Opinion
Harold W. Kennedy, County Counsel, Lloyd S. Davis, Chief Trial Deputy, for appellant and respondent County of Los Angeles.
Lillick, Geary, McHose, Roethke & Myers, John C. McHose, Anthony Liebig, David Brice Toy, Los Angeles, for respondent and appellant Albers.
Pollock & Deutz, John P. Pollock, Samuel C. Palmer, III, Los Angeles, for respondents and appellants Rancho Palos Verdes Corp., Capital Co., and Palos Verdes Water Co.
P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, Chico,
FOX, Presiding Justice.
These appeals are from judgments in favor of plaintiffs in 81 separate cases which were consolidated for trial. These actions are for the recovery of property damage resulting from a landslide which commenced on or about August 20, 1956, in the Portuguese Bend area of the Palos Verdes peninsula in Los Angeles County. The court awarded these plaintiffs some $5,360,000
On the issue of liability the trial lasted almost five months. Fifteen briefs have been filed in these appeals.
This landslide was caused by the Road Department of Los Angeles County constructing an extension of Crenshaw Boulevard through the Portuguese Bend area. The plaintiffs filed claims for damages with the County. They were denied, following which these actions were filed. The judgments in favor of the plaintiffs were on the theory of inverse condemnation against the County for the invasion of their property rights. The County has appealed from each of the judgments against it. The plaintiffs have also appealed on the ground that the judgments should have been based on negligence as well as inverse condemnation.
The trial court found on the basis of lengthy expert testimony that the County's earth-moving activities, conducted as a part of its construction of Crenshaw Boulevard, had in fact caused the landslide and caused the resulting damage to the property rights of the plaintiffs. The landslide covered approximately 120 acres. Some 78 homes were damaged or destroyed by this earth movement. Substantial damage was also done to property owned by Rancho Palos Verdes Corporation and Capital Company. The court also found that the landslide had occurred within an area which had previously been subject to landslides and that this constituted an 'abnormal condition of nature.'
The following factual background material will be helpful in getting a better picture of the area here involved and the facts leading up to the landslide:
In this case the findings of the trial court, set out verbatim in the majority opinion, establish that the act of the County was not intentional, that County was not negligent, that the landslide was not the result of any negligent act, that the landslide could not have been foreseen or expected, that neither the County, Developers or residents knew or should have known that there was anything ultra hazardous about the work etc.
The owners of these homes will be referred to hereafter as 'residents'.
Shirley v. Bishop (1885), 67 Cal. 543, 8 P. 82;
These corporations will be referred to hereafter as the 'companies'.
People ex rel. Department of Public Works v. Symons, 54 Cal.2d 855, 9 Cal.Rptr. 363, 357 P.2d 451;
The abnormal condition of nature was an ancient landslide covering an area of approximately 560 acres. This area had been subject to movement and to landslide during prehistoric time and, as the result of such instability of the land mass, sections of this 560 acre area had, from time to time, actually moved downhill toward the Pacific Ocean in large blocks.
Steiger v. City of San Diego, 163 Cal.App.2d 110, 329 P.2d 94:
The question of causation is not involved in these appeals for the County 'makes no contention that the evidence is insufficient to support the findings' but contends, on the contrary, that the findings require 'the entry of judgments in favor of the County.'
The County's appeals are taken on the Clerk's Transcript.
Youngblood v. Los Angeles County Flood Control Dist., 56 Cal.2d 603, 15 Cal.Rptr. 904, 364 P.2d 840;
The County seeks to avoid responsibility for the resulting damages upon the ground that Article I, section 14 of the State Constitution does not warrant the recovery of damages by the residents and the companies since the court found that the County was not negligent or guilty of any other culpable act.
The critical findings of the trial court in the question of liability are these:
'14. As the direct, natural and proximate result and consequence of the acts of County in the placement of the earth * * * on or about August 20, 1956, the lateral the subjacent support for the surface and subsurface of approximately 120 acres in the easterly portion of the present '15. The present active landslide constitutes an obstruction to the free use of property within the present active landslide area and interferes with the comfortable enjoyment of such property.
'16. The present active landslide constitutes an invasion of property and property rights owned by Companies and by Residents. Such invasion by County was not intentional nor did it result from any negligent, reckless or ultra-hazardous conduct of County.
'17. The underlying geologic conditions existing in the Portuguese Bend area constituted an abnormal condition of nature. The present active landslide was not the proximate result of any negligent act on the part of the County for the reason that there was not reasonable foreseeability of harm in undertaking and carrying out the construction of Crenshaw Boulevard.
'18. The taking and damage resulting to property of Companies and to Residents, by reason of the present active landslide, were not such as would have reasonably been expected to occur by reason of the necessary, natural and ordinary use of the rights of way and easements acquired by the County of Los Angeles from Palos Verdes Corporation and Palos Verdes Properties.
* * *
* * *
'46. Neither Developers nor Residents nor County, nor any of them, knew, or should have known, that the earth excavation, transportation, moving and deposit activities conducted by County in the construction of Crenshaw Boulevard would or might divert the natural forces of support in the soil, or directly increase the instability of the present active landslide area; or directly increase the likelihood of its movement; or directly diminish the resistance of such area to sliding.'
The basic question on the issue of liability is: was the County properly held liable for the damage to and destruction of plaintiffs' property under Article I, section 14 of the State Constitution absent a finding of negligent or other culpable conduct on the part of the County?
The section provides in pertinent part: 'Private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court, for, the owner, * * *.' When the constitution of 1849 was adopted this section did not contain the words 'or damaged.' They first appeared in the constitution of 1879. Six years later the Supreme Court was called upon to consider the scope of this newly amended section in Reardon v. San Francisco, 66 Cal. 492, 6 P. 317. It is a landmark case in the field of inverse condemnation. It is particularly apposite here because it clearly states the principle imposing liability on public agencies for damages caused by construction of public improvements. It involved the construction of a public project as did Crenshaw Boulevard in the Portuguese Bend area, and concerned damages to the property owners very similar to those sustained by these plaintiffs.
A brief summary of the facts in Reardon shows the striking factual similarity of the two situations. As a part of a sewer construction project, the City and County of San Francisco excavated a large quantity of earth, rocks and broken stone, and deposited this material across the entire width of the street. The weight of this material caused the soil of the street to settle and to sink. This settlement and sinking caused the displacement of the natural soil of plaintiffs' adjoining land, and destroyed the foundation of plaintiffs' buildings. In Reardon, defendant intentionally
Tyler v. Tehama County, Colusa & Hamilton R. R. Co. v. Leonard, Tormey v. Amderson-Cottonwood Irr. Dist., Ketcham v. Modesto Irr. Dist., House v. L. A. County Flood Control Dist., Clement v. State Reclamation Board, Ambrosini v. Alisal Sanitary Dist., Steiger v. City of San Diego, L. A. County Flood Control Dist. v. Southern Cal. Bldg. & Loan Assn.,What Reardon and the cases following it affirmatively establish is that this constitutional provision requires payment of just compensation to property owners whose property is taken or damaged when these three conditions are present:
We are not here undertaking to set forth an exclusive formula for liability under Article I, section 14.
