AGATHA ARCHER et al., Appellants, v. CITY OF LOS ANGELES (a Municipal Corporation) et al., Respondents; JAMES L. ALLISON et al., Appellants, v. CITY OF LOS ANGELES (a Municipal Corporation) et al., Respondents, 19 Cal. 2d 19

TRAYNOR, J. — Plaintiffs own land in Venice, a suburb of the city of Los Angeles. The land is located near La Ballona Lagoon, a body of water about two miles long and two miles wide, which empties into the Pacific Ocean and is fed by La Ballona Creek, a natural watercourse draining an area of about 134 square miles. A map of the area as it existed in 1893 shows that the waters descending from the hills followed no defined course until they reached lower La Ballona Creek.

In the ensuing years, however, the area drained by the creek and its tributaries was transformed into residential and business districts and the waters were gradually confined to ditches and channels emptying into the creek. The city of Los Angeles, the Los Angeles County Flood Control District, and the county of Los Angeles, acting independently, straightened, widened, and deepened the creek and its tributaries and constructed concrete storm drains to improve the drainage.

The urbanization of the area resulted in less absorption of water into the earth, while the improved drainage accelerated the flow of water into the lagoon. The outlet from the lagoon into the ocean, however, was in no way improved to accommodate the increased flow of water but remained in its natural state. Meanwhile several bridges were constructed across the lagoon. Throughout December 31, 1933, and January 1, 1934, a heavy rainstorm occurred.

The waters swept down La ¿aliona Creek and into the lagoon where, because of the inadequate outlet, they overflowed on to plaintiffs’ properties, flooding them to a depth of from six to eight feet for about four days. The plaintiffs thereupon brought these actions for damages against the city, the county, and the flood control district. They claim the right to recover from defendants under

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section 14 of the California Constitution which requires the payment of just compensation for private property taken or damaged for public use. The complaints allege that defendants acted negligently in constructing a drainage system with an inadequate outlet, improperly permitted obstructions in the lagoon, diverted water from streets within the drainage area on to plaintiffs’ properties, and damaged plaintiffs’ property for a public use without making compensation.

A demurrer of the defendant flood control district to one of the complaints was sustained without leave to amend, but on appeal the District Court of Appeal reversed the judgment, holding that the complaint stated a good cause of action. (Archer v. City of Los Angeles, 15 Cal. App. (2d) 520 [59 Pac. (2d) 605].) The actions were then consolidated for trial. At the conclusion of plaintiffs’ evidence, the trial court entered judgments of nonsuit in favor of defendants, and plaintiffs have appealed.

It is settled that “A nonsuit 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. . . . ” (Mastrangelo v. West Side U. H. School Dist., 2 Cal. (2d) 540, 544 [42 Pac. (2d) 634]; Angelus Sec. Corp. v. Ball, 20 Cal.

App. (2d) 423, 435 [67 Pac. (2d) 152].) Plaintiffs have established by their evidence that defendants straightened and widened the channel of La Baliona Creek and constructed concrete storm drains that followed the natural drainage of the country; that these improvements accelerated the flow of the water; that the outlet into the ocean remained unimproved and could not accommodate the increased flow; that the defendants had knowledge of the inadequacy of the outlet ; that in the opinion of two experts such a drainage system was “not good engineering”; and that the flow of water was obstructed by several bridges across the lagoon including one constructed by the city.

The question presented is whether a governmental agency is liable under

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section 14, for damaging property for a public use when improvements constructed by it along the natural course of a stream and its tributaries accelerate the flow of the water, and lower lands are flooded because of the inadequacy, known to the agency, of the outlet to accommodate the increased flow. The state or its subdivisions may take or damage private property without compensation if such action is essential to safeguard public health, safety, or morals. (Gray v. Reclamation Dist., 174 Cal. 622 [163 Pac. 1024] at 640; Bowditch v. Boston, 101 U. S. 16 [25 L. Ed. 980]; Chicago B. & Q. R. R. Co. v.

