LILLIAN CANDACE HOUSE, Appellant, v. LOS ANGELES COUNTY FLOOD CONTROL DISTRICT, Respondent, 25 Cal. 2d 384

CURTIS, J. This is an appeal from a judgment of dismissal entered after the trial court had sustained a demurrer to the plaintiff’s first amended complaint without leave to amend. The plaintiff, as the owner of certain land in Los Angeles County adjacent to the Los Angeles River, undertakes to state a cause of action based upon damages to her property by reason of the negligence of the defendant district in its planning, construction and maintenance of certain flood control channel work in said river. She rests her right of recovery upon

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section 14, of the state Constitution, which provides that private property shall not be taken or damaged for public use without just compensation to the owner. The trial court erred in failing to sustain the constitutional basis of the plaintiff’s claim under the distinguishable concept of her pleading.

As appears from the amended complaint, the gist of the plaintiff’s case is as follows: In pursuance of its plan for flood control, the Los Angeles County Flood Control District removed permeable dikes, piling, wire mesh and groins that bordered the Los Angeles River adjacent to the plaintiff’s land and replaced these installations with levees. The effect of the dikes and other obstructions had been to reduce the high velocity of the river waters in flood season by permitting them to spread over an extensive overflow area, leaving a deposit of silt thereon.

Upon the removal of these protective structures and the substitution of the levees along the river banks, the regimen of the stream was completely changed in that there was no provision for overflow spread on adjoining lands, with the result that the waters were confined to a smaller area and their velocity was greatly increased.

The plaintiff charges the defendant district with negligence in these principal particulars in the planning and erection of the newly installed flood control works: (1) in failing to make the artificial river channel of sufficient size to accommodate the augmented volume of waters in flood season; and (2) in building the levees of improper materials—sand and gravel upon which were piled small stone blocks of inadequate size, without being bonded together with cement, grout or other substance—so that they were unable to withstand the erosive force of the river waters.

The plaintiff then alleges that as the proximate result of these negligent acts, the storm waters flowing in the Los Angeles River on March 2, 3 and 4, 1938, broke through the levees and burst with great violence upon her adjacent land, denuding it of its soil to a depth of from six to ten feet and washing away all the improvements situate thereon, to her damage in the sum of $30,663.

The plaintiff further avers that the defendant district’s undertaking of such public improvement work was not occasioned by such imminent peril or emergency in relation to the general welfare as would excuse it from taking proper measures in the course of construction—during the years of 1935, 1936 and 1937—to safeguard her property from the danger attendant upon its pursuit of a flood control plan contrary to good engineering practices, and its installation and maintenance of defective structures following the removal of the protective agencies that had theretofore existed along the river banks.

In this connection the plaintiff alleges that she suffered no damage to her property during the great flood of the Los Angeles River in January, 1934. It would serve no useful purpose to engage here in a detailed discussion of the opposing arguments as to whether under the above mentioned constitutional provision a public agency in the installation of river channel improvements is generally liable to the property owner for overflow damage incident to the exercise of such governmental function. The divergent views on that unqualified proposition were fully reviewed by this court recently in the cases of Archer v.

City of Los Angeles (1941), 19 Cal.2d 19 [119 P.2d 1] and O’Hara v. Los Angeles County Flood Control Dist. (1941), 19 Cal.2d 61 [119 P.2d 23], While the latter case involved the same flood control project as is now subject of complaint and under the prevailing view there, the varying claims of damage were held to be noncompensable upon distinguishable theories, the liability feature here arises under a different aspect.

By her pleading the plaintiff advances, in the nature of a limitation upon a public agency’s performance of its governmental function, the charge of negligence, an added feature which did not enter into the 0 ’Hara decision. Accepting the premise of argument of the parties here that a levee improvement made in the channel of a stream for the general welfare is referable to the police power, the propriety of its exercise must still be considered under the distinct circumstances presented.

While the police power is very broad in concept, it is not without restriction in relation to the taking or damaging of property. When it passes beyond proper bounds in its invasion of property rights, it in effect comes within the purview of the law of eminent domain and its exercise requires compensation. (Varney & Green v. Williams, 155 Cal. 318 [100 P. 867, 132 Am.St.Rep. 88, 21 L.RA.N.S. 741] ; Pacific Telephone etc. Co. v. Eshleman, 166 Cal. 640 [137 P. 1119, Ann.

Cas. 1915C 822, 50 L.R.A.N.S. 652].) In fact, on the point of a governmental agency’s liability for damages arising in connection with its undertaking construction work, the prevailing opinion in the Archer ease, supra, does not purport to dispute the settled principle that public necessity limits the right to exact uncompensated submission from the property owner if his property be either damaged, taken or destroyed.

Rather it is expressly stated there in the prevailing opinion (19 Cal.2d 23-24): “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, [citing authorities.] 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 he justified without proper compensation to the owner, [citing authorities.]” (Italics added.) Thus there is recognized the incontestable proposition that the exercise of the police power, though an essential attribute of sovereignty for the public welfare and arbitrary in its nature, cannot extend beyond the necessities of the case and be made a cloak to destroy constitutional rights as to the inviolateness of private property.

