Lead Opinion
Opinion
Article I, section 19 of the California Constitution (section 19) provides that when a public entity takes or damages property, it must pay the owner just compensation. (See, e.g., Locklin v. City of Lafayette (1994)
We agree with the Court of Appeal and conclude that Belair’s reasonableness standard, as endorsed and refined by Locklin'% balancing principles (discussed below), should apply to flood control cases, including this one, where the failure of publicly managed flood control facilities causes property damage.
I. Facts and Procedural Background
The District, a state agency, possesses flood control powers within a defined area of the Coachella Valley, including Magnesia Springs Canyon and the City of Rancho Mirage. Magnesia Springs Canyon is a natural watercourse that drains a watershed of about five and one-quarter square miles in the mountains south of Rancho Mirage. (See San Gabriel V. C. Club v. Los Angeles (1920)
Beginning in 1948, in an attempt to protect property from historical flooding in Magnesia Springs Canyon, a private developer constructed flood control facilities on the Magnesia Cove alluvial plain to divert canyon floodwaters northwest into the West Magnesia Channel. The District has owned the facilities since 1966. They consisted of: (1) a training levee to move the apex of the alluvial fan (a fan-shaped accumulation of sediment) to the north; (2) a diversion dike to intercept the waters and divert them to the northwest side of the alluvial fan; and (3) a channel to carry the waters to the Whitewater River. Constructed of locally quarried, uncompacted, and unreinforced sand and soils, the flood control facilities successfully diverted and channeled storm runoff away from the Bunches’ apartment building until a series of unusually severe tropical storms struck the area in 1976 (Kathleen), 1977 (Doreen), and 1979 (Dolores). According to the Bunches’ experts, their property was located in the sheet-overflow area of the Magnesia Cove alluvial fan, an area subject to flooding before the flood control facilities were built.
In 1976, the flood control facilities failed during Tropical Storm Kathleen at or near the point where they were intended to divert the floodwaters’ natural direction. Kathleen caused substantial damage throughout the entire Coachella Valley. Less than 2 percent of that damage, however, occurred on the Magnesia Cove and in Rancho Mirage. The storm did not damage the Bunches’ property. Local runoff, not failure of the District’s flood control facilities, caused the Rancho Mirage damage. From at least 1948 until Kathleen arrived, the facilities had successfully controlled all runoff from rain in the Magnesia Springs Canyon watershed.
Dolores was the most severe tropical storm in the recorded history of that region of the state; it is sometimes called the “300-year flood.” The floods Dolores caused overtopped the dike and levee at the point where the facilities were designed to divert the floodwaters, causing about $20 million in damage to the Magnesia Cove cities. Rains from Dolores led to the flooding of the Bunches’ apartment building, which was inundated with water, mud, and debris flowing from the point of the breach in the flood control facilities in a concentrated manner and at an abnormally rapid rate of flow. A wall along the southerly property line collapsed, and mud and debris buried automobiles parked on and adjacent to the property. The Bunches’ real property damage totaled $690,000.
In view of the damage Dolores caused, in November 1979, the United States Army Corps of Engineers agreed to participate in constructing flood control improvements. Their design, approval, and installation took nearly eight years to complete and cost the District about $7 million.
In 1982, the Bunches filed an inverse condemnation action against the District, seeking compensation for its physical invasion and destruction of their property. The court tried the liability issue, and a jury tried the damages issue. Applying then traditional standards of inverse condemnation, the trial court concluded the District was strictly liable for the Bunches’ property damage, without regard to the reasonableness of its flood control measures, because the breach in its facilities was a substantial cause of the damage. (See Albers v. County of Los Angeles (1965)
The jury awarded the Bunches $690,000 in damages. The District appealed from the judgment; the Bunches appealed from the judgment with regard only to the interest calculation included as part of the damages award. While the appeals were pending, this court decided Belair, which addressed the liability issue in the context of flood control facilities designed to protect against the “ ‘common enemy’ of floodwaters.” (Belair, supra,
In light of Belair, the Court of Appeal concluded that the issue for the trial court was not whether the District was strictly liable for the Bunches’ damages—the theory on which the case was tried—but whether the failed flood control facilities’ design, construction, and maintenance had been reasonable. (Bunch v. Coachella Valley Water Dist. (1989)
Following a second trial limited to the reasonableness question, the court ruled the District had acted reasonably under Belair, supra,
The Court of Appeal affirmed the trial court judgment, applying much of the same reasoning it applied in Bunch I. On rehearing, the court rejected the Bunches’ argument that our recent Locklin decision restricted Belair's reasonableness rule to those cases involving activity immune from liability under the common law. The court concluded the District acted reasonably in designing, constructing, and maintaining its flood control facilities and should not be held liable because those facilities failed to protect the Bunches’ property from Dolores’s severe damage. As we explain, we agree with the Court of Appeal.
