Marin Municipal Water District v. Northwestern Pacific Railroad

This appeal involves the pleading of rights and duties incident to subjacent support of land, and a determination—apparently not heretofore made by an appellate court—of whether the common law rule of subjacent support has been modified by statute in California.

Appellant, plaintiff below and herein called “district,” owned a public water system which included two pipe mains installed in the land surface on the crest of a hill. Respondent (herein “railroad”) owned a railroad tunnel which ran through the hill beneath the district’s mains. The tunnel collapsed, whereupon the surface land above it subsided and the mains were disrupted. The district thereafter commenced this action for damages against the railroad.

The district’s complaint, setting forth the above facts, undertook to assert the railroad’s liability in four counts. In one—numerically, the third cause of action—liability was based upon the railroad’s alleged negligence in constructing and maintaining the underground tunnel. For reasons which we mention after deciding the appeal on its merits, the negligence count is not involved on this appeal and the complaint before us does not allege the railroad’s negligence in any respect.

The appeal’s merits are defined by this sequence of events in the lower court: Upon first appearance, the railroad moved to strike the first, second and fourth counts in the complaint and demurred, both generally and specially, to each. The trial court granted the motion to strike and ruled that its order striking the three counts mooted the demurrers to each. The court thereupon entered judgment dismissing the first, second and fourth counts. The appeal is from the judgment.

The district does not allege in any count the nature or extent of its estate in the land involved. It apparently did not occupy the surface under an express grant. As to its surface ownership, it alleges alternative facts by which, the district claims, it was a lawful occupant of the surface under any of several theories, and entitled to subjacent support from the subsurface strata. It is alleged that the district is organized under the Municipal Water District Act (now § 71000 et seq., Wat. Code), and that its water mains in this case were located in a city street and in a county highway which traverse the surface above the railroad tunnel. It claims that it is lawfully a surface owner upon theories invoked by other allegations as follows:

(1) In the first count, the district alleges that its water mains were “placed, owned and maintained” in the surface highways under claim of right and without protest from the railroad for more than five years. It claims an estate in the surface by adverse possession. There is no allegation, however, that the pipes are located in any property of the railroad, and various other allegations import to the contrary. Therefore, the complaint does not sustain the district’s claim to surface ownership by adverse possession.

(2) On the same facts, the district claims status as a surface owner by “inverse condemnation,” subject only to the right of the railroad to be compensated. (Provident Irr. Dist. v. Cecil (1954) 126 Cal.App.2d 13 , 17 [ 271 P.2d 157 ].) But, again, no allegation places the district’s water mains in or upon property of the railroad as an “ inverse eondemnee ’ ’; and, again, this theory of surface ownership will not apply.

(3) In the second count, the district alleges that its water mains are lawfully located because they are in public highway easements on the surface. Under these allegations, the district had the right to install its mains in the street and

At common law, where one person owns the surface of land and another the subjacent land, the owner of the surface is entitled to have it remain in its natural condition, without subsidence by reason of the subsurface owner’s withdrawal of subjacent support. (Rest., Torts, § 820; 3 Tiffany, Real Property (3d ed. 1939) § 754, p. 196; 5 Powell, Real Property (1962) § 703, p. 308; 2 Thompson, Real Property (4th ed. 1961) §415, p. 646; VI-A Amer. Law of Property (1954) § 28.36, pp. 99-100; Humphries v. Brogden (1850) 12 Q.B. 739, 744-745 [116 Eng. Rep. 1048,1050] ; and see Empire Star Mines Co. v. Butler (1944) 62 Cal.App.2d 466 , 533-534 [ 145 P.2d 49 ].)

The same authorities agree that the common law right of subjacent support is closely analogous to that of lateral support (e.g., 3 Tiffany, supra, § 754, pp. 196-197; 5 Powell, supra); each of two of the treatises concurs to the extent that each treats the two subjects together. (2 Thompson, supra, § 415, p. 640; VI-A Amer. Law of Property, supra.) Under all the authorities, also, the common law obligation of subjacent support is “absolute.” (E.g., Rest., Torts, supra, § 820, subd. (1), com. b; 5 Powell, supra-, 2 Thompson, supra.) The authorities—California courts included—also agree that the common law obligation of lateral support is similarly “absolute.” (Wharam v. Investment Underwriters (1943) 58 Cal.App.2d 346 , 349 [ 136 P.2d 363 ] ; Rest., Torts, § 817, subd. (1), com. b; 5 Powell, supra, § 699, p. 290; 2 Thompson, supra, § 415, p. 642.)

“Support is lateral when the supported and supporting lands are divided by a vertical plane. Support is subjacent when the supported land is above and the supporting land is beneath it. Such is the situation when one person owns an upper stratum of land and another person owns a stratum under it. It most frequently arises from a transfer of minerals in place, the rest of the land being retained, or from a transfer of the land, excepting the minerals.” (Rest., Torts, ch. 39, “Scope and Introductory Note,” p. 183; accord, 5 Powell, supra, § 703, p. 308.)

