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District Court of Appeal, First District, Division 1, California.

ROSE et al. v. STATE et al.

Civ. 10835

Decided: October 13, 1939

C.C. Carleton, Frank B. Durkee, C.R. Montgomery, and Robert E. Reed, all of Sacramento, for appellants. John T. Wentz and Booth B. Goodman, both of Oakland, for respondents.

Appeal by defendants from a judgment of the superior court of Alameda county in favor of plaintiffs for damages alleged to have been sustained by plaintiffs as the result of the construction of a subway fronting plaintiffs' property on Jackson street in the town of Hayward. This is one of several appeals from judgments entered in actions arising out of highway construction work in Alameda county. Inasmuch as the facts and the rights and liabilities of the respective parties in each case are substantially the same the law applicable thereto though presented in separate appeals will be fully considered and determined herein.

Respondents are and at all times pertinent to the facts herein were the owners of 3.05 acres fronting some 118 feet on Jackson street and with a depth of some 745 feet. Their property is devoted to a fruit orchard and is improved by a five-room residence, windmill, a tank house and barn. Jackson street is a portion of the state highway system connecting East Fourteenth street at Mt. Eden with that portion of the state highway leading to the San Mateo toll bridge. It is alleged that in December, 1935, appellant State of California, acting through its department of public works and under authority of an order of the railroad commission awarded a contract for the construction of a subway on Jackson street which would eliminate a crossing at grade of Jackson street and the tracks of the Western Pacific Railroad Company. In front of respondents' property Jackson street is 66 feet in width. The subway is 24 feet wide and in the center of Jackson street, gradually descending under and then ascending to grade beyond the railroad tracks. On each side of the subway are blind lanes 14.6 feet and sidewalks four feet in width which do not cross the tracks but serve the owners of property adjacent thereto as means of ingress and egress to and from Jackson street and their respective parcels of land. The property of respondents had been zoned as “industrial property” prior to the construction of the subway. The amended complaint alleges that the construction of the subway resulted in a substantial impairment of respondents' access to Jackson street with the consequent depreciation of the market value of their property in the sum of $5,000. The case was tried by the court without a jury and from the judgment for respondents as prayed appellant prosecutes this appeal. For the purposes of the appeal we may properly assume that the material allegations of the amended complaint concerning the property rights of respondents, the taking and the value thereof as found by the trial court are sustained by the evidence.

At the very threshold of our consideration of the appeal herein we are confronted—as was the trial court upon ruling upon the demurrer to the amended complaint—with appellants' contention that the court had no jurisdiction of the subject of the action nor of the person of the defendant, and that the amended complaint did not state facts sufficient to constitute a cause of action.

That the owner of property abutting upon a street or highway has as appurtenant thereto certain private easements in the street or highway in front of or adjacent to the lot—distinguished from the public easements therein—which are a part and portion of his property and are the private property of the lot owner as fully as the lot itself is not open to question. An injury to the public easement gives him no cause of action, yet an injury to or an impairment of his own private easements therein, or any of them is a damage to or a taking of his private property for which an action will lie. Williams v. Los Angeles Ry. Co., 150 Cal. 592, 594, 595, 89 P. 330; McCandless v. City of Los Angeles, 214 Cal. 67, 70, 71, 4 P.2d 139, and cases therein cited. The rights of the lot owner to the protection of this species of private property are fully recognized in the cases cited. His rights therein are guaranteed by the fifth and fourteenth amendments to the Constitution of the United States, U.S.C.A., and by the Constitution of California. The latter, by article I, section 13, declares: “* No person shall be * deprived of life, liberty, or property without due process of law *.” Article I, section 14 thereof declares: “Eminent Domain. 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 *; provided, that in an action in eminent domain brought by the state, or a county, or a municipal corporation, or a drainage, irrigation, levee, or reclamation district, the aforesaid state or political subdivision thereof or district may take immediate possession and use of any right of way required for a public use whether the fee thereof or an easement therefor be sought upon first commencing eminent domain proceedings according to law in a court of competent jurisdiction and thereupon giving such security in the way of money deposited as the court in which such proceedings are pending may direct, and in such amounts as the court may determine to be reasonably adequate to secure to the owner of the property sought to be taken immediate payment of just compensation for such taking and any damage incident thereto, including damages sustained by reason of an adjudication that there is no necessity for taking the property, as soon as the same can be ascertained according to law. *.” The right so conferred by our Constitution and by the federal Constitution is a personal one for the benefit of the property owner which when properly asserted will be secured to him. The right is not an absolute one, however, and may be waived. Bigelow v. Ballerino, 111 Cal. 559, 564, 44 P. 307; Gurnsey v. Northern Cal. Power Co., 160 Cal. 699, 709, 710, 117 P. 906, 36 L.R.A.,N.S., 185; Sala v. City of Pasadena, 162 Cal. 714, 124 P. 539. Whether a property owner has waived his rights to compensation is a question to be determined upon the facts and the law applicable thereto in each case. A property owner may—without prejudice—sit by and see extensive public improvements made which are an infringement of or an impairment to his property rights, and make no effort to repel such invasion of the rights guaranteed to him by the Constitution where the law affords him an adequate remedy for the recovery of just compensation thereafter. In such case, no waiver of his right to compensation will be presumed and he may recover the same. Where, however, no subsequent remedy for the collection of compensation is open, nor a proper tribunal available, he must assert his rights, or be deemed to have acted advisedly and to have waived the same. Sala v. City of Pasadena, supra, 162 Cal. at page 718, 124 P. at page 539; Cooley's Constitutional Limitations, 8th ed., vol. II, p. 1205.