II. Discussion
A. Background
Historically, courts analyzed inverse condemnation liability issues by referring to traditional tort and property law concepts. This approach was due in part to the assumption that inverse condemnation liability was limited to situations in which a private party would be held liable for injury to property. (Belair, supra,
The Albers case involved a landslide that county road construction caused. (Albers, supra, 62 Cal.2d at pp. 254-255.) In finding the county liable for the landslide damage, Albers “ ‘rejected the notion that there need be a congruence between public and private liability in inverse condemnation actions.’ ” (Belair, supra, 47 Cal.3d at pp. 562-563.) The Albers court made it clear that its liability rule did not derive from statutory or common law tort doctrine, but instead rested on the constitutional requirement of just compensation. (Albers, supra,
Thus, the Albers court held that, with two exceptions, our state Constitution’s just compensation clause requires that an owner of real property receive compensation for any actual physical injury to that property, whether foreseeable or not, that a public improvement, as deliberately designed and constructed, proximately caused. (Albers, supra, 62 Cal.2d at pp. 263-264.) The Albers strict liability test was later restated in terms of “ ‘ “substantial” causation,’ ” so that landowners could establish inverse condemnation liability if the public improvement substantially caused the damage, although the improvement was only one of several concurrent causes. (Belair, supra,
Albers recognized two historical exceptions to its strict liability inverse condemnation rule, “in which the urgency or particular importance of the
The second exception to the strict liability doctrine occurred in the “unique” context of water law and derived from upper riparian private landowners’ limited common law privilege to defend themselves against the “common enemy” of floodwaters. (Archer v. City of Los Angeles (1941)
The “common enemy" doctrine granted private landowners the privilege of improving their property from external hazards such as floodwaters along a natural watercourse across that property. (Archer, supra,
The Archer exception to the Albers strict liability rule was soon criticized and later qualified by courts applying the doctrine in flood control cases. In Keys v. Romley (1966)
The Archer exception also created uneasiness among property law scholars, including Professor Van Alstyne, who observed: “The rationale of the ‘common enemy’ rule ... is of dubious validity when considered in the context of govemmentally administered flood control projects developed for the collective protection of entire regions. . . . HD Piecemeal construction, often an inescapable feature of such major flood control projects, creates the possibility of interim damage to some lands left exposed to flood waters while others are within the protection of newly erected works. Indeed, the partially completed works, by preventing escape of waters that previously were uncontrolled, actually may increase the volume and velocity of flooding .... The prevailing private law doctrine embodied in the ‘common enemy’ rule, however, imposes no duty upon the public entity to provide complete protection against flood waters .... Increased or even ruinous damage incurred by the temporarily unprotected owners, due to the inability of the improvements to provide adequate protection to all, therefore, is not a basis of inverse liability. The constitutional promise of just compensation for property damage for public use thus yields to the overriding supremacy of an anomalous rule of private law.” (Van Alstyne, supra, 20 Hastings L.J. at pp. 500-501, fhs. omitted; see also Holtz, supra, 3 Cal.3d at pp. 307-308, fn. 13.)
