Customer Co. v. City of Sacramento

KENNARD, J., Concurring.

In this case, the Customer Company (hereafter Customer Co.) seeks compensation for damage to one of its convenience *394 store buildings and to food and other merchandise inside the building. The damage was caused when police officers fired tear gas into the store to dislodge a fugitive hidden inside. Customer Co. bases its claim on the “just compensation” clause of the California Constitution (article I, section 19), which gives a right to just compensation when “[p]rivate property [is] taken or damaged for public use.” I agree with the majority that our precedents interpreting the just compensation clause provide no support for the view that Customer Co. has a right to compensation in this case, and I join in the majority opinion.

The majority’s historical survey of just compensation cases focuses on the words “taken or damaged” in the constitutional provision for just compensation, and demonstrates that those words have never been construed to encompass property destroyed in the course of law enforcement activities. The cases the majority surveys, however, do not set forth a coherent and consistent analysis of the limits of just compensation that explains why there is no right to compensation in this case. Nor is this surprising, for legal commentators have long described the law of just compensation, under both the California Constitution and the analogous federal constitutional provision, as a field of doctrinal incoherence littered with differing and inconsistent rationales. 1

Notwithstanding the confusion that characterizes this area of the law, in my view there is a straightforward analytic basis for explaining why Customer Co.’s claim for compensation falls outside the scope of our constitutional provision for just compensation. Unlike the majority, I would focus on the word “use” in the constitutional text. The just compensation clause of the state Constitution does not impose liability in every case in which the government takes or damages property, but only when the government puts the property to some “use.” (Cal. Const., art. I, § 19.) Here, the police did not, in any meaningful sense of the word, use the store windows that they broke or the food and beverages that they contaminated with tear gas. *395 Because in this case there was no use by the government of the property that was destroyed, there is no right to compensation under the state Constitution’s just compensation clause.

This does not mean, however, that those whose property is destroyed by government action are left without any remedies whatsoever. Not only the Tort Claims Act (Gov. Code, § 810 et seq.), which the majority discusses, but also the federal civil rights statute ( 42 U.S.C. § 1983 ; hereafter section 1983) provide damages remedies for governmental deprivations of property. In particular, section 1983 provides a remedy for damage or destruction of property by law enforcement agents that violates the Fourth Amendment or the due process clause of the federal Constitution.

I

Plaintiff Customer Co. operates a chain of convenience stores. A wanted fugitive entered one of Customer Co.’s convenience stores in Sacramento. The store was surrounded by police from the City of Sacramento and by sheriff’s deputies from Sacramento County. The fugitive refused to leave the store. The police officers fired tear gas into the store, breaking plate glass windows, damaging the store’s interior, and contaminating food and other items in the store’s inventory with tear gas residue.

Customer Co. sued the City of Sacramento and Sacramento County (hereafter collectively referred to as Sacramento), seeking to recover for the damage to its store and the store’s contents. Customer Co. alleged a claim for inverse condemnation under the just compensation clause of the California Constitution (art. I, § 19) as well as various tort claims and a federal civil rights claim under section 1983 ( 42 U.S.C. § 1983 ). The superior court granted summary judgment for Sacramento on all of Customer Co.’s claims. The judgment was affirmed on appeal.

In this court, Customer Co. seeks relief solely on the basis of the just compensation clause of the California Constitution. It has expressly abandoned its other theories of relief that it raised in the trial court.

II

The text of the just compensation provision of the California Constitution is found in section 19 of article I (hereafter section 19), which provides in relevant part: “Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.”

*396 Section 19 was not intended to provide compensation for every government-caused injury to property. As the majority demonstrates, our prior cases interpreting this constitutional provision have never recognized any right to compensation for property destroyed in the course of law enforcement activities, as Customer Co.’s property was. Why is it, however, that the just compensation clause does not provide compensation under these circumstances?

In my view, a sound understanding of the just compensation clause begins by returning to the words of the constitutional text. In interpreting constitutional provisions, we must give significance to every word. (City and County of San Francisco v. Farrell (1982) 32 Cal.3d 47, 54 [ 184 Cal.Rptr. 713 , 648 P.2d 935 ].) As I noted at the outset, the majority focuses on the words “taken or damaged” in section 19 and shows their historical limitation to cases of eminent domain or consequential damages from public improvements. There is another word of significance in section 19, however, and that is the word “use.” Section 19 requires that just compensation be paid only for “private property . . . taken or damaged for public use." (Italics added.) Section 19 thus does not require just compensation every time property is taken or damaged by the government, but only requires compensation if there is some use by the government of the property that it has taken or damaged. Customer Co.’s argument for compensation is fundamentally defective because it ignores the threshold requirement of section 19 that the government put to some use the property it takes or damages.

