Upon the former hearing of this case the appeals of the plaintiff from the order granting a new trial and of the defendants from the judgment were disposed of. That part of the former opinion based on the theory that the intervener's motion for a new trial was also granted, and refusing to consider its appeal from the judgment on that theory, was vacated before the decision became final. Although the intervener and defendants seemed to make common cause against the plaintiff, yet, upon an inspection of the motion and order for a new trial, it appears that it was the motion of the defendants alone which was granted, and that the judgment, so far as the intervener is concerned, stands subject to the present appeal. A general statement of the facts and points in controversy is contained in the opinion. (144 Cal. 677, [78 P. 260].) We are here concerned only with the points presented by the intervener upon its appeal.
In its complaint in intervention the city of Sacramento alleged that it was the owner in fee of the strip of land one hundred and sixty-five feet in width, constituting the levee in controversy, and upon this allegation issue was taken by the plaintiff. The court found and adjudged that the city *Page 219 has an easement for its levee over and across the said strip of land, including the entire levee as now existing, with the privilege of entering on said land to repair the levee, and of taking earth for that purpose from said land at any point within seventy feet of the middle line of the levee, but not to interfere with the buildings of plaintiff or with his occupancy of the land, except so far as may be necessary for the protection and maintenance of the levee, and that the railroad track was maintained upon the levee for its protection. Counsel for intervener in their brief say that the easement as described in the findings was curtailed in the judgment. They do not, however, point out in what particular it was curtailed, and upon examination we fail to perceive wherein the description in the judgment is substantially different from that in the findings.
The only point argued by the intervener on its appeal from the judgment is that upon the evidence the court should have adjudged that the city was the owner of the fee in the strip of land embraced in the levee, instead of a mere easement therein for levee purposes. It is claimed, although, as we think, not seriously, that the evidence shows that the city has acquired title to the fee by adverse claim and possession. The evidence is of such a character, however, that we cannot disturb the finding on this proposition, but must hold that it is sufficiently supported on that point.
The principal contention that the city owns the fee is made upon the theory that the condemnation proceedings under the act of 1862 vested in the city the fee simple. There is another ground upon which the right to the fee appears to be based, although it does not seem to be clearly stated in the brief. It is that the board of swamp-land commissioners, in charge of the reclamation district in which the levee in controversy is situated, constructed the levee in question under the authority given in section 16 of the act of May 13, 1861, (Stats. 1861, p. 358, c. 352,) and that it became the property of the city in fee by virtue of the provisions of that section and of section 8 of the act of April 9, 1862, (Stats. 1862, p. 153, c. 158,) and that this title is independent of the effect of the condemnation proceedings. The objection that the act of 1862 gave no power to the city levee commissioners *Page 220 to condemn lands outside of the city limits, and that the proceedings in condemnation were void because of uncertainty in the description of the land taken, and by reason of want of notice to the owners, may be dismissed from our consideration. For the purposes of the case, we may assume that the proceedings were valid, and that the authority of the levee commissioners to institute the proceedings cannot now be questioned. Conceding all this, we think that the evidence, taken in connection with the law bearing upon the proceedings, shows that the city obtained nothing more than an easement for the construction, maintenance, and repair of the levee.
There can be no doubt that it was within the power of the state to provide by statute that the fee should be taken for that purpose. The rule is, however, and the appellant practically concedes it, that in all cases where property is taken for public use, and an easement is sufficient for the purpose of the use, the fee will not be deemed to be appropriated in any case, unless it is so stated expressly or by necessary implication, either in the statute or in the judgment of condemnation. The law does not favor the taking of a fee when it is not necessary to the use. The fee is not necessary for the purpose of constructing, maintaining, and repairing a levee intended to keep out flood waters. It is well known that such floods occur only at rare intervals, usually not more than once in a year, and lasting only for a few days, or a few weeks at most, and in some years not occurring at all. During all the intervening periods such a levee serves no public purpose whatever. Once it is constructed, its surface can be used by the owner of the fee during the greater part of each season for many purposes, and the grasses and vegetation grown thereon may be appropriated by him without in any respect affecting or impairing the use or efficiency of the premises as a levee. The two uses are not wholly inconsistent; hence, so far as they are consistent, they may exist together and be vested in different persons. The owner of the fee will still have a proprietary interest in all the space above and below the levee, and may use the same as he sees fit, provided such use does not impair the constructions constituting the easement nor interfere with the use of *Page 221 the easement. It is clear, therefore, that the fee was not necessary to the use, although it may be conceded that the legislature might have so declared.