B. Belair
Belair reexamined the traditional distinctions in flood control law and attempted to reconcile the constitutional principles of Albers, supra,
Belair was careful to emphasize that its “reasonableness” rule would not discourage beneficial flood control projects, but would allow compensation for property that those projects unfairly damaged, creating a proper balance in constitutional takings jurisprudence. (Belair, supra,
Belair acknowledged that the “common enemy” doctrine did not permit a public entity to divert water from its natural channel or drainage, and recognized that some post-Albers decisions may have endorsed a rule of strict liability. (Belair, supra,
Without expressly disapproving those Court of Appeal decisions finding strict liability for diverted surface waters, Belair observed in dictum that its “reasonableness” analysis would most likely apply to future diversion cases when the government sought to prevent flooding on land potentially subject to it. The court doubted whether unintended property damage caused by diversion of water “would elevate the test of inverse condemnation liability to absolute liability, rather than a reasonableness standard.” (Belair, supra,
Thus, under Belair’s analysis, to establish whether a public entity acted reasonably in its flood control measures, the court must evaluate the facts, balancing the public need against the gravity of private harm. “The reasonableness of the public agency’s conduct must be determined on the facts of each individual case, taking into consideration the public benefit and the private damages in each instance. [Citation.]” (Belair, supra,
C. Locklin
Our next case involving property damage that public flood control measures caused answered some of the questions Belair left open. In Locklin, we held that 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. (Locklin, supra,
In a thoughtful discussion of the complex nature of water law and the archaic rules that traditionally governed liability questions, Locklin explained that following Belair, which involved only flood control projects, some lower courts continued to apply the Archer exception to cases in which the public entity invoked the natural watercourse rule. (Locklin, supra, 7 Cal.4th at p. 366.) As we observed, however, Belair “signalled not the continuation of the Archer exception, but its demise. It survived only vestigially 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, original italics.) In holding that upstream and downstream riparian owners must act reasonably in their flood control efforts, Locklin opined that “. . . with respect to flood control projects, the public agency is liable only if its conduct posed an unreasonable risk of harm to the plaintiffs, and that unreasonable conduct is a substantial cause of the damage to plaintiff’s property. The rule of strict liability generally followed in inverse condemnation (see Albers, supra,
Thus, Locklin reasoned that when a public entity uses a natural watercourse to drain surface waters from improved public property and makes storm drainage improvements that cause creek banks to erode and suffer landslide damage during a rainstorm, “[ijnverse condemnation liability ultimately rests on the notion that the private individual should not be required to bear a disproportionate share of the costs of a public improvement. Moreover, whether compensation must be paid for damages caused by alterations in the flow of a natural watercourse involves a balancing of interests.” (Locklin, supra, 7 Cal.4th at pp. 367-368.) This was essentially Belair's rationale. (Belair, supra, 47 Cal.3d at p. 566.)
In light of Belair, Locklin recognized that to apply the reasonableness rule to cases other than those involving previously privileged conduct, courts must identify “standards for balancing the interests of riparian landowners and assessing reasonableness in inverse condemnation actions.” (Locklin,
In addition, Locklin observed that “ [reasonableness in this context also considers the historic responsibility of riparian owners to protect their property from damage caused by the stream flow and to anticipate upstream development that may increase that flow. Keeping in mind the purpose of the constitutional right to compensation for damage caused by public works and improvements—that property owners contribute no more than their proper share to the public undertaking—plaintiff must demonstrate that the efforts of the public entity to prevent downstream damage were not reasonable in light of the potential for damage posed by the entity’s conduct, the cost to the public entity of reasonable measures to avoid downstream damage, and the availability of and the cost to the downstream owner of means of protecting that property from damage.” (Locklin, supra,
Locklin thus provided courts with guidelines for applying the reasonableness rule we first recognized in Keys, supra,
Thus, 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 consider the nature of the improvement or public work, the degree to which its value offset the property damage, and all other relevant matters, including whether the utility of the possessor’s use of land outweighs the risk of damage to the property. (Locklin, supra, 7 Cal.4th at pp. 359-360.) While the public entity must bear its proportionate share of liability, it is not subject to joint liability, but only to several liability. (Id. at p. 372, citing Mehl v. People ex rel. Dept. Pub. Wks. (1975)
D. Application of Belair and Locklin to Diversion Cases
The question before us is whether the reasonableness rule developed in the context of flood control improvements along natural watercourses should apply to cases 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. We conclude it should, and we disapprove those cases concluding otherwise.
