Opinion
— Defendants State of California, Reclamation District 1000 (RD 1000), and American River Flood Control District (ARFCD) appeal from a judgment, following a bench trial, finding defendants liable for inverse condemnation claims of 25 plaintiffs whose personal and real property were damaged by flooding during heavy storms in February 1986. 1
Except for plaintiffs whose properties were located in an area known as Strawberry Manor, plaintiffs’ properties were damaged when flood control works that were designed to protect lower lying lands created a hydraulic
Defendants contend, among other things, that they are not liable because plaintiffs must prove and failed to prove unreasonable conduct by the defendants, pursuant to a rule first enunciated in
Belair
v.
Riverside County Flood Control Dist.
(1988)
The California Supreme Court granted review of our original opinion in this case, and later transferred the case back to us with directions to vacate our original opinion and reconsider in light of
Bunch
v.
Coachella Valley Water Dist.
(1997)
We shall conclude the reasonableness test does not apply if governmental flood control works cause flooding by intentionally diverting water to upstream private property which was not historically subject to flooding, in order to protect lower lying land. We shall therefore reverse the judgment and remand for the limited purpose of having the trial court make a finding on the issue whether plaintiffs’ properties (other than Strawberry Manor) were historically subject to flooding in the absence of the flood control works at issue in this litigation.
We shall also conclude that, although Belair's reasonableness test applies to the flooding of Strawberry Manor, remand is required for the trial court to evaluate reasonableness under factors first adopted in cases postdating the trial court’s
decision
— Locklin v.
City of Lafayette
(1994)
Factual and Procedural Background
Plaintiffs’ properties are located in Sutter and Sacramento Counties, generally to the east and north of the public improvements in question. In their natural condition, plaintiffs’ lands drained to the west into an area known as the “American Basin.” The American Basin is a large area of low-lying lands bounded generally by the Bear River on the north, the Feather River and Sacramento River on the west, the American River on the south, and higher ground to the east. The American River flows west into the Sacramento River. In its natural condition the American Basin eventually drains into the Sacramento River and out to the sea.
The parties have divided the properties that are the subject of this litigation into three distinct geographical areas:
1. “North of Sankey Road” — land in Sutter County lying east of the American Basin and north of Sankey Road;
2. “Rio Linda” — land in Sutter and Sacramento Counties, lying east of the American Basin and south of Sankey Road, bordered by Sankey Road on the north and Dry Creek on the south; and
3. “Strawberry Manor” — a housing development in the City of Sacramento, lying east of the American Basin and south of the other two groups of damaged properties. Strawberry Manor lies within the geographical territory of ARFCD and is adjacent to Arcade Creek and Rio Linda Boulevard.
The public improvements which caused the damage in this case are part of the Sacramento River Flood Control Project (SRFCP). The portions of the SRFCP at issue protect the lower lying lands to the west and south of plaintiffs’ properties, including the American Basin and downtown Sacramento. Levees and the Natomas East Main Drain (NEMD), an artificially created canal running north to south along the east border of the American Basin, protect the American Basin by diverting surface and stream waters that flow from the east. These public works prevent the flow from entering the American Basin. The diverted waters flow either south in the NEMD into
Running along the west side of the NEMD is a “back levee” (which is also called the “east levee” because it borders the east side of RD 1000). Running along the east side of the NEMD are railroad levees with numerous openings that allow water from the east to drain downhill to the west.
The genesis of the public works dates back to 1911, when the state adopted a California Debris Commission Report (the Jackson Report), which provided for the construction of levees along the Sacramento and American Rivers and their tributaries to protect and reclaim the adjacent areas.
RD 1000 was created in 1911 by the state Legislature for the purpose of reclaiming the land of the American Basin and to prevent further flooding of that land. In 1916, RD 1000 designed and constructed the NEMD and back levee. RD 1000, together with another reclamation district to its immediate north, also built the Cross Canal. RD 1000 is thus bounded on the west by the Sacramento River, on the north by the Cross Canal, on the east by the back levee and the NEMD, and on the south by the American River. The purpose of the NEMD and back levee was to reclaim land of the American Basin located within RD 1000 by collecting stream and surface waters flowing from the east and diverting those waters into the NEMD. The back levee diverted Dry Creek, Arcade Creek, and other streams from their natural course, obstructing the normal passage of those streams into the American Basin and raising water levels east of the back levee. The NEMD then carried the diverted waters south to the American River and north to the Cross Canal, which in turn carried water west to the Sacramento River. As found by the trial court, the natural drainage was dammed and diverted by the combined effects of the project.
Studies and reports from that time period recognized that the public works created a risk of flooding upstream property to the east under certain circumstances.
In 1927 the state Legislature created ARFCD, whose territory lies to the east of the NEMD, to protect lands in the cities of Sacramento and North Sacramento and their environs. In 1935, levees were constructed along both sides of the American River and the south side of Arcade Creek.
In the 1950’s, the United States Corps of Engineers began constructing a system of integrated flood control facilities in the Sacramento region
In 1953, the SRFCP works were transferred to the state. A memorandum of understanding confirmed the state’s obligation to operate and maintain all completed works of the SRFCP and to hold the federal government harmless. The state turned the levees over to the local districts for maintenance and operation but maintained responsibility for the project.
One of the levees in ARFCD’s territory has a gap where the Rio Linda Bridge crosses Arcade Creek. Defendants had no set plan to close that gap at high flood stages.
By 1956, the Corps of Engineers completed construction of Folsom Dam (which is operated by the United States Bureau of Reclamation), along with additional levees on the American River below the dam. These levees were then turned over to the State of California and accepted by the state for maintenance and operation. The levees were constructed to protect and reclaim low lands of the City of Sacramento and its suburbs, which were then extensively developed as residential areas.
Also in 1956, the state asked the Corps of Engineers to assume responsibility for the entire east side of the NEMD because of the perceived risk to lands to the east. The Corps of Engineers refused.
In February 1986, during unusually heavy storm conditions, when flows were high in both the Sacramento and American Rivers, waters in the NEMD and Cross Canal created a “hydraulic dam” 4 and backwater effect, 5 causing flooding of plaintiffs’ properties. Lands to the west and south of plaintiffs’ properties were saved from flood damage. In Strawberry Manor, the City of Sacramento (which is not a party to this appeal) during the midst of the storms attempted to close the gap in the levee at the Rio Linda Boulevard Bridge with sandbags, but the sandbagging was negligently performed and was ultimately unsuccessful, causing flood damage to Strawberry Manor.
In December 1986, more than 400 plaintiffs filed this action alleging various theories against various public entities. In 1992, following pretrial proceedings and settlements, the case proceeded to a bench trial against the
In its statement of decision, the trial court concluded that “[a]s a result [of the diversion of water], under certain conditions, a hydraulic dam effect was created in the NEMD during high stages in the American River. This hydraulic dam effect impeded the diverted flow of water from the NEMD into the American River, resulting in higher water elevations in the NEMD and to the east. . . . [H] . . . [T]he SRFCP creates a hydraulic dam effect under certain conditions in the Sacramento River. This hydraulic dam effect impeded the diverted flow of water from the NEMD into the Cross Canal and the Sacramento River, resulting in higher water elevations in the NEMD which caused overtopping and collapse of the old Sacramento Northern Railway which acted as the east levee of the NEMD north of Sankey Road.”
Without these diversions, said the court, plaintiffs’ properties would not have been damaged.
The trial court further found RD 1000 also added fractionally to the problem south of Sankey Road with two pumping plants that pumped surface water upstream out of the District into the NEMD.
As also found by the trial court, studies and reports dating back to the early 1900’s (including the Jackson Report and subsequent reports adopted by the state) “recognized the hydraulic dam and backwater effects which the back levees and discharges at the American River would cause and the need for protecting upstream properties. The State in the Bailey Report recognized that the lands east ofRD 1000’s back levees would be subjected to flooding and that the hazard needed to be addressed in order to protect these lands.” (Italics added.)
As further stated by the court: “Throughout the February 1986 flood, RD 1000’s system, including the levees, pumps, and other works operated and functioned as designed to successfully protect the land and extensive urban improvements located in the American Basin within the boundaries of RD 1000 from extensive flooding of the entire basin which would have occurred in February 1986 absent the works of SRFCP including, but not limited to, the back levee of RD 1000.” (Italics added.)
The court continued: “The construction of Folsom Dam was designed to release 115,000 cfs. on all but rare occasions. As a result of the intense
“The cumulative and combined effects of this channelization and containment of the waters of the SRFCP created a hydraulic dam at each end of the NEMD. This hydraulic dam, coupled with the effects of the earthen dam and pumps 6 and 8, caused induced flooding on plaintiffs’ properties and caused their property to be appropriated by defendants as a temporary retention basin for storing the diverted waters.” (Italics added.)
