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


Civ. 14183.

Decided: December 22, 1943

Henry M. Lee, of Los Angeles, for appellant. J. H. O'Connor, County Counsel, and S. V. O. Prichard, Asst. County Counsel, both of Los Angeles, for respondent.

From a judgment of dismissal after demurrer had been sustained to the first amended complaint without leave to amend, plaintiff appeals. The action is a companion to that of O'Hara, O'Hara v. Los Angeles County Flood Control Dist., 19 Cal.2d 61, 119 P.2d 23, wherein a similar judgment was affirmed. Because of certain allegations made by Mrs. House not found in the O'Hara complaint it is now contended that the O'Hara decision is not controlling in the instant action and that the court erred in its ruling.

The gist of the pleading is:

By reason of the negligence of defendant in the construction of certain improvements in the channel of the Los Angeles River it was caused to overflow its banks in time of storm, to flow upon the land of plaintiff, to denude it of its soil and to destroy the improvements situate thereon to the plaintiff's damage in the sum of $30,663. The negligence lay in the facts that by reason of certain permeable dikes along the channel of the river prior to the construction complained of the augmented volume in flood season was allowed to spread over an extensive overflow area which served to maintain a low hydraulic radius; during the same times the riparian vegetation aided by groins constructed transversely to the overflow areas reduced the velocity of the waters and maintained a high rugosity coefficient. This resulted in the deposition of silt on the overflowed lands. Commencing about December, 1935, and continuing until the early spring of 1938, defendant negligently planned and installed in the bed of the river near, and in the vicinity of, plaintiff's property certain structures which completely changed the regimen of the stream. It removed the dikes, groins, and other structures in the river in the vicinity of plaintiff's property as well as the vegetation, posts, wires and other support theretofore in place along the banks of the river and negligently installed structures which prevented the spread of the overflow waters at flood time. As a result of such improvements the channel became a stream of high velocity, and of a low rugosity coefficient. The channel's capacity was reduced, the levees no longer permitted the flow of the waters into the overflow area, and the banks and levees were so inadequately constructed as to cause the escaping storm waters from the channel to accumulate behind the levees and in turn to cause their overflow and destruction. As a result of such negligence of defendant the land of plaintiff was denuded to a depth of from 6 to 10 feet and all of her improvements were washed away. The negligence of defendant was accentuated by its removal of the adequate protective agencies and by substituting therefor defective structures which the storm waters of March 2, 3, and 4, 1938, burst through with great violence onto and upon plaintiff's land. The installation of such improvements was not rendered necessary by any immediate emergency or in an effort to safeguard the general public welfare, health or morals. On the contrary, plaintiff's land had withstood a greater flood in January, 1934, without damage. There was no immediate peril in 1935, 1936, and 1937 but, during all of the time of the construction of such works, defendant had ample time to take proper measures to safeguard plaintiff's property from the danger to accrue from its negligent works which became a menace and a source of danger and which were contrary to good engineering practices.

Plaintiff contends that upon the facts alleged and above recited she is entitled to compensation under section 14, Article I, of the Constitution, which provides that private property shall not be taken or damaged for public use without just compensation to the owner. She maintains that her case is distinguished from that of O'Hara by reason of her allegation that there was no great or immediate necessity such as would justify invoking the police power and by reason of the allegation of negligence in the absence of which defendant could have foreseen and avoided the calamitous destruction of plaintiff's land and improvements by the flood waters of the river. But the principle enunciated in the O'Hara decision does apply with equal force here: damages to private property caused by the exercise of police power are compensable under section 14, Article I, only when the structure causing the damage is not so essential to the public health, safety or morals as to be justified under the police power. The construction of improvements along a stream for the purposes of effecting control is no less essential to the public health and safety than the grading of streets.

The Archer decision, Archer v. City of Los Angeles, 19 Cal.2d 19, 119 P.2d 1, is even a more detailed discussion of the principles involved. It is there declared that a lower riparian owner has no right of redress for injury to his land caused by improvements made in the stream for the purpose of protecting the land above even though the channel is inadequate to accomodate the increased flow of water resulting from the improvements; that an improvement for the purpose of protecting lands above gives no right of action to the lower riparian owner merely because such improvement increases the volume of water below; that the upper riparian owner is not to be deemed negligent for doing what he had the right to do even though a different plan might have avoided the damage; that straightening, widening, or deepening the channel of a stream to improve the drainage entails no diversion of its waters and gives rise to no cause of action in favor of the owner downstream. From such reasoning it must follow that public improvements made in the channel of a stream for the general welfare do not give rise to a cause of action for damages consequential thereto. Although the state may undertake to reduce the menace to land by changing the channel of a river it does not guarantee the complete success of the undertaking and its failure to do so creates no liability. Janssen v. Los Angeles County, 50 Cal.App.2d 45, 56, 123 P.2d 122.

Injuries to the lands of a riparian owner caused by improvements upon the channel of the streams for the general welfare is not damage to or a taking of the owner's property in the constitutional sense even though the government's actions were wrongful. Jackson v. United States, 230 U.S. 1, 33 S.Ct. 1011, 57 L.Ed. 1363. The basis of the claim in the Jackson case was that the property of the claimants had been destroyed after levees had been constructed for the purpose of confining the waters of the Mississippi River between the lines of embankment so as to give increased elevation, velocity and force to the current in order to scour and deepen the channel. Although the case of United States v. Sponenbarger, 308 U.S. 256, 60 S.Ct. 225, 84 L.Ed. 230, was decided against the claimant because she had suffered no detriment as a result of flood waters, the court observed that by undertaking to safeguard a large area from existing flood hazards the government does not owe compensation under the Fifth Amendment to every landowner whom it fails to or cannot protect. Neither does the Fifth Amendment make the government an insurer that the evil of floods will be stamped out universally before the evil can be attacked at all.

