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Selma Pressure Treating Co. v. Osmose Wood Preserving Co.6/25/1990
y private persons, firms or corporations, defendants cite statements by this court that in the absence of express words to the contrary, neither the state nor its subdivisions are included within the general words of a statute. [Citations.] But this rule excludes governmental agencies from the operation of general statutory provisions only if their inclusion would result in an infringement upon sovereign governmental powers. 'Where . . . no impairment of sovereign powers would result, the reason underlying this rule of construction ceases to exist and the Legislature may properly be held to have intended that the statute apply to governmental bodies even though it used general statutory language only.' [Citations.] Pursuant to this principle, governmental agencies have been held subject to legislation which by its terms applies simply to any 'person.'"
We can envision no possible impairment of sovereign powers by interpreting the term "person" in Code of Civil Procedure section 731 to include
governmental units. Conversely, if a governmental property owner cannot pursue the tortfeasor for damages to its property interests, the governmental entity suffers under a disadvantage felt by no other property owner -- it cannot recover for any injury to its property interest when another maintains a public nuisance. No public interest would be served by such a limitation; it merely would relieve a tortfeasor of some of the consequences of his tortious behavior where the property injuriously affected happened to be owned by a public entity. We do not think this is a logical interpretation of the law. Where a public entity can show it has a property interest injuriously affected by the nuisance, then, like any other such property holder, it should be able to pursue the full panoply of tort remedies available to private persons. (See Code Civ. Proc., § 731; Civ. Code, § 3491.)
Could the State claim here a sufficient property interest to support a damage claim? We answer in the affirmative.
Water Code section 102 provides: "All water within the State is the property of the people of the State, but the right to the use of water may be acquired by appropriation in the manner provided by law." Water Code section 12922 provides: "It is hereby declared that the people of the State have a primary interest in the correction and prevention of irreparable damage to, or impaired use of, the ground water basins of this State caused by critical conditions of overdraft, depletion, sea water intrusion or degraded water quality."
As the court in Ivanhoe Irr. Dist. v. All Parties (1957) 47 Cal. 2d 597, 625 [306 P.2d 824], revd. on other grounds sub nom. Ivanhoe Irrig. Dist. v. McCracken (1958) 357 U.S. 275 [2 L.Ed.2d 1313, 78 S.Ct. 1174], explained: " he state is not the owner of the domestic water of the state in the sense that it has absolute power and dominion over it to the exclusion of the rights of those who have the beneficial interest therein. The title is an equitable one residing in the water users of the state. The state as an entity is the holder of the legal title as trustee for the benefit of the people of the state, all of whom in the last analysis, are the water users of the state." (See also California Trout, Inc. v. State Water Resources Control Bd. (1989) 207 Cal. App. 3d 585, 630 [255 Cal. Rptr. 184]; Orange County Water District v. City of Riverside (1959) 173 Cal. App. 2d 137, 168-169 [343 P.2d 450].) Thus, both s
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