*1 Aug. 2, No. 5962. In Bank. [Sac. 1950.] ELDEN CLEMENT, Appellant W. THE STATE Respondents. al.,
RECLAMATION BOARD et *3 for Vayne Hudson Ford Miller and Desmond, D. E. Earl Appellant. Rountree, Attorney General, Walter S. Howser,
Fred N. Attorneys Deputy Reed, ’Brien Robert E. Timothy W. O and Henry Holsinger Respondents. and C. C. Carleton General, in inverse condemnation an action TRAYNOR, J.In Constitution,† California I, under article section damaged by had farm land been alleged that his flood control maintenance of a and defendants’ construction River north east bank of the Sacramento project on the first The city complaint was in two counts. Colusa. public for a damaging private property alleged taking or a re alleged to the that the use. The second Motions project. negligent maintenance of from the sulted members of granted to the individual for nonsuit were against the Board, and the cause was tried Reclamation State agencies charged with the and the of California state State jury returned project. and control of the maintenance from the defendants, plaintiff appeals a verdict judgment entered thereon. farm is located in the Butte Basin of
Plaintiff’s the Sacra- Valley a half about mile northeast Colusa, mento quarter a mile east of the east bank and a of the Sacramento rectangular shape, in 998.7 River. feet wide and about longitudinal length, and its axis mile extends east and early During the of Colusa County, riparian west. settlement cooperated in owners the construction of flood control dikes along By the east bank of the levees Sacramento River. high along levees 72 feet pro- 1870 a series of the east bank Basin, including tected the lands the Butte that now owned from the waters of the plaintiff, Sacramento River at nor- stage. During years mal flood first few of their main- major two breaks occurred One, tenance levees. Break,” Colusa;
“DeJarnatt was about three miles south of Break,” other, the “Moulton about miles north *4 Thereafter, several minor of Colusa. breaks occurred in the directly opposite levees, plaintiff. some of them the lands stage, passed through the waters of the river At flood †“ property damaged public shall not taken or Private be use having just compensation to, paid first without been made into court for, . the owner . .” breaks in the levee and flowed
several into the Sntter and overflowing generally Butte Basins levees. Plain- subject was to inundation whenever water tiff’s land collected contends, however, He Butte Basin. in the this inunda- by the over-all rise of water in tion was the basin and flow of flood water the direct from the river and property able to farm his until 1940. he was Shortly construction of farmer levees, after the government steps took the first toward flood control federal Valley. in the Sacramento In 1893 and reclamation Debris Commission was created an Act California Congress accomplish navigation flood control and restore Legislature In River. 1913 the the Sacramento formed the Board and Joaquin Reclamation State Saeramento-San District, Drainage herein, vesting defendants them with broad relating all flood control powers over matters to the Sacra- Joaquin mento and Rivers and their San tributaries. Further approved by reclamation work was forbidden unless these agencies. comprehensive plan Pursuant of flood control agencies cooperation these formulated with Cali- Debris Commission and fornia the United Engineers, States undertook project. latter construction of the The cost was government equally the federal shared and the state. The necessary rights way, purchased flowage state furnished rights necessary, wherever and undertook the maintenance of part project completed. each as it was By completed 1932 the was from the northern boundary County of Colusa south to the confluence of the Bay. River and year Sacramento San Francisco In that Moulton and DeJarnatt Breaks were closed levees. The plaintiff’s channel of Sacramento River north of deepened and widened and its carrying capacity increased from an undetermined but substantially capacity smaller 145,000 per cubic feet of water second. South of property, the narrower channel of the river had a maximum carrying capacity 65,000 per cubic feet water second. system Under these circumstances no of levees without relief openings be could constructed within the limits of reasonable engineering. provide To opening carry relief 80,000 off per cubic feet of water second before the flow of the Sacra- mento River south, reached its narrower channel to the Weir Colusa cutting 62-year constructed old farmer height levee to a of 61.8 to 64 feet leaving the levee north and *5 1650-foot of the south end cut 72 feet. The of the at south corjier northwest of the lay northwest cut about feet wide concrete, and with farm. The cut surfaced plaintiff’s at were built its training levees known as parallel levees for about eastward ends, which extended and south north their termini that at gradually widened out so mile and boundary plain- north apart. mile were about half a being training levee, the south parallel farm ran tiff’s through strip of land wide an 80-foot separated therefrom the excavation pit caused a ditch or borrow which ran corner of training The northeast the levee. dirt to build terminus of the directly opposite the east land was plaintiff’s designed to training levees were training levee. The south the Butte flowing surfaced cut into over the direct the water thereby relieve where would fan out to the east it Basin main river levees. pressure on the flow levees, training Weir to the end of From the Colusa levelling mile, abruptly gradient per 9 feet is about downward high velocity decreasing weir, thus the mouth of off at deepened flowing cut, caused water over of the steep gradient the north and the the river to channel decreased training As a result of the levees. between substantially carrying capacity water was velocity, the of the mouth began to fan out at the reduced, and as the water the form of an deposited and sand in weir it silt of the 1939-1940 had the winter of fan or delta that alluvial the flow of height impede and divert a sufficient reached through the weir to the the cut and pouring over water longer fan into the permitted to out flow was no east. weir at mouth of the diverted the delta basin but of the and the termini between the delta it flowed so that the delta water flowed between training levees. The that flowing training levee, instead of out the south end of and the end of the east basin, up backed and overflowed into deposited alleges the water Plaintiff that farm. plaintiff’s farm, forming a of his at the east end and debris sediment part of his farming impossible on that made delta thereon velocity high alleged that the 1940. is also after farm and filled part channels over the east cut flow levee, training turn- farm and the pit between the the borrow onto the central spilling river and over ing toward the back cutting new channels and plaintiff’s property, portion of this alleged as a result thereon. It is depositing silt diversion, land, depre- water onto his farm ciated value $30,000 $8,000. assigns
