Mosier v. Mead

SPENCE, J.

— Plaintiffs and cross-defendants in this quiet title action appeal from a decree adjudging that defendants and cross-complainants are the owners of an easement over plaintiffs’ land on which is constructed a flood-control levee, and enjoining plaintiffs from interfering in any manner with defendants’ lawful use and enjoyment thereof. The cause was submitted upon an agreed statement of facts.

In 1938 an expensive levee was constructed upon plaintiffs’ land to protect a county highway and the property of defendants and other landowners from flood waters of the San Joaquin River. Plaintiffs’ predecessor in interest consented to this work, and thereafter filed a claim for $1,500 with the board of supervisors for damages and for compensation for an easement to the 23 acres occupied by the levee. The stipulated facts do not show what disposition was made of this claim.

Construction work was done by the threatened landowners and county employees, the latter working under the direction of a county supervisor, using county equipment and being paid with county funds. The board of supervisors has never approved the project, and the county does not claim any easement or right to maintain the levee. Plaintiffs acquired the property involved in 1947.

The levee lies entirely within the boundaries of the Sacramento and San Joaquin Drainage District. Plans for its construction and maintenance were never approved by the State Reclamation Board. Statutes in force when the work was done, which since have been incorporated without substantial change in the Water Code, required the board’s prior approval of every plan of reclamation calling for construction and maintenance of a levee (now Wat. Code, § 8710) and prohibited the doing of any work pursuant to such a plan without the board’s permission (§8711). It was further

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provided that “ [t]he doing of any act or construction of any work mentioned in this article, or permitting the work to remain after such construction, without the permission of the hoard and in violation of any of the provisions of this article, is a public nuisance, and the board may commence and maintain suit in the name of the people of the State for the prevention or abatement of the nuisance” (§8719).' Moreover, any person violating these provisions was declared guilty of a misdemeanor (§ 8720).