“North of Sankey Road the project caused levees protecting plaintiffs’ lands to the east to be overtopped and break. The backwater effect from the American River extended to Sankey Road in the north, causing diverted streams and intermittent water courses and surface waters to overtop the railroads and flood plaintiffs’ properties. South of Dry Creek the project caused Arcade Creek to escape its banks at Hagginwood Park and to overtop the Rio Linda Boulevard Bridge and escape through the gap in the levee.”
“The area north of Dry Creek west of Rio Linda Boulevard extending into Sutter County north of the cross canal flooded because of the project induced backwater effect in the NEMD and the Natomas Cross Canal, and the diversion of the streams and surface waters that formerly flowed into the American Basin.”
As to Strawberry Manor, the court found the primary cause of flooding was the gap at the Rio Linda Boulevard Bridge, the absence of a plan to close the gap was a substantial cause of plaintiffs’ damages, and the hydraulic dam effect of the back levee and the NEMD was also a substantial concurring cause.
The trial court further stated:
“The levee system protecting RD 1000 and the Cities of Sacramento, North Sacramento and their environs within the boundaries of the ARFCD and RD 1000functioned, as they were designed to function during the flood of 1986 and successfully protected the areas that were designed to be protected with the one exception of the gaps at Strawberry Manor. Because of the protection afforded to these areas, the plaintiffs’ properties were flooded, including Strawberry Manor. The damages to other citizens which were prevented by such protection were in excess of seven billion dollars.” 6 (Italics added.)
The trial court rejected the defense argument that liability depended on a finding of unreasonable conduct under
Belair, supra,
As to Strawberry Manor, the trial court found the Belair test applied and was met, in that it was unreasonable not to have a plan to close the gap in the levee in times of danger. “All entities assumed someone else would adequately sand bag or close the gaps by some appropriate means when it became necessary. To build a levee with such a gap in the middle without any plan to close the gap could only be described at best, as unreasonable and negligent conduct. An assumption that someone would close the gap is not a plan.”
The statement of decision summarizes the court’s conclusions as follows:
“In summary, the Court has found that the plaintiffs suffered damages to real and personal property caused by project[-]induced flooding which occurred in February 1986. Although the storm event was severe, it was
“The facts are extensive but they lead to the inescapable conclusion that the combined effects of the [SRFCP] as constructed and maintained for the successful protection of others was a substantial concurring cause of the induced flooding. Principal among those causes and effects were:
“1. The natural drainage was dammed and diverted.
“2. The diversion successfully protected the lower landowners.
“3. The diversion flooded the upper owners.
“4. The defendants unreasonably failed to provide for proper discharge of the diverted water.
“5. Defendants failed to comply with the legal standards set for the construction and operation of the SRFCP by:
“a. Failing to provide freeboard[ 7 ] as required;
“b. Failing to adopt a proper plan for a flood fight as required ....
“This is not a case of ‘failure to retain water within design capacity,’ but rather a case where it was clearly foreseeable, if not actually foreseen, that if the project worked as designed it would induce flooding in an event of this sort, billions of dollars worth of property would be protected and plaintiffs’ properties would be flooded as a consequence.
“Thus, in general the evidence has established more elements of liability for flooding than mínimums that were set forth in
Belair
v.
Riverside
. . .
County Flood Control Dist.
(1988)
“a. Actual physical injury to real and personal property was proximately caused by the public improvement as deliberately designed and constructed;
“b. The injury was foreseeable;
“c. If uncompensated, the plaintiffs would be required to contribute more than their proper share to the public undertaking and the loss inflicted
“d. Although the storm event was severe, there was a ‘ “substantial” cause and effect relationship which excludes the probability that other forces Alone produced the injury’;
“e. The project diverted waters that would not otherwise have crossed or damaged plaintiffs’ property;
“f. The flooding did not result from a failure to provide the plaintiffs with the same degree of protection as provided to others ... it resulted directly from the fact that protection was provided to others, thus the project increased the ‘natural servitude.’
“In substance, the evidence conclusively shows that the defendants’ joint ‘design, construction, and maintenance of the flood control project . . . posed an unreasonable risk of harm to the plaintiffs, and such unreasonable design, construction and maintenance constituted a substantial cause of the plaintiffs’ damages.’ The plaintiffs were required to bear a disproportionate share of the cost of the public improvement.”
The trial court found the state and RD 1000 jointly and severally liable for damages north of Sankey Road, and found all three defendants jointly and severally liable for damages in the Rio Linda and Strawberry Manor areas.
Judgment for the representative plaintiffs awarded specific dollar amounts (1) to the representative plaintiffs north of Sankey Road as against the state and RD 1000, and (2) to the Rio Linda and Strawberry Manor representative plaintiffs as against all three defendants.
Defendants moved for a new trial on the grounds of insufficient evidence and also moved to vacate judgment. Since Judge Fields, who conducted the trial, had retired and was unavailable, the matter was heard by Judge Ford. Not having heard the extensive trial evidence (which comprises more than 7,000 pages of reporter’s transcript and more than 600 exhibits) and not even having the trial transcript available, Judge Ford stated he was not in a position to make an informed decision and therefore declined to act during the statutory period, thereby effectuating a denial of the motions as a matter of law. 8 Defendants appeal from the judgment.
I. Belair’s Reasonable Conduct Standard
A. Property Other Than Strawberry Manor
Defendants contend the reasonable conduct standard of
Belair, supra,
1. Does the Belair Standard Apply?
California Constitution, article I, section 19 (hereafter section 19) provides in part: “Private property may be taken or damaged for public use only when just compensation . . . has first been paid . . . .”
“When there is incidental damage to private property caused by governmental action, but the governmental entity has not reimbursed the owner, a suit in ‘inverse condemnation’ may be brought to recover monetary damages for any ‘special injury,’ i.e., one not shared in common by the general public.”
(Locklin
v.
City of Lafayette, supra,
(1994)
The central issue in this case involves whether these rules must be applied in accordance with the reasonableness standard enunciated in
Belair,
a. Belair
In
Belair,
landowners brought inverse condemnation actions against a public flood control district and the state for property damage when a levee gave way after several days of heavy storms. The project was designed to prevent river waters from escaping and flooding a particular area of land which had historically been subject to flooding.
(Belair, supra,
Belair
held the plaintiffs could not recover in inverse condemnation under the California Constitution, because they had not adduced evidence that the flooding was the result of any unreasonable act or omission attributable to the defendants.
(Belair, supra,
The Belair court explained its reasoning as follows. 11
Before 1965, courts analyzed inverse condemnation liability by analogy to tort and property law principles, an approach predicated in part on the general understanding that inverse condemnation liability was limited to cases in which a private party would be held liable for injury to property under like circumstances.
(Belair, supra,
That general understanding changed with
Albers
v.
County of Los Angeles
(1965)
Thus,
Albers
held “ ‘any actual physical injury to real property proximately caused by the improvement as deliberately designed and constructed is compensable under article I, section [19], of our Constitution, whether foreseeable or not.’ ”
13
(Belair, supra,
In so holding, however,
Albers
retained two exceptions to this general rule of strict liability.
(Belair, supra,
Archer itself held lower landowners could not recover for injury to land caused by public improvements (straightening, widening and deepening) to an upstream channel to improve drainage, even though the improvements increased the flow of water into a lagoon with no expansion of the outlet from the lagoon to the sea. (Archer v. City of Los Angeles, supra, 19 Cal.2d at pp. 22-25.)
The other exception to the general rule of strict liability involved exercise of the police power, which in the context of a direct taking or damaging of property applies “ ‘only under “emergency” conditions; i.e., when damage to private property is inflicted by government “under the pressure of public necessity and to avert impending peril,” ’ ” e.g., demolition of a building to prevent the spread of conflagration.
14
(Belair, supra,
In these two types of circumstances, “ ‘the urgency or particular importance of the governmental conduct involved was so overriding that considerations of public policy inveighed against a rule rendering the public entity liable absent fault.’ ”
(Belair, supra,
However,
Belair
further explained the
Archer
exception did not leave public entities with unqualified immunity.
(Belair, supra,
The proper standard to be applied in such cases, said the
Belair
court, is that a public entity engaged in “privileged” activity will not be liable in
Belair
did not hold that
all
flood control activity is privileged, and the Supreme Court expressly declined to decide any question of inverse condemnation liability for nonprivileged activity.
