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CLEMENT v. RECLAMATION BOARD OF CALIFORNIA et al.
The present controversy arises out of the damage alleged to have been sustained by Clement as a result of the construction of the Colusa weir in the year 1932 as a part of the Sacramento River Flood Control Project.
The early history of flood control in the Sacramento valley shows that many of the orginal levees along the banks of the Sacramento river in the vicinity of the City of Colusa were erected and maintained by farmers some time prior to 1870. Progressively through the years the National Congress and the legislature of this state cooperated in endeavoring to work out a solution to their common problems in regard to flood control and reclamation. Their efforts culminated in the formation of the Sacramento-San Joaquin Drainage District with broad powers over all flood control matters relating to the Sacramento and San Joaquin rivers and their tributaries. Further reclamation work by individuals and districts was forbidden except as approved by that agency.
During the early years of such development many breaks occurred in the banks of the levees so erected by the farmers. Two of these existed near the property of plaintiff, one approximately 400 feet wide and known as the ‘DeJarnatt Break’ at a point approximately three miles south of the city of Colusa, and a second approximately 1000 feet wide known as the ‘Moulton Break’ about twelve miles north of Colusa. At flood stage the waters of the Sacramento river passed through these breaks and flowed into the Sutter and Butte Basins to the east.
By the year 1932 the general over-all flood control project had been completed for all practical purposes from Colusa county south to the point where the river empties into the San Francisco Bay. In that year the Moulton and DeJarnatt Brakes were closed and what is known as the ‘Colusa Weir’ was constructed. The Colusa weir is an opening or cut approximately 1650 feet in length in the east bank of the river levee and is surfaced with concrete. Levees referred to as ‘training levees' were built parallel to each other at the north and south ends of the weir and extended easterly at right angles to the river levee for a distance of approximately one mile, at which point the training levees were broadened out so that they were approximately one-half mile apart. The gradient flow from the weir to the end of the training levee was approximately nine feet per mile. The purpose of such levees was to train the water passing over the weir from the river into Butte Basin where it would fan out and thereby relieve the flow and pressure on the main river levees. The old levee at the point where the Colusa weir was constructed had an elevation of approximately 72 feet which elevation was reduced by the construction of the weir to approximately 64 feet.
The land of appellant herein is situated within the Butte Basin and consists of slightly more than 120 acres. It lies approximately one-quarter of a mile east of the Sacramento river levee and extends approximately one mile along the south training levee. Between plaintiff's property and said training levee is a strip of land approximately 80 feet wide which is owned by the state and through which runs a ditch caused by the excavation of dirt to build said levee. The northeasterly corner of plaintiff's land practically adjoins the east end of the south training levee. As the land is within the Butte Basin it always has been subject to flooding whenever water collected in that basin.
Appellant contends that such flooding was due to the over-all rise of the water in the basin and not from the direct flow of the water from the river, and although so situated he was able to farm his property until 1940. However, by reason of a delta which thereafter formed at the easterly end of said property he was precluded from continuing his farming operations. His contention is that the delta was caused by the manner in which the weir and training levees were planned and constructed. In particular, he contends that the gradient between the weir and the end of the training levees caused the water passing over the weir and between the training levees into Butte Basin to flow at a high velocity from the weir to the end of the training levees where the flow suddenly decreased due to the water having reached the ground elevation of Butte Basin. As a result of such decreased velocity the sediment and other foreign matter suspended in the water was deposited at the end of the south training levee thus forming a delta. He further contends that the delta caused the water flowing between the training levees to divide and flow around the easterly end of the south training levee upon his property. In addition, said waters flowed back toward the river through the ditch located upon the eighty foot strip of land owned by the state and situated between Clement's land and the south training levee, from whence it flowed to the south over and across plaintiff's land.
The record contains competent evidence that such flow would not have occurred if the weir and training levees had not been constructed, and that numerous government officials prior to its erection recognized and predicted that the result of the construction of the weir and the training levees would be the formation of a delta with the consequent diversion of water upon plaintiff's land.
Plaintiff's amended complaint is in two counts. The first alleges a taking of his property for a public use, and the second charges negligence in the construction of the weir, all of which resulted in the alleged damage to his land.
The cause proceeded to trial upon the issues presented by the pleadings, including not only the denial of the allegations of the complaint but the special defenses raised by the answers as well. At the conclusion of plaintiff's case motions for nonsuit by the individual defendants were granted, leaving only the State of California, the Reclamation Board of the State of California, and the Sacramento-San Joaquin Drainage District as defendants. The jury returned a general verdict for the defendants. Plaintiff's motion for a new trial was denied and the present appeal followed from the judgment entered upon the verdict so returned.
