PARKER WOOD; SHINN, P. J., and VALLEE

BAUER et al.
v.
COUNTY OF VENTURA et al.

July 28, 1954.
Rehearing Denied Aug. 20, 1954.
Hearing Granted Sept. 17, 1954.

William T. Selby, Ventura, for appellants.

Roy A. Gustafson, Dist. Atty. of Ventura County, Ventura, Harry E. Sackett, Los Angeles, for respondents.

PARKER WOOD, Justice.

Plaintiffs appeal from judgments of dismissal based upon orders sustaining demurrers to their amended complaint. A general demurrer and a special demurrer of defendant county of Ventura were sustained with leave to amend within ten days. The plaintiffs having failed to amend within said time, a judgment was rendered dismissing the action as to said defendant. General demurrers of the other defendants were sustained without leave to amend. (The other defendants were: Saticoy Storm Drain Maintenance District, and the individuals who were members of the board of supervisors.)

The amended complaint alleges as follows:

I.

The county fo Ventura is a political subdivision of California. Defendant Saticoy Storm Drain Maintenance District is a special district in the county of Ventura that is under the control of the board of supervisors of said county. The defendants Pierce, Lefever, Barrett, Price, and Carty are and, at all times herein mentioned, were members of the board of supervisors of said county.

II.

At all times herein mentioned, plaintiffs were and are the owners of certain real property in said county of Ventura (legal description set forth therein). Said property is and was improved with a dwelling house, garage, gardens, fences, and a building which was used as a factory, machine shop, and woodworking shop. On March 15, 1952, and at all other times mentioned prior thereto, plaintiffs were operating said factory.

III.

Said real property lies northeast of Wells Road and fronts on Wells Road at the town of Saticoy. The business section of Saticoy is on ground lower than said real property and in a southeasterly direction therefrom. There is a substantial slope of said property in a southeasterly direction. Franklin Barranca is a watercourse carrying water from the hills northwest of Saticoy to the Santa Clara River at a point southeast of Saticoy. In its natural state the waters of that barranca would flow in a southeasterly direction approximately one-fourth mile away from said property and would not flow near the property. The waters falling on lands lying northeasterly or north or east from said property would, unless diverted by artificial means, flow away from plaintiffs' property toward the Santa Clara River, which lies below and southeasterly from said property.

IV.

In 1939, the Saticoy Storm Drain Maintenance District and the county of Ventura built a system of ditches and levees diverting the water of said barranca in a southwesterly direction from the natural course and along the ditch that was constructed by said defendants at a point southeasterly from and below plaintiffs' property, said ditch being constructed adjacent to but not upon plaintiffs' property. Said ditch as originally constructed was below the level of plaintiffs' properted was the southesterly bank thereof was lower than plaintiffs' property so that in the event said ditch should overflow it would overflow away from plaintiffs' property. From time to time since 1939, said defendants (county and storm drain district) have enlarged said system of ditches and levees lying above and northerly from plaintiffs' property thus confining the waters diverted and increasing the amount of water diverted towards plaintiffs' property. From time to time after 1939 to March 15, 1952, said defendants (county and district), acting pursuant to order of the Board of Supervisors of Ventura County, performed work upon that portion of the ditch and the dikes constituting the banks thereof, which lie adjacent to the southeasterly line of plaintiffs' property. In doing that work, said defendants caused accumulated debris and soil to be removed from the bottom of said ditch and to be placed upon the southeasterly bank of the ditch, thus raising the height of the southeasterly bank. In 1950 and 1951, and to March 15, 1952, the level of the southeasterly bank of the ditch was so raised that it was substantially higher than plaintiffs' property, which lies on the northwesterly bank of the ditch. No bank or levee was placed along the northwesterly bank of the ditch to prevent diversion of water onto plaintiffs' property. At a point adjacent to Wells Road and at the southerly corner of plaintiffs' 'said real property said ditch and the dikes thereof hereinbefore described were constructed a pipe extended across and through said ditch in such manner as to create an obstruction to said ditch and the waters flowing therein.' All said work of construction of the ditch, banks, and dikes, and all the diversion of water into the ditch, was done by said defendants (county and district) and was wholly under the supervision and control of said defendants. The direction and control of said work was at all times in 1950, 1951, and 1952, under the direct supervision of defendants Pierce, Lefever, Barrett, Price, and Carty.

V.

