Opinion
Rehearing Denied Jan. 20, 1967.
For Opinion on Hearing, see 60 Cal.Rptr. 377, 429 P.2d 889. Bagshaw, Martinelli, Weissich & Jordan, by Hadden W. Roth, San Rafael, for appellants.
Riede & Elliott, by Ronald D. Schenck, San Rafael, Bacigalupi, Elkus, Salinger & Rosenberg, by Tadini Bacigalupi, Jr., William G. Fleckles, San Francisco, for respondent.
SALSMAN, Justice.
Donald and Douglas T. Joslin appeal from a judgment of dismissal entered against them upon the motion of respondent Marin Municipal Water District for summary judgment.
Appellants alleged in their amended complaint that they were the owners of a parcel of land containing about five acres in all; that a stream (Nicasio Creek) runs through and across their lands; that the normal flow of the waters of the creek carried rock, gravel and sand in suspension and deposited its burden upon appellants' property, and that said rock, gravel and sand was taken by appellants and sold and used in the conduct of their business. It was further alleged that respondent district obtained a permit from the State Water Rights Board to appropriate a quantity of the water of Nicasio Creek for municipal purposes; that the district condemned certain riparian lands upstream from appellants' lands, constructed a dam and stored the waters of the stream in their reservoir and that as a result of the construction of the dam, appellants were deprived of the normal and usual replenishment of their supply of rock, gravel and sand and hence suffered injury and damage for which they demanded compensation.
Respondent moved for summary judgment. Its declaration asserted, among other things, that its notice of application to appropriate a portion of the waters of Nicasio Creek was duly published, and a permit granted by the State Water Rights Board; that it constructed its dam and stored water pursuant to its permit; that no protest was filed by appellants, and that respondent had no notice of appellants' claims until they were presented to the district after completion of the dam. Appellants' declaration in opposition to the motion asserted that they had no actual notice of the proceedings before the State Water Rights Board.
After argument on the motion for summary judgment, the trial court entered its order granting the motion upon the ground that '* * * there was no substantive right of plaintiffs violated by defendant.' The court did not rule upon two other issues presented by the motion, namely whether appellants' claim was timely filed with respondent district, and whether appellants' failure to participate in the administrative proceedings before the State Water Rights Board barred their claims.
For reasons hereafter stated, we are of the opinion that the trial court was in error in granting respondent's motion for summary judgment. We therefore reverse.
The main issue in the case, broadly stated, is whether an upstream appropriator of water is liable in damages to a downstream riparian owner whose of the water is destroyed by the appropriation.
In California, as in all the western states, the law of flowing waters has given rise to countless disputes. The first miners in the Sierras relied upon a principle of priority--discovery, location and appropriation--to establish their rights to the flowing waters upon or near which their claims were located. Their customs were given recognition by section 621 of the Civil Practice Act of 1851, and still prevail where not in conflict with the general law of the state. (Code Civ.Proc. § 748.) But our Supreme Court quickly recognized the rights of downstream riparians, and gave an early warning that rights of upstream appropriators might be subordi nate Irwin v. Phillips,
Lux v. Haggin, Herminghaus v. South. California Edison Co.,In light of the constitutional provision noted, the question here becomes one of reasonable use, that is, were appellants making a reasonable use of the waters of Nicasio Creek? We think not. As we have seen, appellants' use of the flow of the stream was purely as a transportive agent by which rock, gravel and sand from upstream lands were carried to their property, with an annual renewal of supply. So far as our record shows, they made no other use of the waters of the creek, but permitted them to pass on to riparian owners below, and ultimately to the sea.
The provisions of section 3, Article XIV of our Constitution limit and modify appellants' riparian rights by the requirement of reasonable use. (See Tulare Irr. Dist. v. Lindsay-Strathmore Dist., 3 Cal.2d 489, 45 P.2d 972.) The waters of our flowing streams are a precious natural resource, to be carefully preserved and used to the fullest extent, as commanded by the constitutional amendment. But rock, gravel and sand, unlike fresh water, are abundant. Even though appellants' lands may have been peculiarly suited to the economical production of these materials, it does not follow that in aid thereof they have a right to have the full flow of the stream wasted as it passes across their land.
