CARTER, J. I dissent. It appears from plaintiff’s complaint that it is the owner of littoral lands adjacent to Mira-mar Bay, an inlet of the Pacific Ocean, and lying 2i£ miles east of defendant city of Santa Barbara. It operated a hotel business on its lands known as the Miramar Beach Hotel. A portion of plaintiff’s property consists of a beach. On June 8, 1927, defendant commenced, and on June 30, 1930, completed, and has since maintained, a breakwater extending from a point on the shore about three miles west of plaintiff’s property into the ocean, a distance of 2,500 feet. The complaint alleges: “. . . that said breakwater was constructed and is maintained solely for the purpose of creating a harbor for pleasure yachts and fishing boats, and for the purpose of rendering for defendant’s profit, anchorage space in the harbor thus created, protected and improved; that solely as the result of the erection and maintenance by defendant of said breakwater, and immediately and proximately caused thereby, the natural and normal action of the tides, currents, waves, and waters of the Pacific Ocean in that vicinity was [181]changed, and the natural and normal drift of sand in a general easterly direction along the shore was intercepted by said breakwater, and by cutting off and depriving the said Miramar Beach of its natural and normal supply of sand, and causing the waters of the Pacific Ocean gradually, continuously and progressively to come upon, inundate and wash away and destroy during the five (5) years next preceding the filing of the claim attached hereto marked Exhibit ‘A,’ all of the sandy beach, included in the real property described in Paragraph III hereof, said real property being described as follows, to-wit: . . . That said property so inundated, washed away and taken, consists of approximately all of the sandy beach commonly known as the Miramar Beach, used in conjunction with said hotel. That defendant at all times knew and was put upon notice that the erection and maintenance of said breakwater would inundate, wash away, destroy, damage and take the said property as herein described(Emphasis added.)
It is conceded by both parties that if plaintiff has stated a cause of action in its complaint it must be based upon the constitutional provision that private property shall not be taken or damaged for a public use without the payment of just compensation. (Cal. Const., art. I, sec. 14.) In support of its contention that plaintiff cannot recover thereunder defendant invokes its right as a political subdivision and agency of the state to maintain the breakwater pursuant to its power of control over navigation. Liberally interpreted, the complaint may be said to allege that the breakwater has caused two things, namely, the washing away of the sand on the beach on plaintiff’s property by reason of the resulting change in the currents and the prevention of the replacement of the sand on the beach by sand bearing water. It must be assumed that said beach is upland property, that is, land above mean high tide, inasmuch as it is alleged that the beach is “included in that real property” particularly described in the complaint. Even assuming that the two conditions occurred simultaneously and are inseparable, the result is the same. If the complaint be interpreted to mean that under normal conditions the action of the current and the waters washed away the beach, but at the same time repaired the damage by depositing other sand in its place which is carried by the water, the end result is the same. If the breakwater [182]so changed the action of the water that after its construction the sole effect was a washing away of the sand with no compensating deposit, the condition created is not substantially different than a diversion of the currents with a result that the upland was washed away. It is not a ease of being deprived merely of future accretions where the abutting property owner is depending upon the possibility that they might increase the area of his land. Rather, it is simply the loss of his upland which he already possesses by the change in the action of the water. Hence, we have a case where a littoral owner’s upland property is being taken from him as the result of the maintenance of the breakwater which changes the action of the water.
