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

R. Arthur BELLMAN, as Administrator of the Estate of Bernard R. Maybeck, deceased, and R. Arthur Bellman, as Executor of the Estate of Annie White Maybeck, Deceased, Plaintiffs and Appellants, v. COUNTY OF CONTRA COSTA, Victor W. Sauer, Director of Public Works and Road Commissioner of the County of Contra Costa, Defendants and Respondents. *

Civ. 18394.

Decided: December 18, 1959

R. Arthur Bellman, Berkeley, for appellants and in pro. per. Carlson, Collins, Gordon & Bold, Dean S. Ormsby, Martinez, for respondents.

Since the one year limitation of Government Code sections 29702 and 29704 applies to claims for damages in inverse condemnation, and since appellants filed no such claim until February 5, 1957, appellants cannot recover damages caused by subsidence resulting from respondent county's destruction of lateral support which occurred prior to February 5, 1956.

Bernard and Annie Maybeck owned real property contiguous to a county road. From August to December of 1952 respondent county widened its road, which necessitated cutting laterally into the adjoining land from nine to 27 feet and excavating to a 10 to 15 foot depth. Respondent claimed the cut was on county land; appellants contended that it was on a county-held easement.

Two slides, adversely affecting appellants' property, occurred. The first took place in the rainy season of 1952–53; the second and more serious in 1955. Prior to February 1955, Mrs. Gannon, the daughter of the Maybecks, observed that the dirt extended ‘two-thirds of the way across the road.’ The cause of the slide, according to civil engineer Swafford, expert in the field of drainage, lay in the removal of lateral support in the widening of the road. Although the county first erected a retaining bin wall and later installed hydrauger pipes, the wall itself is ‘rolling slowly towards the street’ and the slide at the time of trial continued. The prohibitive cost of approximately $14,000 to erect an effective retaining wall destroys the market value of the property in its present condition.

On February 5, 1957, appellants filed with the County Board of Supervisors their claim for damages; on February 13, 1957, the Board rejected the claim. Appellants filed this action on March 12, 1957. Because of appellants' failure, prior to February 5, 1957, to present the claim to the County Board of Supervisors, pursuant to sections 29702 and 29704 of the Government Code, the trial court granted respondents' motion for nonsuit. Appellant Bellman, as administrator of the Estate of Bernard Maybeck, and as executor of the Estate of Annie Maybeck, appeals from the judgment.

We first consider the crucial issue of whether the statutory filing is required in a case of inverse possession for damages. Two decisions of the District Court of Appeal illuminate this problem; despite appellants' contention that they have been impliedly overruled by the Supreme Court, we shall point out that they still state the applicable rule.

Government Code sections 29702 and 29704 frame the conditions precedent to a claim against a county. Section 29704 reads in part: ‘Any claim against the county * * * payable out of any public fund under the control of the board, whether founded upon contract, express or implied, or upon any act or omission of the county * * * shall be presented to the board before any suit may be brought thereon.’ Section 29702 provides: ‘A claim shall be filed within a year after the last item accrued.’

The predecessor provisions to these sections, section 4075 of the Political Code, read in part: ‘The board of supervisors must not * * * allow any claim or bill against the county * * * unless the same be * * * presented and filed with the clerk of the board * * * within a year after the last item of the account or claim accrued. * * * All claims being against any county * * * whether such claim be founded upon contract, express or implied, or upon any act or omission of the county * * * shall be presented to the board of supervisors as herein provided before any suit may be brought on any such claim * * *.’ The similarity between this section 4075 and sections 29702 and 29704 of the present Government Code renders this court's prior analysis of section 4075 most persuasive.

