# Belair v. Riverside County Flood Control District

> California Supreme Court · December 22, 1988 · 47 Cal. 3d 550

URL: https://www.frixlaw.com/law-library/cases/9940173

## Case

- **Full name:** RONALD H. BELAIR Et Al., Plaintiffs and Appellants, v. RIVERSIDE COUNTY FLOOD CONTROL DISTRICT Et Al., Defendants and Respondents
- **Court:** California Supreme Court
- **Decided:** December 22, 1988
- **Citations:** 47 Cal. 3d 550; 253 Cal. Rptr. 693; 764 P.2d 1070; 1988 Cal. LEXIS 265
- **Precedential status:** Published
- **Opinion:** Dissent by Mosk
- **Judges:** Kaufman, Mosk
- **Cited by:** 94 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9940173

## How later opinions describe it (automated extraction)

- holding, that “there must be a showing of ‘a substantial cause-and-effect relationship excluding the probability that other- forces alone produced the injury.’ "
- holding that “there must be a showing of ‘a substantial cause-and-effect relationship excluding the probability that other forces alone produced the injury.’”

## Opinion text

I agree with the majority that plaintiffs in their inverse condemnation claim established they suffered actual physical damage to their real property that was directly or substantially caused by flood control improvements operating as deliberately planned and built. But I disagree that plaintiffs nonetheless failed to prove their case by omitting to allege and establish "unreasonable conduct." *Page 569
I.
As the majority correctly observe, the interpretation of article I, section 14, of the California Constitution long was guided by principles of private law. (Van Alstyne, Inverse Condemnation: Unintended Physical Damage (1969) 20 Hastings L.J. 431 (hereafter Van Alstyne).) Early decisions are legion that viewed the just compensation clause exclusively as a vehicle to surmount difficulties of sovereign immunity; the provision thus was understood "not to create new causes of action but only to give the private property owner a remedy he would not otherwise have against the state. . . ." ( Bauer v. County of Ventura
(1955) 45 Cal.2d 276 , 282 [ 289 P.2d 1 ]; see also Van Alstyne, p. 441.) So construed, the clause articulated no independent legal relationship between the state and its citizenry.
Two decades ago we decisively rejected this reasoning and embraced a competing conception of article I, section 14. In the seminal case of Albers v. County of Los Angeles (1965) 62 Cal.2d 250 , 263 [ 42 Cal.Rptr. 89 , 398 P.2d 129 ] (hereafter Albers ), this court reaffirmed earlier precedent declaring that the constitutional provision expresses an independent policy "`to distribute throughout the community the loss inflicted upon the individual by the making of the public improvements,'" albeit within parameters imposed by the countervailing risk of "`imped[ing] . . . beneficial public improvements because of the greatly increased cost.'" (Quoting Bacich v. Board of Control
(1943) 23 Cal.2d 343 , 350 [ 144 P.2d 818 ]; see, e.g., Reardon v. San Francisco (1885) 66 Cal. 492 , 505 [ 6 P. 317 ].) As we subsequently explained in Holtz v. Superior Court (1970) 3 Cal.3d 296 [ 90 Cal.Rptr. 345 , 475 P.2d 441 ], this cost-spreading objective, "rather than the limits established by a rule of statutory or common law allocating rights and responsibilities between private parties, must fix the extent of a public entity's responsibility." ( Id. at p. 302.)
After considering the various interests implicated by this objective, we concluded in Albers that with two exceptions, "any actual physical injury to real property proximately caused by the improvement as deliberately designed and constructed is compensable under article I, section 14, of our Constitution whether foreseeable or not." ( Albers, pp. 263-264.) The tort concept of fault — contingent on the foreseeability of injury — thus was omitted from the Albers standard for inverse condemnation liability. As the late Professor Van Alstyne observed in a related context, there was good reason for this omission: "Consistent with the intent of the framers of the just compensation clause to protect property interests against even the best intentioned exercises of public power, it avoids as well a fruitless search for the somewhat artificial moral elements inherent in the tort concepts of negligence and intentional wrongs." (Van Alstyne, p. 495, fn. omitted.) *Page 570
The Albers court nevertheless recognized two limited circumstances "in which the urgency or particular importance of the governmental conduct involved was so overriding that considerations of public policy inveighed against a rule rendering the acting public entity liable absent fault. The first exception . . . involved noncompensable damages `inflicted in the proper exercise of the police power'; the second exception, the Archer exception ( Archer v. City of Los Angeles (1941) 19 Cal.2d 19 , 24 [ 119 P.2d 1 ] [hereafter Archer ]), encompassed those cases in which the state at common law `had the right to inflict the damage.'" ( Holtz v. Superior Court, supra,
3 Cal. 3d at pp. 304-305, italics in original, citation omitted.) The latter exception, "emanating from the complex and unique province of water law, has been employed in only a few restricted situations, generally for the purpose of permitting a landowner to take reasonable action to protect his own property from external hazards such as floodwaters." ( Id. at p. 306.) The majority embrace this exception, as modified, as the ratio decidendi of the case, reasoning that a public entity's conduct with regard to flood control improvements is privileged if "reasonable" and in that case is beyond the reach of the Albers
