VATER v. Glenn-Colusa Irrigation District, a corporation, Respondent.*

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District Court of Appeal, Third District, California.

Grace Marie VATER, Plaintiff and Appellant, v. COUNTY OF GLENN, a political subdivision of the State of California; Glenn-Colusa Irrigation District, a corporation, Defendants, Glenn-Colusa Irrigation District, a corporation, Respondent.*

Civ. 8988.

Decided: April 12, 1957

Goldstein, Barceloux and Goldstein, J. Oscar Goldstein, P. M. Barceloux, Burton J. Goldstein, Chico, for appellant. Geis & Byrd, Willows, for respondent Glenn-Colusa Irrigation District.

Plaintiff brought an action against the County of Glenn and the Glenn-Colusa Irrigation District for damages for the alleged wrongful death of her husband and son, who were killed when the car in which they were riding fell from a bridge spanning the main canal of the irrigation district. Plaintiff alleges that the bridge was built and maintained without erecting proper warning signals, lights or barriers to protect travelers from falling into the cannal. The second amended complaint also alleges that the bridge was built in 1910 either by the irrigation district or its predecessors, and that its construction and maintenance constituted a dangerous and defective condition and a nuisance per se. It is alleged that the bridge crosses the canal at an angle to the road, and that the change of direction is not apparent until one is about to cross the bridge. The charge is also made that if the bridge was not erected by the defendant irrigation district then said defendant was negligent in not correcting said dangerous and defective condition.

A demurrer by the defendant Glenn-Colusa Irrigation District to this complaint was sustained and judgment in favor of the district was entered.

Plaintiff then made a motion to vacate the judgment on the ground of mistake, inadvertence, surprise, and excusable neglect. The motion was denied without prejudice, and plaintiff was allowed ten days to file a third amended complaint or to state whether she would rely on her second amended complaint. Plaintiff elected to file a proposed third amended complaint. The allegations of this complaint are substantially the same as the second amended complaint with the exception that it is therein alleged that said irrigation district or its predecessors constructed said bridge across the main canal connecting the northerly and southerly segments of its private road, and that said private road was negligently constructed so that it appears to be an extension of County Road R, so that a traveler would think that he was still on the county road, and that said bridge on said road constituted a dangerous condition and a nuisance per se.

The trial court denied the motion to vacate said judgment. Plaintiff appeals from the order sustaining defendant Glenn-Colusa Irrigation District's demurrer to her second amended complaint, without leave to amend; from the judgment entered thereon in favor of said irrigation district; and from the order denying her motion to vacate and set aside said judgment.

Appellant contends that the doctrine of sovereign immunity has no application to personal injuries resulting from the creation of a nuisance and in support thereof cites the case of Hunt v. Authier, 28 Cal.2d 288, 169 P.2d 913, 171 A.L.R. 1379, in an attempt to show that a wrongful death action is one for property damage. Appellant's theory of liability is expressly refuted in Brandenburg v. Los Angeles County Flood Control District, 45 Cal.App.2d 306, 114 P.2d 14, wherein the parents of a minor child contended that they had a cause of action against a state agency for the wrongful death of their minor child under the express authority of Article 1, Section 14, of the State Constitution. The Brandenburg case decided that the plaintiff's minor son, for whose death recovery was sought, was not ‘property’ of which there was a taking within the meaning of the Constitution, and that the state, therefore, had not consented to being sued for the negligence of its agents therein. Clement v. State Reclamation Board, 35 Cal.2d 628, 645, 220 P.2d 897. The Brandenburg case, supra, was also cited with approval in Barlow v. Los Angeles County Flood Control District, 96 Cal.App.2d 979, 982, 216 P.2d 903, 905, where the court stated:

‘Defendant Flood Control District is not one of the public corporations made liable by the statute for injuries or death due to the dangerous or defective condition of its property, hence there was no error in the order sustaining the demurrer of the district without leave to amend.’