This court, in a decision written by Justice Peters, in Veterans' Welfare Board v. City of Oakland, 1946, 74 Cal.App.2d 818, 169 P.2d 1000, held that section 4075 applied to suits of inverse condemnation against a county. In that case in August, 1935, the counties of Alameda and Contra Costa, among other defendants, while engaged in the construction of a tunnel between the two counties, excavated land adjoining plaintiffs' property. The property first suffered damage on March 5, 1940, when it commenced to slide into the excavation. On October 20, 1941, and May 14, 1943, plaintiffs filed their original and first amended complaint, respectively, on the theory that defendants had destroyed their lateral support. Defendants demurred to the first amended complaint because of plaintiffs' failure to allege a timely filing of their claim with defendant counties. Plaintiffs moved to file a second amended complaint prior to the hearing of the demurrer. Sustaining the demurrers the court granted leave to amend but simultaneously denied the motion to file the second amended complaint; plaintiff refused to amend other than as proposed in the second amended complaint, and judgment for defendants followed.

In affirming the trial court as to the defendant counties, this court stated: ‘The second count of the first amended complaint * * * is based upon the theory that defendants' acts amounted to a taking and damaging of plaintiffs' property without payment of compensation and without due process.’ (74 Cal.App.2d at page 825, 169 P.2d at page 1005.) ‘There is [a] claim statute applicable to counties alone that clearly applies whether the action be one for a damaging or for a taking. Section 4075 of the Political Code was amended in 1931 to provide in part: ‘All claims against any county * * * whether such claim be founded upon contract, express or implied, or upon any act or omission of the county * * * shall be presented to the board of supervisors as herein provided * * *.’ * * * It is quite clear that this claim statute is broad enough to include inverse condemnation cases within its terms.' (74 Cal.App.2d at pages 827–828, 169 P.2d at page 1007.)

Rhoda v. County of Alameda, 1933, 134 Cal.App. 726, 26 P.2d 691, is another and earlier decision which takes the same position. Here plaintiffs sued for damages to property ‘in the city of Alameda by reason of the removal of the Webster street bridge across the Oakland estuary and the substitution of a tube under said estuary * * *.’ (134 Cal.App. at page 728, 26 P.2d at page 692.) Plaintiffs filed no claim under sections 4075 or 4078 of the Political Code. The court said the section ‘is broad enough to require the presentation of a claim for the damages herein sued for as a condition precedent to suit.’ (134 Cal.App. at page 734, 26 P.2d at page 695.)

Although we have been somewhat troubled by the language of the Supreme Court in Wilson v. Beville, 1957, 47 Cal.2d 852, 306 P.2d 789, we have concluded that the case does not overrule these previous decisions on the point involved here. It does clearly establish the preemptive domain of the limitation statutes of the state over those of city charter provisions in cases of inverse condemnation. There the City of Los Angeles by virtue of an eminent domain action acquired an easement across certain land for a public street; the city thereupon took possession of this land. The city, however, failed to join plaintiff who had acquired a lien on the property prior to the time the city filed its action of condemnation. Plaintiff subsequently acquired title to the property by virtue of his lien, but the trial court held the property subject to the easement. On appeal plaintiff contended that the easement did not encumber his land but that, if it did, he should be compensated under the doctrine of inverse condemnation.

The court held the filing requirements of the City Charter invalid on the bases of preemption of the field by the State and of equal protection of the laws. In sustaining plaintiff's claim for compensation the Supreme Court stated: ‘In inverse condemnation the property owner is forced to prosecute proceedings otherwise he is remediless. [Citation.] His action may be to recover the property and for preventive relief in that connection. [Citation.] It is thus not a demand for money within the charter provisions. It becomes so only because the city invokes the intervention of its public use as a defense to preventive relief and makes the property owner take compensation instead of his property. By wrongfully failing to follow the eminent domain procedure the city forces the property owner to take the initiative. It is still an eminent domain proceeding and claims are not necessary in such proceedings.’ (47 Cal.2d at page 862, 306 P.2d at page 794.)

The statement in the opinion that inverse condemnation ‘is still an eminent domain proceeding and claims are not necessary in such proceedings.’ (47 Cal.2d at page 862, 306 P.2d at page 795) prompts the question asked by Van Alstyne in ‘Claims Against Public Entities: Chaos in California Law’ (1959), 6 U.C.L.A. Law Rev. 205–268, at 236, ‘If the Los Angeles Charter (by the interpretation expressed in the last ground of decision) is inapplicable to inverse condemnation claims, would it not follow that other claims provisions relating to money and damage claims are equally inapplicable to such claims? If so, cases affirming the applicability to such claims of sections 29704 and of 53052 of the Government Code are no longer good law.’

