POWERS FARMS v. CONSOLIDATED IRR DIST

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District Court of Appeal, Fourth District, California.

POWERS FARMS, Inc., v. CONSOLIDATED IRR. DIST.

Civ. 2568

Decided: January 30, 1941

Harris, Willey & Harris, Ronald Harris, and Everett G. Harris, all of Fresno, for appellant. Christopher M. Bradley and Lucius Powers, Jr., both of San Francisco, for respondent.

The respondent Powers Farms, Inc., a California corporation, as the owner of 160 acres of improved land, planted principally to mature orchard and vineyard, brought this action for damages against the defendant and appellant Consolidated Irrigation District, a public corporation, relying upon the constitutional guarantee that private property shall not be taken or damaged for public use without just compensation having been made. Constitution of California, Art. 1, Sec. 14. After trial without a jury a judgment was rendered in favor of plaintiff in the sum of $14,000. From this judgment defendant has perfected this appeal.

The complaint, filed Nov. 30, 1938, alleges generally that during the years 1937 and 1938, appellant district permitted large and excessive quantities of water to seep or escape from the Fowler Switch Canal, owned and operated by the district in and onto the lands of the respondent, whereby such excessive seepage waters caused respondent's orchards, vineyards, growing crops and lands to be severely damaged and destroyed.

On Feb. 27, 1940, the court found generally that the Fowler Switch Canal, running in a general southwesterly direction, passes in its course approximately one-fourth of a mile northerly of respondent's lands, and at an elevation approximately 14 feet higher than the northerly boundary of respondent's lands; that the channel of the Fowler Switch Canal extends in and through an aquifer, consisting of porous material, and the lands south of the Fowler Switch Canal, including the lands of the respondent, slopes southerly and southwesterly from the canal; that water freely escapes from the canal during all times when water is carried in the canal and, more particularly, when water flows at high stages and for extended periods of time in the canal; that as a proximate result of such flow of water under these circumstances there was, in 1937 and 1938, a great and destructive seepage from the canal into and through the soil contiguous to the canal and into and through the lands of the respondent, and that the appellant at all times well knew that in the years 1937 and 1938 the flow of water in that canal was causing great and destructive rises of surface water on the lands of respondent; that early in the year 1937, the respondent advised and warned appellant in writing that large quantities of seepage waters were escaping from its canal and causing damage to respondent's lands and crops; that the lands of respondent, beginning about April 1, 1937, began to be damaged and continued to be damaged by reason of the water flowing in the canal and escaping therefrom and through the aquifer underlying the canal and underlying respondent's lands during the years 1937 and 1938, which caused the lands of respondent to become water-logged and flooded and permanently damaged and rendered impossible of cultivation, so that to a large extent the trees and vines on the lands were severely damaged and a greater part killed and destroyed; that this caused the respondent to suffer damage in the years 1937 and 1938 in the sum of $14,000 in addition to and exclusive of any damage to the land and improvements thereon occurring in prior years and particularly, occurring in the year 1932; that the damage suffered by respondent and proximately caused by the appellant was much greater in 1937 and 1938 than theretofore, and the ground was more completely saturated and new and greater areas were affected; that subsequent to the year 1932 there occurred substantial changes in the Fowler Switch Canal adjacent to the lands of respondent, which increased the seepage therefrom; that among other changes was the construction of a check drop in the canal immediately north of the respondent's property in the winter of 1932 and 1933, which increased the hydraulic pressure of the water in the canal above the check drop; also that such change resulted in increased seepage in the sides of the canal for a considerable distance; that there was a gradual increased flow of water in the canal in the years 1937 and 1938; that the water from the Fowler Switch Canal was the proximate cause of the damage caused by the respondent in the years 1937 and 1938; that it is not true that the cause of action of respondent is barred by the provisions of section 343 or section 338, subdivisions 1 and 2 of the Code of Civil Procedure; that no verified claim for damages was made nor required to be made by the respondent as provided by the General Laws of California, Act 3886l, sec. 2, Deering's Gen.Laws 1937, vol. 1, p. 1932, Stats.1935, p. 2250; that said statute has no application in this case; that appellant, by its use and operation of the canal, has not acquired any prescriptive right as against the respondent and has not acquired, nor is appellant entitled to enjoy, any easement against the rights of the respondent; that said canal has not been maintained as originally constructed but has been materially altered and changed by natural causes and by the appellant.

