Opinion
12-9-1957
SOUTHERN CALIFORNIA GAS COMPANY, a corporation, Plaintiff and Respondent, v. CITY OF LOS ANGELES, a municipal corporation, Defendant and Appellant. * Civ. 22389.
Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., Claude E. Hilker, Deputy City Atty., Los Angeles, for appellant. T. J. Reynolds, Allen L. Cleveland, Bates Booth, Los Angeles, C. R. Salter, Whittier, for respondent.
SOUTHERN CALIFORNIA GAS COMPANY, a corporation, Plaintiff and Respondent,
v.
CITY OF LOS ANGELES, a municipal corporation, Defendant and Appellant. *
Dec. 9, 1957.
Rehearing Denied Dec. 31, 1957.
Hearing Granted Feb. 5, 1958.
Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., Claude E. Hilker, Deputy City Atty., Los Angeles, for appellant.
T. J. Reynolds, Allen L. Cleveland, Bates Booth, Los Angeles, C. R. Salter, Whittier, for respondent.
DRAPEAU, Justice pro tem.
The facts in this case are without conflict.
To keep up with its enormous growth of population, the City of Los Angeles was compelled to construct new sewer lines to serve a part of the city located in the San Fernando Valley. One of these lines runs to a juncture with the city's Hyperion disposal line, and goes through a narrow strip of land in West Hollywood. This strip is within the county of Los Angeles, and is often called the 'County Strip'.
Part of this sewer line was routed under streets in the county strip that were already occupied by gas lines of Southern California Gas Company, a public utility corporation, and put there under a franchise from the county. These gas lines were in the way of the projected sewer line, and had to be relocated.
The gas company contended that the city should pay the cost of the relocation. The city would not agree to this. So the gas company relocated its lines, and brought this action in the superior court against the city for $12,003.92, the cost of the work.
Judgment was for the gas company, and the city appeals.
Thus we have for decision a single question, as stated in the city's opening brief on appeal: 'Is a public utility obligated to relocate at its own expense its facilities underlying public streets within an unincorporated portion of the county to make way for a public improvement being installed therein by a city?'
The city contends:
1. That the installation and maintenance of sewers by a municipality for the protection of the public health is an exercise of the police power.
2. The use by a public utility of public streets is subservient to the public use thereof, and a public utility must at its own expense relocate its facilities therein to avoid conflict with such public use.
3. The police power of the state is being exercised by a municipality when it constructs sewers beyond its boundaries and a utility must relocate its interfering lines in public streets at its own expense.
4. The state's authority over the public streets is a proper basis for its grant of authority to municipalities to install sewers therein.
The state's police power to take its citizens' property without paying for it is always qualified by its constitutional obligation to pay just compensation for it. Cal.Const. Art. I, sec. 14.
Of course, under the police power, in emergencies calling for immediate action, when conditions dangerous to life, health, or property of the people are present, the state may take or destroy private property without compensation. Private property is then subservient to the right of the state to act in the public interest. But this power is never permitted to go beyond proper bounds, and when it does it comes within the purview of eminent domain. Cf. House v. L. A. County Flood Control Dist., 25 Cal.2d 384, 388, 153 P.2d 950.
In our opinion, constructing sewers in the ordinary growth of cities does not come within the emergency scope of the police power, that would permit taking of private property without compensation for it.
The gas company's property here in question is 'a species of real property appropriately designated as a franchise.' City of South Pasadena v. Pasadena Land & Water Co., 152 Cal. 579, 586, 93 P. 490, 493.
Such a property right is vested, and neither the state nor any of its agencies may under the police power take it for constructing sewers without paying just compensation for it. Western Union Tel. Co. v. Hopkins, 160 Cal. 106, 120, 116 P. 557; Archer v. City of Los Angeles, 19 Cal.2d 19, 119 P.2d 1; Rose v. State of California, 19 Cal.2d 713, 123 P.2d 505; County of Los Angeles v. Southern Cal. Tel. Co., 32 Cal.2d 378, 196 P.2d 773; City of Los Angeles v. Los Angeles Gas & E. Corp., 251 U.S. 32, 40 S.Ct. 76, 64 L.ed. 121.
Industry of counsel has brought to us cases from out of state which hold both ways, i. e.
That the public utility must move its lines at its own expense:
New Orleans Gaslight Co. v. Drainage Commission of New Orleans, 197 U.S. 453, 25 S.Ct. 471, 49 L.Ed. 831; Anderson v. Fuller, 51 Fla. 380, 41 So. 684; Transit Commission v. Long Island R. Co., 253 N.Y. 345, 171 N.E. 565.
That a franchise is a property right protected by the federal constitution:
Russell v. Sebastian, 233 U.S. 195, 34 S.Ct. 517, 58 L.Ed. 912; Panhandle Eastern Pipe Line Co. v. State Highway Comm., 294 U.S. 613, 55 S.Ct. 563, 76 L.Ed. 1090. (Distinguishing New Orleans Gaslight Co. v. Drainage Commission of New Orleans, supra, 197 U.S. 453, 25 S.Ct. 471, 49 L.Ed. 831.)
This court concludes that the decision of the superior court was right, not only as a matter of law, but also as a practical matter. As one looks into the future and sees the continuing growth of population of California, with its cities forced to extend their facilities in many directions and for long distances, it would seem only fair that public utility companies whose properties may be in the way of such extensions should be compensated for their relocation. Seeking, as we should, for the ultimate justice in this case, it is to be said that in the last analysis either the people of the City of Los Angeles or the people served by the gas company will have to pay this expense. Quite likely in this case it will be mostly the same people who will contribute their share through one agency or the other. But it will be the people of the city who will enjoy the benefits of this public work, and they should, therefore, bear the burden of its cost.
There is nothing in the case of Merced Falls Gas. & Electric Co. v. Turner, 2 Cal.App 720, 84 P. 239 that is contrary to this conclusion.
In that case it was held that a public utility franchise did not grant an absolute, indefeasible right in particular spots of earth where its poles were placed originally; that the right to maintain them was subject always to changing conditions.
The judgment is affirmed.
WHITE, P. J., and FOURT, J., concur. --------------- * Opinion vacated 329 P.2d 289.