dissenting.—I dissent from the foregoing opinions. I think there was a taking of the property of plaintiffs here, for which the state was legally responsible. (See cases cited in notes to section 243, Gould on Waters.)
*41The following is the opinion of Department One above referred to by Mr. Justice McKinstry, rendered on the 14th of July, 1886:—
McKinstry, J.The action was brought under the act of March 12, 1885, authorizing the plaintiffs to institute an action against the state of California, .... “for damages which may be alleged to have been caused by the destruction of their property by reason of a canal which was cut by the order and direction of the levee commissioners, diverting the waters of the American River into the Sacramento River, under and by virtue of the authority conferred upon them by an act - of the legislature of said state, entitled.‘An act concerning the construction and repair of levees in Sacramento County, and the mode of raising revenue therefor, approved April 9, 1862.’ ” (Stats. 1885, p. 107.)
The sole purpose of the act is to permit an action against the state, and to regulate to some extent the proceedings in such action. Respondent contends that the act of March 12,1885, is unconstitutional and void. But we do not find it necessary to pass on the question of its con stitutionality.
Assuming the act to be valid, the demurrer, on the ground that the “ cause of action ” arose more than the statutory period of limitation before the action was brought, should have been overruled. The plaintiff had no capacity or right to sue the state until the enactment of March, 1885.
It is admitted that the act of April, 1862, is a valid act. It was so decided in Green v. Swift, 47 Cal. 536. If not valid, for any reason, it would have constituted no defense for the defendants in Green v. Swift.
And if the damages sustained by the work done by or under the direction of the levee commissioners- arose from the talcing of private property (within the meaning of the constitutional provision, which prohibits such taking without compensation), the act of 1862, and the *42work done by the levee commissioners in accordance with the act, would have constituted no defense in Green v. Swift But in that case the court held that the injuries done to the plaintiffs therein (plaintiffs herein), being a destruction of property of alike character to that alleged in this complaint, was not a taking of property entitling the plaintiffs to recover compensation, but that any such alleged injury was damnum absque injuria. And it was there held that the act of 1862 furnished a sufficient defense to the defendants, — the levee commissioners and contractors'. It is therefore a defense for the state.
If the question had not been determined by the highest judicial tribunal existing under the former constitution (and the canal had been dug after the adoption of the present constitution), we might hold, in view of the language of the present constitution, that injury such as that alleged in the complaint was a “ damage ” to property, for which the plaintiffs were entitled to compensation. But the acts which caused the alleged injuries were done while the former constitution was in force, and similar injury caused by the same acts was held by the Supreme Court, created by that constitution, not to be a “ taking ” within the meaning of the clause thereof, which prohibited a taking without compensation.
We have held heretofore that, under such circumstances, we must consider a question stare decisis.
Judgment affirmed.