Opinion
For Opinion on Hearing, see 50 Cal.Rptr. 282, 412 P.2d 538.
Carroll Barrymore, Santa Barbara, for appellant.
Cavalletto, Webster, Mullen & McCaughey, by George D. McKaig, Santa Barbara, for respondents.
FLEMING, Justice.
This is a dispute between adjoining property owners in the City of Santa Barbara over the flow of surface waters. Plaintiffs and their predecessors in interest, the upper owners, improved their property by the construction of 48 apartment units together with a paved parking area adjacent to defendant's property. Their parking area was bounded by an asphalt berm, which channeled surface waters to the eastern corner of their property, whence the surface waters traveled across defendant's property through a defined swale.
Defendant, the lower owner, found that surface waters which formerly had spread fanwise across her property now flowed in The trial court found that surface waters from plaintiffs' property had formerly drained across defendant's property in fanwise fashion; that plaintiffs' improvements had concentrated these waters at the eastern corner of their property and increased the volume and acceleration of their flow onto defendant's land. But, the court concluded, plaintiffs had no practical way to dispose of surface waters on their property except across defendant's property, and defendant would not be damaged to any appreciable degree by an increased flow of surface waters in a confined manner across her property; therefore, plaintiffs should be allowed to construct an open ditch six feet wide and one foot deep across the width of defendant's property to be maintained at plaintiffs' expense until further order of court. Defendant was enjoined from maintaining her dam and from interfering with the flow of surface waters through the six-foot ditch.
From this judgment defendant appeals, contending the judgment is contrary to California law governing surface waters and has resulted in taking her property without compensation. With these contentions we agree, and therefore reverse the judgment of the trial court.
California Law of Surface Waters--Rural Areas
The disposition of surface waters, that is, waters falling upon and naturally flowing across land before they have found their way into a natural watercourse, was governed, historically, by one of two basic rules. The common law rule, also known as the common-enemy rule, gave each landowner an unqualified right to dispose of or fend off surface waters as best he might without requiring him to take into account consequences to other landowners. (Ogburn v. Connor, 46 Cal. 346; Annotation, Surface Waters, 59 A.L.R.2d 421, 424.) The civil law rule, by contrast, gave an upper property owner an easement to have surface waters naturally coming upon his land flow from it to the property below, and charged the lower property owner with a corresponding servitude to receive surface waters in their natural flow. California has adopted the civil law rule. (Ogburn v. Connor, 46 Cal. 346; McDaniel v. Cummings, 83 Cal. 515, 519, 23 P. 795, 8 L.R.A. 575; Los Angeles Cemetery Assn. v. City of Los Angeles, 103 Cal. 461, 37 P. 375; LeBrun v. Richards, 210 Cal. 308, 291 P. 825, 72 A.L.R. 336.) The emphasis of the civil law rule is upon natural flow. An upper landowner in California has no right to divert surface waters from his land onto the land of another over which they would not naturally flow, nor to discharge them onto lower-lying land in greater volume, concentration, or speed than that of their natural flow (San Gabriel Valley Country Club v. County of Los Angeles, 182 Cal. 392, 188 P. 554, 9 A.L.R. 1200; County of Colusa v. Strain, 215 Cal.App.2d 472, 482, 30 Cal.Rptr. 415; Heil v. Sawada, 187 Cal.App.2d 633, 10 Cal.Rptr. 61); and a lower landowner has no right to obstruct the flow of surface waters in their natural state and cause them to back up or remain on the property of the upper landowner. (LeBrun v. Richards, 210 Cal. 308, 291 P. 825, 72 A.L.R. 336.)
California's rules dealing with surface waters evolved from a rural society and an agricultural use of land. Its rules governing the disposition of surface waters became subject to an exception which permitted both upper and lower owners to freely cultivate and improve their land for agricultural purposes although as a result the natural flow of surface waters might thereby change to the disadvantage of an Coombs v. Reynolds,
Switzer v. Yunt,Surface Waters in Urban Areas--Prior Decisions
When we turn from agricultural land to urban property we find that the courts have said that civil law rules for surface waters do not necessarily apply to urban areas (Ogburn v. Connor, 46 Cal. 346; Los Angeles Cemetery Assn. v. City of Los Angeles, 103 Cal. 461, 37 P. 375; Jaxon v. Clapp, 45 Cal.App. 214, 187 P. 69), but in so stating the courts have not declared what rules do apply. Doctrinally, the subject remains clouded.