The Bunches assert that the rule should not apply here because both Belair and Locklin expressly limited its application to conduct that would have been privileged under common law doctrines, i.e., the Archer “common enemy” exception. Because the diversion of waters from their natural course was not a privileged activity before the Belair decision, the Bunches assert the District should be strictly liable under the Albers rule for damage its flood control measures caused. (Albers, supra, 62 Cal.2d at pp. 263-264.) The Bunches rely on numerous pre-Belair cases that have applied an absolute liability standard to flood control cases involving the diversion of surface or floodwaters from their natural channel or drainage. (See, e.g., Youngblood v. Los Angeles County Flood Control Dist. (1961)
As the Bunches observe, these decisions hold that a public entity’s diversion of waters from their natural course that results in damage to private property requires payment of just compensation to the property owner. The Bunch I court rejected the Bunches’ argument that these pre-Belair cases should control the result here, concluding that Belair’s “far-reaching and elaborate analysis” should be applied “beyond the limited facts of that case.” (Bunch I, supra,
1. BelairILocklin rule in diversion cases
As noted, the Bunches assert that Belair’s reasonableness rule should apply only to those limited cases in which the public entity’s conduct would have been privileged at common law, and that the pre-Belair strict liability rule should apply to cases involving government diversion of water from its natural course. (See, e.g., McMahan’s of Santa Monica v. City of Santa Monica, supra,
Belair’s dictum indicates that the court believed its analysis could apply to all flood control cases involving unintended property damage. Nonetheless,
As the District and its amici curiae observe, however, Belair’s 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 condemnation liability in the flood control context should not include “a fruitless search for the somewhat artificial moral elements inherent in the tort concepts of negligence and intentional wrongs.” (Van Alstyne, supra,
Moreover, contrary to the Bunches’ contention, 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. Pre-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
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 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 rational (and hence by definition non-negligent) balancing of risk against practicability of risk avoidance.” (Van Alstyne, supra, 20 Hastings L.J. at pp. 489-490, fns. omitted.)
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. (See Belair, supra,
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.
2. Applying the Belair/Locklin test
The Bunches next assert that even if we do apply a Belair/Locklin balancing test pursuant to the objectives of section 19, the trial court should have considered only the District’s reasonableness in constructing the particular facility that failed, rather than conducting an assessment of all District flood control facilities. Bunch I had remanded the case for a determination of the District’s reasonableness in light of Belair. The Bunches assert that, on remand, the trial court impermissibly relied on the District’s limited financial resources as the principal ground for its finding of reasonableness and did not properly consider the District’s design, construction, maintenance, or operation of the failed facilities. The Bunches rely on several decisions limiting reliance on financial considerations in determining constitutional rights. (See, e.g., Watson v. Memphis (1963)
As the District observes and the record indicates, the trial court may have considered evidence of the District’s limited budget and its allocation of
As the District also points out, however, the trial court did not base its finding of reasonableness solely on the District’s financial limitations. Instead, the trial court properly considered other relevant evidence, including substantial expert testimony on the reasonableness of the District’s flood control measures and remedial action following Tropical Storm Kathleen. Based on all the evidence presented, the trial court issued a statement of decision that concluded the District acted with “commendable promptness” in repairing the breach Kathleen caused. The court believed the District acted promptly to obtain professional information and expertise in contacting Bechtel within days of Kathleen’s damage. The court also concluded the District acted reasonably in its effort to provide the Coachella Valley with effective flood control.
As the Court of Appeal observed, the Bunches’ expert, consulting engineer Wilbur Lockman, testified that in his opinion the construction of the
Dr. Simons, also a consulting engineer, testified that better remedial measures after Kathleen would have included realigning the angle at which the levee diverted water toward the dike and stabilizing the channel with rock riprap grouted with concrete or soil cement.