(Belair, supra,
After stating it need not decide the validity of the diversion cases, the
Belair
court said: “It is doubtful, however, whether evidence of an unintended ‘diversion’ — an elusive concept to begin with (see Van Alstyne
[Inverse Condemnation: Unintended Physical Damage
(1969)] 20 Hastings L.J. [431,] 460-461) — would elevate the test of inverse condemnation liability to absolute liability, rather than a reasonableness standard. As earlier discussed, the purposes of the Constitution, rather than the rules ‘emanating from the complex and unique province of water law,’ must fix the extent of a public entity’s responsibility.”
16
(Belair, supra,
Belair
did not decide whether a reasonableness test applies in cases where there is a nonprivileged affirmative diversion. The Supreme Court said the case before the court was not a diversion case because the trial court found, and the evidence demonstrated, that the plaintiffs “were subject to periodic flooding before the levee was constructed, and that the levee did not ‘increase the risk of damage or impose any easement, servitude, or other burdens on plaintiffs’ property.’ ”
(Belair, supra,
b. Bunch II
In our original opinion in this case, we held
Belair
did not apply to plaintiffs’ properties (other than Strawberry Manor, which we discuss separately,
post).
The Supreme Court granted review and subsequently transferred this case back to us for reconsideration in light of
Bunch II, supra,
In
Bunch II,
property owners brought an inverse condemnation action against a local water district, seeking compensation for flood damage to their property suffered when the district’s project to divert water from a potentially dangerous natural watercourse failed in a severe storm. The trial court found the district had acted reasonably and entered judgment in favor of the district. The Supreme Court upheld the judgment, holding that in the context of flood control improvements along natural watercourses in which a public entity diverts and rechannels water under a flood control system of dikes and levees that fail in a severe rainstorm, causing damage to properties historically subject to flooding, the standard to assess liability is the reasonableness of the public entity’s conduct, rather than a strict liability standard. This conclusion avoided discouraging beneficial flood control improvements, while compensating losses unfairly incurred. The failure of flood control improvements to protect property adequately against historic periodic flooding should rest not on antiquated notions of fault or common law labels defining the type of waters requiring flood control measures, but rather on the balancing of interests that the state Constitution requires.
(Bunch II, supra,
Bunch II stated: “Belaid s dictum [doubting whether an unintended diversion would trigger strict liability] indicates that the court believed its analysis could apply to all flood control cases involving unintended property damage. Nonetheless, our reluctance to extend Belair beyond its facts is the basis for the Bunches’ assertion that the case has limited application, an argument aided, in some respects, by Belaid s invocation of tort concepts of ‘intent’ in a case addressing a public entity’s inverse condemnation liability under section 19. The Bunches also rely on Locklin‘s observation that Belair involved an activity formerly ‘privileged under the Archer doctrine.’ [Citations.]
“[H]owever,
Belaid &
policy reasons for imposing a reasonableness rule in common enemy cases — to avoid discouraging beneficial flood control improvements, while compensating losses unfairly incurred — extend logically to all cases involving flood control improvements affecting property historically subject to flooding, without regard to whether the activity was privileged at common law. A constitutional analysis for determining inverse
Bunch II further stated “nothing in Locklin or its progeny precludes application of Belair’s reasonableness rule to cases involving the failure of flood control measures designed to divert potentially dangerous natural water flow) 17 1 Pte-Belair cases considering inverse condemnation liability under the just compensation clause addressed whether owners of damaged property would contribute more than their proper share to the public undertaking if not compensated for the damage. [Citations.] In light of Belair and Locklin, this principle is balanced by the possibility that imposing open-ended liability on public entities charged with creating and maintaining flood control improvements will discourage the development of needed public works. [Citation.]
“As Professor Van Alstyne explained, ‘Plan or design characteristics that incorporate the probability of property damage under predictable circumstances may later be judicially described as “negligently” drawn; yet, in the original planning process, the plan or design with its known inherent risks may have been approved by responsible public officers as being adequate and acceptable for non-legal reasons. For example, the damage, although foreseeable, may have been estimated at a low order of probability, frequency, and magnitude, while the added cost of incorporating minimal
“Thus, the placement, design, and construction of even the most effective system inherently involve a complex balancing of interests and risks. Whatever choice the responsible agency makes will necessarily affect the patterns of flooding in the event the project fails, and will almost certainly increase certain risks in order to reduce others. The dangers posed to individual lands by the failure of any public flood control project are ‘potentially enormous’ and sometimes deserve compensation. However, strict and ‘open-ended’ liability for the failure of a project whose overall design, construction, operation, and maintenance was ‘reasonable’ would unduly deter the development of these vital bulwarks against common disaster. [Citation.]” (Bunch II, supra, 15 Cal.4th at pp. 449-450.)
Bunch II concluded: “In the context of inverse condemnation, therefore, a flood control agency does not necessarily exact ‘disproportionate, ’ and thus compensable, contributions from particular landowners simply because it constructs adjacent flood control improvements that may alter how floodwaters will affect those landowners if the improvements fail to contain the flow. When a public flood control system fails to protect land from historic periodic flooding, the only way to determine whether a damaged private landowner has thereby been forced to contribute a compensable ‘disproportionate’ share of the public undertaking is to determine whether the system, as designed, constructed, operated, and maintained, exposed him to an ‘unreasonable’ risk of harm, either individually or in relation to other landowners.
“Therefore, when a public flood control improvement designed to divert or rechannel potentially dangerous water flow is a substantial cause of property damage, courts must balance ‘ “public need against the gravity of private harm” ’ in determining whether to compensate the landowners for that damage. [Citation.] In balancing these interests, courts must weigh the factors set forth in
Locklin, supra,
7 Cal.4th at pages 368-369.[
18
] [Citation.] We derive from
Belair,
and from the
Locklin
factors applying its rule, the
Bunch II
concluded broadly: “The
Belair/Locklin
reasonableness test applies to cases involving public flood control works that cause physical damage to private property.” (
This broad statement of law was, however, qualified by a footnote in
Bunch II,
stating: “As in
Belair,
this case does not present, and we do not decide, the question whether the reasonableness standard applies when flood control measures cause flood damage to land that was not historically subject to flooding. (See
Belair, supra,
c. Our Reconsideration in Light of Bunch II
This case poses the question left open in
Bunch II,
whether the reasonableness standard applies where public flood control works, operating as intended, flood property which was not historically subject to flooding. Plaintiffs contend their parcels were not historically subject to flooding. Defendants claim they were. We shall conclude that if plaintiffs’ properties were not historically subject to flooding, then the reasonableness standard is inapplicable. Thus, plaintiffs would not be required to prove unreasonable conduct by defendants in order to prevail in their inverse condemnation claim. We shall further conclude the trial court made no finding on this issue. We shall therefore reverse the judgment and remand to the trial court to make a finding as to whether plaintiffs’ properties were historically subject to flooding in the absence of the flood control works at issue.
20
If the trial court finds plaintiffs’ properties were not historically subject to flooding, the court should conclude the reasonableness test is inapplicable. In that
We shall further conclude that, since Locklin was not yet decided at the time of the trial court’s original decision in this case, we are not confident the trial court considered the Locklin factors in making its alternate finding that defendants would be liable even under Belair’s reasonableness standard. We shall leave it to the trial court to decide whether to allow the parties to introduce new evidence on the question whether plaintiffs’ properties were historically subject to flooding.
The Reasonableness Standard Does Not Apply to Intentional Diversions to Property Not Historically Subject to Flooding
“ ‘ “The decisive consideration is whether the owner of the damaged property if uncompensated would contribute more than his proper share to the public undertaking.” In other words, the underlying purpose of our constitutional provision in inverse — as well as ordinary — condemnation is “to distribute throughout the community the loss inflicted upon the individual ....’” [Citation.]”
(Belair, supra,
Using private property not historically subject to flooding as a retention basin to provide flood protection to other property exacts from those owners whose properties are flooded a contribution in excess of their proper share to the public undertaking. We see no reason to put such property owners to the task of proving the governmental entities acted unreasonably in order for the owners to recover in inverse condemnation.
Bunch II
and
Belair
involved project
failures,
unlike the instant case where the issue is an intentional use of private property as a retention basin to protect other property.
21
Bunch II
said when a flood control system fails, the only way to determine whether a damaged landowner has been forced to
However, where property is damaged by a risk created by the public works, rather than nature, we do not believe application of a reasonableness standard is the only way to determine whether the owner of the damaged property has been forced to contribute a disproportionate share of the public undertaking. Thus, we see no reason to apply the reasonableness standard.
