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

COUNTY OF MARIN, a political subdivision of the State of California, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR COUNTY OF MARIN, Respondent.*

Civ. 18885.

Decided: September 29, 1959

Leland H. Jordan, County Counsel, Marin County, San Rafael, for petitioner. Samuel W. Gardiner, San Rafael, for respondent.

Petition for writs of prohibition and certiorari to restrain the Marin County Superior Court from proceeding with two eminent domain actions brought by Marin Municipal Water District against the County of Marin to condemn certain county roads for a dam and reservoir purposes and to review its proceedings.

Question Presented.

Are county roads immune from condemnation by a municipal water district?


As a part of its county road system Marin County maintains two federal and secondary roads in the Nicasio Valley. As to these roads the county owns a small portion in fee and has easements for county road purposes in the balance. The district desires to construct a dam and reservoir in that valley which will inundate approximately 3.46 miles of said roads. The district proposes to reconstruct these roads in new locations, portions of the new roads to traverse the open waters of the reservoir on a dike, the other portions to traverse the hills surrounding the reservoir. Apparently the county opposes both the proposed relocations and the type of roads to be constructed. The district proposes to build the relocated roads to better standards than the existing roads; that county insists that they be ‘ultimate’ modern highways. The trial court has issued an order of immediate possession, placing the district in possession of the property involved, and requiring it to relocate the traffic, replacing the county roads which are to be inundated. The court would, at the trial, determine the final terms and conditions (including the final location) of these roads. Motions by both parties for summary judgment were denied.1

Are the County Roads Immune?

Section 1240, Code of Civil Procedure, states what property may be taken in eminent domain. Subdivision 3 relates to the condemnation of property already appropriated to public use. Generally it provides that property appropriated to a public use may be taken for ‘a more necessary public use.’ However, the last sentence of the subdivision provides: ‘But property appropriated to the use of any county, city and county, incorporated city or town, or municipal water district, may not be taken by any other county, city and county, incorporated city or town, or municipal water district, while such property is so appropriated and used for the public purposes for which it has been so appropriated.’ (Emphasis added.)

Section 1241, Code of Civil Procedure, sets forth the prerequisites which must appear before the power of eminent domain may be exercised. Subdivision 3 deals with property already appropriated to public use and contains similar language to that in section 1240, subdivision 3, to the effect that if the property is already appropriated to public use, it must appear that the proposed use is a more necessary public use, and then states: ‘But private property appropriated to the use of any county * * * may not be taken by any * * * water district, while such property is so appropriated and used for the public purposes for which it has been so appropriated.’

There are two cases which specifically discuss the quoted subdivisions, one applying them directly, the other indirectly. The one applying them directly is Mono Power Co. v. City of Los Angeles, 9 Cir., 1922, 284 F. 784. There the city of Los Angeles had brought an action against the Southern Sierras Power Company, a corporation, to condemn certain land, water rights and rights of way owned by the latter in the Owens river gorge in Mono County and used by it to generate and deliver power to more than a dozen cities, towns and water districts in southern California (not including Los Angeles). The corporation being a citizen of Wyoming, the case was tried in the federal court. The city desired these properties to generate and deliver power to the city of Los Angeles and alleged that this was a more public use than that to which the properties were then appropriated. The trial court so found and condemned the properties to the city. On appeal, the court reversed the judgment, holding that the properties of the corporation were appropriated to the public use, that the corporation was a public utility, and that the inhibition in subdivisions 3 applied to such an appropriation by a private corporation as well as an appropriation by a county, city and county, etc. The court stated that in amending the sections in 1913 to add the inhibitions above quoted the Legislature had precisely in mind that the city of Los Angeles wanted to take the water being used by the corporation, to Los Angeles for use in the city of Los Angeles, “a use proposed by the city of Los Angeles which is absolutely inconsistent with the continuance of any use of the property for any utility purpose by the defendant.” At page 794. The court then flatly held that by the amendments ‘it was the purpose of the Legislature to provide that property of a private corporation, as well as property of a municipal corporation, appropriated to the public use in one county, may not be appropriated to a public use by any other county, city and county, while such property is so appropriated and used.’ At page 795. It stated that eminent domain proceedings by the city against the property of the public utility could not be maintained, and ordered the city's complaint dismissed.

The second case discussing the subdivisions is East Bay Municipal Utility Dist. v. City of Lodi, 120 Cal.App. 740, 8 P.2d 532. There the court refused to apply the inhibition in the subdivisions holding that for the property to be immune from condemnation for another public purpose, the condemnee must not only have appropriated the property for a public purpose but be actually using it or prepared to use it within a reasonable time, and held that Lodi was neither using nor prepared to use the water rights which the district sought to condemn. The court then stated that the law of California was that property appropriated to and actually used for public purposes by one municipality could not be taken by condemnation for the purposes of another municipality, but pointed out that the circumstances of Lodi's failure to use or to be prepared to use the water rights distinguished the case from those so holding.

