YOUNGBLOOD v. CITY OF LOS ANGELES (1958)

Plaintiff brought this action to recover for damage to real property owned by him in the Pacific Palisades area caused by flood conditions arising from heavy rainstorms in January, 1952. The defendants are the city of Los Angeles, hereafter referred to as the ‘City’; the Los Angeles County Flood Control District, hereafter denominated the ‘District’; and Max A. Rosenberg & Sons, a co-partnership, hereafter called ‘Rosenberg.’ The appeal is from judgments of nonsuit granted as to each defendant.

At the conclusion of plaintiff's evidence Rosenberg's motion for nonsuit was granted on the ground that there was an insufficiency of the evidence to make out a prima facie case against that defendant for several reasons among which was that there was no evidence showing any wrongful act by Rosenberg which caused the claimed damage to plaintiff, as well as no showing with respect to what portion of such damage was claimed to have been caused by Rosenberg.

Also at the close of plaintiff's evidence the District moved to strike from the record all testimony pertaining to the revetment south of plaintiff's property, and the engineering practice and construction of it, as outside the scope of the pleadings. This motion was granted and a subsequent motion for nonsuit was also granted as to the District.

The defendant City's motion to strike from the record all testimony pertaining to the proposed flood control channel changes and to changing of the bridge, and all events and occurrences in the stream bed as being outside the scope of the pleadings as to it was granted. Plaintiff's motion to amend the pleadings to conform to proof was denied. The City's motion for nonsuit was granted.

A written claim for damages (§§ 53051, 53052, Gov't Code) had been filed with the City Council of the City of Los Angeles and with the Los Angeles County Flood Control District by filing it with the Board of Supervisors of the County of Los Angeles on April 14, 1952. The amended complaint under which the case went to trial contained the general charges as specified in this claim, alleging that prior to January 12, 1952, Rosenberg subdivided a tract ‘upstream’ from plaintiff's property and secured from the City the necessary permits ‘for the grading of roads and the installation of storm drains, for the draining of storm waters and surface waters from said tract and subdivision. That in the construction and maintenance of said storm drains, and in the grading of streets for said tract, said streets were so graded that surface waters and storm waters falling upon said streets and surrounding areas, and particularly from areas uphill from said streets, are accumulated, and the streams upon said streets are directed and diverted by drainage across said streets maintained by the defendant, City of Los Angeles, in such a manner that storm waters and surface waters which would in a state of nature be absorbed by the natural soil or flow in various directions in accordance with the natural watershed, are accumulated within the confines of said storm drains, and accumulated and diverted into one stream in said storm drain which is diverted across Sunset Boulevard in the area above plaintiff's property and ‘dumped’ into the natural waterway or small stream hereinbefore referred to above plaintiff's property; that the waters so accumulated into one stream possess an increased velocity, by reason of said accumulation and the construction of said storm drains, so that said water as it flows onto plaintiff's property has a considerably increased volume, increased velocity, and increased scouring capacity.'

Paragraph X alleges: ‘That during the storm of January 12, 13, 14, and 15, 1952, and for several days and weeks subsequent thereto, there fell upon the area drained by the aforementioned storm drain a considerable volume of water; and as a direct and proximate result of the acts of the defendants hereinbefore referred to and as a direct and proximate result of said additional waters cast into said waterway or stream, as aforesaid, in an increased volume, increased velocity, and increased scouring capacity, considerable volume of earth was caused to erode and wash away from the property of plaintiff, thereby removing adjacent and subjacent support to the remainder of said real property.’

In paragraph XI it is alleged: ‘That during the erosion and loss of soil, as aforesaid, a large tree fell across the base of the hill between plaintiff's property and the waterway or stream hereinbefore referred to, which constituted adjacent and subjacent support for the property of plaintiff; that during said storm the defendants, City of Los Angeles and Los Angeles County Flood Control District, removed and took away said tree, thereby removing said adjacent and subjacent support from the property of the plaintiff, which removal caused further erosion and loss of soil therefrom; all of which acts and conduct were without the knowledge, consent or approval of the plaintiff.’ A prayer for damages follows.

