Laguna Drainage District v. Martin Co.

This is a proceeding brought by the plaintiff, a drainage district corporation, organized under the Drainage Act of this state, to condemn a strip of land belonging to the defendant for the purpose of constructing a drainage ditch. A general demurrer to the amended complaint was sustained, and from a judgment entered thereon in behalf of the defendant plaintiff appeals.

A dual attack was made upon the complaint under the demurrer in the lower court, it being insisted, first, that the act of 1885 (Stats. 1885, p. 204), under which the plaintiff district was organized, was unconstitutional, and, secondly, that if constitutional, still the complaint failed to show that the condemnation of the defendant’s land was for any public use, hut, on the contrary, it appeared therefrom that such condemnation was Sought solely for private advantage and benefit, and it is urged here that the judgment should be sustained on either, or both, grounds.

As to the constitutionality of the act the point made is,

But, without discussing this matter further, it is sufficient to say that, assuming that there was anything in this point, we do not think defendant is entitled to raise it. The only object of the proceeding under the petition was to establish a public corporation. Its establishment did not affect the property of any person, even within the district, or deprive any one therein of his property; it simply authorized the corporation to discharge the public purposes for which, as a state agency, it was created. Respondent’s land was not embraced within the district. Neither he, nor it, was affected by the organization, and he has no ground to complain that the statute failed to provide for a notice of hearing to which he was not, for any reason, entitled.

Neither is it of concern to him that the statute fails to provide for notice of any assessment that may be levied. Such assessments can only be levied upon the land within the district. He has no land therein, and whether an assessment is ever levied, or- levied with or without notice, cannot be of a particle of interest to him as affecting any of his legal rights.

It is further insisted, -however, against the constitutionality of the act, that it nowhere appears therefrom that, in providing for the organization of drainage districts and authorizing them to exercise the right of eminent domain, any public use is to be subserved for which private property may be taken under section 14 of article I of the constitution, which provides that it may be only so taken for a “public use.”

But, testing again the provisions of this act of 1885 by the provisions of the act of 1868, which, as we have above stated, were upheld, we find no substantial difference in their respective provisions as to the purposes for which the respective organizations could be created. In fact, the only difference in them is, that the act of 1868 in terms referred to the reclamation of “swamp and overflowed, salt, marsh, or tide lands” as such, and authorized the formation of a reclamation district upon petition of the owners of one half of any such body of land “susceptible of one mode of reclamation.” The

of swamp and overflowed land in this state may justly be regarded as a public improvement of great magnitude, and of the utmost importance to the community. If left wholly to individual enterprise it would probably never be accomplished; and in inaugurating so great a work, the legislature has pursued, substantially, the same system adopted in other states for the reclamation of similar lands—to wit, by dividing the territory to be reclaimed into districts, and assessing the cost of the improvement on the lands to be benefited. ’ ’ Now, while the decision above quoted from speaks of the public benefit to be derived from the reclamation of vast bodies of swamp and overflowed lands, the terms of the act

On account of the climatic conditions and the topography of this state, the legislature recognized that there were other areas of land not consisting of “swamp, salt, marsh, or tide lands” which it was equally for the material advancement of the public interests and for the benefit of the public health should be drained, and this object was to be attained under the provisions of the act of 1885. It is to the interest of every state, and, hence, conducive to the public good, that all its land should be utilized and made productive, and this end attained in any particular locality or localities is a benefit to the entire state. A moment’s thought will suggest that whatever tends to increase the area of cultivable land materially adds to the productive capacity of the state, increases her resources, induces settlement, promotes her industrial energies, and enlarges her revenue.

And whether legislation operates to facilitate the draining of land so as to adapt it to cultivation, or to irrigate it so as to promote its productiveness, the same principle applies, and the end to be attained is the same, public prosperity and welfare. As said in the Madera ease, 92 Cal. 313 : “Whether the reclamation of the land be from excessive moisture to a condition suitable for cultivation, or from excessive aridity to the same condition, the right of the legislature to authorize . such legislation must be upheld upon the same. principle,

And not only is drainage legislation supported as being, from a material point of view, conducive to the public good, but it is equally sustained as being within the exercise of the police power of the state—in the interest of public health.

