Southern Cal. Gas Co. v. Los Angeles County Flood Control Dist.

• Decision Date: 24 April 1959
• Citation: 338 P.2d 29,169 Cal.App.2d 840
• Court: California Court of Appeals Court of Appeals
• Parties: SOUTHERN CALIFORNIA GAS COMPANY, a corporation, Southern Counties Gas Company of California, a corporation, Plaintiffs and Respondents, v. LOS ANGELES COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic, Defendant and Appellant. Civ. 23356.

Page 29

338 P.2d 29

169 Cal.App.2d 840

SOUTHERN CALIFORNIA GAS COMPANY, a corporation, Southern Counties Gas Company of California, a corporation, Plaintiffs and Respondents, v. LOS ANGELES COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic, Defendant and Appellant.

Civ. 23356.

District Court of Appeal, Second District, Division 1, California.

April 24, 1959.

Rehearing Denied May 20, 1959.

Hearing Denied June 18, 1959.

Harold W. Kennedy, County Counsel, Iver E. Skjeie, Deputy County Counsel, Baldo M. Kristovich, Asst. County Counsel, Edward H. Gaylord, Deputy County Counsel, Los Angeles, for appellant.

T. J. Reynolds, L. T. Rice, Allen L. Cleveland, Los Angeles, C. R. Salter, Whittier, for respondents.

WHITE, Presiding Justice.

Southern California Gas Company and Southern Counties Gas Company of California, corporations, hereinafter referred to as the 'Gas Companies', brought this action in inverse condemnation against the Los Angeles County Flood Control District, a body corporate and politic, hereinafter referred to as the 'District', to recover $6,660.98, the cost of relocating their 30-inch high pressure gas pipe in a 20-year right-of-way easement therefor granted to them by the Pacific Electric Railway, the owner of the fee-simple title to the land since 1906. The District appeals from judgment for the Gas Companies.

August 25, 1953, the District entered into an agreement with the County of Los Angeles, in which it is recited that the issuance of its bonds 'for the control of surface waters by the construction of storm drains and drainage channels has been authorized', and the County agreed 'to proceed with the work of preparing final construction plans and specifications for the construction of those storm drain projects herein described * * *', including East Whittier Storm Drain Project No. 29, out of which the instant action arose, and to complete and deliver to the District said plans and specifications.

A portion of said County Engineer's undated specifications describes said Project No. 29 as follows: 'The work will extend in an easement, following the natural channel of La Canada Verde Creek, from a point approximately 90 feet southerly of Lambert Road to Second Street'.

The District's specifications, its contract for construction, and the contractor's faithful performance bond refer to the project as 'Construction of Storm Drain'.

In 1954, the District advised the Gas Companies that the District planned to widen and deepen the ditch known as 'East Whittier Storm Drain Project No. 29', and requested that their pipeline be relocated at their own expense 'under the terms of its permit or franchise'. The Gas Companies advised the District that the pipeline was within their own private easement. Then the District, by letter dated March 11, 1955, advised the Gas Companies that, although their pipeline is situated in a private easement, 'it crosses a natural drain along which this project will be constructed', and that in the case of 'natural drains such as this the public enjoys a natural easement which by its nature would predate any private easement', and that consequently the burden of relocating the pipeline was upon the owner of the private easement.

May 24, 1955, pursuant to authorization by the Board of Supervisors, an agreement for 'Easement for Storm Drain' across said land belonging to the Pacific Electric Railway Company was signed and acknowledged by the Railway and the District, 'subject to all valid existing contracts, leases, liens, or encumbrances which may affect the property and the word 'grant' as used herein shall not be construed as a covenant against the existence of any thereof'. The District, as consideration for said easement, promised to reimburse the Railway for any and all costs and expenses incurred in connection with changes required because of the construction of the said storm drain.

The Gas Companies' 'Underground Pipe and Ditch Crossing' agreement with the Railway is dated August 31, 1946, and covers the agreed term of twenty years.

The District and the Gas Companies, under date of May 1, 1955, entered into a status quo agreement reciting that 'the installation by the District of the Storm Drain * * * will necessarily conflict with an existing 30 inch pipeline * * *', and that a controversy exists between them as to which should bear the cost of relocation of said pipeline. Pursuant to said status quo agreement, the Gas Companies relocated their pipeline at a cost to them of $6,660.98.

It appears from the photographic exhibits, maps and drawings of the locale, and was found by the court, that Storm Drain Project No. 29 was designed and constructed to 'carry off surface rain water run off from the northern slope of the Puente Hills'. It was further found that said Project No. 29 is an artificial improvement of a natural watercourse; that, while the stream bed of La Canada Verde Creek is better defined north of Whittier Boulevard than in the vicinity of the Gas Companies' said pipeline, neverthelesss, as shown by the U. S. Geological Survey Maps and other evidence including photographs showing railroad trestles over it and culverts and ditches along its course, the portion of the stream bed being considered on this appeal has long been existent; that although the pipeline of the Gas Companies was well below the ground when installed, the flow of waters in said creek so eroded said channel that before its relocation said pipeline was protruding 'above the bed or flow line of La Canada Verde Creek'; and that it was necessary that said pipeline be relocated.

The District's justification of its refusal to pay the costs of the Gas Companies in moving their said pipeline is based primarily upon its claim that every owner of land (or of an easement over land) which is a part of, or immediately adjacent to 'a natural watercourse or drainway' owns it subject to 'a natural right of the public to utilize such natural facility', to there construct 'reasonable artificial improvements for the drainage' of domestic waters and from time to time to deepen and improve such channel for that purpose; and subject to the requirement that any improvements placed by such owner upon said land or easement must from time to time be altered at his own expense as required by public agencies 'in aid of the drainage of domestic waters in the drainway'; that the obligation and duty on the part of such owners of land and easements has been enforced as 'a part of the retained sovereign or police power of the public exercisable by jurisdictional bodies or agencies, of which appellant is one'; that the public always owned the right to the unrestricted drainway and to enlarge it when and if such enlargement is needed and all private ownership is subject to that right of the public.

That, if the state, of which appellant is the agent in the instant action, ever owned such an easement, it could not have been lost either by nonuser or by the agreement with the Railway for the 'Easement for Storm Drain' hereinbefore described.

Therefore, the first issue to be considered on the instant appeal is the nature of appellant District's rights in the land belonging to Pacific Electric Railway Company and the easement granted by said Railway to the Gas Companies. Is such right as stated in the grant of the 'Easement for Storm Drain', subject to the Railway's prior valid and existing contract with the Gas Companies for 'Underground Pipe and Ditch Crossing', or, is it, as urged by appellant, superior even...