Plaintiff as error given by certain instructions* trial court respect with right to defendants’ under enemy “common doctrine” projects to construct flood control incurring liability private landowners for to their land thereby. jury
By challenged instructions, was instructed of the Sacramento River were the walls the natural banks *6 by flowing the action of the of the river channel cut water reference to artificial dikes or levees constructed without by riparian owners; thereon before 1870 that the natural only by were those waters that were contained stream waters by natural banks of the river as defined the court and by did include waters that would have been contained levees; all farmer and that waters that would have over- flowed the natural banks of the river were flood waters. On phrase by *“The ‘natural bank’ as used the Court in these instruc- tions, ground of of means the elevation the surface which confines channel, by which the stream within its natural action was formed flowing water, of artificial exclusive enbankments or levees.” you purposes “The Court instructs that for the of this case natural comprise capable being waters those waters which are of stream within the natural retained banks the Sacramento River and not by upon artificial assisted levees or near the banks.” you purpose “The Court further instructs that of this case by Court, in waters excess natural stream waters as defined but retained within the leveed channel means of artificial levees or embankments constitute flood waters.” hereby obligation “You are instructed that there was no on the part any of of the defendants or them to maintain on levees the Sacra- protection plaintiff.” mento River for the along “As to the levees the Sacramento River in existence before the Weir, you plaintiff construction the Colusa are instructed right benefit, to had no have the same maintained his main- causing opening tained at all. The of an to be in made such levees with connection the construction of the Colusa Weir no invasion any right merely permit if the effect thereof was to an outlet for the flow of flood water the Sacramento River.” you flowing “If find that waters over the Colusa Weir were not which would have been to waters confined the channel of the Sacra- any mento River the natural banks thereof exclusive of artificial levees, you are instructed such waters were flood waters. Flood River, defined, enemy, as so are a common Sacramento recognizes right every protect which the law landowner means, though damage may thereby lands all his reasonable even upon neighbor.” be inflicted his you nothing “If this ease find that the state did than a more private might landowner have done on his own liability, you instructions, forth in as set these are instructed to find for the defendants.” jury instructed the definitions, the court of these the basis flood flowing the Colusa Weir was if water over had the natural banks that would have overflowed the water thereby damage constructed, caused farmer levees never been compensable; liability that defendants’ under article was not river waters I, 14 was limited to caused section only cutting if of the levee and the construction of away cut river and Colusa Weir the natural banks of the alleged escape, allowed the natural stream waters and if the the diversion stream natural jury they requested retired, waters. After the had clarifi- instructions, repeated cation of these were then you summarized the trial court “If under- as follows: don’t that, many in so If stand words it is this: the defendants in this case caused the natural river stream water of the flow plaintiff they liable; onto the lands of the would be they didn’t, wouldn’t.”
Plaintiff challenged contends that the instructions in erroneously effect directed a verdict for defendants. He does not attack the explaining enemy instruction the common doctrine jury, objects to the but upon he to the definitions which the instruction was In view, based. his construction of the farmer levees 1870 and their continued maintenance until 1932 created a making new natural condition, in effect the channel between the farmer levees a new natural channel *7 and the by waters contained those levees natural stream waters of the Sacramento jury River. He contends that the should have been causing instructed that if the water damage to his land was the natural stream water as he defines it, damage is by not covered enemy the common doctrine compensable and is I, under article section 14. He asserts that enemy the common doctrine immunizes defendants from liability only damage for resulting from the inundation of by his land flood waters, i.e., waters that would not have been contained the farmer levee before it was lowered in the construction of the Colusa Weir. We conclude that the trial court’s instructions were based on an erroneous definition terms applied to the present ease, facts of the and that they precluded jury determining from whether land damaged by against waters which he was entitled protection to the of the farmer levee. that the flood waters of a natural is well established enemy against common owner of are a
watercourse 636 subject
land
may protect
overflow
those
his
waters
land
barriers,
erection of defensive
and that he is not
damage
liable for
adjoining
caused to lower and
lands
exclusion of the flood
property,
his own
even
damage
to other
is
thereby.
lands
increased
If he
obstructs the natural channel
river,
however, or creates
a new artificial
channel which the natural
stream waters
the river are carried onto the
lands
another that would
protected
have been
therefrom but for the creation of the
channel,
artificial
damage
he is
resulting
liable
therefrom.
