FRED PODESTA et al., Plaintiffs and Appellants, v. LINDEN IRRIGATION DISTRICT, Respondent; THE STOCKTON AND EAST SAN JOAQUIN WATER CONSERVATION DISTRICT, Defendant and Appellant.
Civ. No. 8788
Third Dist.
Apr. 23, 1956.
Wilson Biddick, Jr., City Attorney (Stockton), Harold W. Kennedy, County Counsel (Los Angeles), Lloyd S. Davis and Iver E. Skjeie, Deputy County Counsel, as Amici Curiae on behalf of Defendant and Appellant.
VAN DYKE, P. J.—This action was brought by plaintiffs and respondents, Fred and Adeline Podesta, against two public agencies, one a water conservation district, the other an irrigation district. By their complaint, plaintiffs sought damages claimed to have been suffered by them as landowners when the two agencies took a part of their property for public use without having paid compensation therefor. A general statement of the case is to be found in Podesta v. Linden Irr. Dist., 132 Cal.App.2d 250 [281 P.2d 905].
The trial court made the following findings of fact: In 1926, the plaintiffs purchased and since have been owners in fee of a parcel of real property referred to in the findings as parcel one, which lies south of the natural watercourse known as the North Slough of the Calaveras River. In 1931, the plaintiffs purchased and have since owned a second parcel lying to the north of said watercourse. In 1935, plaintiffs purchased and have since owned a third parcel, lying partly north and partly south of said slough, and contiguous to the first two parcels. Prior to 1860, North Slough carried a relatively large amount of the water of the Calaveras River. After the year 1860, the mouth of the slough slowly filled with sand as a result of natural processes. The filling of the mouth caused the flow in North Slough to diminish gradually until the greater portion of the water that had formerly entered it was caused to flow into another fork of the river known as Mormon Slough. Mormon Slough branches off from North Slough approximately one mile to the east and upstream from plaintiffs’ land. Since about 1900, and until the diversions made by the defendants, North Slough carried only freshets or flood waters in the channel across plaintiffs’ land and that only for about four days in any one year. These freshets and flood waters originated in the natural watershed of the Calaveras River. For the rest of the time of each year there was no water in North Slough. Plaintiffs’ land is devoted to the
On January 1, 1949, plaintiffs notified both defendant districts that the appellant district would obtain plaintiffs’ permission to use said channel to conduct the flow of said increased water only upon the condition that said defendants would build and maintain said three bridges, and on the further condition that the agreement of appellant district to so maintain and repair be put in writing. The defendant districts, however, failed to repair or maintain the bridges after said notice and failed to make or execute any agreement in writing. On April 16, 1949, plaintiffs notified defendant districts that unless the three bridges were repaired and maintained, and unless the written agreement to repair and maintain was executed by appellant district, all permission to use said excavated channel through plaintiffs’ land was revoked as of the first day of May, 1949. Both of said districts have failed to make any repairs on the three bridges, have failed to maintain them, and have failed to enter into any agreement so to do. The land of plaintiffs is now severed as aforesaid and has continued to be severed since on or about May 31, 1953. The value of the plaintiffs’ land in an unsevered condition on May 1, 1949, and also at the date of trial was the sum of $840,000. Due to the severance, the value of their land on said dates was reduced in the amount of $77,000. To repair the severance, it is necessary to construct and maintain three bridges and thereby replace and restore the present dilapidated structures. The cost of the three bridges which includes first construction, replacement at the end of 20 years capitalized at 5 per cent, maintenance at 1 per cent per year and insurance, totals $77,364. The reasonable value of the use of said excavated channel and the severance of plaintiffs’ land from the 31st day of May, 1953, to the date of trial is a sum equivalent to $77,000 at 7 per cent interest for said period.