It may be granted that where the statute in terms provides for the condemnation of the "land" or of "lands" for the public uses and purposes, or where any equivalent term is used, it will usually be construed to authorize the taking of the fee. We search the statutes in vain for any language which expressly or by necessary implication gives authority to take the fee for the levee in question. Section 16 of the act of 1861 aforesaid, relating to the reclamation of swamp and overflowed land, provides that if in the work of reclamation it is found necessary to construct levees, trenches, or other works on lands other than swamp and overflowed lands, the board of swamp-land commissioners "shall have power to enter upon and take possession of so much of said land as may be necessary for said work of reclamation, if the same be private property, and, if the rights and privileges necessary be not granted by the owners," that appraisers may be appointed to assess the damages and injuries to such lands arising from the taking. This manifestly contemplates only such an entry and possession as may be necessary for the purpose intended; that is, to construct, maintain, and keep in repair the levee for the purposes of reclamation. It does not authorize the commissioners to take the land, but merely to enter upon and take possession thereof; and, if the right and privilege to do so are not given by the owners, then such right and privilege are to be taken, and payment made of the damages arising therefrom. Keeping in view the character of the public use for which the property was to be taken, it is manifest that this language should not be construed to direct the taking of the fee simple. Section 8 of the act of 1862 aforesaid, relating to the levee in question, provides that when the levee was finished by the swamp-land commissioners, and the portion thereafter to be controlled by the city of Sacramento ascertained, the commissioners should then deliver such portion to the city levee commissioners, and thereupon "the title to said levees and their appurtenances shall vest absolutely in the city of Sacramento." This does, indeed, declare that the title to *Page 222 the thing described shall be absolute in the city; but the thing itself is not the land in fee simple on which the levee stands, but only the levee. This plainly implies that an easement, and not the fee, was intended to be given, — that is to say, the thing erected on the land and devoted to public use, with all the appurtenances necessary for its effectual use and maintenance.
Nor does the judgment in the condemnation proceedings carry a greater estate than a mere easement in the property. Section 6 (p. 152) of the act provides that the city levee commissioners may enter upon and take possession of any land that may be necessary for the levee within the city, or any land within the county, although outside the city, that may be necessary or proper to furnish materials for its construction, and may have the same condemned for the public use in accordance with section 16 of the act of 1861. This manifestly does not empower the levee commissioners to condemn lands outside of the city for the purpose of erecting a levee thereon, but gives the right to condemn lands outside of the city solely for the purpose of taking therefrom materials with which to construct the levee. The land in question is outside of the city of Sacramento. Conceding, however, that this question cannot now be entertained, it is clear that the language of the section does not give the city levee commissioners any power either to take or to condemn a fee-simple title to land within or without the city for the purposes of constructing a levee thereon. Moreover, the petition upon which the condemnation proceedings were founded does not ask for the taking of a fee. It alleges that the city levee commissioners "have found it necessary to enter upon and occupy and use for the purpose of constructing levees thereon" the lands therein described, and it prays that such orders may be made as will entitle the levee commissioners "to enter upon, take, use, and appropriate for levee purposes" the lands described. This use demands an easement, and nothing more. There is nothing in the report of the appraisers to indicate whether the appraisement is of an estate in fee or of a mere easement. It merely states the compensation proper to be made to the owners of the land condemned for levee purposes. The judgment confirms *Page 223 the report of the appraisers, without stating anything concerning the nature of the estate to be taken, or for which the damages are allowed. Under neither of the proceedings which appear to have been taken in this case can the city claim a fee-simple title.
The easement, however, gives the city a right to erect and maintain on the levee all buildings or other constructions that may be reasonably necessary or convenient for the use to which it is devoted, or which are adapted to preserve it in good condition for that use. The right to do these things, however, does not make it necessary to hold that the estate taken is a fee simple. This right merely adds to the burden of the easement. Whether or not the maintenance and operation of a railroad upon the levee is an undue interference with the rights of the owner of the fee, or constitutes a substantial addition to the burden on his title, is a question not arising on this appeal. The intervener does not complain of that part of the judgment which appears to recognize the right of the railroad to maintain its track upon the levee, but seems to acquiesce in that use of the levee, and makes common cause with the defendants against the plaintiff. As between the plaintiff and the defendants a new trial has been granted, and the right to maintain the railroad track as between those parties is not involved in this appeal.
The judgment is affirmed so far as it may affect the rights of the intervener and the plaintiff.
Van Dyke, J., Henshaw, J., Angellotti, J., and Lorigan, J., concurred.