1. Some courts have suggested that the rule applicable to urban areas is the common law rule of self-help, under which the owner of each lot or tract may take whatever steps appear necessary to protect his interests. (Los Angeles Cemetery Assn. v. City of Los Angeles, 103 Cal. 461, 37 P. 375; Corcoran v. City of Benicia, 96 Cal. 1, 30 P. 798.) The rule of self-help, however, is obviously unsuited to modern conditions (LeBrun v. Richards, 210 Cal. 308, 318, 291 P. 825, 72 A.L.R. 336), and ultimately can only lead to a struggle between deeper ditches and higher embankments. (Switzer v. Yunt, 5 Cal.App.2d 71, 78-79, 41 P.2d 974.)
2. Another possible rule for urban areas would permit change in the natural flow of surface waters by reason of improvements, so long as the change grew out of a reasonable use of the property and did not unduly interfere with the use of adjoining property. This rule of reasonable use is set 'upon the facts of each case in accordance with principles of fairness and common sense, * * *.' (Keys v. Romley, 233 A.C.A. 681, 686, 43 Cal.Rptr. 683, 688.) However, in practical application a rule of reasonable use may produce situations closely related to the warfare of the common-enemy rule under which all parties act according to their own best interests, a warfare which would be only slightly mitigated by a court-imposed rule of reason. Under such a rule an upper owner could concentrate, accelerate, and increase the volume of surface water flowing onto a lower owner's lands, provided he acted reasonably; while, presumably, at the same time a lower owner might dam and embank his property to repel unwanted surface waters, provided, he, too, acted in a reasonable manner to further his legitimate interests. Each dispute would tend to become an unresolved lawsuit.
3. A third proposed rule for urban property would be to simply apply the general California rule of natural flow and make no distinction between urban and rural property. (Heil v. Sawada, 187 Cal.App.2d 633, 10 Cal.Rptr. 61.)
In analyzing the cases dealing with surface waters in urban areas we have found it more enlightening to be guided by specific rulings the courts have made rather than by statements of policy and doctrine which appear in their opinions. The actual decisions in cases dealing with the flow of surface waters in urban areas follow a relatively consistent pattern. In chronological order these are:
Armstrong v. Luco, 102 Cal. 272, 36 P. 674 (1894). A lower lot owner in San Francisco recovered damages against an upper lot owner caused by defective drainage pipes on the upper lot. No person has the right, said the court, to relieve his own land from standing water by discharging it onto the land of his neighbor. When the owner of premises collects water which naturally falls upon his property he is the one obligated to remove it, and he may not do so by discharging it onto the property of his neighbor.
Los Angeles Cemetery Assn. v. City of Los Angeles, 103 Cal. 461, 37 P. 375 (1894). An upper owner sought damages for flooded property claimed to have been caused by Jaxon v. Clapp, 45 Cal.App. 214, 217, 187 P. 69, 70 (1919). An upper owner constructed a brick wall along the length of his property, and concentrated the flow of surface waters onto the lower property through several openings in the wall, from which in times of storm water poured onto the lower property with great velocity. The court held the upper owner responsible for damage caused by his discharge of water onto the lower property in different form from that which had prevailed under natural conditions. 'This, we think, the [owner of the] dominant tenant has no right to do, whether the adjoining land be a city lot or a larger open tract.'