In the construction of the ditches, banks, and levees, the defendants county and district negligently and carelessly failed to construct the same in an adequate manner to carry the storm waters diverted into the same past and away from plaintiffs' land, and negligently and carelessly failed to construct said conduits and systems in a manner adequate for the purpose for which they were intended, and negligently and carelessly permitted obstructions to be placed in the ditch, and negligently and carelessly permitted and caused debris and stumps to be placed therein. On March 15, 1952, the ditch was constructed and maintained in a dangerous and defective condition. Said board of supervisors, and each of the members thereof, and each of the defendants, failed and neglected to remedy said condition within a reasonable time after such notice or knowledge. All said works were constructed by said defendants, or at the direction of said defendants.

VI.

On March 15, 1952, waters were collected by means of the system of ditches, dikes, and levees, and were diverted from their natural course and into the ditch which extends along the southeasterly line of plaintiffs' property, said waters so diverted being in an amount greater than the capacity of the ditch to carry then beyond plaintiffs' property. Debris and stumps, which had been permitted to collect in the ditch, were permitted to collect upon the obstructions therein around which the ditch had been constructed by defendants, and which were established by said defendants within the ditch at the time of the construction thereof. As a proximate result of the dangerous and defective condition of the ditch, of the obstructions established therein, and of the acts of defendants in diverting water into the ditch, and in construction of said banks and levees, the water so diverted by means of the ditch flowed onto plaintiffs' property and into plaintiffs' factory, garden, and house causing damage thereto and to materials stored in the factory.

VII.

As a proximate result of the acts of defendants, plaintiffs have been damaged in the amount of $5,000.

VIII.

On June 11, 1952, plaintiffs filed with said board of supervisors the verified claim of plaintiffs, a copy of which is attached to the amended complaint and marked exhibit A. On June 21, 1952, said board of supervisors denied plaintiffs' claim.

IX.

Plaintiffs have received no compensation for the damage and taking of their said property for such public use.

According to the amended complaint, the natural course of the water was one-fourth mile from plaintiffs' property; in 1939, defendants county and district diverted the water from its natural course by constructing a system of ditches; one of the ditches was constructed along the side of plaintiffs' property and a pipe was extended across and through the ditch at a place in the ditch, near the corner of plaintiffs' property, in such a manner as to create an obstruction to the water in the ditch; in 1950, 1951, and 1952 they made the bank of the ditch which was opposite plaintiffs' property, and across the ditch therefrom, higher than plaintiffs' property; they did not place a bank or levee on the side of the ditch next to plaintiffs' property; they negligently and carelessly failed to construct the ditch on opposite bank in an adequate manner to carry the storm water past and away from plaintiffs' property; on March 15, 1952, water was diverted from its natural course into the ditch in an amount greater than the capacity of the ditch to carry water beyond plaintiffs' property; as a proximate result of the dangerous and defective condition of the ditch, of the obstructions therein, of the acts of defendants in diverting the water and constructing the banks, water flowed onto and damaged plaintiffs' property; plaintiffs have not received any compensation for the damage and for the taking of their property for such public use. Those allegations stated a cause of action against the county and against the district within the scope of Article I, section 14, of the Constitution of California, which prohibits the taking or damaging of private property without just compensation. In the case of Clement v. State Reclamation Board, 35 Cal.2d 628 at pages 637, 638, 220 P.2d 897 at page 903, it was said: 'If, however, the construction of a flood control project diverts natural stream waters onto the land of a private owner and causes damage thereto, that property is as much taken or damaged for a public use for which compensation must be paid as if it were condemned for the construction of a highway or a school.' See also Elliott v. County of Los Angeles, 183 Cal. 472, 475, 191 P. 899; Smith v. City of Los Angeles, 66 Cal.App.2d 562, 573, 153 P.2d 69. Respondents (defendants) assert, however, that the facts alleged in the amended complaint herein show that the damage to plaintiffs' property resulted from a mere act of negligence on the part of the county or the district in the operation of a public work and such negligence does not amount to taking or damaging private property for public use. They argue that the amended complaint did not allege that the damage resulted from the construction of the ditches alone, but it alleged that defendants constructed the ditches which diverted the water away from its natural course and that while the water was so diverted the defendants committed an additional act of negligence by permitting stumps and debris to collect in the ditch adjacent to plaintiffs' property, and that by a combination of these factors (the diversion of the water and the collection of stumps and debris) water flowed upon plaintiffs' property. They argue further that for the purpose of this appeal the diversion is immaterial--the case is the same as though defendants had the duty of clearing the debris from a stream and negligently failed to perform that duty. Based upon the premise that only negligence in failing to remove the stumps and debris was alleged, the respondents assert that the district was not liable by reason of negligence, because it was immune from such liability--there being no statutory waiver of its immunity under section 53051 of the Government Code. That section provides that a local agency (which means city, county, or school district) is liable for injuries to persons and property resulting from the dangerous or defective condition of public property under certain conditions. A storm drain maintenance district is not one of the local agencies referred to in said section, and it is true that the storm drain district herein is not liable under the provisions of said section for injuries to persons or property resulting from the dangerous or defective condition of public property. The county is a local agency referred to in said section, and the question as to the liability of the county under that section and under the allegations of the amended complaint will be discussed later herein. The amended complaint did contain allegations that stumps and debris, which had been permitted to collect in the ditch, were permitted to collect upon the obstructions around which the ditch had been constructed and which were established within the ditch by the defendants at the time of the construction thereof. As above stated, it was also alleged that a pipe extended across and through the ditch at a corner of plaintiffs' property. A copy of the claim which plaintiffs presented to the Board of Supervisors (attached to the amended complaint as a part thereof) states that the pipe was about 12 inches in diameter and so placed as to act as a dam and as to interfere with the movement of debris through the ditch. The pipe across the ditch was a part of the construction of the ditch. Irrespective of the allegations regarding the stumps and debris, the amended complaint alleges in essence that defendants county and district constructed the ditch with a pipe obstruction in it, and constructed the ditch in such a manner that it would not carry the storm water past and away from plaintiffs' property, and said defendants diverted water from its natural course into the ditch in an amount greater than the capacity of the ditch to carry water beyond plaintiffs' property. As above stated, the amended complaint states a cause of action against the county and the district within the scope of Article I, section 14, of the California Constitution.