The California Constitution by article XX, section 6, provides: “Suits against state. Suits may be brought against the state in such manner and in such courts as shall be directed by law.” Despite the above constitutional authorities for many years no general statute was enacted by the legislature to permit actions against the state. During such period of time the only remedy afforded those so unfortunate to have a claim against the state upon contractual liability or for negligence was to present the same to the state board of examiners for allowance, or appeal to the legislature for an appropriation to pay the same. Galbes v. Girard, C.C., 46 F. 500, 501; Sawyer v. Colgan, 102 Cal. 283, 292, 36 P. 580, 834; Chapman v. State, 104 Cal. 690, 696, 38 P. 457, 43 Am.St.Rep. 158; County of San Luis Obispo v. Gage, 139 Cal. 398, 404, 73 P. 174. In February, 1893, the legislature enacted chapter XLV, Statutes 1893, page 57, entitled “An Act to authorize suits against the State, and regulating the procedure therein,” which provided in part: “Section 1. All persons who have, or shall hereafter have, claims on contract or for negligence against the State not allowed by the State Board of Examiners, are hereby authorized, on the terms and conditions herein contained, to bring suit thereon against the State in any of the Courts of this State of competent jurisdiction, and prosecute the same to final judgment. The rules of practice in civil cases shall apply to such suits, except as herein otherwise provided. *” The term “contract” as used in the statute was interpreted to include implied as well as express contracts in the case of Welsbach Co. v. State of California, 206 Cal. 556, 558, 560, 275 P. 436. In 1929, and within a few days following the decision in Welsbach v. State of California, supra, the act of 1893 was repealed (Stats.1929, p. 890), and the legislature adopted an act adding certain sections to the Political Code, of which section 688 provided in part: “Claims against state. Any person who has, or shall hereafter have, a claim on express contract or for negligence against the state must present the claim to the state board of control in accordance with the provisions of section 667 of this code. Should the claim not be allowed by the state board of control, the person having the claim is hereby authorized, subject to the conditions contained in this section, to bring suit against the state on such claim and to prosecute such suit to final judgment. *” In 1931, Political Code section 688 was amended by eliminating the term “express” therefrom. Stats.1931, p. 849, § 15.