To avoid the application of the immunity of sections 1240 and 1241, the the district contends the county roads are not ‘appropriated to the use of any county.’ This contention is based upon the fact that county roads and streets of a city belong to the people of the state. The easement in county roads is in the state and the county is merely the agent or trustee for the state, committed to the duty of maintaining the highway for the use of the public. See Las Posas Water Co. v. County of Ventura, 97 Cal.App. 296, 301, 275 P. 817; San Francisco-Oakland Terminal Railways v. County of Alameda, 66 Cal.App. 77, 225 P. 304; Ex parte Daniels, 183 Cal. 636, 192 P. 442, 21 A.L.R. 1172. Unlike a city, a county does not exercise municipal powers and functions or hold any property independently of the state. A county is a political subdivision of the state (Const. art. XI, § 1; Gov.Code, § 23000) and exercises within its boundary the sovereignty of the state. Griffin v. County of Colusa, 1941, 44 Cal.App.2d 915, 113 P.2d 270. A county acts independently of the local population and ‘holds its property on behalf of the state for governmental purposes.’ Boss v. Lewis, 1917, 33 Cal.App. 792, 796, 166 P. 843, 844. While the legal title is in the county, it is a title held in trust for the whole public. Reclamation District No. 1500 v. Superior Court, 171 Cal. 672, 679, 154 P. 845. In County of Los Angeles v. Graves, 210 Cal. 21, 25, 290 P. 444, 445, the court stated: ‘In the absence of constitutional restrictions, the Legislature has full control of the property so held by the counties as agencies of the state.’ Under that control the Legislature has determined that for eminent domain purposes, the counties may obtain and grant title, even though that title be in trust for the state. Section 1238, subdivision 3, gives counties the power to condemn property for building roads, etc.

Section 1240, subdivision 2, states that ‘Lands' belonging to a county, not appropriated to some public use, may be taken. Subdivision 3 provides that if property appropriated by private corporations or individuals is used by a county for a highway, or for the same public use for which the private owners are using it, the public use by the county shall be deemed the more necessary use; and where the use of property appropriated in private ownership but used for a public purpose is consistent with the continuance of such use with the use for which a county desires it, then the county may take the right to use the property in common with the existing use. Then follows the immunity of ‘property appropriated to the use of any county.’

These references to lands and property belonging to a county as well as other references in sections 1240 and 1241 to the right of a county to take them, indicates that the Legislature for all purposes of eminent domain considers that the county's interest is something which can be acquired by it, or taken from it.

In Marin County Water Co. v. County of Marin, 1904, 145 Cal. 586, 79 P. 282, the water company engaged in the public use of supplying water to the inhabitants of Marin County sought to condemn for dam and reservoir purposes the county's easement in a certain road which crossed land which the water company owned in fee. Section 1240 at that time did not contain the immunity provision we have been discussing. However, as now, its subdivision 2 stated, ‘Lands belonging to * * * any county * * * not appropriated to’ a public use could be taken. Subdivision 3, also as now (except for the new immunity clause) provided that there could be taken property of a private corporation or individual appropriated to public use if for a more necessary public use. In holding, contrary to the decision of the trial court, that condemnation did lie, the court intimated (exactly what it did hold is not clear) that because the county merely had an easement, the land belonged to the water company and hence it was not ‘Lands belonging to * * * any county’ under subdivision 2 but was land belonging to a private corporation appropriated to a public use which under subdivision 3 could be taken for a more necessary purpose.