(Weinberg
Bixby,
Co. v.
87,
185 Cal.
95
25];
P.
Everett
[196
Davis,
v.
18
389,
Cal.2d
393
821];
P.2d
McDaniel v.
[115
Cummings, 83
515,
795,
Cal.
520
575];
P.
8 L.R.A.
[23
Seufert
Cook, Cal.App.
v.
74
528,
;
537
P.
Jones v.
[241
418]
California
Development Co., 173
565,
Cal.
575
823,
P.
L.R.A. 1917C
[160
; LeBrun
Richards,
v.
210
308,
825,
Cal.
314
1021]
P.
[291
336];
72
McCarthy
A.L.R.
Standish,
v.
It is settled that the flood waters of the Sacramento enemy River are a common against which proper flood control may measures liability be taken caused thereby. (Gray v. Reclamation 1500, 174 622, District No. Cal. ; 637 P. Lamb Dist., v. Reclamation 125, [163 73 Cal. 1024] 625, 133 P. 2 Am.St.Rep. ; Blauth, Perkins v. 163 [14 Cal. 775] 782, ; 790-792 Cook, P. 528, v. 74 Cal. 537 [127 50] Seufert P.418].) [241 may
Action that be taken for protection his own with liability by out may an individual landowner be taken protection state for the of all the in an landowners area with liability out I, under article section 14 for thereby. (Archer Angeles, 19 19, Los Cal.2d 24 P.2d 1]; Angeles County O’Hara v. Los [119 Flood Control Dist., 19 61, Cal.2d 23]; Angeles P.2d House v. Los [119 County Flood Dist., 384, Control 25 Cal.2d [153 950]; Gray v. Reclamation Dist., 622, 174 Cal. P. ; Valley Country County San Gabriel Club v. 1024] Angeles, 182 392, Cal. 554, 1200].) P. 9 A.L.R. “The liability of the state I, under article section 14 of the California taking Constitution arises damaging private when the property general not so essential to the welfare as to be sanctioned ‘police power’ [citations], under and the *8 injury is one give that would rise to a cause of action on the part of the owner independently pro of the constitutional vision. provision permits against an action [Citations.]
637 is consent. its sued be cannot state, which give a action, but to new causes to create designed, exist. otherwise would action that a cause of remedy for injury an provision for under this not liable is therefore state damnum, would property owner injuria. If the absque is inflict person to private were a of action have no cause from compensation for no claim damage, he can have plaintiffs therefore, case, present In the state. [Citations.] 14, if the section I, article under right compensation have no right have the party would private injury is one that City Los (Archer v. incurring liability.” inflict without 308 Sponenbarger, U.S. v. p. States Angeles, supra, 24; United States, ; Jacobs v. United 225, 84 L.Ed. 256, 266 S.Ct. 230] [60 142]; Los Weck v. L.Ed. 26, 78 13, 290 16 S.Ct. U.S. [54 182, 193 Dist., Cal.App.2d County Angeles Flood Control County Flood Control Angeles ; Los P.2d Stone v. 935] [181 Lamb v. 396]; Dist., Cal.App.2d 902, 912 [185 Am.St.Rep. 625, 125, 133 P. Dist., Reclamation 73 Cal. [14 protects defendants enemy doctrine 775].) the common Since carried onto liability only that the waters from to the extent of the chal waters, propriety land were flood correctness of lenged depends upon instructions water” “natural stream definitions of flood water” and Plaintiff can upon which those were based. instructions by water that right recovery assert no even if banks of the river would have overflowed the natural Injury caused the Colusa Weir had not been constructed. thereby injuria even it results absque damnum by the part velocity from the waters caused increased deepening project the channel in the construction (Archer City 19, 25, and Angeles, supra, 19 Cal.2d Los cases cited his own land therein), protect since must vagrant of others flood waters excluded from the lands protective barriers, and he can assert construction of right recovery injury no resulted damages when the has (Archer v. from his proper failure to take measures therefor. 19, 1]; 25-26 P.2d Wein Angeles, 19 Cal.2d berg 25].) Bixby, Co. v. 87, 185 Cal. P. a flood control
If, however, the construction of private owner stream waters onto land of a natural diverts taken or damage thereto, property is as much causes compensation must be damaged public use for which highway paid as if it were condemned for the construction of a *9 638 a propriety challenged
or school. The of the instructions upon therefore correctly turns whether the trial court defined the “natural banks” and “natural stream waters” of the Sacramento River. true, assert, defendants as that the farmer
It is levees original banks of Sacramento River. not the is are also that a landowner avails himself right that the “fact true vagrant waters of a river repel not, embankment does some circumstances or set absence circum further any obligation impose upon him stances, to maintain such restoring refrain from obstruction, natural conditions.” (Weinberg Bixby, . 87, 101 v. 185 Cal. P. [196 25]. Co added.) follow, however, It does not Italics state liability may protection tear out a without that has existed upon years 62 lands for which sub expended upon have been stantial sums reliance the continu protection. (House Angeles County Los ance v. Flood Dist., 25 950].) Cal.2d 384 P.2d In Control view of the [153 long together levees, continued maintenance with the expenditure of substantial in farm sums investments in re thereon, the liance levees came to the natural be banks. The they completed contained before the whole and the Moulton and DeJarnatt Breaks closed must be re garded natural as stream waters that cannot be diverted onto liability the lands of another to his detriment therefor. “Where the Creator the artificial condition intended it to be permanent, community a of landowners or water users has adjust been allowed itself to presence and existence of the artificial water condition, couse or other artificial acting supposition upon continuance, of its proceeded has this long beyond prescriptive period, time the new condi regarded tion will one, be as it were a natural its origin being artificial disregarded by then the law as it has (I community.” Wiel, been Rights Water in the (3d [1911], §60, p. 59.) Western States ed. change “A appears the flow of stream that permanent usually to be costly adjustments by leads to interested, they those as cometo regard the artificial permanent. condition as It is therefore reasonable that protection should receive much as if the condition (Natural were natural.” Soda Products Co. v. Angeles, Los 193, 23 Cal. 2d 12]; 197 P.2d [143 People City v. Angeles, 34 695, 1]; Cal.2d 698 P.2d [214 Chowchilla Farms, Martin, 1, Inc. v. 219 18 Cal. [25 435]; Matheson v. Ward, 407, 24 411 Wash. P. 520, 85 [64