Judgment pursuant to the findings of fact and conclusions of law was entered, and it contained provisions as follows: That plaintiffs have judgment against the appellant district in the sum of $77,000 with interest thereon at the rate of 7 per cent per annum from May 31, 1953; that said sum must be paid to plaintiffs within 30 days after final judgment herein as the term “final judgment” is defined in
The appellant district appeals from the judgment rendered against them and in favor of the irrigation district.
It was the basic theory of plaintiffs that the defendant districts in charge of public use and possessed with the power of eminent domain have taken property of plaintiffs for such public use without paying compensation therefor and that plaintiffs were, under
The findings made by the trial court graphically picture the situation existing when the irrigation district, with the leave and license of plaintiffs, in 1934 excavated the upper reaches of the channel of North Slough from the point where it branched off the Calaveras River to and through plaintiffs’ land. For more than 30 years that part of the channel of North Slough, while formerly carrying the greater burden of the water of the Calaveras River had almost completely ceased to receive any water therefrom. The trial court found that through that long period of time the only waters entering North Slough from the Calaveras River were occasional freshet waters when the river was at crest. This occurred an average of four times a year for a single day at a time. The mouth of the slough had been almost completely sealed off from the river by the deposit of silt and soil washed into the channel by the river. The head of the slough was nearly ten feet above the level of the river which from that point downstream was known as Mormon Slough. To be sure, the court found that notwithstanding this altered condition North Slough was a natural watercourse. Our attention is repeatedly directed to this finding by the appellant district, and upon that finding it lays great stress. The finding is of little moment in this case and its significance rests entirely in the detailed findings as to the condition of the channel and as to the paucity of stream flow entering the same from the river. Of course
The irrigation district elected to take nothing from plaintiffs save in accordance with the contract between them. The district obtained, therefore, nothing more than a right to go upon the land, to make necessary excavations in the channel, and to flow water through plaintiffs’ land so long as it fulfilled the conditions under which the right to do these things
The appellant district contends in support of its appeal herein that all that it did was done in the exercise of the police power. The contention cannot be sustained. The same argument was made in Smith v. City of Los Angeles, supra, page 576, where the claim was that dikes constructed by defendants which diverted the flow of a natural watercourse over onto respondents’ lands to their damage had been constructed for flood control purposes under the police power and that any damage resulting was damnum absque injuria. Referring to the extended consideration of the question in Archer v. City of Los Angeles, 19 Cal.2d 19 [119 P.2d 1], and in Rose v. State, 19 Cal.2d 713 [123 P.2d 505], the court held that the contention was wholly without merit as there was no basis for the application of the police power doctrine to the factual situation shown there and in the cited cases. We make the same observation with respect to the case before us.
“Generally, it may be said that police power operates in the field of regulation, except possibly in some cases of emergency such as conflagration or flood when private property may be temporarily used or damaged or even destroyed to prevent loss of life or to protect the remaining property of an entire locality. There is obviously no element of regulation involved in the case at bar, and no suggestion of anything in the nature of an emergency. The damage to plaintiffs’ property here involved was the result of a public
improvement constructed by the state in the exercise of its power of eminent domain. “. . . it should be obvious that the police power doctrine cannot be invoked in the taking or damaging of private property in the construction of a public improvement where no emergency exists. To hold otherwise would in effect destroy the protection guaranteed by our Constitution against the taking or damaging of private property for a public use without compensation.” (Rose v. State, supra, p. 730.)
Here the appellant district has gone upon the land of plaintiffs, has exercised and is still exercising sovereignty over those lands, has used them and is still using them in a way which withdraws them to a large extent from the use and occupation of plaintiffs and claims that the rights it has seized are permanently held by it because of its devotion of those rights to a public use. This conduct bears not the slightest similarity to the proper exercise of the police power.