Viewing the evidence most favorably to plaintiff it appears that in January 1952 plaintiff owned a home which he valued at $50,000 located at 708 Greentree Road, Pacific Palisades, California. The rear of the lot sloped easterly down to Rustic Canyou stream at about a 35 to 40-degree angle and the house was located at a considerable height above the floor of the canyon. To the northeast of and above plaintiff's property the steam or channel was crossed by Brooktree Road bridge, owned and maintained by the City. Approximately 50 feet south and east of the southeast ‘toe’ of plaintiff's property and downstream therefrom the District had constructed a flood control ‘revetment’ on each side of Rustic Canyon, the opening of which was 18 feet wide. At its northwest end a wing extended out at a 45-degree angle toward plaintiff's property. The District by means of the revetment and other work in Rustic Canyon was in the process of changing the direction of the previous natural flow of the water. From the date of its construction and at the time of the flood in January 1952, Brooktree Road bridge including its abutments, was in alignment with the original ‘thread’ of the stream. These abutments were at a 45-degree angle westerly from the opening of the previously mentioned revetment. The opening of the revetment ‘plugged up’ from the debris carried by the flood, the waters were directed toward plaintiff's property by reason of the bridge abutments and tended to create a ‘whirlpool’ situation which contributed to the undermining of the bank at the rear of plaintiff's property. During the flood period a large sycamore tree on plaintiff's property fell and was acting as a barrier to the inroads of the onrushing waters. During the course of the flood, employees of the District removed this tree, cut it up and used it to reinforce the revetment. There is evidence that about 90 per cent of plaintiff's damage occurred after the removal of the tree.

Prior to January 1952 Rosenberg commenced subdividing a plateau on a hill to the north of Sunset Boulevard and about a half mile north of plaintiff's property. Rivas Canyon stream flowed along the west side of the hill and Rustic Canyon stream along the east side. South of Sunset Boulevard and a little north of Brooktree Road bridge Rivas Canyon stream joins Rustic Canyon stream, thereby increasing the flow of the latter before it reaches the bridge and plaintiff's property. Drainage from the hill both before subdividing and at the time of the floods in January 1952 was toward both Rivas and Rustic Canyons. The plateau was graded in March 1951. By January 10, 1952, a few days before the flood, the streets for the tract had been paved and, on the lots where fill had been placed, the fill had been compacted. A drain was in the process of being installed pursuant to requirements of city officials, the purpose of which was to direct the water flow from the southerly portion of the tract under Sunset Boulevard and into Rustic Canyon stream. At the time of the flood, the drain was not completed and had been blocked off at its opening on one of the streets in the tract. Surface waters in the area then eroded a portion of the hillside upon which the plateau was located and some of the eroded material was deposited on Sunset Boulevard. Water accumulated at the southerly cul-de-sac of the tract, overflowed the curbs and ran over Lot 10 of the tract and down the hillside. Virtually all of the eroded material came from the uncompacted fill in the area where the drain pipe was in the process of being installed.

Plaintiff's expert witness, a licensed practicing civil engineer, testified that plaintiff's home was situated on a leveled site; that sycamore trees covered the canyon floor prior to the 1952 floods and most of them were very large in size, from 30 to 50 years in age. Prior to the 1952 flood the thread of the stream meandered to within approximately 16 feet of the easterly line of plaintiff's property, and the bridge and its abutments at that time were aligned on the thread of the stream. The stream flowed, in going under the bridge, at about a 45-degree angle to the opening of the downstream revetment, an ‘S' curve existing between them. It was not until after the flood that the revetment existing downstream was extended beyond the location of the new bridge and that the new bridge was constructed in alignment with the new channel. At the time of the flood, the revetment had been completed to within 50 feet of plaintiff's property to the south and downstream, and the westerly edge of the revetment had a wing or tip extending out toward plaintiff's property to act as a funnel. The distance between the parallel wire fences of the revetment was 18 feet.

