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District Court of Appeal, Second District, Division 2, California.


Civ. 13244.

Decided: February 25, 1942

Leland Crawford and Robert M. Jones, both of Santa Barbara, for appellant. Norris Montgomery, City Atty., and Heaney, Price, Postel & Parma, all of Santa Barbara, for respondent.

Plaintiff appeals upon the judgment roll from the judgment entered following a trial upon the complaint and the 4th and 5th special defenses.

Plaintiff, an existing California Corporation, owned certain littoral lands adjacent to Miramar Bay, Montecito, in the county of Santa Barbara. Such lands lie 2 1/2 miles east of the city of Santa Barbara, a municipal corporation. Plaintiff operated upon its property the Miramar Hotel and Cottages: Commencing at the shore line about 3 miles west of plaintiff's property, defendant city began the construction of a permanent breakwater about June 8, 1927. It was completed June 30, 1930. It extended from the line of high tide for a distance of about 2,500 feet into the waters of the Pacific Ocean.

The complaint alleged that as the littoral drift and current along the shore line is from west to east, the effect of the breakwater was to stop the normal and natural flow of sand so that plaintiff's property was in time denuded which condition allowed the waters of Miramar Bay to advance the line of ordinary high tide until plaintiff's property was covered by the sea. This action was progressive and continuous, always taking but never depositing sands in the place of those carried away, which was at all times known to defendant; that with the disappearance of the sands the hotel ceased to be a beach resort.

On May 15, 1937, seven years after completion of the breakwater, plaintiff presented its written claim or demand to the city council of defendant for the sum of $750,000, consisting of two items: (1) loss of the sandy beach used in connection with the hotel “resulting from the washing away and taking of that certain sandy beach * * * said damages being caused by the erection and maintenance of a certain breakwater owned and constructed by the city of Santa Barbara and the consequent erosion of the shore to the east thereof, from May 15, 1932, to the date hereof”, $500,000; (2) loss of the value of the remainder of the hotel property by reason of the severance of the beach, $250,000. The claim was disallowed by defendant on October 15, 1937, On October 4, 1939, plaintiff filed the present action upon its rejected demand.

Following the overruling of defendant's demurrer, answer was filed consisting of a general denial and six separate affirmative defenses. Pursuant to written stipulation of the parties, the case came on for trial before the court without a jury, upon the issues created by the complaint and the 4th and 5th special defenses on March 20, 1941. The 4th special defense alleged that plaintiff has failed to comply with the provisions of Act 5149 relating to the liability in damages of municipalities in the case of injuries to property resulting from the defective or dangerous condition of public works, etc. (Statutes of 1931, p. 2475, Deering's Gen. Laws 1937, Act 5149) in that plaintiff failed to present or file its verified claim with the secretary of the city council within ninety days after the occurrence of the injury upon which the alleged cause of action is based.

The 5th special defense was based upon an ordinance of defendant limiting the time of the filing of certain claims for damages against the city to six months. Inasmuch as the trial court properly made no finding upon that defense, further reference need not be made thereto.

The trial court found to be true all of the facts relative to the corporate existence of both parties, the date of the commencement and completion of the breakwater and the date of the filing of plaintiff's demand with the city council, all as hereinabove recited. Also it found to be true all of the facts set forth in the 4th special defense and that plaintiff had failed to file its claim in compliance with the provisions of Act 5149, Deering's General Laws, Stats. 1931, supra, which provides that:

“Whenever it is claimed that any person has been injured or any property damaged as a result of the dangerous or defective condition of any public street, highway, building, park, grounds, works or property, a verified claim for damages shall be presented in writing and filed with the clerk or secretary of the legislative body of the municipality, county, city and county, or school district, as the case may be, within ninety days after such accident has occurred. Such claim shall specify the name and address of the claimant, the date and place of the accident and the extent of the injuries or damages received.” Section 1.

Upon the findings made the court adjudged that the complaint did not state facts sufficient to constitute a cause of action; that defendant is entitled to judgment upon the 4th special defense and that plaintiff take nothing.