Three considerations impel the conclusion that the court did not intend its language to be a sweeping confiscation of past interpretation. In the first place, as we have stated, the decision itself announces the proposition that since eminent domain is a matter of statewide concern, the State Legislature has occupied, and controls, the field of claim statutes. In so ruling the court quotes with approval Wilkes v. City & County of San Francisco, 1941, 44 Cal.App.2d 393, 112 P.2d 759: “The right to fix the time within which the claim may be filed is purely a legislative matter.” (47 Cal.2d at page 858, 306 P.2d at page 792) and proceeds to state, ‘Assuming a charter may require the presentment of a claim, it cannot enact statutes of limitations. That is a matter of statewide concern.’ (47 Cal.2d at page 861, 306 P.2d at page 794.) Here we probe section 29704 which is, indeed, a legislative enactment of statewide concern and application, which apparently finds sanction in this very language quoted in Wilson. Moreover, the court makes a verbal and approving bow to the overall state law of eminent domain in stating, ‘[T]he fact still remains that there is a complete system of state law for eminent domain proceedings.’ (47 Cal.2d at page 862, 306 P.2d at page 795.) Nowhere does the court deny or even constrict the power of the state to enact limitation or claim statutes as to inverse condemnation or eminent domain. See Vinnicombe v. State of California, 1959, 172 Cal.App.2d 54, 341 P.2d 705.

In the second place, we do not believe the court meant sub silentio to overrule the Rhoda and Veterans' Welfare cases and to establish indirectly the novel concept that state claim statutes are not applicable to inverse condemnation suits arising from damages inflicted upon the claimant. The court cites Rhoda for the proposition that claims statutes are procedural; the court does not disapprove it. The possibility that Rhoda was overruled becomes all the more remote in light of the fact that the unusually able and learned Justice Dooling, the writer of the Rhoda opinion, sat pro tem. upon the court rendering Wilson.

Finally, the facts of Wilson involved a taking and not a damaging of property. The taking is an affirmative act of the sovereign by the invocation of a special procedure, which itself provides for protection against adverse claims by the deposit of sums in court. Code Civ.Proc., § 1252. In such a procedure notice to the sovereign of its own action by the filing of a claim becomes meaningless. But notice in an inverse condemnation case involving damage does perform the function of realistically notifying the state body inflicting the damage either to rectify the matter or accept responsibility for the consequences. See: Powers Farms v. Consolidated Irr.Dist., 1941, 19 Cal.2d 123, 128, 119 P.2d 717. Wilson garbs this realistic difference between damaging and taking in the theoretical explanation that the proceeding in inverse condemnation for the taking is ‘not a demand for money * * *. It becomes so only because the city invokes the intervention of its public use as a defense * * * and makes the property owner take compensation instead of his property.’ (47 Cal.2d at page 862, 306 P.2d at page 795.) But the inverse condemnation for damages is primarily a ‘demand for money,’ not a monetary by-product of an appropriated title.

Van Alstyne's comment, if limited to statutory claims provisions, suggests the basic position we have taken here: ‘On the other hand, in view of the fact that Wilson was in fact a case of a ‘taking’, should not the broad language of the opinion be restricted to similar facts, thereby not impairing the authority of cases holding charter and statutory claims provisions applicable to inverse condemnation for a ‘damaging’ of property?' (P. 237.)

Appellant contends that we must ‘distinguish between the case where there was a taking by a public authority with the interposition of some further act (such as an overflow of flood water from a drainage ditch, or a tort case) as against the mere taking of property, such as a right of access or the right of lateral support with no entry upon the lands of the plaintiff.’ Plaintiff rests this dichotomy upon language in Merritt Land Co. v. City of Oakland, 1957, 154 Cal.App.2d 717, 316 P.2d 672, which speaks of ‘damages' which ‘accrued directly from the construction of the improvement.’ Not only does appellant contend Justice Dooling in Merritt thus inferentially overruled his previous decision in Rhoda, but appellant also urges that this new duality restricts Veterans' Welfare to a case in which a further act or tort intervenes.