The importance of flood control never conferred on the government a privilege to use private property which was not historically subject to flooding as a retention basin in order to protect other property, without paying compensation. 22 We do not read Belair, Locklin, or Bunch II as compelling that result. Such public works would go beyond the mere alteration of risks inherent in all flood control projects, and we see no reason to apply a “reasonable conduct” standard to the resulting damage 23
It is antithetical to the precepts of the Constitution to allow the government affirmatively to burden private property not historically subject to flooding in order to save other property from flooding, and expect the damaged property owner to absorb the loss. Most crucially, if the government intentionally diverts water to upstream private property which was not historically subject to flooding, using that property as a retention basin in order to protect lower-lying land, imposition of inverse condemnation liability is fair. Our conclusion is not based on any arcane distinctions peculiar to water law but rather on commonsense application of inverse condemnation principles.
Here the public undertaking (in effect using plaintiffs’ land as a temporary retention basin) successfully averted billions of dollars of property loss to other property. Under the circumstances of this case, if plaintiffs’ properties were not historically subject to flooding, they should not be expected to bear their loss alone.
Defendants argue the reasonableness test should apply in all inverse condemnation cases involving flood control projects. 24 They quote Belair’s language that “. . . a public agency that undertakes to construct or operate a flood control project clearly must not be made the absolute insurer of those lands provided protection.” 25 (Belair, supra, 47 Cal.3d at p. 565.) However, government entities are not made absolute insurers if they are required to compensate for an intentional diversion pumping water upstream to private property not historically subject to flooding and using that property as a retention basin to protect other land.
We recognize
Bunch II
and other cases have expressed concern that public entities not be discouraged from engaging in flood control activities. We do not believe, however, that our conclusion will discourage public entities from engaging in flood control efforts. We see great value to applying a reasonableness standard in cases of a project failure. A public entity may be reluctant to assay the good deed of flood control efforts knowing it will be strictly liable if it fails. On the other hand, a public entity
should
be reluctant to make uncompensated use of private property not historically subject to
We note that in a prior appeal in the
Bunch
saga, the Fourth District made a distinction between a “diversion from” and a “diversion to,” and concluded the reasonableness standard should apply to all cases involving unintended physical damage to property caused by an unintended breach in flood control facilities, including cases where floodwaters were intentionally diverted from a natural channel.
(Bunch I, supra,
We agree with that statement in Bunch I and see nothing in Bunch II to undermine it, insofar as the diversion is to property not historically subject to flooding. Bunch II expressly left this question open. We see no reason to require a plaintiff in such a situation to prove the defendant acted unreasonably.
All defendants filed supplemental briefs with this court addressing the impact of
Bunch II
on this case. They argue the properties at issue in this case
were
historically subject to flooding (hence subject to the reasonableness standard). The state makes the bare assertion that even if plaintiffs’ properties were not historically subject to flooding, the reasonableness standard would apply as long as the flooding was not permanent or frequently recurring. However, this bare assertion is unencumbered by any analysis whatsoever.
(Atchley
v.
City of Fresno
(1984)
Defendants also argue there is no evidence of permanent or frequent and inevitably recurring flooding. Although
Bunch II
said a “taking” under the federal Constitution may occur when government subjects previously dry lands to inundation that is permanent or frequent and inevitably recurring
(Bunch II, supra,
We thus conclude an intentional diversion of water which floods private property not historically subject to flooding subjects flood control agencies to inverse condemnation liability without proof of unreasonable conduct. We do not see this conclusion as imposing artificial distinctions or arcane water law principles. We see a difference between the type of situation present in cases such as Belair and Bunch II and the instant case. On the one hand is the type of situation where a public entity tries to protect private property owners from a risk created by nature and in doing so may alter the risks created by nature, but the public entity’s efforts fail. On the other hand is a situation where government appropriates private property in order to protect other property, creating a risk which would not otherwise exist. We see no unfairness in applying a reasonableness standard to the first situation but not to the second.
2. The Statement of Decision
In light of
Bunch II,
we believe it is critical to determine whether plaintiffs’ properties were historically subject to flooding. The trial court made no such finding. We therefore shall remand this case to the trial court for the limited purpose of making a finding on this issue. We leave it to the
If the trial court finds plaintiffs’ properties were not historically subject to flooding, then Belair’s reasonableness standard does not apply, and the trial court’s original decision is sustainable on the grounds there was an intentional diversion creating a risk of flooding in order to use private property as a retention basin to save other property.
If the trial court finds plaintiffs’ properties were historically subject to flooding, plaintiffs must show defendants’ conduct was unreasonable, under the Locklin factors, as stated in Bunch II. Since Locklin and Bunch II were not yet decided at the time of the trial court’s decision in this case, we direct that on remand the trial court should make findings under the Locklin factors. We leave it to the trial court to decide whether to allow the parties to adduce new evidence on this issue.
In their supplemental briefs, defendants argue remand is not necessary. RD 1000 claims plaintiffs adduced no evidence of unreasonableness. However, RD 1000 fails to acknowledge evidence favorable to the trial court’s alternate finding of unreasonableness. The state claims appellants “tried to place” the pertinent factors before the court in objections to the proposed statement of decision. However, the state fails to comply with California Rules of Court, (rule 15(a)), by failing to provide a proper citation to the record. Instead, the state cites an 87-page span of the record. Our scan of these pages shows numerous objections that have nothing to do with this issue, as well as a claim that the trial court did not explain what it meant by unreasonable. In any event,
Locklin
was not decided until after the trial court’s decision in this case, and we are not confident the court applied a test comparable to the
Locklin
factors. (Cf.
Bunch II, supra,
We now dispose of defendants’ other contentions concerning the statement of decision.
RD 1000 argues the trial court never made a finding that water was intentionally diverted
to
plaintiffs’ properties. We will conclude the trial
Thus, the statement of decision contains the following: “[T]he water backing up on plaintiffs’ properties (other than those in Strawberry Manor) came from surface water and streams that had been diverted from normal courses by the construction and operation of the SRFCP as designed
and
intended.” (Italics added.) Moreover, the court repeatedly found that the flood control works in February 1986 functioned as “intended,” which read in context supports the conclusion that the trial court found defendants understood that plaintiffs’ properties would be flooded. Additionally, the court said with respect to the land north of Dry Creek: “Here the project functioned precisely as it was intended and designed to function, and the project successfully protected lands within the American Basin. . . . This is nothing more than lower landowners damming the water and preventing its
We conclude the statement of decision sufficiently establishes that the trial court found this was a case of intended diversion.
3. Sufficiency of Evidence
RD 1000 points out the public works were intended to divert water to the Sacramento and American Rivers and contends there is no substantial evidence the works were intended to divert water to plaintiffs’ properties. ARFCD argues there “is no evidence to support the Trial Court’s finding that the Project was designed and constructed with the intent to flood [plaintiffs’] properties or that it was foreseeable that such flooding would occur.” 31 The state and ARFCD contend the flooding was unintentional. We shall conclude substantial evidence supports the judgment in this respect.
“ ‘It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.’ [Citations.]”
(Foreman & Clark Corp.
v.
Fallon
(1971)
A substantial evidence challenge requires us to measure the evidence adduced at trial against rules of law.
(Null
v.
City of Los Angeles
(1988)
Here, an appropriate definition of “intention” is at issue. To be sure, there is no uniform agreement on what we mean by an “intentional” act.
32
However, a criterion of “intention” widely accepted in the civil law is set forth in section 8a of the Restatement Second of Torts. By that test,
Measured by this test, the record contains substantial evidence of an intentional diversion, both before and after the 1956 completion of Folsom Dam.
Thus, studies and reports dating back to the early 1900’s advised of the risk caused by the backwater effect of the NEMD. The 1910 Kieffer Report (which was later approved by RD 1000 and the state) stated: “A problem of the first magnitude in connection with this project is the control and disposition of the water delivered into the American Basin from the streams entering from the East.” Kieffer warned a backwater effect could occur when high flows in tributary streams coincided with high flows in the Sacramento and American Rivers. Kieffer forecast the “flooding of a tremendous area of farming country not previously overflowed.”
As plaintiffs’ expert characterized it at trial, water that naturally ran into the Basin had to be discharged into the Sacramento and American Rivers in a different fashion so that the land protected by the back levee remained dry. However, that proved difficult. By intersecting the rivers, the Cross Canal and the NEMD allowed river water to enter those areas. Construction of the back levee and diversion of the waters from the east, coupled with the possibility of high flows in the Sacramento and American Rivers, potentially subjected land east of the NEMD to backwater flooding to which it had not previously been subjected.
In 1927, ARFCD was created for the specific purpose of protecting its territory from the known hydraulic dam and backwater effects.
