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District Court of Appeal, Third District, California.

Frank C. MOSIER and Nancy M. Mosler, Plaintiffs and Appellants, v. Dewey MEAD, Roy Ustick, Paul Niman, Richard Cooper and J. Walter Smith, Defendants and Respondents.

Civ. 8537.

Decided: May 16, 1955

Sutter, Elledge & Carter, Modesto, for appellant. Frank B. Collier, Modesto, Daniel E. O'Connell, Turlock, for respondent.

Plaintiffs brought this action to quiet title to certain real property in the county of Stanislaus. Defendants answered, admitting their claim of interest in the realty adverse to the plaintiffs and otherwise denying generally the allegations of the complaint. Defendants also cross-complained, setting forth two causes of action to quiet title to an easement across the subject property, and a third cause of action for compensatory and punitive damages alleging an interference with the easement. Plaintiffs answered the cross-complaint, claiming ownership of the realty in question and otherwise denying generally the claims of defendants. The litigants agreed upon the facts and submitted the matter to the trial court upon a stipulated statement of facts. A decree was issued quieting title in defendants to the easement, from which decree plaintiffs appeal.

The agreed facts are:

‘1. That the Crows Landing Highway, a County road, passes through and traverses a portion of Stanislaus County in the vicinity of the land described in plaintiffs' complaint;

‘2. That defendants and cross-complainants, and each of them, own real property situated in the County of Stanislaus, in the vicinity of said land;

‘3. That plaintiffs and cross-defendants are the owners of the real property described in plaintiffs' complaint; subject, however, to the claims of defendants and cross-complainants. The facts in support of said claims are as herein stated;

‘4. That in the early part of 1938, at a time when the San Joaquin River was flooded, and flood waters therefrom were threatening great damage to property and the public highway in the vicinity of the real property described in plaintiffs' complaint, cross-complainants and other landowners in the vicinity and/or their predecessors in interest, and the Court of Stanislaus, a body politic and corporate, with the knowledge, acquiescence and consent of Laura C. Johnson, who was then the owner of the property described in said complaint, constructed at great expense a levee over and across a portion of said land, known as the Johnson-Carpenter Levee and/or the Johnson Levee, for the purpose of flood control, and to protect the highway of the County of Stanislaus and the property of cross-complainants and/or their predecessors in interest, and other landowners in the vicinity from the flood waters of the San Joaquin River, and cross-complainants claim that they and the County of Stanislaus thereby acquired an easement for said purposes, with the absolute right to maintain said levee for said purposes;

‘5. That at the time said levee was constructed C. C. Crowell was County Supervisor of the Supervisorial District in which plaintiffs' said lands were situated. Said Supervisor did not, prior to the construction of said levee, or at any other time, procure the approval of the Board of Supervisors to construct or assist in the construction of said levee. He directed County employees to assist cross-complainants and other landowners in the vicinity in the construction of said levee, and County equipment and employees were employed for several days on the job. Said employees were paid by the County of Stanislaus in the usual way;

‘6. That on or about the 14th day of March, 1939, the said Laura C. Johnson filed a claim against the Court of Stanislaus for $1,500 for an easement over and across her said land and for damages for constructing said levee thereon. A copy of said claim is attached hereto as Exhibit A and made a part hereof the same as if fully incorporated herein;

‘7. That cross-complainants or their predecessors in interest have used and maintained said levee, for said purposes, openly, notoriously and continuously, under claim of right, from the date of its construction to at least January 1, 1951;

‘8. That plaintiffs acquired the property described in their complaint on file herein in December, 1947;

‘9. That the levee referred to in the cross-complaint on file herein is located within the boundaries of the Sacramento and San Joaquin Drainage District, as set forth and described in Chapter 170, Statutes and Amendments to the Codes of California, 1913, and the Water Code of the State of California, and that the plans of said levee and the maintenance thereof were not approved by the Reclamation Board of the State of California, before or after its construction;

‘10. That the County of Stanislaus does not at this time claim an easement over and across plaintiffs' said land for the purposes hereinbefore stated, nor any license or right to maintain the levee constructed thereon;

‘11. That said levee is so situated upon the property of plaintiffs herein that it separates the irrigation facilities upon said property from approximately 100 acres of tillable farm land owned by plaintiffs, thus making it necessary for plaintiffs to construct additional irrigation facilities in order to properly farm said 100 acres of real property;

