Steenhuyse v. City of Fullerton

Filed 1/29/07 Steenhuyse v. City of Fullerton CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, David A. Thompson, Judge. Reversed with directions.

Woodruff, Spradlin & Smart, and M. Lois Bobak for Defendant and Appellant.

Harold M. Stanley for Plaintiffs and Respondents.

The City of Fullerton (the City) appeals from a judgment against it in this inverse condemnation action brought by Matthew and Alison Van Steenhuyse after their residential property, located adjacent to and at the bottom of a natural watercourse, suffered significant flooding during a rainstorm. The City contends the trial court failed to apply the pertinent legal principles set forth in Locklin v. City of Lafayette (1994) 7 Cal.4th 327 (Locklin), pertaining to public entity liability for discharge of runoff surface water into a natural watercourse, and when properly applied, those rules preclude a finding of inverse condemnation liability in this case. We agree and reverse the judgment with directions to enter judgment in favor of the City.

I

FACTS

The Properties and The Swale

The Van Steenhuyses own a house (the Van Steenhuyses property) in a hilly area of Fullerton. They purchased the property in 1998. The Van Steenhuyses property is located at the bottom of a natural seasonal drainage swale that runs north‑south adjacent to the western boundary of the Van Steenhuyses property. The swale in its entirety is about 2,700 feet long and drops about 140 feet in elevation along its way. It conveys surface water runoff from the watershed area above the Van Steenhuyses property to the City owned streets and storm drains below the Van Steenhuyses property. Although the Van Steenhuyses property was historically subject to sheet flooding from the swale, they had no knowledge of the prior flooding when they bought the home.

Two neighboring properties play into this litigation. The Turves live next door to the Van Steenhuyses on the west side of the ravine. Also adjacent to the Van Steenhuyses property on the west, but to the north of the Turves property (i.e., slightly uphill from the Turves), is an approximately 1.5 acre property owned by the Rogerses. The Rogerses purchased their property about one month before the events giving rise to this litigation took place. The swale essentially runs north‑south on the eastern boundaries of the Rogerses property and the Turves property.

The Van Steenhuyses and the Turves properties were created by a subdivision map approved by the City in 1960. The Rogerses property apparently was not part of that subdivision. As part of the approval of the subdivision map, two drainage easements affecting only the Van Steenhuyses and the Turves properties (and not the Rogerses property) were dedicated to the City.

The first drainage easement (hereafter the improved City easement) covers the terminal portion of the swale (i.e., where it meets at the Citys street and storm drain) and burdens the eastern six feet of the Turves property from north to south, adjacent to the Van Steenhuyses property. The swale fully lies on the Turves property within the improved City easement. The improved City easement is improved with a concrete V‑ditch and curbs extending the full length and width of the improved City easement together with a short section of stone rip‑rap at the northerly terminus of the V‑ditch, at or near the boundary between the Turves property and the Rogerses property. Apparently, the improvements were built by the developer and later accepted by the City. The City maintains the improved City easement, generally by conducting visual inspections several times each year and removing debris which might obstruct the free flow of water in the swale.

Moving upslope, the second drainage easement (hereafter the unimproved City easement) burdens the western six feet of the Van Steenhuyses property from north to south, adjacent to the Rogerses property.[1] Here, the swale is primarily located on the Rogerses property, although some small portions of the eastern edge of the swale are on the Van Steenhuyses property within the unimproved City easement. Although the City also accepted the unimproved City easement when it approved the subdivision map, it has never constructed any improvements or performed any maintenance within the unimproved City easement or in the adjacent segment of the swale on the Rogerses property.

The Fences and The Gate

There are several fences in the vicinity of the three properties, the swale, and the drainage easements. Starting at the bottom, there is a concrete block wall along the eastern side of the Turves property running north to south on the western edge of the swale adjacent to the concrete V‑ditch. The Turves constructed the block wall themselves to protect their property from water draining down the swale.

Moving upslope, there is a wooden fence around the Van Steenhuyses backyard that was built by their predecessor in interest. The west side of the Van Steenhuyses wood fence is within the unimproved City easement along the eastern edge of the swale on or near the boundary separating the Rogerses property from the Van Steenhuyses property. There are sheets of plywood attached along the swale side of the Van Steenhuyses wooden fence, which Matt Van Steenhuyse understood were put there to help keep water in the swale and out of their backyard.

