Swamp Land Reclamation Dist. No. 341 v. Blumenberg

The plaintiff moved in the court below for judgment in its favor upon the pleadings. The motion was granted and judgment was rendered accordingly. This is an appeal from that judgment. The action was begun under the provisions of section 3466 of the Political Code, to foreclose the lien of a swamp land assessment. It is admitted that the assessment was in all respects regularly made and that it was levied for work to be thereafter performed by the district. The only question presented is whether or not the facts set up

The law relating to districts for the reclamation of swamp lands is found in sections 3446 to 3493%, inclusive, of the Political Code. It is provided that, after the original works of reclamation are completed, if they are of such a nature that other work must be done continuously, or from year to year, to maintain them or to make them effective, other assessments may be made upon the lands of the district, from time to time, to obtain funds for that purpose. (Sec. 3459.) The trustees must for that purpose make a statement of the work to be done and of its estimated cost. The cost is to be assessed to the lands in proportion to the benefits which it is believed will be caused by the work. The list of assessments is to be filed with the treasurer of the county (sec. 3462), the several amounts assessed become liens upon the respective tracts of land upon which they are assessed (see. 3463), payment thereof may be made at any time within thirty days (sec. 3465), and if not so paid they become delinquent and may be called for in installments by the board of trustees, and if any installment is not paid in twenty days after such call, a. suit for the foreclosure of the lien to that amount, or to the whole amount of the assessment if the trustees so elect, may then be instituted by the district (sec. 3466).

The plaintiff district was organized on June 17, 1879, and ever since has been a legally organized reclamation district under the law. It does not appear when its reclamation works were originally constructed, nor definitely of what they consist, but from the admitted facts it is a necessary inference that they have long been in operation and that the plan of reclamation is that pumps are to be operated during the cropping season of each year to lift the water collected by its ditches over the levee into the river, in order that it may be carried away and the land kept free so that it may be cultivated. The assessment in question here was made in the year 1907, sometime prior to June 27, and on that date the assessment-list was filed with the county treasurer. The object of the assessment was to raise funds to operate the pumps referred to, during the two years next ensuing after the levy of the assessment. Here again the allegations of the pleadings are somewhat uncertain, but we think it is to

In defense it is alleged that, since the levy of the assessment and “during the cropping season of 1907, said plaintiff, in violation of its duty in that behalf, failed, neglected, and refused to operate its pump aforesaid, and in consequence thereof the water from surrounding lands drained down upon the said land of defendant, Caroline B. Blumenberg, and submerged and overflowed a large area of the same, and so thoroughly saturated about 120 acres” thereof; that the crops growing thereon were destroyed “and said lands rendered unfit for cultivation ever since”; that defendant “repeatedly called the attention of said plaintiff to the submerged and saturated condition of the said lands and demanded of the plaintiff again and again that it operate its said pump for the purpose of pumping and removing said water from the said lands, but plaintiff at all times neglected and refused to operate its said pump, and wrongfully dammed up the ditches leading to said pump”; whereby the crops of defendant were overflowed and destroyed; all to her damage in the sum of five thousand dollars. It is further alleged that by reason of these misfeasances of the plaintiff she has not and will not derive any benefit whatever from the portion of the assessment sought to be recovered.

Another action for the remaining sixty-five per cent of the assessment was begun afterward and it is now before this court on appeal from a similar judgment, being the case designated as No. 1727 on the Sacramento calendar. In that case it was alleged that a judgment in pursuance of section 3493% of the Political Code, declaring the assessment valid, was rendered in the superior court of Sacramento County on October 11, 1907, and that it had become final when that action was begun. This proceeding and judgment are not

The theory of the defense is that, as the assessment was made to pay the expense of pumping for the seasons of 1907 and 1908, and as the basis of the right and power to make such assessments is the benefit which it is estimated the property will receive from the work for which the assessment is-, raised, such benefit is the sole consideration for the money to be paid by the property-owner, that the failure to do the work constitutes a failure of consideration, and that when such failure occurs before payment is made, or before judgment in a suit to foreclose the assessment lien, and when because the time for doing the work has passed it never can be done, the failure of consideration is total, and that it may be set up as a defense to such foreclosure.

Under the rule established in Lower Kings River Reclamation District v. Phillips, 108 Cal. 306 , [ 39 Pac. 630 , 41 Pac. 335 ], if the validity of the assessment has not been established in an action as provided in section 34931/2 of the Political Code, all questions involving the regularity of the assessment proceedings, the amount of the charge as compared to the benefits conferred and the fact that the cost was apportioned in proportion to the benefits must remain open to investigation in defense to a suit to foreclose the assessment lien. But here no attack is made upon the regularity of the assessment, nor is there any dispute that the work to be done would have benefited the land to the amount assessed, or that the cost was properly apportioned. The regularity and original validity and binding force of the assessment is admitted by the defendant. The contention is that it has become unenforceable because, by reason of subsequent events, the landowners cannot receive the benefit to secure which, alone, the assessment was made, and upon which, alone, it can be constitutionally founded.

There are authorities which give countenance'to the doctrine that such an assessment, although absolutely regular and valid when imposed, may be rendered unenforceable by subsequent events of this nature. In Davidson v. New Orleans, 34 La. Ann. 171 , an assessment for drainage purposes had been declared valid by the supreme court of the state

It is apparent that if a rule of this kind is to be applied to assessments such as that here involved—assessments by a going reclamation district with its permanent works constructed and paid for, assessments levied for the annual operations of the district necessary to be carried on to make the plan of reclamation and the organization of the district of any avail,—operations of no benefit whatever unless the work is done at the proper season,—there may arise insuperable obstacles to the success of such districts and the realization of the benefits to the landowners thereof and to the commonwealth, which such agencies are designed to bring-about, may be prevented by the action of a few of the persons intended to be benefited. If the district must have the money to pay in advance to get the work done, and the assessment cannot be collected until the work is done, the district would as well cease to exist at once. The statute-makes the assessment payable within thirty days and delinquent thereafter. It manifestly contemplates the payment of the assessment before such annual work, or any substantial part thereof, has been done. A levy for such purposes, by a district which has completed its permanent system of ditches, a district which, though not a municipal corporation, is at least a public corporation performing some of the-functions of government for the local territory interested, bears a close resemblance to ordinary taxes levied to defray the expenses of a city or county. It is clear from these considerations that a rule such as that here contended for, if applied at all to such districts and to assessments for such annual work, must be carefully guarded and limited so that it will not operate to defeat the very purpose for which such organizations are created.

There is no explanation in the record of the acts of the district averred in the answer as a defense. The plaintiff has followed the somewhat hazardous course of allowing its case to be stated by its adversary. We are disposed to rest our decision upon narrow grounds. The answer, in effect, avers

It may be suggested that if the money due on the assessment is paid and the work is not done, or by reason of the lapse of time the precise work contemplated by this particular levy cannot be done, the money will remain in the treasury of the district and can be devoted to future annual work of the same character, and that in this manner the landowners will receive the full benefit of the money paid on the assessment, although not the exact benefit intended. Perhaps this'might be a good answer to a failure to do the work if it were prevented in some manner other than the willful and

The judgment is reversed.

Henshaw, J., Melvin, J., Lorigan, J., and Beatty, C. J., concurred.