In 1956, RD 1000 advised the state the federal government was refusing to assume responsibility for levees on the east side of the NEMD, and that if
Minutes of a State Reclamation Board meeting in May 1956 reflect that “both the east and west levees of the district channel were integral parts of the levee and drainage system designed to take care of the intercepted drainage from the foothill areas and for protection against back water from the Sacramento River. . . . [Tjhese levees were originally considered practically to grade and section, but as the flood plane[ 33 ] was increased with the growth of the Sacramento River Project they were determined to be inadequate and recommended for inclusion in the program of reconstruction work, but that it appeared only a portion of the work on this system was scheduled for prosecution by the Corps of Engineers . . . .”
In a May 1956 letter signed by State Reclamation Board Chief Engineer A.M. Barton (who previously served as district engineer for ARFCD), the state implored the Corps of Engineers to assume responsibility for the east side of the NEMD because “[tjhese levees are all a part of a complete system that takes care of the intercepted drainage from the foothill area to the east and protects against back water from the Sacramento River, [^j These levees on the east side of the Natomas East Borrow Pit are as vital to this flood control system as the back levees themselves. The opening of the cross canal into the Sacramento River permitted the back water of the river to reach these lands which under natural conditions would not have been flooded from that source.”
The Corps of Engineers declined to assume responsibility for the east side of the NEMD north of ARFCD, because it was not included in the formal written documents for the project. Defendants do not cite any evidence to show that they obtained flowage rights, as suggested in RD 1000’s letter to the state, or took other action to resolve the problem after the Corps of Engineers declined to assume responsibility. 34
A 1957 Corps of Engineers design memorandum (copies of which go to the state) indicated with respect to the NEMD: “Any material increase in
In 1982, an environmental impact report for a road widening project noted that flooding within Arcade Creek in the vicinity of Rio Linda Boulevard was “backwater” from the NEMD.
Thus, both before and after construction of Folsom Dam, it was known that it was substantially certain that the public works in the NEMD area would cause flooding of plaintiffs’ upstream properties. The foregoing evidence adequately supports the trial court’s finding of an intentional diversion.
The state and ARFCD obliquely intimate that there could be no intentional diversion because the risk to plaintiffs’ properties would arise only under high flow conditions that would exceed the project’s design capacity. However, we have seen that documentary evidence from 1956 contains an admission that if the federal government would not assume responsibility for the east side of the NEMD, interception of drainage from the east would not be taken care of “in the manner contemplated by the design of the project.” Moreover, in our view the critical fact is that defendants were given notice that the risk éxisted.
We conclude substantial evidence supports the judgment with respect to these issues. 36
RD 1000 contends it cannot be liable for diversion because its artificially created channels have been transformed into natural conditions by the passage of time. RD 1000 cites dated authority relieving public entities of responsibility for diversions after passage of a long period of time on the theory an entity should not be liable in perpetuity because the existing conditions of the area will change over time. (E.g.,
Weck
v.
L. A. etc. Flood Control Dist.
(1951)
In a supplemental brief, RD 1000 contends
Bunch II
“destroys” the proposition that public agencies have a continuing duty to monitor flood control works. We disagree. RD 1000 relies on the following language in
Bunch II:
“As Professor Van Alstyne explained, ‘Plan or design characteristics that incorporate the probábility of property damage under predictable circumstances may later be judicially described as “negligently” drawn; yet, in the original planning process, the plan or design with its known inherent risks may have been approved by responsible public officers as being adequate and acceptable for non-legal reasons. For example, the damage, although foreseeable, may have been estimated at a low order of probability, frequency, and magnitude, while the added cost of incorporating minimal safeguards may have been unacceptably high in proportion to available manpower, time and budget. . . . The governmental decision ... to proceed with the project under these conditions thus may have represented a
However, nothing in this language addressed the issue whether a public entity has a continuing duty to monitor its public works. Obviously, the original design will be the starting point for analysis. No issue of continuing duty to monitor was presented or decided in
Bunch II.
Cases are not authority for propositions not therein considered.
(Ginns
v.
Savage
(1964)
We conclude the passage of time does not relieve defendants of liability.
5. Conclusion re: Properties Other Than Strawberry Manor
We conclude that, with respect to the properties other than Strawberry Manor (i.e., Rio Linda and north of Sankey Road), defendants may be liable for inverse condemnation without proof that they acted unreasonably, if plaintiffs’ properties were not historically subject to flooding in the absence of the flood control works at issue. We remand for the limited purpose of having the trial court make a finding on that issue, and we leave it to the trial court to decide whether to allow the introduction of new evidence on the matter.
If the trial court finds plaintiffs’ properties were historically subject to flooding, it shall determine whether plaintiffs are entitled to compensation by using the Belair reasonableness test, applying the Locklin factors, as stated in Bunch II. We leave it to the trial court to decide whether to allow the parties to adduce new evidence on this issue.
If the trial court finds plaintiffs’ properties were not historically subject to flooding, then Belair’s reasonableness standard does not apply, and the trial court’s original decision is sustainable on the grounds there was an intentional diversion creating a risk of flooding in order to use private property as a retention basin to save other property.
B. Unreasonable Conduct — Strawberry Manor
As to Strawberry Manor, Belair applies because, as found by the trial court, that property flooded when a flood control system designed to protect it failed. Plaintiffs do not dispute that Belair applies to this system failure.
However, the trial court did not apply the
Locklin
factors, as endorsed in
Bunch II.
As noted,
Locklin
was decided after the trial court’s decision in this
We shall therefore reverse and remand to the trial court for the purpose of making findings under the Locklin factors. We leave it to the trial court to decide whether to allow new evidence to be adduced.
We now dispose of another contention raised on appeal.
RD 1000 argues it should not be liable for the Strawberry Manor damages, because they occurred outside RD 1000’s territory, and RD 1000 is not responsible for the other defendants’ failure to have a plan to close the gap. We disagree, however, because the trial court found the back levee was a substantial concurring cause of damage in Strawberry Manor. Nevertheless, since there was a system failure with respect to Strawberry Manor, we believe Belair's reasonableness standard applies to all defendants, including RD 1000.
II. Causation
Defendants contend plaintiffs also failed to establish the element of causation, and the sole cause was the unusually heavy “storm of record” which exceeded the project’s design capacity.
Causal connection in inverse condemnation requires a showing of “a 1 “substantial” cause-and-effect relationship excluding the probability that other forces
alone
produced the injury.’ ”
(Belair, supra,
The state and RD 1000 argue the only way in which causation can be shown is if the flood control works fail to function as intended. They cite the following language in
Belair.
“Where independently generated forces not induced by the public flood control improvement — such as a rainstorm— contribute to the injury, proximate cause is established where the public improvement constitutes a substantial concurring cause of the injury, i.e., where the injury occurred in substantial part because the improvement failed to function as it was intended.”
(Belair, supra,
However, this does not mean that public entities are immune from inverse condemnation liability if a flood control project causes damage to private property
while the project is functioning as intended.
The
Belair
court’s use of the phrase “failed to function as it was intended” was a means of fleshing out the requirement for pleading substantial causation based upon the particular factual underpinnings of the case. In
Belair
the water escaped from a
In a related contention, defendants argue the trial court erred in finding it irrelevant that the flooding occurred when storm conditions exceeded the project’s design capacity.
38
They suggest that since none of plaintiffs’ properties were flooded until
after
SRFCP’s design capacities were exceeded, SRFCP was not a substantial concurring cause of the flooding of plaintiffs’ properties. ARFCD claims that even assuming the project’s design was unreasonable, there can be no liability under
Belair
unless the damage occurred while the conditions were within design capacity. Otherwise, the project is not a cause of the damage, says ARFCD. In support of these arguments defendants cite the following language from
Belair:
“The public improvement would cease to be a substantial contributing factor, however, where it could be shown that the damage would have occurred
even if the project had operated perfectly, i.e., where the storm exceeded the project’s design capacity.
In conventional terminology, such an extraordinary storm would constitute an intervening cause which supersedes the public improvement in the chain of causation.”
(Belair, supra,
However, the
Belair
court was speaking with reference to the facts present in that case; it was not establishing a rule of law that a flood control project becomes immune when storm conditions exceed design capacity. The facts in
Belair
were that there was a failure of a project designed to protect
In contrast, the case before us does not involve a project failure but an intentional use of plaintiffs’ properties as a retention basin, thereby causing flooding to lands which were arguably not historically subject to flooding, in order to protect other property. Thus, the fact that design capacity was exceeded would not make the rainstorm the sole cause of the damage. If the public works were at a minimum a substantial concurring cause, that is all that is needed to establish causation under
Belair, supra,
In supplemental briefs, defendants contend
Bunch II
endorsed
Belaif
s rule that an extraordinary storm exceeding design capacity is an intervening cause that supersedes the public improvement in the chain of causation. We have explained that
Belair
did not so hold. Nor does anything in
Bunch II
so hold. The Bunches argued the reasonableness standard should not apply because the storm that breached the flood control facility exceeded the facility’s design capacity.