The Rogerses property is surrounded by a chain link fence running north‑south along the western edge of the swaleand east‑west about nine inches north of the boundary between the Rogerses property and the Turves property extending across and on the swale itself. There is a chain link gate in the east‑west chain link fence near the middle of the swale on the Rogerses property. The gate and the chain link fence were built by one of the Rogerses predecessors in interest, some time after the improved City easement was improved with the concrete V‑ditch, but long before the Van Steenhuyses purchased their property. Alan Rogers agreed at trial that the entire swale channel was basically on his property (even though cut off from the rest of his property by the chain link fence) and the gate was entirely on his property. The gate has generally been kept locked and closed to prevent access through the swale into the watershed areas above. However, prior owners of the Rogerses property usually unlocked and opened the gate when rain was expected so it would not block the free flow of water.

The Floods and The Citys Responses

The City has always taken the position the swale above the concrete V‑ditch is private property and all maintenance above the improved City easement is the responsibility of the property owners. The Van Steenhuyses predecessor in interest testified to flooding on the property in 1995 when the Rogerses gate was closed during a rainstorm. She notified the City about the flooding. The City cleaned up debris in the street and in the improved City easement, but took no remedial action above the Rogerses gate.

During a January 2001 rainstorm (after the Van Steenhuyses moved in), the Rogerses gate was closed. Debris accumulated against the gate causing storm water to back up in the swale and flood across the unimproved City easement into the Van Steenhuyses backyard. The Van Steenhuyses complained to the City and were told the gate and the swale above it were on private property, the City did not maintain the swale beyond the improved City easement, and the problem had to be resolved between the Van Steenhuyses and the Rogerses predecessor in interest, David Schenk. The Van Steenhuyses at that time learned about the 1995 flood. The Van Steenhuyses contacted Schenk, who cleaned out the swale north of the gate and agreed to give them a gate key, although the Van Steenhuyses never received the key.

During a moderate rainstorm in March 2003, the Van Steenhuyses property was again flooded. On the night of March 15, after the rain had started, Matt Van Steenhuyse checked the swale and the gate sometime before going to bed. Although the gate was closed and locked, there was no debris against the gate and the water was flowing freely in the swale. But within a few hours, debris had accumulated against the gate, water backed up the swale and flooded across the unimproved City easement into the Van Steenhuyses backyard and house causing substantial damage.

The Citys Upslope Activity

Over the years, the City has approved new homes and residential streets upslope from the Van Steenhuyses property. Several of the Van Steenhuyses neighbors testified they routinely objected to new upslope development because of the increased drainage loads placed on the swale. The Citys standard response was that each new development would cause only minor increases in drainage into the swale. Several neighbors also testified that over the years, as upslope residential development increased, the amount of water draining down the swale increased significantly. Some upstream private property owners were allowed to fill the natural swale on their property, installing drainage pipes through the property draining back to the natural swale to achieve level building pads.

The residential streets built above the swale were owned by the City, and the City had three upslope drainage easements on the swale with energy dissipaters. The City presented evidence that while some water flowed from its streets into the swale, the streets largely directed water away from the swale. Each upslope residential development that was approved had as a condition of approval a requirement that postdevelopment runoff could not exceed predevelopment conditions. The City required two upslope property owners to add storage basins, privately owned and maintained, to slow the velocity of runoff.

The City presented evidence that to improve the entire swale to turn it into a public drainage system would cost more than the Citys entire annual storm drain and sewer budget. In 1989, the City suggested to private property owners along the swale that an assessment district be formed to construct permanent drainage facilities within the swale, but there was no interest expressed in that approach. After the 2001 flooding incident, the Van Steenhuyses could have built a concrete block wall on their property next to the swale at a cost of between $6,000 and $12,000.

The Complaints

The Van Steenhuyses filed a complaint against the Rogerses alleging causes of action for negligence, private nuisance, and trespass. They filed a separate action against the City alleging causes of action for dangerous condition of public property, inverse condemnation, public nuisance, and injunctive relief. The City filed a cross‑complaint against the Rogerses for negligence.

The Van Steenhuyses complaint against the City alleged the entire swale constituted a natural watercourse that was part of a public drainage system created for the protection of abutting properties, and the general public. The City had allowed the entire swale to become a dangerous condition by letting it deteriorate into an inadequate drainage system. The City was on notice the swale lacked the capacity to handle drainage from the continuing upslope residential developments being approved by the City. The City also failed to maintain and improve the swale and, thus, failed in its responsibilities as dominant tenement and manager of the entire drainage area.

In their dangerous condition cause of action, the Van Steenhuyses alleged the City owned, constructed, and managed the drainage facility next to their property, which was historically subject to flooding. By failing to maintain the swale, and allowing the Rogerses gate to be on the swale, the City had violated its obligations as owner of an implied drainage easement over the entire swale. The Van Steenhuyses alleged the City improperly approved upslope development without consideration for the increased drainage demands placed on the swale.

