We were all set to digest the California Court of Appeal's opinion in Ruiz v. County of San Diego, No. D074654 (Apr. 7, 2020), when we realized that the opinion was not issued today, but merely ordered published today, and that the opinion was issued last month as an unpublished. So we checked with the California Eminent Domain Law Report, and sure enough, Brad Kuhn had written up the case back when it was issued. Thus, we won't be diving into the case in too much detail, but instead offer a couple of thoughts to supplement Brad's.
Short story: Ruiz's property suffered a flood after a storm drain installed by the property's developer overflowed. Installed 50 years ago, the drain eventually rusted. The drain was privately owned. The developer had offered to dedicate the drain to the County, but the County had not accepted the dedication.The land over which it traveled is privately owned. But the water in the pipe -- the water that flooded Ruiz's house -- is owned by the public. The trial court determined the flood was an inverse condemnation. See slip op. at 8 ("The court found that 'the continuous use of causing public water from the County's drains and inlets through the metal storm drain pipe on the [Ruiz] property caused the pipe to deteriorate and fail, which in turn caused the flooding and damage to [Ruiz's] property.'").
The Court of Appeal reversed, and entered judgment for the County:
The primary issue on appeal is whether a privately owned storm drain pipe located on private property, for which a public entity had rejected an offer of dedication, nevertheless becomes a public improvement because "public water" drains through it. We agree with the County that on this record and under settled law, the answer is no.
Slip op. at 2.
The appeal court first rejected the argument that the County had impliedly accepted the dedication. No, the court concluded, simply using the private drain for a long, long, time does not mean it was a public improvement. "Here the undisputed evidence is the County did nothing demonstrating dominion or control of the Ruiz pipe. There is no evidence that any County employee participated in planning, constructing, maintaining, inspecting, or repairing the Ruiz pipe.The County had no right of access to the Ruiz pipe; it is entirely on private property." Slip op. at 15.
But what about the water in that private drain? If the public owns the water as is true in some jurisdictions as a matter of "public trust," does that change the equation, even if the instrumentality of the flood was a private drain. For example, courts have held that an exercise of eminent domain is for public use because the public has the right to use the good flowing through the taken land, even if the taken land ends up in private hands. For example, the South Dakota Supreme Court has upheld a taking even though the public was excluded from the transmission line and the property taken, because the public has a right to use the electricity being transmitted. Isn't that like the public water flowing in the drain? But as far as we can tell, however, the opinion never actually addressed that question.
The closest we think the court came to it was the "vibe" that the flooding wasn't something that Ruiz would have avoided in the absence of the drain: "[b]efore the Ruiz's subdivision was developed, the natural watercourse in the Valley was a stream. The stream ran easterly, draining surface waters across the Property and continuing to a lake." Slip op. at 2-3 (footnote omitted). That, in turn, shows that the County didn't really do anything -- or fail to do something -- that would result in takings liability.
And finally, what of the Armstrong cost-spreading principle? Sorry, the court concluded, if we were to apply that faithfully, the government simply could not afford to build and maintain public works:
Ruiz asserts that as a matter of policy, they "should not have to bear the burden of a storm drain system which serves the general public." We sympathize with the situation Ruiz find themselves in, which can be traced all the way back to their purchasing the Property unaware of the pipe's existence. We also agree with them that property owners should not be required to contribute more than their fair share to a public undertaking. However, that policy must be balanced with the "possibility that imposing open-ended liability on public entities charged with creating and maintaining flood control improvements will discourage the development of needed public works." (Bunch, supra, 15 Cal.4th at p. 450.) The legal principles developed in the cases we apply to this record are an outgrowth of courts having balanced these policy considerations, and compel reversal.
Slip op. at 33-34.
Ruiz v. County of San Diego, No. D074654 (Cal. App. Apr. 7, 2020)