Upon this appeal plaintiff maintains that its failure to file its verified claim within 90 days after the commencement of the damage does not bar its right to recover compensation under the provisions of Act 5149 by reason of the fact that plaintiff's private property was taken by the city for the construction, maintenance and public improvement constructed by it and that defendant is entitled to compensation by virtue of section 14, article I of the Constitution which provides: “Private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for, the owner * * * .” But notwithstanding the language of that section, plaintiff is not relieved of its duty to follow the procedural requirements contained in the cited act. The state is liable under the quoted section of the Constitution only when the damage to, or taking of private property “is not so essential to the general welfare as to be sanctioned under the ‘police power’ ”. Archer v. City of Los Angeles, 19 Cal.2d 19, 119 P.2d 1, 19.

Compliance with Act 5149 is the sine qua non to the maintenance of any action brought against a municipality for damage resulting from a “dangerous” public property. The act was intended to apply in every case, in which the claimant's demand is based upon injuries to property resulting from the dangerous or defective condition of a public improvement. Act 5619, Deering's General Laws, 1937, Stats. 1923, p. 675. A careful reading of that statute will lead to no other conclusion.

The claim of plaintiff did not meet the requirements of Act 5149 with respect to the dates upon which its beach was impaired. Neither was it filed within 90 days after the injury began nor within 90 days after the beach had all been washed away. The claim does not say when the “accident” occurred. It merely recites, that as a result of the erection and maintenance of the breakwater, the normal action of the tides, currents, and waves was changed and the natural drift of sand was intercepted, depriving the Miramar Beach of its normal supply of sand and causing the waters of the ocean “gradually, continuously and progressively to come upon, inundate, wash away and destroy, during the five years next preceding the filing of the claim attached hereto, all of the sandy beach included in the real property described. * * *” “From May 15, 1932, to the date hereof” is not a substantial compliance with Act 5149 for the reason that it failed to include occurrences of other dates not mentioned in the claim. Kahrs v. County of Los Angeles, 28 Cal.App.2d 46, 82 P.2d 29. To come within the language of the act, the claim must not only contain the dates of the occurrences but it must be filed “within ninety days after such accident has occurred.” If the encroachment of the waters of the Pacific were progressive and continuous from May 15, 1932, to the date of the filing of the claim some five years thereafter, it is evident that plaintiff's property had suffered some detriment during this progressive and continuous encroachment. Neither age nor infirmity will excuse the claimant from filing within 90 days. Johnson v. City of Glendale, 12 Cal.App.2d 389, 55 P.2d 580. Even the city itself is powerless to waive compliance and when a plaintiff fails to prove that he has complied with the act, his action should be dismissed. Hall v. City of Los Angeles, 19 Cal.2d 198, 120 P.2d 13.

The requirement that the claim be filed within 90 days after the accident is to enable the municipality promptly to investigate the claim and if it is to be rejected, to prepare a defense to the potential action that may be filed to enforce payment of the claim before the facts have become stale and the witnesses have departed. Young v. County of Ventura, 39 Cal.App.2d 732, 104 P.2d 102. There is no date alleged in the complaint on which any damage occurred or when the erosion commenced. The only dates mentioned are those of the commencement of the construction and of the completion of the breakwater and of the beginning of consequent erosion “from May 15, 1932.” Since the claim was not filed until May 15, 1937, clearly it was more than four years too late when computed from the last date mentioned in the claim.