(Bunch II, supra,
In Strawberry Manor, where the public works did not operate as intended, the trial court found the storm alone would not have produced the injury. The risk of flooding, and the actualization of that risk, did not derive from the rainstorm alone. The risk and resultant damage were caused by man, not nature. The water which inundated Strawberry Manor would not have been there but for defendants’ public works, which sought to protect lower lying lands.
Thus, the storm was not the sole cause of plaintiffs’ injuries, even though the storm exceeded the project’s design capacity. The public works were at a minimum a substantial concurring cause of the damage, which is sufficient to impose liability against defendants.
(Belair, supra,
Defendants and amici curiae point out the government has no duty to provide any particular level of flood protection, no duty to provide the same degree of protection to all properties, and no duty to provide any flood protection at all.
(Tri-Chem, Inc.
v.
Los Angeles County Flood Control Dist., supra,
Defendants claim they would be in a better position had the project failed (because Belaif s reasonableness standard would apply). However, had the project failed and water flooded the areas the back levee and the NEMD were built to protect — the lower lying lands to the west and south — it makes perfect sense that defendants be judged under the reasonable conduct standard, because they would not have created the risk to the damaged lands.
RD 1000 argues it is not liable for any damage caused by Sutter County’s closure of a gap in Sankey Road. The contention is vague and fails to explain what RD 1000 is talking about. In any event, the trial court found the “project contemplated closing the gap in the levee at Sankey Road . . . .” RD 1000 fails to show any ground for reversal based on closure of the gap in Sankey Road.
We conclude defendants fail to show any reversible error regarding causation. 40
III. Joint and Several Liability
Defendants and amici curiae contend defendants cannot be held jointly and severally liable. We shall remand for the trial court to consider this issue in light of Bunch II.
Bunch II
said “. . . a property owner whose unreasonable acts cause damage to neighboring property is liable only for its proportionate share of the damage. When the upstream owner is a public entity, the court must also
Here, the trial court found in its statement of decision: “The SRFCP is a cooperative Federal-State venture. It is a State project whereby the State has delegated some duties to the Districts (RD 1000 and ARFCD). The operation of the completed project is the sole responsibility of the State. [Citation.] The Districts have been created as agencies of the State for the more convenient handling of the details of this gigantic undertaking. [Citation.] The Federal government has contributed to the construction and helped finance the project but has required the State to hold it free and harmless from all claims due to the construction of the project. . . .
“The 1953 MOU, section 4, confirms the State’s obligation to operate and maintain all completed works of the SRFCP including those which had previously been constructed by the local entities. The State may not claim an exemption from liability by entrusting or delegating its duty to any of the local districts. The Districts and the State are joint participants in the project.
“All defendants have joined in the project and have substantially participated in the design, construction, operation, maintenance and financing of the improvements and have the duty to operate and maintain it pursuant to state and federal law. The project works, flood control and real property interests of RD 1000 and ARFCD are owned jointly with the State.”
We conclude the trial court did not adequately consider the question of proportionate liability, and the matter should be remanded for the trial court to do so. 41
IV. Estoppel
RD 1000 contends the Barosso plaintiffs are estopped by a 1914 eminent domain judgment in favor of RD 1000 against the Barossos’ predecessor in interest. We disagree.
The existence of an estoppel is generally a question of fact for the trier of fact, and ordinarily the trial court’s determination is binding on appeal unless the contrary conclusion is the only one to be reasonably drawn from the facts.
(Albers
v.
County of Los Angeles, supra,
Here, the trial court found the terms of the eminent domain judgment prohibited RD 1000 from raising the back levee without also raising railroad and wing levees. The back levee was so raised in 1956. The trial court found it was not reasonably foreseeable in 1914 that RD 1000 would contribute to property damage by violating the judgment. RD 1000 fails to show a contrary conclusion is the only one to be reasonably drawn from the facts.
We conclude RD 1000 fails to show any basis for reversal based on estoppel.
RD 1000 contends plaintiffs Lee and Shirley Collier lack standing because a 1985 quitclaim deed to Mr. Collier’s widowed mother inadvertently transferred all of the Collier plaintiffs’ interest in the property. We disagree.
The Colliers had intended to transfer only HVz acres and retain title to the remaining Vz acre where they have lived and paid taxes continuously since 1959. The one-half acre was quitclaimed back to the Colliers in 1991.
“[T]he universal rule appears to be that where property is purchased which is subject to pending condemnation proceedings and the deed conveying said property is silent as to the award money to be paid in the proceedings, said money belongs to and is payable to the purchaser. [Citations.]”
(Brick
v.
Cazaux
(1937)
Although Brick is a case of direct, rather than inverse, condemnation, we can think of no reason why its rule should not apply here. Under Brick, the Colliers have standing to pursue and receive their share of the inverse condemnation recovery.
VI. Offset
RD 1000 complains the trial court failed to apply settlement moneys received from other defendants as offsets against the judgment. The contention is waived by failure to cite any legal authority.
(Atchley
v.
City of Fresno, supra,
Disposition
The judgment is reversed and the case remanded for proceedings consistent with this opinion. Defendants shall bear their own costs on appeal. Plaintiffs are awarded their reasonable costs, disbursements and expenses incurred on appeal, including reasonable attorney fees in an amount to be determined by the trial court. (See Code Civ. Proc., § 1036.)
Davis, J., and Callahan, J., concurred.
Petitions for a rehearing were denied February 23, 1998, and the opinion was modified to read as printed above. Appellants’ petitions for review by the Supreme Court were denied May 13,1998. Brown, J., did not participate therein.
Notes
This action involves more than 400 plaintiffs who own approximately 150 parcels of real property. By stipulation of the parties, the action was trifurcated, the issues of liability and proximate cause as to all plaintiffs were separately tried, and the parties stipulated to the recoverable amount of damages (approximately $600,000, plus $400,000 interest) as to 25 “representative” plaintiffs owning a dozen parcels of real property. Judgment was entered in favor of the 25 representative plaintiffs, with a direction in the judgment that judgment “shall be subsequently entered” in favor of the remaining plaintiffs upon proof of damages to compensable interests (estimated at $10 million damages plus $10 million in interest) and a finding that special defenses do not bar liability. Although damage issues remain as to the nonrepresentative plaintiffs, the one final judgment rule is not violated by appellate review of a judgment which leaves nothing to be decided between one or more parties and their adversaries. (See
Morehart
v.
County of Santa Barbara
(1994)
The representative plaintiffs who obtained a judgment in their favor are: Julio T., Hazel H. and Michael Barosso; George and Margaret Rosenberg; Scott E. Baron; Charles and Martha E. Jones; Mark W. Watkins and Janet Watkins; Abram White and Ruth Elaine White, individually and doing business as White Cleaning Specialists; Lee W. and Shirley A. Collier; Kenneth C., Nina J., Randall L. and Lisa Kellogg; Robert E. and Madelyn R. Riggan; Lawrence A., Carol A. and Carla M. Risse; and Oystein A. and Amie K. Skeie.
The trial court found representative plaintiff Alice F. Harris is not entitled to a judgment against any of the defendants, but the judgment which is the subject of this appeal does not mention her. She is not a party to this appeal.
Some parties go beyond the proper scope of supplemental briefing, which is supposed to be “limited to matters arising after the previous decision of the Court of Appeal unless the presiding justice permits briefing on other matters.” (Cal. Rules of Court, rule 29.4(f).) No party requested or received permission to exceed this scope. We need not consider arguments which exceed the proper scope of supplemental briefing.
In addition to making their own arguments in their supplemental briefs, (1) ARFCD joins in the briefs of RD 1000 and the state (except insofar as the state argues the local districts have sole liability), and (2) RD 1000 “incorporate[s] by reference those portions of the supplemental briefs of [the state and ARFCD] which discuss liability for the areas of Rio Linda and north of Sankey Road.” The state “incorporate[s] by reference” only the facts in its codefendants’ briefs.
In the original proceedings on appeal, we granted a request of the Association of California Water Agencies to file an amicus curiae brief in support of ARFCD. Following transfer by the Supreme Court, we granted a timely request by the Delta Protection Commission to file an amicus curiae brief in favor of defendants.
A “hydraulic dam” occurs when the water itself acts as a dam, preventing water from flowing out of the channel.