On this appeal, the district contends that the common law rule of absolute liability for deprivation of subjacent support is still in effect in California, unmodified by statute, and that

If this is so, the date that the tunnel was constructed is not relevant to whether the complaint before us states a cause of action. And, if section 832 is inapplicable as the district contends, we should so hold in reviewing the complaint because, under the law of the case thus established, the facts of notice of the railroad tunnel excavation—if given—and ordinary care in excavating—if exercised—are not available as affirmative defenses to a complaint which alleges neither.

We have seen that the complaint alleges a loss of surface support incurred by a supported surface owner from a supporting owner underneath, and not that the supporting owner—the railroad—owns any part of the surface adjoining the district’s occupancy there. Consequently, no element of lateral support is presented: this is a “pure” subjacent support case. As such, it has no precedent among the California decisions, all of which—with the possible exception of Porter v. City of Los Angeles (1920), hereinafter discussed— deal with lateral support obligations and coterminous surface owners only.

We hold that section 832 applies only as between coterminous surface land owners, and only to their mutual obligation of lateral support. Although the statute thus

First: Such authorities as have considered section 832 in lateral support cases appear to assume that the statute deals only with the lateral support obligation existing between coterminous surface owners of land. “All that [section 832] does is to permit a land owner to excavate, freed from the absolute common law right of lateral support in his neighbor, provided certain conditions in the code section are complied with, and always provided that negligence of the excavator is not the proximate cause of damage to the property of the adjoining land owner.” (Italics added.) (Wharam v. Investment Underwriters, supra, 58 Cal.App.2d at p. 349; Sager v. O’Connell (1944) 67 Cal.App.2d 27 , 32 [ 153 P.2d 569 ] (“The common law rule of lateral support is found in Civil Code section 832: . . .”] (Italics added) ; Puckett v. Sullivan, supra, 190 Cal.App.2d at pp. 494-495.)

Porter v. City of Los Angeles (1920) 182 Cal. 515 [ 189 P. 105 ], is the single California ease dealing, even in part, with subjacent support as such. In Porter, the plaintiff was the owner of an improved lot fronting on a city street under which the defendant city excavated a tunnel. In her action for negligent deprivation of support, the court held that the city was under a duty to use ordinary care in constructing the tunnel. The critical question, though, was the applicable statute of limitations. The complaint pleaded negligence. The Porter court indicated that the city would be liable for negligence but that its negligent act was a trespass upon plaintiff’s property governed by the statute of limitations in a trespass action rather than in a negligence action.

The Porter decision does not hold that section 832 controls all relationships between owners of the surface and the subsurface. To the contrary, the Porter court implied (182 Cal. at p. 520) that the plaintiff was a coterminous surface owner entitled to lateral support next to the street, and a surface owner entitled to subjacent support in the street; and that her coterminous rights existed by reason of section 832 (“under the code”) but that her surface rights did not.

Second: Section 832 declares the entitlement of a “ coterminous owner ... to the . . . support which his land receives

Thus, “coterminous” and “adjoining” each imports physical contiguousness at a common boundary. Such is characteristic of surface ownerships of land. On the surface of the planet, a precisely drawn boundary is necessary as a limitation upon otherwise unlimited occupancy and use on either side. On the surface, a precise boundary can feasibly be drawn as a visible line on an accessible horizontal plane. Contiguousness at a common boundary is not characteristic of the relationship between surface and subsurface ownerships. Ordinarily, the nature and extent of a granted underground use, not a precise boundary, limits occupancy and use at the subsurface level. A precise boundary is thus not necessary, and it cannot feasibly be drawn below ground because it would be an invisible plane through an impenetrable solid.

Since “coterminous” and “adjoining”-—each by definí-' tion—are characteristic of surface ownerships only, the nomenclature of section 832 appears to limit the statute to surface ownerships.

Third: The entirety of section 832 indicates that it is intended to apply to lateral support obligations existing between surface owners only. It applies to excavations “on” land, and not, in terms, underneath it. The notice to be given by an excavator must state “the depth to which such excavation is intended to be made” (italics added), which imports an opening from the surface rather than under it. If the notice were to apply to a tunnel beneath the land to be protected, it would properly specify the level or elevation of the tunnel excavation as well as its “depth.” Manifestly, the section’s subparagraphs numbered-3 and 4 apply to surface owners only. "

...Eourth: Since 1872, section.832.has appeared in division 2, part 2, title 3, chapter 1- of. the Giv.il Code, in .article 1 under-

The Legislature, in enacting and amending section 832, had good reason to relax the common law rule of lateral support as between the coterminous surface land owners to whom it applies. The rule had become burdensome and unrealistic among changing conditions involving the growth of urban communities, the proliferation of surface ownerships as population increased, and the commonplace necessity of surface excavation for building purposes. The need for its relaxation was “early perceived in California” (Wharam v. Investment Underwriters, supra, 58 Cal.App.2d 346 , 349), and section 832 codifies its relaxation. (Ibid.) No such reason dictated a relaxation of the obligation of subjacent support owed at common law by a subsurface owner: the need for protection of the surface, in fact, has increased as the importance of such subsurface activities as mining—and, for that matter, railroad tunneling—has declined in modern times.

