Opinion
Page __
__ Cal.App.2d __ 325 P.2d 1028 PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent. City of Los Angeles, Real Party in Interest. Civ. 23047. California Court of Appeals, Second District, Third Division June 2, 1958Hearing Granted July 30, 1958.
Proceeding dismissed as moot Dec. 23, 1958.
Edmund G. Brown, Atty. Gen., Walter S. Rountree, Asst. Atty. Gen., B. Abbott Goldberg, Albert W. Harris, Jr., Deputy Attys. Gen., for petitioner.
Roger Arnebergh, City Atty., City of Los Angeles, Gilmore Tillman, Chief Asst. City Atty. for Water and Power, Robt. E. Moore, Jr., Ralph Guy Wesson, Dep. City Attys., Los Angeles, for real party in interest.
PATROSSO, Justice pro tem.
The State of California seeks a writ of prohibition to restrain the respondent court from taking any further proceedings against it in connection with a certain pending action wherein the State is a defendant.
Prohibition is sought on the ground that the State possesses sovereign immunity from being sued in an action of the kind and nature brought against it; and that therefore the respondent court has no jurisdiction [325 P.2d 1030] to entertain said action as against the State. It appears that the State's demurrers to the complaint and amended complaint on said ground have been overruled by the respondent court; and that, unless restrained, the respondent court will proceed to try said action against the State and to render judgment therein.
The action pending below is one commenced by the City of Los Angeles against the State and Some 213 other defendants; and, in the title of the amended complaint, it is described as an action 'For Declaratory Relief, to Quiet Title to Waters and Water Rights, and for an Injunction.'
The essence of the allegations of the amended complaint is: (1) that the City possesses prior and paramount rights in and to waters of the Los Angeles River and its tributaries as successor of the 'Pueblo of Los Angeles,' and in and to foreign waters brought from distant points and discharged by the City into the drain age area of the Los Angeles River for the city's uses; (2) that each of the defendants claims some right, title or interest in and to said waters; that said claims are without right; and that none of the defendants has any right, title or interest in or to said waters; (3) that, by means of wells and other facilities for the diversion and taking of waters operated and maintained by the defendants on their properties, each of the defendants has been and is continuously diverting and taking, and unless enjoined will continue to divert and take, substantial quantities of said Los Angeles River waters and foreign waters to the City's irreparable damage. By an appendix attached to and made a part of the amended complaint, it is alleged that the State is the owner of a certain described parcel of land upon which an identified well is located.
The prayer of the amended complaint is very detailed and lengthy. The substance thereof is, however, that the defendants be required to set forth the nature of their claims to said waters; that it be declared and decree that the City has prior and paramount rights to said waters; that it be declared and decreed that none of the defendants has any right, title or interest in or to said waters, except subject and in subordination to the rights of the City; and that the defendants be perpetually enjoined from diverting or taking said waters, except subject and in subordination to the rights of the city.
As hereinafter further discussed, said amended complaint does not set forth any cause of action predicated on allegations and theory that the State has taken or damaged the City's property without payment, or the securing of payment, of just compensation, and that the City is entitled to an injunction restraining said taking or damaging of its property unless and until just compensation therefor has been paid or otherwise secured. On the contrary, the City contends that the State has absolutely no right, whether or not just compensation is paid or secured, to take said waters except subject to and in subordination to the City's rights; and the City is not seeking an injunction to prevent the State from taking said waters until just compensation therefor has been paid or otherwise secured, but rather an injunction to prevent the State perpetually from taking said waters except subject to and in subordination to the City's alleged prior and paramount rights thereto.
It is alleged in the petition for the writ herein, and not denied, that the real property belonging to the State upon which the well is located, was acquired in fee simple by the State through an action in eminent domain for use as a site for a State mental hospital. It is further alleged in the petition herein, and not denied, that the State's fee simple title was acquired subject to an exclusive easement in Mollin Investment Company to operate the well located on the property until said well is abandoned or until the present use of Mollin Investment Company's remaining property be changed to a use other than for agricultural purposes; and that the State's interest is that of an owner of real property overlying underground water with a contingent right [325 P.2d 1031] to use a well located thereon at some future time.
It is fundamental that the State, by reason of its sovereign immunity, may not be sued without its consent; and that such consent has to be expressed and found in constitutional or statutory provisions authorizing or permitting suit against the State. 23 Cal.Jur. 578, 579; 81 C.J.S. States § 214, pp. 1300-1307; People v. Superior Court, 29 Cal.2d 754, 756-757, 178 P.2d 1, 40 A.L.R.2d 919; State v. Royal Consolidated Min. Co., 187 Cal. 343, 347, 202 P. 133; Liebman v. Richmond, 103 Cal.App. 354, 359-360, 284 P. 1053.
The only constitutional or statutory provision which has been cited by the city in support of the claim that it has the right to maintain its said action against the State is section 14, article I, California Constitution, which provides that private property shall not be taken or damaged for public use without just compensation having first been made therefor, or the payment thereof otherwise secured as therein specified. We also are unable to find any constitutional or statutory provision authorizing or permitting such an action as the one brought herein to be maintained against the State, unless such authorization or permission is to be found in said section 14, article I, of our State Constitution.