A public agency may not take a littoral owner’s upland property by flooding, erosion or otherwise in the exercise of its control over navigation or in exercise of any other power without the payment of just compensation. (United States v. Lynah, 188 U.S. 445 [23 S.Ct. 349, 47 L.Ed. 539]; Pumpelly v. Green Bay etc. Co., 13 Wall. (80 U.S.) 166 [20 L.Ed. 557]; Carpenter v. Board of Commrs., 56 Minn. 513 [58 N.W. 295, 45 Am.St.Rep. 494]; Goodman v. United States, 113 F.2d 914; United States v. Wabasha-Nelson Bridge Co., 83 F.2d 852; Mashburn v. St. Joe Improvement Co., 19 Idaho 30 [113 P. 92, 35 L.R.A.N.S. 824]; 1 Nichols on Eminent Domain, sec. 138; 18 Am.Jur., Eminent Domain, secs. 163, 165; United States v. Chicago, B. & Q. R. Co., 82 F. 2d 131, Cert, denied 298 U.S. 689 [56 S.Ct. 957, 80 L.Ed. 1408]; Conger v. Pierce County, 116 Wash. 27 [198 P. 377, 18 A.L.R. 393]; see United States v. Great Falls Mfg. Co., 112 U.S. 645 [5 S.Ct. 306, 28 L.Ed. 846]; Monongahela Navigation Co. v. United States, 148 U.S. 312 [13 S.Ct. 622, 37 L.Ed. 463]; United States v. Cress, 243 U.S. 316 [37 S.Ct. 380, 61 L.Ed. 746]; United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592 [61 S.Ct. 7.72, 85 L.Ed. 1064]; United States v. Appalachian Elec. Power Co., 311 U.S. 377, 427 [61 S.Ct. 291, 85 L.Ed. 243]; Los Angeles Athletic Club v. Long Beach, 128 Cal.App. 427, 432 [17 P.2d 1061]; St. Regis Paper Co. v. New Hampshire Water R. Board, - N.II. - [26 A.2d 832, 838].)
Generally the public agency is required to pay just compensation where a public improvement in a navigable stream has caused the flooding or erosion of his property. (Morri[183]son v. Clackamas County, 141 Ore. 564 [18 P.2d 814]; City of Los Angeles v. Aitken, 10 Cal.App.2d 460 [52 P.2d 585].)
There is confusion on the subject in the decisions of the United States Supreme Court resulting from the giving of a too narrow interpretation to the words “taking” and “property” as used in the Fifth Amendment to the Constitution of the United States which requires the payment of compensation for the taking of property, the view being taken in some cases that real property includes only the actual physical land or soil itself rather than a bundle of legal rights, a concept embracing many factors other than the physical land. (See 41 Yale L.J. 221; 50 Yale L.J. 668; 52 Harv.L. Rev. 1176; 25 Va.L.Rev. 854.) The result has been such cases as Bedford v. United States, 192 U.S. 217 [24 S.Ct. 238, 48 L.Ed. 414]; Franklin v. United States, 101 F.2d 459; Scranton v. Wheeler, 179 U.S. 141 [21 S.Ct. 48, 45 L.Ed. 126]; and Gibson v. United States, 166 U.S. 269 [17 S.Ct. 578, 41 L.Ed. 996]. Hence, taking has been said to mean an actual dispossession or ouster from the land itself or title thereto or a removal of it.
It may be true that ordinarily the state is the owner of tidelands along the seashore. (26 Cal.Jur. 315 et seq.) The littoral rights of a person owning property on navigable' waters are subject to the superior control of the state over navigation. Those rights embrace the right of access which may be taken under the power over navigation without the payment of compensation. (Koyer v. Miner, 172 Cal. 448 [156 P. 1023]; Henry Dalton & Sons Co. v. Oakland, 168 Cal. 463 [143 P. 721]; Patton v. City of Los Angeles, 169 Cal. 521 [147 P. 141]; Muchenberger v. City of Santa Monica, 206 Cal. 635 [275 P. 803]; Boone v. Kingsbury, 206 Cal. 148 [273 P. 797]; City of Oakland v. Buteau, 219 Cal. 745 [29 P.2d 177]; City of Newport Beach v. Fager, 39 Cal.App.2d 23 [102 P.2d 438]; 26 Cal.Jur. 301.) It may be that the abutting owner has no vested right in future accretions, that is, possible future additions to Ms land, as against the state. (Cohen v. United States, 162 F. 364; Western Pac. Ry. Co. v. Southern Pac. Co., 151 F. 376 [80 C.C.A. 606].) But certainly he has a vested right in past accretions, they having then become his upland, which may not be .taken without the payment of compensation. (See Strand Improvement Co. v. Long Beach, 173 Cal. 765 [161 P. 975]; City of Los [184]Angeles v. Anderson, 206 Cal. 662 [275 P. 789]; Dana v. Jackson Street Wharf Co., 31 Cal. 118 [89 Am.Dec. 164].)