Illinois, 200 U. S. 561 [26 Sup. Ct. 341, 50 L. Ed. 596]; Omnia Commercial Co. v. United States, 261 U. S. 502 [43 Sup. Ct. 437, 67 L. Ed. 773]; see cases cited 5 Cal. Jur. 696 et seq.) In certain circumstances, however, the taking or damaging of private property for such a purpose is not prompted by so great a necessity as to be justified without proper compensation to the owner. (Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 [43 Sup. Ct. 158, 67 L. Ed. 322]; Chicago B. & Q. R. R. Co. v. Chicago, 166 U. S. 226 [17 Sup. Ct. 581, 41 L. Ed. 979]; see eases cited in 10 Cal.

Jur. 283, 284, 295.) The liability of the state under

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section 14 of the California Constitution arises when the taking or damaging of private property is not so essential to the general welfare as to be sanctioned under the “police power” (Pennsylvania Coal Co. v. Mahon, supra; Chicago B. & Q. R. R. Co. v. Chicago, supra; 10 Cal. Jur., supra; see Mugler v. Kansas, 123 U. S. 623 [8 Sup. Ct. 273, 31 L. Ed. 205]), and the injury is one that would give rise to a cause of action on the part of the owner independently of the constitutional provision. (Lamb v. Reclamation Dist., 73 Cal. 125, 129-131 [14 Pac. 625, 2 Am. St. Rep. 775]; San Gabriel Valley Country Club v.

County of Los Angeles, 182 Cal. 392 [188 Pac. 554, 9 A. L. R. 1200]; Jefferson County Drainage Dist. v. McFaddin, (Tex. Civ. App.) 291 S. W. 322.) The provision permits an action against the state, which cannot be sued without its consent. It is designed, not to create new causes of action, but to give a remedy for a cause of action that would otherwise exist. The state is therefore not liable under this provision for an injury that is damnum absque injuria.

If the property owner would have no cause of action were a private person to inflict the damage, he can have no claim for compensation from the state. (Lamb v. Reclamation Dist., supra, 129-131; San Gabriel Valley Country Club v. County of Los Angeles, supra; Jefferson County Drainage Dist. v. McFaddin, supra.) In the present case, therefore, plaintiffs have no right to compensation under

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section 14, if the injury is one that a private party would have the right to inflict without incurring liability. It is established in California and other jurisdictions that a lower owner has no right of redress for injury to his land caused by improvements made in the stream for the purpose of draining or protecting the land above, even though the channel is inadequate to accommodate the increased flow of water resulting from the improvements. (San Gabriel Valley Country Club v. County of Los Angeles, supra; Board of Drainage Com’rs. v. Board of Drainage Com’rs., 130 Miss. 764 [95 So. 75, 28 A. L.

R. 1250]; Mizell v. McGowan, 129 N. C. 93 [39 S. E. 729, 85 Am. St. Rep. 705]; O’Donnell v. City of Syracuse, 184 N. Y. 1 [76 N. E. 738, 112 Am. St. Rep. 558, 3 L. R. A. (N. S.) 1053]; City of Hamilton v. Ashbrook, 62 Ohio 511 [57 N. E. 239]; Lessenger v. City of Harlan, 184 Iowa 172 [168 N. W. 803, 5 A. L. R. 1523]; Strauss v. Allentown, 215 Pa. 96 [63 Atl. 1073, 7 Ann. Cas. 686]; Peck v. Herrington, 109 Ill. 611, 50 Am. Rep. 627]; Jefferson County Drainage Dist. v. McFaddin, supra; City of Ludlow v. Broderick, 181 Ky. 123 [203 S. W. 1082]; Manteufel v. Wetzel, 133 Wis. 619 [114 N. W. 91, 19 L. R. A. (N.

S.) 167]; Trigg v. Timmerman, 90 Wash. 678 [156 Pac. 846, L. R A. 1916F, 424]; Robb v. Village of La Grange, 158 Ill. 21 [42 N. E. 77].) In the San Gabriel Valley Country Club case Los Angeles County constructed concrete storm drains that followed the natural drainage of the country, accelerated the flow of water, and prevented its absorption by adjoining lands. As a result plaintiff’s land, situated below the point where the drains emptied into the stream, was damaged during a heavy rain storm.

In holding that plaintiff had no right of recovery against the county this court stated (at page 406) : “ ... an improvement for the purposes of the drainage and protection of lands above does not give a lower riparian owner on the stream a cause of action merely because such improvement increases the volume of water in the stream as it comes to his land, even though the burden he is necessarily under of protecting his land against the stream is thereby increased and his land is injured because of his failure to meet such increased burden; . . . the rule is not subject to the limitation that the increased volume must not be such as to make the stream exceed the capacity of its channel.” Accordingly, the construction of the improvements by the defendants in the instant ease did not place upon them the duty of improving the outlet.