Several experts testified on the District’s behalf, including Joseph Countryman, a consulting engineer. Countryman testified that Dolores was twice as large as a 100-year storm and larger than the “standard project flood” the United States Army Corps of Engineers used in designing flood protection measures. Countryman stated that Bechtel had reviewed the corrective measures Lockman and Simons recommended and had rejected them because they would not have worked had they been implemented. In Countryman’s opinion, the District’s actions following Kathleen in 1976 comported with sound engineering practice and were reasonable.
Thomas Levy, the District’s general manager and chief engineer, testified that the District retained Bechtel in 1976 within days of Kathleen to prepare a flood control plan for the communities of Indian Wells, Rancho Mirage, and Palm Desert. As Levy noted, Bechtel’s plan took several years to implement because it required the District to address environmental issues.
In sum, the record shows the trial court’s conclusion the District acted reasonably and promptly in repairing post-Kathleen damage and in taking steps to develop a more permanent flood control plan was sound. Expert testimony indicated the detailed steps the District undertook to secure expert technical and engineering information on repairing its facilities and in managing those repairs represented sound engineering practice. Expert testimony was in conflict as to the engineering feasibility of the short-term solution of repairing the breach in the West Magnesia Springs Canyon stormwater facilities to restore the preexisting level of flood protection, allowing the District to devote its remaining resources to developing a comprehensive flood control plan. But as the Court of Appeal observed, the trial court reasonably relied on the District’s expert testimony that any attempt to “quick fix” the problem by realigning the diversion levee and lining it with stronger material would have failed during Tropical Storm Dolores. Thus, the trial court based its finding of reasonableness on a careful analysis of several factors, including the project’s purpose to divert the potentially dangerous natural flow in order to prevent flood runoff from
The Court of Appeal concluded that this evidence satisfied Belair's reasonableness rule by applying “the basic requirements of reasonable conduct” that the Keys court identified (Locklin, supra,
The Bunches also contend that Belair and Locklin should not apply to cases in which the storm that breached the flood control facility exceeded its design capacity. Here, the District’s improvements were designed to withstand a “25-year flood.” According to the Bunches, because the tropical storm that broke the levee was considered a “300-year flood,” the District should be strictly liable for its inadequate improvements that were designed to protect against a “25-year flood,” notwithstanding the Belair/Locklin reasonableness rule. But as we discussed, even Belair observed that a public entity that undertakes to construct improvements to protect property from potentially dangerous flood damage cannot be made the “absolute insurer” of those lands it seeks to protect. (Belair, supra,
III. Conclusion
The Belair/Locklin reasonableness test applies to cases involving public flood control works that cause physical damage to private property. As the Court of Appeal concluded, the trial court properly understood and applied the Belair reasonableness test. It used many of the balancing factors that Locklin subsequently applied. We conclude that courts should use these factors in cases where a public entity’s flood control measures, designed to protect against potentially dangerous periodic flooding, cause property damage. Although the Court of Appeal did not directly apply those factors, we find nothing in Locklin that requires us to modify the court’s disposition. We therefore affirm the Court of Appeal judgment.
Notes
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,
Plaintiffs are Kenneth and Deidre Bunch (the Bunches).
The Locklin factors contemplate that the inquiry into “reasonable” design, construction, operation, and maintenance is not limited to a narrow examination whether the system’s technical specifications, intended capacities, materials, workmanship, and repairs were adequate under all the circumstances. (Locklin, supra, 7 Cal.4th at pp. 368-369.) Instead, the inquiry should include specific consideration whether the location and configuration of the system, and its purpose to divert the natural flow, were themselves “reasonable.” In other words, the “reasonableness” of the system encompasses a determination whether, all things considered, it should not have diverted, and thus reallocated, the risks of periodic or sudden flooding as it was designed to do.
Initially, the District contends that the law of the case doctrine precludes the Bunches from raising questions about the effect of pre-Belair cases because Bunch I rejected those issues. That doctrine affects the rights of the parties, but does not preclude us from discussing Locklin’s effect on application of Belair’s reasonableness rule in this case to clarify the law. (See DiGenova v. State Board of Education (1962)
Concurrence Opinion
I concur in the analysis and result reached by the majority.
I write only to point out that the majority opinion, relying substantially on Belair v. Riverside County Flood Control Dist. (1988)