Central Contra Costa Sanitary District v. Superior Court , 34 Cal. 2d 845 ( 1950 )

EDMONDS, J.

The Central Contra Costa Sanitary District operates a sanitary sewage system in Contra Costa County, embracing an area of approximately 30,000 acres with a population of about 43,000. The facilities now in use include a treatment plant which daily handles some 3,000,000 gallons of sewage and a main trunk pipe line 24 miles in length. Presently under construction are 115 miles of collecting sewer systems.

In connection with the construction in the Walnut Creek area, the Health Officer of Contra Costa County certified to the governing board of the Sanitary District that investigation had disclosed unsanitary, unhealthful, and dangerous conditions. On the basis of that report, the local district, in accordance with section 5000 et seq., of the Streets and Highways Code, awarded a contract for the construction of a network of sewer pipes.

Through negotiation, perpetual and temporary easements or rights of way were obtained across more than 90 per cent of the land in private ownership under which it is necessary to lay the pipes. In connection with the construction work, easements or rights of way over the land of Anne Fish Burgess are required. The present controversy has arisen in connection with the action to condemn such easements.

Following the commencement of the action, the Sanitary District filed a notice of a motion for an order of immediate possession upon the deposit of an amount to be fixed by the court. In support of the motion, an affidavit of an appraiser was filed in which he declared that $607 is the reasonable market value of the easement sought. There is no controversy as to the sufficiency of this proposed deposit. The motion was denied upon the ground that the Sanitary District is not one of the public corporations specifically named in article I, section 14, of the Constitution of the State of California, or a “similar public corporation” within the meaning of that section. The decision was also placed upon the ground that the use for which the real property is sought to be taken is not one for which immediate possession of an owner’s land may be had, it not being required for a right of way, or for use as a reservoir, by a corporation authorized by law to obtain immediate possession.

Article I, section 14, of the Constitution, provides: “Private property shall not be taken or damaged for public use without just compensation having first been made . . . and no right of way or lands to be used for reservoir purposes shall be appropriated to the use of any corporation, except a municipal corporation or a county or the State or metropolitan water district, municipal utility district, municipal water district, drainage, irrigation, levee, reclamation or water conservation district, or similar public corporation until full compensation therefor be first made ... in any proceeding in eminent domain brought by [one of the above corporations ‘. . . or similar public corporation’] . . . the aforesaid . . . may take immediate possession and use of any right of way or lands to be used for reservoir purposes . . . upon . . . giving such security ... as the court in which such proceedings are pending may direqt. ...”

By the present proceeding, the Sanitary District seeks a writ of mandate directing the superior court to make an order (1) fixing the amount of the sum reasonably adequate to secure Anne Fish Burgess payment of just compensation for the condemnation of her property, and (2) giving petitioner the immediate possession and use of the easements. The ground relied upon as justifying such relief is that immediate possession of the easement is required in order to correct a dangerously unsanitary condition as soon as possible.

In response to the petition, Anne Fish Burgess, the real party in interest, filed a demurrer and answer pleading: (1) that the Sanitary District has an adequate remedy at law and does not need immediate possession of the easement; (2) that it does not have a legal right to such possession, since it is neither one of the public corporations specified in article I, section 14, nor is it “. . . a similar public corporation. . (3) that there are no unhealthful or unsanitary conditions requiring abatement; and (4) that adequate drainage facilities now exist.

The allegations as to the lack of unsanitary conditions and the adequacy of present drainage facilties are irrelevant in this proceeding. These questions will be determined by the trial court in the condemnation action. The value of the easement as stated by the appraiser has not been challenged, and in the event of “. . . an adjudication that there is no necessity for taking the property ...” (Const., art. I, § 14), the landowner will be protected by the deposit required of the Sanitary District.

The ruling denying the motion for immediate possession is not an appealable order (Code Civ. Proc., § 963), and the fact that eventually the Sanitary District may obtain .possession of the Burgess land by a judgment is no substitute for the right to immediate occupancy. For that reason, the .petitioner has no adequate remedy other than this proceeding.

The essence of the Sanitary District’s position is that it is entitled to the immediate possession of property which is the subject of a condemnation action because it shares in common with the specifically enumerated public corporations the power to “. . . acquire [and] construct . . . storm water drains and storm water collection, outfall and disposal systems. . . .” (Health & Saf. Code, § 6512.) It may construct a sewage system [municipal utility districts], provide for drainage [irrigation districts], and generally protect the public health. A further point relied upon is that an easement for a sewer pipe is a “. . . right of way ...” within the meaning of those words as used in article I, section 14, of the Constitution.

The argument of Miss Burgess is that under the principle of ejusdem generis a sanitary district is not “. . . a similar public corporation ...” because the one factor common to those enumerated in the Constitution is the control, development and supply of water. The Sanitary District, she asserts, does not have this power.

The constitutional provision, as amended, specifically includes drainage, irrigation, levee and reclamation districts, extending to them the privilege of immediate occupancy of condemned land pending the final judgment in an eminent domain proceeding. The powers of municipal corporations, counties and reclamation districts are not limited to the control of water; the general purpose of all of these agencies is the protection of the public health. As to such districts, it has been recognized that there is a need for immediate occupancy of land which is being condemned. Under the rule of ejusdem generis, the necessity for such occupancy is enough to bring sanitary districts within the words “. . . similar public corporation. ...”

But if the public health factor is not sufficient, a sanitary district is also specifically empowered to construct storm water drains and storm water collection, outfall and disposal systems (Health & Saf. Code, § 6512), while the municipal utility districts share in common with it the power to construct sewer systems. It would indeed be a narrow construction of the words “. . . similar public corporation . . .” to distinguish, by so fine a line, between the authority of a sanitary district which controls storm water in order to avoid pollution of drinking water and that of a water conservation district, which guards against the damage of storm waters by the maintenance of irrigation facilities. To accomplish their purposes, all of the public corporations named must construct pipes across private lands, and all of them equally need to expedite construction by immediate occupancy of property upon which facilities are being built.

Much reliance is placed upon the argument sent to the voters in support of the proposed amendment. This statement enumerated metropolitan water districts, municipal utility districts, municipal water districts and water conservation districts, but did not specifically mention sanitary districts. From this analysis of the measure, it is contended that a sanitary district was not intended to be a “similar public corporation. ' ’ But this omission is no basis for reasoning that the right of immediate possession was not to be extended to a district not expressly named.

Moreover, some of the argument to the voters supports the construction of the amendment as including a sanitary district. The voters were told: ‘ ‘ Since the sovereign agency must be entitled to eventually obtain the required property, it has long been recognized that the practical and sensible thing was to allow the public agency to take possession at once so that construction work and development would not be delayed.” And a further statement of the purposes of the amendment reads: This amendment does away with the unfair discrimination which now exists between districts performing the same functions.”

For these reasons a writ of mandate will issue requiring the superior court to vacate its previous order and to fix the amount of the deposit necessary to secure to Anne Fish Burgess the prompt payment of just compensation upon the condemnation of her property. Upon such deposit, the court shall make an order giving the petitioner the immediate possession and use of the easement or right of way sought to be condemned.

Gibson, C. J., Shenk, J., Traynor, J., and Spence, J., concurred.