‘12. That within two years last past and prior to the filing of this action, plaintiffs and cross-defendants have entered upon said levee and have willfully removed dirt therefrom and have thereby destroyed portions of said levee. That since the commencement of this action plaintiffs and cross-defendants have entered upon said levee and have willfully removed dirt therefrom and have thereby destroyed substantially all of said levee. That if the defendants and cross-complainants own the easement and levee constructed thereon, as alleged in their cross-complaint, they have been damaged; and it is stipulated by the parties hereto that, in lieu of damages, which are difficult to ascertain, the Court may issue mandatory injunction requiring plaintiffs and cross-defendants to rebuild said levee and to place it in as good condition as it was prior to the removal of said dirt therefrom.’

Among other things the decree stated that the respondents are owners of an easement in the realty, on which is constructed a levee, for the purpose of flood control and the protection of county highways and property of the respondents and other landowners in the vicinity of the levee, with the right to reconstruct and maintain the levee, as provided by law. As stated by the trial judge in his decision, this included acquisition of the necessary permit required by law to be obtained from the Reclamation Board. The decree provided for the removal and use of dirt from adjoining land where necessary for the proper reconstruction and maintenance of the levee. It also enjoined appellants from claiming any right, title, or interest in the easement adverse to respondents.

Appellants contend (1) that the respondents may not be declared the owners of a license or easement to maintain a levee in violation of a penal statute defining the construction and maintenance of such levee as a criminal offense; (2) that an alleged right in the county of Stanislaus to an easement for the purpose of flood control cannot be relied upon by the respondents either as a defense to appellants' complaint or as a basis for a cross-complaint; (3) that the county of Stanislaus would be prevented from constructing and maintaining the levee in violation of the penal statute; and (4) that the levee is a nuisance, and as such the appellants may abate it.

In support of their first contention appellants cite certain sections of the Water Code which require approval by the Reclamation Board of all plans of levee construction, permission of the board before any work is done, and contain a declaration that a violation of any of the requirements set out in the article is a misdemeanor. Appellants contend that equity will refuse to aid in illegal transactions, and that equity will not aid a party whose claim is based in whole or in party upon a violation by such party of a penal statute.

In support of their first contention appellants cite sections 8710, 8711, 8719 and 8720 of the California Water Code, which sections embody in substance the law as it has stood since 1915. Briefly, section 8710 provides that any plan for the construction and maintenance of any levee on or near the banks of the Sacramento or San Joaquin Rivers must first be approved by the California Reclamation Board. By the terms of section 8711 any plan for such work is void, and no work shall be done unless permission of the board be first obtained. Sections 8719 and 8720 read as follows, in that order:

‘The doing of any act or construction of any work mentioned in this article, or permitting the work to remain after such construction, without the permission of the board and in violation of any of the provisions of this article, is a public nuisance, and the board may commence and maintain suit in the name of the people of the State for the prevention or abatement of the nuisance.

‘Any person who does any act contrary to or in violation of any of the provisions of this article is guilty of a misdemeanor.’

In the statement of facts it is admitted that the plans of said levee and the maintenance thereof were not approved by the Reclamation Board, either before or after its construction. Appellants maintain that this constitutes an admitted violation of a penal statute by respondents and that since respondents, in seeking to quiet title to an easement, are appealing to equity, Newport v. Hatton, 195 Cal. 132, 231 P. 987; Angus v. Craven, 132 Cal. 691, 64 P. 1091, the trial court committed error in quieting their title since a court of equity should refuse aid when the remedy sought is based upon or involves the violation of a penal statute. A number of cases are cited by appellant which point up the salutary principles by which courts of equity should be guided in proper cases, but we do not find that they apply to the exact situation with which we are here concerned. The trial court did not find that respondents were entitled to maintain or repair the levee without sanction or approval of the Reclamation Board. The decree provides that respondents ‘* * * were during all the times herein mentioned, and now are, the owners of an easement in, on, over and across the hereinafter described real property, on which is constructed a levee * * *’ This is a right which, from all that appears, inured to respondents by implied grant. Civil Code, section 806. After the levee was constructed, the then owner of the real property, Laura C. Johnson, presented her claim to the county of Stanislaus which read in part as follows:

‘For damages for building levee across may ranch and for an easement 200 feet wide running East of Crows Landing Road and 100 feet across north side along highway, being 23 acres, more or less.’