(1) The damage is directly caused by the acts of a public body. The trial court found that the acts of the County were the 'direct, natural and proximate' cause of the landslide. This finding is unchallenged by the County. In the cases that have followed Reardon this test is repeatedly applied. (See Eachus v. Los Angeles, etc., Ry. Co., 103 Cal. 614, 37 P. 750; Tormey v. Anderson-Cottonwood Irr. Dist., 53 Cal.App. 559, 568, 200 P. 814 (opinion of Supreme Court on denial of hearing); Clement v. State Reclamation Board, 35 Cal.2d 628, 220 P.2d 897.) In Clement, the court stated (35 Cal.2d p. 641, 220 P.2d p. 905): 'The construction of the public improvement is a deliberate action of the state or its agency in furtherance of public purposes. If private property is damaged thereby the state or its agency must compensate the owner therefor, Cal.Const., Art. I, § 14; Perkins v. Blauth, 163 Cal. 782, 789, 127 P. 50; Kaufman v. Tomich 208 Cal. 19, 25, 280 P. 130, whether the damage was intentional or the result of negligence on the part of the final governmental agency.' In support of the final portion of this quotation, the court cited Reardon, thus recognizing the continuing validity of this important principle of that decision.
In Clement, 35 Cal.2d 628, 220 P.2d 897, the court also rejected the argument that Archer v. City of Los Angeles,
We should here call attention to the decision of this court in L. A. County Flood Control Dist. v. Southern Cal. Bldg. & Loan Assn., 188 Cal.App.2d 850, 10 Cal.Rptr. 811 (hear. den.), in which Mr. Justice Ashburn in 1961 quoted the specific portion of Reardon that we quoted supra. In that case it was stipulated that the work of the contractor was done in conformity with the District's plans and specifications. There was no showing of negligence on the part of the contractor and no showing that the District's plans were inherently dangerous or otherwise defective. The work of the contractor, however, caused vibrations that damaged plaintiffs' residence. We affirmed the judgment against the District because the construction of the public work caused the damage. We stated (188 Cal.App.2d p. 852, 10 Cal.Rptr. p. 812): 'This question of burden of proof becomes inconsequential in the case at bar for the stipulation above mentioned makes a case in favor of the landowner which, without more, must prevail. Respondents' property was directly invaded in the construction of the excavation for the storm drain. But it is immaterial whether that was a direct or indirect invasion if damage to respondents' remaining parcel was the proximate result of the doing of a public work pursuant to condemnation and in accordance with the condemner's plans and specifications. In such case the condemning agency is liable under the damage provision of the Constitution (Art. I, § 14) and this is true regardless of negligence on the part of a contractor who does the work for the condemner.'
(2) The second condition is that the public body intended its act in furtherance of a public project. It is important to distinguish between an act which one intends and the physical consequences that one anticipates will flow from an act. The latter area presents the problem of foreseeability which, as Mr. Justice Traynor pointed out in his concurring opinion in House v. L. A. County Flood Control Dist., 25 Cal.2d 384, 397, 153 P.2d 950, is not relevant to the right of compensation under Article I, section 14. The court must simply determine whether the damaging act itself was an intentional part of a proposed public improvement. Here there is no question under the findings but that the acts of the County were deliberately done in furtherance of a public purpose and use.
This distinction explains the negligent or unauthorized contractor cases, such as Sievers v. San Francisco, 115 Cal. 648, 47 P. 687, in which the courts have consistently concluded that conduct neither authorized nor contemplated by a public authority cannot support a claim in inverse condemnation. And it explains why the characterization of authorized acts of County as negligent or otherwise is irrelevant.
(3) The third condition is that the damage suffered be to the property rights of the owner and a loss not common to the community at large. Obviously there are circumstances in which the privileges enjoyed by individual citizens must be adjusted to changed conditions. When a neighborhood becomes less desirable or where a new highway causes the old to fall into disuse, whatever measurable loss a property owner has suffered thereby is simply the result of Bacich v. Board of Control,
Thus it is apparent that once the deliberate and causally correlative nature of the public agency's act is established, the character of the damage suffered alone determines the right to compensation. Here that damage is to each individual plaintiff's separate property rights and therefore is not common to the community.
The County seeks to exclude the test of damage by arguing from Archer that the nonculpable character of the County's act makes plaintiffs' damage noncompensable. i. e. damnum absque injuria. Plainly Archer stands for no such proposition.
The principles of Reardon find remarkable similarity of expression in State v. Hale, 136 Tex. 29, 146 S.W.2d 731, 736, which involved damage growing out of road building activities as does the instant case. The Supreme Court of Texas states: 'The language used in Section 17 of Article 1 of the Constitution, supra, which says that no person's property shall be taken or damaged for public use without adequate compensation being made, has no exceptions or limitations attached thereto. It is a clear, definite statement of the rule which prevails in this State, which controls all the departments of the State government; and the liability for adequate compensation for private property taken or damaged for public use is not based upon the ground that the act of taking or damaging such property was done negligently or intentionally. The true test is, did the State intentionally perform certain acts in the exercise of its lawful authority to construct such highway for public use which resulted in the taking or damaging of plaintiffs' property, and which acts were the proximate cause of the taking or damaging of such property.'
Having discussed and determined the presence of the three conditions generally required for compensation under Article I, section 14 as that section is interpreted in Reardon, it should additionally be noted that the principles enunciated in Reardon are based on sound policy, practical considerations, and fairness to the injured property owner. A different result would compel him to bear more than his fair share of the cost of the public improvement. This principle was expressed in Clement, supra (35 Cal.2d p. 642, 220 P.2d p. 905) as follows: 'The decisive consideration is whether the owner of the damaged property if uncompensated would contribute more than his proper share to the public undertaking. [Citations.]' (Emphasis added.) Accord: Ambrosini v. Alisal Sanitary Dist., 154 Cal.App.2d 720, 730, 317 P.2d 33.
Defendant's reliance an Archer v. City of Los Angeles, supra, is misplaced. Mr. Justice Traynor wrote both Archer and In putting Archer in its proper place, we are aided by the opinion of the court in Powers Farms, Inc. v. Consolidated Irr.Dist., 19 Cal.2d 123, 119 P.2d 717, decided some three weeks later, in which the author of the Archer opinion concurred. The court stated (19 Cal.2d p. 126, 119 P.2d p. 720): 'The Constitution of this state (art. I, sec. 14) prohibits the taking or damaging of private property for public use 'without just compensation having first been made to, or paid into court for, the owner.' It is well settled that damage to land caused, with or without negligence, by the seepage of water from canals of an irrigation district which have been constructed and are maintained to supply water for public use, gives the owner of such land a cause of action in the nature of eminent domain against the district. [Citations.]' (Emphasis added.) In stating the foregoing principle it is clear that the court did not view the Archer case as standing for the proposition for which the County here argues; viz., that liability cannot be fastened upon it absent a finding of negligence or other culpable conduct. It is therefore apparent that Archer is not apposite to the situation before us. That case essentially relates to problems peculiar to water law, and to the application of the common enemy doctrine. The Reardon case, on the other hand, represents the rule where there is a direct invasion of property rights caused by the construction of a public improvement, and where, therefore, compensation must be paid under Article I, section 14.