rule. They proceed to hold that "unreasonable conduct" must be proved to recover in cases falling within the modified Archer
exception, and conclude that plaintiffs failed to satisfy the required showing.
II.
Unlike the majority, I would not attempt to save the Archer
"right to inflict damage" exception, grounded as it is in anachronistic tort and property rules for determining liability for defective flood control improvements. The Albers court inexplicably endorsed the exception and its vestigial reasoning while elsewhere assailing the very principles upon which the exception rests. (See Albers , pp. 262-263.) Although I concur that flood control is a sufficiently unique and compelling public endeavor to fall outside the strict liability standard of Albers, the alternative rule of liability for such undertakings should nevertheless derive from the objectives of the just compensation clause itself rather than inapposite analogies to private law. (Van Alstyne, pp. 498-499.) *Page 571
The Archer exception traces its origins to the "common enemy" doctrine of water law, which recognizes a private landowner's right to protect his land by erecting defensive barriers against the "common enemy" of floodwaters. ( Clement v. State Reclamation Board (1950) 35 Cal.2d 628 , 635-636 [ 220 P.2d 897 ].) Such conduct is privileged, and any resulting injury inflicted on downstream property owners is not compensable. ( Id. at p. 636.) The initial rationale for the rule was to foster private land development: "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." ( San Gabriel V.C. Club v. Los Angeles (1920) 182 Cal. 392 , 401 [ 188 P. 554 , 9 A.L.R. 1200 ].) The privilege, however, has never applied to obstructions or diversions of a natural channel, or to the creation of new channels "by which the natural stream waters of the river are carried onto the lands of another that would have been protected therefrom but for the creation of the artificial channel. . . ." ( Clement v. State Reclamation Board, supra, 35 Cal.2d at p. 636 .)
Relying on the now-discredited principle that the just compensation clause waived sovereign immunity but created no new causes of action, the court in Archer reasoned that the private law "common enemy" privilege should similarly protect the state in its construction of flood control improvements. ( Archer, pp. 24-25.) However, the Archer exception "is not applied as an unlimited rule of privileged self-help. Mindful of the enormous damage-producing potential of defective public flood control projects, the courts have insisted that public agencies must act reasonably in the development of construction and operational plans so as to avoid unnecessary damage to private property." (Van Alstyne, p. 455, fn. omitted; see Holtz v. Superior Court, supra, 3 Cal.3d at p. 307, fn. 12 .)
While declining to "examine the continued validity of . . . these long-lived doctrines, [or] question the applicability of the policies supporting the `privileged' status of a particular private activity in the context of public improvements," the court in Holtz registered its uneasiness with the Archer
exception by noting that "significant policy differences . . . exist between the private and the public spheres. Although certain socially beneficial conduct may appropriately be designated `privileged' for private individuals in order that they will not be deterred from undertaking the activity, the public entity may continue to engage in this same `privileged' activity even if it must bear the loss of resulting damages. In such a case, there may well be no reason to depart from the general constitutional guarantee of just compensation." ( Holtz
v. Superior Court, supra, 3 Cal.3d at pp. 307, 308, fn. 13.)
As Van Alstyne illustrates, the concerns voiced by the Holtz
court were well-founded: "The rationale of the `common enemy' rule . . . is of dubious validity when considered in the context of governmentally administered flood control projects developed for the collective protection of entire regions. . . . [¶] Piecemeal construction, often an inescapable feature of such major flood control projects, creates the possibility of interim damage to some lands left exposed to flood waters while others are within the protection of newly erected works. Indeed, the partially completed works, by preventing escape of waters that previously were uncontrolled, actually may increase the volume and velocity of flooding. . . . The prevailing private *Page 572
law doctrine embodied in the `common enemy' rule, however, imposes no duty upon the public entity to provide complete protection against flood waters. . . . Increased or even ruinous damage incurred by the temporarily unprotected owners, due to the inability of the improvements to provide adequate protection to all, therefore, is not a basis of inverse liability. The constitutional promise of just compensation for property damage for public use thus yields to the overriding supremacy of an anomalous rule of private law." (Van Alstyne, pp. 500-501, fns. omitted.)
