Riverside County Flood Control & Water Conservation District v. Halman

Defendant appeals from that portion of a judgment in condemnation denying prejudgment interest on the award.

Plaintiff (District) brought an action in eminent domain to acquire a flowage easement over portions of defendant’s land in connection with the construction of a flood control levee along a segment of the San Jacinto River, including its tributary, Bautista Creek, in Riverside County. The chronology of the pertinent events was as follows: Plaintiff filed its action on April 21, 1961; the levee was completed on May 23, 1962; trial commenced on March 14, 1966, and judgment in condemnation was entered on July 8, 1966. There was no order of immediate possession. Defendant claimed interest on the award from the date of completion of the levee on the ground that that was the date his property was damaged. However, the court found that the property was neither taken nor damaged prior to entry of judgment and denied prejudgment interest.

Defendant contends that while the levee has not yet resulted in physical injury to his lands, it did cause compensable depreciation in its market value and that, hence, interest accrued as of the date of its completion. We have concluded that the trial court’s determination was correct and that the judgment should be affirmed.

Viewing the evidence in the light most favorable to the prevailing party below, as we are required to do on appellate review (Waller v. Southern Pac. Co., 66 Cal.2d 201 , 204 [ 57 Cal.Rptr. 353 , 424 P.2d 937 ]), it may be summarized as follows:

Basically the flood control project in question, a joint undertaking of the United States Corps of Engineers and the District, involved the construction of a protective levee along the left-hand side, looking downstream, of Bautista Creek to its natural confluence with the San Jacinto River and thence downstream along the San Jacinto for about 4 miles. The levee commences at a point near the City of Hemet and extends downstream for a distance of 5 miles terminating at a point approximately 80 feet upstream from defendant’s property. It is designed to contain a flow of 86,000 cubic feet per second which is the estimated flow which will be produced by a storm having a frequency of once in 166 years. Prior to the construction of the project, a design storm would have subjected about 13,000 acres in the Hemet-San Jacinto area to inundation by flood waters; it was estimated that the new levee would eliminate flood hazards from about 9,800 acres.

The San Jacinto River traverses defendant’s land which comprises 163.39 acres of which 27.21 acres is river bottom subject to a 1951 District easement for flood control and water conservation purposes. By its present action the District sought a flowage easement over approximately 80 acres, 10.4 acres lying adjacent to and on the right-hand side of the river and 69.13 acres on the left-hand side. Except where the adjoining hills extend to the river, the 10.4 acre parcel is essentially a part of the river, the elevation being approximately river bottom. The elevation of the 69.13 acre parcel varies from the invert of the river to 2 to 3 feet above it at its outer limits. Except for two wells, a reservoir and perimeter fencing the land is unimproved farm land.

' ; A short distance upstream from defendant’s land, the District has constructed a training dike which projects from the

The flowage easement condemned by the District consisted of a perpetual right to overflow, flood and submerge the land subject to it with the right to prohibit construction or maintenance of buildings or other structures, reserving, however, to the owner all other rights to the use and enjoyment of the land. The easement does not prevent defendant from protecting the remainder of his land by the erection of protective barriers.

The only engineering testimony on the after effect of the new levee on defendant’s land was that provided by the chief engineer for plaintiff. In substance, his testimony was as follows : The levee will not increase the frequency of inundation; the 10.4 acre parcel will be subject to annual flooding as it has in the past and the 69.13 acres will be flooded during a storm having a frequency of once in eight years to the same extent in area as in the past. In the before condition, a design storm (one producing 86,000 cubic feet per second) would have resulted in a river flow of 42,000 cubic feet per second past defendant’s land while the remaining 44,000 cubic feet per second would have escaped from the river, sheet flowed across the countryside, and eventually found its way into the San Jacinto River, most of it upstream from defendant’s property but some flowing over defendant’s lands and entering the river at or shortly downstream therefrom. In the before condition a design storm would have inundated substantially all of defendant’s land. In the after condition it is expected that such a storm will increase the depth of inundation by 1% to 2 feet as compared to the depth in the before condition and increase the velocity from about 6 feet per second to approximately 7% feet per second. However, there would be no additional scouring or erosion of the lands because the increased depth would offset the effect of any increase in velocity. A prohibition against structures was included in the flowage easement in order to safeguard downstream flood control facilities and bridges from damage from floating debris should structures be washed away during floods.

The completion of the levee caused no physical injury to

Implied findings on the factual issues presented in this mixed question must stand if there is substantial evidence to support them. (See People ex rel. Dept. of Public Works v. Russell, supra, p. 195; People v. Millett, 110 Cal.App. 237 , 238 [ 293 P. 807 ].) In the case under review the trial court’s determination is supported by substantial evidence and is consistent with the applicable law.

Since the right to interest stems from the right to just compensation, the “damage” which gives rise to that claim must be constitutionally compensable. Thus while the enactment of legislation authorizing the institution of condemnation proceedings (Danforth v. United States, 308 U.S. 271 , 276 [ 84 L.Ed. 240 , 242, 60 S.Ct. 231 , 232] or the actual filing of a condemnation action (People ex rel. State Park Com. v. Johnson, supra, 203 Cal.App.2d 712 , 723; People ex rel. Dept. of Public Works v. Salem Dev. Co., supra, 216 Cal.App.2d 652 , 655) may to some extent interfere with the owner’s use and enjoyment of his property and affect its market value, it does not constitute a taking which will accrue interest on the award. The taking or damaging under section 1255b, subdivision (a) (2) of the Code of Civil Procedure must be of a character compensable under article I, section 14, of the Constitution.