It was the opinion of this expert that during the flood the abutments of the bridge directed a flow of water towards the southeast lower end of plaintiff's property ‘and that the reason that the water increased in height there and became a menace to and eroded’ plaintiff's property ‘was because it was impounded and built up here by the damming or the stopping up of he channel below [plaintiff's property] by debris and materials that were hung up on this inlet * * *.’ The inlet referred to by the expert was the 18-foot opening of the revetment constructed by the District; that it was not ‘good engineering practice to leave the end of this restricted channel—this whole area being an open area, and expect the water to get by this eighteen foot hole and go down the channel * * * [or] to leave a bridge on a 45 skew approximately with the proposed flow of the realignment.’

The expert further testified that the Brooktree Road bridge should have been brought about in alignment with the new flood channel revetment to prevent the diversion of waters from the natural channel and onto plaintiff's property; or, in the alternative, a fender should have been appended to the southwest corner of the bridge to deflect the waters toward the new flood channel revetment and away from plaintiff's property; that in view of the condition, size and growth of the canyon floor, it was readily foreseeable that this revetment would clog up, causing the waters to be diverted onto plaintiff's property; that the closer the revetment was brought to the bridge, without realigning the bridge, the more apparent and the more certain was the danger of constriction and diversion of the water, and the greater the hazard to plaintiff's property; that under these circumstances neither the revetment or bridge was constructed or maintained under sound engineering principles.

With respect to the Rosenberg development the expert testified that the run-off water from the 12 acres in the tract would be much greater due to the destruction of the natural absorption of the soil by reason of the grading, paving and compacting. In addition, he testified that because there was no drain or metal culvert the run-off waters would pick up a greater quantity of gravel, shale and fill. It was his opinion that the Rosenberg development not only increased the volume of the water, but it also increased its erosive and scouring capacity beyond that which would exist under natural conditions.

The Case against the City

It is clear that the only allegations of liability on the part of the City involve the issue of whether the City is responsible for an unlawful diversion or concentration of water discharged into the natural watercourse upstream from plaintiff's property or for the removal of the tree. There are no allegations respecting the alignment of Brooktree Road bridge, or that the City was guilty of maintaining a dangerous and defective condition, of which it had notice and failed to remedy, within the liability provisions of Government Code, section 53051.

As to the removal of the tree, the evidence is uncontradicted that this was done by employees of the District and we need not further consider it with respect to any liability on the part of the City.

On this appeal plaintiff appears to have abandoned any claim against the City based on the subdivision of the tract of land by Rosenberg. No liability on the part of the City is indicated from this source as the evidence discloses only an increased flow of water resulting solely from the urbanization of the territory without any added water from any other drainage area. There is no liability on the part of the City under this aspect of the case. Archer v. City of Los Angeles, 19 Cal.2d 19, 119 P.2d 1, and cases cited therein. Moreover, since plaintiff's damage was suffered in January 1952 and the improvements in the Rosenberg subdivision were not accepted by the City until October of that year, no liability on the part of the City arose by reason of the manner in which the subdivider was doing the work, under the rule announced in Hoover v. County of Kern, 118 Cal.App.2d 139, 257 P.2d 492, and Wallner v. Barry, 207 Cal. 465, 279 P. 148.

There remains the question whether any liability attached to the City by reason of its maintenance of Brooktree Road bridge. The evidence with respect to the bridge and its alignment, including the opinion of the expert that it was being maintained in an unsound engineering condition, was stricken as not being within the pleadings. With this ruling we must agree. The amended complaint upon which the case was tried makes no mention of Brooktree Road bridge. Plaintiff contends it comes within the meaning of ‘storm drains' located ‘above plaintiff's property’ which were directing the waters ‘onto plaintiff's property’ with ‘increased volume, increased velocity, and increased scouring capacity.’ There is no merit in this contention. A reading of all the allegations of the amended complaint makes it clear that when plaintiff mentioned ‘storm drains' he was referrig to the drain or drains being constructed on and near the Rosenberg subdivision which had been ordered by the City to carry water from the subdivision under Sunset Boulevard. It is clear that any liability of the City in that respect would rest on an entirely different theory than the maintenance of a dangerous and defective condition in public property within the meaning of Government Code, section 53051.

