Summary
In Tyler v. Tehama County, 109 Cal. 618 [42 P. 240], this court reversed a judgment for defendant entered after sustaining a demurrer to the amended complaint.
Summary of this case from Albers v. County of Los AngelesOpinion
Department One
Hearing In Bank Denied.
Appeal from a judgment of the Superior Court of Tehama County. John F. Ellison, Judge.
COUNSEL:
The board of supervisors has power and jurisdiction to erect and manage bridges within the county. (County Government Act, sec. 25, subd. 4.) The defendant cannot take or damage the land of the plaintiff without first making compensation therefor. In the absence of compensation made this action can be maintained. (Reardon v. San Francisco , 66 Cal. 492; 56 Am. Rep. 109; Conniff v. San Francisco , 67 Cal. 45; City of Atlanta v. Green , 67 Ga. 386; Moore v. City of Atlanta , 70 Ga. 611; Eaton v. Boston etc. R. R. Co ., 51 N.H. 504; 12 Am. Rep. 147; Lewis on Eminent Domain, secs. 53-59; Shirley v. Bishop , 67 Cal. 543.)
J. C. Ball, and J. T. Matlock, for Appellant.
L. V. Hitchcock, District Attorney, for Respondent.
A county is not liable for the tortious acts or negligence of its officers and agents. (4 Am. & Eng. Ency. of Law, 367, 368, and cases there cited; Sherbourne v. Yuba County , 21 Cal. 113; 81 Am. Dec. 151; Huffman v. San Joaquin County , 21 Cal. 427; Crowell v. Sonoma County , 25 Cal. 313; Barnett v. Contra Costa County , 67 Cal. 77; Templeton v. Linn County , 22 Or. 313; Downing v. Mason County , 87 Ky. 208; 12 Am. St. Rep. 473; Shepard v. Pulaski County (Ky. Jan. 12, 1892), 18 S.W. 15; Smith v. Board of Commrs ., 131 Ind. 116; Dillon on Municipal Corporations, sec. 963.) The action of the board of supervisors in causing a bridge to be erected outside of a public road was ultra vires, and did not bind Tehama county. (County Government Act, sec. 25, subd. 4; McKenzie v. Gilmore (Cal., June 3, 1893), 33 P. Rep. 262; Browning v. Board of Commrs ., 44 Ind. 11.) The liability of the county for injuries to property is determined by the same principle as in personal injuries. By that principle the county is not liable in the case at bar. (Arnold v. City of San Jose , 81 Cal. 619; Crowell v. Sonoma County , 25 Cal. 315.)
JUDGES: Haynes, C. Belcher, C., and Britt, C., concurred. Harrison, J., Garoutte, J., Van Fleet, J.
OPINION
HAYNES, Judge
[42 P. 241] This appeal is by the plaintiff from a judgment rendered on demurrer to his amended complaint. The action was brought to recover damages and to enjoin the defendant from maintaining a certain bridge, with its buttresses, piers, and walls, and that the same be declared a nuisance and abated as such.
The bridge in question was erected by the board of supervisors in 1892, over Elder creek, on the Tehama and Red Bluff road, to replace a bridge erected many years before, and which had become unsafe. It is alleged that the new bridge was built below and alongside of the old one, but outside of the highway on the property of plaintiff; that plaintiff's residence is on the southerly side of said creek, a short distance below the bridge and near said creek; that it was built before said new bridge was erected; that the abutments or walls supporting the new bridge confined the waters during freshets and turned the current against the south bank of the stream near his house, and caused it to cut away the bank, and that, if continued, it will destroy his house and much valuable land.
The demurrer was general and special, but the ground upon which the demurrer was sustained, as appears from the written opinion of the learned judge of the court below as well as from the briefs of counsel, was that the complaint does not state a cause of action. The ground upon which the court based its decision, briefly stated, is that as the bridge was built not upon the highway, but upon private property, the acts of the board of supervisors in causing its construction were unauthorized and unlawful; that for such acts the county is not responsible, and that if any one is responsible it is the supervisors personally (citing Crowell v. Sonoma County , 25 Cal. 313); while counsel for respondent adds to the above that the construction of bridges is not one of the powers of counties, but is one of the enumerated powers of the board of supervisors; that counties are not liable for the acts or negligence of its officers, unless such liability is imposed by express statutory provisions; that the complaint does not allege that said bridge was erected either wrongfully, unlawfully, or against the will or consent of the plaintiff; and that, even if the complaint had alleged the erection of the bridge, piers, etc., upon the public highway, it would not have stated a cause of action, as it fails to allege a lack of ordinary care and skill in its erection.
