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

Melchior LINGGI, Plaintiff and Appellant, v. Maria GAROVOTTI, Defendant and Respondent.

Civ. 16127.

Decided: October 11, 1954

Wallace S. Myers, San Anselmo, for appellant. Freitas, Freitas & Allen, San Rafael, for respondent.

The plaintiff brought this action in eminent domain to condemn an easement across defendant's land for the construction, maintenance and repair of a sewage disposal system for the service of plaintiff's property. Defendant demurred, generally and specially. The trial court, by a general order, sustained the demurrer without leave to amend, and entered its judgment dismissing the action. Plaintiff appeals.

The verified complaint avers that plaintiff owns certain real property in Fairfax, Marin County, the northerly boundary of which faces Sir Francis Drake Boulevard; that the southerly boundary of plaintiff's land is contiguous to the northerly boundary of defendant's land; that the southerly boundary of defendant's land faces Oak Avenue; that near the common boundary, on his own property, plaintiff has constructed a building containing two apartments used as private residences; that such building requires a proper sewage system; that presently the sewers from such property run northerly and lead to a public sewage disposal line located in Sir Francis Drake Boulevard; that this public sewage system, during the rainy season, is not adequate to carry the sewage from plaintiff's building; that during such season sewage backs up and overflows on plaintiff's property ‘and has created, an unhealthy condition, and in its present state constitutes a nuisance’; that there is an established adequate sewage system located in Oak Avenue; that plaintiff has been informed and believes and so alleges ‘that the only way plaintiff is able to dispose of sewage’ from his property ‘will be over and across' defendant's property to Oak Avenue; that defendant has refused permission to run the sewer line across his property; that ‘it is necessary for the private residences' on plaintiff's land to have a sewage connection over and across defendant's land to lead into the Oak Avenue public sewage system, ‘That it is necessary to take’ the easement ‘in order to abate nuisance’; that such use is a public use within the meaning of subdivision 8 of section 1238 of the Code of Civil Procedure; and that it is necessary that plaintiff have and take such easement for the purpose described.

Although the demurrer was general and special, inasmuch as the original complaint is involved it would have been an abuse of discretion, reviewable on appeal, § 472c, Code Civ.Proc., to have sustained the special demurrer without leave to amend. Thus, the basic question is whether the complaint was subject to the general demurrer.

Appellant correctly points out, and respondent does not argue to the contrary, that in a proper case, an individual may maintain an action in eminent domain. The statute confers the right on ‘any person’ § 1001, Civ.Code, and the cases have uniformly held that a ‘person’ may maintain such an action. Moran v. Ross, 79 Cal. 159, 21 P. 547; City of Pasadena v. Stimson, 91 Cal. 238, 27 P. 604; Western Union Tel. Co. v. Superior Court, 15 Cal.App. 679, 115 P. 1091; City of Los Angeles v. Leavis, 119 Cal. 164, 51 P. 34; Adamson v. County of Los Angeles, 52 Cal.App. 125, 198 P. 52; see cases collected 10 Cal.Jur. at p. 294, § 11.

Appellant next contends that by statute the running of a sewer line across one person's private property to serve the private property of another has been declared a ‘public’ use, warranting, in a proper case, condemnation. The pertinent statute is section 1238, subdivision 8, Code of Civil Procedure, which provides:

‘Subject to the provisions of this title, the right of eminent domain may be exercised in behalf of the following public uses: * * *

‘8. Sewerage of any incorporated city, city and county, or of any village or town, whether incorporated or unincorporated, or of any settlement consisting of not less than 10 families, or of any buildings belonging to the State, or to any college or university, also the connection of private residences and other buildings, through other property, with the mains of an established sewer system in any such city, city and county, town or village.’

Respondent, by a strained and unnatural construction, seeks to limit this statute, insofar as sewage connections for private residences are concerned, to situations where at least 10 families are to be served by such connection. Obviously, the 10-family limitation applies to any settlement when it seeks to condemn for a public sewerage system. But the clause following the word ‘also’ clearly means that where there are existing public sewer mains an individual may, in a proper case, condemn a right-of-way so that his system on his property can be connected with the public system. This interpretation is not affected by the use of the plural ‘residences' and ‘buildings' in the challenged clause. Obviously this is a case in which the plural includes the singular.

Thus, so far as the statute is concerned, such use is declared to be a ‘public’ use. Appellant claims that such declaration in the statute is conclusive on the courts. There is language in City of Pasadena v. Stimson, 91 Cal. 238, at page 253, 27 P. 604, to the effect that when a statute declares a particular use to be a public one the courts are without power to pass on the question. Other early cases contain similar language. However, the later and better reasoned cases hold that the determination of whether a particular use is a public use is a judicial and not solely a legislative question. Thus, in Madera Ry. Co. v. Raymond Granite Co., 3 Cal.App. 668, at page 675, 87 P. 27, at page 30, it is stated: ‘Where, however, the public use is declared by general statute, enumerating the many objects that are thus designated, the courts are not precluded from determining from all the circumstances whether or not in the particular case the purpose is a public use. [Citing cases.]’ In Black Rock etc. Dist. v. Summit etc. Co., 56 Cal.App.2d 513, 133 P.2d 58, a Placer Mining District brought an action under the appropriate statute to condemn certain property rights. The court stated that such use, 56 Cal.App. at page 519, 133 P.2d at page 61, ‘may not be deemed to become a public use subject to eminent domain by the ipse dixit of the Legislature merely because it is operated by an association of its owners organized under the Placer Mining District Act. The question as to whether the property is to be devoted to public use is a problem for judicial determination. [Citing cases.]’ The court then quoted from Cooley's Const.Lim., 8th ed., 1141, as follows, 56 Cal.App.2d at page 519, 133 P.2d at page 62: “The question what is a public use is always one of law. Deference will be paid to the legislative judgment, as expressed in enactments providing for an appropriation of property, but it will not be conclusive.”