In their inverse condemnation cause of action, the Van Steenhuyses alleged the City had created a public improvement in the form of a network of drainage culverts throughout the entire residential area which included the swale. The Citys continued failure to clean the swale, remove the gate, and enforce its drainage easements along the swale against all abutting property owners who might be contributing to the condition of the swale constituted a taking. The Citys failure to modernize its drainage facilities, and permitting upslope development to add to the drainage load on the swale, constituted a taking.

The Trial

The actions were consolidated and the parties stipulated to a bifurcated trial. They agreed the Van Steenhuyses negligence cause of action against the Rogerses and their dangerous condition cause of action against the City would be tried first before a jury. The inverse condemnation and nuisance causes of action and the request for injunctive relief would then be tried before the court.

At the conclusion of the first phase, the jury returned a special verdict finding the Rogerses, the Van Steenhuyses, and other [unidentified third] persons were negligent and the negligence of each was a substantial factor in causing harm to the Van Steenhuyses property. As to the dangerous condition cause of action against the City, the jury found the fence and gate on the Rogers[es] property above the concrete culvert [i.e., the improved City easement] constituted a dangerous condition, but found the property was not owned or controlled by the City, and there was no liability on the Citys part. The jury specifically found there were no dangerous conditions existing on [t]he street drains, pipes, and outlets on the Citys streets above the Van Steenhuyses property, the drainage exit pipe from a private development above the Van Steenhuyses property, or from the swale itself. The jury apportioned responsibility for the Van Steenhuyses damage as follows: the Rogerses, eight percent; the Van Steenhuyses, 72 percent; other persons, 20 percent; and the City, zero percent. The jury found the Van Steenhuyses had suffered $55,811.61 in economic damages and $22,500 in noneconomic damages.

The Ruling

After a brief court trial, the court issued a tentative ruling in the Van Steenhuyses favor on their inverse condemnation and nuisance causes of action.[2] The trial court issued a statement of decision following the Citys request.

As to the inverse condemnation cause of action, the court indicated it did not believe the Locklin rule of reasonableness applied (Locklin, supra, 7 Cal.4th at p. 327), but rather inverse condemnation liability was based upon the obligations of the City as owner of the unimproved City easement. It found the City had damaged or taken an interest in the Van Steenhuyses property because it had accepted an unimproved easement for drainage along the western six‑feet of the property adjacent to the swale, but it effectively used the entire property for a drainage easement. The use of the entire Van Steenhuyses property for drainage was for a public use of storm water runoff from the watershed above to the City owned streets, catch basins, and storm drains below. The court found that at least some of the storm water runoff originated on public propertythe City streets, catch basins, and storm drains above the Van Steenhuyses property. The Van Steenhuyses were forced to bear a disproportionate share of the storm water runoff burden for the benefit of all private and public property in the watershed above.

The trial court found the City was negligent in the design, construction, maintenance, or lack of maintenance of the improved City easement and the unimproved City easement because it was aware the Van Steenhuyses property was historically subject to sheet flooding. It was unreasonable for the City to regularly clear obstructions from the improved City easement, but ignore the obstruction presented by the Rogerses gate. The court found it was unreasonable for the City to have not improved the unimproved City easement, in view of its ownership and maintenance of the improved City easement and its knowledge of flooding on the Van Steenhuyses property, because the unimproved segment of the swale above the gate was part of the improved segment of the swale below the gate.

The trial court also found the Van Steenhuyses acted reasonably under the circumstances. It was reasonable for them to not build a block wall after the 2001 flood, because the 2001 flooding was not severe. Once the Rogerses predecessor in interest, Schenk, cleaned out the swale on his property north of the gate as they requested, and began leaving the gate open during rainstorms, they believed the problem was resolved. It was reasonable for the Van Steenhuyses to not remove the Rogerses gate themselves because it was located on the Rogerses property and they had no greater right than the City to maintain or remove the [g]ate. The trial court awarded the Van Steenhuyses damages of $150,000 on their inverse condemnation cause of action representing the value of the property interest taken. On the injunctive relief request, the court ordered the Rogerses to remove the gate, and ordered the City to not prevent the Van Steenhuyses from building a protective retaining wall within the unimproved City easement.

II

DISCUSSION

The City contends the trial court erred in imposing liability on it for inverse condemnation. In essence, it contends the trial court improperly held it strictly liable for inverse condemnation by applying general property law principles concerning the obligations and duties of owners of easements. Rather, the City contends public entity inverse condemnation liability for flood damage from a natural watercourse can only be determined by reference to Locklins rule of reasonableness. (Locklin, supra, 7 Cal.4th 327.) Furthermore, it contends a proper application of the Locklin rule precludes inverse condemnation liability in this case. We agree.

