Opinion
Rehearing Denied June 12, 1940
Hearing Granted July 18, 1940.
Appeal from Superior Court, Los Angeles County; Clarence M. Hanson, Judge.
Action by Jamie O’Hara and wife against the Los Angeles County Flood Control District to recover for damages alleged to have been suffered when their property was overflowed by water. From a judgment for defendant, plaintiffs appeal.
Affirmed
COUNSEL
Joseph K. Coady, of Los Angeles, for appellants.
J.H. O’Connor, Co. Counsel, S.V.O. Prichard, Asst. Co. Counsel, and Arthur Loveland, Deputy Co. Counsel, all of Los Angeles, for respondent.
OPINION
WOOD, Justice.
By this action plaintiffs seek to recover for damages alleged to have been suffered when their property was overflowed by water from the Los Angeles river. A demurrer to the complaint was sustained and, plaintiffs declining to amend, judgment was entered in favor of defendant. From this judgment plaintiffs have appealed.
From the allegations of the complaint it appears that plaintiffs are the owners of real property "in close proximity to the Los Angeles river". During the greater part of the year the Los Angeles river has a normal flow of slow moving water which during the rainy season is greatly augmented. In its natural state the river consists of a narrow channel that carries the normal flow. Before the erection of certain works of which complaint is made the bed of the river "consisted of a narrow channel that carried the normal flow of the river, and a border overflow area extended along both sides of the aforementioned channel". During the rainy season the narrow channel was incapable of carrying the augmented volume, which would overflow into the border overflow area. Prior to the construction of the works of which complaint is made defendant installed permeable dikes of piling and wire mesh along the edge of the narrow channel, which installation allowed the augmented flow of water usual in the rainy season to flow to the border overflow area, thus reducing the velocity of the augmented flow of water. Prior to 1938 defendant built certain constructions in the bed and along the banks of the river in the vicinity of plaintiffs’ property, intended to change, and which did change the natural flow of the river. Defendant removed the permeable dikes and wire mesh and built and maintained a new channel for the river in such manner as to make its water flow at a high velocity. The constructions of which complaint is made were authorized by defendant "for a public use and purpose, to-wit flood control". On or about March 2, 1938, a storm occurred, and the water burst through the banks of the river and carried debris upon the property of plaintiffs, causing them heavy damage.
In a second cause of action set forth in the complaint plaintiffs re-allege most of the matters set forth in the first cause of action and further allege that prior to the storm of March 2, 1938, defendant had built a levee and concrete banks which obstructed the natural flow of water of the river and caused it to overflow and injure plaintiffs’ property. Plaintiffs again allege that the acts of defendant were performed for a public use and purpose.
Plaintiffs assert that the facts set forth in their complaint constitute the taking and damaging of plaintiffs’ property for a public use without first making compensation. It will be noted that the complaint contains no allegation that any of the property of plaintiffs was "taken". The nearest approach to such an allegation is found in the statement that plaintiffs’ property was in close proximity to the river. On the contrary, it appears affirmatively from the complaint that plaintiffs’ property was damaged as a consequence of the proper exercise of the police power of the Los Angeles County Flood Control District. In each cause of action plaintiffs set forth that the acts of defendant were performed for the purpose of "flood control". Nowhere does it appear in the complaint that the defendant did any act in a negligent or improper manner. No claim is made that the "new channel" was defectively made or that any bank or levee was improperly constructed. It cannot be doubted that the act of the state in taking jurisdiction over the matter of flood control constituted a valid exercise of the police power. Western Assur. Co. v. Drainage Dist., 72 Cal.App. 68, 73, 237 P. 59. From the complaint it appears that defendant district is vested with full power and duty "to do all acts and things necessary or useful for the control of flood and storm water of said district". Plaintiffs do not allege that the structures built by defendant did not constitute a reasonable improvement for the benefit and protection of the flood control district.
It is thoroughly established in California, as indeed in other jurisdictions, that a district such as defendant is not liable for consequential damages caused by the proper exercise of its police power. Since it appears from the complaint that defendant properly exercised its police power, that no property of plaintiffs was taken, and that the damages suffered were consequential only, it must be held that the court properly sustained the demurrer. Green v. Swift, 47 Cal. 536; Lamb v. Reclamation District, 73 Cal. 125, 14 P. 625, 2 Am.St.Rep. 775; Gray v. Reclamation District, 174 Cal. 622, 163 P. 1024; San Gabriel Valley Country Club v. County of Los Angeles, 182 Cal. 392, 188 P. 554, 9 A.L.R. 1200; Cubbins v. Mississippi River Comm., 241 U.S. 351, 36 S.Ct. 671, 60 L.Ed. 1041.
The judgment is affirmed.
We concur: MOORE, P.J.; McCOMB, J.