But plaintiff urges that even if his allegations were insufficient to state a cause of action against the City under section 53051, the evidence was sufficient to take the case to the jury on that issue, and his motion to amend to conform to proof should have been granted. For the purposes of this discussion only we may assume that the proposed amendment to conform to proof¹ states a cause of action under section 53051.

The theory of plaintiff's amended complaint with respect to the City is that it permitted subdivider Rosenberg to construct certain storm drains and streets in a private subdivision and that such drains and paved areas increased the volume, velocity and scouring capacity of waters flowing in a natural water course past plaintiff's property downstream. The complaint contains no allegation that the City maintained any of its property in a dangerous and defective condition. This is alleged for the first time in the proffered amendment.

It is true that the statutory provision (Code Civ.Proc. § 473) giving the courts the power to permit amendments in furtherance of justice has received a very liberal interpretation by the courts of this state. Rabe v. Western Union Tel. Co., 198 Cal. 290, 300, 244 P. 1077; Frost v. Witter, 132 Cal. 421, 424, 64 P. 705. As the court said in Klopstock v. Superior Court, 17 Cal.2d 13, at page 19, 108 P.2d 906, 910, 135 A.L.R. 318: ‘This position is clearly in accord with the modern theories of code pleading, which would permit amendment in the discretion of the court unless an attempt is made to present an entirely different set of facts by way of the amendment.’

In Weinberg v. Dayton Storage Co., 50 Cal.App.2d 750, 759, 124 P.2d 155, 160, the court said: ‘While it is true that great liberality should be premitted in the filing of amendments where they do not prejudice the opposing party, it is equally true that amendments of pleadings to conform to the proofs should not be allowed when they raise new issues not included in the original pleadings and upon which the adverse party had no opportunity to defend.’ See also Knox v. Atchison, T. & S. F. Ry. Co., 95 Cal.App.2d 896, 901, 214 P.2d 589; Lavely v. Nonemaker, 212 Cal. 380, 385, 298 P. 976; Bank of United States v. Foreman, 102 Cal.App. 756, 764, 283 P. 874.

In the instant case it is contended by the defendant City that, in his proposed amendment to conform to proof, plaintiff was attempting to state a completely new cause of action, namely, a statutory action based upon Government Code, section 53051, which cause of action would be barred if not commenced within three years from the date of the damage to plaintiff's property. Code Civ.Proc. § 338. Plaintiff did not seek to set forth the alleged new cause of action until October 10, 1956, which is almost four years and nine months after it arose on January 15, 1952. It therefore follows that if plaintiff's proposed amendment constitutes a new cause of action as defined in the cases which we shall hereafter discuss, it was clearly barred by the statute of limitations and the trial court properly refused to permit the amendment.