Deciding whether a particular governmental action not only takes or damages property but also amounts to a “use” of that property may be a difficult question in some cases, especially those involving the regulation of property. 2 Here, however, the items of property for which Customer Co. seeks compensation were not regulated or appropriated but were physically destroyed by the government.

*397 In the context of property that the government physically destroys, the “use” requirement is, in the words of one commentator, “the difference between merely depriving someone of something and putting that thing to use by exploiting some productive capacity it possesses. . . . [It] requires a utilization of property going beyond mere deprivation . . . .” (Rubenfeld, Usings, supra, 102 Yale L.J. 1077 , 1115.) Thus, “there is a taking for public use only when government exploits some productive attribute or capacity of private property for state-mandated service . . . .” (Id. at p. 1113, italics original.) Accordingly, whatever limits on the right to compensation the use requirement may impose in other contexts, it generally precludes compensation when property is destroyed by the government without having been appropriated and put to some use.

This court applied this understanding of “use” in denying compensation for the government-caused destruction of a home in Miller v. City of Palo Alto (1929) 208 Cal. 74, 77 [ 280 P. 108 ]. In that case, a city’s disposal of smoldering incinerator ashes in a vacant lot caused a fire which destroyed the plaintiffs’ house. This court held that the plaintiffs were not entitled to compensation under the just compensation clause of the state Constitution because the city’s destruction of their house did not put the house to a “ ‘use by or for the government’ ” or put it to any “ ‘utility or advantage.’ ” (Ibid.)

The United States Supreme Court has similarly denied compensation under the just compensation clause of the federal Constitution in cases in which property was destroyed by the government but not put to any use by it. For instance, in United States v. Caltex, Inc. (1952) 344 U.S. 149 [ 97 L.Ed. 157 , 73 S.Ct. 200 ], the high court denied compensation for a refinery that the government had destroyed with “ ‘deliberation’ ” in advance of Japanese occupation, because “[i]t was destroyed, not appropriated for subsequent use” (id. at p. 155 [97 L.Ed. at p. 163], italics added). The court distinguished other cases in which compensation had been required for property commandeered by the military by noting that those cases “involved equipment which had been impressed by the Army for subsequent use by the Army.” (Id. at p. 153 [97 L.Ed. at p. 161], italics added.) Thus, even in the midst of war the government must pay compensation if it takes a farmer’s hay to feed its horses (no matter how pressing its need for the hay), but not if it destroys the hay crop by marching its soldiers through the hayfield. (See United States v. Pacific R.R. Co. (1887) 120 U.S. 227, 239 [ 30 L.Ed. 634, 638 , 7 S.Ct. 490 ] [distinguishing “the exemption of government from liability for private property injured or destroyed during war, by the operations of armies in the field, or by measures necessary for their safety and *398 efficiency” from the right to compensation “where property of loyal citizens is taken for the service of our armies, such as vessels, steamboats, and the like, for the transport of troops and munitions of war; or buildings to be used as storehouses and places of deposit of war material, or to house soldiers or take care of the sick, or claims for supplies seized and appropriated”].)

Likewise, in Miller v. Schoene (1928) 276 U.S. 272 [ 72 L.Ed. 568 , 48 S.Ct. 246 ], the United States Supreme Court upheld a state’s action in compelling the physical destruction without compensation of valuable trees that the state did not put to any use. Miller’s red cedar trees were susceptible to cedar rust, a disease harmless to Miller’s cedars but injurious to nearby apple orchards. The state required Miller to destroy her cedar trees but it did not put them to any use; the high court held that the destruction of Miller’s cedars without compensation was constitutional. (Id. at pp. 277-278 [77 L.Ed. at pp. 570-571].) Thus, the question of whether the property has been used has been a deciding factor for the high court in determining whether the government must provide compensation for property that it has destroyed. 3

Applying the constitutional provision’s “use” requirement here makes this a straightforward case. The items of property for which Customer Co. seeks recovery are its damaged windows, doors, and ceiling and its tear-gas-contaminated inventory. Although these items were damaged or destroyed, they were not used by the government; the police officers did not exploit any productive attribute or capacity of the property they damaged or destroyed. The officers did not use the food and beverages they contaminated, nor did they use the windows, doors, and ceiling they shattered. The damaged property did not aid the officers in their efforts to capture the fugitive, and the officers would have acted the same had the damaged property not been present at all. As in Miller v. City of Palo Alto , the destroyed property was *399 not put to any “ ‘utility or advantage’ ” (Miller v. City of Palo Alto, supra, 208 Cal. at p. 77 ), nor was it “affirmatively conscripted into service for a state-dictated use” (Rubenfeld, Usings, supra, 102 Yale L.J. at pp. 1112-13).