Most of the cases refusing compensation were instances in which the public agency was exercising its right to the bed of the tide lands or was interfering solely with littoral rights which, as we have seen, may be subject to the power of navigation. In Gibson v. United States, supra, the improvement of a navigable stream consisted of a dike which resulted in the landowner losing access and landing privileges, an element of his littoral right. In Scranton v. Wheeler, supra, the improvement consisted of a pier built on the submerged lands, and the interference was with landowner’s right of access. Lewis Blue Point Oyster Cultivation Co. v. Briggs, 229 U.S. 82 [33 S.Ct. 679, 57 L.Ed. 1083], involved the deepening of a channel lying under navigable waters, while the owner was merely using the bed of the channel to propagate oysters pursuant to a state license. In none of those eases was there involved the littoral owner’s rights in the upland. Similar comment is applicable to the cases of United States v. Chandler-Dunbar W. P. Co., 229 U.S. 53 [33 S.Ct. 667, 57 L.Ed. 1063]; Greenleaf-Johnson Lumber Co. v. Garrison, 237 U.S. 251 [35 S.Ct. 551, 59 L.Ed. 939]; Henry Dalton & Sons Co. v. Oakland, supra; People v. California Fish Co., 166 Cal. 576 [138 P. 79]; People v. Banning Co., 167 Cal. 643 [140 P. 587]; Oakland v. E. K. Wood Lumber Co., 211 Cal. 16 [292 P. 1076, 80 A.L.R. 379]; Boone v. Kingsbury, supra; City of Newport Beach v. Fager, supra; City of Oakland v. Buteau, supra; People v. Southern Pac. R. R. Co., 169 Cal. 537 [147 P. 274]; and Patton v. City of Los Angeles, supra; and County Sanitation Dist. No. 2 v. Averill, 8 Cal.App.2d 556 [47 P.2d 786].
The eases of Green v. Swift, 47 Cal. 536; Lamb v. Reclamation Dist. No. 108, 73 Cal. 125 [14 P. 625, 2 Am.St.Rep. 775]; Green v. State, 73 Cal. 29 [11 P. 602, 14 P. 610]; and Gray v. Reclamation District No. 1500, 174 Cal. 622 [163 P. 1024], are relied upon by defendant in support of its contention that any damage suffered by plaintiff as the result of the construction of the breakwater is damnum absque injuria. These cases are clearly distinguishable from the case at bar. They were all actions for damages brought against the state or a state agency to recover damages alleged to have been suffered to real property as the result of the construction or maintenance of a public improvement [185]designed to prevent future damage to large areas of the state as the result of seasonal flooding. In each of these cases this court stated that it could not be said that any of plaintiff’s .property had been taken in the construction or maintenance of the public improvement, but that the damages claimed by plaintiff were indirect and consequential and in the Gray case that they were prospective and temporary. All of these cases except the Gray case arose prior to the amendment to section 14 of article I of the Constitution of California permitting recovery for the damaging as distinguished from the taking of private property for public use. In the case of Green v. State, supra, the court said at page 35:
“The damage is plainly not the natural consequence of the work, which could and ought to have been anticipated and expected as the result. It was remote and consequential,— a purely incidental and unexpected effect. There was not enforced occupation of the property or interference with it. The owner was left in full possession, and there was done to the land or left upon it nothing to obstruct its use.”
The discussion in Cory v. City of Stockton, 90 Cal.App. 634 [266 P. 552], is dictum, and when the same issue was previously before the Supreme Court of the United States in Sanguinetti v. United States, 264 U.S. 146 [44 S.Ct. 264, 68 L.Ed. 608], that court merely determined that the damage was only temporary and no permanent injury was inflicted.