The test of what constitutes a new cause of action is well expressed by the court in Klopstock v. Superior Court, supra, 17 Cal.2d 13, at page 20, 108 P.2d 906, at page 910, 135 A.L.R. 318: ‘Of course, the court's power to permit amendments of pleadings is not unlimited. It has generally been said that an amendment may not be permitted where the effect of such amendment is to state ‘another and distinct cause of action.’ (Citations.) But this court has said: ‘It is obvious that the unqualified way in which the rule is sometimes stated—i. e. that a new or different cause of action cannot be introduced by amendment—cannot be accepted; for the most common kinds of amendments are those in which complaints are amended that do not state facts sufficient to constitute a cause of action, and in these, and often in the case of new parties, a new cause of action is in fact for the first time introduced. All that can be required, therefore (to use the language of Mr. Pomeroy), is that ‘a wholly different cause of action’ shall not be introduced * * *' (Citations.) In determining whether a wholly different cause of action is introduced by the amendment technical considerations or ancient formulae are not controlling; nothing more is meant than that the defendant not be required to answer a wholly different legal liability or obligation from that originally stated * * * [F]or the purpose of determining whether amendment is possible, the ‘cause of action’ referred to as furnishing the test means only the legal obligation which it is sought to enforce against the defendant. Other courts have used almost identical language; the test is not whether under technical rules of pleading a new cause of action is introduced, but rather, the test is whether an attempt is made to state facts which give rise to a wholly distinct and different legal obligation against the defendant. The power to permit amendment is denied only if a change is made in the liability sought to be enforced against the defendant.' (Emphasis added.)

It is clear that in the instant case the amendment to the complaint which attempts to set forth a cause of action against the City based on a statutory liability under section 53051, Government Code, states ‘facts which give rise to a wholly distinct and different legal obligation against the defendant’ City. This is not a case in which the plaintiff has merely changed his theory of recovery based upon the same set of facts. It likewise raises new issues not included in the original pleadings with no opportunity given to the City to defend.

This case is somewhat similar to that of Burnett v. Boucher, 108 Cal.App.2d 37, 238 P.2d 1. In that case plaintiffs brought the action for damages for injuries arising out of a collision. Defendant Earl Boucher owned the car but his son Edward was driving at the time of the accident. The complaint charged both with negligence. The action came to trial against the father Earl Boucher alone; the son was not served. At the outset of the trial plaintiffs disclaimed any intention of proving that the son was acting as the agent of the father and stated that they expected to prove that the son was driving the car with the father's permission. The defendant thereupon moved for a nonsuit based on the contention that the only cause of action alleged in the complaint had been abandoned, and that evidence on a different theory, statutory liability for imputed negligence, was inadmissible. Plaintiffs (as in the instant case) argued that their complaint was broad enough to cover statutory liability but requested permission to amend to include the new cause of action. The trial court denied permission to amend and granted the motion for nonsuit, holding that the cause of action stated in the complaint could not be changed to one of statutory liability under section 402 of the Vehicle Code, since more than a year had elapsed since the accident occurred. This judgment was affirmed on appeal. To the same effect see McKnight v. Gilzean, 29 Cal.App.2d 218, 84 P.2d 213.

Plaintiff relies upon Day v. Western Loan & Bldg. Co., 42 Cal.App.2d 226, 231–232, 108 P.2d 702, 705 where it is said: ‘Stated another way, if the original complaint defectively states a cause of action, it may be amended after the running of the statute as long as the cause of action stated in the amended pleading can trace its descent from the original pleading.’

But in the instant case it cannot be said that a cause of action based upon the statutory liability of a municipality under Government Code, section 53051, can trace its descent from the allegations in plaintiff's complaint which merely charge the City with liability for the construction of certain storm drains and makes no allegation of the maintenance of a defective condition of public property owned by the City itself.

We conclude that the court did not err in striking, on behalf of the City, the evidence respecting the bridge, its abutments, and the proposed and completed flood control channel changes; that it did not err in denying plaintiff's motion to amend his complaint to conform to proof in these respects, or in granting the motion for nonsuit.

The Case against the District

The only allegation in the complaint directly charging the District with liability is found in paragraph XI as heretofore quoted. This relates to the removal of the fallen tree from plaintiff's property, thereby removing adjacent and subjacent support therefrom.

Plaintiff relies upon the theory of inverse condemnation, or the taking of private property for a public use without compensation therefore, citing Bauer v. County of Ventura, 45 Cal.2d 276, 289 P.2d 1; Clement v. State Reclamation Board, 35 Cal.2d 628, 641, 220 P.2d 897, and Ward Concrete Products Co. v. Los Angeles Flood etc. Dist., 149 Cal.App.2d 840, 844, 309 P.2d 546. Plaintiff contends that under this theory article I, section 14, of the California Constitution provides that the state or its agency must compensate the owner whether the damage was intentional or the result of negligence.