Assuming for the present that the acts of the board of supervisors were authorized and lawful, the first question to be determined then is whether the county is liable for the consequential injuries caused by the construction of the bridge in such manner as to change the direction of the current so as to cut away the southerly bank of the stream, causing injury to plaintiff's land and threatening the destruction of his residence.
It is undoubtedly true that at common law an action does not lie against a county, and that, in the absence of some constitutional or statutory provision, counties are to be treated as political divisions of the state, created for convenience, and not liable for damages caused by the neglect of its officers or agents.
Crowell v. Sonoma County, supra, cited in the opinion of the learned judge in the court below and by counsel for respondent in his brief, was an action against the county for injuries to the land of plaintiff caused by the construction of the abutment of a bridge by which the water was turned toward the plaintiff's land, cutting away portions thereof and destroying improvements thereon. That case, however, arose under the constitution of 1849, which provided: "Nor shall private property be taken for public use without just compensation" (Const. 1849, art. I, sec. 8); whilst the new constitution provides that "private property shall not be taken or damaged for public use without just compensation having been first made or paid into court for the owner." (Const. 1879, art. I, sec. 14.)
These constitutional provisions, as well as the common-law liability of counties, were very fully considered in Reardon v. San Francisco , 66 Cal. 492; 56 Am. Rep. 109. In that case the defendant was engaged in improving Army street, and in making the improvements placed thereon a large amount of rock, the weight of which caused the soil to sink and spread out at the side, thus raising and moving the ground upon plaintiff's lot and injuring the foundation of the building thereon. The court, speaking of the change in the constitutional provision above noticed, said: "To what kind of damage does this word 'damaged' refer? We think it refers to something more than the direct and immediate damage to private property, such as its invasion or spoliation. There is no reason why this word should be construed in any other than its ordinary and proper sense. It embraces more than the direct taking. If it did not refer to more than [42 P. 242] the damage above mentioned the word 'damaged' in the clause relied upon would be superfluous. It seems to us that the direct invasion spoken of would come within the clause as it stood in the constitution of 1849. If the word 'damaged' only embraced physical invasions of property the rights secured by this word would add nothing to the guaranty as it formerly stood."
The court there quoted extensively from City of Atlanta v. Green , 67 Ga. 386, in which state the corresponding provision of its constitution is the same as the provision in our constitution of 1879. The court said: "The article does not define whether the damage shall be immediate and direct or consequential. Any damage to property for public use must receive its compensation. It may be, and will no doubt often occur, that the consequential damage may impose a more serious loss upon the owner than the temporary spoliation or invasion of the property."
This court followed and adopted the views expressed by the supreme court of Georgia, and cited a large number of cases from other states expressing a like view, as will be seen at page 504 of the opinion; and, as was there said by the court in further commenting upon those cases, that "It was held to be within the constitutional provision, as to property damaged, whether the work was done with care and skill or not. We are of the opinion that the right assured to the owner by this provision of the constitution is not restricted to the case where he is entitled to recover as for a tort at common law. If he is consequentially damaged by the work done, whether it is done carefully and with skill or not, he is entitled to compensation for such damage under this provision. This provision was intended to assure compensation to the owner as well where the damage is directly inflicted, or inflicted by want of care and skill, as where the damages are consequential, and for which damages he had no right of recovery at common law." In that case a judgment for the plaintiff was affirmed.
In Conniff v. San Francisco , 67 Cal. 45, the action was brought to recover damages for injuries to plaintiff's lot, caused by grading Montgomery avenue in the mode provided for grading streets in the general statute in regard thereto. There, in grading the street, an embankment was formed fifteen feet above plaintiff's property and contiguous lots, by which the water that ran in a watercourse across the street was permanently stopped in its flow and backed upon plaintiff's lot, causing damage to it and the building thereon. This court cited Pumpelly v. Green Bay Co ., 13 Wall. 166, and said: "The action in that case was against a private corporation -- here against one that is public and municipal; but we are not aware that there is anything in the nature or essence of the corporation known as the city and county of San Francisco, though public and municipal in its character, or in the statutes relating to it, which justifies it, even in the prosecution of a public work authorized by statute and for the public benefit, in taking the property of another. The former constitution of California under which the work was done, as well as the constitution now in force, renders null all legislation to authorize such a proceeding."
