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


Civ. 11108

Decided: April 25, 1940

Duke & Cowen, Robert D. Duke, and Laurence A. Cowen, all of San Rafael, for appellant. C.C. Carleton, Chief Counsel, Department of Public Works, Robert E. Reed, C.R. Montgomery, and Frank B. Durkee, Attys., Department of Public Works, all of Sacramento, for respondent.

This is an appeal by the defendant, Marin Municipal Water District, a municipal water district, duly organized and existing under and by virtue of the laws of the state of California, from a judgment of the superior court of the county of Marin for the sum of $3,681.14 in an action by plaintiff to recover the alleged cost of removal and relocation of a portion of the water main which rested in Bolinas street. That street was a county road at the time the water main was installed. Bolinas street was, on the 13th day of July, 1934, selected and adopted as part of the state highway system between Waldo and the Golden Gate Bridge in the county of Marin.

On or about the 5th day of April, 1909, the Marin County Water and Power Company, a corporation, was granted permission and authority by the board of supervisors of the county of Marin, state of California, to place or cause to be placed within and along Bolinas street, a county road in said county of Marin, and particularly along the southerly side thereof, between Madrone street and Grover street and within that portion of said Bolinas street subsequently included in and made a part of the state highway, a certain water main with a diameter of approximately twelve inches and from said date, to and including the date on which the assets, properties, property rights, and interests of said corporation, including said water main, were acquired by the defendant herein, said corporation did maintain within said Bolinas street said water main. Thereafter the defendant, Marin Municipal Water District, acquired all of the right, title and interest of said Marin County Water and Power Company in and to said water main and to and including the 28th day of May, 1936, defendant did maintain and cause to be maintained within said Bolinas street the water main.

On the 22d day of May, 1936, the Department of Public Works served upon the defendant a written notice under the provisions of section 680 of the Streets and Highways Code (chap. 29, Stats.1935, p. 290), demanding that the said water main should be removed from the southerly side to the northerly side of Bolinas street at the sole cost and expense of the defendant. The defendant did not remove said water main and it was thereafter caused to be removed from the southerly side to the northerly side of Bolinas street by the Department of Public Works, the labor and material necessary for such removal of the water main being the said sum of $3,681.14.

The defendant claims that section 680 of the Streets and Highways Code does not apply to municipal water districts. In so far as pertinent to the facts of this case, said section, in 1935, provided as follows:

“Whenever a franchise shall have been granted by any county or city in any public highway which has been or is subsequently constituted a State highway, the department may enforce any obligations of the grantee or holder of such franchise in respect to the repair of the highway. The department may require any person who has placed and maintained any pole, pole line, pipe, pipe line, conduit, street railroad tracks, or other structures or facilities upon any State highway, whether under such or any franchise, to move the same at his own cost and expense to such different location in the highway as is specified in a written demand of the department, whenever necessary to insure the safety of the traveling public or to permit of the improvement of the highway; provided, that no such change of location shall be required for a temporary purpose. The department shall specify in the demand a reasonable time within which the work of relocation must be commenced and the grantee or owner must commence such relocation within the time specified in said demand and thereafter diligently prosecute the same to completion.

“The department may likewise serve such a demand on the owner of any encroachment to require its removal entirely from the right of way, where the owner does not have an existing franchise right to place and maintain the same therein.

“In case the owner fails to comply with any such demand, the encroachments specified in the demand become subject to the provisions of Article 3 of this chapter.” (Italics defendant's.)

It contends that it is not a “person” but that it is a separate and distinct governmental entity, or political subdivision of the state, quasi municipal in character, with power to carry on the particular functions committed to it; and, as such districts were not specifically mentioned in section 680, the defendant was not included within the provisions of said section. We think the point may not be sustained. As the word “person” is used in said section it is clear it is used in a very broad sense. Section 19 of the Streets and Highways Code provides: “ ‘Person’ means any person, firm, partnership, association, corporation, organization or business trust.” Furthermore, the nature of a municipal water district was before the court in Henshaw v. Foster, 176 Cal. 507, 169 P. 82. On page 515 of 176 Cal., on page 85 of 169 P., Mr. Justice Melvin, speaking for the court, said: “In the opinion in the Madera District Case [92 Cal. 296, 28 P. 272, 14 L.R.A. 755, 27 Am.St.Rep. 106] the irrigation district was treated as a public corporation to be invested with certain political duties to be exercised in behalf of the state. That a water district such as the one sought to be established in San Diego county is also such a corporation may not be doubted under the authority of that decision.” It is apparent therefore that the defendant is a “person” within the meaning of that word as used in said statute. Again the defendant contends its structures were not “upon” any state highway. In other words, it contends its structures were not upon the surface and therefore it was not subject to the provisions of the Streets and Highways Code. While the word “upon” might be used to designate things on the surface, the statute was not so worded and the word “upon”, as commonly used, has the additional meanings of “in or into a position, relation, or state denoted by on; in or into the position of being supported by, * something”. Webster's New International Dictionary. Manifestly the word “upon” was used in this broader sense. The meaning claimed by the defendant would apply to only such obstructions as boulders, etc., that had rolled onto the highway.