The evidence clearly establishes that after respondent sustained the damage in 1932, appellant immediately thereafter made many changes in the Fowler Switch Canal and the aquifer underlying the adjacent land which greatly increased the seepage. As was pointed out by the trial court, among the probable causes of the additional seepage may be listed the following: (1) Increased hydrostatic pressure above the drop; (2) further erosion of the original hardpan bottom of the canal; (3) possible opening of channels in the aquifer itself suggested by testimony of water pouring into test wells in streams; (4) possible widening of cracks and fissures in the roofing of the aquifer or caving in thereof making it easier for the confined water to reach the surface; (5) a probable raising of the water table in the aquifer itself; and (6) the greatly increased flow of water in the Fowler Switch Canal in 1937 and 1938, as compared to the flow of water subsequent to 1932. The evidence also indicates that the canal was an earthen ditch approximately 60 feet wide and 10 feet deep with a carrying capacity of about 1,200 second feet of water at high flow stages. There was evidence that the bed of the canal below the check drop and north of respondent's property was disturbed by a drag line. One witness called by appellant, who was characterized by it as an authority on ground water and geology and who was engaged by it to investigate the ground water and seepage conditions on respondent's ranch and to make recommendations in respect thereto, discovered, quoting him, “a serious seepage condition.” This witness testified that he advised the appellant to line the Fowler Switch Canal to cure the serious seepage condition and that the appellant took his advice and thereafter lined the canal, and that this work was done subsequent to the year 1938. He also testified that in his professional opinion when the lining of the canal was completed that it would cure the serious seepage condition and would prevent any further seepage from damaging respondent's land. From an examination of the record it becomes apparent that the injury to respondent's land for which recovery of damages was sought must have been as a result of a defective condition of the property owned by the irrigation district and was an injury which resulted from the performance of certain work on the canal which caused an extraordinary seepage of water from the canal onto respondent's land.

Appellant first challenges the sufficiency of the evidence to support the findings that the changes made in the canal materially increased the seepage condition on respondent's land and that the seepage from the canal north of respondent's land caused the damage of which complaint is made; secondly, that the action was barred by the statute of limitations; and thirdly, that the court had no jurisdiction to hear the action, because no verified claim for damages was filed with the district under Act 3886l, section 2, Deering's General Laws 1937, vol. 1, p. 1932, Stats.1935, p. 2250, which reads in part: “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 * within ninety days after such accident or injury has occurred. * The foregoing shall be a condition precedent to the filing or maintaining of any action for said injury or damages.”

If the third contention is tenable, i.e. that a verified claim should have been presented, then it becomes unnecessary to discuss the remaining points. It will be noted, as pointed out by appellant, that this provision requiring the claim to be filed is quite similar to the provision requiring the filing of a written claim for damages against a county or municipal corporation based on a claim for damages resulting from a dangerous or defective condition of any public street, property, etc., as set forth in section 1, Act 5149, Deering's General Laws 1937, vol. 2, p. 2204, Stats.1931, p. 2475 (hereinafter referred to as Act 5149), and the provision requiring the filing of a written claim for damages based on the negligence of a public officer as set forth in section 1, Act 5150, Deering's General Laws 1937, vol. 2, p. 2205, Stats.1931, p. 2476, as amended (hereinafter referred to as Act 5150).

Appellant specifically relies upon Young v. County of Ventura, 39 Cal.App.2d 732, 104 P.2d 102 (hearing denied by the Supreme Court), which was an action for damages caused by flood waters which were diverted by a county's erection and maintenance of a storm ditch. It was there held that under the act relating to the liability of cities, counties and school districts for damages resulting from a dangerous or defective condition of public streets, works or property, a verified claim must be presented within 90 days after the accident occurred and that compliance with the ninety-day provision was mandatory. It was also held that the right to sue a county is conferred by statute and the procedure set forth in the statute giving claimants a right to sue must be followed and that where the plaintiff's cause of action rests on the provisions of such statutory act relating to the liability of counties for such injuries a verified claim must be filed within ninety days after the injury.

Respondent points out that the right to sue the appellant herein, Consolidated Irrigation District, is not predicated upon any statutory right but is a right directly given by virtue of the constitutional provision above referred to; that there is no statutory right given to respondent to sue the district as is conferred by the provisions of Act 5619, section 2, Deering's General Laws 1937, Stats.1923, p. 675, as against the counties or municipalities; that it is only where a cause of action has arisen under the irrigation district liability law, supra, that a verified claim for damages must be presented and filed within ninety days after “such accident or injury has occurred.”

The right to sue an irrigation district under the constitutional provision has been often declared whether such right is predicated on the absence or presence of negligence. Hume v. Fresno Irrigation District, 21 Cal.App.2d 348, 354, 69 P.2d 483; Tormey v. Anderson–Cottonwood Irr. Dist., 53 Cal.App. 559, 567, 203 P. 814; Boehmer v. Big Rock Irr. Dist., 117 Cal.19, 48 P. 908.