639 96 N.W. Kray Muggli, 90, 84 955]; v. Minn. Am.St.Rep. [86 v. Shepardson 882, Am.St.Rep. 473]; 54 L.R.A. 332, 87 442, Holloron, 84 Mont. Perkins, 354, 356; Popham 58 N.H. v. 103, 109-110 1099]; Youmans, Wis. Smith v. P. [275 Co., Antwerp Light Power 1115]; & N.W. Hammond v. [70 If rule were other 635].) 621, Misc. 786 N.Y.S. recourse wise, in the have no landowners area would farmer complete destruction of levees. Weinberg distinguishable Co. ease present rely. The defendants 25], P. on which
Bixby, 185 Cal. considered was caused flood waters there *10 liability they had done held free from because were defendants land, repel their own those waters from nothing more than enemy pro In by the common doctrine. protected action that inundation, they a dike land from cut tecting their own had only years ten The dike constructed had been before. during main protection years of its afforded insubstantial the heavy periodically had been washed rains. out tenance more a the area than a Its was hazard to lands in the existence allegation proof There that useful was neither nor barrier. any had been in reliance expenditures investments made during period its main on this insecure barrier the short any was there evidence from it be tenance, nor could damage complained the not inferred that would have circum occurred the dike cut. those had not been Under properly under no stances, it was held that defendants were duty reopening to maintain the dike and that the of the old outlet was not actionable. It is clear that a landowner enemy deprived protection is not of the common faulty failure a doctrine his to maintain and insecure It protective barrier in the construction of levees. does not duty destroy however, that follow, there is no not to the proved substantially it has been secure, barrier when has than have years, maintained for more and substantial sums expended upon been in its maintenance. reliance continued in
The construction of the Colusa not an Weir was dependent project barrier which a continuous control flood was weir with cut. construction of the was coincident closing the provide of the Moulton and DeJarnatt a Breaks Damage opening relief for the protection levees. the thereby cutting the caused therefore not actionable unless Basin the caused more water to flow Butte weir into the through flowed Moulton and than would have DeJarnatt they ample Breaks before were closed. There was evidence if support that, defendants' even it contention is assumed plaintiff’s damaged that was inundation, land damage is attributable to defendants’ construction Colusa Weir but to the flood River action of Sacramento De- would have the Moulton and not been Jarnatt Breaks had closed and the Colusa Weir had not been constructed. Before the construction of flood control project, during the Sacramento River flood season periodically its poured overflowed banks of channel and through the Moulton and DeJarnatt Breaks at an elevation substantially than that Colusa lower Weir. The re- sult was Basin, including that all the lands the Butte only of plaintiff, partially protected by were farmer periodically levees and were inundated the flood through flowing river the breaks. The owners of could lands the basin have but, closed the breaks had so, inevitably done would the river have forced breaks at other points along levees, and, as showed, the evidence there strong possibility that such a break would have occurred at point opposite plaintiff’s property because the occurrence of previous breaks The rear part location. swamp classified and overflowed land in
original government survey of disputed the area. is not poor that it been engineering practice would have to close Moulton provide DeJarnatt Breaks and not to another opening relief as the such Colusa Weir. There was evidence *11 that, diverting rather plaintiff’s by than water onto land which it reached, would otherwise not have been the of construction the closing actually Colusa Weir and the of other the breaks diminished of water Basin, the flow into Butte the the limited upon occasions it which was and flooded, raised the at level which the river would overflow. was the There evidence that construction Colusa Weir frequency did not increase the of inundation plaintiff’s of land plaintiff’s and was that land any greater not flooded to by extent than it had been water flowing through Moulton the and DeJarnatt Breaks before the jury weir was constructed. could have inferred large expenditures the govern- the state and federal greater ment protection flood by for. that afforded the than actually farmer levees benefited as well as the other landowners, flowing and that the caused over the Colusa than Weir was less would have been caused 641 been con had not waters of the river the flood matter of law evidence, however, not as a structed. This does They did in fact cut require a verdict defendants. eight from feet its normal
bank of the river
to ten
below
plaintiff's land
flow
opposite
elevation
dumped
plaintiff’s
water
land.