In this connection the defendant states that under the provisions of section 680, as that section was worded in 1935, the notice and demand could legally extend only to the complete removal of encroachments of an owner who “did not have an existing franchise right to place and maintain the same therein”. Not so. The last two paragraphs contained a provision authorizing proceedings to remove such encroachments, but the first paragraph also contained provisions authorizing proceedings in a proper case to cause the relocation within the highway of structures installed pursuant to a franchise duly granted.

Again the defendant calls to our attention that the notice and demand recited said instrument was issued pursuant to section 680 of the Streets and Highways Code. It then asserts the plaintiff is now seeking to rely on not only section 680 but other sections. The objection has no merit. The recital was not a statutory part of the notice. It was purely surplusage which, under well-settled rules, does not vitiate.

In its next point the defendant contends the finding that the sum expended by the plaintiff was on behalf of and for the use and benefit of defendant is not supported by the law or the evidence. True it is that the findings contain, among others, the finding under attack. However, both the allegation in the complaint and the finding in response thereto were immaterial. That being so, it is obvious the finding complained of was not prejudicial to the defendant's case.

Before proceeding to discuss the remaining points made by the defendant it should be noted that it claims a franchise pursuant to the provisions of section 19, article XI of the Constitution, as that section was worded before the amendment of October 10, 1911. It also claims a franchise as defined in section 19 of chapter 19 of the Statutes of 1911, Extra Session, p. 104. Section 19 of said statutes is as follows: “The board of directors shall have power to construct works across any stream of water, water course, street, avenue, highway, railway, canal, ditch, or flume which the route of said works may intersect or cross; provided, such works are constructed in such manner as to afford security for life and property, and said board of directors shall restore the crossings and intersections to their former state as near as may be, or in a manner not to have impaired unnecessarily their usefulness. Every company whose right of way shall be intersected or crossed by said works shall unite with said board of directors in forming said intersections and crossings and grant the rights therefor. The right of way is hereby given, dedicated and set apart to locate, construct and maintain said works over and through any of the lands which are now or may be the property of this state, and to have the same rights and privileges appertaining thereto as have been or may be granted to the municipalities within the state.” (Emphasis appellant's.) The defendant italicizes the last sentence and makes the claim that it obtained a contractual right in and to a portion of “the lands” of the state of California. Bearing in mind that the title of the state to the highways consists of easements and that the state holds other lands in its governmental capacity and still other lands in its proprietary capacity, it is at once apparent the last sentence of said section 19 is not involved in this action. That is so because it is not claimed that any portion of the pipe which was removed was anywhere except on the right of way of the state highway. Therefore, as we proceed, we will address ourselves to the rights of the defendant to occupy any specific part or portion of the state highway. The sole question presented by the record consisted of the right of the plaintiff, under the facts pleaded, to require the defendant to move its pipes from one location to another location in the state highway.

Taking up the remaining points, the defendant contends its contractual rights could not be impaired by the state nor by any of its agencies and that such rights are protected by both the state and federal Constitutions. Those propositions are not disputed by the plaintiff. Neither party made any allegation, neither party introduced any proof, and there is no finding to the effect that the Department of Public Works was depriving or seeking to deprive the defendant of its franchise to deliver water. However, plaintiff contends that causing the defendant to move its pipes to a place where they will not be a menace to the free enjoyment of the public highway does not interfere with the statutory or constitutional rights of the defendant. That contention is clearly sustained. People v. Lawley, 17 Cal.App. 331, 349, 119 P. 1089; Merced Falls Gas, etc., Co. v. Turner, 2 Cal.App. 720, 721, 84 P. 239; New Orleans Gas Co. v. Drainage Comm., 197 U.S. 453, 25 S.Ct. 471, 49 L.Ed. 831; Moffat v. City and County of Denver, 57 Colo. 473, 143 P. 577.

The judgment appealed from is affirmed.


We concur: NOURSE, P.J.; SPENCE, J.

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