The Archer exception does not merely bar compensation for certain deserving plaintiffs, however, but elsewhere generates unreasonably expansive public liability. Tied to the prerequisites of the common law privilege, Archer offers no protection for flood control improvements which "divert" stream waters from their natural drainage. ( Clement v. State Reclamation Board, supra, 35 Cal.2d at pp. 637-638.) 1 Thus any damage resulting from the diversion of water pursuant to a flood control program remains compensable under the strict liability standard of Albers . ( Ibid.; see Tyler v. Tehama County (1895) 109 Cal. 618 [ 42 P. 240 ].) While sensible in the private context with respect to the interests of adjacent landowners, the distinction becomes much less reasonable in the broader context of public flood control systems: "Stream diversions . . . may be integral features of coordinated flood control . . . projects undertaken on a large scale by public entities organized for that very purpose. Where this is so, the community may suffer more by general fiscal deterrents resulting from indiscriminately imposed strict liabilities than by specifically limited liabilities determined by the reasonableness of the risk assumptions underlying each diversion." (Van Alstyne, p. 502, fn. omitted.)
The distinction between "common enemy" and "diversion" cases not only fails to meaningfully address the interests implicated by inverse condemnation, but furthermore turns on the relatively arbitrary characterization of the particular facts of each case: "If the improvements are regarded as causing an alteration in the direction of force of the normal current within the channel, they may readily be thought of as having `diverted' the stream. This approach supports a holding of inverse liability without fault *Page 573
for resulting downstream erosion of the banks. By describing the channel improvements as measures to fight off the common enemy of flood waters, however, attention is focused upon the issue of fault and the alleged defective nature of the improvement plan. The result is to make liability vel non turn ostensibly upon the unarticulated premises that control the classification process, rather than upon a conscientious appraisal of the relativity of public advantage and private harm in the particular factual situation." (Van Alstyne, p. 462, fn. omitted.) In the case at bar, for example, the failed levee was positioned to effectively block oncoming water channeled by two preexisting levees on the opposing bank; the water "diverted" by the new levee eventually scoured its foundation and caused the collapse. Accordingly, one could plausibly conclude that this dispute is actually a diversion case, insofar as the damage resulted from interference with the preexisting flow of the river, and thus reverse the assessment of liability. Surely the inquiry should turn on more substantial distinctions than these.
One might perhaps argue that the negligence standard should be employed to allocate liability for damages caused by flood control improvements within the exception's reach. Motivated by an understandable concern that an excessively permissive standard for compensation would deter the construction of beneficial projects, one might turn to the familiar tort principle to delimit the state's potential exposure. Fault, however, is an exceedingly blunt and inapt device to accomplish the desired effect.
As previously noted, the touchstone of inverse condemnation liability is "whether the owner of the damaged property if uncompensated would contribute more than his proper share to the public undertaking." ( Clement v. State Reclamation Board, supra, 35 Cal.2d at p. 642 .) Balanced against this cost-spreading objective is the reality that boundless liability will thwart the development of beneficial public improvements. ( Albers, p. 263.) This constraint on compensation for damages inflicted by the state, however, is entirely unrelated to the blameworthiness of the damaging conduct; the framers of the just compensation clause sought to protect private property without regard to the decency of the state's intentions. (Van Alstyne, Statutory Modification of Inverse Condemnation: The Scope of Legislative Power (1967) 19 Stan.L.Rev. 727, 771-776; Van Alstyne, supra, 20 Hastings L.J. at p. 495.) Accordingly, the "fruitless search for the somewhat artificial moral elements inherent in the tort concepts of negligence and intentional wrongs" ( ibid. ) should be recognized as irrelevant to the determination of inverse liability. (See Kratovil Harrison, Eminent Domain — Policy and Concept (1954) 42 Cal.L.Rev. 596, 621.) Contemporary appellate decisions uniformly agree. ( McMahan's of Santa Monica v. City of Santa Monica (1983) 146 Cal.App.3d 683 , 697 [ 194 Cal.Rptr. 582 ]; Yee v. City of Sausalito (1983) 141 Cal.App.3d 917 , 921 [ 190 Cal.Rptr. 595 ]; Marin v. City of San Rafael (1980) 111 Cal.App.3d 591 , 595 [ 168 Cal.Rptr. 750 ]; see also Imperial *Page 574 Cattle Co. v. Imperial Irrigation Dist. (1985) 167 Cal.App.3d 263 , 274, fns. 4, 5 [ 213 Cal.Rptr. 622 ].)