Because in this case Sacramento did not put the property it destroyed to any affirmative, productive use, Customer Co. has no right to compensation under the just compensation clause. Like the refinery in United States v. Caltex, Inc. and the cedar trees in Miller v. Schoene , Customer Co.’s property was “destroyed, not appropriated for subsequent use” by the government. (United States v. Caltex, Inc., supra, 344 U.S. at p. 155 [97 L.Ed. at pp. 162-163].)

Characterizing the capture of the fugitive here as a public benefit does not transform the government’s destruction of Customer Co.’s property into a use of that property by the government, as I shall explain. There was a collateral public benefit in United States v. Caltex, Inc., supra, 344 U.S. 149 [97 L.Ed. at pp. 159-160], from the government’s destruction of the refinery before the Japanese could capture it and take it over for their use, just as there was a collateral public benefit in Miller v. Schoene, supra, 276 U.S. 272 , from the destruction of Miller’s cedar trees to prevent them from serving as a host for the cedar rust that threatened the nearby apple orchards, and just as there was a collateral public benefit in Miller v. City of Palo Alto, supra, 208 Cal. 74 , from the municipal garbage incineration that caused the destruction of the plaintiff’s house. As in those cases, however, any collateral benefit here to Sacramento from the law enforcement activity it was pursuing did not arise from a use of the items of property for which Customer Co. is seeking compensation. 4

The “use” requirement is a central part of the constitutional text. To ignore it is to turn the just compensation clause into a facially open-ended *400 right to compensation for any government action that affects the value or use of private property. By contrast, if the word “use” in the constitutional text is given its ordinary meaning, the just compensation clause by its own terms no longer threatens absolute liability for any and all government interference with private property. It becomes a self-limiting constitutional provision.

Apart from the role of the word “use” in the constitutional text, one might ask why “use” is a sensible boundary for deciding which government takings or damagings of property should be compensated. The answer may lie in the function performed by the just compensation clause in preserving the autonomy of individuals against the government by restraining the government’s motive to take over their private property for its own ends and uses. (See Rubenfeld, Usings, supra, 102 Yale L.J. at pp. 1142-1146.) The role of this function can be seen by contrasting the operation of the just compensation clause with that of another constitutional restriction on the government’s power over private property, due process.

The due process clauses of the state and federal Constitutions (Cal. Const., art. I, § 7; U.S. Const., Amend. 14, § 1) generally require that the government provide notice and an opportunity to be heard before it deprives a person of property; it also prohibits arbitrary and unreasonable deprivations of property. (In re Marilyn H. (1993) 5 Cal.4th 295, 306-307 [ 19 Cal.Rptr.2d 544 , 851 P.2d 826 ]; Memphis Light, Gas & Water Div. v. Craft (1978) 436 U.S. 1, 19 [ 56 L.Ed.2d 30, 45 , 98 S.Ct. 1554 ]; Village of Euclid v. Ambler Realty Co. (1926) 272 U.S. 365, 395 [ 71 L.Ed. 303, 313-314 , 47 S.Ct. 114 , 54 A.L.R. 1016 ].) When the government causes a deprivation of property but does not benefit from the deprivation by putting the property to use for its own ends, the protections of due process generally suffice to protect against excessive or erroneous deprivations of property because the government has no self-interested motive to take over the property; from that standpoint, it is *401 indifferent to the outcome of the decision as to whether or not deprivation should occur.

The just compensation clause in effect recognizes that governmental deprivations of property by which the government thereby acquires something of value to the government—something that it puts to use—are a special category of deprivation in which the protections of due process are not a sufficient safeguard. (See Rubenfeld, Usings, supra, 102 Yale L.J. at p. 1119 [Discussing the analogous provisions of the federal Constitution: “Recall, moreover, what immediately precedes the Compensation Clause: a provision expressly dealing with deprivations of property—the Due Process Clause—demanding certain protections in the event that property is taken away [by the government]. The Compensation Clause then follows, making special provision for a specific class of deprivations: cases in which private property is not merely taken, but taken for public use” (Italics original.)].) Simply put, the government has a strong motive for taking property it can put to some use; a motive that is lacking in the case of property for which the government has no use. If compensation were not mandated when the government takes property that it puts to use, this motive would lead the government to acquire without limit property for its own use, and would create an unavoidable conflict of interest between the government’s due process obligations to the property owner and the government’s interest in acquiring property for its own use without cost.

