POWERS FARMS, INC. (a Corporation), Respondent, v. CONSOLIDATED IRRIGATION DISTRICT, Appellant, 19 Cal. 2d 123

EDMONDS, J. — Powers Farms, Inc., the owner of improved land planted principally to mature orchards and vineyards, recovered a judgment for damages which the trial court found that it sustained when Consolidated Irrigation District permitted water to seep from its canals. One of the special defenses to the action is that no verified claim of damages was filed as required by the Irrigation District Liability Law (Stats. 1935, p. 2250; Deering’s Gen. Laws, vol. 1, p. 1932, act 38861, see. 2).

The principal question for decision upon the appeal of the district from the judgment is whether this statute is applicable to the respondent’s cause of action. The Constitution of this state (art.

I, sec. 14) prohibits the taking or damaging of private property for public use “without just compensation having first been made to, or paid into court for, the owner. ’ ’ It is well settled that damage to land caused, with or without negligence, by the seepage of water from canals of an irrigation district which have been constructed and are maintained to supply water for public use, gives the owner of such land a cause of action in the nature of eminent domain against the district. (Hume v. Fresno Irr. Dist., 21 Cal. App. (2d) 348, 354 [69 Pac. (2d) 483]; Massetti v. Madera Canal & Irr. Co., 20 Cal.

App. (2d) 708, 715 [68 Pac. (2d) 260]; Ketcham v. Modesto Irr. Dist., 135 Cal. App. 180, 186 [26 Pac. (2d) 876]; and Tormey v. Anderson-Cottonwood I. Dist., 53 Cal. App. 559 [200 Pac. 814], opinion of Supreme Court on denial of hearing, p. 568.) But the fact that the cause of action is one of that kind does not exclude it from the operation of a claim statute, the terms of which are broad enough to embrace it. Although the Constitution grants the right to compensation, it does not specify the procedure by which the right may be enforced.

Such procedure may be set up by statutory or charter provisions, and when so established, a failure to comply with it is deemed to be a waiver of the right to compel the payment of damages. (Crescent Wharf etc. Co. v. Los Angeles, 207 Cal. 430 [278 Pac. 1028]; Young v. County of Ventura, 39 Cal. App. (2d) 732 [104 Pac. (2d) 102], and cases cited; see also Sala v. City of Pasadena, 162 Cal. 714 [124 Pac. 539]; Bigelow v. City of Los Angeles, 141 Cal. 503 [75 Pac. 111]; Bancroft v. City of San Diego, 120 Cal. 432 [52 Pac. 712]; McCann v. Sierra County, 7 Cal. 121; Yonker v. City of San Gabriel, 23 Cal.

App. (2d) 556 [73 Pac. (2d) 623]; and Musto-Keenan Co. v. City of Los Angeles, 139 Cal. App. 506 [34 Pac. (2d) 506].) The Irrigation District Liability Law, su'pra, is entitled: “An act relating to the liability of irrigation districts, their officers and employees.”

Section 1 limits the liability of directors of the district for negligent acts or omissions of employees to cases where the employee was hired with or retained after knowledge that he was incompetent or inefficient.

Section 2 provides: “Whenever it is claimed that any person or property has been injured or damaged as a result of any dangerous or defective condition of any property owned or operated and under the control of any irrigation district or its officers or employees and/or the negligence or carelessness of any officer or employee of an irrigation district, a verified claim for damages shall be presented in writing and filed with such officer or employee and the secretary of said board within ninety days after such accident or injury has occurred.

Such claim shall specify the name and address of the claimant, the date and place of the accident or injury or damage and the nature and extent of the injury or damages claimed. The foregoing shall be a condition precedent to the filing or maintaining of any action for said injury or damages.”

Section 3 imposes a limited liability on the district by obligating it to pay certain judgments against its officers. This, according to

section 4, is the only new liability created by the act. By its complaint, the respondent charged that water escaped from the district’s canal by reason of the operation, maintenance, changes, and alterations of the bed and banks of the canal, causing great and destructive seepage from the canal into and through the soil and into and through the lands of plaintiff, with resultant damage to lands, crops, and permanent improvements; also, that the district failed to make adequate provision against the damage or to provide adequate measures and means to drain, divert, or prevent the water from escaping to its lands.

According to these allegations, the respondent’s property was damaged as the result of a dangerous or defective condition in the maintenance, operation, or alteration by the district of its canals and other works, for unless such condition existed, excessive water could not have escaped. (See Kaufman v. Tomich, 208 Cal. 19 [280 Pac. 130]; and Western Assurance Co. v. Sacramento & S. J. Drainage Dist., 72 Cal. App. 68, 77 [237 Pac. 59]).

