noting that a “new condition will be regarded as though it were a natural one, its artificial origin being then disregarded by the law,” only if, among other elements, “the creator of the artificial condition intended it to be permanent” (emphasis in original)
How later courts described this case
- noting that a “new condition will be regarded as though it were a natural one, its artificial origin being then disregarded by the law,” only if, among other elements, “the creator of the artificial condition intended it to be permanent” (emphasis in original)
Written by the judges who cited it.
The opinion
*646 CARTER, J.
I concur in the judgment of reversal, but do not agree with the reasons on which it is based. The majority opinion cites and apparently relies upon, the cases of Archer v. City of Los Angeles, 19 Cal.2d 19 [ 119 P.2d 1 ], and O’Hara v. Los Angeles Flood Control Dist., 19 Cal.2d 61 [ 119 P.2d 23 ]. These cases are in direct conflict with the basic theory upon which the majority opinion in this case is based. I dissented in both of the last mentioned cases and the views expressed in those dissents constitute the only basis upon which plaintiff may prevail in the ease at bar. What the defendants did in the Archer and O’Hara eases is the same as what the defendants did in the case at bar, namely, they constructed a flood control system which was inadequate to protect plaintiff’s property from damage by flood waters which would not have caused such damage had the system not been constructed. In those cases, the majority of this court held that defendants were not liable for the damage thus caused to plaintiff’s property. In the case at bar the majority opinion holds that if plaintiff’s property was damaged as the result of the changes made by defendants in the flood control system in the vicinity of plaintiff’s property, he may recover. It should be clear to anyone that the basic legal theory of the Archer and 0 ’Hara cases is diametrically opposed to the theory upon which the majority opinion in the case at bar is based. Yet the former cases are relied upon as authority for the conclusion reached in the ease at bar. I commend the majority, and particularly the author of the present opinion, for their and his change of view, but I feel constrained to suggest that much confusion would be avoided in the law in this field if the Archer and O’Hara cases were overruled and a forthright declaration made by this court to the effect that defendant’s liability in cases such as this is predicated upon section 14 of article I of the Constitution of California and that the police power doctrine cannot be invoked to deny compensation or damages to owners of property which has been destroyed or damaged as the result of the construction or operation of flood control projects. The Archer and O’Hara cases deny recovery upon the theory that the damages suffered were damnum absque injuria in that they resulted from the construction and operation of a flood control project by a public agency in the exercise of the police power. The present case holds that plaintiff may recover under section 14 of article I of the Constitution of California for any damages suffered as the result of the natural flow of the waters of the Sacramento *647 River discharging onto his property by reason of the changed conditions in the levees along the river brought about by the flood control project constructed by defendants. The two theories are inconsistent and no amount of distinguishing can reconcile them.
I agree with the holding in the majority opinion that “ . . . the construction of the farmer levees in 1870 and their continued maintenance until 1932 created a new natural condition, in effect making the channel between the farmer levees a new natural channel and the waters contained by those levees the natural stream waters of the Sacramento River. ’ ’ But, I do not agree that under the so-called common enemy doctrine defendants are not liable for damage to plaintiff’s land from flood waters which were caused to flow with destructive force upon plaintiff’s land as the result of the lowering of the levee in the construction of the Colusa Weir, which admittedly lowered the east bank of the river to a depth of between 8 and 10 feet opposite plaintiff’s land, without providing adequate safeguards against flood waters discharging through this weir with destructive force upon plaintiff’s land. While this court has held in many cases that an owner of property has the right to protect Ms property against so-called flood waters by the construction of levees, dams, etc., on his property and that other property owners have no right of action for damages against him because such levees or dams cause the flood waters to discharge onto their property with destructive force, this does not mean, and no case except the Archer and 0 'Hara cases has ever held, that an owner of property may not complain and recover damages for injury to his property as a result of the construction of a flood control project where protective barriers are deliberately removed and flood waters are deliberately collected and discharged onto his property with such destructive force as to damage or destroy the same. The very fact that a project is undertaken by a public agency for the purpose of controlling flood waters should afford a sound basis for the contention that such a project when completed should protect property adjacent thereto from damage by flood waters regardless of their volume or velocity. To say that the comomn enemy doctrine should apply to a public agency charged with the duty and responsibility of constructing and maintaining a flood control project the same as to a private individual owning land adjacent to a stream, is to my mind, unsound, if not absurd. *648 Yet, the majority opinion states: “Action that may be taken for his own protection without liability by an individual landowner may be taken by the state for the protection of all the landowners in an area without liability under article I, section 14 for damage caused thereby." The opinion then cites and quotes from the Archer case as authority for this statement. As heretofore stated, a complete answer to this statement is found in my dissenting opinion in the Archer case.