They cannot be held negligent for doing what they liad a right to do even though a different plan might have avoided the damage. (Board of Drainage Com’rs. v. Board of Drainage Com’rs., supra, at 81; Dudley v. Village of Buffalo, 73 Minn. 347 [76 N. W. 44, 45]; Hamilton v. Ashbrook, supra, at 241; Lessenger v. City of Harlan, supra, at 805.) The improvements must follow the natural drainage of the country. If the water is diverted out of its natural channel and discharged into a different channel or upon neighboring land, the diverter is liable to the owner whose land is injured by such discharge. (Shaw v.

Sebastopol, 159 Cal. 623 [115 Pac. 213]; Stanford v. San Francisco, 111 Cal. 198 [43 Pac. 605]; Farrell v. City of Ontario, 39 Cal. App. 351 [178 Pac. 740], 36 Cal. App. 754 [173 Pac. 392]; Dick v. City of Los Angeles, 34 Cal. App. 724 [168 Pac. 703]; Mulder v. City of Los Angeles, 110 Cal. App. 663 [294 Pac. 485]; Newman v. City of Alhambra, 179 Cal. 42 [175 Pac. 414]; see 11 Cal. L. Rev. 444.) In the present case, however, there is no evidence of diversion.

Straightening, widening, or deepening the channel of a stream to improve the drainage entails no diversion of the waters therein. (San Gabriel Valley Country Club v. County of Los Angeles, supra; Lambert v. Alcorn, 144 Ill. 313 [33 N. E. 53, 21 L. R. A. 611]; Gentry v. Weaver, 130 Kan. 691 [288 Pac. 745]; St. Paul & D. B. Co. v. Duluth, 56 Minn. 494 [58 N. W. 159, 45 Am. St. Rep. 491, 23 L. R. A. 88]; Fenton v. Adams, 221 Ill. 201 [77 N. E. 531, 112 Am. St. Rep. 171]; see 67 C.

J. 902.) Likewise there is no diversion if surface waters, flowing in no defined channel, are for a reasonable purpose gathered together and discharged into the stream that is their natural means of drainage even though the stream channel is inadequate to accommodate the increased flow. (San Gabriel Valley Country Club v. County of Los Angeles supra, 401, 402; Sheehan v. Flynn, 59 Minn. 436 [61 N. W. 462, 26 L. R. A. 632]; Board of Drainage Com’rs. v. Board of Drainage Com’rs., supra; Mizell v. McGowan, supra; Dudley v. Village of Buffalo, supra; Waffle v. New York Central R. R. Co., 53 N. Y. 11 [13 Am.

Rep. 467]; St. Paul & D. R. Co. v. Duluth, supra; City of Hamilton v. Ashbrook, supra; Lessenger v. City of Harlan, supra; Peck v. Herrington, supra; Jefferson County Drainage Dist. v. McFaddin, supra; Manteufel v. Wetzel, supra; see Robb v. Village of La Grange, supra; O’Donnell v. City of Syracuse, supra; City of Maysville v. Brooks, 145 Ky. 526 [140 S. W. 665]; see cases cited in 85 Am. St. Rep. 733, 734.) A California landowner may not collect such waters and discharge them upon adjacent land (LeBrun v. Richards, 210 Cal. 308 [291 Pac. 825, 72 A. L.

R. 336]), but he may discharge them for a reasonable purpose into the stream into which they naturally drain without incurring liability for damage to lower land caused by the increased flow of the stream. As stated in San Gabriel Valley Country Club v. County of Los Angeles, supra, at pages 401, 402: “Not to permit an upper land owner to protect his land against the stream would be in many instances to destroy the possibility of making the land available for improvement or settlement and condemn it to sterility and vacancy. Such a rule would seriously interfere with the development of the country.

Because of this, and because of the necessity of permitting the utilization for drainage of the means afforded by nature for the purpose, a very great preponderance of the decisions in other states go further than it is necessary to go in this ease, and hold that a riparian owner has no right to complain because the volume of water in the stream is increased by artificially draining surface waters into it above, provided only the stream is the natural drainage channel for the lands so drained.

