Sutfin v. State

• Decision Date: 11 April 1968
• Citation: 261 Cal.App.2d 50,67 Cal.Rptr. 665
• Court: California Court of Appeals Court of Appeals
• Parties: Roy SUTFIN, Willis Henderson and Floyd Bassett, Plaintiffs and Appellants, v. STATE of California et al., Defendants and Respondents. Civ. 11585.

Page 665

67 Cal.Rptr. 665

261 Cal.App.2d 50

Roy SUTFIN, Willis Henderson and Floyd Bassett, Plaintiffs and Appellants, v. STATE of California et al., Defendants and Respondents.

Civ. 11585.

Court of Appeal, Third District, California.

April 11, 1968.

Rehearing Denied May 7, 1968.

Hearing Denied June 5, 1968.

Watt & Peckham, by Reginald M. Watt, Chico, for plaintiffs-appellants.

Harry S. Fenton, Robert F. Carlson, Edward J. Connor, Jr., by Donald M. Pach, Dept. of Public Works, Sacramento, for defendant-respondent.

REGAN, Associate Justice.

In this action for damages for inverse condemnation, the trial court sustained the demurrer of defendant State of California, without leave to amend, stating plaintiffs' amended complaint failed to state a cause of action. Plaintiffs appeal from the trial court's judgment that the action be dismissed with prejudice as to defendant State of California.

By their first amended complaint plaintiffs allege that within the time allowed by law their claims for damages against defendant State of California were served and filed and thereafter denied; that defendant State of California participated in the planning, designing, construction, maintenance, and operation of highway (Interstate 5) and flood control works associated with the highway in the vicinity of and across Thomes Creek in Tehama County; that on or about December 22, 1964, waters from Thomas Creek were discharged out of the creek onto the motor vehicles of the plaintiffs, which were located on real property near, but out of, the channel of Thomes Creek, causing damage to their vehicles as a proximate result thereof, and that the discharge of the waters onto the motor vehicles was proximately caused by the plan, design, construction, maintenance or operation of Interstate Highway 5 and its associated flood control works. Plaintiffs seek money damages.

In discussing his ruling sustaining defendant's demurrer without leave to amend, the trial judge asserts the primary contention of the defendant State of California is that inverse condemnation is not available to plaintiffs as to personal property and, being in agreement, holds the complaint does not state a cause of action.

Plaintiffs contend damage to personal property is compensable under article I, section 14, of the state Constitution ¹ and argue that in this inverse condemnation action the concern is not with the statutory power but with the constitutional right of the owner of private property; that inverse condemnation is not limited by the statutory power of the infringing public body; and that the phrase 'public use' in article I, section 14, refers not to the property taken or damaged but to the public project which causes the damage.

Defendant State of California contends, in response, that the complaint must allege facts showing that private property has been taken or damaged for public use in order to state a cause of action for inverse condemnation; that the term 'public use' implies that the private property allegedly taken or damaged must have been or will be devoted to a public use; that damage to personal property is not a proper element of compensation within the meaning of article I, section 14; and that tort liability principles are exclusively controlling in this case.

We reverse the judgment of the trial court, and in so doing hold that in proper cases recovery may be had through inverse condemnation for the taking or damaging of private property for public use, whether said property be real or personal. ²

We find no merit in defendant's contention that in all cases the term 'public use' implies that the private property taken or damaged must have been or will be devoted to a public use and that plaintiffs' complaint must allege facts to establish such before a cause of action for inverse condemnation is stated.

In Clement v. State Reclamation Board, etc., 35 Cal.2d 628, 636--642, 220 P.2d 897, 902--906, per Traynor, J., the court states: 'If he obstructs the natural channel of the river, however, or creates a new artificial channel by which the natural stream waters of the river are carried into the lands of another that would have been protected therefrom but for the creation of the artificial channel, he is liable for damage resulting therefrom. (Citations.)

