (Stats.1976, ch. 1303, § 1.) ² P.G. & E. argues that its ownership of the underlying land entitles it to the protection of section 846 as a matter of law and the fact that plaintiff "was in a boat on water is no different than if he were on a horse or a motorcycle or a hang glider or anything else that would isolate [him] from direct physical contact with PG and E's real property."

Civil Code section 846 is intended to encourage landowners to allow the general public free access to their property for purposes of recreation. (Parish v. Lloyd (1978) 82 Cal.App.3d 785, 787, 147 Cal.Rptr. 431; see also Delta Farms Recreation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707-708, 190 Cal.Rptr. 494, 660 P.2d 1168; Nelsen v. City of Gridley (1980) 113 Cal.App.3d 87, 91, 169 Cal.Rptr. 757; Paige v. North Oaks Partners (1982) 134 Cal.App.3d 860, 863, 184 Cal.Rptr. 867.) In other words, the statutory goal is to constrain the growing tendency of private landowners to bar their land to the public for recreational uses because of the threat of gratuitous tort liability. (Parish, supra, 82 Cal.App.3d at pp. 787-788, 147 Cal.Rptr. 431; see also English v. Marin Mun. Water Dist. (1977) 66 Cal.App.3d 725, 731, 136 Cal.Rptr. 224, disapproved on other grounds in Delta Farms, supra, 33 Cal.3d at p. 707, 190 Cal.Rptr. 494, 660 P.2d 1168; Smith v. Scrap Disposal Corp. (1979) 96 Cal.App.3d 525, 529, 158 Cal.Rptr. 134; Paige, supra, 134 Cal.App.3d at p. 863, 184 Cal.Rptr. 867.)

Although plaintiff at the time he was injured was involved in a recreational "water sport" as contemplated by Civil Code section 846, the injury took place not on the P.G. & E. land underneath the lake or the poles and wires affixed thereto (see Balestra v. Button (1942) 54 Cal.App.2d 192, 197-198, 128 P.2d 816; Civ.Code, § 658) but on the navigable waters of Lake Shasta (see Harb. & Nav.Code, § 100 et seq.; National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 435, 189 Cal.Rptr. 346, 658 P.2d 709). It bears emphasis that plaintiff did not in any way disturb P.G. & E.'s land, towers or poles or make use of them or of P.G. & E.'s overhanging wires in pursuit of his "recreational purpose." Stated otherwise, there was no "entry" or "use" of P.G. & E.'s "premises" by plaintiff for any "recreational purpose" within the meaning of Civil Code section 846.

We do not rest our decision solely on interpretation of the statute. Historical uncertainty over the precise scope of the immunity statute and the extensive use in California of navigable waters as a recreational resource prompt us to consider plaintiff's alternate grounds for defeating P.G. & E.'s immunity claim.

All navigable waterways are held in trust by the state for the benefit of the public (National Audubon Society v. Superior Court, supra, 33 Cal.3d at p. 434, 189 Cal.Rptr. 346, 658 P.2d 709), and the public may use such waters for recreational purposes. ³ (City of Los Angeles v. Venice Peninsula Properties (1982) 31 Cal.3d 288, 291, 182 Cal.Rptr. 599, 644 P.2d 792; Marks v. Whitney (1971) 6 Cal.3d 251, 259, 98 Cal.Rptr. 790, 491 P.2d 374). Generally, sovereign ownership of navigable waterways extends to the underlying land. (National Audubon Society, supra, 33 Cal.3d at p. 434, 189 Cal.Rptr. 346, 658 P.2d 709.) Where underlying lands are in private ownership, however, they remain subject to public trust restraints and may not be alienated or used in a manner harmful to trust purposes. (City of Los Angeles, supra, 31 Cal.3d at p. 291, 182 Cal.Rptr. 599, 644 P.2d 792; National Audubon Society, supra, 33 Cal.3d at pp. 437-438, 189 Cal.Rptr. 346, 658 P.2d 709, citing Illinois Central Railroad Company v. Illinois (1892) 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018); see also Stevens, The Public Trust (1980) 14 U.C. Davis L.Rev. 195, 210-214.)

The public right of access to navigable waters is of constitutional origin. (People ex rel. Younger v. County of El Dorado (1979) 96 Cal.App.3d 403, 406, 157 Cal.Rptr. 815.) "No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a ... navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof." (Cal. Const., art. X, § 4.) ⁴

Case law applying the constitutional provision confirms the public right of passage, in a lawful manner, over waters usable only for small-craft recreational boating, irrespective of the ownership of the water bed. (See Stevens, The Public Trust, supra, 14 U.C.Davis L.Rev. at p. 209; National Audubon Society, supra, 33 Cal.3d, p. 435, fn. 17, 189 Cal.Rptr. 346, 658 P.2d 709.) In People ex rel. Baker v. Mack, supra, 19 Cal.App.3d 1040, 97 Cal.Rptr. 448, this court affirmed injunctive relief restraining riparian owners of Fall River from interfering with free public use of the river below high water mark. Hitchings v. Del Rio Woods Recreation & Park Dist., supra, 55 Cal.App.3d 560, 127 Cal.Rptr. 830, upheld public use of property of a recreation and park district on the Russian River for recreational canoeing, even though the river was not navigable throughout the year. In People ex rel. Younger v. County of El Dorado, supra, 96 Cal.App.3d 403, 157 Cal.Rptr. 815, this court invalidated as a denial of the "constitutional right of the public to use of and access to a navigable stream" an ordinance asserting the police power to prohibit all boating and rafting on a section of the American River. (At p. 407, 157 Cal.Rptr. 815.)

The Constitution and the decisions applying it make it abundantly clear that P.G. & E.'s ownership interest in the land underlying and the power lines overhanging Bailey Cove could not encompass any interest in the waters themselves which would interfere with the public trust. (Cf. Civ.Code, § 659.) In particular, P.G. & E. does not possess any right to exclude members of the public from entering on and using the waters of Lake Shasta for recreational purposes. (Cf. O'Shea v. Claude C. Wood Co. (1979) 97 Cal.App.3d 903, 911, 159 Cal.Rptr. 125; Smith v. Scrap Disposal Corp., supra, 96 Cal.App.3d at p. 529, 158 Cal.Rptr. 134.) On the contrary, plaintiff as a member of the public has a constitutional right to navigate the lake in his boat.

It is elementary that courts should attempt "to construe statutes in a manner which avoids constitutional difficulties." (Welfare Rights Organi zation v. Crisan (1983) 33 Cal.3d 766, 772, 190 Cal.Rptr. 919, 661 P.2d 1073.) If reasonable interpretation of the language of a statute permits, a construction that will render it valid and constitutional will be adopted. (See 58 Cal.Jur.3d, Statutes, § 97, pp. 460-461.)

Accordingly, we eschew an interpretation of Civil Code section 846 which would discourage the public from exercising its...