over
weir
be
on
De-
through
have
water that would
flowed
Moulton
flood
because
Jarnatt Breaks before
closed is
water
were
it
The water
was not contained
the banks of the river.
prevented
going through
after
was
these breaks
they were closed
if
that water
water,
remained flood
it is
that went over
liable.
the Colusa Weir defendants are not
only
Thus
flowing
defendants are liable
over the
the water
Colusa
Weir is water that
would have
contained
been
banks of the river had the Moulton and DeJarnatt
Breaks not been
disputed
closed.
Plaintiff’s witnesses
thereby
evidence
the state and asserted that water was
dumped
plaintiff’s
on
substantially
land
greater
extent
than would have been the
had
case
been carried out the
it
jury
old breaks. The
could have
evidence
inferred from this
land
damaged by
was
of water
the diversion
over the Colusa Weir whereas it
been
would not have
so
damaged by the retention of the Moulton and DeJarnatt
Breaks. We
say
cannot
that such an inference finds no
support in the evidence. The resolution of the conflict must be
made
trier
appeal.
fact and not
this court on
(De Baker
Ry
v. Southern
Co.,
257,
106 Cal.
285
P.
[39
Calif.
610,
Since power state to Weir, the Colusa Gray construct cases such as v. Reclamation 622, Cal. 653 Dist., 174 1024], injunction P. in which an [163 against the construction of system a flood sought, control point. are public The construction of im provement ais deliberate agency action of the state or its public purposes. furtherance private property If is dam aged thereby agency the state or its must compensate the (Cal. owner therefor Const., I, 14; art. Blauth, v. Perkins § 782, 163 789 P. ; Cal. 208 Tomich, 19, Cal. [127 50] Kaufman 130]), P. whether intentional or the negligence result of on part governmental agency. (Reardon Am. v. San Francisco, Cal. 492, 317, P.
642
City
Cal.App.2d
48
109];
Barbara,
Mitchell v.
Santa
Rep.
;
Dist.,
Hooker v. Farmers’ Irr.
272 F.
568, 572
P.2d
[120
131]
in A.L.R.
con
600;
1231.)
see cases collected
69
decisive
damaged property
owner
sideration is
of the
whether
uncompensated
proper
would contribute more than
share to
his
public undertaking.
(Rose
California,
v.
19
State
Cal.2d
City
713,
505];
Vote, Cal.App.
737
P.2d
v.
76
Stockton
[123
369,
609]; City
Redding
Diestelhorst,
404
P.
15
v.
[244
Cal.App.2d 184,
City
177];
193
P.2d
Pasadena v.
[59
Co.,
Cal.App. 21,
463];
Union Trust
25
Temescal
P.2d
Marvin,
Cal.App. 512,
335].)
Water Co. v.
P.2d
applicability
enemy
of the
common
doctrine as
defense available to defendants
a retrial of
cause is
on
this
City
set forth in
Angeles,
Archer v.
