I dissent.
Once again this court is faced with the question of the scope of governmental immunity and again the majority has seen fit to broaden the scope when an analysis of applicable statutes shows such action to be clearly unwarranted.
The majority in this case determines that the irrigation district (hereinafter the district) is immune from suit under the doctrine of governmental immunity on the grounds that there is no statutory basis for liability, and that the condition complained of was not a nuisance within the meaning of Civil 822 Code, section 3479. The majority’s interpretation of section 3479, although perhaps unduly restrictive, is not without authority. However, the conclusion that there is no basis for the district’s statutory liability is incorrect and the result of misinterpreting the Public Liability article of the Water Code (§§22725-22732) and in particular section 22727 and the case construing it. (See Powers Farms, Inc. v. Consolidated Irr. Dist., 19 Cal.2d 123 [119 P.2d 717].)
Section 22727 of the Water Code provides that “Whenever it is claimed that any person or property has been injured or damaged as a result of any dangerous or defective condition of any property under the control of any district or its officers or employees or the negligence of any officer or employee of a district, a verified claim for damages shall be presented in writing and filed with the officers or employees involved and also with the secretary of the district within 90 days after the accident or injury has occurred. If an officer or employee cannot be found to be served, the officer’s or employee’s copy may be served on the secretary, but in any event a verified claim must be served on the secretary.” (Emphasis added.) The progenitor of this section is found in Deering General Laws (Stats. 1935, p. 2250) and was entitled the Irrigation District Liability Law. With the exception of the words “and/or” which were inserted as follows: “Whenever . . . as a result of any . . . condition of any property under the control of any district or its officers or employees and/or the negligence of any officer ...” the two sections are identical. To be more precise the Public Liability article has merely incorporated the sections of the Irrigation District Liability Law and given these sections different designations: sections 1 and 2 of the Liability Law became sections 22725, 22726, and 22732 of the Water Code, section 2 was further transposed into sections 22727 and 22729, and sections 3 and 4 became sections 22730 and 22731.
The Irrigation District Liability Law was construed in Powers Farms, Inc. v. Consolidated Irr. Dist., 19 Cal.2d 123 [119 P.2d 717]. In that case plaintiff brought an action against an irrigation district for injuries sustained as a result of seepage from irrigation canals. The action was based upon article I, section 14, of the California Constitution requiring compensation to be paid for property damaged or taken for a public use. This court recognized the principle that failure to meet the 90 day filing procedural prerequisite of section 2 of the Liability Law (now Wat. Code, § 22727) was fatal to a 823 cause of action under the statute. The question before the court was whether plaintiff, who admittedly had not complied with the filing requirements, could maintain an action based upon the constitutional provision. This court held that he could not. The court reasoned that the act evinced a legislative intent to embrace all actions (see Powers Farms, Inc. v. Consolidated Irr. Dist., supra, 129), including the one before it, and that failure to comply with the filing prerequisites defeated a cause of action against a district regardless of its basis.
In reaching its conclusion the court analyzed the sections of the Irrigation Liability Law at length, and nowhere was there any indication to forsake the principle that this law enabled injured parties to sue the district apart from its officers or employees. To the contrary the court took pains to point out that section 2 permitted claims for damages against a district on grounds of “ (1) a dangerous or defective condition of property of the district and negligence of an officer or employee or (2) a dangerous or defective condition of property of the district, that is, a general liability without reference to negligence, or (3) the negligence of an officer or employee.” (Emphasis added.) (Powers Farms, Inc. v. Consolidated Irr. Dist., supra, 128.) This statement is susceptible only of the interpretation that an irrigation district’s governmental immunity is removed by this statute and that such districts are liable independently of their employees or officers.
Therefore, it would seem to follow that since section 2 of the Irrigation Liability Law and section 22727 of the Water Code are the same, and under the former a district is liable apart from its employees for a dangerous and defective condition, the district still remains liable separately under section 22727.
However, we are now told that this is not so, but that by some peculiar alchemy the transposition of the Irrigation District Liability Law into the Water Code altered the nature of these sections to such an extent that this court is now required to regard sections 22730 and 22731 of the Water Code as controlling. Thus, the district’s liability would be limited to negligent acts of its officers in their official capacity. Furthermore we are told that in the Powers case “It is clear that we did not consider section 2 of the act [now Wat. Code, § 22727] as imposing liability upon the district for defective conditions because we expressly stated that the basis of liability was the constitutional provision [citation] and that the 824 act imposed no liability on the district other than the one to pay certain judgments against its officers [citation].”