In 1933 the section was again amended by restoring the term “express” thereto, so that at all times pertinent hereto that section provided, “Any person who has, or shall hereafter have, a claim on express contract or for negligence against the State must present the claim *.” Stats.1933, p. 2299. The Statutes of 1893, nor Political Code, § 688, and the various amendments thereto, created no new liability against the state but merely created a remedy at law for the collection of such claims against the state in addition to the then existing and sole right to present the same to the state board of examiners or the state board of control. Chapman v. State, supra; Melvin v. State of California, 121 Cal. 16, 23, 53 P. 416; Denning v. State of California, 123 Cal. 316, 319, 55 P. 1000; Pacific Gas etc. Co. v. State of California, 214 Cal. 369, 373, 6 P.2d 78. The liability of the state was neither created, enlarged nor diminished by these acts of the legislature; only the legal remedy available to those who sought to enforce such liability as existed independent of the legislative acts in question was affected. Memphis & C. Railroad Co. v. Tennessee, 101 U.S. 337, 25 L.Ed. 960, 961; Denning v. State, supra; Western Assurance Co. v. Drainage Dist., 72 Cal.App. 68, 76, 237 P. 59; Walker v. Department of Public Works, 108 Cal.App. 508, 516, 291 P. 907; and cases cited. By the amendment of 1933 to Political Code section 688 the legislature provided that those who thereafter might have a claim against the state on express contract or for negligence could bring suit thereon upon the terms and conditions therein stated; that those whose claims were based upon an implied contract would thereafter enjoy no such remedy. The authority of the legislature to enact the Statute of 1893, and section 688, Political Code, and the various amendments thereto, is expressly conferred by article XX, section 6, California Constitution. Since that article vested the legislature with authority to determine by law the manner and the courts in which suits against the state should be brought, it is obvious the legislature was clothed with authority to amend that law at any time. Such laws, since they are in derogation of sovereignty, must be strictly construed by the court. Westinghouse Electric Co. v. Chambers, 169 Cal. 131, 139, 145 P. 1025. In view of the legislature's positive limitation as expressed in section 688, Political Code, that only actions arising out of express contracts and negligence are maintainable against the state the scope of the section cannot be extended by judicial construction to include implied contracts as well. The case of United States v. Great Falls Mfg. Co., 112 U.S. 645, 5 S.Ct. 306, 28 L.Ed. 846, 848, is cited as authority for the proposition that where a government appropriates property for public use without condemnation action the property owner has a right of action against the government for his damages as an implied contract to pay. A clear distinction exists between the case cited and the one considered here. In the case cited the Supreme Court held the court of claims had jurisdiction of the claim in question since the very statute conferring jurisdiction upon it included actions founded upon both express and implied contracts. Assuming that from “fundamental principles of the rules of equity” (Crescent Wharf etc. Co. v. Los Angeles, 207 Cal. 430, 436, 278 P. 1028, 1030), there is an implied promise that respondents shall be compensated, this court is not authorized to set aside a positive legislative prohibition and hold that actions upon implied contracts are maintainable against the state.

What has heretofore been remarked concerning the effect of section 688, Political Code, concerning the liability of the state upon contract is equally true of claims arising for negligence. The code section created no liability for negligence but merely afforded a remedy at law to those who had such a claim against the state. In the absence of a statute clearly assuming such liability the general rule is that the state or its agencies in the performance of governmental functions cannot be held for the negligence or misfeasance of its officers. Sievers v. San Francisco, 115 Cal. 648, 654, 47 P. 687, 56 Am.St.Rep. 153; Perkins v. Blauth, 163 Cal. 782, 789, 127 P. 50; Davie v. Board of Regents, University of California, 66 Cal.App. 693, 699, 227 P. 243; Western Assurance Co. v. Drainage Dist., supra. Of course, this rule is not applicable where the state has expressly assumed such liability, as in the negligent operation of its automobiles or the dangerous or defective conditions of its streets, highways, buildings or works. California Vehicle Code, § 400, St.1935, p. 152; Stats.1931, chap. 1168, p. 2476; State of California v. Superior Court, 14 Cal.App.2d 718, 720, 58 P.2d 1322.

Nor is the 1933 amendment to section 688, Political Code, unconstitutional and void as contended, because “the legislature has no power to abrogate a right granted by a self-executing provision of the Constitution”. Since, as has been pointed out, the code section pertains only to a legal remedy by empowering actions against the state in certain instances, it does not diminish, destroy, or otherwise affect any constitutional rights recognized and secured by the California Constitution, article I, sections 1, 13 and 14 thereof, nor Article V, and section 1 of Article XIV of the amendments to the federal Constitution, U.S.C.A. If the constitutional provisions relied upon are in fact “self-executing” they require nothing more to render them effective—and they cannot be rendered invalid by a mere legislative act. Beveridge v. Lewis, 137 Cal. 619, 622, 67 P. 1040, 70 P. 1083, 59 L.R.A. 581, 92 Am.St.Rep. 188.