Police power generally, that is, other than in the sense of the power over navigation, may not be invoked to escape the payment of compensation. It was said by this court in Rose v. State of California, 19 Cal.2d 713, 730 [123 P.2d 505]: “Generally, it may be said that police power operates in the field of regulation, except possibly in some cases of emergency such as conflagration or flood when private property may be temporarily used or damaged or even destroyed to prevent loss of life or to protect the remaining property of an entire locality. There is obviously no element of regulation involved in the case at bar, and no suggestion of anything in the nature of an emergency. The damage to plaintiff’s property here involved was the result of a public improvement constructed by the state in the exercise of its power of eminent domain.” (See, also, City of Los Angeles v. Aitken, 10 Cal.App.2d 460, 471 [52 P.2d 585]; Gin S. Chow v. City of Santa Barbara, 217 Cal. 673, 701 [22 P. 2d 5].) In the ease of O’Hara v. Los Angeles County Flood [186]etc. District, 19 Cal.2d 61 [119 P.2d 23], a public emergency resulting in the flooding of great areas of land was involved. There is no such degree of public necessity in the instant case.
It follows that the complaint in the instant case states a cause of action. The beach was owned by plaintiff and was a part of its upland. That upland was washed away and inundated. It is clear that there was an actual taking of plaintiff’s property in even the more narrow sense. It is so alleged in the complaint. Plaintiff’s beach, the actual soil itself is lost. The point of mean high tide is thus raised and the land that was formerly a privately owned beach becomes tide lands and is owned by the state. The title to a portion of plaintiff’s property is thus lost as the result of the construction and maintenance of a public improvement, namely the breakwater.
Turning to the opinion of Mr. Justice Traynor, there appears the statement: “Inevitably the washing away of sand in tidelands must advance the high-water mark if the owner of the uplands takes no steps to prevent that consequence. Plaintiff’s insistence that the high-water mark preceding the erection of the breakwater must be maintained is in effect a claim that the state has no right to check the flow of sand and must maintain the tideland sand as a buffer for the upland sand. Such a claim could not be recognized without creating a servitude in the tidelands inconsistent with the state’s title and its right to erect improvements in the interest of navigation.” First, that assertion is contrary to the complaint, which expressly alleges that the breakwater caused plaintiff’s upland to be washed away and inundated. Second, even if it be assumed that the change in the current caused the loss of a compensating sand deposit and hence the flooding of the upland, it is a technicality without substance to argue that the plaintiff’s upland has not been taken. No servitude would be imposed upon the state’s title to the tidelands. To allow recovery would be nothing more than protecting plaintiff’s upland from being washed away. It is not a case of plaintiff claiming a right to have the area of its land increased by the action of water, but rather that its land shall not be decreased by the change caused by the breakwater. The essential point is that the breakwater causes the loss of formerly existing upland. The opinion is based primarily on the proposition that littoral rights must give way to either state or federal exercise of control over navigation; that the owner has no [187]right to compensation for the loss of the sand deposited on his upland, and that there was no invasion of his property-right. This ignores the washing away of the sand already there as the result of a change in the ocean currents caused by the breakwater.