By making compensation mandatory in cases where the government uses the property it takes, the requirement of just compensation acts as a check on the government’s appetite for property that it can put to use, an appetite that otherwise could consume both the realm of private property and the political autonomy of the individual against the government. (See Chicago, Burl. & Quincy R.R. v. Chicago (1897) 166 U.S. 226, 237 [ 41 L.Ed. 979, 985 , 17 S.Ct. 581 ] [“[A] government, by whatever name it was called, under which the property of citizens was at the absolute disposition and unlimited control of any depository of power, was, after all, but a despotism . . . .”]; House v. L. A. County Flood Control Dist. (1944) 25 Cal.2d 384, 391 [ 153 P.2d 950 ] [“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.” (Lead opn.)]; Rubenfeld, Usings, supra, 102 Yale L.J. at pp. 1144-1145 [“If the state had unrestrained authority to direct the use of private property, its power to dictate the shape of society and the course of individual lives would be almost limitless.”].) The contours of compensation liability drawn by the “use” requirement thus reflect the unique threat posed by the government’s incentive to take property that it can use.

*402 III

In this court, Customer Co. has expressly abandoned any possible ground for compensation other than the just compensation clause of the California Constitution. We cannot, however, permit Customer Co.’s concessions to limit our view of the question before us. In approaching the problem of government-caused destruction of private property it is a mistake to view the just compensation clause as the sole restraint upon governmental actions affecting private property or as the sole remedy for losses caused by the government to private property. Rather, it is important to recognize both that the just compensation clause is only one of a number of constitutional provisions, both federal and state, limiting government actions affecting private property and that other remedies exist for government-caused injuries to property.

The majority notes one potential avenue of relief, the Tort Claims Act. (Gov. Code, § 810 et seq.) But there exists another potential remedy for the type of government-caused injury to property that occurred in this case. Section 1983, the federal civil rights statute, provides a remedy in damages for actions of state and local government that result in a “deprivation of any rights, privileges, or immunities secured by the [federal] Constitution.” 5 ( 42 U.S.C. § 1983 .) Depending on the circumstances, state action that damages or destroys private property may violate the due process clause of the Fourteenth Amendment of the federal Constitution or the Fourth Amendment’s prohibition of unreasonable seizures. Such unconstitutional state action can thus give rise to liability under section 1983 as the “deprivation of [a] right[] . . . secured by the Constitution.”

Either procedural or substantive due process violations can give rise to a section 1983 cause of action. Procedural due process requires government officials to provide a hearing before depriving individuals of property if “the officials know no emergency exists, or . . . act with reckless disregard of the actual circumstances.” (Sinaloa Lake Owners Ass’n v. City of Simi Valley (9th Cir. 1989) 882 F.2d 1398, 1406 .) Substantive due process prohibits government officials, regardless of the procedural safeguards they employ, from taking or destroying property when to do so is “ ‘clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.’ ” (Id. at p. 1407.)

*403 The Fourth Amendment is another source of protection against government interference with or destruction of property; it prohibits unreasonable seizures of “houses . . . and effects” by the government. (U.S. Const., Amend. 4.) Any meaningful interference with an individual’s possessory interests in property is a seizure within the meaning of the Fourth Amendment. (Sodal v. Cook County (1992) 506 U.S. 56 , _ [ 121 L.Ed.2d 450, 457-459 , 113 S.Ct. 538, 543 ].) The damaging or destruction of property by police during law enforcement activities is therefore a seizure. If the police act unreasonably in causing the damage or destruction they violate the Fourth Amendment, and the property owner may seek compensation for the destruction by means of a section 1983 action. (506 U.S. at pp. _, _-_ [121 L.Ed.2d at pp. 457-459, 463-465, 113 S.Ct. at pp. 543, 548-549].) In Sodal v. Cook County , sheriff’s deputies participated in a trailer park eviction during which a mobilehome was uprooted and towed to another location, damaging it in the process. (Id. at pp. _-_ [121 L.Ed.2d at pp. 456-457, 113 S.Ct. at pp. 541-542].) The United States Supreme Court held that the mobilehome had been seized within the meaning of the Fourth Amendment, and that the mobilehome owner could thus bring suit under section 1983 for the damage caused to the mobilehome by its forcible relocation. ( 506 U.S. at p. _ [ 121 L.Ed.2d at p. 465 , 113 S.Ct. at p. 549 ].)