The only question here presented resolves itself into this: If the acts alleged resulted in the “taking or damaging of private property for public use” in violation of the constitutional provision, would we be compelled to hold that the requirement of the filing of a claim within the period fixed by the legislature under the irrigation district liability law, supra, was a prerequisite to the maintenance of this action by respondents?

In Young v. County of Ventura, supra [39 Cal.App.2d 732, 104 P.2d 105], the plaintiffs, as they did here, argued that a claim was not a prerequisite to the filing of an action where it was claimed that the property taken or damaged was so taken or damaged in violation of section 14 of Article 1 of the Constitution of California. In disposing of this argument the court said: “Even if it be assumed that defendant's action resulted in the ‘taking or damaging of private property for public use’ in violation of the constitutional provision, we would still be compelled to hold that the requirement of the filing of the claim within the period fixed by the legislature would be prerequisite to the maintenance of an action by plaintiffs. The constitution declares the right but does not provide the procedure by which the right may be enforced, and the legislature acted within its province in establishing the procedure necessary for the enforcement of the right. ‘When a state Constitution such as ours provides neither the mode for the taking or for the payment of private property, the mode of procedure may be provided by either statutory or charter provisions.’ Crescent Wharf, etc., Co. v. City of Los Angeles, supra (207 Cal. 430, 278 P. 1028, 1030). By failing to comply with the procedure established by the legislature plaintiffs are deemed to have waived their right to enforce payment.” (Citing cases.)

It is a well-settled rule of law in this state that where a statute or the constitution creates a right of action but is silent as to the remedy, the party entitled to the right may resort to any common-law action which will give him adequate redress (Rose v. State of California, Cal.Sup., 105 P.2d 302), and even though a constitutional provision is self-executing, the legislature may, and in many instances must, enact legislation to facilitate its operation and provide convenient remedies for the protection of the right established, and for the determination thereof and the regulation of claims thereto. Such legislation must be in furtherance of the purposes of the constitutional provisions, and if reasonable, it is enforceable. Chesney v. Bryam, 15 Cal.2d 460, 101 P.2d 1106. The purpose of the law requiring the early filing of a claim is fully discussed in Young v. County of Ventura, supra, 39 Cal.App.2d page 737, 104 P.2d 102, and such requirement was held to be a reasonable provision. It would be impossible, under the evidence and the findings of the court in the instant action, to hold that the damage complained of was not the result of a defective condition of property owned or operated and under the control of the irrigation district. Young v. County of Ventura, supra; Kahrs v. County of Los Angeles, 28 Cal.App.2d 46, 82 P.2d 29; Crescent Wharf, etc., Co. v. Los Angeles, 207 Cal. 430, 278 P. 1028; Bancroft v. City of San Diego, 120 Cal. 432, 52 P. 712; Norton v. City of Pomona, 5 Cal.2d 54, 53 P.2d 952; Cooper v. County of Butte, 17 Cal.App.2d 43, 61 P.2d 516; Thompson v. County of Los Angeles, 140 Cal.App. 73, 35 P.2d 185. Therefore, if it was a damage to respondent's property as a result of a defective condition of property owned or operated and under the control of the irrigation district or its officers or employees, section 2 of the irrigation district liability law, supra, is applicable.

In view of the cited cases and their application to the law and facts here presented, we are unable to justify the finding that section 2 of said act requiring the filing of a claim within ninety days “after such * injury occurred” was not a necessary prerequisite to the filing or maintaining of any action for said injury or damages.

The requirement that a claim must be filed with the clerk of a legislative body before a person may maintain an action for damages against a political subdivision of the state of California has been upheld by a number of decisions of California reviewing courts. Western Salt Co. v. City of San Diego, 181 Cal. 696, 186 P. 345; Myers v. Hopland U.E. School Dist., 6 Cal.App.2d 590, 44 P.2d 654; Thompson v. County of Los Angeles, supra. This statutory requirement may not be waived by the officials of the legislative body. Chapman v. City of Fullerton, 90 Cal.App. 463, 265 P. 1035.