None of the authorities relied upon supports the proposition that the state or other public agency is immune from liability for damages under the eminent domain provisions of the Constitution caused by structures erected in the course of the improvement or regulation of navigation. Lewis Blue Point Oyster C. Co. v. Briggs, 229 U.S. 82 [33 S.Ct. 679, 57 L.Ed. 1083], involved the deepening of the channel lying under navigable waters, while the property owner was merely using it to cultivate oysters with the state’s consent. It was not a question of invading or damaging property other than tidelands. The court was concerned solely with lands submerged by navigable waters. The court there quoted with approval the following excerpt from Scranton v. Wheeler, 179 U.S. 141 [21 S.Ct. 48, 45 L.Ed. 126] (also cited in Justice Traynor’s opinion) recognizing the distinction between upland and submerged tidelands: “ ‘Whatever the nature of the interest of a riparian owner in the submerged lands in front of his upland bordering on a public navigable water, his title is not as full and complete as his title to fast land which has no direct connection with the navigation of such water. It is a qualified title, a bare technical title, not at his absolute disposal, as is his upland, but to be held at all times subordinate to such use of the submerged lands and of the waters flowing over them as may be consistent with or demanded by the public right of navigation. ’ ” The same comment is applicable to the following cases: United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53 [33 S.Ct. 667, 57 L.Ed. 1063]; Greenleaf-Johnson Lumber Co. v. Garrison, 237 U.S. 251 [35 S.Ct. 551, 59 L.Ed. 939]; Gibson v. United States, 166 U.S. 269 [17 S.Ct. 578, 41 L.Ed. 996]; Henry Dalton & Sons Co. v. Oakland, 168 Cal. 463 [143 P. 721]; People v. California Fish Co., 166 Cal. 576 [138 P. 79]; People v. Banning Co., 167 Cal. 643 [140 P. 587]; Oakland v. E. K. Wood Lumber Co., 211 Cal. 16 [292 P. 1076, 80 A.L.R. 379]; Boone v. Kingsbury, 206 Cal. 148 [273 P. 797]; City of Newport Beach v. Fager, 39 Cal.App.2d 23 [102 P.2d 438]; City of Oakland, v. Buteau, 219 Cal. 745 [29 P. 177]; People v. Southern Pac. R. R. Co., 166 Cal. 627 [188][138 P. 103], and Patton v. City of Los Angeles, 169 Cal, 521 [147 P. 141].
It is reasoned that because the public agency may in the interests of navigation deprive an owner of land on navigable waters of access thereto, it may erect structures which prevent accretions. Assuming that to be true, there still is the question of diverting the currents of the ocean in such a fashion as to wash away plaintiff’s land. The right to have his land free from the diversion of currents with the result of the washing away of his land is not a part of his littoral rights nor dependent thereon. All the cases cited in the opinion involve an interference with the owner’s littoral rights. Not one of them,, except as hereinafter mentioned, involves the washing away or flooding of the upland land as a result of the diversion or obstruction of the current of a navigable stream. The exceptions above mentioned are Bedford v. United States, 192 U.S. 217 [24 S.Ct. 238, 48 L.Ed. 414], and Gibson v. United States, supra. Those cases were based upon the proposition that there could be no compensation where there was merely a damaging as distinguished from a taking, that is a consequential damage. (See United States v. Cress, 243 U.S. 316, 329 [37 S.Ct. 380, 61 L.Ed. 746].) This same thought is stated in Justice Tray-nor’s opinion, where it is said: “The damage to the land resulted neither from direct invasion nor subjection to public use but as an incidental consequence of the construction of a breakwater.” That is not the law in California, and our state Constitution provides that compensation must be paid where there is a damaging or taking. (Cal. Const., art. I, sec. 14.) It is said in 10 Cal.Jur. 335: “Under the present constitution by which compensation is recoverable where property is ‘damaged,’ the owner is entitled to compensation even though there has been no actual taking and the only injury suffered is indirect and consequential and for which damage he had no right of recovery at the common law.”
It is said in Goodman v. United States, supra, at page 917: “. . . and the government’s right to improve such rivers in aid of navigation is paramount to the rights of riparian owners in the beds of all navigable streams. Pike Rapids Power Co. v. Minneapolis, St. P. & S. S. M. R. Co., (8 Cir.), 99 F.2d 902, 909. But the government may not for the [189]purpose of aiding navigation permanently convert to the public use, by means of dams and other structures, the land of the riparian owner above the mean high-water line without just compensation. Pumpelly v. Green Bay Co., 13 Wall. [80 U.S.] 166, 20 L.Ed. 557; United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539; United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746; Willink v. United States, 240 U.S. 572, 580, 36 S.Ct. 422, 60 L.Ed. 808; Union Bridge Co. v. United States, 204 U.S. 364, 390, 27 S.Ct. 367, 51 L.Ed. 523; Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331.”