Thus, law enforcement activities that unreasonably damage or destroy property, thereby seizing it within the meaning of the Fourth Amendment, can give rise to liability under section 1983. In Bonds v. Cox (6th Cir. 1994) 20 F.3d 697, 702 , a homeowner stated a section 1983 claim by alleging the police violated the Fourth Amendment when in the course of executing a search warrant they caused damage to her home and belongings, “which included broken doors, mutilated vinyl siding, a cracked commode, holes in walls, broken dishes, and trampled personal belongings . . . .” Likewise, in Fuller v. Vines (9th Cir. 1994) 36 F.3d 65 , the police during an altercation with the plaintiff shot and killed the plaintiff’s dog. The plaintiff stated a section 1983 claim by alleging that the destruction of his dog by the police was an unreasonable seizure in violation of the Fourth Amendment. (36 F.3d at pp. 67-68.)

Conclusion

The just compensation clause of the state Constitution requires compensation only when the government puts to some “use” the property that it takes or damages. (§ 19.) The Customer Co.’s assertion that whenever property is destroyed by deliberate law enforcement activities, the government has thereby necessarily put the property to use would read the word “use” and the limitation it imposes on the scope of compensation liability out of the Constitution.

*404 We are required, however, by settled principles of constitutional interpretation to accord meaning to the word “use.” Because in this case the police did not make any use of the property they destroyed, Customer Co. has no right to compensation under the just compensation clause.

Finally, it bears emphasizing that the just compensation clause is not the only constitutional provision that limits governmental actions affecting private property, nor is it the only potential monetary remedy available when government deprives someone of property.

I would affirm the judgment of the Court of Appeal for these reasons as well as for those stated by the majority.

(See, e.g., Van Alstyne, Inverse Condemnation: Unintended Physical Damage (1969) 20 Hastings L.J. 431 , 431-432 [“[I]nverse condemnation ... is entangled in a complex web of doctrinal threads. . . . [J]udicial opinions seldom seek to reconcile these divergent approaches.” (Fn. omitted.)]; Van Alstyne, Statutory Modification of Inverse Condemnation: Deliberately Inflicted Injury or Destruction (1968) 20 Stan.L.Rev. 617, 618 [“[A] disorderly and frequently inconsistent array of judicial decisions on the compensability of claimed losses.” (Fn. omitted.)]; Sax, Takings and the Police Power (1964) 74 Yale L.J. 36 , 37 [“[T]he predominant characteristic of this area of law is a welter of confusing and apparently incompatible results.”]; Peterson, The Takings Clause: In Search of Underlying Principles (Part 1) (1989) 77 Cal.L.Rev. 1299, 1304 [“it is difficult to imagine a body of case law in greater doctrinal and conceptual disarray”]; Rubenfeld, Usings (1993) 102 Yale L.J. 1077 , 1081 [“only the right of privacy can compete seriously with takings law for the doctrine-inmost-desperate-need-of-a-principle prize”].)

It is clear, however, that the government need not physically occupy property or assert legal ownership of a recognized property interest in order to put private property to use. For example, when the government enacts a regulation that has the effect of dictating an exclusive, government-determined use for a particular parcel of land, it “uses” that property just as much as if it had acquired ownership of the land. The United States Supreme Court has noted “the practical equivalence in this setting of negative regulation and appropriation.” (Lucas v. So. Carolina Coastal Council (1992) 505 U.S. 1003 , _ [ 120 L.Ed.2d 798, 815 , 112 S.Ct. 2886, 2895 ].) It has observed that “regulations that leave the owner of land without economically beneficial or productive options for its use—typically, as here, by requiring land to be left substantially in its natural state—carry with them a heightened risk that private property is being pressed into some form of public service” or, in other words, is being put to some use by the government. (Id. at pp. _._ [ 120 L.Ed.2d at p. 814 , 112 S.Ct. at pp. 2894-2895].) On the other hand, there may be certain exceptional situations where even the government’s physical occupation of land does not amount to a “use” of the land. (See Brown v. State of California (1993) 21 Cal.App.4th 1500, 1504 [ 26 Cal.Rptr.2d 687 ] [holding that no compensation was due for state’s occupation of a privately owned parcel of land for 10 years *397 in order to clean up hazardous waste on the property, because the state’s occupation was not a use of the land].)

