Miramar Co. v. City of Santa Barbara , 23 Cal. 2d 170 ( 1943 )

SHENK, J.

I concur in the judgment of affirmance on the ground that the loss alleged to have been suffered by the plaintiff did not amount to a taking of private property for a public use as contemplated by our Constitution and that the timely filing of a claim under the Statutes of 1931, page 2475, was required.

By stipulation of the parties the trial was confined to the special defense which alleged that the action was barred for failure of the plaintiff to comply with the claim statute. This course was pursued for the obvious reason that if this defense were sustained the trial of the case otherwise on the merits would be obviated. The trial court found that a claim should have been filed pursuant to the statute, and that a claim had not so been filed. Judgment was rendered for the defendant on that ground. The question on the appeal, as I see it, is whether the trial court correctly concluded that the case was one which required the filing of a claim under the statute.

The plaintiff asserts its right to recovery for the destruction of the sandy beach by virtue of the provisions of section 14 of article I of the California Constitution providing that private property may not be taken or damaged for public use without compensation first having been paid to the owner, and notice to the defendant pursuant to Statutes of 1923, page 675.

The plaintiff alleges that solely as the result of the construction and maintenance of the breakwater, the normal course of the ocean currents was changed, causing the waters gradually, continuously and progressively to wash away its sandy beach three miles below the breakwater.

To state a cause of action under the constitutional provision it is necessary to allege a taking or a damaging of the plaintiff’s property for a public use. The plaintiff attempts to support its theory or conclusion that the loss was a taking for public use upon the failure of the ocean currents to carry a compensating load of sand to its beach. The mere statement of the contention of the plaintiff that the city of Santa Barbara was thus taking the far off sandy beach for a public" use is a demonstration of the futility of the claim. What public use the city was or is to make of that beach is not disclosed, and the assertion that the construction and maintenance of the breakwater has resulted in such a taking is a mere conclusion which is negatived by the other allegations in the complaint.

The general rule is that acts done, as here, in the proper exercise of governmental powers and not directly encroaching upon private property, though their consequences may impair its use, are not a taking within the meaning of the constitutional provision. (See Northern Transportation Co. v. Chicago, 99 U.S. 635, 642 [25 L.Ed. 336]; Gibson v. United States, 166 U.S. 269 [17 S.Ct. 578, 41 L.Ed. 996]; Scranton v. Wheeler, 179 U.S. 141 [21 S.Ct. 48, 45 L.Ed. 126]; Bedford v. United States, 192 U.S. 217 [24 S.Ct. 238, 48 L.Ed. 414]; Sanguinetti v. United States, 264 U.S. 146 [44 S.Ct. 264, 68 L.Ed. 608]; Franklin v. United States, 101 F.2d 459; Goodman v. United States, 113 F.2d 914; Green v. State, 73 Cal. 29 [11 P. 602, 14 P. 610]; Lamb v. Reclamation Dist. No. 108, 73 Cal. 125 [14 P. 625, 2 Am.St.Rep. 775].) Cases in which damage has been held to be a taking involved a direct physical invasion or encroachment. (See Pumpelly v. Green Bay etc. Co., 13 Wall. (80 U.S.) 166 [20 L.Ed. 557]; United States v. Lynah, 188 U.S. 445 [23 S.Ct. 349, 47 L.Ed. 539]; United States v. Cress, 243 U.S. 316 [37 S.Ct. 380, 61 L.Ed. 746]; United States v. Wabasha-Nelson Bridge Co., 83 F.2d 852; Carpenter v. Board of Commissioners, 56 Minn. 513 [58 N.W. 295, 45 Am.St.Rep. 494]; Morrison v. Clackamas County, 141 Ore. 564 [18 P.2d 814].) Thus decisions permitting recovery under the Fifth Amendment of the United States Constitution providing for compensation for a taking only, are confined to cases involving a direct physical invasion of or encroachment upon the property. The doctrine of taking under the Fifth Amendment has never been extended beyond the rule, stated, and certainly there is no necessity for doing so under a constitutional provision which provides compensation for both taking and damaging.

It is obvious from the foregoing cited cases and from a consideration of the provision of the state Constitution that a taking of property is not effected unless the property is directly utilized in the public improvement. Damage which is not caused by a direct invasion or utilization of the private property in the improvement is not a taking. The plaintiff has not alleged, and apparently cannot allege, facts from which it may properly be concluded that there was a direct physical invasion of or encroachment upon its property resulting from the construction of the breakwater. The allegations of the complaint fall far short of stating a cause of action for a taking of private property for public use. It has been held directly that damage such as is here alleged is indirect and consequential and therefore not a taking. (Bedford v. United States, Franklin v. United States, supra.) Whatever loss the plaintiff sustained, if compensable at all, was for damages. The question then remains whether, on account of such loss, a timely claim was required to be filed under the 1931 statute.

It is settled in this state that a cause of action for either a taking or damaging of private property for public use under the constitutional provision is subject to the operation of a claim statute or charter provision, provided the terms thereof are broad enough to embrace it. (Rose v. State of California, 19 Cal.2d 713, 725 [123 P.2d 505]; Powers Farms, Inc. v. Consolidated Irr. Dist., 19 Cal.2d 123, 126 [119 P.2d 717], citing numerous cases; Davis v. East Contra Costa Irr. Dist., 19 Cal.2d 140 [119 P.2d 727]; Crescent Wharf & Warehouse Co. v. Los Angeles, 207 Cal. 430 [278 P. 1028]; Los Angeles Athletic Club v. Long Beach, 128 Cal.App. 427 [17 P.2d 1061].) The statute of 1931 provides that a claim for damages to property “as a result of the dangerous or defective condition of any public . . . works,” must be filed within the time specified “after such accident has occurred.” Concededly this statute is not broad enough to include a claim for taking private property for public use; but the statute seems to be broad enough to cover all damage ensuing from the construction or maintenance of public works which in its essence may not be deemed a taking. It was decided in the cases of Powers Farms, Inc. v. Consoldiated Irr. Dist. and Davis v. Fast Contra Costa Irr. Dist., supra, that liability for dangerous or defective condition of property of the district covered a general liability, including a liability accruing by virtue of the exercise of the power of eminent domain, without reference to negligence. The general liability having thus been provided for may not be relegated to the field of tort liability alone by the addition in the statute of the words “after such accident has occurred.” The quoted words refer to the time when the claim must be filed, and do not limit established general liability. The foregoing cited eases likewise establish that damage is caused by the dangerous or defective condition of public works, within the meaning of the statute, if the condition of the public works is dangerous to the plaintiff’s property without reference to negligence.

It follows that, since the alleged cause of action is not for a taking of private property as distinguished from damage thereto, a timely claim should have been filed pursuant to the statute, and the trial court’s findings and judgment are correct. It is not necessary to express an opinion on whether any damage alleged is merely damnum absque injuria.