It is apparent that the majority opinion limits the right of a private owner of land to recover damages in a case such as this, to such damages as may be caused from a diversion of natural stream waters onto his land. In this respect the majority opinion states: “If, however, the construction of a flood control project diverts natural stream waters onto the land of a private owner and causes damage thereto, that property is as much taken or damaged for a public use for which compensation must be paid as if it were condemned for the construction of a highway or a school." The majority opinion does not define what constitutes “natural stream waters." Such waters have, however, been defined by this court in Herminghaus v. Southern California Edison Co., 200 Cal. 81 at pages 90 and 91 [ 252 P. 607 ], as being the usual and ordinary flow of the stream through the various seasons of the year, and “ that annually recurring floods, even though the flow of their waters made the stream wider during the period thereof so as to include adjoining lands, are yet to he deemed a part of the ordinary flow of the stream.” While the discussion in the Herminghaus case related to the right of a riparian owner to have the full natural flow of a stream to flow past his land, it correctly defines what constitutes the usual and ordinary flow of a stream in its relation to the common enemy or extraordinary flood waters doctrine. In other words, what constitutes the usual and ordinary flow of the Sacramento River are the waters which customarily flow in said river throughout the various seasons of the year, the fall, winter, and spring flows being greatly in excess of the summertime flow. It is a matter of common knowledge, and one of which we can take judicial notice, that at various times in the past, flows which greatly exceeded the usual and ordinary flow during the fall, winter, and spring seasons have occurred, some of them amounting to what may be termed floods which caused great damage to lands, improvements, and livestock adjacent to the lower reaches of the Sacramento River. It was to prevent the damage caused by these recurring floods that the various flood control projects *649 were undertaken and prosecuted to completion. If the project here involved was so constructed that the property of plaintiff and other property owners would suffer greater damage from these recurring floods than they would have suffered before the project was constructed, such landowners should be entitled to the damages suffered, and the so-called common enemy doctrine should not be invoked by the Reclamation Board or other public agency responsible for the inadequacy of the project to accomplish the objective of the flood control project.
I am unable to follow the reasoning in the following excerpts from the majority opinion: 1 ‘ The construction of the Colusa Weir was not an independent project by which a continuous flood control barrier was cut. The construction of the weir was coincident with the closing of the Moulton and DeJarnatt Breaks to provide a relief opening for the protection of the levees. Damage caused thereby is therefore not actionable unless the cutting of the weir caused more water to flow into the Butte Basin than would have flowed through the Moulton and DeJarnatt Breaks before they were closed.” . . .
“The water that would have flowed through the Moulton and De Jarnatt Breaks before they were closed is flood water because it was not contained by the banks of the river. The water that was prevented from going through these breaks after they were closed remained flood water, and if it is that water that went over the Colusa Weir defendants are not liable. Thus defendants are liable only if the water flowing over the Colusa Weir is water that would have been contained by the banks of the river had the Moulton and DeJarnatt Breaks not been closed. ’ ’
As I interpret the foregoing excerpts from the majority opinion, the thought intended to be expressed is that although plaintiff had suffered no damage from flood waters which were discharged through the Moulton and DeJarnatt Breaks, and would not have suffered any damage from the flood here in question had said breaks been left open, and that the damage to his property was caused by the closing of the breaks and the construction of the Colusa Weir, yet he may not now recover for any damage to his land if the waters causing said damage were flood waters which would have discharged through the Moulton and DeJarnatt Breaks, but which were forced through the Colusa Weir because said breaks were closed. To my mind this is a strange and unsound rule of law. In effect, it places in the hands of a public agency charged *650 with the duty and responsibility of constructing and maintaining flood control projects, the power to so construct and operate such projects as to damage or destroy such private property as such agency may see fit, without being liable to the owner of such private property for the loss suffered by him. If there is any basis in reason, logic, common sense, or law for such a holding it has not been advanced in a majority opinion, and I have never read a decision of any court announcing such a rule, except the Archer and 0 ’Hara cases.