In a given set of facts involving coterminous surface land owners, depending upon elements of topography and surface location and upon the pull of gravity in any case, “lateral support” and “subjacent support” can mean practically the same thing. In other situations, a single surface owner can be entitled to both. (Porter v. City of Los Angeles, supra, 182 Cal. at p. 520.) Accordingly, when the Legislature mentioned “subjacent support” in section 832, it used the term only as it might apply to a surface owner. That the term was used does not extend the statute to the subsurface owner to whom it does apply.

We have seen that, according to the allegations in the complaint, the district’s water mains were installed in the land surface—i.e., the district became a surface owner—after the railroad had excavated the tunnel in the subsurface. This sequence is not fatal to the district’s cause of action for deprivation of surface support. The surface owner’s cause of action arises when the land subsides, not when the excavation is made. (Rest., Torts, § 820, subd. (1), com. f; id., § 817, subd. (1) com. i; 2 Thompson, supra, § 415, p. 647; VIA Amer. Law of Property, § 28.48, p. 134; 3 Lindley, supra, § 823, pp. 2016-2017.) It has been so held in the lateral support' cases in California. (Veterans’ Welfare Board v. City of Oakland (1946) 74 Cal.App.2d 818 , 831 [ 169 P.2d 1000 ].) A surface owner of land in California is entitled to

The railroad contends that it is not liable to the district because even the common law rule of subjacent support extends only to surface land in its “natural condition” and thus—in the absence of negligence—does not protect the district’s water mains because the latter were “structures.” So far as the statement goes, it appears to recite the common law rule. (3 Tiffany, supra, § 754, p. 197; VI-A Amer. Law of Property, § 28.45, p. 130.) But the common law right to support is not lost by the imposition of structures unless the downward pressure of their artificial weight contributes to the subsidence. (5 Powell, supra, § 703, pp. 308-309.) The California lateral support cases so hold. (Wharam v. Investment Underwriters, supra, 58 Cal.App.2d 346 , 350; C. F. Harper Co. v. DeWitt Mortg. & Realty Co. (1931) 115 Cal.App. 15 , 20-21 [ 300 P. 839 ].) In this regard, the burden of showing that the structures’ weight contributed to the subsidence rests upon the defendant. (5 Powell, supra.) Only a complaint is before us. Therefore, the railroad’s contentions as to “structures ’ ’ are a matter of affirmative defense and proof.

In the second count of its complaint, the district alleges itself to be a surface owner deprived of subjacent support by reason of an excavation made by a subsurface owner. Since the common law rule of subjacent support is applicable, the second count states a cause of action and the judgment as to that count should be reversed.

The fourth count, thus far not mentioned, purports to plead a cause of action based upon strict liability for ultra-hazardous activity. Attempting to do so, it repleads the allegations of the first and second counts—which do not allege negligence—and adds only the bare conclusion that “construction and maintenance of said tunnel was at all times inherently dangerous” to the surface above it. Under the rule of “absolute” liability for ultrahazardous activity, as established in California by the decision in Green v. General Petroleum Corp. (1928) 205 Cal. 328 [ 270 P. 952 , 60 A.L.R.

We have previously indicated that the third count of the original complaint, which sounds against the railroad in negligence, is not before us. This is because of the full sequence of unusual events in the trial court. When it first appeared, the railroad demurred to the negligence count both generally and specially, but did not move to strike it. The trial court overruled the general demurrer and sustained the special demurrer with leave to amend within a time specified. The court’s action left the third count in a viable—and amendable—condition. The district, choosing at the time to challenge the trial court’s action striking the other counts, dismissed the third count without prejudice and appealed from the judgment dismissing the others.

When the appeal reached this court (1 Civ. 20624), it was dismissed on the railroad’s motion because an appellate decision would have been a “piecemeal” disposition of the case while the third count was in effect pending in the trial court. On motion there, the district then obtained leave to reinstate the third count and filed an amended complaint for negligence. The railroad responded with a voluminous answer and the case thereafter stood at issue as a negligence action only. A full two years later, the district changed its mind and dismissed its amended complaint—and, thereby, the third count for negligence—with prejudice. The district is back in this court on appeal from the judgment which originally dismissed the other counts, but without the “piecemeal” defect, of the abortive earlier appeal.

We mention this tortuous history because its effect has been to limit our review to the first, second and fourth counts of the original complaint. The parties have ignored any such

The judgment dismissing the second cause of action set forth in the complaint herein is reversed, and the trial court is directed to make rulings on the demurrers thereto consistent with the views herein expressed.

The judgment dismissing the first and fourth causes of action in the complaint is affirmed.

Each party shall bear its own costs on appeal.

Devine, P. J., and Christian, J., concurred.

A petition for a rehearing was denied August 30, 1967, and the opinion and judgment were modified to read as printed above. Respondent’s petition for a hearing by the Supreme Court was denied September 27, 1967.