A. General Principles of Inverse Condemnation

The taking or damaging of private property for public use must be compensated. (Cal. Const., art. I,  19; Locklin, supra, 7 Cal.4th at p. 362.) [I]f private property is wrongfully damaged or destroyed by government action, then an inverse condemnation action may lie to establish the owners damages. [Citations.] The inverse condemnation action is based upon the constitutional provision. It is independent of any right to sue under traditional tort theories. [Citations.] (Odello Brothers v. County of Monterey (1998) 63 Cal.App.4th 778, 785‑786.) A rule of strict liability is generally followed in inverse condemnation: liability follows if a public work, acting as designed, is a substantial cause of damage to private property. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 81‑82 (Paterno).)

B. Inverse Condemnation in the Context of Water Damage

Of course, with all rules there are exceptions, and in the case of damage to private property due to flood water, strict liability is not necessarily the rule. We begin with the accepted premise that a public entity has no duty to provide protection from flood waters. (Tri‑Chem, Inc. v.Los Angeles County (1976) 60 Cal.App.3d 306, 312; Stone v. L. A. County Flood Control Dist. (1947) 81 Cal.App.2d 902, 912; see also Bunchv.Coachella Valley Water Dist. (1997) 15 Cal.4th 432, 442 (Bunch).) A public entity may be liable for flood damage to property historically subject to flooding, however, if it has acted unreasonably and is negligent in the design, construction, or maintenance of flood control improvements. (Bunch, supra, 15 Cal.4th at p. 436; Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 565‑567 (Belair).) Or, in the case of flooding from a natural watercourse, a public entity may be liable if it has acted unreasonably in relation to its use or alteration of the watercourse and its unreasonable conduct is a substantial cause of harm or damage to another property. (Locklin, supra, 7 Cal.4th at p. 366.)

Historically, under the natural watercourse rule, upstream property owners had immunity for any damage to downstream riparian property caused by discharge of surface water runoff into a natural watercourse.[3] (Locklin, supra, 7 Cal.4th at pp. 345‑346.) This immunity extended to public entities as well. (Archer v. City of Los Angeles (1941) 19 Cal.2d 19.) But after a rule of reasonableness was injected into the natural watercourse rule limiting the immunity of private riparian property owners (see Keys v. Romley (1966) 64 Cal.2d 396), the Supreme Court introduced the rule into inverse condemnation cases as well. (See Belair, supra, 47 Cal.3d 550.) In Locklin, the Supreme Court extended the rule of reasonableness (as opposed to the prior rule of immunity) to apply when a public entity contributes to an increase in volume and velocity in a natural watercourse resulting in downstream property damage. (Locklin, supra, 7 Cal.4th at pp. 337-338.)

Locklin summarized the rule of reasonableness as follows: When alterations or improvements on upstream property discharge an increased volume of surface water into a natural watercourse, and the increased volume and/or velocity of the stream waters or the method of discharge into the watercourse causes downstream property damage, a public entity, as a property owner, may be liable for that damage. The test is whether, under all the circumstances, the upper landowners conduct was reasonable. This rule of reasonableness applies to both private and public landowners, but it requires reasonable conduct on the part of downstream owners as well. This test requires consideration of the purpose for which the improvements were undertaken, the amount of surface water runoff added to the streamflow by the defendants improvements in relation to that from development of other parts of the watershed, and the cost of mitigating measures available to both upper and downstream owners. Those costs must be balanced against the magnitude of the potential for downstream damage. If both plaintiff and defendant have acted reasonably, the natural watercourse rule imposes the burden of stream‑caused damage on the downstream property.

[A] governmental entity may be liable under the principles of inverse condemnation for downstream damage caused by an increased volume or velocity of surface waters discharged into a natural watercourse from public works or improvements on publicly owned land. It will be liable if it fails to use reasonably available, less injurious alternatives, or if it has incorporated the watercourse into a public drainage system or otherwise converted the watercourse itself into a public work. Compensation is compelled by the same constitutional principles which mandate compensation in inverse condemnation actions generally. The downstream owner may not be compelled to accept a disproportionate share of the burden of improvements undertaken for the benefit of the public at large. Because downstream riparian property is burdened by the servitude created by the natural watercourse rule, however, consistent with that rule the downstream owner must take reasonable measures to protect his property. Liability on an inverse condemnation theory will not be imposed if the owner has not done so.

