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Selma Pressure Treating Co. v. Osmose Wood Preserving Co.6/25/1990
d 119].)
On appeal Petery points out that, though the State is limited to seeking injunctive relief in actions brought by the State in its representative capacity for maintenance of a public nuisance generally, a logical exception to this limitation exists when the State owns the adversely affected property. Then, the State, acting in its capacity as property owner, and not merely in its representative capacity, can seek damages as well as injunctive relief under the first sentence of Code of Civil Procedure section 731. (See fn. 5, ante.) He then asserts that as the State "owns" the waters it could seek damages for the harm resulting to the groundwater from the wood treating wastes.
Respondents argue, however, that the terms of Code of Civil Procedure section 731 limit absolutely the remedies available to the State -- only abatement is available. We disagree. Properly viewed, the statute, and cases interpreting the statute, limit the State only when it acts in its representative capacity protecting the public interest generally. Where the State has a property interest which has been injuriously affected by a nuisance, the State can, like any property owner, seek damages.
In County of San Luis Obispo v. Abalone Alliance, supra, 178 Cal. App. 3d 848, the court held county authorities could not recoup law enforcement costs under the guise of "damages" in a public nuisance action. The court, however, also quoted Prosser.
"'The state can never sue in tort in its political or governmental capacity, although as the owner of property it may resort to the same tort actions as any individual proprietor to recover for injuries to the property or to
recover the property itself.' (Prosser & Keeton, Torts (5th ed. 1984) ยง 2, p. 7.)" (178 Cal. App. 3d at p. 859.)
In Abalone Alliance and the other cases which apply strictly the second sentence of Code of Civil Procedure section 731, People ex rel. Gow v. Mitchell Brothers' Santa Ana Theater, supra, 114 Cal. App. 3d 923, 930, People ex rel. Van de Kamp v. American Art Enterprises, Inc., supra, 33 Cal. 3d 328, 333, footnote 11, the governmental entity had no proprietary interest injured by the defendant's maintenance of a nuisance; the damages sought were to cover governmental costs. The government sued exclusively in its representative capacity in each case. (See People ex rel. Gow v. Mitchell Brothers' Santa Ana Theater, supra, 114 Cal. App. 3d at p. 930.)
Where the governmental unit owns or has a property interest which is injuriously affected by the nuisance, we perceive no reason why it should be barred from recovering money damages for the injury done to that interest, just as any other property owner could. The operative language of Code of Civil Procedure section 731, we believe, is a "person whose property is injuriously affected . . ." as opposed to an action "brought in the name of the people of the State of California . . . ."
While the term "person" is not generally interpreted to include governmental entities, it can be. In City of Los Angeles v. City of San Fernando (1975) 14 Cal. 3d 199, 276-277 [123 Cal. Rptr. 1, 537 P.2d 1250], the California Supreme Court explained the question may become one of legislative intent:
"In support of their contention that the 1935 amendment precluded prescription only b
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