Appellants have cited no authority, and we are aware of none, for the proposition that a grant of an interest in real property is invalid because an intended use actually carried out is merely malum prohibitum. Nor can we say that the right in respondents to have their title quieted would be any the more tenuous even though respondents' rights were gained by prescription, for in Hudson v. Dailey, 156 Cal. 617 at page 630, 105 P. 748, at page 754, we find this language:

‘We cannot say that a private prescriptive right to private property may not be obtained by means of acts which may also constitute or cause a public nuisance. The private owner who is injured has a right of action in case of special injury, and such right is barred in the same manner as other actions of like nature. A private owner, so injured, cannot invoke the protection of the public right to abate the nuisance, which is not barred, and thus avoid the effect of the statute of limitations upon his private right of action.’

The language just quoted refers to the failure by the defendant in that action to cap certain artesian wells on his property, thus allowing the water to run to waste. Under a statute of 1878 this was declared to constitute a public nuisance, and the owner who allowed such waste was declared to be guilty of a misdemeanor. See also San Joaquin & Kings River Canal & Irrigation Co. v. Egenhoff, 61 Cal.App.2d 82 at pages 91–92, 141 P.2d 939.

In Biber v. O'Brien, 138 Cal.App. 353 at page 358, 32 P.2d 425 at page 428, the court in discussing an alleged violation of the State Housing Act had this to say:

‘The act in question contains no express declaration that structures erected in violation of its provisions shall be deemed nuisances. It does, however, impose penalties for such violations; but the violation of a penal statute does not of itself create a private nuisance. Carter v. Chotiner, 210 Cal. 288, 291 P. 577. Nor does the failure to obtain a license or permit required by law necessarily have that effect.’

Appellants filed one brief herein, and the point given major consideration is stated as follows:

‘Coming more directly to the heart of the problem, will this Court, sitting as a Court of Equity, sanction and condone the continued commission of a criminal offense? Certainly a quiet title action is historically and presently equitable in nature * * * And a court of equity will refuse to aid in illegal transactions.’

In support of this position, appellants cite Domenigoni v. Imperial Live Stock, etc., Co., 189 Cal. 467, where, at page 475, 209 P. 36, at page 39, appears this language, a portion of which is quoted by appellants in their brief:

“A court of equity will not allow itself to become a handmaid of iniquity of any kind. It intervenes, not for the sake of the party who is benefited by the intervention, but for the sake of the law itself. It matters not that no objection is made by either party; when the court discovers a fact which indicates that the contract is illegal and ought not to be enforced, it will, of its own motion, instigate an inquiry in relation thereto.”

The facts of the Domenigoni case are, however, quite different from those with which we are concerned here, and the rationale just quoted is not applicable. In the Domenigoni case the court was asked to cancel and have delivered up certain promissory notes and agreements given by plaintiff to defendant in connection with the purchase of stock in violation of the so-called ‘Blue Sky Law.’ Plaintiff's contention was that the notes and agreements, being in violation thereof, were against the public policy and therefore should be declared void. The court found that the entire transaction was subterfuge and an attempt by both parties to circumvent the law, and it therefore refused its aid to either party.

In the present case it does not appear that, in acquiring the easement, the parties conspired in any manner to violate the law, or indeed that any act on the part of either in constructing the levee or otherwise, was known to be in violation of that which was merely a statutory prohibition. Without doubt the parties were, at the time the levee was built, concerned solely with the perfectly normal and laudable desire to protect their property. It is true that ignorance of the law is not an excuse for violating it, but we cannot go so far here as to say that culpability permeated the entire transaction to the point where equity should, for that reason alone, deny relief which otherwise is plainly warranted.

In the case of Perrin v. Mountain View Mausoleum Ass'n, 206 Cal. 669, at page 674, 275 P. 787, at page 788, which was an action brought to restrain the building and operation of a mausoleum, and where the defendants had not only been charged with but also convicted of violating certain ordinances relied upon by plaintiffs in seeking the injunction, the court, after calling attention to sections 3369 and 3479 of the Civil Code, had this to say:

‘Without going into the controverted question as to whether or not a mausoleum is a cemetery within the meaning of the ordinances pleaded by plaintiff, and assuming for the present purposes that it is, we reach a conclusion that the violation of the ordinances alone would not permit plaintiff to secure the relief prayed for and that the complaint has not stated facts with relation to the operation or conduct of the mausoleum which would constitute it a nuisance per se, nor has it stated facts which would indicate that plaintiff has suffered some exceptional damage, other than that suffered by the public generally in that community due to the depreciation in value of residence property therein.’