In Bigelow v. City of Los Angeles , 85 Cal. 614, the court cited Reardon v. San Francisco, supra, to the point that, if compensation had not been obtained under the provisions of the code with respect to eminent domain, it can be recovered in an action.
I think the injuries here complained of are clearly within the constitutional provision above cited as construed in the cases above noticed; and, if so, I see no reason why the plaintiff's damages may not be recovered from the county, since the statute expressly authorizes counties to sue and be sued. All the California cases cited by counsel for respondent, except Crowell v. Sonoma County, supra, were for personal injuries; and counsel contends that the same principle applies in cases of injury to property, and that therefore, upon the authority of the cases cited, the county is not liable. It was so said in Crowell v. Sonoma County, supra; and under the old constitution that was doubtless true; but the change in the constitution, in the respect we have discussed, creates a clear distinction between damages to property and damages for personal injuries. Cases cited by counsel for respondent from other states need not be considered, the question as to the liability of the county being settled by our own decisions.
I think the allegations of the complaint, as to the injuries resulting from the change in the current of the stream, state a cause of action, unless, as held by the court below, the fact alleged in the complaint that the bridge was constructed upon private property and outside of the dedicated highway exempts the county from liability.
By erecting the bridge outside of the right of way and upon private property the supervisors did not acquire title to the bridge in themselves, as individuals, or as a board, nor did it become the private property of the plaintiff. The bridge was erected and paid for by the county for the use of the public, and is used by the public. It would hardly be contended that because the bridge was built upon the plaintiff's land that he is at liberty to destroy it, or to prevent the public from using it; nor, upon the other hand, will it be contended that the county may continue perpetually to maintain it for the use of the public without liability for damages to private property resulting from its maintenance. The board of supervisors had ample authority under the statute to construct a bridge across Elder creek, but in doing so they inflicted an injury upon the plaintiff, which may or may not have been unavoidable.
If the property of the plaintiff was in fact taken for public use without having been condemned and paid [42 P. 243] for under the provisions of the code relating to eminent domain, he may recover compensation therefor in an appropriate action, notwithstanding the mode of its taking was unauthorized. (Reardon v. San Francisco, supra ; Bigelow v. City of Los Angeles, supra .) And if by such taking or use other property of the plaintiff is "damaged," it follows that a recovery for such injury may also be had. If the board of supervisors had no authority under any circumstances to erect a bridge, respondent's contention would have a very different basis; but the board is authorized to erect bridges, and necessarily to determine the place of such erection; and if from necessity, or by mistake, they erect a bridge outside of the limits of the highway, the county cannot, while maintaining the bridge for public use, repudiate the action of the board, and refuse to compensate a person whose property has been taken or damaged. It is said in Lewis on Eminent Domain, section 623, that: "It has been held in a number of cases that where land is appropriated to a public use, either with the consent of the owner or otherwise, a common-law action will lie to recover the just compensation to which the owner is entitled." (See cases cited in note 1.)
But the injury caused by the change in the direction of the current is not attributed to the fact that the bridge was erected upon plaintiff's land, but to the walls or abutments confining the water in times of freshets, whereby the direction of the current is changed; and that for injuries thus caused a recovery may be had, see Lewis on Eminent Domain, section 66, and cases there cited.
The plaintiff does not allege the value of the land taken by the change in the location of the bridge and of the road leading to it, nor seek to recover compensation for the land so taken.
Counsel for respondent calls attention to two specifications of alleged uncertainties (marked G and H), namely: "It is uncertain as to whether the obstructions alleged to have been built in said Elder creek were built by the defendant or by the Pacific Bridge Company"; and "it is uncertain as to who built the said buttresses, piers, and walls of stone, and other material in said Elder creek."
It is immaterial whether the work of building said obstructions was done by the bridge company or by some one else. It is alleged, as to the entire work, that it was done under the direction and according to plans and specifications furnished by the board of supervisors, and that the work, when completed, was accepted by them; and this is sufficient. The complaint in some respects may be subject to criticism, though it is not obnoxious to a general demurrer; but as the case is an important one, the plaintiff should be permitted to amend his complaint if he so desires. The judgment appealed from should be reversed, with leave to the plaintiff to amend his complaint as he may be advised. For the reasons given in the foregoing opinion the judgment appealed from is reversed, with leave to the plaintiff to amend his complaint as he may be advised.