BILL NUMBER: AB 1104 CHAPTERED 08/04/03 CHAPTER 182 FILED WITH SECRETARY OF STATE AUGUST 4, 2003 APPROVED BY GOVERNOR AUGUST 3, 2003 PASSED THE ASSEMBLY JULY 21, 2003 PASSED THE SENATE JULY 17, 2003 AMENDED IN SENATE JUNE 11, 2003 AMENDED IN ASSEMBLY APRIL 10, 2003 INTRODUCED BY Assembly Member Laird FEBRUARY 20, 2003 An act to amend Sections 722, 723, 727, 1483, 1484, 1485, 1487, and 1488 of, and to add Section 1488.5 to, the Streets and Highways Code, relating to highways. LEGISLATIVE COUNSEL'S DIGEST AB 1104, Laird. Highways. Existing law authorizes the Department of Transportation to remove an encroachment on a state highway if the owner fails to comply with a notice by the department to do so, and authorizes the department to recover in a legal action expenses for removal, costs and expenses of suit, and $10 for each day the encroachment remains after the expiration of 5 days from the service of a notice or demand to remove the encroachment. Existing law also authorizes the department to commence an action to abate an encroachment as a public nuisance if a person refuses to remove or permit the removal of the encroachment and, if a judgment is recovered by the department, to recover $10 for each day the encroachment remains after the department serves a notice to remove the encroachment. This bill would increase the amount that the department may recover in these actions to $350 each day. Existing law makes it unlawful for a person to drain water or permit water to be drained from his lands onto a state highway resulting in damage to the highway, or to obstruct any natural watercourse. Existing law requires a person who violates this provision, upon being given notice by the department, to discontinue immediately the drainage or obstruction and to repair the highway. If the person will not make the repairs or perform the necessary work, existing law authorizes the department to do so and to recover in a legal action the amount of the repairs and work and an additional $10 for each day the drainage or obstruction continues after the service of the notice. This bill would increase the amount that the department may recover in these actions to $350 each day. Existing law authorizes a county road commissioner to recover $10 for each day certain encroachments or nuisances remain on county highways after notice is provided. This bill would increase the amount that the county road commissioner may recover in these actions to $350 each day. Existing law makes a person who obstructs or injures a county highway with ditches or dams, diverts any watercourse onto the highway, or drains water onto the highway liable for a penalty of $10 each day the obstruction or injury remains. This bill would require the person, upon notice from the county road commissioner, to cease and discontinue the obstruction and repair the highway at his or her own expense. This bill would also increase the amount that the county road commissioner may recover in these actions to $350 each day the obstruction or injury remains. Existing law requires a person who, in storing or distributing water, permits water to overflow or by seepage to saturate the highway, thus injuring the highway, upon notice, to repair the damage. Existing law requires the county road commissioner, if the repair is not made within a reasonable time, to make the repairs and recover the expense from the person in a legal action. This bill would require the person, upon notice, to cease the overflow or seepage and would make the person, if he or she failed to comply with the notice, liable for $350 for each day that the overflow continues. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 722 of the Streets and Highways Code is amended to read: 722. The department may remove an encroachment on the failure of the owner to comply with a notice or demand of the department under the provisions of Section 673, Section 680, or Section 720, and shall have an action to recover the expense of the removal, costs, and expenses of suit and, in addition thereto, the sum of three hundred fifty dollars ($350) for each day the encroachment remains after the expiration of five days from the service of the notice or the demand. SEC. 2. Section 723 of the Streets and Highways Code is amended to read: 723. If the owner, occupant, or person in possession of the encroachment, or person causing or suffering the encroachment to exist, or the agent of any of them, disputes or denies the existence of the encroachment, or refuses to remove or permit the removal of the encroachment, the department, in the name of the people of the State of California, may commence, in a court of competent jurisdiction, an action to abate the encroachment as a public nuisance. If judgment is recovered by the department, it may, in addition to having the encroachment adjudged a nuisance and abated, recover three hundred fifty dollars ($350) for each day the encroachment remains after the service of the notice in the manner provided in Section 720, and may also recover its costs and expenses incurred in the action. SEC. 3. Section 727 of the Streets and Highways Code is amended to read: 727. If a person is thus notified, and fails, neglects, or refuses to cease and discontinue the diversion, to discontinue and prevent the drainage, seepage, or overflow of the waters, or to make the repairs required by Section 726, the department may make the repairs and may also perform work as is necessary to prevent the further drainage, diversion, overflow, or seepage of the waters. The department, in the name of the people of the State of California, may recover in an action at law, in a court of competent jurisdiction, the amount expended for the repairs and work and, in addition thereto, the sum of three hundred fifty dollars ($350) for each day the drainage, diversion, overflow or seepage of waters is permitted to continue after the service of the notice in the manner required by Section 726, together with the costs and expenses incurred in the action. SEC. 4. Section 1483 of the Streets and Highways Code is amended to read: 1483. If the encroachment is not removed, or its removal not commenced and diligently prosecuted, prior to the expiration of 10 days from and after the service or posting of the notice, the person causing, owning, or controlling the encroachment forfeits three hundred fifty dollars ($350) for each day the encroachment continues unremoved. The road commissioner shall immediately remove an encroachment that effectually obstructs and prevents the use of the highway by vehicles. SEC. 5. Section 1484 of the Streets and Highways Code is amended to read: 1484. If the encroachment is denied, and the owner or occupant of the land, or the person causing, owning or controlling the alleged encroachment refuses either to remove it or permit its removal, the road commissioner shall commence, in a court of competent jurisdiction, an action in the name of the county to abate the encroachment as a nuisance. If the commissioner recovers judgment he or she may, in addition to having the nuisance abated, recover a penalty of three hundred fifty dollars ($350) for each day the nuisance remains after service or posting of notice, and also the costs in the action, as provided in Section 1496. SEC. 6. Section 1485 of the Streets and Highways Code is amended to read: 1485. If the encroachment is not denied, but is not removed within five days from and after service or posting of the notice, the road commissioner may remove the encroachment at the expense of the owner or occupant of the land, or the person causing, owning or controlling the encroachment. The commissioner may recover from the owner, occupant, or person, in an action brought in the name of the county for that purpose, the commissioner's court costs and the expense of removal and also a penalty of three hundred fifty dollars ($350) for each day the encroachment remained after service or posting of the notice, as provided in Section 1496. SEC. 7. Section 1487 of the Streets and Highways Code is amended to read: 1487. A person who, by means of ditches or dams, obstructs or injures any county highway, diverts any watercourse into any county highway, or drains water from his or her land upon any county highway, to the injury of the highway, shall, upon notice by the road commissioner, immediately cease and discontinue the obstruction and injury, and shall repair the highway at his or her own expense. He or she is liable to a penalty of three hundred fifty dollars ($350) for each day the obstruction or injury remains, recoverable as provided in Section 1496, and is also guilty of a misdemeanor. SEC. 8. Section 1488 of the Streets and Highways Code is amended to read: 1488. (a) A person who, in storing or distributing water for any purpose, permits water to overflow or by seepage to saturate a county highway, to the injury of the highway, shall, upon notice by the road commissioner, immediately cease the overflow or seepage and repair the injury caused by the overflow or seepage. (b) The person permitting the overflow or seepage is liable to a penalty of three hundred fifty dollars ($350) for each day the overflow or seepage continues, recoverable as provided in Section 1496. (c) If the repair required by subdivision (a) is not made by the person within a reasonable time, as determined by the road commissioner, the road commissioner may make those repairs and recover the expense of the repairs from the person in an action at law brought in the name of the county. SEC. 9. Section 1488.5 is added to the Streets and Highways Code, to read: 1488.5. The notice referred to in Sections 1487 and 1488 shall be given in the same manner as provided in Section 1482, except that the action it requires shall be taken immediately.