Can a plaintiff bring an inverse condemnation action against a governmental entity for damage caused to private property caused by a governmental action?

Article I, section 19 of the California Constitution, permits private property to be "taken or damaged for public use only when just compensation ... has first been paid to, or into court for, the owner." When there is incidental damage to private property caused by governmental action, but the governmental entity has not reimbursed the owner, a suit in "inverse condemnation" may be brought to recover monetary damages for any "special injury," i.e., one not shared in common by the general public. When adopted as section 14 of article I of the 1879 Constitution this provision was construed as providing a broader right of recovery against a governmental entity for damage to private property than that available in an action against a private party. It was not necessary to prove negligence or the commission of another tort by the government. (Reardon v. City & County of San Francisco (1885) 66 Cal. 492, 505, 6 P. 317.)

In the arcane world of water law, however, the theory prevailed that if a private party had the right to inflict the damage, the government could assert the same immunity. Thus, notwithstanding article I, section 14 (now section 19), there could be no recovery against a governmental agency for damage caused by draining surface water onto adjacent property or into a natural watercourse in circumstances in which a private property owner had the right to do so. If the injury was damnum absque injuria as between private parties, [7 Cal.4th 363] it was so when the government caused it. (San Gabriel V.C. Club v. Los Angeles, supra, 182 Cal. 392, 406, 188 P. 554.)

The injury was also considered damnum absque injuria if the governmental entity was acting in the proper exercise of its police powers, as when it acted to prevent future flood damage. "Where the police power is legitimately exercised, uncompensated submission is exacted of the property owner if his property be either damaged, taken, or destroyed. In the exercise of the power of eminent domain, compensated obedience for the taking or damaging of his property is the owner's constitutional right. [p] ... But while it is unquestionably true that the addition of the word 'damaged' to our constitutional law governing the exercise of the right of eminent domain gives in many instances a right to compensation which did not formerly exist, it did not, touching the exercise of the police power, give a right of action for damages which theretofore were damnum absque injuria." (Gray v. Reclamation District No. 1500 (1917) 174 Cal. 622, 640-641, 163 P. 1024.)