It is thus seen that the state is not an insurer of the success of every project attempted in the exercise of its police power. The principle which obtained under Roman law and under all other systems derived therefrom that respective riparian proprietors are protected from undue interference created by the obstructions to the flow of the stream has always been attended by the limitation that individual riparian owners may erect such works as will protect them from the consequences of the flood by restraining them; and other riparian owners are not entitled to complain of such action upon the ground of injury inflicted thereby. Cubbins v. Mississippi River Commission, 241 U.S. 351, 36 S.Ct. 671, 60 L.Ed. 1041. In the Cubbins case Congress had devised the Eads plan whereby on both banks of the Mississippi River, except at certain places, a line of levees would be built which, in flood season, would hold the waters relatively within the lines of the low–water banks, deepen the bed, improve navigation, and save the back country from inundation.

The allegation especially emphasized in appellant's brief is that the improvement undertaken by the defendant was not occasioned by any great or immediate necessity or emergency; neither was it done to safeguard the general welfare; but on the contrary, it is declared to be a fact that on the 1st of January, 1934, the vicinity of Los Angeles County and particularly that area near plaintiff's property was visited by an unprecedented torrential downpour of greater intensity and larger precipitation in a shorter period of time than that which occurred in the early days of March, 1938. By virtue of this allegation it is contended that the rule of noncompensable damage does not apply; that the improvements installed were not essential and that there was no great or immediate necessity therefor. In the first place the construction of such a vast improvement as that which appears to have been undertaken along the Los Angeles River during the three years preceding March, 1938, was done pursuant to the finding and Act of Congress. It had theretofore been made to appear that the peril of destructive floods of the many rivers of the United States including the Los Angeles River and its tributaries was so great as to be of national concern, pursuant to which finding the Congress resolved, and the federal government undertook, to execute such improvements as would abate the danger. It is the consequences of such structures installed to meet a public necessity which constitute the basis of the complaint. In view of the finding of Congress and of the action taken pursuant thereto it would be a vain and illogical undertaking for the courts to open for investigation the subject as to whether there was a necessity for the works.

Moreover, there is good reason why the allegation that the flood of January, 1934, was of greater intensity and precipitation than the flood of March, 1938, will not be considered. The records of the Department of Interior show that in the storm of 1938 the flood in the Los Angeles River near plaintiff's land was more than three times that during the storm of January, 1934. Such records are reports of the Department of the Interior to Congress, entitled “Surface Water Supply of the United States; Geological Survey Water Supply Paper,” numbered 766 and 861 for the years 1934 and 1938, respectively. Since the knowledge contained in such records is contrary to that alleged, the allegation comparing the floods of the two years mentioned must be disregarded. Sec. 1875, Code Civ.Proc., subd. 3; Hammell v. Britton, 19 Cal.2d 72, 119 P.2d 333; Young v. Boy Scouts of America, 9 Cal.App.2d 760, 51 P.2d 191; French v. Senate, 146 Cal. 604, 80 P. 1031, 69 L.R.A. 556, 2 Ann.Cas. 756; Livermore v. Beal, 18 Cal.App.2d 535, 64 P.2d 987; Parker v. James Granger Inc., 4 Cal.2d 668, 52 P.2d 226; Southern Pacific Co. v. Meserve, 186 Cal. 157, 198 P. 1055. In reliance upon the same authorities we have notice that the structures in the channel of the river subsequent to December 1, 1935, were installed by order of the Secretary of War, pursuant to the very Act of Congress which declared that the destructive floods upon the rivers of the United States (specifically designating the Los Angeles River) “constitute a menace to national welfare; * * * that improvements of rivers and other waterways, including watersheds thereof, for floodcontrol purposes are in the interest of the general welfare.” Act Cong. June 22, 1936, § 1, 33 U.S.C.A. § 701a. By the same Act Congress appropriated $70,000,000 for improvements upon the Los Angeles and San Gabriel rivers. Section 5, 49 Stat. 1589. It is apparent to the least thoughtful that the works contemplated by the Congress were of such magnitude as would require a period of many months for their completion, and that the undertaking of such a program cannot wait until watersheds have been eroded and until the river and its tributaries are swollen by floods before the state may in the exercise of its police power commence the construction of improvements designed to avoid the perils of a stream whose channel has frequently shifted or has overflowed vast riparian areas. Such knowledge is an additional reason why we have determined that the complaint herein does not present a justiciable issue.

The contention that liability attaches because of the negligence alleged cannot prevail. The only available agency for the execution of works designed to be done under police power is the genus homo who has not and will not acquire that degree of perfection whereby errors in execution or of plan may be wholly avoided. If under the police power improvements may be made it must follow that neither the state nor its agencies may be liable for errors in the concept or in the calculation of man. But since this contention proved to be ill–fated in the Archer and O'Hara cases, further comment were superfluous.

The judgment is affirmed.

MOORE, Presiding Justice.

McCOMB, J., concurs. W. J. WOOD, J., concurs in the judgment.