Reset A A Font size: Print

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

Donald HILDRE, et al., Plaintiffs and Appellants, v. IMPERIAL IRRIGATION DISTRICT, State of California, Defendants and Respondents.

Civ. 26211.

Decided: September 02, 1983

Sutherland & Gerber, El Centro, for plaintiffs and appellants. Robert F. Carlson, Sacramento, Sherman E. Hollingsworth, San Diego, and Dale Peterson, Los Angeles, for defendants and respondents.

Plaintiffs Donald F. Hildre and others holding interests in real property damaged during flooding in August 1977 appeal the judgment in favor of the State of California (State).   We hold the evidence construed in the light most favorable to the judgment establishes the State is liable in inverse condemnation when in improving a highway it failed to consider the effect of a defectively designed culvert crossing the highway.   We therefore reverse the judgment and instruct the trial court to enter judgment of liability in favor of the plaintiffs.

Factual and Procedural Background

The Evan Hewes Highway (highway) was built in 1926.   In 1944, the Imperial Irrigation District (District) completed the Barbara Worth Drain (drain) which formed a portion of its extensive irrigation and flood control network.   The District placed a culvert, a concrete pipe 36 inches in diameter through which water in the drain passed, at the point where the drain crossed the highway.   About a decade later (1955), the State improved the highway, making it an elevated divided highway and issued a permit to the District to extend the culvert.   The State relinquished the highway to Imperial County (County) in 1971.

In 1977 a tropical storm caused flood damage in Imperial County.   Twenty-one plaintiffs filed this action in May 1978 against the District, the County and the State seeking damages for the flooding on theories of negligence, inverse condemnation, nuisance and trespass.   The State's successful summary judgment motion was appealed and affirmed in Donald F. Hildre, et al. v. State of California, 4 Civil No. 18916 (unpub.;   Feb. 4, 1980) on the nuisance, trespass and negligence causes of action but reversed on the cause of action for inverse condemnation.   The court held the three-year limitation period of Code of Civil Procedure section 338, subdivision (2) applies and begins to run only when the damage is sufficiently appreciable to a reasonable person.   (Slip opn., at p. 6.)

Plaintiffs' theory of inverse condemnation was based upon the following events.   They alleged their damages were proximately caused by the design of the highway which the State constructed without properly considering the undersized culvert and the flooding effect of heavy rain.   Because of its inadequate size, the culvert became clogged and prevented the flow of additional water through it.   The highway and its embankment then acted as a dam obstructing the water from continuing to lower ground, forming a lake on the plaintiffs' property.

Before trial, plaintiffs settled with the County.   At the end of the trial,1 the court determined the State was “absolved” from liability.   Special findings were submitted to the jury for an advisory verdict on the liability of the District.   Based upon the jury's findings, the court found against the District on all causes of action and repeated its earlier ruling the State was not liable in inverse condemnation.   Before the trial on damages, plaintiffs settled with the District.   Plaintiffs' appeal is from the judgment in favor of the State.


 As a general rule, a public entity is liable in inverse condemnation for “any actual physical injury to real property proximately caused by the improvement as deliberately designed and constructed ․ whether foreseeable or not.”  (Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 263–264, 42 Cal.Rptr. 89, 398 P.2d 129.)   Although the parties tend to direct their arguments to the State's participation in the design of the culvert by delegating that design to the District (see Stoney Creek Orchards v. State of California (1970) 12 Cal.App.3d 903, 91 Cal.Rptr. 139), we believe the State's liability turns on a determination of the physical injury proximately caused by the State's designing and constructing the highway in 1955.   At that time, with the culvert in place the State had a duty to build the highway in a manner which would not cause damage to adjacent property.   Even assuming the State had no legal control over the District's acts, the State's liability to adjacent landowners remained constant.   When the State designed the elevated highway, it should have taken necessary steps to eliminate the risks associated with the inadequate culvert.   Whatever the solution, either through modifying the design of the highway or withholding the District's permit to extend the culvert unless the culvert was redesigned, the State cannot now assert immunity because plaintiffs' damages are also attributable to the District's failure to build a larger culvert.   Concurrent causation resulting in the District's liability is an insufficient legal excuse for the State to have ignored its design responsibilities.

 Anticipating the foregoing analysis, the State forcefully points to the trial court's factual finding the culvert was the sole proximate cause of the flooding.   That finding, however, can neither be reconciled with the court's finding the highway acted as a dam nor with physical reality.   In effect, the State asks us to consider the culvert alone removed from its physical surroundings.   The culvert, however, may not be viewed in a vacuum.   It was an integral part of the highway;  once it filled to capacity, the water backed up.   Had there been no highway and no embankment, the water would have escaped around the culvert to lower ground.   Although the experts disagreed about how much flooding would have occurred had the highway not been built, it was clearly established the highway caused some of the damage since the water could not continue to lower ground.   The trial court acknowledged this fact in finding the highway acted as a dam.   This finding, equivalent to a finding of concurrent causation of plaintiffs' damages, cannot be logically reconciled with the inconsistent finding the culvert was the sole proximate cause of the damage.2  We reverse the ruling the State is not liable.