The County has emphasized the language first found in Archer (19 Cal.2d p. 24, 119 P.2d p. 4) that, 'If the property owner would have no cause of action were a private person to inflict the damage, he can have no claim for compensation from the state.' This language, of course, must be considered in relation to the factual context in which it was used. As previously noted, the author of the Archer opinion explained in the Clement case that in the former 'the damage was caused solely by flood waters that would have inundated plaintiffs' land even though the drainage system had not been constructed * * *.' Hence, 'it was held that the injury was damnum absque injuria.' (35 Cal.2d p. 642, 220 P.2d p. 906.) Obviously, in such circumstances, there would have been no liability on a private person. But that is not to say that the court in Archer was holding or intended to hold that liability on the part of the state can be predicated only on such negligence or other culpability as would be essential to establish liability against a private person. Viewed in its proper setting, it is apparent that the quoted language relied upon by the County is but an illustrative restatement of the principle in the preceding sentence that '[t]he state is therefore not liable under this provision for an injury that is damnum absque injuria.'
Finally, on the basic question of liability, the County contends that the judgment of the trial court is 'directly contrary' to Youngblood v. County of L. A. Flood Control Dist., 56 Cal.2d 603, 15 Cal.Rptr. 904, 364 P.2d 840. It is not apparent from a reading of the opinion that the court in Youngblood meant to overrule Reardon and the long line of cases following it, many of which we have either discussed or cited in this opinion. Reardon was not even mentioned in Youngblood. It is inconceivable that a rule so firmly established in our law and cited so frequently with approval would The parties argue the application of certain other theories relative to liability which it is not necessary for us to pass upon in view of our conclusions.
Examination of the record in Youngblood discloses that Reardon was brought to the court's attention.
Since we have concluded that the County is liable on the theory of inverse condemnation, the appeals by the residents and companies seeking to impose liability on the ground of negligence become moot and should be dismissed.
The County also contends that the companies are barred from recovery due to an estoppel arising from deeds to the County conveying the right of way for the boulevard and from the companies' consent to the placement of the fills. Regarding this aspect the trial court found: 'In January, 1950, Palos Verdes Corporation granted, without consideration and the County accepted, an 80 ft. right of way for the construction of Crenshaw Boulevard. Subsequent to the delivery of the Deed for said right of way, Palos Verdes Corporation consented to and approved the extension of cuts and fills outside the dedicated right of way where necessary for road purposes, and consented to and approved such realignments as were made by the County, including the realignment of Curve 3.
'Construction of Crenshaw Boulevard was commenced by the County in June of 1950. The construction of this highway included the making of extensive cuts and the deposition of substantial quantities of fill material, both within and without the deeded or realigned right of way. Between July 1, 1955 and August 20, 1956 the County excavated material from locations outside the present active slide area and transported and deposited this material within the present slide area. This material included 72,000 yards required for road fill and slopes, and 66,000 yards of waste material. In addition to these quantities, there was also placed within the initial active slide area approximately 37,000 yards of waste material, substantially all of which was cut from within the present active landslide area but outside the initial active slide area. [These figures comprise the total of 175,000 cubic yards of dirt and waste material referred to in footnote 1.] The placement of the above-mentioned waste material by the County within the initial slide area was done with the consent and approval of the Palos Verdes Properties.'
It should be noted that Palos Verdes Properties is the partnership consisting of plaintiffs Rancho Palos Verdes Corporation and Capital Company; hence this finding has the same legal effect on those plaintiffs as on the partnership.
To what extent then does such consent and approval affect the application of section 14 of Article I of the Constitution? The County cites Civil Code section 1589 that 'A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting.' The fore going section makes applicable to contracts the equitable rule of Civil Code section 3521 that: 'He who takes the benefit must bear the burden.' Section 1589 itself limits consent to obligations by acceptance of benefits to such obligations as arise from the transaction 'so far as the facts are known, or ought to be known, to the person accepting.' While it may well be true that the Companies, by consenting to the fills, would be estopped to claim the inverse condemnation damages reasonably to be anticipated by such fills, it does not appear that they are estopped as to damages which neither they, nor the County, nor any reasonable person would have foreseen.
The rule of estoppel by deed in the public taking of land is set forth in the frequently quoted case of Sternes v. Sutter Butte Canal Co., 61 Cal.App. 737, at page 743, 216 P. 66, at page 69, as follows: 'It thus appears by an unbroken line of authorities, and also as well as by good reasoning, that whenever a grant of a right of way is executed by a landowner he thereby stops himself from afterwards prosecuting The same rule applies to a taking by consent. In Sutro Heights Land Co. v. Merced Irr. Dist., 211 Cal. 670, the Supreme Court, referring to the Sternes case, says at pages 692-693, 296 P. 1088, at page 1097: 'We think the same rule would apply when instead of a grant deed the land owner expressly agreed to the taking of his property for public use. In case private property has been taken by condemnation the rule is that the owner has received in said proceeding all damages to his property which would be the natural, necessary, and reasonable incident to the taking thereof for public use. In case he has given his consent to such taking by deed, he is precluded from subsequently recovering any damage that he might have recovered in an action had the public use been taken by condemnation. Sternes v. Sutter Butte (Canal Company, supra. We think the same rule applies where the private owner has, as the plaintiffs in this case have, expressly, consented to the taking of their property for a public use. Particularly should this be so when, as in the instant case, the private owners have not only acquiesced and consented, but have importuned and demanded the construction of the public improvement upon their property.' (Emphasis added.) The Sutro case involved canal seepage which the trial court found was usual and unavoidable and which the Supreme Court said was 'but the natural, necessary, and reasonable incident to the use and operation of said canals.' Hence we cannot say that the Companies in accepting such benefit as accrued to them through the construction of Crenshaw Boulevard and the making of the fills consented to the damage of their land which was not a 'natural, necessary or reasonable incident' to the construction of the road and the making of the fills. That the damage here suffered was of the latter category, see Findings 18 and 46, quoted supra.
In addition, the trial court found that 'Companies are not estopped from claiming damages caused by County's road construction activities of Crenshaw Boulevard by deeds or easements or rights of way granted to County by Developers, Palos Verdes Corporation, or any of them.' In an appeal upon the Clerk's Transcript only, such as the County has brought, it is impossible for us to say as a matter of law that this finding does not have adequate evidentiary support. The rule is well-established that the existence of an estoppel is generally a question of fact for the trier of fact, and ordinarily the trial court's determination is binding on appeal unless the contrary conclusion is the only one to be reasonably drawn from the facts. (Henry v. City of Low Angeles, 201 Cal.App.2d 299, 306, 20 Cal.Rptr. 440; People v. Watkins, 175 Cal.App.2d 182, 185, 345 P.2d 960.) We find no justification in the record for upsetting the above-quoted findings.
Plaintiffs, Rancho Palos Verdes Corporation and Capital Company, co-partners doing business under the name of Palos Verdes Properties, have appealed from that portion of the judgment which denied them recovery for expenditures they made in attempting to determine the cause of the landslide and to stop it. The amount of these expenditures was approximately $283,225, which the trial court found to be reasonable and to have been expended in good faith.
