¶1concurring.—I concur in the judgment. I concur in Mr. Justice Temple’s construction of the act of March 12, 1885, and in his conclusion that the act did not deprive the state of its right to rely upon any defense to this action which it had as the state, other than the right to claim that the state could not be sued, and that the act does not purport to do so.
¶2I decline to express any opinion as to whether the plaintiff’s property was “damaged.” (Const. 1879, art. 1, sec. 14.) The property of the plaintiffs, if “taken” at all, was taken prior to the adoption of the present ■constitution.
¶3I adhere to the views expressed herein in Department One.
¶4The question whether the damages caused by the work done under the direction of the commissioners, appointed by the act of 1862, was a taking of private property, within the meaning of the provision of the former constitution prohibiting a taking of private property without compensation, was fully decided, adversely to such contention, by the highest judicial tribunal under that constitution. The questions involved in the judgment in Green v. Swift, 47 Cal. 536, must be considered as closed upon the doctrine of stare decisis.
¶5dissenting.—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.)
¶6*41The following is the opinion of Department One above referred to by Mr. Justice McKinstry, rendered on the 14th of July, 1886:—
¶7The 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.)
¶8The 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.
¶9Assuming 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.
¶10It 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.
¶11And 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. SwiftBut 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.
¶12If 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.
¶13We have held heretofore that, under such circumstances, we must consider a question stare decisis.
¶14Judgment affirmed.