Platts v. Sacramento Northern Ry.

• Decision Date: 28 October 1988
• Docket Number: No. A038279,A038279
• Citation: 205 Cal.App.3d 1025,253 Cal.Rptr. 269
• Court: California Court of Appeals Court of Appeals
• Parties: Robert G. PLATTS, Plaintiff and Appellant, v. SACRAMENTO NORTHERN RAILWAY, Defendant and Respondent.

Page 269

253 Cal.Rptr. 269

205 Cal.App.3d 1025

Robert G. PLATTS, Plaintiff and Appellant, v. SACRAMENTO NORTHERN RAILWAY, Defendant and Respondent.

No. A038279.

Court of Appeal, First District, Division 5, California.

Oct. 28, 1988.

Lawrence G. Smith, Smith, Etnire, Polson, Scott & Baker, Pleasanton, for plaintiff and appellant.

B. Clyde Hutchinson, James C. Martin, Joseph P. Mascovich, Scott M. Schoenwald, Crosby, Heafey, Roach & May, Oakland, for defendant and respondent.

LOW, Presiding Justice.

A former owner of an underground tunnel easement who removed subjacent support from the surface land may be liable for property damage to the surface owner even after the owner transfers the property. Plaintiff, however, has failed to produce any declarations or facts to refute defendant Sacramento Northern Railway's showing that it did not remove any subjacent support. We affirm the summary judgment.

Robert G. Platts sued defendant Sacramento Northern Railway (Northern) and the State of California for the destruction of his house allegedly caused when an abandoned railroad tunnel beneath his property collapsed. ¹ Northern was the predecessor in interest and the state was the most recent owner of the land, including the tunnel and the rights of way. He alleged that the railway was absolutely liable for its failure to provide adequate subjacent support. Relying on the recent decision in Preston v. Goldman (1986) 42 Cal.3d 108, 227 Cal.Rptr. 817, 720 P.2d 476, the trial court granted summary judgment in favor of Northern. Plaintiff appeals, contending (1) the actor who causes the loss of subjacent support is absolutely liable for damages proximately caused thereby and (2) material issues of fact exist to defeat summary judgment. We affirm.

The undisputed facts are as follows: On December 12, 1976, plaintiff purchased an unimproved lot from the State of California in the Oakland Hills on which he planned to build his residence. The chain of title disclosed the existence of an abandoned railroad tunnel which passed underneath the property. The tunnel had been excavated by the Oakland and Antioch Railway (OAR) between 1910 and 1913, pursuant to an easement acquired from the People's Water Company and the Mahogany Eucalyptus and Land Company. In 1920, OAR sold the tunnel easement to the San Francisco-Sacramento Railroad Company (the SFSRR). Eight years later in July 1928, defendant Northern purchased the real and personal property of SFSRR and acquired the tunnel easement. Northern operated its railroad line through this tunnel from 1928 to 1957. Over time, Northern replaced numerous timbers in the tunnel. In 1957, Northern discontinued use of the tunnel. After six months of nonuse, Northern's easement interest in the tunnel reverted to the surface landowner, pursuant to the original grant deed to OAR. On October 8, 1958, Northern quitclaimed any remaining interest in the tunnel easement to the State of California. The state owned and occupied this property until plaintiff's purchase in 1976.

In his opposition, plaintiff claims when he bought the land from the state he was not aware of the tunnel. Five months later, plaintiff applied for a building permit and was informed of the tunnel's existence. Prior to construction, he hired a consulting engineer who informed him that the house should be placed on reinforced grid capable of resisting settlement effects. The engineer also reported that the tunnel appeared to be in "relatively good condition." The report also contained the disclaimer that they could not "guarantee the stability or performance of this or any hillside site."

Plaintiff began construction in August 1977. Four months later, a portion of the land subsided. Plaintiff deposited fill to repair the subsidence and completed construction in May 1978. Four years later, in January 1982, the earth collapsed beneath the house, destroying it. Plaintiff alleged that this was caused by the collapse of a portion of the abandoned tunnel.

Plaintiff argued that Northern breached its common law duty to provide subjacent support for the surface land which caused plaintiff's house to collapse. In its motion for summary judgment or summary adjudication of issues, Northern argued (1) that it did not excavate the tunnel and therefore it is not liable for the damage, and (2) it did not assume any obligations of liabilities of its predecessor in interest, and (3) it is not liable since it relinquished possession and control to the state more than 20 years before the accident.