In view of the nature of the acts of the appellant district, the applicable statute of limitations is that found in the five-year limitation expressed in the Code of Civil Procedure. In 18 California Jurisprudence 2d 100 it is said that though in some cases it has been held the three-year limitation prescribed by
“We are of the opinion the court erred in holding that the plaintiff‘s damages for the appropriation of the increased quantity of water from the American River to the detriment of his riparian right thereto, was barred in three years thereafter under the provisions of subdivision 2 of section 338 of the Code of Civil Procedure. It is the established law of this state that the riparian rights of an owner of real property to the use and benefit thereof are an inherent part of the
land, and the appropriation of such water is therefore a detriment to the real property as distinguished from a mere trespass. [Citing cases.] “It follows that the defendants’ appropriation of the plaintiff‘s riparian right to water from the American River adjacent to his Riverton property constituted a taking and damaging of the real property contrary to the provisions of article I, section 14, of the Constitution of California, and the statutory limitation of time within which the owner thereof may recover damages therefor is not barred in three years, but the right of action for damages, under the circumstances of this case, does not expire short of the five years necessary for the defendants to have acquired title to the water by adverse possession. It may not be said the defendants’ appropriation of the increased quantity of water was a mere trespass on the plaintiff‘s interest in the land.”
The application of the foregoing rules to the situation presented here is obvious. This was no mere trespass. It was a taking in perpetuity. The action having been begun within three years and seven months after the commencement of the adverse use, it was brought in time and was not barred by the statute of limitations.
Appellant district contends that the trial court committed reversible error in awarding plaintiffs any relief in view of what they assert to have been plaintiffs’ laches. The contention cannot be sustained. The trial court found that there had been no laches on the part of plaintiffs and this finding is supported by the evidence. Apparently plaintiffs, although advisedly maintaining at all times that what appellant district was doing and claiming the right to do to and through their lands was wrongful, were yet willing, in the exercise of good neighborliness, to grant leave or license therefor to the district upon the same conditions that such leave or license had been granted to the irrigation district. They promptly informed the district when it began its unlawful activities that it could not use the channel unless it complied with these conditions; that is, that it build and maintain substitute bridge crossings for plaintiffs’ use and that it enter into a written agreement to maintain them. The appellant district claims that in reliance upon inactivity of plaintiffs, it entered into its contractual obligations with the irrigation district, constructed the weir across Mormon Slough in order to facilitate the pouring of the river waters through
Appellant district contends that the trial court erred in its rulings upon proof of damage and in the measure of damages and in awarding any damages to plaintiffs. Perhaps it could be said that some things said during the trial about the measure of damages and the mode of ascertaining the same might have been said with greater precision, but it is apparent, nevertheless, that in substance and to all practical ends the award of damages made by the trial court is supported by the law and the evidence. Appellant district has wrongfully taken the rights with respect to and over plaintiffs’ property which we have heretofore discussed and described. The physical effect of this was to cut the plaintiffs’ land in two and it appears that plaintiffs’ efforts to prove the damages thus inflicted upon them was directed and confined to proving the amount by which the theretofore existing value of their holdings had been reduced by what the district had done and was doing and would continue to do in the future. By what it had done and by the dedication of the rights it had taken to public use and its active exercise of those rights in that use, the district had taken and now owned such rights in perpetuity. By reason of the law of its creation, and so long as the public ought to be so served, it was required to continue the exercise of those rights and thereby to continue the delivery of water from the river to the lands along North Slough. Having seized the rights and set up the use, it needed no license, leave or conveyance from plaintiffs to the perfection of its ownership of those rights. Just compensation it was obliged now to pay. There was testimony, and as to this there was little if any conflict, that by what it had taken the district had diminished the value of plaintiffs’ property in the amount of $77,000 and it was this sum that the trial court awarded in the judgment against the district.
We find no error in the method adopted to determine damages. No proof was made of the value of the rights and easements taken, but of this omission appellant district cannot complain. The proof was confined to damage to the property not taken by reason of its severance from the part taken and the construction of the improvement. (
There was no error in giving no consideration to benefits from construction of the improvements. (
Appellant district makes no other attacks on the judgment either as to form or substance.