 Where “the record clearly shows that only one judgment is proper under the law and undisputed facts and that a new trial would be a waste of effort” (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 546, p. 4487), an appellate court may reverse the judgment and direct the trial court to enter judgment in favor of a particular party.   Since the trial court did not rule until after all parties had presented their evidence, this is the proper disposition in this case.

 The State raised affirmative defenses asserting the construction of the highway was an exercise of the police power and it could not be liable because it had relinquished the highway to the County.   The State's police power defense is not supported by any fact in the record.  “[T]he ‘police power’ doctrine ‘[g]enerally ․ operates in the field of regulation,’ rendering ‘damages' occasioned by the adoption of administrative or legislative provisions noncompensable [citations];  this doctrine of noncompensable loss comes into play in connection with more direct ‘taking’ or ‘damaging’ of property only under ‘emergency’ conditions;  i.e., when damage to private property is inflicted by government ‘under the pressure of public necessity and to avert impending peril.’  [Citation.]  Recognizing that a broad interpretation of this doctrine of noncompensable loss would completely vitiate the constitutional requirement of just compensation [citation], the courts have narrowly circumscribed the types of emergency that will exempt the public entity from liability.”  (Holtz v. Superior Court (1970) 3 Cal.3d 296, 305, 90 Cal.Rptr. 345, 475 P.2d 441, fn. omitted.)   The State presented no evidence the construction of the highway was necessary to alleviate an emergency situation.   The ordinary construction of a highway is not an exercise of the police power.

 The State's second defense admitted the highway was a public use 3 but focused on the fact it had relinquished the highway to the County before the flooding occurred.   The State nonetheless remains liable as a matter of law.   Inverse condemnation is in effect an eminent domain proceeding initiated not by the public entity but by the condemnee.  (See Klopping v. City of Whittier (1972) 8 Cal.3d 39, 43, 104 Cal.Rptr. 1, 500 P.2d 1345.)   The State should have condemned the plaintiffs' land when it built the highway and cannot escape liability because of its failure to do so.4  Had the flooding occurred before the State relinquished the highway it would be liable.   Although the taking occurred when the flooding occurred, the conduct which caused the damage was the construction of the highway, not the storm.   Consequently, we conclude the State is liable for the damage to the plaintiffs' property and direct the court to enter judgment for the plaintiffs.5


Judgment reversed.   The trial court is directed to enter judgment for the plaintiffs in the liability phase of plaintiffs' inverse condemnation trial and for further proceedings consistent with this opinion.


1.   The court refused to allow the jury to determine the liability of the parties.   We do not address the correctness of this decision because we conclude the State is liable.

2.   The court apparently adopted the jury's finding the culvert's design and construction was the sole proximate cause of the flooding.   The court, however, did not permit the jury to consider the State's liability;  it simply requested an advisory determination of the District's liability.   The only facts the jury considered related to the effect of the storm.   The court asked the jury to allocate the fault between natural causes and the culvert's design.   The jury found the severity of the storm was not a concurring proximate cause of the damage.

3.   “The power of eminent domain may be exercised to acquire property only for a public use.”  (Code Civ.Proc., § 1240.010.)   In contrast, “[u]nder the police power, property is not taken for use by the public;  its use by private persons is regulated or prohibited where necessary for the public welfare.  [Citations.]”  (5 Witkin, Summary of Cal.Law (8th ed. 1974) Constitutional Law, § 439, p. 3738;  see also O'Hara v. Los Angeles County Flood Control Dist. (1941) 19 Cal.2d 61, 63, 119 P.2d 23.)

4.   In Olson v. County of Shasta (1970) 5 Cal.App.3d 336, 341, 85 Cal.Rptr. 77, the court rejected the plaintiffs' inverse condemnation theory seeking compensation for potential future flood damage:  “The very definition of a ‘taking’ requires an ‘act’ [citation], and the risk of future flooding is not an act.”   Here, though, plaintiffs seek damages for an act of past flooding.   Moreover, had the State properly condemned plaintiffs' properties or obtained a flooding easement in an eminent domain action, the plaintiffs would not be able to recover additional compensation unless they could demonstrate the original proceeding did not contemplate all reasonably foreseeable damages to their properties.  (See Mehl v. People ex rel. Dept. of Public Works (1975) 13 Cal.3d 710, 716, 119 Cal.Rptr. 625, 532 P.2d 489;  Reinking v. County of Orange (1970) 9 Cal.App.3d 1024, 1030, 88 Cal.Rptr. 695.)

5.   We do not address any issue relating to indemnification among the State, the County and the District.

WIENER, Associate Justice.

COLOGNE, Acting P.J., and LEWIS *, J., concur.