The Constitution does not require compensation for every diminution in value of property not taken resulting from the construction of a public improvement. (Colberg, Inc. v. State of California ex rel. Dept. of Public Works, 67 Cal.2d 408 , 425-426 [ 62 Cal.Rptr. 401 , 432 P.2d 3 ]; People ex rel. Dept. of Public Works v. Symons, 54 Cal.2d 855 , 858-859 [ 9 Cal.Rptr. 363 , 357 P.2d 451 ]; People v. Ricciardi, supra, 23 Cal.2d 390 , 395-396; Eachus v. Los Angeles etc. Ry. Co., 103 Cal. 614 , 617 [ 37 P. 750 , 42 Am.St.Rep. 149 ]; Sacramento etc. Drainage Dist. ex rel. State Reclamation Board v. Reed, 215 Cal.App.2d 60 , 63-64 [ 29 Cal.Rptr. 847 ].) With respect to public flood control works, unless there has been a diversion of water from its natural water course, the straightening, widening or deep-

There was thus substantial evidence to support the trial court’s implied determination that the completion of the levee caused no constitutionally compensable damage to defendant’s property. (See Sacramento, etc. Drainage Dist. ex rel. State Reclamation Board v. Reed, supra, 215 Cal.App.2d 60 , 68-69; Frustuck v. City of Fairfax, supra, 212 Cal.App.2d 345 , 366-368.)

In an analogous situation the United States Supreme Court in Danforth v. United States, supra, 308 U.S. 271 [ 84 L.Ed. 240 , 60 S.Ct. 231 ]; held that just compensation did not require payment of interest on an award from the date of completion of a flood control levee. Danforth involved a federal project for the construction of set-back levees approximately 5 miles from an existing levee of the Mississippi River to provide a greater spreading area for flood waters. The project provided for the construction of a “fuse plug” in the existing levee at a point near its connection with the set-back levee so that high flood waters would flow into the floodway between the old levee and the set-back levee. The government condemned a flowage easement over defendant’s property which was located between the two levees and near the “fuse plug.” The Court of Appeals initially held that interest should have been awarded from the date work on the project commenced (Danforth v. United States, 102 F.2d 5 , 10), but, on rehearing, held that interest was payable only from the date of entry of the judgment (Danforth v. United States, 105 F.2d 318 ). The Supreme Court affirmed stating ( 308 U.S. 271 at pp. 286-287 [ 84 L.Ed. 240 at pp. 247-248]): “For completion of the set-back levee to amount to a taking, it must result in an appropriation of the property to the uses of the Government. This levee is substantially complete. The Government has condemned the land upon which the set-back is built. The tract now in litigation lies between the set-back and riverbank levees. The Government could become liable for a taking, in whole or in part, even without direct appropriation, by such construction as would put upon this land a burden, actually experienced, of earing for floods greater than it bore prior to the construction. The river-bank levee at the fuse-plug has not been lowered from its previous height. Consequently the land is as well protected from destructive floods

The cases to which defendant has invited our attention are not dispositive of the issue before us. In Frustuck v. City of Fairfax, supra, 212 Cal.App.2d 345 , the trial court found that the city, by approving subdivision maps and drainage plans of upper owners, participated in the diversion of storm and surface waters which would be carried through the enlarged culvert constructed by the city and discharged onto plaintiff’s property. In Clausen v. Salt River Valley Water Users’ Assn., 59 Ariz. 71 [ 123 P.2d 172 ]; the Supreme Court of Arizona held that a complaint in inverse condemnation stated a cause of action despite the absence of an allegation that plaintiff’s property had suffered physical injury where the complaint alleged that the defendant constructed a spillway in the levee of a canal which would divert waters onto plaintiff’s adjacent improved lands which had theretofore never been subject to flooding. (Compare, Beckley v. Reclamation Board, supra, 205 Cal.App.2d 734 .) In the instant case there has been no diversion; defendant’s lands had always been subject to inundation. In Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 [ 67 L.Ed. 287 , 43 S.Ct. 135 ], the court held that a complaint alleging that the government had installed heavy coast defense guns on adjoining land in a position to fire over plaintiff’s resort property, had done so and intended to continue to do so in the future, and that the public had been frightened off the premises by the imminence of the guns, alleged facts showing the imposition of a servitude by the government. The facts, if true, were sufficient to show a substantial interference with plaintiff’s use and enjoyment of its property. In the ease under review, the construction of the levee had no effect on the highest and best use of defendant’s land. Although in United States v. Gerlach Live Stock Co., 339 U.S. 725 [ 94 L.Ed. 1231 , 70 S.Ct. 955 , 20 A.L.R.2d 633 ], the Supreme Court declined to set aside the determination of the Court of Claims that interest on a condemnation award for the acquisition of riparian rights of a lower owner commenced to run from the date of the first substantial impoundment of water behind the dam