Finally, because the development of any property in the watershed of a natural watercourse may add additional runoff to the stream, all of which may contribute to downstream damage, it would be unjust to impose liability on an owner for the damage attributable in part to runoff from property owned by others. Therefore, an owner who is found to have acted unreasonably, and to have thereby caused damage to downstream property, is liable only for the proportion of the damage attributable to his conduct. (Locklin, supra, 7 Cal.4th at pp. 337‑338; see 11 Miller & Starr, Cal. Real Estate (3d. ed. 2006)  30:6, p. 30-33.)[4]

3. The Trial Courts Ruling

In its statement of decision, the trial court suggested three grounds for imposing inverse condemnation liability on the City. First, it indicated the swale (or at least the improved City easement and unimproved City easement portions of the swale) constituted a public improvement, which had been negligently designed and maintained by the City because the City failed to improve and maintain the unimproved City easement and did not take steps to address the obstruction posed by the gate on the Rogerses property. Next, the trial court suggested Locklins rule of reasonableness was inapplicable, and Locklin factually inapposite, because Locklin concerned the rights and obligations of upstream riparian property owners, which included some of the public entities sued in that case. Instead, the trial court concluded the more general rules of property law concerning the obligations of the owner of a dominant tenement to the servient tenement applied.[5] In short, it was the Citys acceptance of the six‑foot wide unimproved City easement on the Van Steenhuyses property that established its inverse condemnation liabilityi.e., because the City had accepted the unimproved easement on the Van Steenhuyses property adjacent to the swale on the Rogerses property, any incursion of water from the swale beyond the boundary of the designated drainage easement constituted a taking. And finally, the trial court concluded that even if the Locklin rule of reasonableness applied, the City had acted unreasonably and the Van Steenhuyses had acted reasonably.

D. Strict Liability for the Swale as a Public Improvement/the Unimproved Drainage Easement

We consider the first two grounds for inverse condemnation liability together as both are largely premised upon the Citys acceptance of the improved City easement on the Turves property and the unimproved City easement on the Van Steenhuyses property when the subdivision map was approved in the 1960s.

To the extent the trial court imposed inverse condemnation liability on a strict liability basis, premised on general property law, it erred. The trial court concluded because the City had accepted the unimproved drainage easement on the Van Steenhuyses property, it had a duty as the dominant tenement owner to not overuse the easement. We do not believe that relationship (i.e., the Citys ownership of the unimproved easement) supports inverse condemnation liability. Nor do we believe acceptance of the unimproved easement adjacent to the swale made the City a de facto insurer against future flood damage from the swale.

As Locklin explained, liability for surface water runoff and drainage is no longer simply a rule of property law dependent upon the existence of right, servitudes, or easements. (Locklin, supra, 7 Cal.4th at p. 351.) Although it is agreed the City accepted the unimproved City easement when it approved the subdivision map creating the Van Steenhuyses parcel in 1960, there is absolutely no evidence it ever exercised any dominion or control over the unimproved City easement such as would make it a public work. For example, in Mamola v. State of California Ex Rel. Dept. of Transportation (1979) 94 Cal.App.3d 781, 788, a dangerous condition of public property case, the court concluded the states reservation of an access easement over a county road did not support liability because the crucial element was not ownership of the easement, but exercise of control over the easement. (Ibid. [[t]he fact the easement was owned by State, standing alone, creates no liability]; see also Ullery v. County of Contra Costa (1988) 202 Cal.App.3d 562.)

Nor can we agree that acceptance of the unimproved City easement on the Van Steenhuyses property when the subdivision map was approved, required the City to exercise control over the easement by maintaining and improving the adjacent swale which was largely on the Rogerses property. The facts bear some repeating here. Unlike the improved City easement burdening the Turves property, through which the swale runs, the unimproved City easement on the Van Steenhuyses property is primarily adjacent to the swale channel. Above the Rogerses gate (and above the improved City easement), the swale lies primarily on the Rogerses property, not on the Van Steenhuyses and not on the unimproved City easement. In its statement of decision, the trial court specifically found only small portions of the eastern edge of the swale were located within the unimproved City easement. There is no evidence in this record that the City had a similar drainage easement on the Rogerses property. (Indeed, the Rogerses predecessor in interest, Schenk, testified there was no such easement on the property.) Furthermore, the duty to maintain and repair property subject to an easement is ordinarily determined by the language of the grant. (12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, 418, p. 490; see Rest., Property,  485.) In accepting the dedication of an unimproved drainage easement on the Van Steenhuyses property, the City did not thereby agree to maintain or construct drainage improvements upon either the unimproved easement or on the adjacent swale. Only an express agreement could have created such a duty, and cannot simply be implied from the Citys acceptance of the dedication of the unimproved easement.