LeBrun v. Richards, 210 Cal. 308, 291 P. 825, 72 A.L.R. 336 (1930). Lands to the north of both litigants had been subdivided, graded, and paved, and streets had been laid out; as a result the flow of surface waters to the south had been greatly accelerated. Defendant, the lower of two property owners, constructed a ditch and embankment to repel these waters, and as a consequence surface waters from plaintiffs' land above did not flow off it and were caused to back up. The court found that plaintiffs, as upper landowners, had an easement for the discharge of surface waters onto the land of the lower owner, and that defendant, as lower landowner, was subject to a servitude to receive these waters and to a liability for damages for injuries caused by obstructions placed in the path of the natural flow. Even though the original flow of surface waters had been changed by action of subdividers further to the north, said the court, defendant's remedy did not lie in backing up waters onto the land of plaintiffs but rather in seeking relief against the original wrongdoers who had caused the initial diversion of waters.
Andrew Jergens Co. v. City of Los Angeles, 103 Cal.App.2d 232, 229 P.2d 475 (1951). A lower property owner sought injunctive relief against the City of Los Angeles and a real estate developer to prevent them from further urbanizing and improving property above plaintiff's land without making adequate provision for increased drainage to prevent flooding of the lower property. The court issued the injunction, and cited the settled principle of law that an upper landowner may not discharge surface waters upon the property of a lower landowner in greater quantity or in a different manner than would occur under natural conditions.
Heil v. Sawada, 187 Cal.App.2d 633, 10 Cal.Rptr. 61 (1960). Defendants, the upper landowners, by subdivision built 138 homes on a tract formerly used for agricultural purposes. As a consequence there was an increased runoff from lawn-watering, car washing, and the like, and water collected on plaintiffs' land below. The court, in holding the upper owners responsible for the excess flow of water onto the lower land caused by the creation of the subdivision, granted injunctive relief to the lower owners.
Voight v. Southern Pacific Co., 194 Cal.App.2d Supp. 907, 15 Cal.Rptr. 59 (1961). Upper landowners subdivided a tract formerly devoted to agriculture, and this urbanization caused an increased runoff of surface waters, which backed up behind a Southern Pacific railroad embankment whose culvert had previously been adequate to take care of the runoff. Plaintiffs, upper property owners in the new tract who had been damaged by backing water, sued the Southern Pacific on the theory it was bound Inns v. San Juan Unified School District, 222 Cal.App.2d 174, 34 Cal.Rptr. 903 (1963). Defendant upper landowner improved its property by construction of a school. In a state of nature water had drained gently from the upper land of defendant through a swale on the lower land of plaintiffs. In the course of building its school defendant graded its property and installed a drain pipe which discharged water onto plaintiffs' land in concentrated and accelerated fashion. The school district was held liable in inverse condemnation for concentrating the flow of surface waters onto property of the lower landowner.
We recapitulate the holdings of these cases in a simple chart:
Improving Burden Owner Placed On --------- ----------- Armstrong Upper Upper --------- Cemetery Lower Upper --------- Jaxon Upper Upper --------- LeBrun Lower Lower --------- Jergens Upper Upper --------- Heil Upper Upper --------- Voight Upper Upper --------- Inns Upper Upper ---------The Civil Rule of Surface Waters Applies to All California Areas, Both Urban and Rural
From this review of California cases dealing with surface waters in urban areas we may summarize the rules which the courts have actually applied:
1. The upper property has a natural easement of drainage of surface water in its natural flow over the lower property, which is subject to a servitude to receive upper surface water in its natural flow.
2. The upper owner may not concentrate, accelerate, or increase the volume of surface water flowing onto the lower property.
3. The lower owner may not interfere, by ditching, damming, or the like, with the normal flow of surface water coming off the upper property onto his property.
4. No exception for urban improvements exists comparable to that in rural areas which permits changes for agricultural purposes.
5. Under none of the rules may an upper owner channel water onto the property of a lower owner to the latter's disadvantage.
Basically, these are the elements of the civil law rule. More fundamentally, we find one primary concept consistently followed in decisions relating to the flow of surface waters in urban areas: the improving landowner, whether lower or upper, must bear the burden of disposing of excess surface waters caused by his improvements. He cannot do this by discharging them in concentrated and accelerated form onto property of a lower owner, nor by restricting the natural flow of surface waters from an upper property onto his land without making suitable provision for the disposition of the natural flow.