The language of Merritt does not indicate that it reaches so far. That case, an action ‘admittedly one in inverse condemnation,’ adjudicated the effect of Government Code section 53052, which requires the filing of a claim when “a person has been injured or property damaged as a result of the dangerous or defective condition of public property * * *.” Since the court found the damage there resulted from ‘the position of the structure as built, not by any dangerous or defective feature thereof’ (154 Cal.App.2d at page 718, 316 P.2d at page 673), it held the filing requirements did not apply. Since section 53052 carves out of the broader scope of section 29702, which we construe, a narrow field, we cannot conclude a decision passing only upon this limited provision meant by implication to impose a revolutionary constriction of the wider and different statute which was neither before the court nor mentioned in its decision.

Since Government Code sections 29702 and 29704 are then applicable, the question of whether the three year statute of limitations or the five year rule of prescription governs becomes academic. Section 29702 provides ‘[a] claim shall be filed within a year after the last item accrued.’ We must then determine if any items of recoverable damage ‘accrue’ within the period of one year prior to the instant filing within the county.

A cause of action here for destruction of the lateral support, protected in Civil Code section 832, emanates not from the wrongful excavation but from the subsidence. Conlin v. Coyne, 1937, 19 Cal.App.2d 78, 89, 64 P.2d 1123; Veterans' Welfare Board v. City of Oakland, 1946, 74 Cal.App.2d 818, 830, 169 P.2d 1000. As stated by Powell, ‘[W]ith each new subsidence a new cause of action comes into being.’ 5 Powell on Real Property, § 699, p. 289. Separate and distinct liability flows from each subsidence. The Restatement expresses the rule in this language: ‘The statute of limitations does not begin to run until a subsidence occurs, and it runs then only for that subsidence. The actor continues subject to liability for a further distinct subsidence although it flows from the same act.’ 4 Restatement Torts, § 817, p. 193. According to 1 Am.Jur., Adjoining Land Owners, section 34, page 526, ‘Inasmuch as the cause of action arises from the fact that actual damage has resulted from the excavation, and not from the mere fact that the lateral support has been withdrawn, it follows logically that successive actions may be brought for each falling or slipping of the soil, even though only one excavation was made. Such is the general rule * * *.’ See 3 Sedgwick, Damages (9th ed., 1891), § 925, p. 1904.

The Maryland case of Easter v. Dundalk Holding Co., 1952, 199 Md. 324, 86 A.2d 477, 479, in examining the right to damages for loss of lateral support, points out that the above-stated rule concurs with the ‘later English cases [which] hold that recovery may be had for each successive damage ‘as and when it occurs', whether the damage be recurrent or continuous' and general. Although the Maryland court found no substantial subsidence in the case before it and therefore awarded no damages, it followed the general rule as above stated.

The rationalization for the origin of a new cause of action in each subsidence finds support in this case. Since appellants filed no claim with the county board until February 5, 1957, they can collect no damages for the slides of the winters 1952–53 and of 1955. Any subsequent slippage or movement that may have occurred within the period of one year prior to the filing of the claim and until the date of suit would compose a new and separate cause of action. To refuse recovery for such subsidence, if it occurred, by merging all subsidence into one fictitious totality would distort the realities of the situation and work inequity upon the damaged party. Hence, we submit, the rule is sound in general and equitable in instant application.

Although the complaint alleges that plaintiffs' real property ‘on or about Mar[ch] 1’ and ‘ever since has continued to and does now crack, subside and slip’ and although certain of the testimony described the continuation of the slippage to the date of trial, the facts do not disclose to what extent that movement occurred, if at all, during the period from one year before the date of the filing of the claim to the date of trial. If such subsidence occurred, there is no showing as to whether or not it caused any damage to appellants. Upon retrial, this issue can be developed and determined in accordance with the facts.

We reverse the judgment of nonsuit with instructions to the trial court to proceed in accordance with this opinion.

TOBRINER, Justice.

BRAY, P. J., and FOLEY, J. pro tem., concur.

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