The trial court awarded these plaintiffs the difference between the fair market value of their property before the landslide and the fair market value of the property subsequent To the slide, together with severance damages to adjoining property. These plaintiffs are seeking recovery of the above mentioned expenditures as a separate and additional item of damage resulting from the landside over and above the diminution of the value of their property caused by the landslide. Their theory is that these funds We have sustained the imposition of liability on the County solely by reason of the provisions of Article I, section 14 of the state constitution that private property shall not be taken or damaged for public use without the payment of just compensation. These plaintiffs are therefore entitled to only such damages as may be properly awarded pursuant to the state constitutional provision, for as pointed out in Bacich v. Board of Control, 23 Cal.2d 343, at page 347, 144 P.2d 818, at page 821, a cause of action in 'inverse condemnation' is predicated upon the constitutional provision and 'is not founded either upon express contract or negligence.'
It has long been the general rule that in actions in inverse condemnation the damage for which compensation is recoverable under the constitutional provision is damage to the property. (Reardon v. San Francisco, supra, 66 Cal. pp. 505, 506, 6 P. 317; Eachus v. Los Angeles, etc., Ry. Co., supra, 103 Cal. 614, 617, 37 P. 750.) In Rose v. State of California, 19 Cal.2d 713, p. 737, 123 P.2d 505, p. 519 the rule is thus stated: '* * * for damage to private property resulting from a public use, where no property is actually taken, the measure of damages generally applied is also the diminution in the value of the property caused by the public use. [Citation.]' The recoverable damage under direct condemnation is the same and as stated in People v. Ricciardi, 23 Cal.2d 390, at page 396, 144 P.2d 799, at page 802: 'This is so because it is only the value of, and the damage to, the property itself, which may be considered.'
These plaintiffs' contention that the measure of damages in an inverse condemnation action differs from that of a direct condemnation is directly and succinctly answered in Federal Oil Co. v. City of Culver City, 179 Cal.App.2d 93, 3 Cal.Rptr. 519 (hear. den.). At page 97 of 179 Cal.App.2d, at page 522 of 3 Cal.Rptr. the court stated: 'The yardstick used to ascertain the amount of compensation due in an 'inverse condemnation' action is precisely the same as that used in the normal condemnation action.'
Of course there are situations where the before-and-after rule for measuring damages cannot be used as a practical matter. In such situations other methods of fixing damages may be used. (See, e. g., Inyo Chemical Co. v. City of Los Angeles, 5 Cal.2d 525, 55 P.2d 850.) But the instant case is not such a situation because the property in its damaged condition is still available for comparison with its value before the landslide occurred.
In support of the trial court's refusal to allow these damages the judge, in his memorandum opinion, pointed out that 'An additional award of $283,225.00 would result in plaintiffs, as partners herein and as co-tenants in action No. 684,595 [one of the cases on appeal herein] receiving approximately $139,000.00 more than the entire market value of the land herein and their interest in the land and improvements in said other action.'
With commendable frankness counsel for these plaintiffs concede that 'California cases do not treat the subject of mitigation of damages in eminent domain proceedings * * *' and that they 'have found no California case which directly holds that the principle of mitigation of damages is applicable in an inverse condemnation proceeding in the same manner and the same extent as that principle is applicable in most tort cases.'
It should be pointed out that in eminent domain actions there are many items of damage which are not compensable. (See Rose v. State of California, supra; City of La Mesa v. Tweed & Gambrell Planning Mill, 146 Cal.App.2d 762, 776, 304 P.2d 803; People ex rel. Department of Public Works v. Symons, 54 Cal.2d 855, 9 Cal.Rptr. 363, 357 P.2d 451.)
In support of their position, these plaintiffs rely upon Podesta v. Linden Irr. Dist., 141 Cal.App.2d 38, 296 P.2d 401. That case, From the foregoing it is quite apparent that to allow these additional damages would result in requiring the County to pay more than the 'just compensation' which it is obligated to pay under the constitutional provision for damaging the subject properties.
The Palos Verdes Water Company (referred to hereafter as the Water Company) has appealed from that portion of the judgment which denied it recovery for the cost of installing surface water lines to replace its underground system.
The Water Company is a public utility providing water service to the area involved in the landslide. The underground water lines owned by the Water Company were progressively destroyed by the landslide and thereafter abandoned.' The trial court found that the fair market value of the portion of the water system which was destroyed was $67,260.00, and that certain other water lines having a fair market value of $8,052.00 were rendered useless by the slide. It was also found that plaintiff had expended $19,430.44 for extraordinary expenses in repair and maintenance of the water system during the period of its gradual destruction. In addition, interest was awarded from June 1, 1957, the median date of abandonment of the system. The total judgment entered in favor of the Water Company upon these findings was $135,810.00. In view of our earlier determination that the County is liable for the damage proximately caused by the landslide, it follows that this award in favor of the Water Company must stand.
In addition, the Water Company seeks recovery of $48,918.05, which the trial court found was expended by the company to install a surface water system. The finding of the court as to this item of expense is as follows: '71. As the water distribution system in the present active landslide area referred to in Finding 68 of plaintiff Palos Verdes Water Company was progressively destroyed and abandoned, said plaintiff, between November 30, 1956 and September 30, 1960, installed a surface line water distribution system, thereby relocating and replacing the destroyed and abandoned portion of its system, at a cost to said plaintiff of $48,918.05, with a median date for said expenditures of April 1, 1957.
'Palos Verdes Water Company believed, in good faith, that it was necessary to continue providing water to the residents who lived within the present active landslide area after the water distribution system referred to in Finding 68 was destroyed and abandoned.
'Said plaintiff did not have a duty as a public utility to install and relocate, by way of a surface distribution system, the water distribution system referred to in Finding 68 after said water distribution system was destroyed and abandoned.'
The Water Company contends that recovery of this amount is authorized by Code of Civil Procedure section 1248(6) which provides: 'If the removal, alteration or relocation of structures or improvements is sought, the cost of such removal, alteration or relocation and the damages, if any, which will accrue by reason thereof' must be determined in an eminent domain proceeding. No case is cited by the Water Company, however, and we have been unable to find one that allows recovery for the relocation of an improvement in addition to full compensation for the damaged or destroyed improvement. Judgment having been given for the fair market value of the water system (plus additional damages as previously noted), it would constitute double recovery to allow in addition the cost of constructing a substitute water system. Plainly, the code section does not contemplate such a result. The fallacy in the Water Company's argument can be illustrated by an automobile accident in which the innocent owner's car is destroyed. In such a case the owner would not be entitled The judgments in each case are affirmed.
The appeals by the plaintiffs on the ground that the County is liable on the theory of negligence are dismissed.
The parties shall bear their own costs on appeal.
HERNDON, J., concurs.
ROTH, Justice (dissenting, Civ. 27551).
I dissent:
The interpretation placed upon the damage clause of § 14 of art. I of the Constitution of California by the majority opinion compels a government agency, irrespective of care 1 or the lack of it, to respond in damages for the consequences of any injury flowing directly from a situation, event or happening caused by If this is the law, then a sovereign state has not only been stripped of all of its immunity, but something has been added.
None of the cases cited, commencing with Reardon v. City and County of San Francisco, 66 Cal. 492, 6 P. 317, have embraced or applied this principle.