Plaintiffs have appealed from that part of the judgment which decrees that they take nothing from the irrigation district. The appeal is without merit. Plaintiffs contend the district, by leasing its head gates in North Slough to the irrigation district, so placed itself in privity therewith as to make itself equally liable. But the irrigation district has taken nothing from the plaintiffs. And it was not obliged to anticipate the irrigation district would put the leased head gates to wrongful use; it could assume the lessee would obey the law.
The judgment is affirmed.
Schottky, J., concurred.
PEEK, J.—I dissent. I cannot agree with that portion of the opinion which holds that although admitted by the parties, and as the trial court found, North Slough is a natural watercourse, nevertheless “the burden of service owed by land through which there is a natural watercourse is largely determined, not by the fact that it is a natural watercourse, but by the factual conditions which measure the nature and the extent of the servitude.” The facts and conditions, it is stated, which so measure the servitude in the present case, are as shown by the findings of the trial court that since 1936 when the irrigation district abandoned its project, North Slough, by slow and natural processes, has been so built up by debris as to be all but completely sealed off from the parent river; that water flowed in the slough only for negligible periods and only when the river was at flood stage; that respondents had adapted their farming operations to this changed condition in that they had been able to use the dry channel for the passage of farm machinery and livestock to the extent that the channel had become a part of the integrated farming operations of their land which consisted of three parcels purchased in 1926, 1931 and 1935 respectively; that the acts of defendants in entering upon plaintiffs’ land, removing the debris at the mouth of the channel, leveling
At the outset the conclusion of the majority is met with the basic finding that North Slough is a natural watercourse. It did not lose its characteristics as such merely because water flowed therein only “infrequently in times of storm . . . It is sufficient if, during some seasons, water does in fact flow in the stream bed.” (Mogle v. Moore, 16 Cal.2d 1 [104 P.2d 785].) And being a natural watercourse, defendants could properly use it as a conduit for conducting foreign waters (
But, say the majority, the factual conditions found by the trial court “required” it to fix and award plaintiffs adequate damages for their injuries. But what were plaintiffs’ injuries? The evidence, and it is not contended otherwise, only shows a use by the defendants of a natural watercourse as a conduit for conducting irrigation waters which obviously augmented the flow during summer months, but did not exceed its capacity. There is absolutely no evidence of direct injury to plaintiffs’ land such as flooding or erosion by reason of defendants’ use of the channel; hence the only damage which could have been suffered by plaintiffs was, and the court so found, that their lands were severed into two parcels thereby precluding them from using the channel for the free passage of their employees, their farm equipment and their livestock from the north side where extensive farm buildings were located to the south side of North Slough.
It would appear to me that the question so posed has been adequately answered in a series of four cases recently decided by this court.
The first was Fell v. M. & T. Inc., 73 Cal.App.2d 692 [166 P.2d 642]. In that case as in the present, the stream was dry in summer but wet in winter. Because of defendants’ draining of irrigation water therein during the summer months, plaintiffs’ lands were flooded, foul growth was stimulated and it was impossible for plaintiffs to move farm machinery and livestock across the stream bed as before. The trial court
“The
California Constitution, article XIV, section 3 , declares that the general welfare requires that the water resources of the state be put to beneficial use to the fullest extent possible. (CompareWater Code, §§ 100 -107 .) The mandates of this section ‘apply to the use of all water, under whatever right the use may be enjoyed.’ (Peabody v. City of Vallejo, 2 Cal.2d 351, 367 [40 P.2d 486].) Since foreign waters may be produced for beneficial use (Stevens v. Oakdale Irr. Dist., 13 Cal.2d 343, 352 [90 P.2d 58]), and a natural channel may be used as a conduit or drain for the flow of such waters (City of Los Angeles v. City of Glendale, 23 Cal.2d 68, 76-77 [142 P.2d 289]; Stevens v. Oakdale Irr. Dist., supra), and since the use of such foreign waters, as long as it does not interfere with the rights of another, is of no concern to such other (Bloss v. Rahilly, 16 Cal.2d 70, at pages 78-79 [104 P.2d 1049]), it follows that a noninjurious and reasonable use by defendants of the waters imported upon their lands and allowed to drain into Little Chico Creek is within the protection of the Constitution and may not be enjoined.”