Despite the fact that appellants are in no position to insist upon the undiminished flow of Nicasio Creek, it does not follow that they are without remedy. Under section 14, Article I of the California Constitution, private property may not be taken or damaged for public use without just compensation made to the owner. Appellants are entitled to the protection of this constitutional provision, and respondent must compensate them for such actual damage as they may have sustained because of the construction of the dam and impounding of the waters of the creek. Decided cases support this conclusion. Thus, in Peabody v. City of Vallejo, 2 Cal.2d 351, 40 P.2d 486, one lower riparian owner claimed the right to the natural flow of a stream for the purpose of depositing silt Hillside Water Co. v. Los Angeles,
City of Lodi v. East Bay Mun. Utility Dist., United States v. Gerlach Live Stock Co.,In Los Angeles County Flood Control Dist. v. Abbot, 24 Cal.App.2d 728, 76 P.2d 188, the public body condemned an easement for construction of a flood control channel to contain the waters of the Alhambra wash. As part of severance damages the landowner was permitted to recover for the loss of future annual deposits of rock, gravel and sand which before construction of the improvement had been deposited upon his lands by the stream, and where, as here, the landowner had used such deposits commercially. We are aware that Abbot was not a dispute between a riparian owner and an appropriator of water, but the case does recognize that benefits accruing to a landowner because of the annual rise and fall of the waters of a stream may establish a right to such benefits, and that interference with such right requires compensation. (See United States v. Gerlach Live Stock Co., supra, 339 U.S. 725, 752-755, 70 S.Ct. 955, 94 L.Ed. 1231.)
Respondent contends that even if appellants did have a cause of action against it, their cause of action is barred because they failed to file a claim within one year after the alleged injury. That a claim for damages on the theory of inverse condemnation must be presented to the public body and the claim rejected before suit may be filed is well settled. (Powers Farms v. Consolidated Irr. Dist., 19 Cal.2d 123, 126-130, 119 P.2d 717; Gov.Code § 945.4.) Under Government Code section 911.2 appellants' claim should have been presented to respondent '* * * not later than one year after the accrual of the cause of action.' Respondent argues that its dam was completed on August 21, 1961; that this was the date of appellants' injury, if any, and that since appellants filed no claim until April 3, 1963, their alleged cause of action is clearly barred. But respondent's declaration in support of its motion for summary judgment does not state when the dam became operational, or the date upon which respondent actually commenced the storage of water in their reservoir. Obviously appellants could claim no injury until the natural flow of the creek was interfered with, and they could have no cause of action until respondent's acts caused them injury. (Bellman v. County of Contra Costa, 54 Cal.2d 363, 369, 5 Cal.Rptr. 692, 353 P.2d 300; Frustuck v. City of Fairfax, 212 Cal.App.2d 345, 375, 28 Cal.Rptr. 357; Smith v. City of Los Angeles, 66 Cal.App.2d 562, 583, 153 P.2d 69.) In Smith v. City of Los Angeles the defendant lawfully erected certain dikes, but they caused plaintiff no damage until several years later. The court held that plaintiff's cause of action accrued, and the statute of limitations began to run, at the time the injury took place, not at the time the dikes were erected. In Frustuck v. City of Fairfax, supra, 212 Cal.App.2d 345, 375, 28 Cal.Rptr. 357, it was asserted that the public body, through public works, had diverted water onto plaintiff's property. The court noted (p. 375, 28 Cal.Rptr. 357) that the statute of limitations did not commence to run from the time of the act of diversion, but rather from the date of the injury caused by the diversion. (See also Natural Soda Products Co. v. City of Los Angeles, 23 Cal.2d 193, 203, 143 P.2d 12.) Appellants have alleged in their amended complaint Elliott v. Occidental Life Ins. Co. of California,
The judgment is reversed.
DRAPER, P. J., and DEVINE, J., concur.
Presiding Justice of the Court of Appeal of the State of California, First Appellate District, Division Four, sitting protempore under assignment by the Chairman of the Judicial Council.