Ingram v. City of Gridley

• Decision Date: 06 December 1950
• Citation: 100 Cal.App.2d 815,224 P.2d 798
• Court: California Court of Appeals Court of Appeals
• Parties: INGRAM v. CITY OF GRIDLEY et al. Civ. 7775.

Page 798

224 P.2d 798

100 Cal.App.2d 815

INGRAM v. CITY OF GRIDLEY et al.

Civ. 7775.

District Court of Appeal, Third District, California.

Dec. 6, 1950.

Rehearing Denied Jan. 4, 1951.

Hearing Denied Feb. 1, 1951.

Seth Millington, Gridley E. K. Voorhees, San Francisco, for appellants.

Ware & Ware, Chico, Charles L. King, Gridley, for respondents.

VAN DYKE, Justice.

Plaintiffs, husband and wife, owners of an eighty-five acre dairy ranch situated about one mile south of the City of Gridley, commenced this action to abate an alleged nuisance cause by waste material and sewage discharged into Morrison Slough which flows through plaintiffs' property. They also sought damages in the sum of $2,500. The cause as to all issues was heard by the court without a jury. The judgment declared that a nuisance exists and has existed and the court retained jurisdiction as to the abatement feature in order to allow the defendants a reasonable time within which to abate the nuisance. Plaintiffs were awarded damages in the sum of $2,500 as prayed for. All three defendants appeal from the whole judgment.

Morrison Slough was found by the court to be a natural watercourse. In 1921 appellant Reclamation District was organized to drain lands within its boundaries and in 1922 a rectified channel of Morrison Slough was made the main drainage lateral for the district. Plaintiffs acquired their land in 1944 and the nuisance found to exist had its inception long before. In 1912 the City of Gridley, a city of the sixth class, organized under general municipa law, constructed a sewage disposal plant and after rectification the sewage found its end disposition in a gravel pit just outside the city limits. Appellant Libby, McNeill & Libby, a corporation, constructed in 1920 a large plant for the canning and processing of fruits and vegetables. The industrial and domestic sewage from this plant was also deposited in the same gravel pit. In 1922 the district tapped the pit by extending a lateral from Morrison Slough. Since that date sewage has gone down the slough. The court found that the draining of this sewage down the slough contaminates the water therein and renders the same stale, stagnant, putrid, malodorous, offensive and poisonous and that there arose and spread over the plaintiffs' lands noxious, offensive, malodorous and putrid odors greatly offensive to the senses, impairing the use and the enjoyment of plaintiffs' property and polluting the soil along the lateral. The court further found that the offensive and foul-smelling air enters buildings and dwellings on plaintiffs' land, is injurious to the health of both persons and animals thereon and that the stagnant water in the lateral is a breeding place for large numbers of mosquitoes. The court found the nuisance to be a continuing one and that the situation created had become progressively worse as time went by, due in major part, so far as the increase of the nuisance was concerned, to the growth of the City of Gridley. The appellants do not question the court's findings that a nuisance exists and has existed and that as the city grows it becomes worse.

Although appealing from the whole of the judgment, the appellant city states in its briefs that its appeal is concerned only with the monetary judgment. As to this it contends, first, that the award must fall for failure of the plaintiffs to file with the city a claim for the damages they sought. The only statutory provisions respecting the filing of such claims cited and relied upon by the city are Sections 1980, 1981 and 1982 of the Government Code, and these sections do not require the filing of such a claim. It was held in Ansell v. City of San Diego, 35 Cal.2d 76, 216 P.2d 455, that these sections prescribe rules of procedure for the enforcement of claims against officers and that their purpose was not to lay out procedure for the enforcement of claims against cites. See also Veriddo v. Renaud, 35 Cal.2d 263, 217 P.2d 647; Glenn v. City of Los Angeles, 96 Cal.App.2d 86, 214 P.2d 533; Dillard v. Kern County, 23 Cal.2d 271, 144 P.2d 365, 150 A.L.R. 1048; Redlands High School Dist. v. Superior Court of San Bernardino County, 20 Cal.2d 348, 125 P.2d 490. It has also been held that a charter requirement that claims against a city be filed is not applicable to a suit to abate a nuisance and that failure to allege the presentation of a claim does not prevent the recovery of damages as incidental to the injunction to abate such nuisance. Los Angeles Brick & Clay Products Co. v. City of Los Angeles, 60 Cal.App.2d 478, 141 P.2d 46. It is not claimed that the City of Gridley has any ordinance requiring the filing of claims.