I concede that it is thoroughly settled that when the principle of inverse condemnation applies to a set of facts, a liability is created against a government agency, and when liability attaches, it makes no difference whether the act upon which inverse condemnation was predicated was carefully or carelessly done.
In my opinion, no liability is created by the facts of this case and this dissent in no way modifies or overrules Reardon.
Each and every case cited by respondent, 2 commencing with Reardon, has, when the case is read in the light of its facts, consistently construed the damage clause of § 14 as giving to a person only that right against a government agency which under the law of the state one person always had and still has against another person, but which such person, because of the doctrine of sovereign immunity, never had against a government agency, until § 14 was amended.
In Reardon, the allegations of the complaint show that the City and County of San Francisco, during the process of grading a street could readily see that the lots contiguous to the street were, because of the manner in which the street was being graded, lowered below the level of the projected street and the foundations of the houses on the lots abutting the street were being destroyed. Further, the city was put on notice from the beginning of the street work by the abutting property Although in the cases following Reardon, the inevitability of injury as a consequence of the act of eminent domain involved in each case was not as obvious from the beginning as it appeared to be in Reardon, it was or should have been apparent in each case to a reasonably prudent man that in the normal and natural course of things there would be injury.
In each case, commencing with Reardon, in which a government agency has been held liable for damages on the theory of inverse condemnation, the facts compel a finding that a reasonable and prudent man would know or should have known, in the normal, natural and ordinary course of events that:
(a) The work was such as to obviously cause damage;
(b) Damage was inevitable because the work was intrinsically or inherently dangerous and ultra hazardous;
(c) Damage would result because plans for the work to be done were inherently defective;
(d) Damage would result if the work was negligently or carelessly done;
(e) Damage would be a natural and necessary consequence of the work to be done even though done competently and carefully.
In the case at bar the trial court by its express findings excluded the facts found from any of the above situations.
In each and every case cited by respondents, the facts were such that either deliberately or inadvertently the government agency did that which in the natural, normal and ordinary course of things would inevitably result in injury and the facts and circumstances in each case were such, that any reasonable and/or prudent man would expect injury to result, not always foreseeing the exact type or manner of the damage which would be caused by the injury, but knowing that injury could or should be anticipated.
The cases cited by respondent are of two kinds. In one category 3 liability under inverse condemnation is assumed. The only question is--was the damage within the meaning of the Reardon rule. In Reardon the court said at page 506 of 66 Cal., at page 326 of 6 P.:
'We do not intend to say, nor do we think it extends to such damage as the owner of the property * * * sustains * * * with the other abutters on the street or the general public, but only to that special injury which he receives over and above such common injury.' (See also Wolff v. City of Los Angeles, 49 Cal.App. 400, 193 P. 862.) In the second category 4 the question of liability is raised and the holding is against the government agency, but in no case was it remotely asserted that the situation, event or happening which created the liability could not have been foreseen or anticipated. In each case the contrary was true.
None of the cases in group 3 or in group 4 extend the liability of a government agency beyond that of a private person. Fortifying this conclusion is another line of cases 5 which holds affirmatively that a government agency has no liability beyond that of a private person.
When a government agency rightfully performs an act which results in damage, the test of the agency's responsibility is not the fact that there was damage but whether what the agency did created a liability for which the agency was responsible. Nothing in the language of § 14, art. I or in any of the cases interpreting said sections creates a liability when the agency exercises a right which results in a situation, an event or happening which could not have been anticipated or foreseen.
The amendment of § 14 of art. I was an historic step in the continuous struggle that has taken and is taking place in this state and in others, to strip the sovereign of immunities not shared by private persons, so that the sovereign will be subject to liability for its calculated acts and all consequences that flow therefrom (Reardon and cases following it) and for its negligence and all consequences that flow therefrom in the same manner and on the same standard as private persons. (Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457.) It is clear that a sovereign can enlarge its liability to reimburse all persons for any damage caused by force majeure--if it desires to do so, and if by the constitutional amendment here being construed, it was the purpose of the sovereign to enlarge its responsibility and liability beyond that of the private person, it seems that the language of the amendment should have been precise and crystal clear in the assumption of such additional responsibility and liability.
There is no such assumption of additional responsibility and liability in the language of § 14 of art. I. There is nothing in Reardon or in any cases cited in Reardon which holds that an identical constitutional provision construed in any other state fixes the responsibility and liability beyond that of a private person.
To the contrary, all the cases cited by Reardon and following Reardon hold that § 14 of art. I make the sovereign liable when it exercised its eminent domain power the same as if it were a private person. On the facts of each case that is the implicit holding of the courts of this state, Thus, in Youngblood v. Los Angeles County Flood Control Dist., 56 Cal.2d 603, at page 608, 15 Cal.Rptr. 904, at page 906, 364 P.2d 840, at page 842, the court says:
'* * * The recent decisions of this court have thus recognized * * * that if a property owner would have no cause of action against a private citizen on the same facts, he can have no claim for compensation against the state under section 14. People ex rel. Department of Public Works v. Symons, 54 Cal.2d 855, 861, 9 Cal.Rptr. 363, 357 P.2d 451; Bauer v. County of Ventura, supra, 45 Cal.2d 276, 283, 289 P.2d 1; Clement v. State Reclamation Board, supra, 35 Cal.2d 628, 220 P.2d 897; House v. Los Angeles County Flood Control Dist., supra, 25 Cal.2d 384, 153 P.2d 950; O'Hara v. Los Angeles County Flood etc. Dist., 19 Cal.2d 61, 63, 119 P.2d 23; Archer v. City of Los Angeles, 19 Cal.2d 19, 24, 119 P.2d 1; San Gabriel Valley Country Club v. Los Angeles, 182 Cal. 392, 188 P. 554, 9 A.L.R. 1200; Lamb v. Reclamation Dist. No. 108, 73 Cal. 125, 14 P. 625. Section 14 'is designed 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 for the unlawful dispossession, destruction or damage of his property. The state is therefore not liable under this provision for property damage that is damnum obsque injuria.' Bauer v. County of Ventura, supra, 45 Cal.2d 276, 282-283, 289 P.2d 1, 5.'
The fact that the courts of this state in spite of the judicial tendency to strip the sovereign of immunity not enjoyed by private persons, will not strip the sovereign of rights enjoyed by private persons, is demonstrated by the cases of San Gabriel Valley Country Club v. County of Los Angeles, 182 Cal. 392, 188 P. 554; Archer v. City of Los Angeles, 19 Cal.2d 19, 119 P.2d 1; O'Hara v. Los Angeles County Flood Control Dist., 19 Cal.2d 61, 63, 119 P.2d 23.
In San Gabriel and Archer, which follows it, there is no question but that on the facts of each of those cases the government agency in each case would have been responsible to the plaintiff and liable for damages in inverse condemnation, were it not for the principle that an upper riparian owner may make improvements to protect his land against the stream even though such improvements will cause injury and consequent damage to a lower riparian owner. This is the holding even though in each of these cases it is clear that the upper riparian owner who made the improvements could have anticipated that they would inevitably result in injury to the lower riparian owner.