Locklin, supra, 7 Cal.4th at page 370, footnote 21, is instructive. There the public entity defendants had required dedication of drainage easements on the creekside properties as a condition of approval of subdivision maps. (Id. at p. 341.) That was one of the facts the plaintiffs relied upon in asserting the creek had become a public work. After noting the easements had never been accepted, the court observed: We question, moreover, whether requiring and/or accepting drainage easements across private property to a privately owned natural watercourse is evidence of an exercise of control over the watercourse itself. The requirement may reflect nothing more than a precaution necessary to ensure that drainage of surface waters into the watercourse is not cut off by the improvements. (Id. at p. 370, fn. 21.)

Here, when the City approved the subdivision map in 1960, it accepted drainage easements on the eastern side of the Turves property on which the swale channel lay, and the western side of the Van Steenhuyses property, adjacent to the swale. There is nothing in the dedication that suggests the City had thereby committed itself to maintaining or improving part of the swale over which it had no right of access or control (i.e., on the Rogerses property).

The Citys acceptance of the unimproved City easement is relevant only insofar as it is one piece of evidence to be considered in determining whether the adjacent swale itself was a public improvement. To the extent the court concluded the Citys ownership and maintenance of the concrete V‑ditch located in the improved City easement at the terminal portion of the swale rendered the entire swale a public improvement, we also conclude it erred.

Locklin is factually quite similar to the present case and guides us here. The Locklin plaintiffs were downstream property owners along a natural watercoursea creek. Private upstream development (approved by the city and the county defendants), and public upstream development and improvements (in the nature of paved streets and other public areas owned by the city and the county and other public entity defendants), had dramatically reduced the natural watershed and increased the volume and velocity of surface water flowing into the creek. Eventually, the increased flow of waters eroded the creek banks and caused damage to the plaintiffs property resulting in an inverse condemnation action against various public agencies including the city and the county. (Locklin, supra, 7 Cal.4th at pp. 339‑340.)

The Locklin plaintiffs inverse condemnation cause of action was based on two theories, identical to the theories pled and tried by the Van Steenhuyses in this case. The first theory was that an increase in the surface waters flowing into the creek from upstream development of public streets, storm drains, other public improvements, and from upstream development of private property, required by a county ordinance to discharge surface water into the creek, was a substantial factor in causing the downstream damage to the plaintiffs properties. The second theory the plaintiffs alleged was that as a result of this use and public improvements constructed in the creekbed, [the creek] had itself become a work of public improvement. (Locklin, supra, 7 Cal.4th at p. 341, fns. omitted.)

The court rejected the theory the creek was a public work, noting the issue was to be resolved by the reviewing court as a question of law once the factual issues on which that question turns have been resolved by the trial court. (Locklin, supra, 7 Cal.4th at pp. 369‑370.)

The facts supporting the public improvement theory in Locklin were similar to the facts in this case. There was evidence that as a condition of development permits [the city and the county] had required that irrevocable dedication of storm drainage easements on creekside properties be set out in subdivision maps. (Locklin, supra, 7 Cal.4th at p. 341, fns. omitted.) The city itself used the creek to collect and drain surface water from city streets and had built and maintained an outfall structure (an apron of boulders bound together by concrete) below the outfall of one of its storm drains that extended into the creek and channel armoring at the location of the outfall. (Id. at p. 341, fn. 6.) Additionally, the city had sometimes helped property owners remove debris (fallen trees) from the creekbed. (Id. at p. 370.)

The court concluded none of the above facts established that the city (or any of the public entity defendants) exercised control over the creek thereby transform[ing] it into a public work or improvement. (Locklin, supra, 7 Cal.4th at p. 370.) The dedication of drainage easements did not demonstrate control over the natural watercourse. (Id. at p. 370, fn. 21.) Assisting with debris removal from the natural watercourse would not support an inference that [the city] was exercising control over the watercourse. (Id. at p. 370.) Maintenance of the storm drain outfall did not constitute an exercise of authority over the creekbed[,] only over the easement for the outfall. (Ibid.) And finally, the court rejected the suggestion that using the creekbed for drainage made the creekbed a public improvement: Utilizing an existing natural watercourse for drainage of surface water runoff and requiring other riparian owners to continue to do so does not transform the watercourse into a public storm drainage system. A governmental entity must exert control over and assume responsibility for maintenance of the watercourse if it is to be liable for damage caused by the streamflow on a theory that the watercourse has become a public work. [Citation.] (Ibid.)