Ponds, marshes, and low swampy places are generally recognized as a menace to the public health of the neighborhood in which they exist as generating malaria, and, hence, it is matter of public interest that they should be abated and removed.

These are the main grounds upon which such legislation is sustained. In Lewis on Eminent Domain, 2d ed., vol. 1, sec. 188, speaking on this general subject, it is said: “The promotion of the public health is undoubtedly a public use within the meaning of the constitution, and private property may be taken for the construction of drains, levees, or other works in order to accomplish this object. ... As wet lands are undoubtedly unhealthful, it is evident that the public health may be made the real or ostensible ground of nearly all the drainage laws which have ever been passed. It is never an objection to the exercise of the power of eminent domain that it is instigated by private persons whose private interests will thereby be promoted. So a drain which will, in fact, promote the public health is none the less a public use because it is -sought by particular individuals whose estates will be thereby improved. Most drainage laws, however, are not conditioned upon the public health. Some of these laws permit any one or more persons to construct a drain across the land of others without any consideration of the public health or public welfare. Such statutes clearly permit the taking of private property for private use, and are void. On the other hand, a drain through a large tract of wet or swamp land belonging to numerous proprietors into which all can drain whose lands incline towards it will seem to be a public use, although the only .object accomplished is the drainage and improvement of private property. As has been already observed, a public use does not necessarily mean for the use of the entire community, but for the use of all within a given locality. Thus, a drain for the use of all within a certain district is as'much a public use as a schoolhouse for the use

The legislation referred to in the latter part of this quotation from Lewis is of the kind embraced in the act of 1885, and which is designed to effect the drainage of a district by means of a common drainage system for the use of all the lands therein, to be accomplished by drainage districts of a public character organized under the act for that purpose.

Nor is it necessary that the act should declare in terms that it is enacted for the public good or welfare, or that the right of eminent domain conferred under it should be expressly declared to be for a public use. It is sufficient if from all the provisions of the act it reasonably appears that it is for that purpose, and, for the reasons which we have heretofore given, and under the authority cited, we are satisfied that it sufficiently so appears.

Counsel for respondent contends that the act of 1885 is no more valid from a constitutional point of view than the Drainage Act of 1881 (Stats. 1881, p. 15), declared unconstitutional in Rickey v. Stearns Ranchos Co., 126 Cal. 150 . The essential difference between the two acts, however, is, that the act of 1881 conferred the .right of -eminent domain upon individual owners for the benefit of their private estates, and was therefore void, as taking the lands of a private owner for individual benefit. Under the act of 1885 the right to take the land of a private owner is to be exercised by a public corporation, acting as an agency of the state for a public use, and hence is valid.

While it is true that the mere declaration of the legislature that the purpose for which property may be taken is a public use is not conclusive, and does not conclude a person whose land is being condemned from showing upon the trial that, as a fact, the use sought to be subserved is a private one (County of San Mateo V. Coburn, 130 Cal. 634 ), or from assailing the complaint on the ground that it so appears therefrom, still we think that the complaint at bar is not open to this attack.

Most of the objections in this regard are disposed of in our discussion of the constitutionality of the act. The claim that the drainage of this land will, from the facts of the complaint, inure mainly to the benefit of those within the district, presents no valid reason why the right of eminent domain for that purpose is not being properly exercised in behalf of a “public use,” where all the lands within the district are susceptible of one mode of drainage, and such a system for the common benefit is sought to be provided. (1 Lewis on Eminent Domain, 2d ed., sec. 188.) Nor is'it any objection that the public benefit which is to be subserved is practically limited to those in the district whose lands are to be drained, and which will thereby be made valuable. In order that it shall constitute a public use it is not necessary that the ad

We are of the opinion that the court erred in sustaining the demurrer to the complaint, and the judgment is reversed, with directions to the lower court to overrule the demurrer.

Shaw, J., McFarland, J., Van Dyke, J., and Henshaw, J., concurred.