Are the above-mentioned articles and sections to our state and federal Constitutions, and the amendment to the latter, “self-executing” to the extent relied upon by respondents herein? It appears settled that while generally governmental agencies, as drainage and irrigation districts, municipal or county governments or other quasi-public corporations exercising governmental functions are not liable for the negligence or misfeasance of their officers, agents and employees in the absence of a statute to the contrary, there is an exception to this rule. The rule and the exception are thus stated in Perkins v. Blauth, supra [163 Cal. 782, 127 P. 53]: “* when an injury results from the wrongful act or omission of a municipal officer charged with duty prescribed and limited by law, the doctrine of respondeat superior is inapplicable. * and, while for his tortious acts he will be held responsible, the municipality will not. * Upon the other hand, if the act is one commanded by the municipality itself, if inherently wrong, the municipality and the agent who performed will both be liable. Brownell v. Fisher, 57 Cal. 150; DeBaker v. Railway Co., 106 Cal. 257, 39 P. 610, 46 Am.St.Rep. 237. If the injury results, however, not from the wrongful plan or character of the work, but from the negligent or improper manner in which it is performed, the one so negligently acting will always be responsible, and the public corporation may or may not be responsible, depending upon the relationship which it may sustain to that agent.” A public agency, vested with the power of eminent domain, must exercise that power strictly in accordance with the forms of the Constitution and the statute vesting the same. Jacobsen v. Superior Court, 192 Cal. 319, 325, 219 P. 986, 29 A.L.R. 1399. When it presumes to take or damage private property for public use without first instituting condemnation proceedings therefor or otherwise complying with the statute by which its authority to take such property is defined it may be held liable therefor. As we have seen, such liability may or may not be based upon negligence, depending upon the circumstances in each case. Where, in the absence of condemnation proceedings the very plan of the work undertaken contemplates the taking or damaging of the private property in question, and the work is deliberately and skillfully performed in accordance with the specifications there is no foundation for the suggestion of negligence. In such a case the tort is a trespass. Robinson v. Southern Cal. Ry. Co., 129 Cal. 8, 11, 61 P. 947; Perkins v. Blauth, supra, 163 Cal. 786, 127 P. 50; Kafka v. Bozio, 191 Cal. 746, 750, 218 P. 753, 29 A.L.R. 833. The liability of the public agency under either of the noted exceptions to the rule and regardless of whether dependent upon the presence or absence of negligence is primarily based upon the constitutional guaranty that private property shall not be taken or damaged for public use without just compensation. Nor is it a defense in such cases that the public corporation was exercising its governmental functions. Whiteman v. Irrigation Dist., 60 Cal.App. 234, 237, 212 P. 706. When private property is so taken, or damaged, either designedly or as a consequence of an otherwise proper act, an action for damages will lie. Reardon v. San Francisco, 66 Cal. 492, 505, 506, 6 P. 317, 56 Am.St.Rep. 109; Bigelow v. City of Los Angeles, 85 Cal. 614, 618, 24 P. 778; Tyler v. Tehama County, 109 Cal. 618, 625, 42 P. 240; Weisshand v. City of Petaluma, 37 Cal.App. 296, 307, 174 P. 955; Perkins v. Blauth, supra, 163 Cal. at page 789, 127 P. at page 50; Elliott v. County of Los Angeles, 183 Cal. 472, 475, 191 P. 899; Western Assurance Co. v. Drainage Dist., supra, 72 Cal.App. at page 77, 237 P. at page 59; Stone v. Cordua Irr. Dist., 72 Cal.App. 331, 338, 237 P. 554; Newberry v. Evans, 76 Cal.App. 492, 504, 245 P. 227; Northwestern Pacific R. Co. v. Currie, 100 Cal.App. 173, 175, 279 P. 1057.

The cases cited establish beyond question that a municipal or county government or other public agency may be liable in the circumstances mentioned and that an action to recover damages will lie. Is the exception to the rule equally applicable to the State of California so as to permit such an action to be maintained against it? It is stated in Perkins v. Blauth, supra, 163 Cal. at page 789, 127 P. at page 53: “One important principle, however, is to be noted in this connection. Wherever the injury complained of is the taking or damaging of private property for public use without compensation then under the guarantee of the federal Constitution against such invasion of the private rights of property, neither the state itself nor any of its agencies or mandatories may claim exemption from liability. Amendment Const.U.S., art. 5; Hopkins v. Clemson College, [221 U.S. 636, 31 S.Ct. 654, 55 L.Ed. 890, 35 L.R.A.,N.S., 243], supra.” In the case of Perkins v. Blauth, supra, the action and judgment appealed from was against the trustees of a reclamation district, personally, hence the statement quoted is purely dictum, in so far as it applies to “the state itself”. The same is true of the other above-cited cases from this jurisdiction as regards the question whether the exception to the rule may apply to the state.