Los
There is no in contention that the merit erroneously jury allegations instructed the on the trial court recovery count which complaint, of the second of his was sought allegedly negligent on the basis of defendants’ main transcript Colusa Weir. The tenance the discloses that adequate negligence given instructions on were jury, the plaintiff requested and that no instructions thereon that were given. not The effect of the instructions was to submit properly jury negli to the the issue whether defendants were gent in the plain maintenance of the Colusa Weir and whether damaged thereby. (See Angeles tiff County House v. Los Flood Dist., Control 25 384 950].) Cal.2d P.2d [153 contend, however, any that error in
Defendants the instruc prejudicial jury might not reason tions was that the its verdict on the absence of have based to applicability limitations, of the statute of land or the issues not challenged rely They instructions. affected on judgment a not rule that will be reversed on appeal support any is substantial evidence to there verdict on theory might on which it have been applies reached. That rule in one or possible cases more of the theories on might jury which a have reached a is supported verdict evidence, supported by substantial but other theories such presented; jury were is then presumed evidence it that the theory on supported by reached its verdict a is rule applies evidence. The also in which cases no other ver possible as a dict is matter law. applicable, It is not however, this, case such jury as in which the been has precluded erroneous considering instructions from a valid theory upon which a actually result different from that might reached have been supported. error in such ease jury might is not cancelled the fact have found for “ prevailing party ground. on some other ‘It is true that determining whether supported by a verdict is evidence, must jury accepted we assume that the the view most favorable respondent. to the However, determining whether or not given correct, instructions are we must assume that the jury might have believed upon the evidence which the [cause of action or losing party defense predicated, of]
644 subject upon that given had been correct instruction that if the losing verdict in favor might have rendered a jury ’ ” P.2d Stewart, 133, 140 24 Cal.2d (Oettinger v. party. [148 12, Swortfiguer, Cal. ; O’Meara v. 19, 156 A.L.R. 1221] the error consisted Where, here, 975].) P. [214 question on a that is one jury matter of law instructing the as a favorable conflicting evidence, and a determination on of fact had not might made if the error losing party have been (Edwards v. prejudicial. that error is committed, been Huebotter v. 883]; P.2d 589, Freeman, Cal.2d 193].) 765, Follett, 27 770-771 Cal.2d urged it is grounds upon which of the alternative Neither established its verdict jury could have reached grounds, both matter of law. On evidence as a verdicts by which either of two conflicting evidence there was supported. be could *14 defendants’ conten support ample
There was evidence by De damaged the water. plaintiff’s land was not tion that deposit of soil on expert witnesses testified that fendants’ superior to that quality, plaintiff’s land was of a fine fertile made no that it, beneath but of the natural soil 1941, even after and the land attempt to clear cultivate easily There was evidence might he have done so. in fact plaintiff’s land were allegedly swales cut on that the in the farmer by pouring through the breaks cut flood waters There was Weir. construction of the Colusa before the .levees had not been testimony plaintiff’s land that the value of had in fact been in by inundation that it decreased its but say, how by We cannot deposited thereon. creased the soil support insufficient to ever, plaintiff’s that evidence would be de that his land had a verdict in his He testified favor.. inundation, and preciated $22,000 value because easterly of along farmed third because that it could not be sedimentary testimony deposit. His was corroborated testify to the expert competent Plaintiff witnesses. Co., Valley (Willard & Fuel value of his own v. Gas testimony, believed, 9, 286]), 171 14-16 P. and his Cal. [151 damage support finding implied would an that he suffered Colusa Weir. his land the construction of the had run on the statute of limitations defense The by evidence that is action is not established of cause plaintiff’s Plaintiff testified to his conflict. apparent 1, on or about June 1941. He became first land of Control with the Board May State on therefor a claim filed
645 Sep 7, rejected the board until 1942. That claim was not filed on 22, 1944, complaint tember and action was this 16,1944. clear, therefore, October that if testi plaintiff’s mony two-year limita were believed jury, neither period prescribed by 688.1, tion nor Code, Political section three-year period limitation prescribed Code Civil litiga Procedure, 338(2), section had run at the time this began. (Natural tion City Los An Soda Products Co. v. geles, 23 Cal.2d 202 193, 12].) P.2d [143 participation also contend that the in the
Defendants liability government the federal relieves them from project thereby. They rely Cory on v. for Brandenburg Stockton, Cal.App. 552], 634 P. County Angeles Dist., Cal.App.2d Flood Control Cory case, only partici In defendant’s 14]. project purchase right
pation
was the
of land for a
way.
case,
paid
In
present
the state
half the construc
costs, purchased
rights
way
flowage,
tion
lands
agencies
participated
planning
with the federal
in the
project. Responsibility
for its control
is vested con
currently in
governments.
(U.
state and federal
S. River and
August 26, 1937;
Harbor Act of
Code, 8530.)
Water
§
operation
project
completed
responsibility
is the sole
(Water Code,
Atty.
the state.
8361 (i);
Ops.
93-94.)
Gen.
§
Brandenburg
case decided
son,
minor
recovery
sought,
whose death
“property”
was not
taking
meaning
which there was a
within
I,
of article
14,
section
and that the state had therefore not consented to
being
negligence
agents
sued for the
of its
therein. The
liability by
dictum that the state was
partici
relieved from
pation
government
of the federal
in the
was un
necessary to the decision therein and is inconsistent with later
*15
involving
cases
the same
in
liability
defendant
which its
has
recognized.
(House
been
Angeles County
v. Los
Flood Con
Dist.,
trol
25
384,
Cal.2d
392
950];
P.2d
Stone v. Los
[153
Angeles County
Dist.,
Flood Control
The is reversed and the cause remanded for retrial in expressed accordance with the views herein.