Thus, we agree with respondent that the question as to the nature of the use here involved is a judicial one. But we do not agree that the complaint discloses that the proposed use is not a public one. Respondent's position is that ‘public use’ means ‘use by the public’; that here the proposed use is for the benefit of the plaintiff's private property; and that such use is a private and not a public one. It has undoubtedly been held that ‘public use’ means ‘use by the public,’ and that use for private benefit cannot constitute a public use. Gravelly Ford Canal Co. v. Pope & Talbot Co., 36 Cal.App. 556, 178 P. 150; see also Thayer v. California Development Co., 164 Cal. 117, 128 P. 21. But this view represents a narrow concept that has been greatly broadened in recent years. In order to meet new and changing conditions the courts of this state have expanded the concept of what constitutes a public use and public purpose. Thus, in University of Southern California v. Robbins, 1 Cal.App.2d 523, 37 P.2d 163, the court held that the taking of land by a private institution to be used as a library for its own students was for a public use and purpose. In the recent case of Redevelopment Agency of City and County of San Francisco v. Hayes, 122 Cal.App.2d 777, 266 P.2d 105, this court refused to follow the limited rule of the Gravelly Ford Canal Co. case, supra, and adopted the rule that ‘public use’ means ‘public utility or advantage’, and is not limited to ‘use, or right of use, by the public’. See 122 Cal.App.2d at page 803, 266 P.2d at page 122.

The complaint here sufficiently avers a public purpose and public use. Sewage disposal and sanitation are normally public functions. Maintenance of proper health standards by requiring adequate sewage systems redounds to the benefit of the entire community. While the proposed right-of-way is to be used to run a sewage line to serve plaintiff's property, and in that sense is to be used for a private purpose, in serving plaintiff's property the sewage line will be used to carry out a public purpose and the land will thus be devoted to a public use. See Machado v. Board of Public Works of Arlington, 321 Mass. 101, 71 N.E.2d 886. The complaint alleges that the proposed sewer line will be used to terminate an existing unhealthy condition and a nuisance caused by the inadequacy of existing facilities. Such a remedial step provides a public benefit and is a public purpose and use.

Respondent next urges that even of the complaint properly alleges a ‘public use,’ and we have held that it does, it inadequately alleges that such taking is ‘necessary’ for the public use. The Code of Civil Procedure, section 1241, subdivisions 1 and 2, expressly provides that before property can be condemned it must appear that such taking is ‘necessary’ to the proposed public use. In certain situations not here involved the statute makes the determination of certain agencies conclusive as to such necessity, but in all other cases, of which the instant case is one, it is for the court to decide whether such taking is necessary. In determining that question mere convenience is not sufficient. The person or agency seeking to enforce the right of condemnation must show that the proposed taking is ‘indispensably necessary,—not merely convenient or profitable’. Spring Valley Water Works v. San Mateo Water Works, 64 Cal. 123, 132, 28 P. 447, 449.

Respondent urges that the complaint is insufficient in this respect, in that its allegations destory any basis of necessity for the use of the drastic remedy of condemnation. Respondent points out that the complaint alleges that there is an existing public sewer main presently servicing plaintiff's property located in Sir Francis Drake Boulevard, and that such service is adequate in all but the rainy season. This, according to respondent, negatives the essential allegation of indispensable necessity. But the complaint also alleges that it is because of the inadequate capacity of the existing facility that the unhealthy condition amounting to a nuisance has been created in the rainy months. It is alleged that the Oak Avenue facility has sufficient capacity and that ‘the only way plaintiff is able to dispose of sewage collected in his apartment houses * * * will be over and across' defendant's land ‘to the public sewage line in Oak Avenue.’ It is also alleged that ‘it is necessary for the private residences' of plaintiff ‘to have a sewage connection over and across' defendant's land to the Oak Avenue line; that ‘it is necessary to take an easement over and across' defendant's land ‘in order to abate the nuisance.’ Thus, the pleading does sufficiently allege necessity as against a general demurrer. Of course, all we are now considering is the pleading. We are not now concerned with problems of proof. On the trial it may be that respondent can show that the sewer in Sir Francis Drake Boulevard is adequate or can be made adequate by the use of a pump or other engineering device. But, so far as pleading the issue is concerned, appellant has alleged that the sole method of alleviating the condition during an appreciable period of the year is by installing the sewer across respondent's land. Thus, indispensable necessity has been alleged. In our opinion, the complaint states a good cause of action.

The judgment appealed from is reversed.

PETERS, Presiding Justice.

BRAY and FRED B. WOOD, JJ., concur.

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