I

California relies on the rule of law that as to patent defects once a property owner has sold his land he is not liable for injuries caused by the defective conditions which existed on the land at the time of the sale. (See Preston v. Goldman, supra, 42 Cal.3d at pp. 119, 122-127, 227 Cal.Rptr. 817, 720 P.2d 476.) Under the law of subjacent support, California follows the common law rule that the owner of subjacent support is absolutely liable for damages caused to the surface owner by removal of the natural necessary support. (Marin Mun. Water Dist. v. Northwestern Pac. R.R. Co. (1967) 253 Cal.App.2d 83, 89, 61 Cal.Rptr. 520; see Lee v. Takao Bldg. Development Co. (1985) 175 Cal.App.3d 565, 568-569, 220 Cal.Rptr. 782 [removal of lateral support]; Rest.2d Torts, § 820, com b, p. 79.) The surface owner's cause of action accrues when the land subsides, not when the excavation was made. (Marin Mun. Water Dist., supra, 253 Cal.App.2d at p. 96, 61 Cal.Rptr. 520; Rest.2d Torts, supra, § 820, com. f, p. 80.) The right of the surface land to subjacent support is absolute and the actor is liable for damages without regard to negligence. (Island Creek Coal Co. v. Rodgers (Ky.App.1982) 644 S.W.2d 339, 343-344; Tankersley v. Peabody Coal Company (1964) 31 Ill.2d 496, 202 N.E.2d 498, 502; Rest.2d Torts, supra, § 820, com. b, p. 79.)

No California case has addressed the issue whether the party who removed the subjacent support is free from liability once the property is sold. The Restatement notes that transfer of the land to a third person does not relieve the actor of liability or subject the transferee to this liability. (Rest.2d Torts, supra, § 820, com. g, p. 80.) "The person liable under the rule stated in this Subsection is the actor who withdraws the naturally necessary support. It is immaterial, whether, in respect to the supporting land, the actor is owner, possessor, licensee or trespasser. The owner or possessor of this land is not liable under the rule stated in this Section unless he was an actor in the withdrawal of support." (Ibid.; see Tankersley v. Peabody Coal Company, supra, 202 N.E.2d at p. 502.) The duty is not enlarged by alterations of the natural conditions, and the actor is not liable for damage to improvements on the surface owner's land if he can prove the land would not have subsided if the improvements were not built. (See Marin Mun. Water Dist. v. Northwestern Pac. R.R. Co., supra, 253 Cal.App.2d at p. 97, 61 Cal.Rptr. 520; Rest.2d Torts, supra, § 820, com. d, pp. 79-80.)

The widely held rule is that a subsequent purchaser of land is not liable for the negligent removal of lateral support caused by the previous owner. (Lee v. Takao Bldg. Development Co., supra, 175 Cal.App.3d at p. 569, 220 Cal.Rptr. 782; First Nat. Bank & Trust Co. v. Univ. Mortg. & R. Trust (1976) 38 Ill.App.3d 345, 347 N.E.2d 198, 199; Rest.2d Torts, supra, § 817, subd. j, p. 69.) ² The result should be no different for liability for the removal of subjacent support. One rationale, common to both torts, is that it is unreasonable to hold the successor in interest liable for a defect it did not know about and for damages it could not possibly prevent. (See Tankersley v. Peabody Coal Company, supra, 202 N.E.2d at p. 502.) Moreover, there is a strong public policy to fix liability upon those responsible for the damage. Civil Code section 1714 provides that "[e]veryone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person...." (Subd. (a); see also Lee v. Takao Bldg. Development Co., supra, 175 Cal.App.3d at pp. 568-569, 220 Cal.Rptr. 782.) The landowner who took possession of the property after the act causing the removal of the surface support is not responsible.

Preston v. Goldman, supra, relied upon by Northern, is itself a departure to the general rule laid down by Civil Code section 1714, ante. The Preston court concluded that the duty to take affirmative action to protect individuals coming upon one's land " 'is grounded in the possession of the premises and the attendant right to control and manage the premises.' [Citation.]" (42 Cal.3d at p. 118, 227 Cal.Rptr. 817, 720 P.2d 476.) The reasoning goes that a previous owner should not be held liable over defective conditions on the premises which he can no longer control or remedy. (Id., at pp. 118-119, 227 Cal.Rptr. 817, 720 P.2d 476.)

This analysis which is based on principles of foreseeability, due care and negligence has no application to the absolute right of the surface owner to subjacent support. (See Marin Mun. Water Dist. v. Northwestern Pac. R.R. Co., supra, 253 Cal.App.2d at p. 89, 61 Cal.Rptr. 520.) For this reason, the case relied upon by defendant, Preston, is inapplicable. The right to subjacent support is incident to the surface land and that right is not enlarged or amended by transfer of ownership. (See Rest.2d Torts, supra, § 820, com. g, p. 80; also First Nat. Bank & Trust Co., supra, 347 N.E.2d at p. 200 [removal of lateral support].) That duty is not altered by the use to which the surface owner puts his land or whom he allows upon it. In a strict sense, the damage to the surface land from the removal of subjacent support occurs at the time of the excavation, although the...