Gibson, J., Shenk, J., C. Edmonds, J., Spence, J., and con- curred. judgment in do
CARTER, J.
reversal,
I
concur
of
but
majority
agree with
on which it
the reasons
is based.
opinion
apparently
upon,
and
the cases of Archer
cites
relies
1],
Angeles,
“ farmer . . . the construction of the levees 1870 and their until 1932 created a new continued maintenance natural making the channel condition, in effect between the farmer a natural channel and the waters levees new contained those the natural stream waters of the levees Sacramento ’’ But, agree I River. do not that under the so-called common enemy doctrine are not liable for defendants to plaintiff’s land from flood waters which were caused to flow upon plaintiff’s with destructive force land as the result of the lowering of the levee in the construction of the Weir, Colusa admittedly lowered the east bank of the river to a depth of opposite plaintiff’s between feet land, providing adequate safeguards without against flood waters discharging through this weir with destructive upon force plaintiff’s land. While many this court has held in cases that an property owner of right protect has the to property Ms against so-called flood waters the construction of levees, dams, etc., property on his property and that other owners have right damages against no of action for him because such levees or discharge dams cause the flood waters to property onto their force, with mean, destructive this does not and no case except the Archer and 0 'Hara cases held, has ever that an owner of property may complain damages and recover for injury to property his as a result of the construction of a flood control project protective where deliberately barriers are removed and deliberately flood waters are discharged collected and onto his property with such destructive force as destroy very the same. project fact that a is undertaken a public agency purpose for the controlling flood waters should afford a sound basis the contention that such a project completed protect when should adjacent damage by thereto from regardless flood waters of their velocity. say volume or To enemy the comomn doctrine apply public should agency charged duty with the responsibility constructing maintaining a flood con- trol private same as owning individual land adjacent to a stream, my mind, unsound, not absurd.
Yet, majority opinion states: “Action taken may be protection liability for his own an individual land- may protection owner be taken the state for the of all the liability under I, landowners an area without article sec- *17 thereby." opinion tion 14 for caused then cites quotes and from the case as authority Archer this state- stated, complete ment. As answer heretofore a to this state- my dissenting opinion ment is found in in the Archer case. apparent majority opinion right that the limits the private damages owner land to recover a case such as this, damages may to such as be caused from a diversion of respect natural stream major- waters onto his land. In this the ity opinion “If, however, states: the construction of a flood project control diverts natural stream waters onto the land of private damage thereto, property owner and causes is as damaged public much taken or for a use for compensa- paid tion as if it must be were condemned for the construction highway majority opinion of a or a school." The does not define what constitutes “natural stream waters." Such waters have, however, Herminghaus been defined this court Co., Edison pages Southern Cal. at 90 and California being ordinary P. 607], the usual and flow of the “ through stream the various year, seasons of the and recurring annually floods, even the their waters flow of during period made the wider stream the so as to thereof adjoining lands, yet part include are to he deemed a the ordinary stream.” the While the discussion in the flow of Herminghaus right riparian case related to the of a owner to have full natural flow of past the a stream to flow his land, it correctly ordinary defines what constitutes the usual and flow enemy of a stream in its relation to the common or extraor- dinary In words, flood waters doctrine. other what constitutes ordinary the usual and flow of the Sacramento River are the customarily throughout waters which flow in river said fall, year, winter, spring various seasons of the and flows being greatly in excess the summertime flow. It is a matter knowledge, judicial of common and one of which we can take notice, past, greatly that at various times in flows which ordinary usual during fall, exceeded the and flow winter, spring have occurred, amounting seasons some them may be termed great damage what floodswhich caused lands, adjacent improvements, and livestock to the lower reaches of River. prevent the Sacramento It was to caused recurring projects these floods that the various flood control completion. prosecuted project If were undertaken property here involved so constructed that greater damage suffer and other owners would they recurring would these floods than have suffered before project constructed, such landowners should be entitled damages suffered, to the so-called enemy common doc- trine should not be invoked by the Reclamation Board other public agency responsible for inadequacy of the project to accomplish objective of the project. flood control reasoning I excerpts am unable to follow the following ‘1 majority opinion: from the The construction the Colusa independent Weir was not an which a continuous control cut. flood barrier was The construction of the weir was closing coincident with Moulton and DeJarnatt provide Breaks opening a relief protection Damage thereby levees. is therefore not actionable cutting unless the of the weir caused more water to flow into the Butte Basin than would have through flowed the Moulton and DeJarnatt Breaks before were closed.” . . .