In their petition for hearing before the Supreme Court, plaintiffs stated, “If this is to be the law of the State of California, the decision should be affirmed by the Supreme Court, for it is a revolutionary application of the constitutional provision . . .” This is true, they said, because any interference with the rights of another may be enjoined, and to allow waters which would not naturally flow in the stream was a positive interference with such rights. However, the petition for hearing was denied.
Shortly thereafter we were presented with a second case, Cheesman v. Odermott, 113 Cal.App.2d 26 [247 P.2d 594]. There again, as in the instant case, plaintiffs, a lower owner, sought to enjoin defendants, upper owners, from discharging irrigation water into a natural watercourse which transversed
The third case was Provident Irr. Dist. v. Cecil, 126 Cal.App.2d 13 [271 P.2d 157]. There the defendants constructed a dike cutting off the flow of water through channels and drains on their land through which irrigation water was run by the plaintiff irrigation district, and thereafter leveled their land, filling such drains. In affirming the judgment of the trial court prohibiting such acts by the defendants, we said that since the channels were natural drains, plaintiffs “had the right to have them maintained in their natural state to carry off waters naturally flowing through them and also to discharge into them such reasonable quantities of excess waters as could be discharged and borne away without injury to defendants’ land.” (Citing Fell v. M. & T. Inc., supra.) No petition for hearing was filed in the Supreme Court.
In the fourth case of this series, Phillips v. Burke, 133 Cal.App.2d 700 [284 P.2d 809], the defendants as in the Cheesman and Provident cases, in leveling their land for irrigation and farming, had obliterated the natural watercourses through their land. It was defendants’ testimony that because of the irrigation runoff during the summer months, it was impossible to farm the land as before and in effect such waters had so divided the land that they were compelled to farm it as though it were three separate parcels. Upon appeal it was contended that winter flow was no measure of reasonable and noninjurious use and that their farming operations would “. . . be seriously impaired by the maintenance of ditches across their land the year around.” In affirming the judg
“The answer to this would seem to lie in the plain meaning and logic of the Fell and Cheesman decisions. The right to discharge surplus irrigation waters would of necessity be used primarily during the summer months, there being little if any need to irrigate during the winter season. If the right exists, it must also be for use during the summer months. Thus to argue, as defendants do, that for the use to be reasonable and noninjurious it must be limited to use outside of the summer irrigating season, is but to wholly deny the right.”
Although, as it appears to me, the identical question was involved in each of the cited cases, we found in favor of the party using the natural channel across the lower owner‘s land for the flowage of irrigation waters, even to the extent of dividing it into three parcels as in the Phillips case, and even though it was contended in the Phillips case that “the Fell and Cheesman decisions are not sound.” But again in the Phillips case, as on each previous occasion, the Supreme Court denied a hearing.
Hence it would seem to follow (1) that if, under the constitutional provision, the applicable code section and the cases cited and discussed, a natural watercourse may be used as a conduit to conduct irrigation waters, and (2) if, as our courts have held, a natural watercourse retains its characteristics whether water flows therein continually or sporadically, and (3) if the flowage of water in a watercourse during the dry season, in the absence of a showing of unreasonable or injurious use, cannot be enjoined even though it divides another‘s land making it impossible for him to freely cross what was formerly a dry bed of the channel in carrying on his farming activities, then the judgment of the trial court herein, which is directly contrary thereto, should be reversed.
A petition for a rehearing was denied May 16, 1956. Peek, J., was of the opinion that the petition should be granted. Defendant and appellant‘s petition for a hearing by the Supreme Court was denied June 20, 1956.