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DAVIS et al. v. EAST CONTRA COSTA IRR. DIST.
Defendant's demurrer to the third amended complaint was sustained without leave to amend, and from the judgment of dismissal entered thereon plaintiffs appeal.
The action was one in eminent domain (Const. of Cal., Art. I, sec. 14) to recover compensation for damages to plaintiffs' property. The basic facts pleaded were that since 1924 the defendant irrigation district has maintained canals and ditches along the lands to the north, west and south of plaintiffs' lands, whereby it has transported waters for irrigation purposes to lands in the vicinity of plaintiffs' property; that since 1927 seepage and overflow from said canals and ditches, the release of the waters therefrom upon the lands in the vicinity of plaintiffs' property, and the failure since 1935 to provide drainage facilities, has caused a fluctuating increase in the water level beneath the surface of plaintiffs' lands, and thereby destroyed the walnut and apricot orchards growing thereon, and deprived plaintiffs of the use of their lands for agricultural and horticultural purposes. The demurrer was sustained upon the ground that prior to the commencement of the action plaintiffs failed to file a claim with the secretary of the board as provided in section 2 of the Irrigation District Claims Statute (Stats.1935, Chap. 833, p. 2250). It is plaintiffs' contention that said statute has no application to any of the four causes of action sued upon.
It appears to be well settled that facts similar to those pleaded in the complaint herein give rise to a cause of action for damages against an irrigation district under the eminent domain provisions of the state constitution, regardless of whether the acts complained of were the result of negligence (Ketcham v. Modesto Irr. Dist., 135 Cal.App. 180, 26 P.2d 876; Hume v. Fresno Irr. Dist., 21 Cal.App.2d 348, 69 P.2d 483; Massetti v. Madera Canal & Irr. Dist., 20 Cal.App.2d 708, 68 P.2d 260; see also order of Supreme Court denying hearing in Tormey v. Anderson–Cottonwood Irr. Dist., 53 Cal.App. 559, 568, 200 P. 814); but it is equally well settled that actions in eminent domain for the taking or damaging of private property are not immune from the operation of claims statutes, if the terms of the statutes are broad enough to include such actions. In other words, while the constitution grants the right to compensation, it does not provide the procedure by which the right may be enforced (Young v. County of Ventura, 39 Cal.App.2d 732, 104 P.2d 102); and that being so, the mode of procedure for the enforcement of such right may be provided by either statutory or charter provisions. Crescent Wharf, etc., Co. v. Los Angeles, 207 Cal. 430, 278 P. 1028. It is held, therefore, that where such procedure has been established by legislative enactment, a failure to comply therewith is deemed to be a waiver of the right to enforce the payment of damages. Young v. County of Ventura, supra, citing Musto–Keenan Co. v. City of Los Angeles 139 Cal.App. 506, 34 P.2d 506; Sala v. City of Pasadena, 162 Cal. 714, 124 P. 539; and Yonker v. City of San Gabriel, 23 Cal.App.2d 556, 73 P.2d 623. Some of the cases wherein it has been held that charter provisions were controlling in the matter of the bringing of an action in eminent domain are Crescent Wharf, etc., Co. v. Los Angeles, supra; Bigelow v. City of Los Angeles, 141 Cal. 503, 75 P. 111; Bancroft v. City of San Diego, 120 Cal. 432, 52 P. 712; other cases applying the same doctrine under statutory enactments are McCann v. Sierra County, 7 Cal. 121, and Young v. County of Ventura, supra. It is apparent, therefore, that the determination of the question of whether an action in eminent domain to recover compensation for the taking or damaging of private property falls within the scope of a particular claims statute depends upon the terms of the statute and the alleged facts upon which the action is founded.
The claims statute here involved is entitled “An act relating to the liability of irrigation districts, their officers and employees”, and section 2 is as follows: “Whenever it is claimed that any person or property has been injured or damaged as a result of any dangerous or defective condition of any property owned or operated and under the control of any irrigation district or its officers or employees and/or the negligence or carelessness of any officer or employee of an irrigation district, a verified claim for damages shall be presented in writing and filed with such officer or employee and the secretary of said board within ninety days after such accident or injury has occurred. Such claim shall specify the name and address of the claimant, the date and place of the accident or injury or damage and the nature and extent of the injury or damages claimed. The foregoing shall be a condition precedent to the filing or maintaining of any action for said injury or damages.” As will be noted, the statute embraces all cases wherein it is claimed that property has been damaged as the result of “any dangerous” condition of any property owned, operated, or under the control of the district; and it is our conclusion that the trial court was justified in holding that the facts set forth in the complaint, which on demurrer must be taken as true, show that the operation by the district of the properties under its control created a condition dangerous to plaintiffs' property, as the result of which plaintiffs' property was damaged, and that therefore the case was brought within the scope of the clause of the statute above mentioned.
