Davis v. East Contra Costa Irrigation District

19 Cal.2d 140 (1941) ANDREW M. DAVIS, JR., et al., Appellants,

v.

EAST CONTRA COSTA IRRIGATION DISTRICT, Respondent.

S. F. No. 16586. Supreme Court of California. In Bank.

Dec. 3, 1941. Lloyd W. Dinkelspiel, Donald W. Falconer and Heller, Ehrman, White & McAuliffe for Appellants.

A. L. Cowell, Stephen W. Downey and Downey, Brand & Seymour for Respondent.

Harry W. Horton, Arvin B. Shaw, Jr., P. Jack Minasian, Thomas Boone, Hankins & Hankins and C. F. Metteer, as Amici Curiae, on behalf of Respondent.

EDMONDS, J.

The appellants sued to recover compensation for the damage to land owned by them which, they alleged, was caused by the seepage or overflow of water from the canals of the East Contra Costa Irrigation District. They have appealed from a judgment which followed an order sustaining the district's demurrer to their third amended complaint without leave to amend.

[1] The principal point presented by the demurrer is that the appellants failed to allege the filing of a verified claim for damages as required by section 2 of the Irrigation District Liability Law of 1935 (Stats. 1935, p. 2250; Deering's Gen. Laws, vol. 1, p. 1932, Act 3886 l). As this statute is applicable to an action in eminent domain (Powers Farms, Inc., v. Consolidated Irrigation District, ante, p. 123 [119 PaCal.2d 717]), the sole question for decision is whether either of the four counts of the appellants' complaint states a cause of action for injury or damage "as a result of any dangerous or defective condition of any property owned or operated and under the control" of the respondent district. (Sec. 2, supra.)

The gravamen of the appellants' charge is that their orchard and agricultural acreage has been severely damaged or destroyed by waters escaping through seepage, overflow, or other means from the canals and works of the respondent [142] district, and by its failure to maintain adequate drainage facilities. Although the complaint does not allege in express terms that the condition created by the district was "dangerous or defective," the facts stated show that it was such, and the use of the words of the statute would add nothing except the statement of a conclusion. The word "dangerous," as ordinarily defined, means "attended or beset with danger; full of risk; perilous" (Webster's New International Dictionary, Second Edition). Manifestly the condition created by the district's activities over a long period of years in transporting great quantities of water for irrigation and in permitting it to escape, seep, or overflow from canals and ditches in such volume as to raise the water level underlying the appellants' lands to an extent which has rendered them useless for agricultural or horticultural purposes, is a condition "dangerous" to their property. The same is true of the district's failure to maintain drainage facilities adequate to remedy the situation.