The appellant Reclamation District contends that the entire judgment should be reversed as to it for insufficiency of evidence to support finding or judgment that it in any way contributes to the nuisance. We think this contention cannot be sustained. The gravel pit into which the other appellants had been discharging sewage prior to the organization of the appellant District did not flow down Morrison Slough until the District, in constructing its drains, tapped the pit. It has moved down the slough ever since that time. The evidence shows that when it became apparent that sewage in objectionable quantity and condition was moving down the district's laterial, the district, finding itself burdened with the necessity of cleaning its lateral by reason of the presence of the sewage, required of the city and the corporation that they bear a part of the cost and this was done for a number of years. With respect to the interrelation between the three appellants in respect of the maintenance and creation of the nuisance found, the court in its findings of fact found that 'annually for many years last past said Reclamation District No. 2056 and the City of Gridley acting through its Trustees and defendant, Libby McNeill & Libby have entered into a contract wherein and whereby the said Reclamation District No. 2056 for a consideration allows the said City of Gridley and Libby McNeill & Libby to discharge its sewerage and waste matter into said lateral of said Reclamation District as aforesaid; that the said Reclamation District No. 2056, has accepted compensation from the defendants, City of Gridley and the defendant, Libby McNeill & Libby under an agreement to permit the said last named defendants to discharge their sewerage and waste into said laterial.' The foregoing findings support the judgment that appellant district has joined in the creation and maintenance of the nuisance and is liable for its abatement and for damages. We think the findings in turn are supported by the evidence. For instance, the minutes of the board of trustees of the district, under date of January 21, 1935, recited that an agreement had been reached between the trustees and the city council of the City of Gridley that the city should pay the district 'as and for the flowage right for the disposal of sewage from the City of Gridley a sum equal to one-third of the average annual cost of the maintenance of the main ditch of Reclamation District No. 2056 from its point of interception with the City of Gridley to a point on the south line of Section 13, Township 17 North, Range 2 East.' It was thereupon resolved that the secretary of the district be directed to submit a claim to the city for the sum of $500, the agreed amount 'for the services performed by Reclamation District No. 2056, for said City of Gridley for the calendar year of 1934.' It appeared that on at least a number of occasions like claims were presented to the city. As hereinbefore stated, the district had tapped the gravel pit into which the sewage had theretofore been spilled and into which it continued to be spilled, thus permitting the sewage to pass down the channel of the old watercourse, which had become a main lateral drain maintained and operated by the district. It is true that the district itself, as claimed by it, contributed no material that would add to the nuisance-creating sewage, but the effect of its acts as related was to make it a joint tort feasor with the other appellants in the creation and the continuance of the nuisance.

Appellant Libby, McNeill and Libby contend that by reason of rectification equipment and processes used by them that they were not sending into the district lateral any offensive matter. Upon this point the evidence was conflicting and we must accept the factual finding of the court that the corporation's claim in this respect is not true.

All of the appellants contend that the award of damages was erroneous. In discussing these contentions we think it appropriate to discuss generally the subject of damages allowable in a suit for the abatement of a continuing nuisance. In so far as the damages consisted of injury to the real property of respondents, it is given as a general rule in 39 American Jurisprudence 395, et seq., that: 'The measure of damages in cases of injury to real property from a nuisance is different according as the nuisance is temporary or permanent. If the nuisance arises from the manner of operation, damages should be only for the injury caused by such operation. The true measure of damages for a nuisance is compensation for the loss or injury sustained, which is usually held to be held depreciation in the market or usable or rental value of the property, together with such special damages as may be proved. In estimating damages, the law will nto undertake to balance conveniences or estimate the difference between the injuries sustained by the plaintiff and loss which may result to the defendant from having his business declared a nuisance.'

It is also stated:

'Damages for permanent injury to land may be recovered even though the continuation of the nuisance is abated.

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'As a general rule, where the injury to real property caused by a nuisance is of a permanent character, the damages are...