The pertinent facts as they were alleged by plaintiffs upon which the foregoing conclusion is based may be stated as follows: (first cause of action) Plaintiffs' lands (containing 54.7 acres) were planted to walnut and apricot trees, and up to August 1, 1935, produced large and valuable agricultural and orchard crops. Prior to 1927 the water level of said lands was not less than fifteen feet below the surface, which did not adversely affect the fertility or productiveness of the soil; and the lands were not subject to overflow of water by seepage or otherwise. From 1927 to 1929 seepage from defendant's canals and ditches, together with the water brought to and released upon lands within the district, caused the water level of plaintiffs' lands to fluctuate so that in 1929 it was brought within four feet of the surface of the soil; and during that period, so it was alleged, Andrew M. Davis, Jr., one of the plaintiffs, “repeatedly advised the defendant district of the increasing ground water level and the threat of damage to his orchard therefrom, and the district installed drainage facilities designed to lower said water table purportedly to comply with the provisions of the Drainage Act of 1907 (Stats. of 1907, p. 569).” However, at that time plaintiffs' lands did not show evidence of permanent injury or damage. From 1930 to 1935, due to seepage and overflow from said canals and ditches and the release of waters on other lands in the district, the water level beneath plaintiffs' lands fluctuated to within eight feet of the surface; and during that period also drainage facilities were maintained by defendant whereby quantities of ground water were removed from the immediate vicinity of plaintiffs' lands, so that at that time plaintiffs' lands did not show evidence of permanent injury or damage. Continuing, it was alleged: “Ever since the 1st day of August, 1935, water has constantly escaped and seeped through the bottom, sides, and banks of canals and ditches maintained by defendant district in the immediate vicinity of plaintiffs' hereinabove described lands. During all of said period to and including the date of filing the complaint herein and thereafter the drainage facilities maintained by defendant district were not maintained in such manner as to prevent the rise of ground water hereinafter described. During said period the ground water of all of the plaintiffs' lands as hereinabove described has been raised by reason of the said escaped water and seepage water from the canals and ditches of defendant district to a level of less than five feet below the surface of said lands, by reason whereof the fertility and productiveness of plaintiffs' said lands has been destroyed and the said lands have been rendered entirely unavailable for the raising of apricots or walnuts and have been rendered in large part unavailable for any other useful purpose; the said apricot trees and part of said walnut orchard trees have died in large numbers.” In the second cause of action it was alleged: “II. Ever since the latter part of the year 1924 defendant district has owned, maintained and used irrigation canals and ditches in the vicinity of plaintiffs' property described in the Paragraph of the first cause of action in this complaint numbered II and within the boundaries of the said irrigation district. During all of said period defendant district has removed waters from the San Joaquin River, has transported and distributed such waters by seepage and overflow through said canals and ditches to lands within the said irrigation district, including lands not owned by defendant district in the vicinity of plaintiffs' said lands.” “III. By means of such distribution of water defendant corporation within three years last past * has deprived plaintiffs of their said properties * without just or any compensation. *” “IV. But for such distribution of water by defendant district within three years last past before the filing of the complaint herein the plaintiffs' said lands hereinabove described and the apricot and walnut orchards on said property would have remained in a healthy condition and would not have suffered from disease and destruction.” “V. Defendant at no time had or now has any easement or prescriptive right or other interest in property for the seepage, escape, or overflow of water hereinabove in paragraphs II and III of this second cause of action described. *” The third cause of action appears to be based on the combined allegations of the first and second causes of action, most of the allegations thereof either being incorporated therein by reference or realleged in substantially the same form. The fourth cause of action rests largely upon the following portions of paragraph II thereof, to-wit: “From the 1st day of August, 1935, to the date of the filing of the complaint herein, the canals and ditches of defendant irrigation district have been and now are so negligently and carelessly maintained by defendant that water has constantly escaped and seeped through the bottoms, sides and banks of said canals and ditches, and said defendant during said period has negligently, carelessly, and without right allowed said water to flow to and upon the lands of plaintiffs hereinabove described and to and upon lands not owned by defendant district in the immediate vicinity of the lands of plaintiffs hereinabove described. During all of said period defendant, well knowing that drainage facilities were required to prevent the damage herein complained of to plaintiffs' lands, failed, neglected and refused to provide drainage facilities as required by the statutes of the State of California.”