Applying Locklins analysis, as we must, we reach the same conclusion that the unimproved swale is not a public improvement and remains a privately owned natural watercourse. (Locklin, supra, 7 Cal.4th at p. 371.) The Citys own use of the swale for drainage of surface waters from its streets, and its approval of upslope developments that also used the swale for drainage, did not convert the swale into a public drainage system. Furthermore, the Citys acceptance of the dedication of the unimproved City easement on the Van Steenhuyses property, without exertion of control over the unimproved City easement and the swale, did not convert the City into an absolute insurer against flood damage. And finally, the fact the City accepted and maintains the improvements in the terminal portion of the swale leading to the City owned street below the Van Steenhuyses property (i.e., the improved City easement), does not convert the entire swale into a public drainage system. The trial court concluded the improved part of the swale was inseparable from the unimproved part (i.e., but two halves of the same whole), and thus improving and maintaining the improved City easement, made the City responsible for the rest of the swale. But the same could be said of any natural watercourse. Improving the terminal portion of the swale where water flowed into the Citys storm drains does not evidence control over the entire swale. This is particularly so when there is no evidence the Citys improvements in anyway affected the functioning of the unimproved City easement, or any of the upper part of the swale, had any role to play in increasing the risk of flooding to the Van Steenhuyses property, or played any part in causing the flooding.

In summary, we conclude the acceptance of dedication of the unimproved drainage easement on the Van Steenhuyses property does not establish grounds for imposing liability in inverse condemnation and there was insufficient evidence to establish the swale was itself a public work. Thus, we must turn to the trial courts analysis of reasonableness issue.

E. Application of the Locklin Rule of Reasonableness

We have already explained neither the Citys acceptance of the unimproved City easement, over which it has never exerted any control, nor the Citys improvement and maintenance of the improved City easement rendered the entire swale a public work. Since the claim the swale was a public drainage system fails, the Van Steenhuyses alternative theory that increased discharge of surface water into the swale caused their damage must be considered. (Locklin, supra, 7 Cal.4th at p. 373.) Under Locklin, the City could only be liable for the flood damage to the Van Steenhuyses property on this theory if it had acted unreasonably in increasing the volume or velocity of waters flowing into the ravine and the Van Steenhuyses acted reasonably in protecting their property from flood damage. (Ibid.)

Although doubtful Locklin applied, the trial court nonetheless made findings that the City had acted unreasonably and the Van Steenhuyses had acted reasonably. As to the City, the trial courts finding of unreasonableness pertained only to the Citys conduct vis--vis the improved City easement and the unimproved City easement, and the court made no findings relating to the Citys upslope activity other than to find some storm water runoff originated on its streets, catch basins, and storm drains upslope. The court concluded the City acted unreasonably by not exerting control over the unimproved City easement by improving or maintaining the swale in view of its knowledge of the historical sheet flooding at the Van Steenhuyses property, and its knowledge the gate on the Rogerses property (which the jury found was neither owned nor controlled by the City) presented an obvious obstruction to drainage. In contrast, the Van Steenhuyses acted reasonably by not building a block wall to protect their property because prior flooding had not been too severe, and when the swale was cleaned out (and the gate left open) by the Rogerses predecessor in interest, they reasonably believed the problem was resolved. Also, the Van Steenhuyses had no greater right than the City to maintain or remove the [g]ate.

We conclude under Locklin, inverse condemnation liability for the Citys own discharge of surface water into the swale has not been established. As explained above, when an increase in volume or velocity of surface water discharged into a natural watercourse from a public entitys upslope property causes damage to property below, the public entity, as a property owner, may be proportionately liable for the damage, if its conduct was unreasonable, and if the plaintiffs conduct was reasonable. (Locklin, supra, 7 Cal.4th at p. 337.)

We agree with the City that preliminary findings for liability under Locklin (findings that were not made by the trial court) cannot be made given the evidence: (1) that there was an increase in volume or velocity of surface water discharged into the swale from the Citys upslope property; and (2) that the Citys discharge of surface water into the swale was a substantial cause of the Van Steenhuyses damages. (Locklin, supra, 7 Cal.4th at p. 341.)

Locklin made clear liability for damage caused by drainage of surface waters by public entities into a public watercourse must be apportioned: [A] plaintiff in inverse condemnation must establish the proportion of damage attributable to the public entity from which recovery is sought. (Locklin, supra, 7 Cal.4th at p. 372.) The City is not liable for the use of the natural watercourse for drainage by private property owners unless the natural watercourse ravine had been converted into a public worka basis for liability we have already rejected. (Id. at p. 370.) [The] City is liable under section 19 of article I of the California Constitution for the damage suffered by plaintiffs only if the additional surface water runoff created by its improvements, i.e., paved streets and other public areas, or the manner in which it collected and discharged surface water runoff into [the natural watercourse] was both unreasonable and a substantial cause of the damage to plaintiffs property. (Id. at p. 373.)

