Renninger v. State

• Decision Date: 12 January 1950
• Docket Number: No. 7567,7567
• Citation: 70 Idaho 170,213 P.2d 911
• Parties: RENNINGER et al. v. STATE et al.
• Court: Idaho Supreme Court

Page 911

213 P.2d 911

70 Idaho 170

RENNINGER et al. v. STATE et al.

No. 7567.

Supreme Court of Idaho.

Jan. 12, 1950.

J. H. Felton, Lewiston, William J. Jones, Lewiston, for appellants.

Robert E. Smylie, Attorney General, Don J. McClenahan, Asst. Atty. Gen., for respondents.

GIVENS, Justice.

Plaintiffs (appellants here) own certain real estate in Latah County purchased for and used as a recreation park, dance hall, cafe and home.

Highway No. 95 is a public highway crossing the Palouse River on adjacent land. In 1946 and 1947, the Department of Public Works constructed a concrete bridge with approaches across the Palouse River, replacing an old bridge, and in so doing the highway was raised in grade and the same acted as a dam partially obstructing the natural flow of the river, causing it to overflow lands owned by the plaintiffs during high water and freshet stages.

The bridge is so constructed that the plaintiffs' property has been overflowed for a period of several days and the flooding of plaintiffs' property by the overflow from the Palouse River has, according to the complaint, rendered the property unfit for recreational purposes and has rendered the residence, cafe and other buildings untenable during certain periods of the year.

The complaint alleges that the action of the Department of Public Works in so constructing the bridge has taken from the plaintiffs the greater portion of the value of the property, reducing the value by the sum of $20,000.00; and the State has failed and refused to institute condemnation proceedings to determine the extent of the taking of plaintiffs' property.

The plaintiffs presented a claim to the Board of Examiners of the State of Idaho for $20,000.00, which the Board of Examiners denied.

The State (defendant) demurred to the complaint on the ground that the court has no jurisdiction over the defendant or the subject matter of the action; and that the complaint does not state facts sufficient to constitute a cause of action. The trial judge sustained the demurrer and dismissed the proceedings. This appeal is from the judgment.

While the bridge, road or approaches in question do not cross any part of the plaintiffs' land, it is the contention of the appellants that the overflowing of the land in the manner alleged constitutes a taking of the land.

The Supreme Court of the United States construed, as set forth below, this provision of the Wisconsin Constitution:

'The property of no person shall be taken for public use without just compensation therefor.' (Art. 1, § 13), as comprehending thereunder a 'taking' resulted where land was flooded by the erection of a public structure under circumstances similar to the situation herein. The Wisconsin Constitution as to 'taking' is essentially the same as ours, Article I, Section 14:

'* * * Private property may be taken for public use, but not until a just compensation to be ascertained in the manner prescribed by law, shall be paid therefor.'

'The declaration states that, by reason of the dam, the water of the lake was so raised as to cause it to overflow all his land, and that the overflow remained continuously from the completion of the dam, in the year 1861, to the commencement of the suit in the year 1867, and the nature of the injuries set out in the declaration are such as show that it worked an almost complete destruction of the value of the land.

'The argument of the defendant is that there is no taking of the land within the meaning of the constitutional provision and that the damage is a consequential result of such use of a navigable stream as the government had a right to for the improvement of its navigation.

'It would be a very curious and unsatisfactory result, if in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the governments, and which has received the commendation of jurists, statesmen and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent; can, in effect, subject it to total destruction without making any compensation, because in the narrowest sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors.' * * *

'But there are numerous authorities to sustain the doctrine that a serious interruption to the common and necessary use of property may be, in the language of Mr. Angell, in his work on water-courses, equivalent to the taking of it, and that under the constitutional provisions it is not necessary that the land should be absolutely taken. * * * As it is the Constitution of that State that we are called on to construe, these decisions of her Supreme Court, that overflowing land by means of a dam across a stream is taking private property, within the meaning of that instrument, are of special weight if not conclusive on us. * * *.' * * *

