In Foley Investments, L.P. v. Alisal Water Corp., published December 9, 2021, the Fourth District Court of Appeal, Division 1 affirmed judgment in favor of a water utility entered after a bench trial. The utility's usual practice is to run a service line from one of the utility's mains to a meter at the property's boundary, from which point the property owner is responsible for running service lines tot he property. Because the fire marshal required the owner/developer of an apartment complex to install two fire hydrants on interior portions of the property, the developer and utility entered into a contract under which the utility would install a main on the complex's property. The utility did not take the land for the main by eminent domain; instead, the developer granted the utility an easement. The main terminated at a gate valve on the private property. Opening one side of the gate valve would cause water to flow through the utility's entire system. But for 32 years, that valve was not opened. Because the fire hydrants were located inside the property, they would not be used to fight fires in neighboring properties. The utility billed only the property owner, not the 400 tenants on the property. The main ruptured, causing extensive damage to the apartments. The owner sued the utility for inverse condemnation and various tort claims. The trial court found that the utility could not be held liable for inverse condemnation, because the main was not a "public use." It then held that the utility was immune from tort liability under Utility Code section 774's fire protection immunity.
The appellate court agreed that under the circumstances, the main was a private use, rather than a public use. The main was installed by contract and easement, not eminent domain, for the exclusive use of the apartment complex. That the gate valve could be opened and used for the rest of the utility's system was not sufficient to transform it into a public use, in light of the fact that it had not been opened in 32 years. Further, the main was installed to supply fire protection equipment--the fire hydrants--and so was covered by the fire protection immunity. The fact that the main was also used for other purposes did not eliminate the immunity; other immunity statutes have been applied to property that was used for both immunized and non-immunized purposes.
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