See also Stegner v. Bahr & Ledoyen, Inc., 126 Cal.App.2d 220, 272 P.2d 106.

Appellant cites and relies on the case of Smallpage v. Turlock Irrigation Dist., 26 Cal.App.2d 538, 79 P.2d 752, wherein the plaintiff's title was quieted to certain lands over which defendants claimed an easement for a drainage canal and sewage outlet. That case differs from the present one in that here the use actually made of the easement was contemplated by the parties at the time construction of the levee was permitted by Laura C. Johnson, the then owner of the land. No change was ever made in the use contemplated, whereas in the Smallpage case there was such a change. Maintenance of the levee is not a nuisance per se but is classified as a nuisance only because so designated by statute. In the Smallpage case sewage drains were involved which from their very nature could constitute a nuisance per se.

From the tenor of Laura C. Johnson's claim presented to the county of Stanislaus, construction of the levee conferred some benefit at least upon her land. Where the exercise of an easement, according to its terms, will result in no injury to a party to the creation of the easement not within the contemplation of the parties at the time of the creation thereof, and will result in no special injury to a party of the character sought to be prevented by the statute declaring the act, thing or condition to be a nuisance unless it is also a nuisance per se, then the public authorities or strangers to the transaction who are specially injured by the condition created are the only ones entitled to seek abatement. Civil Code, sec. 3493; Frost v. City of Los Angeles, 181 Cal. 22, 183 P. 342, 6 A.L.R. 468; San Joaquin & Kings River Canal & Irrigation Co. v. Egenhoff, 61 Cal.App.2d 82, 141 P.2d 939. In the present case the Legislature, in enacting section 8719 of the Water Code, has created a category of public nuisance by legislative fiat. It has also provided that the Reclamation Board may commence and maintain suit for the prevention of a violation or the abatement thereof as a nuisance. Use of the word ‘may’ seems to characterize the provision as permissive, and if so the exercise of the right is optional with the Reclamation Board. It is not made mandatory that all violations be abated by the board or even recognized. The board is undoubtedly privileged to waive or forego exercise of the remedy if it so chooses, and there is no evidence here that plaintiffs are in position to complain that the board has not sought abatement. Although the statute declares a violation of certain provisions thereof to constitute a public nuisance, the end result seems to be that it need not be actually so considered unless so treated by the Reclamation Board. Here apparently the board did not consider this particular levee to be a public nuisance, for, from all that appears, it stood unchallenged by the board for a period of some 13 years. No facts appear which would give to appellants the right to take advantage of that which the board chose to ignore, or which would create in appellants a right to extinguish the easement merely because of the violation of a statute by respondents.

In the Smallpage case there is no indication that the court based its decree quieting plaintiffs' title exclusively or at all upon the rule that one may not, as against the public, acquire an easement by prescription to maintain a public nuisance. That principle was considered in the case primarily in connection with the question as to whether it was error for the trial court to admit evidence as to a public nuisance. It is well settled that one cannot gain a right by prescription against the public to maintain a public nuisance, but the Smallpage case does not stand for the proposition that one cannot gain by prescription a right as against a private individual or private parties to maintain that which is merely, by legislative pronouncement, declared a public nuisance but which is not by nature a nuisance per se. If one has a right of action for the invasion of such a private right and does not seasonably exercise it, the right may be lost by lapse of time the same as in any other case.

In view of our determination that defendants are entitled to their judgment quieting title to the easement in their own right, we deem it unnecessary to discuss the claim by appellants that respondents are attempting to rely on some ‘super right’ in Stanislaus County in connection with the levee. The parties have stipulated that: ‘The County of Stanislaus does not at this time claim an easement over and across plaintiffs' said land for the purposes [of flood control] hereinbefore stated, nor any license or right to maintain the levee constructed thereon.’ In the face of this stipulation we cannot see how there would be any valid question concerning a right reposing in the county which would be subject to enforcement by respondents for their own private benefit.

The judgment is affirmed.

FINLEY, Judge pro tem.

VAN DYKE, P. J., and SCHOTTKY, J., concur. Hearing granted; CARTER, J., not participating.