Respondent contends in support of trial court's adjudication that the filing of a claim was not necessary, that although the act is entitled “An act relating to the liability of irrigation districts, their officers and employees,” section 2 thereof applied only to “an action for a tort” committed by an employee or officer whom it is sought to hold liable for the accident and that under section 4 thereof there is an express limitation on the applicability of the particular act and that that is the whole scope of the statute, and that it is only intended to apply to procedural provisions of the statute upon the subject matter with which it deals, citing Jackson v. City of Santa Monica, 13 Cal.App.2d 376, 57 P.2d 226, and Raynor v. City of Arcata, 11 Cal.2d 113, 77 P.2d 1054. We have examined the cited cases. The Jackson case was an action based on the negligence of an employee and against the city alone for damages sustained by a passenger while riding in a bus. It was there held that no claim was required to be filed by the plaintiff because act No. 5150, supra, relates only to claims for negligence of officers, and that act No. 5149, supra, relates to filing claims of liability arising out of injuries to persons or property resulting from the dangerous or defective conditions of streets, public property and buildings. The damage being the result of an automobile accident where the city vehicle was not driven by an officer, but an employee, it was held that, under the law as it then existed, no claim was required to be filed under either section. This case does not support respondent's contention.

The Raynor case was an action against the city for damages resulting from a collision between plaintiff's automobile and an automobile being driven by a fire chief in response to a fire call. The right of action against the city for negligence of the driver of its automobile was given by section 17141/212 of the Civil Code, now secs. 400 and 401 of the Vehicle Code, St.1935, pp. 152, 153. The plaintiff was not required to file a claim under the facts related because the law at that time did not require such action. Act 5149, supra, treated with claims for damages resulting from the defective or dangerous condition of public streets, etc. It was therefore held not applicable. Act 5150, supra, treated of the claims based on the negligence of public officers. It was there held that act 5150 did not relate to the liability of the city or other governmental agency.

The reasoning applied in the two cited cases upon which respondent relies cannot be held applicable to the construction of the irrigation liability act here discussed. We therefore must conclude that the property of respondent was damaged as a result of a defective condition of property owned or operated and under the control of the Consolidated Irrigation District, and that before any action for damages could be maintained against the district a claim for such damages should have been presented in writing as required by section 2, Act 3886l, Deering's General Laws 1937, p. 1932.

Respondent further contends that if the act is applicable to the facts in the instant case it is unconstitutional because the title omitted to relate that certain procedural requirements are contained in the body of the act, citing Jackman v. Patterson, 1 Cal.Dec. 540, 108 P.2d 682; Jackson v. City of Santa Monica, supra; Brunson v. City of Santa Monica, 27 Cal.App. 89, 148 P. 950. The original act (Stats.1935, chap. 833, p. 2250) is entitled “An act relating to the liability of irrigation districts, their officers and employees.” The heading of section 1 of the act, “Liability of directors,” as it appears in Deering's General Laws, is not to be held part of the statute or as controlling in its interpretation when it is not part of the statute as adopted by the legislature, but merely the headings preferred by the editor thereof. It is no part of the act as enacted and does not control its interpretation. Kahrs v. County of Los Angeles, supra.

The Constitution, Art. IV, sec. 24, provides that “Every act shall embrace but one subject, which subject shall be expressed in its title.” The main object of the constitutional provision is to prevent the legislature as well as the public from being deceived and injured by false, misleading and deceitful titles whereby legislation relating to one subject might be obtained under the title of another. Abeel v. Clark, 84 Cal. 226, 24 P. 383.

It is well settled that the constitutional provision with reference to the subjects and titles of legislative acts shall be liberally construed with the view to effectuating its object. Reclamation District v. Superior Court, 171 Cal. 672, 154 P. 845; In re Maginnis, 162 Cal. 200, 121 P. 723. Accordingly, the provision should be so applied as to permit the legislature to include in an act all matters which are germane to the main purpose of the enactment, and so far as the title is concerned, all that is required is that it shall contain a reasonably intelligent reference to the subject to which the legislation in the act is addressed. Buelke v. Levenstadt, 190 Cal. 684, 214 P. 42; In re Estate of Wellings, 192 Cal. 506, 221 P. 628. It is apparent from the title of the act involved that the act or some of its provisions relates “to the liability of irrigation districts” as well as to the liability of officers and employees thereof.

Under the rules above mentioned it cannot be held that there is a substantial variance between the title and the subject expressed in the body of the act or that the title is of a heterogeneous character and would mislead the public or the members of the legislature as to the subjects embraced in the act. Park v. Pacific Fire Extinguisher Co., 37 Cal.App. 112, 173 P. 615. We therefore conclude that the title is sufficiently comprehensive to embrace all matters stated in the act. Regardless of the merit or lack of merit of the other contentions, for the reasons expressed, the judgment must be reversed.

The judgment is reversed.

GRIFFIN, Justice.

We concur: BARNARD, P.J.; MARKS, J.