The appellant takes the position that the respondent’s action is one for negligence and, even if based upon the constitutional provision requiring compensation to be paid for property damaged, cannot be maintained in the absence of a claim filed in strict compliance with the Irrigation District Liability Law, supra.

The respondent admits that no verifled claim for damages was filed with any officer of the district, but contends that the law concerns actions sounding in tort; that it has no reference to the general liability of the district, and should be construed as applying only to suits against directors, officers, agents, and employees, based on negligence, and to the secondary liability ■ of the district, created by

section 3, to pay certain judgments against officers. However, the statute may be construed in that way only by ignoring both the reference in the title to “the liability of irrigation districts,” and the inclusion in the phraseology of

section 2 of the disjunctive “or,” by use of the term “and/or” instead of merely the conjunction “and.” The term “and/or” is commonly defined to mean either “and” or “or” (Webster’s New International Dictionary, Second Edition; see also note, 118 A. L. R., p. 1367). As used in

section 2 of the act, it refers to a claim for damage grounded upon any one of the following causes: (1) a dangerous or defective condition of property of the district and negligence of an officer or employee; or (2) a dangerous or defective condition of property of the district, that is, a general liability without reference to negligence; or (3) the negligence of an officer or employee. The respondent argues that if the statute had been intended to apply to actions in the nature of eminent domain, if would undoubtedly have been drawn to cover all actions ■within the constitutional provision (art.

I, see. 14, supra), that is, actions for property “taken” for public use, as w.ell as for property “damaged” for such use. This argument is not persuasive. In the case of a “taking” of property for public use, the taker is the first to know about it, and there is no reason to afford him the protection of a claim statute.

On the other hand, where the claim is one of damage, the protection of the statute is essential in order that the one charged with responsibility for the loss may be put upon notice that dangerous or defective conditions are alleged to exist, and thus be given an opportunity to rectify them in time to prevent an unnecessary expansion of the injury or increase in the amount of loss. Moreover, the question whether it would have been better for the legislature to have enacted a provision embracing all cases in eminent domain is not a matter of judicial concern.

It is also argued that the detailed requirements of the statute with respect to the time and manner of filing claims and the contents thereof indicate that the legislature had in mind only cases of accidental injury or specific damage caused at a given time and place by negligence or carelessness. Damage such as that caused by seepage, it is said, can occur so slowly that the injury would not be discovered before the statutory period elapsed.

The answer to this argument lies in the fact that the claim provision as a whole indicates no intention that it is to have a limited application, for the opening clause includes within its scope any claim for damage or injury to property resulting from “any” dangerous or defective condition brought about by the district in the operation of its works. Where the time and extent of injury are uncertain, a statutory period of limitation begins to run when the fact that damage is occurring becomes apparent and discoverable, even though the extent of the damage may still be unknown. (See Young v.

County of Ventura, supra.) The case of Jackson v. City of Santa Monica, 13 Cal. App. (2d) 376 [57 Pac. (2d) 226], relied upon by the respondent, is not determinative of the present controversy.

Although the language of a statute which the court was there called upon to construe is very similar to that used in the one now being considered, its title refers exclusively to the liability of “officers.” The title of the Irrigation District Liability Law, supra, includes “the liability of irrigation districts.” Moreover, the Jackson case concerned two statutes which the court held were complementary and had been passed to meet situations where a joint liability is sought to be enforced. Accordingly, a construction was placed upon them which would give effect to each.

The title of the Irrigation District Liability Law, supra, is sufficiently comprehensive to embrace the entire subject matter of its provisions, including the procedural requirement for the filing of a verified claim. This requirement is incident to and within the general subject of the liability of the district, its officers and employees, in that it provides a method of procedure by which such liability may be established. As stated in Reclamation District v.

Superior Court, 171 Cal. 672, 677 [154 Pac. 845], “ ‘When the general purpose of the act is declared, the details provided for the accomplishment of that purpose will be regarded as necessary incidents. ’ ” See also Thompson v. County of Los Angeles, 140 Cal. App. 73 [35 Pac. (2d) 185]. The title of

an act need not contain either an index or an abstract of its provisions. The constitutional mandate (article IV, sec. 14) is satisfied if the provisions themselves are cognate and germane to the subject matter designated by the title, and if the title intelligently refers the reader to the subject to which the act applies, and suggests the field of legislation which the text includes. (Heron v. Riley, 209 Cal. 507, 511 [289 Pac. 160]; Ex Parte Liddell, 93 Cal. 633, 635 [29 Pac. 251].) The construction placed upon one of the statutes considered in the Jackson case does not violate this principle.