The rule regulating surface waters is in harmony with the modern principle Armstrong v. Francis Corp.,
Ayres v. City Council of City of Los Angeles, Bringle v. Board of Supervisors, Longridge Estates v. City of Los Angeles, Associated Homebuilders of Greater East Bay, Inc. v. City of Livermore,Moreover, in California an improving owner has the remedy of condemnation available in cases where it may become reasonably necessary. If an owner has no other practical way to complete his improvement except through use of an easement across his neighbor's property, he may, after judicial determination of his need, secure an easement for which he will be required to pay compensation to his neighbor for the value of the property taken. (Linggi v. Garovotti, 45 Cal.2d 20, 286 P.2d 15; Civ. Code, § 1001; Code Civ. Proc. §§ 1238, 1238.6.)
An examination of the facts of the present case brings these matters into focus. Plaintiffs and their predecessors in interest built 48 apartment units on their property, paved a parking area, and constructed a berm which channeled surface drainage from their property onto defendant's property. The flow of surface waters from their property has been increased, concentrated, and accelerated by the construction of their improvements. Plaintiffs' property, after improvements, has a value of approximately $350,000. We do not see why part of the extra burden of these improvements should be carried by defendant, who receives none of the income from the rental units and none of the benefit of the appreciated value of plaintiffs' improved property. To the contrary, defendant finds her property saddled with a six-foot ditch extending the width of her estate, a ditch which has been forced upon her without the balm of any compensating payment. Defendant's efforts to protect her property by self-help have been nullified by the court and her dam breached by preliminary injunction. All in all, the judgment appears to us a onesided one, under which property of the defendant has been appropriated by plaintiffs for their sole benefit.
The judgment in the case at bench is not consistent with any of the rules of law dealing with surface waters. It is inconsistent with the civil law rule, which prohibits concentration and acceleration of surface waters flowing onto a lower property; it is inconsistent with the common law rule, which would permit defendant to maintain her dam to repel waters from an upper property under the common-enemy doctrine; and it is inconsistent with a rule of reasonable use in that it foists a drainage ditch six feet wide and one foot deep onto one estate for the benefit on another.
The limitations inherent in a rule of reasonable use as a means of control over the flow of surface waters become apparent from an examination of this case. We have no quarrel with a rule of reasonable use insofar as it may apply to a question of tort liability. However, as a rule of property McDaniel v. Cummings,
Heil v. Sawada,We conclude that with respect to property in urban areas the general civil law rule applies, and that additional costs resulting from changes in the flow of surface waters caused by improvements must be borne by the improving owner.
Disposition of the Case
Under these rules there are three possible dispositions of controversies similar to this one:
1. If the changes are trivial and produce results which are inconsequential, then the maxim de minimis non curat lex applies (Civ.Code, § 3533), and a servient owner whose burden has been only negligibly increased may not be heard to complain. (McKean v. Alliance Land Co., 200 Cal. 396, 253 P. 134.) But in the present case we do not see how a ditch sixfeet wide and one foot deep across the width of defendant's property could ever fall within a de minimis classification. To the contrary, it presents a substantial interference with the enjoyment of property and a taking without compensation.
2. If changes of substance are involved, as was the case here where the creation of 48 appartment units produced a different flow of surface waters, the improving owner should provide the added surface drainage needed for his improvements and bear the expense as part of the cost of his improvement. He may not require his neighbor to contribute part of his property to the improving owner's estate by way of an increased natural easement.
3. Finally, if an improving owner has no practical way to make his improvements except through the use of facilities belonging to his neighbor, he may, through condemnation, secure a judicial determination of his need for an easement across his neighbor's property, for which he will be required under the Constitution to pay appropriate compensation. (Linggi v. Garovotti, 45 Cal.2d 20, 286 P.2d 15.) In this case plaintiffs should be given an opportunity to show their need for an easement which would justify use of the power of eminent domain.
The judgment is reversed, and the trial court directed to take further proceedings in accordance with this opinion. The court may continue temporary relief to preserve the status quo pending ultimate resolution of the rights of the parties.
ROTH, P. J., and HERNDON, J., concur.