In San Gabriel and in Archer, in essence what the government agency did was to construct improvements and drains without changing the natural channel or drainage of the stream and/or watershed involved. The effect of such improvement was to increase the volume of the stream in its natural channel and to pass the waters of such stream more completely and more speedily from the upper point in the channel where the improvements were made, to the land below.
In San Gabriel, Justice Olney says at page 406 of 182 Cal., at page 559 of 188 P.:
'Summing up the discussion, our conclusion, as we have stated is that an improvement for the purposes of the drainage and protection of lands above does not give a lower riparian owner on the stream a cause of action merely because such improvement increases the volume of water in the stream as it comes to his land, even though the burden he is necessarily under of protecting his land against the stream is thereby increased and his land is injured because of his failure to meet such increased burden, and further that the rule is not subject to the limitation that the increased volume must not be such as to make the stream exceed the capacity of its channel. The injury to the plaintiff's land comes If the thinking behind the amendment of § 14 of art. I was not limited to stripping the sovereign of immunity for damage caused by acts of eminent domain and placing the sovereign on the same level of responsibility and liability as is a private person, then there can be no justification for cases such as San Gabriel, Archer, Youngblood and others which recognize the principle of those cases. In each of the named cases, a more clear cause of liability on the theory of inverse condemnation is made out on the naked facts, than in many of the cases cited to us where recovery is permitted. Recovery in said cases was denied because the Supreme Court said in each case that the state as an upper riparian owner has the same rights as a private person would have. The inevitable corollary is that the state had no more liability than a private person.
It is suggested that Archer was modified by House v. Los Angeles County Flood Control Dist., 25 Cal.2d 384, 153 P.2d 950. House is also relied upon as a case which enunciates the rule that anticipation and foreseeability is irrelevant. House changes neither San Gabriel nor Archer, and there is no doctrine in House which holds that foreseeability is irrelevant. The confusion arises from a failure to distinguish the element of foreseeability in its application to liability rather than to damage.
In Curci v. Palo Verde Irrigation District, 69 Cal.App.2d 583, 159 P.2d 674, (hearing denied in Supreme Court) the court discusses House and clearly proclaims that a government agency is not an insurer in that case plaintiff alleged that the defendant Irrigation District permitted water to escape therefrom flooding his land as a consequence of which his crop was destroyed and rendered unfit for harvest '* * * to plaintiff's damage in the sum of $36,616.20, * * *.'
Supplementing these facts, the court said at page 584 of 69 Cal.App.2d, at page 675 of 159 P.2d:
'It is clear that the pleading contains no allegation even hinting that the damages were caused by faulty design, careless construction, or improper operation of defendant's ditches. It even fails to suggest any act, omission or dereliction of duty on the part of defendant which resulted in the invasion of any right of plaintiff and caused damage to him.
'* * * [T]he damage was caused by a sudden flood, * * *. The water 'escaped' from the ditch on the day and 'flooded said land', * * *.'
The court at page 587 of 69 Cal.App.2d, at page 676 of 159 P.2d, distinguishes Reardon and some of the seepage cases cited by respondent and says:
'* * * [I]n the majority of them the landowner sought recovery for damages caused by seepage from canals constructed through porous soil that did not confine and hold water but permitted it to percolate through the soil and water log adjoining property. Although the canal was constructed carefully and according to specifications this has been referred to as improper designing or improper planning which would make the irrigation district liable for damages. * * *'
On the same page, the court discusses House and says:
'It is recognized that the irrigation district owes the adjoining property owner the duty of not needlessly damaging his land by reason of improperly planned, constructed or operated works and if such damage occurs through any of those causes the district must respond in damages. In speaking on this subject in House, it was said:
"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. (Emphasis added.)
'While mere errors of judgment in planning and constructing a public work Kaufman v. Tomich,United States v. Sponenbarger,
The court in Curci concludes by saying at page 588 of 69 Cal.App.2d, at page 676 of 159 P.2d:
'* * * While defendant owed plaintiff the duty of not injuring his land through any act of faulty planning or neglect on its part, it is not an insurer against damage and the complaint should have contained some allegation from which it might be reasonably inferred that defendant was legally liable for the damage caused by the water escaping from its canal and flooding plaintiffs, land. Lacking such allegations the demurrer was properly sustained and plaintiff should have taken advantage of the leave given him to amend.'
A more detailed analysis of House on the facts demonstrates that it is no authority for the proposition that lack of foreseeability is irrelevant, except as applied to the facts of House.
In House, 25 Cal.2d 384, 386, 153 P.2d 950, 951, the government agency '* * * 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. * * * 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 * * * and their velocity * * * increased. * * * [P]laintiff [charged] * * * negligence * * * in the planning and erection of the * * * 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. * * * [T]hat as a proximate result of these negligent acts, the storm waters * * * broke through the levees and burst with great violence upon her adjacent land, denuding it of its soil * * * and washing away all the improvements * * *, to her damage * * *.'
Mr. Justice Traynor says in a separate concurring opinion at page 395 of 25 Cal.2d, at page 955 of 153 P.2d:
'* * * The present case differs from the Archer and O'Hara cases. In the former there was no evidence that defendants negligently diverted water out of its natural channel, and in the latter there was no allegation of such diversion. Here plaintiff's allegations that the damages to her property were caused by diversion of the water of a river out of its natural channel onto her land by means of defective levees causing and allowing the water to burst out of its channel onto her land must be regarded as true.' (Emphasis added.)
At page 396 of 25 Cal.2d, at page 956 of 153 P.2d Justice Traynor says:
'* * * The construction of the public improvement is a deliberate action of the state or its agency in furtherance of public purposes. In erecting a structure At page 397 of 25 Cal.2d, at page 956 of 153 P.2d Justice Traynor continues:
'* * * Defendant, therefore, cannot rely on the fact that the injury to the property was caused, not by a deliberate appropriation thereof, but by a collapse of defendant's structures. It is of no avail to defendant that the invasion of plaintiff's property in the manner in which it happened was not foreseeable. * * * The public purpose was not the mere construction of the improvement but the protection that it would afford against floods. The dangers inherent in the improvement would cause injury only when storms put the flood control system to a test. The injury sustained by plaintiff was therefore not too remote.' (Emphasis added.)
House lays down the rule that irrespective of government intention, irrespective of negligence, if there is injury to property arising from the inherent dangers of the improvement made or originating from wrongful plan or character of the work done in making the improvement, it doesn't make any difference whether damage from any resultant injury has or could have been foreseen. There is nothing in House which enlarges the liability of a government agency beyond that of a private person. This conclusion is fortified by the later case of Clement v. State Reclamation Board, 35 Cal.2d 628, at page 636, 220 P.2d 897, at page 902, wherein the court says:
'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. [Citing Archer; O'Hara; House; Gray v. Reclamation Dist., 174 Cal. 622, 638, 163 P. 1024; San Gabriel Valley Country Club v. County of Los Angeles, 182 Cal. 392, 406, 188 P. 554]. '* * * It is designed, not to create new causes of action, but to give a remedy for a cause of action that would otherwise exist. The state is therefore not liable under this provision for an injury that is damnum absque injuria. If the property owner would have no cause of action were a private person to inflict the damage, he can have no claim for compensation from the state. [Citations.] In the present case, therefore, plaintiffs have no right to compensation under article 1, section 14 if the injury is one that a private party would have the right to inflict without incurring liability.' [Citations.] Since the common enemy doctrine protects defendants from liability only to the extent that the waters carried onto plaintiff's land were flood waters, the propriety of the challenged instructions depends upon the correctness of the definitions of 'flood water' and 'natural stream water' upon which those instructions were based.'