'* * *

'* * * 'The liability of the state under article I, section 14 of the California Constitution arises when the taking or damaging of private property is not so essential to the general welfare as to be sanctioned under the 'police power' (citations), and the injury is one that would give rise to a cause of action on the part of the owner independently of the constitutional provision. (Citations.) The provision permits an action against the state, which cannot be sued without its consent. It is designed, not to create new causes of action, but to give a remedy for a cause of action that would otherwise exist. The state is therefore not liable under this provision for an injury that is Damnum absque injuria. If the property owner would have no cause of action were a private person to inflict the damage, he can have no claim for compensation from the state. (Citations.) In the present case, therefore, plaintiffs have no right to compensation under article I, section 14, if the injury is one that a private party would have the right to inflict without incurring liability.' (Citations.) * * *

'If, however, the construction of a flood control project diverts natural stream waters onto the land of a private owner and causes damage thereto, that property is as much taken or damaged for a public use for which compensation must be paid as if it were condemned for the construction of a highway or a school. * * *

'* * *

'* * * The construction of the public improvement is a deliberate action of the state or its agency in furtherance of public purposes. If private property is damaged thereby the state or its agency must compensate the owner therefor, Cal. Const., Art. I, § 14; Perkins v. Blauth, 163 Cal. 782, 789, 127 P. 50; Kaufman v. Tomich, 208 Cal. 19, 25, 280 P. 130, whether the damage was intentional or the result of negligence on the part of the governmental agency. (Citations.) The decisive consideration is whether the owner of the damaged property if uncompensated would contribute more than his proper share to the public undertaking. (Citations.) * * *

'* * * 'If the water is diverted out of its natural channel and discharged into a different channel or upon neighboring land, the diverter is liable to the owner whose land is injured by such discharge. * * *''

In its reply brief defendant intimates that the Legislature has not authorized it to condemn personal property and therefore it is not liable in inverse condemnation. In support thereof, defendant cites section 104 of the Streets and Highways Code authorizing it to acquire real property only. The contention is without merit.

'* * * In an inverse condemnation suit * * * the public entity ordinarily has made no intentional exercise of condemnation authority, but has, in a manner often unexpected and unanticipated, caused injury to the plaintiff's property. The question of public use in this context does not depend upon a showing that there is statutory authority in the defendant entity to exercise affirmative eminent domain powers to accomplish the same result. All that is necessary to show is that the damage resulted from an exercise of governmental power while seeking to promote 'the general interest in its relative to any legitimate object of government. '' (Van Alstyne, supra, at p. 781; see Bauer v. County of Ventura, 45 Cal.2d 276, 284, 289 P.2d 1; see also, Ward Concrete Products Co. v. L.A. Flood Etc. Dist., 149 Cal.App.2d 840, 309 P.2d 546.)

Furthermore, liability in inverse condemnation is based on the state Constitution and not on statute.

Defendant notes that there is no allegation that the motor vehicles taken or damaged have been or will be devoted to a public use, and hence there is no public use of the automobiles at all. We find no merit, noting: 'It now appears settled that if the construction or maintenance of a public project is designed to serve the interests of the community as a whole, any property damage caused by the project or by its operations as deliberately conceived is for a public use and is constitutionally compensable. On the other hand, '(d) amage resulting from negligence in the routine operation having no relation to the function of the project as conceived' is not within the purview of section 14.' (Van Alstyne, supra, at p. 781; see Bauer v. County of Ventura, supra, 45 Cal.2d 276, 289 P.2d 1; Ambrosini v. Alisal Sanitary Dist., 154 Cal.App.2d 720, 317 P.2d 33.)

Justice Traynor in his concurring opinion in House v. L.A. County Flood Control Dist., 25 Cal.2d 384, at pages 395--397, 153 P.2d 950, at page 955, states as follows:

'Defendant is a public corporation created by an act of the Legislature, known as the 'Los Angeles Flood Control Act', Stats.1915, p. 1502, as amended; Deering's Gen.Laws, Act 4463, to protect lands, including harbors and public highways from flood waters and to conserve the flood waters for...