Bauer v. County of Ventura, supra, 45 Cal.2d at page 282, 289 P.2d at page 5, was an appeal from a judgment of dismissal based on orders sustaining demurrers to the amended complaint. The court therein laid down the rules and principles governing the doctrine of inverse condemnation in this state, and in doing so said, ‘California Constitution, Article 1, section 14 provides: ‘Private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for, the owner * * *’ The taking of private property by the state for a public use is universally recognized as one of the indisputable attributes of sovereignty. (Citations.) But the state must, except under special circumstances not here present, follow the constitutional procedure which requires the payment of compensation before the private owner is dispossessed of his property. When this requirement is not fully satisfied, an action will lie against the state to recover the value of the property so taken. (Citations.) Based upon section 14, the appropriate action is sometimes designated a proceeding in inverse condemnation.

‘Section 14, however, is designed not to create new causes of action but only to give the private property owner a remedy he would not otherwise have against the state for the unlawful dispossession, destruction or damage of his property. The state is therefore not liable under this provision for property damage that is dammum absque injuria. If the property owner would have no cause of action against a private citizen on the same facts, he can have no claim for compensation against the state under section 14. (Citations.) The effect of section 14 is to waive the immunity of the state where property is taken or damaged for public purposes. To bring his complaint within the provision, the plaintiff must show not only a taking or damaging for a public use but also that it is actionable under the general law.

‘It is well established that the diversion of water from its natural course resulting in damage to adjacent property is actionable. (Citations.) Mere improvement within an existing watercourse which accelerates rather than diverts the flow does not give rise to a cause of action when damage results from an overflow. Straightening, widening or deepening the channel of a stream to improve the drainage or the collection of surface waters for discharge into their natural stream entails no diversion in the event of a resulting overflow. But to escape liability the improvements thus described must follow the natural drainage of the country or the natural stream. (Citations.) In the present case, the plaintiffs' allegations show that the waters of the barranca were diverted away from their natural stream into a ditch running close to the plaintiffs' land, and then permitted to overflow and back up in a direction exactly opposite from their natural flow.’

The position of defendant District is that the instant case comes within the exception stated in Bauer v. County of Ventura, supra, 45 Cal.2d at page 286, 289 P.2d at page 7, namely: ‘Damage resulting from negligence in the routine operation having no relation to the function of the project as conceived is not within the scope of the rule applied in the present case.’ It further claims that the removal of the tree was emergency work constituting an exercise of the police power, rather than a damaging or taking for public use, citing House v. Los Angeles County Flood Control Dist., 25 Cal.2d 384, 391, 153 P.2d 950. But in that case the court, relying upon article I, section 14 of the Constitution, reversed a judgment of dismissal following the sustaining of a demurrer to the complaint, holding that the allegations were sufficient to allege a cause of action for inverse condemnation.

In the present case we are dealing with a judgment of nonsuit. Such a judgment should be granted only when, accepting the full force of the evidence adduced, together with every reasonable inference favorable to the plaintiff, which may be drawn therefrom, and excluding all evidence in conflict therewith, it still appears that the law precludes the plaintiff from recovering a judgment. Archer v. City of Los Angeles, supra, 19 Cal.2d 19, 23, 119 P.2d 1; Mastrangelo v. West Side U. H. School Dist., 2 Cal.2d 540, 544, 42 P.2d 634.