I am convinced that if developers of the acreage involved in this appeal had built a private road in precisely the same manner as the county extended Crenshaw Boulevard, and the trial court had made the same findings of fact, there would be no liability. It seems ironic therefore to hold that because a government agency stripped itself of an immunity which would have freed it from any liability, in circumstances when a private person would be liable, does by such equitable act, make itself responsible, when a private person would not be.
The appeals of Residents and Companies, as said designations are defined in the majority opinion, on the ground that the trial court should have found the county of Los Angeles negligent, has no merit. Findings 16, 17 and 46 of the trial court, set out in the majority opinion, are sustained by ample evidence. In its opinion the trial 'The conclusion impelled from all the evidence is that there was here involved an abnormal condition of nature and that there was no reasonable foreseeability of harm in undertaking and carrying out the construction of Crenshaw Boulevard in the manner described and therefore the County is not liable in negligence to the Companies and the Residents.'
I agree.
I would dismiss the appeal of Residents and Companies.
I would reverse the judgment against the County and remand the case to the trial court with instructions to enter judgment for the County of Los Angeles.
ROTH, Justice (concurring and dissenting Civ. 27557).
I concur in that portion of the opinion which disallows recovery of an additional $48,918.05, and I dissent from that portion of the opinion which affirms the judgment for the reason stated in my dissent in Albers v. County of Los Angeles and Consolidated Cases, Civil No. 27551.
ROTH, Justice (concurring and dissenting Civ. 27559).
I concur in that portion of the opinion which affirms the judgment denying appellant recovery of $280,000 for the reasons stated therein and for the reasons set out in my dissent in Albers v. County of Los Angeles and Consolidated Cases, Civil No. 27551.
I dissent from that portion of the opinion which affirms the judgment holding there was no estoppel. In my opinion the evidence summarized in part in the trial court's opinion, which is a part of the record and the findings of the trial court, in spite of its specific finding of nonestoppel, show estoppel as a matter of law insofar as the County of Los Angeles is concerned.
As early as 1935 the County had determined that Crenshaw Boulevard ultimately was to be extended to the Pacific Ocean. In that year the Regional Planning Commission of Los Angeles, as a part of its Master Plans of Highways, planned, and the County Surveyor surveyed and Designed, Crenshaw Boulevard as a County Highway to go through the Palos Verdes hills from the Pacific Coast Highway in Lomita to Palos Verdes Drive South at Portuguese Bend. The survey was completed and shown on a County Surveyor map filed in June of 1936.
By December of 1940 a realigned route had been surveyed by the County Engineer, and a map had been prepared and filed. In 1946 this route for Crenshaw Boulevard was flagged on the ground by the County Engineer and the proposed route was traversed by jeep by representatives from the Road Department and the County Engineer. Four years later, in January 1950, Palos Verdes Corporation, the owner of the land through which the road was engineered, executed a deed to the County which granted a road easement eighty-five feet wide. Actual construction of Crenshaw Boulevard began in February 1950 under the direction of the Maintenance Division of the County Road Department. A detention camp was constructed near the top of the hills, and prison labor from this detention camp was used by the County as road crews. Actual construction began at the north end of the project. It was not until 1953 that construction activities commenced on the south slope of the hills and not until 1954 that grading and excavation commenced in the vicinity of the area involved in this litigation.
When the County reached the area in Portuguese Bend immediately north of Palos Verdes Drive South, it built the road through an ancient landslide which the trial judge called an 'abnormal condition of nature.'
The explanation given by geologists who studied the area was that this ancient landslide are contained an underground strata of bentonitic tuff, a material which becomes extremely slippery and semi-plastic when moist. The earth upon this strata of benonitic tuff slid downhill and toward the ocean when either the resistance to movement was diminished or the forces exerting themselves toward movement were increased. The bentonitic tuff was sometimes during the trial characterized as a 'geologic banana peel.'
The existence of the ancient landslide area had been the subject of numerous articles by geologists and '[i]n 1946 the Geological Survey Division of the United States Department of Interior published Professional Paper 207. Professional Paper 207 and the Plate 1 map attached to it showed the ancient landslide area. Professional Paper 207 stated that bentonitic tuff probably acted as a lubricant for the mass of rocks moving seaward over the lower marine terraces, causing the ancient landslide.' (Taken from Finding 35.)
As the result of changes in highway design practices, the County redesigned the curves on Crenshaw Boulevard so as to give each an approximately four hundred foot radius rather than the sharper curve which had been in the plan of 1940 and in the deed of 1950. During the course of construction the project changed from a three-lane highway to a four-lane highway. No revised grants of easement were obtained from Palos Verdes Corporation to cover the change in the route or in the widening of the right of way itself. Thus, Crenshaw Boulevard, as built by the County, is located in many instances, outside the deeded right of way.
The change in the radius of the curve at what is now just above the north boundary of the landslide made it necessary for the County deliberately to make a far greater excavation into the hill than had been engineered originally. This meant that extra earth was developed, and there arose, therefore, a need for disposal of it. Also, in 1954 in this same area the County had planned to cut into the hill at a slope of 3/4: 1. However, the material refused to remain stable at that angle of cut, and it became necessary in late 1954 to flatten that slope to 1:1, and in 1955 it became necessary to flatten it further to 1.4:1 in order to keep the natural soil from sliding onto the roadbed. The flattening of this slope, too, created additional material and the problem of what to do with it.
A very substantial portion of the trial itself was devoted to the question of what had in fact caused the landslide. The contention of plaintiffs was that the County's road-building activities and in particular the intentional dumping of substantial quantities of excess dirt at critical locations had so acted upon the delicate balance, resulting from past landsliding, as to 'trigger' the present landslide. The trial court found that the deliberate placement of 175,000 cubic yards of dirt, both in the roadway of Crenshaw Boulevard and as waste material alongside the roadway, had upset the equilibrium of the area and caused the movement of approximately 120 acres toward the sea.
The findings of the trial court set out in the majority opinion are incorporated herein. In addition, the trial court, in a thorough and painstaking opinion, summarizing the evidence as to how the road was built, said:
'It is quite apparent that Palos Verdes Corporation was anxious and desirous for the County to construct Crenshaw Boulevard from the Pacific Coast Highway across the hills to the ocean. Not only did Palos Verdes Corporation apparently donate to the County the road easement described in the deed but also agreed to donate the site of the Detention Camp to the County for park purposes upon completion of the road. It was apparently the understanding of the County officials that they were authorized to realign the road within the general area and that upon completion it would be resurveyed and the necessary easement granted. This is confirmed by Mr. Vanderlip who testified that 'the road was more or less being done by trial and error' and that the County camp engineer 'had the discretion to put it pretty much where he wanted to.' It was also his understanding 'that the alignment was not precise and when it was completed, it was to be surveyed and the conforming deeds were to be executed.' Respecting the change from a three to a four lane road and the increase in the curve radius, Mr. Vanderlip testified that 'so long as they kept on uncommitted property, we went along with the County.' It is thus clear that the construction of the realigned road itself between Curve 2 and Curve 3 was done with the consent and approval of Palos Verdes Corporation.