Appellant argues that the doctrine of sovereign immunity has no application to personal injuries or death resulting from the creation or maintenance of a nuisance by the sovereign power. In support thereof, she cites cases from other jurisdictions so holding. See Annotation, 75 A.L.R. 1196–1199. We do not believe that the rule as stated in those cases applies in California since this state has on several occasions through its courts ruled that an irrigation district or other sovereign power and public agency, when acting in a governmental capacity, is immune from causes of action sounding in tort. Whiteman v. Anderson-Cottonwood Irrigation District, 60 Cal.App. 234, 212 P. 706; Nissen v. Cordua Irrigation District, 204 Cal. 542, 269 P. 171; Morrison v. Smith Bros., Inc., 211 Cal. 36, 40, 293 P. 53; Talley v. Northern San Diego County Hospital District, 41 Cal.2d 33, 39, 40, 257 P.2d 22. Glenn-Colusa Irrigation District is a governmental agency.

Appellant in further support of her position that the doctrine of sovereign immunity has no application to the maintenance of a nuisance by the sovereign when the sovereign is acting in a governmental capacity cites the following cases: Bloom v. City and County of San Francisco, 64 Cal. 503, 3 P. 129; Perkins v. Blauth, 163 Cal. 782, 127 P. 50; Davie v. Board of Regents, 66 Cal.App. 693, 227 P. 243; and Madison v. City and County of San Francisco, 106 Cal.App.2d 232, 234 P.2d 995, 236 P.2d 141. These cases were not decided upon the issue of nuisance.

The Bloom case, supra, was based upon a cause of action against the City and County Hospital of San Francisco for conducting refuse over land of the plaintiff through a trough, which, being defective and rotten, burst and discharged the contents over plaintiff's premises. The complaint alleged that though often notified through its Board of Supervisors, the defendant neglected and refused to abate the nuisance, and that by reason thereof plaintiff and his son became sick and suffered pain and expense and loss of time, and they demanded damages. The jury brought in a general verdict in favor of plaintiff for $1,800. The Supreme Court sustained the judgment on the ground that ‘the city and county of San Francisco had such proprietorship of the city and county hospital as rendered it liable for damages in the case as presented in the transcript.’ (Emphasis added.)

While the ‘nuisance in the Bloom case also arose from negligent operations,’ the case ‘was not decided on the ground of governmental nuisance. It was expressly based on the city's ‘proprietorship.” Beard v. City and County of San Francisco, 79 Cal.App.2d 753, 756–757, 180 P.2d 744, 746; see also Chafor v. City of Long Beach, 174 Cal. 478, 487, 163 P. 670, L.R.A.1917E, 685.

The case of Perkins v. Blauth, supra, next cited by appellant, was clearly decided upon the theory of inverse condemnation and not upon any theory of liability for nuisance in and of itself. As stated by the court at page 789 of 163 Cal., at page 53 of 127 P.:

‘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.’

We find no similar factual case in the California reported cases to support appellant's contention.

Mr. Prosser, in his work on Torts at page 779, in treating the subject of municipal immunities, states:

‘One anomaly is the generally accepted view that the municipality is liable if it can be found to have created or maintained a nuisance, even though ‘governmental’ function. The origin ‘government’ function. The origin of this seems to be found in the idea that the creation of a private nuisance amounted to a taking of land without compensation, or that the city, as a landowner, was necessarily a proprietor, and subject to the responsibilities of one toward other landowners. If this was the explanation, it was soon lost to sight when the principle was extended to public nuisances where neither consideration is involved. Since liability for nuisance rests in many cases upon nothing more than negligence, for which in theory the municipality is not liable, the result has been a rather hopeless attempt to distinguish between the two, which has added confusion to the law of both nuisance and municipal corporations. It seems reasonable to say that there is no sound reason behind the distinction itself, and that resort to the more or less undefined concept of nuisance is merely one method by which the courts have retreated from municipal nonliability.'

Appellant next contends that the State Legislature by enacting Water Code sections 22725 to 22732 created liability of irrigation districts for dangerous or defective conditions. We do not believe this to be so. We think that counsel for respondents in their brief have correctly interpreted the meaning of the above Water Code sections. A careful examination of the various sections in question clearly reveals that section 22727 does not create liability against an irrigation district itself acting in a governmental capacity, but only as against the officers, employees and agents of said district. Section 22725 is headed ‘Liability for damage resulting from operation of district or from negligence or misconduct of officers or employees.’ Section 22726 is headed ‘Liability for negligence of agent or employee: Notice of inefficiency or incompetency.’ It is to be noted that both of these sections deal with the subject of liability. Section 22727, the section upon which appellant relies as creating a new tortious liability against an irrigation district is entitled ‘Claim for damages: Form and filing: Service on secretary.’ This section is clearly only procedural in nature. Upon examination of the three sections together, it seems clear that the legislature in the first two sections intended to delineate liability and in the third section to implement the liability so delineated. Sections 22728 and 22729 carry forward the legislative intent developed in the previous sections by specifying the necessary content of a claim filed pursuant to section 22727 and make compliance a precedent condition to suit. Upon a careful examination of these Water Code sections, therefore, it is quite apparent that section 22727 upon which appellant relies was never intended to create any new liability, but was enacted as a simple procedural condition precedent to liability under the prior sections.