A case closely in point here is Pacific Seaside Home v. Newbert P. District, 190 Cal. 544 [213 P. 967], where the sufficiency of the plaintiff’s pleading was likewise under attack. There this court said at pages 545-546: “. . . The defendant was a public corporation . . . entitled to maintain and defend actions in law and in equity . . . and would be liable for the negligent diversion of storm waters upon the plaintiff’s property. (Elliott v.

County of Los Angeles, 183 Cal. 472, 475 [191 P. 899].) The gist of the plaintiff’s complaint is that the defendant constructed channels for the water of the Santa Ana River so defectively and negligently that they would not carry the waters of the stream.

Plaintiff alleges that ‘had the defendant not changed the natural course of the Santa Ana River, or in anywise interfered with its natural flow, the waters of the Santa Ana River would have flowed on into Newport Bay and no damage would have accrued to the plaintiff had the said river been permitted to flow as it naturally would had not the defendant constructed its channel to divert the same. . . .’ It is further alleged in effect that the injury occurred to the plaintiff by reason of the fact that the defendant negligently turned the waters of the Santa Ana River in a channel which was too small, and which was negligently constructed and maintained, and that by reason thereof it was damaged. “These facts sufficiently state a cause of action.” (Italics added.) The Elliott and Pacific Seaside Home cases were cited as the basis for upholding the sufficiency of the plaintiffs’ complaint against a general demurrer in the first appellate consideration of the damage claim presented in Archer v.

City of Los Angeles, 15 Cal.App.2d 520 [59 P.2d 605], The pleading was described by the District Court of Appeal as follows at pages 521-522: "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 Ballona lagoon, which was too small to conduct the water turned into it by and through the drainage system constructed, operated and maintained by respondent. . . .” Subsequently, the Archer damage action was before this court for decision upon the appeal from the judgment of nonsuit entered at the close of the plaintiffs' evidence at the trial. (Archer v.

City of Los Angeles, supra, 19 Cal.2d 19.) In the prevailing opinion affirming the judgment, the following distinction, after quotation of the above portion of the decision of the District Court of Appeal on demurrer, was made at page 29: “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.” (Italics added.) Measured by its own limitation, such language, denoting the deficiency in the plaintiffs’ establishment of their case, does not mean that a governmental agency in the installation of-stream improvements may escape liability under the constitutional compensation requirement where the property owner sustaining damage from such work proves, in accordance with his allegations, negligence in the construction and maintenance of the public project.

Under the accepted circumstances there, the prevailing opinion in the Archer case applied the doctrine of damnum absque injuria by declaring that the governmental agency was exercising a riparian right so that it would be no more liable to a lower property owner damaged thereby than would a private person inflicting a like injury in protection of his upper lands. (Archer v. City of Los Angeles, supra, at p. 24; cf. O’Hara v.

Los Angeles County Flood Control Dist., supra, at p. 63.) In the present case the defendant district may not escape liability on any theory of exercising a riparian right, for the plaintiff does not correlate her damage claim with any such principle.- Bather she makes the direct charge that the defendant district removed a safe and secure protection to her land immediately adjacent thereto and substituted therefor an unsafe, carelessly and negligently planned bank or wall, resulting in the overflow, inundating and washing away of her property, which had theretofore never been visited by the river waters.

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 indradual’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. Unquestionably, under the pressure of public necessity and to avert impending peril, the legitimate exercise of the police power often works not only avoidable damage but destruction of property without calling for compensation.

Instances of this character are the demolition of all or parts of buildings to prevent the spread of conflagration, or the destruction of diseased animals, of rotten fruit, or infected trees where life or health is jeopardized.

In such cases calling for immediate action the emergency constitutes full justification for the measures taken to control the menacing condition, and private interests must be held wholly subservient to the right of the state to proceed in such manner as it deems appropriate for the protection of the public health or safety. (18 Am.Jur. 778; 29 C.J.S. 784.) But the present case.does not appear to be 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 channel project.

According to the plaintiff’s pleading, the defendant district, with time to exercise a deliberate choice of action in the manner of its installation of the river improvements, followed a plan “inherently wrong” and thereby caused needless damage to her property.

While mere errors of judgment in planning and constructing a public work may be consistent with reasonable care, procedure so grossly incompetent and contrary to “good engineering practices” as to constitute negligence may well give the injured property owner just cause for complaint upon the ground that the governmental agency responsible for the project has transgressed the limits of the police power. (Kaufman v.

Tomich, 208 Cal. 19 [280 P. 130].) Such conclusion 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 (cf. 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 Goal Co. v. Mahon, 260 U.S. 393 [43 S.Ct. 158, 67 L.Ed. 322]; cited with approval in Archer v.

City of Los Angeles, supra, at p. 24.) For the foregoing reasons the defendant district’s exercise of the police power does not of itself furnish complete justification for the infliction of damage upon the plaintiff’s property without liability for compensation. Under the theory of her pleading, the plaintiff has alleged facts sufficient to constitute a cause of action within the scope of

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section 14, of the state Constitution, and it was error for the trial court to rule otherwise. The judgment of dismissal is therefore reversed. Gibson, C. J., and Shenk, J., concurred.