As to the 'tomato patch' fill in 1955, it is not altogether clear whether it was at the request of the Companies, who by that time had taken over, or by the County. It is clear, however, that such fill was made with the entire approval of the Companies who paid the farmer for damages in covering up his crop so that the work could be done.
In April 1955, when it became apparent that considerable excess material from the Curve 3 cut would have to be disposed of, job-site conferences were held between officials of the Companies and the County. As a result of these conferences the Companies agreed that the County could place a fill within Curve 3 outside of the contemplated easement if it would compact the fill and could also dispose of the waste on either side of the road between Curve 2 and Curve 3 as waste fills outside of the contemplated easement. In this connection, the Companies agreed to and did pay for the conduit which the County placed on the Companies' property inside Curve 3 and along the western boundary of that fill. In short, all of the work of constructing the road and placing the fill both within and outside of the contemplated easement which the Companies contend caused the present slide was done with the knowledge, approval and consent of the Companies and to some degree benefited the Companies by improving the topography of their property for subdivision purposes.'
Bigelow v. Los Angeles (1890), 85 Cal. 614, 24 P. 778;
Eachus v. Los Angeles Consolidated Electric Railway Company (1894), 103 Cal. 614, 37 P. 750;
Tyler v. Tehama County (1895), 109 Cal. 618, 42 P. 240;
Stanford v. San Francisco (1896), 111 Cal. 198, 43 P. 605;
Sievers v. San Francisco (1897), 115 Cal. 648, 47 P. 687;
Coats v. Atchison, etc., Railway Company (1905), 1 Cal.App. 441, 82 P. 640;
Sievers V. Root (1909), 10 Cal.App. 337, 101 P. 925;
Weisshand v. City of Petaluma (1918), 37 Cal.App. 296, 174 P. 955;
Gray v. Reclamation Dist. No. 1500 (1917), 174 Cal. 622, 163 P. 1024;
Colusa & Hamilton Railroad Company, et al. v. Leonard (1917), 176 Cal. 109, 167 P. 878;
Elliott v. County of Los Angeles (1920), 183 Cal. 472, 191 P. 899;
Wolff v. City of Los Angeles (1920), 49 Cal.App. 400, 193 P. 862;
Tormey v. Anderson-Cottonwood Irrigation District (1921), 53 Cal.App. 559, 200 P. 814;
McCandless v. City of Los Angeles (1931), 214 Cal. 67, 4 P.2d 139;
Los Angeles Athletic Club v. City of Long Beach (1932), 128 Cal.App. 427, 17 P.2d 1061;
Ketcham v. Modesto Irrigation District (1933), 135 Cal.App. 180, 26 P.2d 876;
McCandless v. City of Los Angeles (1935), 10 Cal.App.2d 407, 52 P.2d 545; Massetti v. Madera Canal & Irr. Company (1937), 20 Cal.App.2d 708, 68 P.2d 260;
Marin Municipal Water District v. Peninsula Paving Company (1939), 34 Cal.App.2d 647, 94 P.2d 404;
Bacich v. Board of Control (1943), 23 Cal.2d 343, 144 P.2d 818;
People v. Ricciardi (1943), 23 Cal.2d 390, 144 P.2d 799;
House v. Los Angeles County Flood Control District (1944), 25 Cal.2d 384, 153 P.2d 950;
Clement v. State Reclamation Board (1950), 35 Cal.2d 628, 220 P.2d 897;
Ambrosini v. Alisal Sanitary District (1957), 154 Cal.App.2d 720, 317 P.2d 33; Steiger v. City of San Diego (1958), 163 Cal.App.2d 110, 329 P.2d 94;
Los Angeles County Flood Control District v. Southern California Building and Loan Association (1961), 188 Cal.App.2d 850, 10 Cal.Rptr. 811.
Los Angeles County Flood Control Dist. v. Southern Cal. Bldg. and Loan Assn., 188 Cal.App.2d 850, 10 Cal.Rptr. 811;
Bacich v. Board of Control, 23 Cal.2d 343, 144 P.2d 818;
People v. Ricciardi, 23 Cal.2d 390, 144 P.2d 799;
Massetti v. Madera Canal & Irr. Co., 20 Cal.App.2d 708, 68 P.2d 260;
McCandless v. City of Los Angeles, 10 Cal.App.2d 407, 52 P.2d 545;
Ketcham v. Modesto Irr. Dist., 135 Cal.App. 180, 26 P.2d 876;
Los Angeles Athletic Club v. Long Beach, 128 Cal.App. 427, 17 P.2d 1061;
McCandless v. City of Los Angeles, 214 Cal. 67. 4 P.2d 139;
Tormey v. Anderson-Cottonwood Irrigation District, 53 Cal.App. 559, 200 P. 814;
Wolff v. City of Los Angeles, 49 Cal.App. 400, 193 P. 862;
Colusa & Hamilton R. R. Co. v. Leonard, 176 Cal. 109, 167 P. 878;
Weisshand v. City of Petaluma, 37 Cal.App. 296, 174 P. 955;
Sievers v. Root, 10 Cal.App. 337, 101 P. 925;
Coats v. Atchison, etc., Railway Company, 1 Cal.App. 441, 82 P. 640;
Sievers v. San Francisco, 115 Cal. 648, 47 P. 687;
Eachus v. Los Angeles, etc., Ry., 103 Cal. 614, 37 P. 750;
Bigelow v. Los Angeles, 85 Cal. 614, 24 P. 778.
Ward Concrete Products Co. v. L. A. County Flood Control District, 149 Cal.App.2d 840, 309 P.2d 546:
Ambrosini v. Alisal Sanitary Dist., 154 Cal.App.2d 720, 317 P.2d 33;
Bauer v. County of Ventura, 45 Cal.2d 276, 289 P.2d 1;
Clement v. State Reclamation Board, 35 Cal.2d 628, 220 P.2d 897;
House v. L. A. County Flood Control Dist., 25 Cal.2d 384, 153 P.2d 950;
Elliott v. County of Los Angeles, 183 Cal. 472, 191 P. 899;
Stanford v. City and County of San Francisco, 111 Cal. 198, 43 P. 605;
Tyler v. Tehama County, 109 Cal. 618, 42 P. 240.
Archer v. City of Los Angeles, 19 Cal.2d 19, 119 P.2d 1;
'O'IIara v. L. A. County Flood, etc., Dist., 19 Cal.2d 61, 119 P.2d 23;
San Gabriel Valley Country Club v. Los Angeles County, 182 Cal. 392, 188 P. 554, 9 A.L.R. 1200;
Gray v. Reclamation Dist. No. 1500, 174 Cal. 622, 163 P. 1024;
Lamb v. Reclamation Dist, 73 Cal. 125, 14 P. 625;
Curci v. Palo Verde Irr. Dist., 69 Cal.App.2d 583, 159 P.2d 674.