Respondents contend that a cause of action was not stated against defendant county under the provisions of section 53051 of the Government Code. That section provides, as above stated, to the effect that a county is liable for injuries to property resulting from the dangerous or defective condition of public property under certain conditions. As to such liability, the amended complaint alleged in essence that the county negligently failed to construct the ditch in an adequate manner to carry the storm waters past and way from plaintiffs' property, and negligently permitted stumps and debris to be placed therein, and on March 15, 1952, the ditch was constructed and maintained in a dangerous and defective condition, and on said day water which was diverted from its natural course into the ditch flowed onto and damaged plaintiffs' property. Respondents argue that the amended complaint fails to state a cause of action under said section 53051 because it is not alleged that the ditch is public property or the property of the county. They state in their brief that, 'As to tort liability of the county, plaintiffs have shown that they have a good cause of action, and defendants so admit, except that they failed to plead it. The fatal omission was the failure to allege the ditch was the public property of the county.' This point, with reference to ownership, was not presented in the trial court. Section 53050 of the Government Code provides in part: '* * * (b) 'Public property' means public street, highway, building, park, grounds, works, or property.' The ditch constructed by the county comes within the classification of 'works' referred to in that section. In Young v. County of Ventura, 39 Cal.App.2d 732 at page 738, 104 P.2d 102 at page 106, it was said: 'The storm ditch constructed and maintained by defendant county unquestionably comes within the classification of 'public works' as this term is used in the statutes giving plaintiffs a right of action and prescribing the procedure for their action. It was designed to subserve a purpose of public use * * *. It was not necessary that it be constructed upon public property, but it could be constructed and maintained by the county upon private property. * * * The statutes in question do not provide that the public works be constructed upon property owned by the political subdivisions referred to therein.' The statutes referred to therein were Statutes of 1923, page 675, section 2, Act 5619, Deering's General Laws 1937, pertaining to liability of counties, municipalities, and school districts for negligence--known as The Public Liability Act. The provisions of those statutes and the provisions of said sections 53050 and 53031 of the Government Code are substantially the same with reference to the point involved herein. It was not necessary to allege that the ditch was public property or the property of Ventura County.

Respondents assert further that if a cause of action was stated against the county, the amended complaint was uncertain, ambiguous and unintelligible, in that, in one paragraph a pipe is referred to as an obstruction, and in two other paragraphs there were allegations regarding obstructions in the ditch--and it cannot be determined how many obstructions were there. They also assert they cannot ascertain the meaning of a certain sentence in the amended complaint (the sentence wherein there is a purported description of the place where a pipe extended across the ditch). Those matters were not of sufficient importance to justify sustaining the demurrer. Some of the language used in describing the location of the pipe is not clear, but it was clearly alleged that a pipe was across the ditch at the southerly corner of plaintiff's property.