There can be no doubt that said constitutional provision is self-executing; and that it gives an owner of private property the right to maintain an action against the State to recover damages for the taking or damaging of private property for public use. Rose v. State of California, 19 Cal.2d 713, 720-726, 123 P.2d 505.
It is however, entirely clear, as shown by the aforestated analysis of the allegations of the amended complaint and as will be further shown hereinafter, that the action herein, whatever its nature may be said to be, is not one to recover damages for the taking or damaging of private property for public use.
The City, however, contends that an owner, whose property has been taken for public use without just compensation being paid therefor or otherwise secured, has an alternative right either to enjoin or to sue for damages (Beals v. City of Los Angeles, 23 Cal.2d 381, 387-388, 144 P.2d 839; Rose v. State of California, supra, 19 Cal.2d at page 726, 123 P.2d at page 513; Wilcox v. Engebretsen, 160 Cal. 288, 299, 116 P. 750); and that, by reason thereof, it has the right to maintain its said action and to obtain injunctive relief against the State.
The City's contention is not well founded for the reason that the cited and other like cases merely hold that, under section 14 of article I, a property owner may enjoin the State or its sub-bodies from taking or damaging his property for public use until his damages have been lawfully ascertained and paid or secured in the manner prescribed by the Constitution, upon the ground that just compensation for such taking or damaging has not been so ascertained, paid or secured. Said contention likewise cannot be sustained for the further reason that the City herein is not seeking upon such ground to enjoin the State from taking or diverting said waters until its damages have been lawfully ascertained, paid for or secured, but rather to enjoin the State perpetually from taking or diverting said waters except subject and in subordination to the City's rights, upon the ground that the City's rights to said waters are prior and paramount.
On other words, the City is seeking to enjoin the takin itself upon the ground that its title to the waters is prior and paramount, rather than to protect any constitutional right it may have to be paid just compensation for the taking; and, as the Supreme Court of Nebraska pointed out in Northwestern Mut. Life Ins. Co. v. Nordhues, 129 Neb. 379, 261 N.W. 687, 689, with reference to a provision of the Nebraska Constitution similar to section 14 of article I of our State Constitution: 'The Constitution does not forbid the taking of the land but guarantees just compensation for the taking or damage.'
[325 P.2d 1032]Such being the nature of the action, it is settled that an action to adjudicate the property rights of the State cannot be maintained. State v. Royal Consolidated Min. Co., 187 Cal. 343, 346-347, 202 P. 133; People ex rel. Department of Public Works v. Buellton Development Co., 58 Cal.App.2d 178, 184-185, 136 P.2d 793; see, also, Hoyt v. Board of Civil Service Com'rs, 21 Cal.2d 399, 403-405, 132 P.2d 804.
In the Nordhues case, supra, 129 Neb. 379, 261 N.W. 687, wherein a state purchased land from plaintiff's mortgagor and used the land as part of a public highway in disregard of the plaintiff-mortgagee's rights and wherein the mortgagee instead of filing a claim for his damage with the state auditor filed suit against the state to foreclose the mortgage, the Supreme Court of Nebraska further pertinently pointed out: 'After all, there is a distinction in that this is a suit to foreclose a mortgage and dispossess the state [instead of an action] at law for damages.'
Similarly here, there is a distinction between a suit to have it declared and decreed that the State has no right, title or interest in and to said waters and to enjoin the State from taking said waters other than in subordination to the City's rights, and a suit either to recover damages for the taking hereof without payment of just compensation or to enjoin the State from taking until just compensation has been ascertained, paid or otherwise secured. A suit of the latter nature might be maintained against the State; but a suit to adjudicate the State's rights and title to said waters and to enjoin the State from taking said waters except in subordination to the City's rights is not maintainable in view of the authorities above cited and the absence of any constitutional or statutory provisions permitting such a suit against the State.
Accordingly and since the amended complaint on its face only sets forth causes of action of a nature and kind clearly not maintainable agaisnt the State, it is unnecessary to consider the State's further contention that compliance with the provisions of section 16041 of the Government Code is required and must be alleged.
For the same reason, it is also unnecessary to discuss the State's contention that the right to use the well on its property is at present reserved in Mollin Investment Company or the City's countercontention that the jurisdiction of the respondent court must be determined solely on the basis of the amended complaint without consideration of denials and matters of affirmative defense in accordance with the principles enunciated in Pianka v. State of California, 46 Cal.2d 208, 293 P.2d 458, and other similar cases.
Finally and as to whether prohibition may properly issue, it is settled that a plea of sovereign immunity from suit presents a jurisdictional question, and that prohibition may properly issue under the conditions prescribed by sections 1102 et seq. of the Code of Civil Procedure. People v. Superior Court, 29 Cal.2d 754, 756, 178 P.2d 1, 40 A.L.R.2d 919. It further clearly appears herein that the State will be subjected to the delay, burden and expense of a lengthy trial; and that therefore an appeal (assuming that there would be a remedy by appeal) is not a speedy or adequate remedy, especially where the trial court has no jurisdiction to proceed with the action. City of San Diego v. Superior Court, 36 Cal.2d 483, 485, 224 P.2d 685.
Let peremptory writ of prohibition issue as prayed for.
SHINN, P. J., and PARKER WOOD, J., concur.