Consistent with the purposes of the just compensation clause, nonnegligently inflicted damages should be compensable if the aggrieved citizen bears more than his proper share of the unanticipated additional cost of the flood control improvement, and if the imposition of such compensation is not reasonably likely to deter future beneficial public works. As Van Alstyne observed, "practically every governmental decision to construct a public improvement involves, however remotely, at least some unforeseeable risks that physical damage to property may result. In the presumably rare instance where substantial damage does in fact eventuate `directly' from the project, and is capable of more equitable absorption by the beneficiaries of the project (ordinarily either taxpayers or consumers of service paid for by fees or charges) than by the injured owner, absence of fault may be treated as simply an insufficient justification for shifting the unforeseeable loss from the project that caused it to . . . the equally innocent owners." (Van Alstyne, pp. 493-495, fns. omitted.)
III.
In view of the foregoing considerations, I believe it is erroneous to base inverse liability in the flood control context on the multiple irrelevancies of the modified Archer exception; compensation should instead rest directly on an explicit balancing of the interests implicated by the constitutional provision. Accordingly, I would assess such liability in the following manner: once a landowner establishes that he has suffered actual physical damages, whether foreseeable or not, that were directly or substantially caused by flood control improvements operating as deliberately planned and built, he should receive compensation for the loss unless the public entity can demonstrate that his interest in compensation is outweighed by the risk that such compensation will unreasonably inflate the cost of the project in a manner likely to deter the future construction of beneficial flood control improvements. The greater the owner's interest in compensation, the more compelling must be the public entity's showing of unreasonableness.
The landowner's compensation interest should be understood to denote the extent to which he has contributed more than his proper share to the public undertaking, and should be measured on the basis of such factors as the extent of the damage, "the degree to which the loss is offset by reciprocal benefits," "the extent to which damage of the kind sustained is generally regarded as a normal risk of land ownership," and "the degree to which like damage is distributed at large over the beneficiaries of the project or is peculiar to the claimant." (Van Alstyne, p. 502.) The countervailing disincentive effect, expressed in terms of the reasonableness of the compensation *Page 575
costs to be imposed on the public entity, should be measured according to such factors as "the availability to the public entity of feasible preventive measures or of adequate alternatives with lower risk potential" and "the severity of damage in relation to risk-bearing capabilities." ( Ibid.; see generally id. at pp. 491-493.)
This liability standard addresses the fundamental cost-spreading objective of the just compensation clause while guarding against excessively expansive compensation which might impede the construction of public improvements. Utilization of the rule in place of the Albers standard recognizes that flood control improvements pose the unavoidable risk of extraordinarily vast liabilities; compensation for flood damages thus requires individualized consideration of disincentive effects which in the context of other public works are sufficiently "remote" to justify strict liability. ( Albers, p. 263.) Nevertheless, this standard and the Albers rule both follow directly from the policies underlying inverse condemnation, which simply yield different measures of liability for disparate factual circumstances.
I turn now to the case at bar. As stated above, plaintiffs established actual physical damage directly or substantially caused by flood control improvements operating as deliberately planned and built. Defendants, however, were not required to show, and did not show, that their interest in compensation was outweighed by the risk that such compensation would unreasonably inflate the cost of the project in a manner likely to deter the future construction of beneficial flood control improvements. Because defendants did not make that showing, the superior court erred by entering judgment in their favor and the Court of Appeal erred by affirming that judgment.
For the reasons stated, I would reverse the judgment of the Court of Appeal with directions to reverse the judgment of the superior court for further proceedings in accordance with this opinion.
Appellants' petition for a rehearing was denied February 2, 1989. Mosk, J., was of the opinion that the petition should be granted.
1 The majority intimate without holding that future diversion cases may be treated within the modified Archer exception by expanding its reach to encompass all "flood control" cases. (Maj. opn., ante, at pp. 566-567.) They suggest that the common law "diversion" rule can be set aside in this context in light of the principle that "the purposes of the constitutional clause, rather than the rules `emanating from the complex and unique province of water law,' must fix the extent of a public entity's responsibility.'" ( Id. at p. 567, quoting Holtz v. Superior Court, supra, 3 Cal.3d at p. 306 .) Having embraced this analysis, however, the majority relinquish any rational basis for their continuing adherence to the Archer exception even as modified. It would be far easier to acknowledge the fundamental incompatibility of Archer's
private law underpinnings with the purposes of inverse condemnation, and set it aside in its entirety.
*Page 576

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9940173. Public record. Not legal advice.