But plaintiff contends that Act 5149 applies only to torts and not to the case of a municipality which damages or takes without paying from an owner his private property, forbidden by section 14, article I of the Constitution. The same contention was made to this court in the case of Young v. County of Ventura, supra, in which the plaintiff sought damages for the flooding of their lands after the county had widened a storm ditch and constructed upon privately owned lands a steel and wire revetment which diverted the storm waters from their natural channel and flooded plaintiff's land to its detriment. We there held that compliance with the 90–day provision of Act 5149 for filing of a claim is mandatory and that by failing to comply with the statutory procedure plaintiffs were deemed to have waived their right to enforce payment, citing Musto–Keenan v. City of Los Angeles, 139 Cal.App. 506, 34 P.2d 506. Even though the constitutional provisions were self–executing, the legislature is authorized to enact measures to facilitate its operation and to provide convenient limits for the protection of rights established and for the determination thereof and the regulation of claims thereto. Powers Farms, Inc., v. Consolidated Irrigation District,1 –––Cal.App.2d –––, 110 P.2d 112. Since the facts alleged and found show that the invasion of plaintiff's land by the waters of the ocean was caused by a dangerous condition of the breakwater, Act 5619 unquestionably applies. Under the provision of 5149 a claim for damages to property as a result of a dangerous public improvement must be presented in the form and manner prescribed by the latter act. Davis v. East Contra Costa Irrigation District,1 ––– Cal.App.2d –––, 109 P.2d 986; Yonker v. City of San Gabriel, 23 Cal.App.2d 556, 73 P.2d 623.

In the foregoing we have referred to plaintiff's contention that it is entitled to compensation by virtue of section 14, article I of the Constitution. By nothing said have we intended to imply that the damage suffered by plaintiff is the result of a taking or damaging for public use. The detriment to plaintiff's land was not caused by the breakwater: it was caused by the swish and swirl of the ocean waves and currents which carried away the sands of Miramar Beach. The construction of that improvement was a governmental function. Yonker v. City of San Gabriel, supra. It was not intended by the authors of section 14, article I of the Constitution to relieve those who claimed damages under that section from following statutory procedure enacted for the guidance of claimants against a municipality for injuries to their properties. Neither was it intended to vouchsafe protection in a high degree to one owner and a low degree to another. Whatever the intention, all claimants of compensation for damages must comply with reasonable statutory requirements. By nothing contained in the cited constitutional section can we divine that the destruction of plaintiff's beach was the taking or damaging of private property for a public use. Green v. Swift, 47 Cal. 536; Green v. State, 73 Cal. 29, 11 P. 602, 14 P. 610; Lamb v. Reclamation District, 73 Cal. 125, 14 P. 625, 2 Am.St.Rep. 775. But if the section so provided there is not the slightest intimation therein that the owner of the property injured is immunized from the bar of the statute. Crescent Wharf & Warehouse Co. v. City of Los Angeles, 207 Cal. 430, 278 P. 1028. The public policy of this state favors statutes of limitation. They are essential to the maintenance of a tranquil society. It is an established rule that a failure to assert a claim within the prescribed time shall constitute a bar to any subsequent action thereon. Sala v. City of Pasadena, 162 Cal. 714, 124 P. 539.

Finally plaintiff has no right of recovery. The construction of the breakwater was a lawful project done under the police power, authorized to be done in the development of defendant's harbor. § 2 of the Charter, Stats. 1927, Chapter 14, pp. 2061, 2064; Patrick v. Riley, 209 Cal. 350, 287 P. 455. Its charter specifically authorizes the acquisition and maintenance of streets, rights of way, harbors and other local improvements and the exercise of any and “all rights, powers, privileges and procedures now or hereafter established or authorized for municipalities” etc. Under that provision there is no doubt of the legality of the project. City of Long Beach v. Lisenby, 175 Cal. 575, 166 p. 333. Liability of a city for an act done under section 14 of article I of the Constitution arises only when the damage to private property was not so essential to the general welfare as to be justified under the police power. When, in the proper exercise of that power by a municipality, the construction of a public work inflicts, as a consequence thereof, injury to private lands, the owner thereof has no right of recovery. Archer v. City of Los Angeles, supra.

Judgment affirmed.

I concur in the judgment. The ruling in Archer v. City of Los Angeles, 19 Cal.2d 19, 119 P.2d 1, prevents recovery by plaintiff. In my opinion the claim filed with the secretary of the council containing the statement that the damage was caused continuously “during the five years next preceding the filing of the claim” should not be held insufficient.


FN1. Opinion of Supreme Court after hearing granted, 19 Cal.2d –––, 119 P.2d 717..  FN1. Opinion of Supreme Court after hearing granted, 19 Cal.2d –––, 119 P.2d 717.

MOORE, Presiding Justice.

McCOMB, J., concurred.

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