The question of whether the government has made use of property has also been determinative of whether compensation is required in other contexts. (Compare United States v. Causby (1946) 328 U.S. 256, 264 [ 90 L.Ed. 1206, 1211-1212 , 66 S.Ct. 1062 ] [landowner had right to compensation for United States military overflights at height of 83 feet during takeoffs and landings; “the flight of airplanes which skim the surface but do not touch it, is as much an appropriation of the use of the land as a more conventional entry upon it” (italics added)] with Hamilton v. Kentucky Distilleries Co. (1919) 251 U.S. 146, 157 [ 64 L.Ed. 194, 199-200 , 40 S.Ct. 106 ] [prohibition of liquor sales that rendered liquor valueless was not taking of liquor for public use because “[t]here was no appropriation of the liquor for public purposes” (italics added)]; compare United States v. Pewee Coal Co. (1951) 341 U.S. 114, 117 [ 95 L.Ed. 809, 813-814 , 71 S.Ct. 670 ] [government seizure of coal mine to continue its operations during wartime labor dispute was compensable taking for public use because government thereby “engaged in the mining business”] with United States v. Central Eureka Mining Co. (1958) 357 U.S. 155, 165-166 [ 2 L.Ed.2d 1228, 1234-1236 , 78 S.Ct. 1097 ] [no right to compensation where government ordered gold mines closed for duration of war but “did not occupy, use, or in any manner take physical possession of the gold mines” (italics added)].)

The dissent contends that the government “ ‘use[s]’ ... the damaged property ... in every case where deliberate government conduct undertaken for public benefit physically . . . destroys, or damages private property.” (Dis. opn., post, at p. 415.) In doing so, the dissent erroneously confuses “use” of property with “public benefit” from governmental conduct affecting property. As this court recognized in Miller v. City of Palo Alto, supra, 208 Cal. at page 77 , and as the United States Supreme Court has recognized in the cases cited in the text, however, the meaning of “use” is more limited than the dissent acknowledges. Those cases establish that, contrary to the dissent, the government can destroy or damage property without putting it to use. Nor do the cases cited by the dissent support its equation of use with public benefit. Instead, the cited language addresses not whether the government has put property to use but whether the use was public or private (City of Oakland v. Oakland Raiders (1982) 32 Cal.3d 60, 69 [ 183 Cal.Rptr. 673 , 646 P.2d 835 , 30 A.L.R.4th 1208 ]; Bauer v. County of Ventura (1955) 45 Cal.2d 276, 284 [ 289 P.2d 1 ]) or what the proper measure of damages is for a compensable taking or damaging of property (Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 263 [ 42 Cal.Rptr. 89 , 398 P.2d 129 ]).

The dissent also argues that a right to compensation arises whenever “physical injury is the incidental consequence of deliberate government action in furtherance of public purposes.” (Dis. opn., post, at p. 415, fn. 7, italics original.) It relies, however, on cases of this court *400 involving public improvements in which: (1) the damaged real property was itself put to use as a site for storing or conveying water (Locklin v. City of Lafayette (1994) 7 Cal.4th 327 [ 27 Cal.Rptr.2d 613 , 867 P.2d 724 ]; Bauer v. County of Ventura, supra, 45 Cal.2d 276 ; Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 637-638 [ 220 P.2d 897 ]); or (2) consequential damages resulted either from the government’s use of private land to provide lateral support for public improvements (Reardon v. San Francisco (1885) 66 Cal. 492 [ 6 P. 317 ] [consequential damage to structure on private land resulted when government, by depositing fill on public roadway, caused soil on adjoining private land to rise until it provided lateral support to roadway]; Albers v. County of Los Angeles, supra, 62 Cal.2d 250 [damage to hillside homes caused by using privately owned hillside to support earth placed at top of hill by the government]) or from the government’s removal, in connection with a use of its land, of earth that provided lateral support to adjoining private land (Holtz v. Superior Court (1970) 3 Cal.3d 296 [ 90 Cal.Rptr. 345 , 475 P.2d 441 ]). By contrast, in this case and in the cases I cited earlier in the text, the government did not use the property it destroyed, nor did the destruction occur as a form of consequential damage from an accompanying use of land, either in connection with a public improvement or otherwise.

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” (§ 1983.) Attorney fees are available to a prevailing plaintiff in a section 1983 action under 42 United States Code section 1988 .