The trial courts only finding in this regard was that some water drained into the swale from the Citys streets, catch basins, and storm drains. There were no findings as to how much or that the City had contributed to any increase in drainage. Additionally, there was no finding the City was unreasonable in the manner in which it collected water from its streets or discharged into the swale. The City presented uncontroverted evidence its streets actually diverted most storm water runoff away from the swale. The Van Steenhuyses evidence consisted of testimony from numerous property owners in the neighborhood indicating that over the years, as more private development took place upslope, the volume and velocity of water draining through the ravine increased. But, there was absolutely no evidence from any source attributing the increase to the Citys own use of the swale for drainage or quantifying the amount increase attributable to the City. Finally, there was no evidence the Van Steenhuyses damages resulted from the Citys own (or anyone elses) increase of the volume or velocity of water draining through the swale. Indeed, the Citys expert and the Van Steenhuyses expert testified the cause of the flood was the closed gate on the Rogerses property.

The Van Steenhuyses failure to differentiate between the damage allegedly caused by the Citys drainage into the ravine and that of private property owners precludes their recovery for inverse condemnation. (Locklin, supra, 7 Cal.4th at p. 372.) In view of this conclusion, we need not address whether the evidence would have supported a conclusion the City acted unreasonably in collecting and discharging surface water into the swale, and whether the Van Steenhuyses were reasonable in the steps they took to protect their property.

III

DISPOSITION

The judgment is reversed with directions to enter a new and different judgment in favor of the City. The Appellant is awarded its costs on appeal.

OLEARY, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.

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Analysis and review provided by Escondido Property line attorney.

[1] The six‑foot wide drainage easement on the Van Steenhuyses property actually runs down the entire western boundary of their property, i.e., adjacent to both the Turves property (and the improved City easement) and the Rogerses property. Where that easement is adjacent to the Turves property and the improved City easement roughly corresponds to the eastern side of the Van Steenhuyses front yard and at the time in question was landscaped with ivy. There are no issues concerning this area. Accordingly, when we refer to the unimproved City easement we will largely be referring to that part of the easement adjacent to the unimproved part of the swale on the Rogerses property.

[2] Although the court found in the Van Steenhuyses favor on their nuisance cause of action, the Van Steenhuyses later withdrew that claim, and liability on that basis is not discussed by either party on appeal.

[3] It is undisputed the Van Steenhuyses property was historically subject to flooding. It is also undisputed the swale is a natural watercourse. Locklin explains, A natural watercourse is a channel with defined bed and banks made and habitually used by water passing down as a collected body or stream in those seasons of the year and at those times when the streams in the region are accustomed to flow. (Locklin, supra, 7 Cal.4th at p. 345.) Although Locklin suggests a swale, hollow, or depression through which may pass surface waters in time of storm not collected into a defined stream[,] is not a natural watercourse, [a] canyon or ravine through which surface water runoff customarily flows in rainy seasons is a natural watercourse. (Ibid., italics added.) Here, although called a swale by the trial court, and sometimes by the parties (a nomenclature we continue to use here as well for convenience), it appears we are dealing with a ravine, which the parties agree is a natural watercourse.

[4] In Bunch, supra, 15 Cal.4th at page 447, the court further extended the rule or reasonableness applying it when a public entitys failed attempt to divert water from a natural watercourse via a system of dikes and levees caused damage to properties historically subject to flooding. One appellate court case, Akins v. State of California (1998) 61 Cal.App.4th 1, 27, has held the rule does not apply when a flood control project, operating as intended, diverts water to flood water onto property that was not historically subject to flooding. In this case, it is undisputed the Van Steenhuyses property was historically subject to flooding from the swale.

[5]Locklin itself discussed these general property rules in a footnote, albeit in the context of the implied easement for drainage an upper riparian property has over lower riparian property: [T]raditional rules of property law forbid overburdening an easement or servitude and unreasonable conduct in exercising rights under either. [T]he owner of a dominant tenement must use his easement and rights in such a way as to impose as slight a burden as possible on the servient tenement. [Citation.] Every easement includes . . . the right to do such things as are necessary for the full enjoyment of the easement itself. But this right is limited, and must be exercised in such reasonable manner as not to injuriously increase the burden on the servient tenement. The burden of the dominant tenement cannot be enlarged to the manifest injury of the servient estate by any alteration in the mode of enjoying the former. The owner cannot commit a trespass upon the servient tenement beyond the limits fixed by the grant or use. [Citation.] (Locklin, supra, 7 Cal.4th at p. 356, fn. 17.)