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Selma Pressure Treating Co. v. Osmose Wood Preserving Co.6/25/1990
emedies where the legislation does not presume to preempt common law rights. (State, Department of Fish and Game v. S.S. Bournemouth (C.D.Cal. 1969) 307 F.Supp. 922, 929 [admiralty case allowing the State of California to seek money damages for injury to its waters and wildlife therein flowing from an oil spill].)
"It has long been established that the sovereign's interest in the preservation of public resources and the environment enables it to maintain an action to prevent injury thereto. [Citations.]
"More recently the courts of this jurisdiction and elsewhere have recognized that the state has the right to obtain damages for an injury to public resources and the environment. [Citations.] . . . As was said in Jersey Central : 'The State has not only the right but also the affirmative fiduciary obligation to ensure that the rights of the public to a viable marine environment are protected, and to seek compensation for any diminution in that trust corpus. [. . . 308 A.2d at 674].'" (Lansco, Inc. v. Department of Environ. Pro., supra, 350 A.2d at p. 524.)
Whether we term the State's interest here a direct usufructuary interest, a mere legal interest held for the benefit of the People or an interest supported by its parens patriae role, the State does have a legally cognizable interest in the groundwaters affected here which would suffice to support a claim for damages under Code of Civil Procedure section 731.
Finally, the pleadings below are compatible with this theory. In several paragraphs the State asserted actual degradation of the waters and also asserted the State's proprietary rights in the water. While under the 12th cause of action the pleadings mention only abatement of a public nuisance, we note the State in its general prayer for damages prayed: "For damages to the natural resources of the State of California, as determined at trial." It also sought "reimbursement to the Regional Board for the costs of sampling, investigations, and other actions taken to determine the nature and extent of contamination in and around the site, and for the costs of actions which may be taken by the Regional Board to abate the existing
contamination and prevent future contamination." At least for purposes of demurrer there is enough in the record to support finding the State sought, and could have been entitled to, damages on the theory of public nuisance; we think these pleadings sufficed to raise the possibility of liability below.
Having determined, in order to evaluate the legal availability of equitable indemnity for cross-complainants, that the State could plead a cause of action for damages flowing from a nuisance against respondents, it remains to be seen whether cross-complainants plead facts, or could amend the pleadings to so state facts, showing respondents might be liable for the alleged nuisance here.
A nuisance is defined as: "Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance." (Civ. Code, ยง 3479.)
A public nuisance is defined as: "A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal." (Civ.
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