It appears from sections 1240 and 1241 that the Legislature intended that so far as a county road is concerned it could not hold up a condemnation for a higher use. Necessarily the Legislature must have had in mind that ‘A public road or highway through unincorporated territory is generally a public way dedicated to the public use but not owned as such by the county’ (San Francisco-Oakland Terminal Railways v. County of Alameda, supra, 66 Cal.App. 77, 81, 225 P. 304, 305) and ‘In strictness, all public highways belong to the state, which holds them for public use subject to legislative control.’ People v. County of Marin, 103 Cal. 223, 232, 37 P. 203, 206, 26 L.R.A. 659. Therefore it is significant that in the two sections the Legislature did not make the immunity clause applicable to state property. Thus, while ‘property appropriated to the use of any county, city and county, incorporated city or town, or municipal water district,’ is immune from appropriation, it is only ‘Lands belonging to this State * * * appropriated to some public use’ which may not be condemned for a superior use. (Emphasis added.) The decision in Marin County Water Co. v. County of Marin, supra, 145 Cal. 586, 79 P. 282, was in effect when in 1913 the immunity clauses were adopted. As the latter case held, in effect, that the word ‘Lands' did not include highway easements, had the Legislature intended to overcome said decision, it would have included the state in the immunity clause. In People v. County of Marin, supra, 103 Cal. 223, 37 P. 203, 26 L.R.A. 659, the state sought to enjoin county officers from interfering with the use and control of a public road running through San Quentin Prison. The state had acquired the underlying fee for prison purposes after the road was established and desired to get rid of the road. The court held that the fee title and easement did not merge because the easement was held by the state as trustee for the general public of the state, whereas it held the fee in a proprietary capacity or by purchase. Thus there is a distinction between property held by the county for road purposes and property held by the county primarily for county purposes, such as a court house, county administrative building, county corporation yards, etc. County roads are primarily for state use and it makes no difference whether the legal title held by the county to the roadway2 is by way of easement or fee. See Las Posas Water Co. v. County of Ventura, supra, 97 Cal.App. 296, 301, 275 P. 817, 819: ‘* * * the highways do not belong to the county, but to the people of the state. * * * By ‘highways' in this connection is meant the easement, not the fee. The state does not hold such easements in the same right as the title to land which it has purchased. On the contrary, it holds them in trust for the public use and consequently there is no merger of the easement in the servient tenement, even when the state acquires title to the fee.’ (Emphasis added.)

In Ex parte Daniels, supra, 183 Cal. 636, 192 P. 442, 21 A.L.R. 1172, the court pointed out that the streets of a city belong to the people of the state and every citizen of the state has a right to their use, subject, of course, to legislative control, and held, therefore, that the regulation of traffic on those streets was not a municipal affair but a matter of statewide concern. The same thing applies to a county road even to a greater degree because the county is a state agency, whereas a city is an independent political agency. In the matter of the county roads there is a state instrumentality involved although the state has delegated portions of its control to the boards of supervisors; therefore, a county road is not a ‘property appropriated to the use of any county.’ Hence, if a court determines pursuant to subdivision 3 of section 1240 that a reservoir is a more necessary use than the highway use, the power of condemnation exists and the property should be condemned. The court would then ‘have power to regulate and determine the place and manner of removing or relocating structures or improvements, or of enjoying the common use mentioned in subdivision 3 of Section 1240.’ Code Civ.Proc. § 1247a. In these days of a critical water situation in California it would be catastrophic to hold that under no conditions a county road could be required to give way to a reservoir. Thereby a small, seldom used county road could prevent a water district from building a vitally needed dam and reservoir.

Section 12 of the Municipal Water District Act (Stats.1951, ch. 62) provides that such a district shall have power ‘7. To have and exercise the right of eminent domain and in the manner provided by law for the condemnation of private property for public use, to take any property necessary to supply the district or any portion thereof with water, whether such property be already devoted to the same use or otherwise, and may condemn any existing water works or system, or any portion thereof, or any waters or water rights owned by any person, firm or private corporation. In proceedings relative to the exercise of such right, the district shall have all of the rights, powers and privileges of a city; * * *’. (Emphasis added.)

Section 19 of the above act provides: ‘* * * The right of way is hereby given, dedicated and set apart to locate, construct and maintain such works along and across any street or public highway and over and through any of the lands which are now or may be the property of this State, and to have the same rights and privileges appertaining thereto as have been or may be granted to cities within the State.’ (Emphasis added.)

While section 1240 is a general act giving water districts, among other public agencies, the power of eminent domain, here is a later act giving specific powers ‘to take any property * * * whether such property be already devoted to the same use or otherwise’ and ‘to locate, construct and maintain such works along and across any street or public highway and over and through any of the lands which are now or may be the property of this State * * *’. Is this not a legislative declaration that water districts have a paramount right to properties needed for their public use, whether such properties are or are not already in public use?

In East Bay Municipal Utility Dist. v. Railroad Commission, 194 Cal. 603, 229 P. 949, the utility district was held to have the right to condemn the facilities of the East Bay Water Company, a private company supplying water to the same cities which the district proposed to serve. The court further held that the immunity provisions of sections 1240 and 1241 did not apply as a municipal utility district was not one of the agencies there mentioned, but, said the court (194 Cal. at page 623, 229 P. at page 956), ‘assuming that the sections are broad enough to apply to petitioner, we cannot conclude that the declared purposes of the petitioner herein bring it within the prohibition of the Code sections referred to. It is here proposed to continue the use of the water to the same territory to which it has heretofore been appropriated. The territory and the peoples thereof are not to be disturbed in the use to which the water is now put and are to enjoy an uninterrupted use thereof, if the petitioner succeeds in its purpose. In other words, the change will result not in the disturbance of the use or appropriation of the water, but in the agency authorized by law to administer the trust.’

The effect of this decision was to hold that there was no ‘taking’ of property by the district. So in our case, there is to be no abandonment of the roads; they are merely to be relocated. The public use will continue in a different location, so in the sense in which there was no ‘taking’ in the last mentioned case there is no ‘taking’ here.