Plaintiff's complaint alleged the removal of the tree by the District thereby removing adjacent and subjacent support from the property of plaintiff. There is evidence to support this allegation and further evidence that the tree was cut up and used to reinforce the revetment below plaintiff's property. There is also evidence that the removal of this tree resulted in the major portion of plaintiff's damage. There are no allegations in the complaint which would support the testimony of the plaintiff's expert that the revetment was not constructed in accordance with good engineering practice and upon the authorities heretofore cited herein, the trial court was correct in striking that portion of the evidence. There remains evidence however from which a jury could find that there was a revetment constructed by the District; that it was constructed as part of a plan to change the channel of the stream; that its upstream opening was but eighteen feet wide and became clogged during the flood; and that the removal of the tree and its being placed in the revetment was part of the maintenance of the channel and the revetment according to the District's plan.

It was a question of fact for the jury to determine as to whether the removal of the tree constituted faulty maintenance of the District's drainage system within the purview of the Bauer case, supra. There the court said in 45 Cal.2d at page 285, 289 P.2d at page 6: ‘The consequences of faulty maintenance may assume public importance equal in some instances to the original construction. The ultimate objects of construction and maintenance are similar if not coextensive. In some instances, where the original construction artificially diverts a stream from its natural course, more risk of damage to surrounding property may be created from improper maintenance than would exist had the stream been permitted to remain in its natural state. If the original construction had as its function the expeditious drainage of surface waters, then that public purpose is served equally by the proper maintenance of the improvement once it is made. It follows that the taking or damaging or private property for the maintenance of an existing public improvement involving a deliberate act which has as its object the direct or indirect accomplishment of the purpose of the improvement as a whole constitutes a taking or damaging of property for a public use and the owner of such property is entitled to compensation.’

The District attempts to justify its removal of plaintiff's tree by contending that the threat of the flood created an emergency which justified its conduct under the police power. Plaintiff, on the contrary, argues that there was no real emergency and that the removal of the tree would not or did not prevent a flood or flood condition, and indeed caused much of the damage to his property.

This court recently had occasion to discuss the question of the emergency powers of a flood control district in Ward Concrete Products Co. v. Los Angeles Flood etc. Dist., 149 Cal.App.2d 840, at page 847, 309 P.2d 546, 551 and we said: ‘Furthermore, since the decisions in the cases cited, the Supreme Court has given further consideration to this latter subject matter (police power) in Bacich v. Board of Control, 23 Cal.2d 343, 351, 144 P.2d 818, and House v. Los Angeles County Flood Control Dist., 25 Cal.2d 384, 391, 153 P.2d 950. Those cases indicate that, in the absence of any compelling emergency or the pressure of public necessity, the courts will be slow to invoke the doctrine of police power to protect public agencies in those cases where damage to private parties can be averted by proper construction and proper precautions in the first instance. (Citations.) As stated in the House case, supra * * *: ‘It is a principle of universal law that wherever the right to own property is recognized in a free government, practically all other rights become worthless if the government possesses an uncontrollable power over the property of the citizen. Upon this premise the plaintiff relies on the unnecessary damage to her property as the result of the defendant district's negligence in the planning, construction and maintenance of the flood channel work to sustain the constitutional basis of her claim. In other words, it is her position that damage suffered by a property owner as the result of a public improvement undertaken in the exercise of the police power must have some reasonable relation to the purpose to be accomplished under the prevailing circumstances, and that the governmental agency proceeding with such work may not needlessly inflict injury upon private property without being liable to make compensation therefor. This accords with the general object of the constitutional guaranties in protection of property rights and but places upon a reciprocal basis the individual's damage in relation to the public benefit. Unnecessary damage to his property is of no benefit to the public; rather it only entails unwarranted sacrifice and loss on the individual's part, which should be compensable damage.’ Whether the damage suffered by plaintiff exceeded the necessities of the case as expounded in the House case was a question of fact for determination by the court. (Citations.)'

We therefore conclude that there was sufficient evidence to go to the jury on the limited question of liability on the part of the District in removing the tree. It was a question of fact as to whether the removal of this tree was in the performance of the maintenance of the flood control channel and the revetment within the principles laid down in Bauer v. County of Ventura, supra, 45 Cal.2d 276, 289 P.2d 1, and the other cases cited. It was also a question of fact for the jury as to whether the employees of the District in removing the tree were acting under an emergency which justified the use of the police power without compensation to the plaintiff.