Respondents assert further that the supervisors were not liable because the conditions of their liability imposed by section 1953 of the Government Code have not been met. That section provides: 'No officer of the State or of any district, county, or city is liable for any damage or injury to any person or property resulting from the defective or dangerous condition of any public property, unless all of the following first appear: (a) The injury sustained was the direct and proximate result of such defective or dangerous condition. (b) The officer had notice of such defective or dangerous condition or such defective or dangerous condition was directely attributable to work done by him, or under his direction, in a negligent, careless or unworkmanlike manner. (c) He had authority and it was his duty to remedy such condition at the expense of the State or of a political subdivision thereof and that funds for that purpose were immediately available to him. (d) Within a reasonable time after receiving such notice and being able to remedy such condition, he failed so to do, or failed to take reasonable steps to give adequate warning of such condition. (e) The damage or injury was sustained while such public property was being carefully used, and due care was being exercised to avoid the danger due to such condition.' Respondents assert that even if it be assumed that the allegations were sufficient to meet the requirements of said subdivision (a) and (b), and allegations do not meet the requirements of subdivisions (c), (d), or (e); that it was not alleged that the supervisors had the duty to remedy the condition at the expense of the county and that funds for that purpose were immediately available; that it was not alleged that the supervisors failed to give warning of such condition; that it was not alleged that the plaintiffs exercised due care to avoid the danger due to such condition. The amended complaint states that the direction and control of said work was at all times in 1950, 1951, and 1952 under the direct supervision of the defendants who were members of the board of supervisors; that the members of said board failed to remedy said condition within a reasonable time after such notice or knowledge; that all said works were constructed by said defendants or at their direction. Appellants state that the provisions of section 1953 of the Government Code are not applicable if a tort is committed by the supervisors in doing an act which is not authorized by their public office; that they were not authorized by reason of their office to divert water from its natural course onto plaintiffs' property, and they are individually responsible. The demurrer of the supervisors was sustained without leave to amend. If the provisions of said section 1953 are applicable here, it does not appear that plaintiffs could not have amended their complaint to meet the requirements of all said subdivisions--to allege that funds were immediately available, and that the supervisors failed to give warning. In Moore v. Burton, 75 Cal.App. 395, 242 P. 902, which was an action against trustees of a levee district for injury to land caused by diversion of water by dams built under the supervision of the trustees, a demurrer was sustained. The court said that it may be fairly inferred from the allegations that the damage to the land was not directly caused by the failure to repair the broken levee, but by the construction and maintenance of the dams. It was contended by the defendants (trustees) therein that the plaintiffs had not alleged facts to meet the requirements of provisions of the act of 1919 relating to the liability of officers of districts for injuries to persons or property from defects and dangers in public work. The provisions of that act are similar to the provisions of said section 1953 of the Government Code. The court therein said, 75 Cal.App. at page 400, 242 P. at page 904: '[I]t fairly appearing from the allegations of the complaint that the injuries described resulted directly and proximately from the negligent erection and maintenance of the dams described, the pleading in this particular was sufficient. It appears * * * to have been the intention of the Legislature to make a distinction between those cases where defective or dangerous conditions in public work are directly attributable to negligent construction in the first instance by an officer having the immediate control or direction of such work, and those wherein such conditions are due to the negligence of persons not under his supervision, or to use, accident, or natural causes, by requiring in the latter instances notice thereof, the authority and duty, with funds available, to remedy those conditions, and that it shall first appear; these facts being shown, that he failed to remedy them within a reasonable time or give adequate warning thereof.' In that case it was also said that, under the allegations of the complaint it was not necessary to allege that plaintiff was carefully using the public property, since it appeared 'that the work described, unlike roads, bridges, or works constructed for similar purposes, was not of a character permitting its use by appellant.' Under the allegations of the amended complaint in the present case, it appears that the supervisors raised the bank of the ditch opposite plaintiffs' property so that it was substantially higher than plaintiffs' property and that no bank or levee was placed on the side of the ditch next to plaintiffs' property. As to the matter of notice, it was said in Fackrell v. City of San Diego, 26 Cal.2d 196 at page 203, 157 P.2d 625 at page 629, 158 A.L.R. 773: 'The rule is well established that when it is shown that a certain street and sidewalk improvement has been planned by city officers and constructed in accordance with such plan, and that by carrying out the plan a dangerous or defective condition has been created, no further proof is needed to charge the city with notice of that condition.' The demurrer of the supervisors should not have been sustained.

The trial court erred in sustaining the demurrers.

The judgments are reversed.

SHINN, P. J., and VALLEE, J., concur. --------------- * Opinion vacated 289 P.2d 1. 1 'A local agency is liable for injuries to persons and property resulting from the dangerous or defective condition of public property if the legislative body, board, or person authorized to remedy the condition: '(a) Had knowledge or notice of the defective or dangerous condition. '(b) For a reasonable time after acquiring knowledge or receiving notice, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition.'