As an original proposition the majority’s construction of sections 22730 and 22731 might have been plausible, but it is now forestalled by the Powers case. Moreover, if this court now seeks to interpret the Powers case as not affecting the district’s liability other than as described in sections 22730 and 22731, it will be necessary to modify the contrary language therein since a reading of that case makes it obvious such was not the interpretation when it was written.
To substantiate this latter statement one need only read this court’s restatement of plaintiff’s contention in the Powers case, which appears as follows: “The respondent . . . contends that the law [Irrigation District Liability Law] concerns actions sounding in tort; that it has no reference to the general liability of the district, and should he construed as applying only to suits against directors, officers, agents, and employees, based on negligence, and to the secondary liability of the district, created by section 3 [now Wat. Code, § 22730], to pay certain judgments against officers.” (Emphasis added; 19 Cal.2d 123, 127-128.) This contention was rejected notwithstanding sections identical to sections 22730 and 22731 of the Water Code. This court stated that the statute could only be construed in the manner contended by ignoring the reference in the title to the liability of the irrigation district and the phraseology of section 2 (now Wat. Code, § 22727). There can be no question from this language that this court, at the time of the Powers case, viewed the district as liable apart from its officers.
The Powers case, then, established that the district’s liability was twofold: (1) a general independent liability under section 2 of the liability law (now Wat. Code, § 22727) and (2) liability for the negligent act of its employees in their official capacity. The necessary implication of the decision being that sections 3 and 4 of the liability law (now Wat. Code, §§ 22730 and 22731) were only describing the conditions under which a district would be liable for the acts of its employees and were not limiting the district’s independent liability. Thus, without sections 3 and 4 a district would not be liable for the acts of its employees when discharging governmental duties and activities since a statutory provision is necessary to remove the protection of governmental immunity (see Nissen v. Cordua Irr. Dist., 204 Cal. 542, 545 [269 P. 171]; Jackson & Perkins Co. v. Byron-Bethany Irr. Dist., 825 136 Cal.App. 375, 380 [29 P.2d 217, 30 P.2d 516]). Under sections 3 and 4 a district’s liability for its employees follows only when a judgment is rendered against an employee who, acting in his official capacity, negligently injures another, and providing proper notice is given to the district (Wat. Code, §§ 22727, 22730, 22731). However, if this is the extent of the district’s liability it is obvious there is a large gap between the persons who may recover against a district and those who are injured. The closing of this gap was achieved in the Powers case where this court construed the applicable sections as rendering the district liable under specified conditions apart from its employees. The court did not blur their intent but made it manifest that sections 3 and 4 were not to be regarded as trespassing on an injured person’s right to proceed directly against the district apart from its employees. (Powers Farms, Inc. v. Consolidated Irr. Dist., supra, 128.)
Therefore, section 22727 affirmatively answers the majority’s question of whether there is a statute declaring the district liable independently of its employees. Any doubt that this is its purpose or meaning is answered in Powers Farms, Inc. v. Consolidated Irr. Dist., supra. If there is some question concerning the legislative intent as to this section, the members of the court may draw comfort from the fact that the Legislature has apparently acquiesed to the Powers case and its implications since they were well aware of it but made no changes when codifying the Water Code.
Where plaintiff’s complaint alleges compliance with the procedural prerequisites, as here, and sets forth proper grounds for a claim against the district, that is, a dangerous and defective condition is being maintained which caused an injury, this is all that is necessary to state a cause of action (see Knight v. City of Los Angeles, 26 Cal.2d 764, 766 [160 P.2d 779]; Insolo v. Imperial Irr. Dist., 147 Cal.App.2d 172, 175 [305 P.2d 176]).
For the foregoing reasons the trial court erroneously sustained defendant’s general demurrer, and the judgment of dismissal which followed should be reversed.
Appellant’s petition for a rehearing was denied April 16, 1958. Carter, J., was of the opinion that the petition should be granted.