It is said in United States v. Cress, supra, at page 319: “The States have authority to establish for themselves such rules of property as they may deem expedient with respect to the streams of water within their borders both navigable and non-navigable, and the ownership of the lands forming their beds and banks..., subject, however, in the case of navigable streams, to the paramount authority of Congress to control the navigation so far as may be necessary for the regulation of commerce among the States and with foreign nations . . .; the exercise of this authority being subject, in its turn, to the inhibition of the Fifth Amendment against the taking of private property for public use without just compensation. ...”
It is said in Nichols on Eminent Domain, volume 1, section 138, at page 417: “Even the public right to improve navigation, which is paramount to all private rights in the waters or bed of a navigable watercourse, cannot be exercised in such a way as to ‘take’ land above high water mark without payment of compensation. In improving navigable streams the public authorities cannot trespass upon the lands of riparian proprietors, cut timber or dig away the banks. It is of course well settled that, apart from the peculiar doctrine already noted in respect to the mill acts, the construction of a dam raising the waters of a stream to such an extent as to permanently flood riparian land naturally dry is a ‘taking’ in the constitutional sense, and no exception to this rule is made when the level of the stream is raised for the purpose of making navigation more safe and convenient. In such case the owners of riparian land that is thereby flooded are constitutionally entitled to compensation. The owner of the upland bordering upon a watercourse has however no greater protection from injury resulting from the construction of [190]public improvements than the owner of any other land, and he is not entitled to compensation if his land is merely damaged as the result of the improvement of the watercourse, if it is not taken in the constitutional sense. Thus the erection of a dam for the purpose of improving navigation, which increases the liability of riparian land to overflow in time of freshets but does not keep it permanently submerged, gives the owner of such land no right to compensation. When the natural consequence of the erection of structures upon one hank of the stream, or in its hed, will he to deflect the current upon the other bank and to gradually wash it away, it is held by the federal and by some of the state courts that such injury is not a taking, since the owner might protect his land by piles or a sea-wall. In other states however it has been held that such injury constitutes a taking, and at all events, when the constitution provides that property cannot he damaged without compensation, such an injury is within the protection of the constitution.” (Emphasis added.)
In its answer to plaintiff’s complaint defendant pleaded as its fourth separate defense that plaintiff’s cause of action is barred by its failure to file a claim with defendant within ninety days after the occurrence of the damage as required by California Statutes of 1931, page 2475, Deering’s General Laws, Act No. 5149, and as a fifth separate defense it pleaded an ordinance of the city of Santa Barbara providing that in actions for damages against the city a claim must be filed within six months unless a shorter period of time is otherwise provided by law.
Pursuant to stipulation between the parties the issues raised by these defenses were tried by the trial court and a judgment rendered in favor of defendant based upon the fourth defense above mentioned. No other issues were tried. The judgment further determined “that plaintiff’s complaint does not state facts sufficient to constitute a cause of action, . . . that plaintiff is not entitled to any relief herein,” and “that plaintiff take nothing by this action and that the same be dismissed.”
Prom what I have said in the foregoing opinion, it is obvious that the complaint states a cause of action in inverse condemnation for compensation for the portion of its property taken as the result of the construction of the improvement, and also for severance damages to the property not taken.