In City of San Diego v. Cuyamaca Water Co., 209 Cal. 152, 287 P. 496, the city sought to condemn certain lands of the water company which were being used by the company in connection with supplying water to certain municipalities. The court found that the city as successor to the pueblo of San Diego had a right to the diversion of all waters of the San Diego river which was superior and prior to the rights of any other municipality or private person. The court discussed the subdivisions involved in this case stating: ‘It is obvious that the amended sections of the Code of Civil Procedure were never intended to have application to such a situation as is thus in both instances presented, but that even if given the fullest effect of which the language of said amendment is susceptible could only have been designed to prevent one municipality or water district from seeking to acquire by condemnation and apply to new and other public uses the property of another municipality or water district which had already been appropriated and was being actually put by the latter to a public use, which, in point of right, was equal or prior to that of the municipality or water district seeking such condemnation.’ 209 Cal. at page 166, 287 P. at page 502. Although in the above case there was no relocation of the facilities involved, the court's statement as to the meaning of the amended subdivisions is equally applicable to the situation presented to this court.

In a situation like this where the vital interests of not only the people of Marin County but of the state as a whole are involved and where it is a matter of common knowledge that generally the need for water reservoirs and facilities far outweigh the necessity for a county road to be always maintained in a particular position and not moved, the court, as a court of equity (and this is an equitable proceeding), should, if possible, construe sections 1240 and 1241 from the standpoint of the greatest good for the greatest number. While, of course, this court has no power to change the meaning of these sections as intended by the Legislature, nevertheless the interpretation of such an ambiguous phrase and word as ‘property appropriated to the use of any county’ and ‘taken,’ as applied to the situation here, should be from the viewpoint of the best interests of the public as a whole rather than of a small segment of it, particularly when the problem resolves itself, as it appears to do here, merely into a question of either a relocation of portions of county roads or a complete denial of the use of a reservoir site. The situation is somewhat analogous to that met by the courts after the adoption of article XIV, section 3, of the Constitution in 1928 which provided, in part, ‘that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable * * *’. In determining the meaning and effect of this section the ocurts held that it was ‘not only within the power, but it is the duty of the trial court, to work out, if possible, a physical solution, and if none is suggested by the parties to work out one independently of the parties.’ Rancho Santa Margarita v. Vail, 1938, 11 Cal.2d 501, 559, 81 P.2d 533, 562. In so doing the court in that case stated (11 Cal.2d at page 560, 81 P.2d at page 563) that ‘the trial court is sitting as a court of equity, and as such, possesses broad powers to see that justice is done in the case. The state has a definite interest in seeing that none of the valuable waters from any of the streams of the state should go to waste.’ Thus in City of Pasadena v. City of Alhambra, 1949, 33 Cal.2d 908, 207 P.2d 17, the trial court made an allocation of waters concerning which the majority opinion of the Supreme Court stated (33 Cal.2d at page 933, 207 P.2d at page 32): ‘Moreover, it seems probable that the solution adopted by the trial court will promote the best interests of the public, because a pro tanto reduction of the amount of water devoted to each present use would normally be less disruptive than total elimination of some of the uses' and which solution the minority opinion stated disregarded the principles of water law theretofore adopted in this state. See also City of Lodi v. East Bay Municipal Utility Dist., 1936, 7 Cal.2d 316, 60 P.2d 439; Rancho Santa Margarita v. Vail, supra, 11 Cal.2d 501, 81 P.2d 533, where article XIV, section 3 was interpreted from the standpoint of the general welfare.

The welfare of the County of Marin as well as the rights of the state as trustee for the people of the state are protected in the equitable decree of the trial court which provides for the determination of the final location of the replaced county roads and the terms and conditions of such relocation.

The petition for a writ of prohibition is denied and the alternative writ of prohibition is discharged. The orders under review are affirmed.


1.  Both parties agree that prohibition and certiorari are appropriate remedies. Moreover, because of the water situation in Marin County, they urge that appeal would be an inadequate remedy. See Northwestern Pac. R. Co. v. Superior Court, 34 Cal.2d 454, 211 P.2d 571.

2.  If it can be said that the legal title is in the county. Apparently the courts have hesitated to hold that the legal title to a county road is in the county. In County of Los Angeles v. Graves, supra, 210 Cal. 21, 25, 290 P. 444, 445, the court said: ‘If there be a legal title in the county, it is a title held in trust for the whole public,’ (emphasis added) and in Reclamation District No. 1500 v. Superior Court, supra, 171 Cal. 672, 679, 154 P. 845, 848, the court said: ‘* * * and if there be a legal title in the county, it is a title held in trust for the whole public.’ (Emphasis added.)

BRAY, Presiding Justice.

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

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