'We are not unaware of the numerous cases in the state courts in which the doctrine has been successfully invoked, that for a consequential injury to the property of the individual arising from the prosecution of improvements of roads, streets, rivers and other highways for the public good, there is no redress; and we do not deny that the principle is a sound one in its proper application, to many injuries to property so originating. And when, in the exercise of our duties here, we shall be called upon to construe other state constitutions, we shall not be unmindful of the weight due to decisions of the courts of those States. But we are of opinion that the decisions referred to have gone to the uttermost limit of sound judicial construction in favor of this principle, and, in some cases, beyond it, and that it remains true that where real estate is actually invaded by superinduced additions of water, earth, sand or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution, and that this proposition is not in conflict with the weight of judicial authority in this country, and certainly not with sound principle. Beyond this we do not go, and this case calls us to go no further.' Pumpelly v. Green Bay & Mississippi Canal Co., 13 Wall. 166, 80 U.S. 166, 20 L.Ed. 557 at pages 560-561.

This case has been followed approving the doctrine that the government cannot, by abstaining from absolute conversion of property, inflict permanent and irreparable injury on it without making any compensation, under a plea that it is not 'taken' for the public use. Eaton v. Boston, C. & M. R. R. Co., 51 N.H. 504, 12 Am.Rep. 147, is thus quoted with approval by Staton v. Norfolk & C. R. Co., 111 N.C. 278, 284, 16 S.E. 181, 183, 17 L.R.A. 838 at page 843, after likewise quoting with approval from the Pumpelly case, supra. The following cases affirm and apply the same principle: Hollingsworth v. Parish of Tensas, C.C., 17 F. 109, at page 115, 4 Woods 288, 289; King v. United States, C.C., 59 F. 9, at page 12; Conniff v. City and County of San Francisco, 67 Cal. 45, 47, 7 P. 41, at page 44; approved in Tyler v. Tehama County, 109 Cal. 618, 42 P. 240, at page 242:

'If the property of the plaintiff was in fact taken for public use without having been condemned and paid for under the provisions of the Code relating to eminent domain, he may recover compensation therefor in an appropriate action, notwithstanding the mode of its taking was unauthorized.' Larrabee v. Town of Cloverdale, 131 Cal. 96, 63 P. 143, as to taking by partial flooding; Colusa & H. R. Co. v. Leonard, 176 Cal. 109, 167 P. 878 at page 883; Dick v. City of Los Angeles, 34 Cal.App. 724, 168 P. 703; and generally, Weisshand v. City of Petaluma, 37 Cal.App. 296, 174 P. 955; Haynes v. Indio Levee Dist., 46 Cal.App. 436, 189 P. 475; Smith v. City of Los Angeles, 66 Cal.App.2d 562, 153 P.2d 69; Kemper v. City of Louisville, 14 Bush, Ky., 87 at page 92; Mayor, etc. of City of Baltimore v. Merryman, 86 Md. 584, 592, 39 A. 98 at page 99; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308 at pages 321, 324; Inman v. Tripp, 11 R.I. 520, 525, 23 Am.Rep. 520, 523.

In Hughes v. United States, 230 U.S. 24, 33 S.Ct. 1019, 57 L.Ed. 1374, 46 L.R.A.,N.S., 624, the facts were different, in that liability was claimed because the United States had constructed a levee not along the line of an original levee theretofore constructed to protect appellant's land from a rise of the Mississippi River, but instead, constructed the levee on what might be termed the back or far side of appellant's land; thus, his land lay between the two levees. The Court specifically noted:

'* * * This being so, as it is not pretended that the building of the new line of levee here considered trespassed upon the property rights of the owners of the Timberlake plantation by an actual taking of land, the asserted claim but comes to this: that the owner of the Timberlake plantation, abutting on the river, is entitled to hold the United States responsible, because in improving the navigation of the river the officers of the United States, in selecting the place where the levee should be built, did not select the front of the plantation, that is, did not construct the levee along the river bank of the plantation. Thus accurately fixing the contention, it is patent that we cannot affirm the judgment...