The majority opinion attempts to distinguish this case from the Archer case by the following statement: “Since, in that ease (Archer), the damage was caused solely by flood waters that would have inundated plaintiffs’ land even though the drainage system had not been constructed, it was held that the injury was damnum, absque injuria, and that it was not made actionable merely because the construction of the drainage system had increased the velocity of the flood waters or the extent to which they covered plaintiffs’ land. By the same reasoning, plaintiff in the present case is entitled to recover for whatever damage to his land is attributable to defendants ’ lowering of the levee and diversion of the natural stream waters into an artificial channel, but cannot recover for any damage caused by flood waters against which he had the duty of self-protection, even though the velocity of those waters and their carrying capacity was increased by the construction of the flood control project.” The purported distinction between this case and the Archer case attempted in the foregoing excerpt is not borne out by the record in the Archer ease. This is shown by the following excerpt from my dissenting opinion in that ease: (Archer v. City of Los Angeles, 19 Cal.2d 35 [ 119 P.2d 1 ]) “It is manifest that the foregoing facts are sufficient to make a prima facie case in accordance with plaintiffs’ allegations and to establish what the District Court of Appeal declared to be the gist of the Archer action, that is, 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 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 . . .’ (Archer v. City of Los Angeles, supra) On the doctrine of the law of the *651 case, as to the Archer case, and stare decisis, as to the Allison case, it must be held that plaintiffs have established the liability of defendants.
‘1 The attempted answer to that incontrovertible proposition advanced by the majority opinion is that: ‘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.’ That statement is palpably incorrect. The gist of the action as stated by the District Court of Appeal was not that water had been ‘diverted out of its natural channel,’ rather it was that the defendants negligently ‘turned the storm waters into La Ballona Lagoon,’ that is, collected surface waters and discharged them into the lagoon. The evidence without contradiction shows that that occurred. The storm waters were collected into drains and turned into the lagoon and creek, the outlet of which was too small to carry them, with the result that plaintiffs’ lands were flooded when the lagoon overflowed. The prior decision is therefore the law of the case and controlling here. ’ ’ Also, the following excerpt from that opinion which appears on page 60: “Summing up, we have cases where public agencies, with no proprietary right so to do, have collected surface waters by the installation of drains, have discharged those waters into a natural watercourse, and have failed to provide adequate means of escape for those waters into the ocean, well knowing that their conduct would cause the flooding of plaintiffs’ premises. As a result of that conduct, the waters discharged in the watercourse exceeded its capacity and could not escape through the inadequate outlet, and plaintiffs’ land and the improvements thereon, not riparian to the stream, being three miles away, and not having theretofore been subject to overflow by any of the waters, are flooded and damaged. The majority decision is contrary to the firmly established law in California and the weight of authority in other jurisdictions. It will not only result in a grievous miscarriage of justice in the cases now under consideration, but will cause great confusion in the law on the subject here involved.”
In the last quoted excerpt from the majority opinion in the case at bar, the statement is made that plaintiff “. . . cannot recover for any damage caused by flood waters against which he had the duty of self-protection, even though the veloc *652 ity of those waters and their carrying capacity was increased by the eonstrnction of the flood control project.” It is difficult for me to understand how anyone could have the temerity to even suggest that a person situated as plaintiff in this ease could protect himself against flood waters of the destructive volume which was debouched on his land as the result of the operation of the flood control project here involved. Such suggestion transcends the height of absurdity and cannot be said to have for its foundation a shred of reason, logic, or common sense.
While it is probable that the advent of the great Central Valley project, which envisions the construction of numerous dams to impound the flood waters of the great Sacramento and San Joaquin Rivers at or near their sources so as to prevent the recurrence of the great floods which have in the past at various times inundated the valleys through which these rivers flow with consequent damage and destruction of property, may relieve posterity from the arduous burden of attempting to bring lucidity and order out of the confusion and chaos which now exists in the decisions of this court involving the control and use of water, I have grave doubt that any student of water law, should he so desire, will be able to reconcile the decisions of this court with any pattern which may be said to reflect judicial erudition or craftsmanship in the development of this body of our law.