[191]The material part of the above-mentioned claim statute relied upon by defendant reads: “Whenever it is claimed that any person has been injured or any property damaged as a result of the dangerous or defective condition of any public street, highway, building, park, grounds, works or or property, a verified claim for damages shall be presented in writing and filed with the clerk or secretary of the legislative body of the municipality, county, city and county, or school district, as the case may be, within ninety days after such accident has occurred. Such claim shall specify the name and address of the claimant, the date and place of the accident and the extent of the injuries or damages received.” (Emphasis added.) The claim statute involved in Powers Farms, Inc. v. Consolidated Irr. Dist., 19 Cal.2d 123 [119 P.2d 717], was phrased practically the same as the one here invoked. It was there held that a claim need not be filed where there is a taking of the property under the eminent domain provision of the Constitution. It has been shown that there was a taking in the instant case. Furthermore, it was held in the Powers case that there must be a dangerous or defective condition in the improvement before the statute applies. The statute here involved also refers only to damage to property as a result of a dangerous or defective condition. In the instant case there is no allegation that the breakwater was in any manner dangerous or defective, and it does not appear to have been in such condition. In the Powers case the seepage from a canal was caused by the dangerous and defective condition of the canal. (See, also, Davis v. East Contra Costa Irr. Dist., 19 Cal.2d 140 [119 P.2d 727].) The reason given in the Powers ease for applying the claim statute where there was a damaging, but not where there was a taking, is that in the latter case the agency constructing the improvement knew it was taking the property and therefore required no notice. In the instant case it is alleged that defendant knew that the breakwater would result in the taking of plaintiff’s beach.
It is conceded by respondent that the 1931 claim statute pleaded as its fourth defense, and not the ordinance pleaded as its fifth defense, must be relied upon in support of the judgment. From what I have said in the foregoing opinion, said statute is not applicable to the ease at bar, and the or[192]dinance, which, is no broader than the statute, is likewise not applicable.
I am unable to follow the argument of Mr. Justice Shenk in his concurring opinion in this case. He concedes that the claim statute upon which defendant relies applies only to a damage resulting from a dangerous and defective condition of public property. He does not say that the breakwater in question is dangerous or defective; in fact, he cannot fairly say so, because there is no allegation or finding to that effect. Such being the ease there is no basis whatever for his conclusion that the claim statute is applicable and that plaintiff’s action is barred for its failure to file a claim.
Mr. Justice Shenk states: “The general liability having thus been provided for may not be relegated to the field of tort liability alone by the addition in the statute of the words ‘after such accident has occurred.’ The quoted words refer to the time when the claim must be filed, and do not limit established general liability. The foregoing cited cases likewise establish that damage is caused by the dangerous or defective condition of public works, within the meaning of the statute, if the condition of the public works is dangerous to the plaintiff’s property without reference to negligence (Emphasis added.) That conclusion is clearly erroneous. The claim statute is clearly related to and contemplates only those liabilities created by the 1923 Public Liability Act (Stats. 1923, p. 675; Leering’s Gen. Laws, 1937, Act 5619) or for liability arising out of a proprietary function. (Helbach v. City of Long Beach, 50 Cal.App.2d 242, 244 [123 P.2d 62]). The wording of the two acts is identical. In the 1923 act liability is imposed for “injuries to persons and property resulting from the dangerous or defective condition” of public works. It was said in Johnson v. City of Glendale, 12 Cal.App.2d 389, 393 [55 P.2d 580]: “The act of 1931, in so far as it requires the presentation of claims within ninety days after the happening of an accident, merely prescribes rules of procedure for the enforcement of claims arising under the 1923 act, no such rules having been prescribed by that act.” (Emphasis added.) The liability under the 1923 act does not exist unless the agency has notice of the dangerous or defective condition. The liability is imposed solely for negligence. If the 1931 claim act applies to inverse condemnation cases where no notice is necessary but still calls those conditions dangerous or defective, then there is [193]liability for a dangerous or defective condition regardless of whether the agency has notice. The gravaman of the liability referred to in the claim statute is negligence. (See 9 Cal.Jur. Ten-year Supp., Public Officers, secs. 178-189.) The judgment should be reversed.
Curtis, J., and Schauer, J., concurred.
Appellant’s petition for a rehearing was denied December 2, 1943. Curtis, J., Carter, J., and Schauer, J., voted for a rehearing.