The next two following sections of the Water Code not only substantiate the conclusions set forth above, but section 22731 states in so many words the legislative intent as to the possible creation of liability by the preceding sections.

Section 22730 holds that: ‘When an officer of a district is held liable for any act or omission done or omitted in his official capacity and any judgment is rendered thereon, the district shall pay the judgment without obligation for repayment by the officer.’

Section 22731 is entitled ‘Construction of article as creating liability.’ It provides: ‘Nothing in the preceding portion of this article shall be construed as creating any liability except as provided in Section 22730 unless it would have existed regardless of this article.’

Appellant makes reference to the fact that section 22732 provides that a district is authorized to carry insurance to cover any liability of the district or its officers. Mention of this section was apparently made to create the inference that the districts themselves are liable for tortious actions while acting in a purely governmental capacity. As we have seen, such is not the case. Section 22732 allows a district to carry insurance to cover any liability of the district for tortious causes of action when the district is acting or operating in a ‘proprietary’ capacity, or to cover a district's liability under a proper cause of action based upon inverse condemnation, or to cover its liability to respond to a judgment against its agents.

In view of the fact that an irrigation district acting in a governmental capacity was immune from suits sounding in tort prior to enactment of these Water Code sections in 1935, and in view of the further fact that Water Code section 22731 states that nothing in this article shall create a new liability except as provided in section 22730, which section only provides for the payment by the district of any judgment obtained against an officer, it seems abundantly clear from the wording of the statute itself that the legislature did not intend by enacting Water Code sections 22725 et seq., to impose any new liability upon irrigation districts acting in a governmental capacity for suits sounding in tort.

Furthermore, in the case of Powers Farms v. Consolidated Irrigation District, 19 Cal.2d 123, 127, 119 P.2d 717, 720, where the court was considering the Irrigation Districts Liability Law (Stats.1935, p. 2250; Deering's Gen.Laws, Vol. 1, p. 1932, act 3886l, sec. 2), the predecessor to the sections of the Water Code here in question, it is stated:

‘Section 3 imposes a limited liability on the district by obligating it to pay certain judgments against its officers. This, according to Section 4, is the only new liability created by the act.’

Appellant's contention that Water Code sections 22725 et seq., establish a statutory cause of action in tort against an irrigation district while it is operating in a governmental capacity, as well as against its directors, officers and employees, is also refuted by examination of Government Code sections 1950 et seq., and Government Code sections 53050 et seq. Sections 1950 et seq., of the Government Code dealing with liability of public officers present statutes practically identical with those found in Water Code sections 22725 et seq. Sections 53050 et seq., of the Government Code are sections dealing with and relating to the tort liability of local agencies. These sections definitely refer to the liability of the ‘local agency,’ and make no mention of any liability of the directors, officers or employees of said local agency. It seems quite clear upon viewing and construing these three sets of sections together, Water Code sections 22725 et seq., Government Code sections 1950 et seq., and Government Code sections 53050 et seq., that the first two sets of sections relate only to the liability of directors, officers and employees of the two types of sovereigns, while the third section delineates liability of the local agency or sovereignty itself. Certainly, if the legislature had intended to create tort liability against an irrigation district itself while the district was operating in a governmental capacity, it would have used language similar to that expressed in sections 53050 et seq., of the Government Code imposing liability upon the sovereign, rather than using language similar to Government Code sections 1950 et seq., which impose liability upon the officers only.

We conclude that there is no merit in any of appellant's contentions.

The order sustaining defendant Glenn-Colusa Irrigation District's Demurrer to plaintiff's second amended complaint, the judgment in favor of said district and the order denying plaintiff's motion to set aside said judgment are all affirmed.

WARNE, Justice pro tem.

VAN DYKE, P. J., and PEEK, J., concur.

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