In Bookout v. State of California ex rel. Department of Transportation, (— Cal.Rptr.3d —-, Cal. App. 2 Dist., June 28, 2010), a court of appeal considered whether a landowner’s claim for inverse condemnation was barred by the statute of limitations. The court found that the claim arising from periodic flooding of the landowner’s property was barred when he failed to bring his lawsuit within three years from the time he discovered the flooding.
William Bookout acquired a parcel of property in Oceano, California, in 2000. Bookout opened a nursery on the property shortly after he acquired the property. Bookout’s property lies at the intersection of Paso Robles Street and 13th Street. Highway 1, which is owned by the California Department of Transportation (“Caltrans”), cuts through the southwest tip of the property. The Union Pacific Railroad (“Railroad”) owns land that is situated across from Highway 1, which its predecessor in interest acquired in 1894 and constructed a railroad line on a raised bed on the property. When it rains, surface water from the surrounding area drains away from Bookout’s parcel into a drainage channel on the Railroad’s property. A pipe extends under the raised rail bed to carry the water onto land owned by the Pismo Oceano Vegetable Exchange (“Exchange”). Around 1977, the Exchange installed a subsurface junction box at the pipe’s outfall from which water is diverted into a pond. However, the junction box is not adequate and water backs up and floods Bookout’s property. The Oceano Community Services District (“District”) owns a well and sometimes that well discharges water into a drainage channel that leads to a culvert located under the rail bed.
Dan Sutton, who is an employee of the Exchange, stated that Bookout discussed the flooding with him shortly after Bookout opened the nursery. Phillip Davis stated he received a complaint from Bookout about the flooding in December 2002. A Caltrans employee claimed he met with Bookout about the flooding before the employee retired in 2002. In June 2002, Bookout filled out a questionnaire that stated foot-deep flooding occurred on his property once a year.
Bookout filed a lawsuit on May 2, 2006, against Caltrans, District, Railroad, County, and Exchange for inverse condemnation, nuisance, trespass, and negligence. The Exchange entered into a settlement with Bookout. At trial, Bookout claimed he first discovered the flooding in February 2004. The court found that Bookout’s action accrued sometime before the middle of 2002 and that the three-year statute of limitations barred the inverse condemnation action.
The trial court applied Code of Civil Procedure 338, subdivision (j), which provides that a three-year limitations period applies for “[a]n action to recover for physical damage to private property under Section 19 of Article I of the California Constitution.” Section 19 of Article I of the California Constitution “requires just compensation where private property is ‘taken or damaged’ by a public entity.” Bookout asserted the five-year statute of limitations that applies for adverse possession should apply here. The court of appeal rejected Bookout’s argument.
“If the property is damaged, the three-year statute of limitation applies; if the property is taken the five-year limitation on actions to recover property applies.” The three-year statute of limitation has been applied where there is damage to a property caused by flood. The five-year statute of limitation has been applied “where a public entity has physically entered and exercised dominion and control over some portion of plaintiff’s property.” Here, no public entity has exercised dominion or control over Bookout’s property and therefore, the three-year statute of limitation applies.
The next issue was when the statute of limitations started to run. The evidence revealed that Bookout knew about the flooding in 2002. Bookout admitted he took a picture of the drainage pipe after the flooding occurred in 2002. Therefore, Bookout knew about the flooding more than three years prior to filing this lawsuit.
The obvious cause of the flooding was the Exchange’s modification of the drainage when it built a junction box and a pipeline that redirected the flow of the water. The Exchange settled Bookout’s claim against it. The court of appeal found Bookout failed to show that the District, the County, or Caltrans caused the flooding. Therefore, the trial court did not err in granting judgment on the pleadings in favor of these three entities.
The trial court did not grant Railroad judgment on the pleadings because it found that “[a]t most, the Railroad negligently acted by omission by failing to enlarge a culvert or by failing to require (if that was possible) that its tenant do so.” However, the trial court did find that the three-year statute of limitation applied to Bookout’s cause of action against the Railroad.
Bookout argued that the flooding of his property “constitutes a continuous trespass or nuisance and a new cause of actions arises each time it floods.” If a nuisance “will presumably continue indefinitely, it is considered permanent and the limitations period runs from the time the nuisance is created.” A nuisance is considered continuing in character if it may be discontinued at any time. An example of a continuous nuisance is a locked gate because the lock can be removed at any time.
Here, Bookout claims the raised rail bed is the cause of the flooding problem. The raised rail bed has probably been in place for over 100 years. Although the flooding may come and go, the rail bed is a solid structure that remains. Because the rail bed is a solid structure the court found that the nuisance is permanent. Therefore, the limitation period does not begin to run anew every time flooding occurs, but rather it began to run when Bookout first learned of the flooding in 2002.
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