“Backwater” is water backed up or retarded in its course as compared with its normal or natural condition of flow. It refers to the consequences upstream from a hydraulic dam downstream.
The parties cite evidence the figure was $13.4 billion.
“Freeboard” is an extra margin of safety to protect against errors in calculation and unknown factors.
Accordingly, defendants’ reliance on the judge’s comments questioning the sufficiency of evidence is unavailing.
The trial court found, and the parties do not dispute, that Belair applies to the system failure in Strawberry Manor, which we will discuss separately, post.
We note defendants’ briefs contain arguments lacking factual and/or legal analysis. Where an appellant asserts a point in a brief without factual or legal support, it is deemed to be without foundation and requires no discussion by the reviewing court. (E.g.,
Atchley
v.
City of Fresno
(1984)
Finally, we disregard new arguments made for the first time in the reply briefs
(Neighbours
v.
Buzz Oates Enterprises
(1990)
Plaintiffs argue this lawsuit was filed before
Belair
was decided, and
Belair
should not apply retroactively. However, we agree with
Bunch
v.
Coachella Valley Water Dist.
(1989)
Belair was decided under the state Constitution. The statement of decision in this case makes no mention of the federal Constitution. Plaintiffs nevertheless argue the judgment may be sustained under the Fifth Amendment of the federal Constitution (which was pled in the complaint), because we must infer the trial court found for plaintiffs under the federal Constitution, and defendants’ silence on this issue in their opening briefs assertedly constitutes a concession that the judgment is sustainable on federal grounds. In their reply briefs, the state and RD 1000 oppose consideration of the federal Constitution.
We decline to sustain the judgment on federal grounds. Plaintiffs fail to state what findings they wish us to infer under the federal standard. They provide no analysis of the elements needed to prove a taking under the federal Constitution, nor do they show the federal Constitution affords landowners greater protection than the state Constitution. Plaintiffs merely cite three federal cases in a footnote, with bracketed summaries which have no apparent relation to the present controversy.
Locklin, supra,
The Supreme Court has more recently said the constitutional provision was originally construed as providing a broader right of recovery against a government entity for damage to private property than that available in an action against a private party, except in the “arcane world of water law [where] the theory prevailed that if a private party had the right to inflict the damage, the government could assert the same immunity.”
(Locklin, supra,
In
Belair
the Supreme Court refined the “proximate cause” element, noting
Albers
“contained the seeds of confusion through its combination of ‘proximate cause’ terminology with the elimination of foreseeability as an element of inverse condemnation.”
(Belair, supra,
Belair
was not decided on the basis of police powers. The police power comes into play in connection with direct taking or damaging of property only when action is taken under emergency conditions, to avert impending peril.
(Customer Co.
v.
City of Sacramento
(1995)
The Supreme Court has more recently characterized Belair as eliminating the Archer exception. “Belair thus signalled not the continuation of the Archer exception, but its demise. It survived only vestigally in the limitation of inverse condemnation liability for public flood control projects in natural watercourses to damage resulting from a public entity’s unreasonable conduct. Thereafter, a public agency that acted unreasonably in regard to its use or alteration of a natural watercourse might be liable in inverse condemnation for downstream damage.” (Locklin, supra, 7 Cal.4th at p. 366.)
The Van Alstyne article cited by the Belair court states: “The necessity for the pleading and proof of fault in the obstruction cases, while no fault is required for liability in the diversion cases, has caused a certain' amount of confusion in the California case law. It is obvious that many kinds of stream obstructions may cause a diversion of stream waters, and, conversely, diversion normally requires an obstruction of some kind. Whether fault must be shown by the injured property owner thus depends, to some extent, upon how the facts are classified. A deliberate program intended to alter the course of a stream for a public purpose is ordinarily treated under the ‘diversion’ rubric, while unintended flooding is usually attributed to a negligently planned project that creates an ‘obstruction.’ The distinction, however, is not a sharply defined one, and plaintiffs have sometimes sought recovery alternatively on both theories while pleading the same facts.” (Van Alstyne, Inverse Condemnation: Unintended Physical Damage, supra, 20 Hastings L.J. at pp. 460-461, fns, omitted.)
Bunch II
said
Locklin
held Belair’s rule with respect to flood control projects and the “common enemy” doctrine had “broader application to cases in which a public entity deliberately drained excess surface water into a natural watercourse, which eventually caused damage to downstream property.”
(Bunch II, supra,
Bunch II
apparently refers to Locklin’s reference to the following factors proposed by Professor Van Alstyne: “ ‘(1) The overall public purpose being served by the improvement project; (2) the degree to which the plaintiff’s loss is offset by reciprocal benefits; (3) the availability to the public entity of feasible alternatives with lower risks; (4) the severity of the plaintiffs damage in relation to risk-bearing capabilities; (5) the extent to which damage of the kind the plaintiff sustained is generally considered as a normal risk of land ownership; and
Locklin
also referred to factors identified in a prior Supreme Court decision — (1) the damage, if reasonably foreseeable, would have entitled the property owners to compensation; (2) the likelihood of public works not being engaged in because of unseen and unforeseeable possible direct physical damage to real property is remote; (3) the property owners suffered direct physical damage to property as a result of the work as deliberately planned and carried out; (4) the cost of such damage can better be absorbed, and with less hardship, by the taxpayers as a whole than by the individual property owners; and (5) the owner if uncompensated would contribute more than his proper share of the public undertaking.
(Locklin, supra,
As we discuss, post, we do not read Bunch II to mean flooding must be permanent or frequent and inevitably recurring in order to support an inverse condemnation claim (and/or liability without proof of unreasonable conduct) under the California Constitution.
Amicus curiae Delta Protection Commission suggests the appropriate frame of reference for determining whether property was historically subject to flooding may be the early 1800’s — when the property was in a state of nature before the influx of settlers who gradually altered the topography and hydrology of the area. We believe, however, that the appropriate frame of reference is not simply a temporal benchmark but rather whether the property was historically subject to flooding in the absence of the flood control works at issue in the case. Thus,
“Belair
involved the construction of public levees along a natural drainage course in an attempt to prevent flooding in an area historically subject to it."
(Bunch II, supra,
We recognize
Locklin, supra,
We note some evidence indicates the property was not previously subject to flooding “from that source,” i.e., from downstream. This evidence is not sufficient. Plaintiffs must show the property was not historically subject to flooding, period, regardless of where the water came from.
Alternatively, it could be said that it is unreasonable as a matter of law for flood control agencies to create a risk of flooding upstream property, which would not be subject to such flooding, in order to protect other property, without paying compensation.
At the original oral argument in this court, defendants State of California and RD 1000 agreed that if a public entity intentionally diverts floodwaters to private property, Belair's reasonableness test does not apply.
The dissenting opinion in
Belair
read the majority opinion as “intimat[ing]” that a qualified privilege would apply in all flood control cases.
(Belair, supra,
In its amicus curiae brief, Delta Protection Commission (DPC) laments the plight of land use agencies who get sued for disallowing private property development in floodplains and then get sued when the developed property gets flooded. DPC claims imposition of strict liability in this case would undermine the regulatory functions of land use agencies. However, no such issue is present in this case, and DPC fails to show how imposition of strict liability on flood control agencies which intentionally use private property as a retention basin to protect other property would undermine the regulatory functions of land use agencies.
Moreover, we note that in our original opinion, we declined to address an issue raised for the first time in the reply briefs — a contention that this was a case of one-time damage, and one-time damage will not sustain an inverse condemnation claim. (See fn. 9, ante.) In their supplemental briefs, no defendant asks us to reconsider our refusal to consider this belatedly raised issue implicating factual as well as legal questions. Indeed, the state’s supplemental brief appears to contradict any notion of one-time damage, because the state claims (in support of the argument that plaintiffs’ properties were historically subject to flooding hence subject to a reasonableness test) that plaintiffs’ properties were flooded several times during a time period which appears to postdate the construction of the back levee and/or the NEMD.
In our original opinion in this case, we made reference to the question whether the flood control works were designed to protect plaintiffs’ properties. This may be a variation on the issue as phrased by Bunch II, as to whether the properties were historically subject to flooding, though the two issues do not necessarily overlap.
Code of Civil Procedure section 632 provides that “written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. . . .”
The state believes the trial court found an intentional diversion but argues the project did not intentionally divert water onto plaintiffs’ property.