The Case Against Rosenberg

The only evidence in any way connecting Rosenberg with the claimed injury is the testimony of plaintiff's expert to the effect that because of the paving and other improvements in the subdivision the tract would absorb less water than it had previously in its natural state. He also stated that due to the fact that less water would be absorbed into the ground, more water would go over the sides of the tract into Rivas Canyon and Rustic Canyon. However, Rosenberg made no change in the drainage. No water was diverted into the stream flowing past plaintiff's property that would not naturally have entered that stream. Furthermore, there is no evidence that any of the eroded material from the subdivision got on the downstream side of Sunset Boulevard. The evidence is in fact to the contrary.

Even if the improvements on the Rosenberg tract did create an increased water run-off into the stream passing plaintiff's property there is no evidence that this was the cause of his damage. But assuming that it was a cause, it is not actionable under California law. As was said in San Gabriel V. C. Club v. Los Angeles, 182 Cal. 392, 402, 188 P. 554, 558, 9 A.L.R. 1200: ‘If the surface waters are gathered and discharged into the stream which is their natural means of drainage, so that they come to the land below only as a part of the stream, it is held that no action lies because of their being added. (Citations.) * * * ‘We have just noticed the difference between merely draining on to another's land, and draining into a natural channel or watercourse, which flows across such land. So far as streams or natural watercourses are concerned, there can be no doubt that one may drain into them, and thereby increase their volume without subjecting himself to liability for any damage suffered by a lower owner.’'

Plaintiff relies upon the case of LeBrun v. Richards, 210 Cal. 308, 316, 291 P. 825, 72 A.L.R. 336, urging it holds that an upper riparian owner cannot increase the drainage of his own land, nor accelerate the flow of the run-off by means of ditches, to the injury of the lower owner. But that is not the situation in the instant case. As the court said in LeBrun, supra, 210 Cal. at pages 315–316, 291 P. at page 828: “The upper proprietor may not divert by artificial means the surface waters upon his own lands to the lands of the lower proprietor, nor may he accelerate by means of ditches or increase the drainage of his own land to the injury of the lower owner. His right ‘is limited to the disposition of the water through the chosen channels of nature.’ (Citation.)'

So it is in the case at bar. Rosenberg did nothing more than improve his property. He did not divert any of the surface water falling on his property into channels other than ‘chosen channels of nature.’ It was not his fault that these natural channels were insufficient to contain the waters during a flood period. If it were the law that a subdivider such as Rosenberg is liable to lower riparian owners merely because his improvements increase the flow of surface waters in their natural channels, then every hillside developer would become virtually an insurer against flood damage to all property owners below his development. Such is not the law. There was no error in granting the judgment of nonsuit as to Rosenberg.

The judgment as to the Los Angeles County Flood Control District is reversed; the judgments as to the other defendants are affirmed.

FOOTNOTES

1.  ‘[P]laintiff hereby amends First Amended Complaint for Damages to Real Property to conform to proof in the following particulars only: ‘I. ‘Paragraph IX, Page 4, Lines 13 through 16, inclusive, is hereby amended as follows: ‘* * * said accumulation, the construction of the storm drains, and the construction and maintenance of the Brooktree Road bridge, owned and maintained by the City of Los Angeles across Rustic Canyon channel so that water was wrongfully diverted and caused to flow onto plaintiff's property with a considerably increased volume, increased velocity, and increased scouring capacity. ‘II. ‘That the said defendants had due and sufficient knowledge and notice of the defective and dangerous condition, and for a reasonable time after acquiring said knowledge and notice failed to remedy the condition or to take action reasonably necessary to protect the public from said condition.’

KINCAID, Justice pro tem.

FOX, P. J., and ASHBURN, J., concur.