There it was held that a title which refers only to the liability of officers of municipalities and other entities would violate the constitutional mandate if the text of the act were construed to include the liability of the entities themselves as well as of the officers. In the present case the title refers to the liability of both the district and its officers and employees. Moreover, in the Jackson case the title was one drawn in an itemized form, as distinguished from the concise form used in the one now under review.

Where a title assumes to be an index of the particular matters embraced in the act, it has been held that the specific enumeration of subjects therein is exclusive. (O. T. Johnson Corp. v. City of Los Angeles, 198 Cal. 308, 323 [245 Pac. 164].) The district is not estopped to invoke the requirement for the filing of a verified claim by reason of the fact that it had timely notice of the danger to plaintiff’s property derived from written and oral communications with plaintiff concerning the damage.

It is well settled that written notice to or actual knowledge on the part of public officers does not constitute a substantial compliance with or satisfaction of a statutory requirement for a verified claim, or give rise to an estoppel to assert the defense. The long established rule in this state is that the courts may allow no exceptions to the plain provisions of a claim statute under the guise of

interpretation or construction. Compliance with the statute is mandatory and the requirement may not be waived. (Norton v. City of Pomona, 5 Cal. (2d) 54 [53 Pac. (2d) 952]; Western Salt Co. v. City of San Diego, 181 Cal. 696 [186 Pac. 345]; Bancroft v. City of San Diego, supra; Kline v. San Francisco U. School Dist., 40 Cal. App. (2d) 174 [104 Pac. (2d) 661, 105 Pac. (2d) 362]; Young v. County of Ventura, supra; Wicklund v. Plymouth E. School Dist., 37 Cal. App. (2d) 252 [99 Pac. (2d) 314]; Kahrs v. County of Los Angeles, 28 Cal. App. (2d) 46 [82 Pac. (2d) 29]; Yonker v. City of San Gabriel, supra; Strath v.

City of Santa Rosa, 19 Cal. App. (2d) 382 [65 Pac. (2d) 894]; Cooper v. County of Butte, 17 Cal. App. (2d) 43 [61 Pac. (2d) 516], and cases cited; White-Satra v. City of Los Angeles, 14 Cal. App. (2d) 688 [58 Pac. (2d) 933]; Johnson v. City of Glendale, 12 Cal. App. (2d) 389 [55 Pac. (2d) 580], cases cited, pages 393, 394; Spencer v. City of Calipatria, 9 Cal. App. (2d) 267 [49 Pac. (2d) 320]; Myers v. Hopland U. E. School Dist., 6 Cal. App. (2d) 590 [44 Pac. (2d) 654]; Thompson v. County of Los Angeles, supra; Chapman v. City of Fullerton, 90 Cal.

App. 463 [265 Pac. 1035].) The respondent contends that the Irrigation District Liability Law, supra, is unconstitutional because it is special legislation discriminating against a particular class of claimants. (Const., art. IV, sec. 25.) However, public agencies, generally speaking, afford a proper subject for legislative classification. This is true of irrigation districts (Const., art. XI, sec. 13; Wores v. Imperial Irrigation Dist., 193 Cal. 609 [227 Pac. 181]; Wood v. Imperial Irrigation Dist., 216 Cal. 748 [17 Pac. (2d) 128].) “ ... A law, to be general in its scope,” said this court in Heron v.

Riley, 209 Cal. 507, 518 [289 Pac. 160], “need not include all classes of individuals in the state. It answers the constitutional requirements if it relates to and acts uniformly upon the whole of any single class of individuals or objects, and the classification is founded upon some natural, intrinsic or constitutional distinction. (Abeel v. Clark, 84 Cal. 226, 230 [24 Pac. 383]; People v.

Jordan, 172 Cal. 391, 397 [156 Pac. 451].) If good ground for the classification exists, such classification is not void because it does not embrace within it every other class which might be included.” See also Jersey Maid Milk Products Co. v. Brock, 13 Cal. (2d) 620 [91 Pac. (2d) 577]; Ray v. Parker, 15 Cal. (2d) 275 [101 Pac. (2d) 665]. The judgment is reversed. Gibson, C. J., Shenk, J., Curtis, J., and Traynor, J., concurred.