Furthermore, this rule is adopted regardless of whether the so-called common-law rule concerning surface waters prevails in the particular jurisdiction or, as here, the civil-law rule, which forbids the gathering together of surface waters and discharging them as a stream upon adjoining lands. 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. (Citing cases.) Mr. Freeman in his note in 85 Am. St.

Rep. 727, reviews very thoroughly the authorities dealing with the right to accelerate or diminish the flow of water, and upon the particular point under discussion says (page 733) : ‘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 can drain into them, and thereby increase their volume without subjecting himself to liability for any damage suffered by a lower owner. ’ ’ ’ The evidence here presented shows clearly that the storm drains constructed by defendants either followed the channel of natural streams (see Larrabee v. Cloverdale, 131 Cal. 96, 100 [63 Pac. 143]), or discharged into the creek surface waters that would naturally drain into it. Any damage caused by an obstruction to the natural flow of waters is also actionable (Richardson v.

City of Eureka, 96 Cal. 443 [31 Pac. 458]; Dick v. City of Los Angeles, supra; Los Angeles Cemetery Ass’n v. Los Angeles, 103 Cal. 461 [37 Pac. 375]; Conniff v. San Francisco 67 Cal. 45 [7 Pac. 41]; Larrabee v. Cloverdale, supra; Geurkink v. City of Petaluma, 112 Cal. 306 [44 Pac. 570]), and plaintiffs contend that several bridges and other structures obstructed the flow of waters through the lagoon. Their evidence shows that only one bridge was constructed by defendants. The basis of liability must therefore depend upon this bridge.

Plaintiffs’ evidence establishes that this bridge caught debris swept down into the lagoon and obstructed to some extent the flow of the waters. The testimony of plaintiffs’ own experts makes it clear, however, that the flooding of plaintiffs’ land was caused by the inadequacy of the outlet and would have occurred regardless of the obstruction created by the bridge. Plaintiffs have made no showing that the obstruction of the bridge contributed to the damage caused by the overflow.

No liability can be imposed upon defendants merely because the bulkheads supporting the banks on either side of the bridge might have prevented the water from forcibly widening the channel by washing away the banks; for it is firmly established that a riparian owner may erect bulkheads or other structures along the banks of a stream to protect his land from being washed away. (Barnes v. Marshall, 68 Cal. 569 [10 Pac. 115]; Weinberg Co. v. Bixby, 185 Cal. 87 [196 Pac. 25]; Horton v. Goodenough, 184 Cal. 451 [194 Pac. 34]; De Baker v. Southern Cal. Ry. Co., 106 Cal. 257, 279, 280 [39 Pac. 610, 46 Am. St.

Rep. 237]; Lamb v. Reclamation Dist., 73 Cal. 125 [14 Pac. 625, 2 Am. St. Rep. 775]; Sanguinetti v. Pock, 136 Cal. 466 [69 Pac. 98, 89 Am. St. Rep. 169]; see cases cited in 25 Cal. Jur. 1051, 1052, see. 47; 26 Cal. Jur. 290-292, secs. 503-508.) The evidence presented by the plaintiffs in the instant case is therefore insufficient to establish a right to recover against the defendants.

Plaintiffs contend that the decision of the District Court of Appeal, holding that their complaint stated a good cause of action against a general demurrer, is the law of the case and requires this court to reverse the nonsuit of the trial court.

The District Court of Appeal stated that “The gist of the . . . complaint ... is that respondent constructed and built an artificial drainage system so defectively, carelessly and negligently that it would not carry the storm waters to the Pacific Ocean as designed and intended” and “that the injury to the appellants occurred by reason of the fact that respondent negligently turned the storm waters into La Baliona lagoon, which was too small to conduct the water turned into it by and through the drainage system constructed, operated and maintained by respondent. ...” According to the allegations of the complaint, the damage resulted because defendants negligently diverted water out of its natural channel, and obstructed the channel of the creek.

Plaintiffs’ evidence, however, fails to substantiate such allegations. The decision of the District Court of Appeal on demurrer is therefore not binding on this court in passing on the sufficiency of the evidence to support the allegations. The judgment is affirmed. Gibson, C. J., Shenk, J., and Edmonds, J., concurred.