“The water that would through have flowed the Moulton De they and Jarnatt Breaks before were closed is flood water it by because was not contained the banks of the river. The prevented water going through that from was these breaks they after water, were closed remained it flood and if is that water went that over the Colusa Weir defendants are not only Thus are if liable. defendants liable the flowing water over the Colusa Weir is water that would have been contained by the banks had of the river the Moulton and DeJarnatt ’’ Breaks not been closed. foregoing excerpts the from interpret majority I the
As expressed thought intended to be although is that the opinion, damage from no flood waters which suffered were had through Breaks, the Moulton and discharged DeJarnatt and any damage from the suffered flood not have here in would open, left breaks been and damage said that the question had closing the was caused property breaks and to his yet Weir, may the Colusa he of not now the construction damage to his land the any causing waters said recover discharged which would flood waters have damage were Breaks, and DeJarnatt but which were the Moulton through through Colusa Weir because said the breaks were forced strange this is a and mind unsound my To rule of closed. public in the of a places agency charged it hands effect, In law. duty responsibility constructing of and maintain- with the operate power ing projects, flood control the to so construct destroy private projects damage to or such such as may being agency fit, see liable the such owner by him. If private property for the suffered there such loss a any reason, logic, sense, in or for such is basis common law opinion, holding majority in a it not been advanced has any announcing I such a have never read decision of court except 0 ’Hara rule, the Archer and cases. from majority opinion attempts distinguish this case following “Since, in Archer statement: that case solely by (Archer), caused flood waters
ease though the plaintiffs’ even would have inundated land that drainage system constructed, held that had been it was not damnum, absque not injury injuria, and it was drain merely actionable because the construction of the made age system velocity flood waters had increased By plaintiffs’ the extent to which covered land. present reasoning, plaintiff case is entitled same for whatever to his land is attributable recover ’ natural lowering of levee and diversion of the defendants into but cannot channel, stream waters an artificial recover he had any damage against flood waters velocity of duty self-protection, those even capacity carrying was increased the con and their dis project.” purported flood struction control in the attempted Archer case tinction between this case and the Archer excerpt out the record foregoing is borne excerpt my dissent following ease. This is shown (Archer Angeles, 19 opinion in ing that ease: foregoing “It that the 1]) Cal.2d 35 manifest prima case accordance facts sufficient to make are facie allegations District plaintiffs’ with and to establish what the action, gist the Archer Appeal declared to be the Court is that is, gist complaint . . ... ‘The . [the] *19 system drainage an artificial respondent constructed and built carelessly it not defectively, negligently that would so and designed and Ocean as carry storm to the Pacific the waters the fact injury reason of and the occurred intended’ ‘that waters into La negligently turned the storm respondent that the water Lagoon, small to conduct Ballona which was too constructed, through drainage system by it the turned into and (Archer v. . .’ operated respondent maintained . and the of supra) of the law Angeles, On the doctrine case, decisis, as to the Allison case, as to the Archer and stare case, plaintiffs it be held have established must that the lia- bility of defendants. ‘1 attempted proposition that answer to incontrovertible majority opinion ‘According advanced is that: to the the allegations complaint, the resulted because negligently defendants chan diverted water out of its natural nel, and obstructed the channel of the creek. Plaintiffs evi dence, allegations.’ fails however, to substantiate such That palpably statement gist incorrect. The the action as Appeal stated District Court of not water that had channel,’ been ‘diverted out of its was that natural rather it negligently the defendants ‘turned the waters into La storm Lagoon,’ Ballona is, collected surface waters and dis charged lagoon. them into the The evidence without contra diction shows that that occurred. were col The storm waters lected into drains lagoon creek, and turned into and outlet of which carry small them, was too with the result plaintiffs’ lagoon lands were flooded when the overflowed. prior decision is therefore the con law of case and ’’ trolling Also, following excerpt opinion here. from that appears page on “Summing up, 60: we have cases public agencies, right where do, with no proprietary so to have collected surface drains, waters installation of have dis charged those waters watercourse, into natural have and provide adequate failed to escape means for those waters ocean, knowing into the well that their cause conduct would flooding plaintiffs’ premises. As a of that con result duct, the discharged in the watercourse exceeded its capacity escape and inadequate could not through outlet, plaintiffs’ land and improvements thereon, riparian not stream, being three away, having miles there not subject tofore been by any overflow waters, are flooded damaged. The majority firmly contrary decision is established law in authority California weight and the jurisdictions. other only grievous will result in a mis carriage justice in the consideration, cases now but under great will cause subject confusion here law on the involved.” majority quoted excerpt opinion
In the last from the . is made “. . can- bar, at the statement case against any flood waters not recover for duty self-protection, even the veloc- which he had the *20 capacity ity carrying was increased those and their of project.” It is control difficult eonstrnction the flood anyone temerity could have the to for me to understand how person plaintiff in ease suggest even situated this protect against himself flood waters of destructive could on his land as the result of the volume which was debouched sug- operation involved. Such of the flood control here absurdity gestion height said transcends cannot be logic, or common reason, to have for foundation a shred of its sense. great probable it the advent Central
While
Valley
of numerous
project, which envisions
construction
impound
great
dams to
the flood waters of the
Sacramento
Joaquin
prevent
San
Rivers at
near their
so as to
sources
great
past
recurrence of the
floods
have
at various
which
valleys through
which these
flow
times inundated
rivers
may
consequent damage
property,
with
destruction
posterity
attempting
relieve
burden of
the arduous
bring lucidity and
which
order out of the confusion and chaos
involving
exists in
decisions of
the con-
now
this court
water,
any
grave
and use of
I have
doubt
student
trol
desire,
law,
water
should he
be
to reconcile the
so
will
able
may
any
of this court
pattern
decisions
with
be
said
judicial
craftsmanship
development
reflect
erudition or
body
of our
this
law.
SCHAUER,
judgment
in the
and in the dis
concur
I
J.
Traynor except
such
insofar as
discus
by Mr. Justice
cussion
absque
police power-cZumrotro
support
appears
sion
Angeles
in Archer v.
injuria
enunciated
doctrine
v. Los
1], and in O’Hara
P.2d
(1941), 19 Cal.2d