It must be presumed that when the legislature in the enactment of the claims statute employed the word “dangerous” it intended that said word should be interpreted in the sense in which it is ordinarily used; and as defined in the dictionaries, it means attended or beset with danger; full of risk; causing danger; likely to harm; perilous; hazardous; unsafe. Here it appears from the allegations of each of the causes of action sued upon that over a period of many years great quantities of water to be used for irrigation purposes were brought into the district by the defendant by means of canals and ditches which it owned and over which it had control and thereupon released on lands in the vicinity of plaintiffs' property, and also allowed same to escape, seep and overflow from its canals and ditches, as the result of which the water level of plaintiffs' lands was increased to the extent of rendering the lands useless for agricultural or horticultural purposes. Manifestly a condition so created was dangerous to plaintiffs' property; and that the danger was apparent to plaintiffs and to the district is shown by the allegation that prior to 1930 one of the plaintiffs “repeatedly advised the defendant district of the increasing ground water level and the threat of damage to his orchard therefrom.”
It is true, as pointed out by plaintiffs, that nowhere in the complaint was it alleged that the condition so created was “dangerous”; however, the facts alleged in themselves show that it was and therefore an allegation to that effect would merely have been the statement of a conclusion. And plaintiffs are not in a position on this appeal to claim that any part of the responsibility for the distribution, seepage or overflow of said waters rests with any adjoining owners, for the reason that all four causes of action are based upon allegations to the effect that the district alone is responsible therefor, and for the damage resulting therefrom.
It is also true that the eminent domain provisions of the constitution declare that “Private property shall not be taken or damaged for public use without just compensation *”; whereas the claims statute under consideration pertains only to cases where property has been damaged. But there is nothing whatever in the complaint herein indicating that there was any “taking” of any property belonging to plaintiffs; so that the question of whether such a case would be subject to the provisions of the claims statute is one with which we are not here concerned.
Plaintiffs' final contention is that the provisions of section 2 prescribing the time and manner of filing claims and the contents thereof indicate that in the enactment of the statute the legislature had in mind only cases of accidental injury or specific damage resulting at a given time and place from the negligent manipulation of the property of the irrigation district. When, however, the section is read as a whole it becomes apparent that it was not contemplated that the act should be given such a limited construction, because by the opening clause thereof it includes within the scope of the act any claim for damage or injury to real property resulting from “any” dangerous condition brought about by the district in the operation of its properties.
Furthermore, it does not appear that it was impracticable for plaintiffs to have complied with the requirements of the act by filing a claim prior to the commencement of the action. A similar question was raised in Young v. County of Ventura supra, which involved a different state of facts, but a claims statute almost identical with the one here under consideration. It was the claims statute governing the commencement of actions against counties municipalities and school districts (Act 5149 Deering's General Laws; Stats.1931, p. 2475), which as here is made applicable to actions wherein it is claimed that a person has been injured or any property damaged “as a result of the dangerous or defective condition” of any street, building, grounds, etc. With respect thereto the court said [39 Cal.App.2d 732, 104 P.2d 105]: “The purpose of the law requiring an early filing of a claim is to give the county notice that it will be called upon to make payment and to enable it to investigate the circumstances at such time as the facts can be ascertained and thereby negotiate a settlement or prepare its defense. This is a reasonable provision on behalf of the county and it causes no hardship upon the claimants. Plaintiffs were not called upon to file more than a general statement of their claim, which could doubtless be prepared within a period of ninety days. If their claim could not be settled by negotiation with the authorities of defendant county, accurate and complete proof of the extent of the damages could be prepared for an action in court. In this regard they are in no different position from that of most of the claimants for damages for personal injuries, who as a general rule cannot determine the exact amounts of their damages within ninety days from the dates of the accidents. Plaintiffs cannot successfully argue that by the statutory requirement of filing a claim they were deprived of due process of law. The legislature has furnished due process to them but they did not avail themselves of it.” The same may be said with regard to the present case, for while plaintiffs were permitted to file suit for the recovery of damages at any time within the period of the statute of limitations, there was nothing to prevent them from filing a claim with the district when it became evident that their property had been rendered useless; and having failed so to do, it must be held in accordance with the mandate of the statute that the recovery of damages is barred.
The judgment is affirmed.
KNIGHT, Justice.
We concur: PETERS, P.J.; WARD, J.
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Docket No: Civ. 11371
Decided: January 31, 1941
Court: District Court of Appeal, First District, Division 1, California.
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