ARFCD appears to concede the trial court found defendants intended to flood plaintiffs’ properties but argues no evidence supports that finding. Thus, ARFCD begins its discussion: “The Trial Court ruled that all of [plaintiffs’] flood damages, with the exception of those [plaintiffs] living in Strawberry Manor, were intentionally caused by the Project.” ARFCD then argues: “There is no evidence to support the Trial Court’s finding that the Project was designed and constructed with the intent to flood [plaintiffs’].” ARFCD then asserts it “requested the Trial Court to specify the basis for this and other findings in ARFCD’s Request for Statement of Decision,” but “no such references were provided in the Statement of Decision, as noted in ARFCD’s Objections to Proposed Statement of Decision and Proposed Judgment.” (Fns. omitted.) ARFCD cites Code of Civil Procedure section 634, which precludes an inference that the trial court found in favor of the prevailing party as to controverted issues upon which the statement of decision is silent or ambiguous, where the omission or ambiguity was brought to the trial court’s attention.
It thus appears ARFCD complains the statement of decision was deficient not in failing to make unambiguous findings but in failing to cite evidence in support of the findings. However, in a statement of decision a statement of ultimate facts is sufficient; evidentiary facts are not required. (7 Witkin, Cal. Procedure (4th ed. 1997) Trial, §411, p. 470.) Moreover, “. . . the trial court need not address each question listed in a party’s request. All that is required is an explanation of the factual and legal basis for the court’s decision regarding such principal controverted issues at trial as are listed in the request.”
(Nunes Turfgrass, Inc.
v.
Vaughan-Jacklin Seed Co.
(1988)
Despite this claim, ARFCD’s brief contains admissions that the dangers were known.
“The relationships of ends, means, causes and knowledge can vary considerably. Professor Kenny charts 16 possible relationships involving the circumstance in which an agent does A thereby causing B, five of which, involving the doing of A intentionally, are of interest here. (See Kenny, Intention and Purpose in Law, Essays in Legal Philosophy (1968) pp. 151-154.) T. An agent knows he is doing A, wants to do A, knows that he is doing B by doing A, and wants to do B. . . . HD 2. The agent knows that he is doing A, knows that he is doing
“Flood plane” means the position occupied by the water surface of a stream during a particular flood or, loosely, the elevation of the water surface at various points along the stream during a particular flood.
In a petition for rehearing following our original opinion in this case, ARFCD argued for the first time that the 1956 documents were irrelevant to ARFCD, because some of the documents referred to backwater stemming from the
Sacramento
River, and it was assertedly undisputed that the flooding in Rio Linda stemmed from the
American
River. ARFCD thus
However, this is not the only inference to be drawn from the 1956 documents. Although some of the 1956 documents referred to the Sacramento River, evidence was presented that the American River is subject to backwater flooding from the Sacramento River. Thus, a 1963 Corps of Engineers design memorandum, in discussing the American River, stated the flood plain was “subject to more prolonged flooding by backwater from the Sacramento River . . . .” The 1963 design memorandum also tabulated the “effect of backwater from Sacramento River on water surface elevations in the American River flood plain near the mouth of the river . . . .”
We recognize, as noted by ARFCD, that one of the 1956 documents made reference to the opening of the Cross Canal as permitting backwater flooding. However, this reference, which appeared in only one of the several 1956 documents, does not compel an inference that the only concern was the area north of Sankey Road.
Where evidence is subject to opposing inferences, “it must upon a review thereof be regarded in the light most favorable to the support of the judgment.”
(Mah See
v.
North American Acc. Ins. Co.
(1923)
Moreover, although all of the foregoing evidence, along with the 1956 documents, was cited in respondents’ brief on appeal, none of the defendants made this attack on the evidence in their reply briefs or at the first oral argument in this court. Reviewing courts need not consider points raised for the first time in a petition for rehearing.
(Prince
v.
Hill
(1915)
ARFCD also pointed out in its petition for rehearing of our original opinion that the final 1956 document indicated the Corps of Engineers agreed to make additional improvements. However, ARFCD did not state what those improvements were. ARFCD also argued, with respect to RD 1000’s 1956 letter discussing a need to obtain flowage rights across the “low lands east of’ RD 1000, that plaintiffs never introduced evidence identifying what land was at issue. Again, this was a new attack raised for the first time in a petition for rehearing, even though the evidence was cited by plaintiffs in their respondents’ brief on appeal. We therefore need not consider the matter.
(Prince
v.
Hill, supra,
This evidence refutes the defense assertion that it was assumed the project would fail if design capacity were exceeded.
Although we made this same observation in our original opinion in this case, defendants in their supplemental briefs repeat the same frivolous assertion without acknowledging or explaining the evidence cited in the text.
On petition for rehearing following our original opinion, defendants argued for the first time that the 1957 document was not referring to backwater flooding from the NEMD but was referring to overflooding of upstream creeks before the water even reached the NEMD. Defendants quoted the following portion of the 1957 document: “The Condition A flows are conveyed from the foothill line to the canal by many relatively shallow stream channels. Any material increase in
these flows
beyond those computed would cause extensive overbank flooding on undeveloped lands above the project and only an insignificant net increase in inflow to the project.” (Italics added.) According to defendants, the term “these flows” refers to flows in the shallow upstream channels. However, the term “these flows” grammatically refers to the “Condition A flows” in the preceding sentence. “Condition A flows” encompass a measurement of flows
in
the NEMD, as is apparent from a reading of the document as a whole. Thus, the passage quoted by defendants appears in the middle of a paragraph which
At most, the evidence is susceptible to conflicting inferences, and we adopt the inference favorable to the judgment.
(Mah See
v.
North American Acc. Ins. Co., supra,
In their reply briefs, the state and ARFCD ignore the evidence favorable to the judgment cited in plaintiffs’ brief. RD 1000 acknowledges the evidence cited in plaintiffs’ brief but claims the evidence did not convince the trier of fact because the statement of decision assertedly contained no finding that defendants knew plaintiffs’ properties would be or were substantially certain to be flooded as a result of the project.
RD 1000 also cites
Tri-Chem, Inc.
v.
Los Angeles County Flood Control Dist.
(1976)
Plaintiffs dispute that design capacity was exceeded. We will assume for the sake of argument that it was.
As noted in our discussion of sufficiency of the evidence (fn. 35, ante), defendants suggest it was assumed the project would fail if design capacity were exceeded and therefore they had no reason to suspect plaintiffs’ properties would be flooded. However, besides failing to cite evidence in their favor on this point, defendants fail to acknowledge contrary evidence — the 1957 Corps of Engineers design memorandum (copies of which went to the state), which stated any material increase in flows beyond those computed “would cause extensive over-bank flooding on undeveloped lands above the project.”
If some water would have entered plaintiffs’ homes in the absence of the public works, defendants could still be liable because the public works were a substantial concurring cause of damage. (Belair, supra, 47 Cal.3d at pp. 556-560.) However, in that event, the fact that some water would have entered the property without the project might mean the property was historically subject to flooding. Therefore, that property would be subject to a reasonableness standard.
We note the trial court concluded in its statement of decision that three plaintiffs — Collier, Risse and Kellogg — would have received some minimal flooding (a few inches or flooding of one room) even in the absence of the project. If the trial court concludes upon remand that these three properties or any other parcels were historically subject to flooding, the reasonableness standard shall apply to those plaintiffs.
On April 18, 1995, plaintiffs filed in this court a motion for judicial notice of documents assertedly related to the causation issue— (1) a June 1993 resolution of the Sacramento Area Flood Control Agency (SAFCA), and (2) a January 1991 joint exercise of powers agreement reflecting that RD 1000 and ARFCD are members of the SAFCA. Plaintiffs concede we have discretion whether to grant their request. (Evid. Code, § 459.) We deny the motion for judicial notice as tardy. (See
Simmons
v.
Southern Pac. Transportation Co.
(1976)
We do not read
Bunch II
as precluding the possibility of finding two or more public entities each responsible for 100 percent of a plaintiff’s damages where multiple entities jointly participate in the same public project. Thus, in
Talbott
v.
Turlock Irr. Dist.
(1933)
The state argues no substantial evidence exists to support a finding that it was a substantial participant in the planning, design, construction and/or maintenance or operation of the flood control works. However, the state has waived this argument by failing to acknowledge
Under a heading contending there is no substantial evidence of the state’s substantial participation, the state cites provisions of the Water Code for the asserted proposition that local agencies are responsible for maintenance and operation of the flood control works and must hold the state harmless. However, aside from the state’s violation of California Rules of Court, rule 15(a), by failing to set forth this argument in a discrete heading (see
People
v.
Turner
(1994)
The state raises other Water Code provisions elsewhere in its brief in an argument which appears under a heading broadly attacking the trial court’s conclusion of joint and several liability but which in substance attacks only the trial court’s conclusion that local districts are agents of the state. We need not address the question of agency.