Appellant's primary contention is that the trial court erred in the giving of some fourteen instructions definitive of flood waters, and the ‘common enemy’ doctrine in regard to such waters as applied to the facts in this case.
Assuming but not so deciding that the instructions so given might have been proper insofar as they related to flood waters, yet by reason of the manner in which the court coupled such instructions with its further charge relative to the ‘common enemy’ rule as it related to the facts in the present case, the jury were in effect directed to return a verdict for defendants. In other words, under the instructions so given the jury was precluded form considering whether or not under the facts presented the situation was so extraordinary or was of such an emergency to warrant the application of said rule. Weinberg Co. v. Bixby, 185 Cal. 87, 96, 196 P. 25. Furthermore the jury was also precluded from determining whether the flood control project was so negligently or otherwise improperly planned and constructed or so negligently executed as to give plaintiff a just cause for damages. House v. Los Angeles County Flood Control District, 25 Cal.2d 384, 391, 153 P.2d 950, 953. As was noted at the outset, flood control of the Sacramento and San Joaquin rivers has been a problem for more than seventy years, during which time numerous state and federal agencies have been created to study and report on the problem. Some agencies made independent surveys, others worked in cooperation with one another but all were seeking a solution of their common problems. The plans which resulted from such lengthy studies and deliberations have in turn been the source of much legislation and litigagation. It would therefore appear that the instant case presents a problem very similar to that relating to the flood control of the Los Angeles river, which was involved in the House case, supra. Furthermore, plaintiff herein by the allegations of his complaint has brought himself squarely within the rules approved by the Supreme Court in the case, which are (1) if the situation presented is not ‘one of such emergency character as would preclude the defendant district from being held liable for unnecessary damage resulting from the alleged inadequate and negligent planning, construction and maintenance of its flood * * *.’ control project, and (2) if plaintiff by his pleadings, and as in this case the evidence in support thereof, showed the district to have had an opportunity to ‘exercise a deliberate choice of action’ in the manner of the planning, construction and maintenance of the project but that it followed a plan which caused unnecessary damage to his property, then plaintiff had presented a case sufficient to warrant consideration by the jury.
Such conclusion, the court states, ‘does not make the public agency, in undertaking its flood control program, an insurer against all possible damage which thereby might be inflicted on private property of United States v. Sponenbarger, 308 U.S. 256, 60 S.Ct. 225, 84 L.Ed. 230, but it merely requires that the damage to the individual, on whom the sovereign power justifiably makes demands in the public interest, not exceed the necessities of the particular case due to a failure to use reasonable care and diligence. In view of the organic rights to acquire, possess and protect property and to due process and equal protection of the laws, the principles of nonliability and damnum absque injuria are not applicable when in the exercise of the police power, private, personal and property rights are interfered with, injured or impaired in a manner or by a means, or to an extent that is not reasonably necessary to serve a public purpose for the general welfare. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322, 28 A.L.R. 1321; cited with approval in Archer v. City of Los Angeles, supra, 19 Cal.2d , at page 24, 119 P.2d , at page 4.’
Respondents, however, argue that since the case was submitted upon different theories and since the jury returned a general verdict, the same may not be reversed if any one of such issues is supported by substantial evidence. While respondents' argument might be entirely proper under certain conditions it does not obtain in the present case, since, if our conclusion concerning the effect of the attacked instructions is correct, it necessarily follows that the jury was wholly precluded from considering any issue other than as instructed by the trial court and hence had no discretion other than to follow the direction of the court and return a verdict for respondents. For this reason respondents' argument is without support.
Lastly respondents say that in any event neither the state nor its subdivisions named herein as defendants are liable and in support thereof cite certain federal cases and reports to the effect that the power of Congress pursuant to the commerce clause is paramount and that the federal government retained control of the project. Admitting the supremacy of the federal government under the commerce clause, we fail to perceive in what manner such supremacy serves to relieve the state from liability for damages caused by flood control projects in which its agencies participated as in the present case.
In support of such contention respondent relies upon two California Cases, Cory v. City of Stockton, 90 Cal.App. 634, 266 P. 552, and Brandenburg v. Los Angeles County Flood Control District, 45 Cal.App.2d 306, 114 P.2d 14. Suffice it to say that the cases so cited arose upon demurrer and the decisions therein held that the allegations contained in the pleadings were insufficient to give rise to a cause of action. In the instant case, as previously noted, the allegations in plaintiff's complaint and evidence in support thereof presented a proper case for submission to the jury within the rule laid down in the House case, supra.
For the foregoing reasons the judgment is reversed.
ADAMS, P. J., and THOMPSON, J., concur.
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Docket No: Civ. 7565.
Decided: October 08, 1949
Court: District Court of Appeal, Third District, California.
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