Hopkins v. Clemson Agricultural College, 221 U.S. 636, 31 S.Ct. 654, 656, 55 L.Ed. 890, 35 L.R.A.,N.S., 243, was an action for damages to private property resulting from the construction of a dyke by defendant college acting through its board of trustees. The defendant raised the defense that the construction was authorized by the state, and had been built by the college as a public agent and that by reason thereof it could not be sued. The complaint was dismissed in the trial court and the judgment of dismissal affirmed by the supreme court of South Carolina, 77 S.C. 12, 57 S.E. 551. Upon appeal the United States Supreme Court reversed the judgment and in its opinion stated: “With the exception named in the Constitution, every state has absolute immunity from suit. Without its consent it cannot be sued in any court, by any person, for any cause of action whatever. * But immunity from suit is a high attribute of sovereignty,—a prerogative of the state itself,—which cannot be availed of by public agents when sued for their own torts. The 11th Amendment was not intended to afford them freedom from liability in any case where, under color of their office, they have injured one of the state's citizens. * Besides, neither a state nor an individual can confer upon an agent authority to commit a tort, so as to excuse the perpetrator. * But neither public corporations nor political subdivisions are clothed with that immunity from suit which belongs to the state alone by virtue of its sovereignty.” That portion of the opinion wherein it is stated, “With the exception named in the Constitution” at first blush would seem to indicate that immunity from suit does not extend even to states in actions involving the rights of individuals under the fourteenth amendment to the federal Constitution. An examination of the authorities, however, including citations of the case in question, will not sustain such a view. Ashton v. Cameron County W.I. Dist. No. One, 298 U.S. 513, 531, 56 S.Ct. 892, 80 L.Ed. 1309, (dissenting opinion of Justice Cardozo); State of Missouri v. Homesteaders Life Ass'n, D.C., 16 F.Supp. 69, 74; In re Lindsay–Strathmore Irr. Dist., D.C., 21 F.Supp. 129, 132; Melvin v. State, 121 Cal. 16, 53 P. 416; Union Trust Co. v. State of Cal., 154 Cal. 716, 728, 729, 99 P. 183, 24 L.R.A.,N.S., 111. Cooley's Constitutional Limitations, 8th ed., vol. I, pp. 22–25. If such exception of a state from its sovereign immunity were ever the rule it appears to have been definitely abandoned. In Palmer v. State of Ohio, 248 U.S. 32, 39 S.Ct. 16, 63 L.Ed. 108, a more recent decision, the same court expressly holds that the rights secured to citizens by the federal and state Constitutions do not include the right to sue a state, for that right “cannot be derived from the Constitution or laws of the United States. It can come only from the consent of the state.” 25 R.C.L. 413; 59 Cor.Jur., p. 302, sec. 460. (Italics ours.) This case further holds that the question whether the Constitution of a particular state gives the right to sue without further legislative action is a question of state law the determination of the state court being controlling where no federal question is involved. The cases convince that in California the rule has ever been that the state itself—regardless of the exception concerning its agencies—cannot be sued without its express consent. The reason for the rule is manifest. Neither our Constitution nor statutes pursuant thereto have created or empowered—for, indeed, they could not—an officer, a board of officers or a public agency to seize private property for public use without just compensation and a strict compliance with the detailed provisions of the law of eminent domain. The law makes it incumbent upon public agencies and officers seeking to take private property for public use to proceed in the manner provided by law by which the constitutional rights of the owner will be properly protected. The California Streets and Highway Code, division 1, chapter 6, article I, section 858 (St.1935, p. 300), expressly provides the manner in which changes in the grades of highways affecting property shall be accomplished. By the provisions of this code the State of California and the people of the state have indicated the precise procedure to be followed. Neither the state, nor the people thereof, have expressed by word or act a purpose contrary to the express provisions of law relating to the subject. If the course pursued by public officers in the instant case was not in conformity with the laws of the State of California—upon which point we need express no opinion—respondents were not without their remedy. No liability, however, may attach to the state by reason of the dereliction—if any—either upon contract, express or implied, or negligence. For the state can “speak and act only by law” and the wrong herein complained of “is the mere wrong and trespass of those individual persons who falsely speak and act in its name”. Poindexter v. Greenhow, 114 U.S. 270, 5 S.Ct. 903, 914, 962, 29 L.Ed. 185, 192; United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171; Cooley's Constitutional Limitations, supra, vol. I, pp. 22–25, and notes; 25 R.C.L. 415.

In view of the foregoing the court was and is without jurisdiction of the named defendants, and it is unnecessary to consider the other questions presented upon the appeal. It follows the judgment must necessarily be reversed, it is so ordered.

GEARY, Justice pro tem.

We concur: KNIGHT, Acting P.J.; WARD, J.

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