Spaulding v. Cameron

• Citation: 239 P.2d 625,38 Cal.2d 265
• Court: United States State Supreme Court (California)
• Decision Date: 18 January 1952
• Parties: SPAULDING v. CAMERON et al. L. A. 21537.

Page 625

239 P.2d 625

38 Cal.2d 265

SPAULDING v. CAMERON et al.

L. A. 21537.

Supreme Court of California, in Bank.

Jan. 18, 1952.

As Modified on Denial of Rehearing Feb. 14, 1952.

Martin H. Easton, Los Angeles (James A. Gardner, Bakersfield, Overton, Lyman, Prince & Vermille, and Donald H. Ford, all of Los Angeles, of counsel), for appellant.

Samuel A. Rosenthal, Los Angeles, Prinzmetal & Grant, Beverly Hills, (Leonard G. Ratner, Los Angeles, of counsel), for respondent.

TRAYNOR, Justice.

Plaintiff owns and occupies a house on the east side of San Ysidro Drive, Los Angeles, at the bottom of Pea Vine Canyon. Defendant owns approximately 30 acres of land on the west slope of the canyon. In the summer and fall of 1946 defendant undertook leveling operations on his property. These operations consisted of removing the tops of three knolls and casting the earth over the sides of adjoining canyons, forming fills. Approximately one-fifth of the earth was pushed over the west side of the Pea Vine Canyon northwest of plaintiff's house. In November of 1946 as a result of heavy rains large quantities of mud washed out of defendant's fill, flowed down the canyon surrounded plaintiff's house and inundated the garages located on the ground level. Plaintiff brought this action for damages and for injunctive relief. The trial court found that plaintiff's property had suffered physical damage in the amount of $2,732.29, and that its market value had been reduced in the amount of $24,000 because of the continuing threat of future inundations of mud. It entered judgment for damages for both items and also ordered defendant either to remove the fill or to 'place protective structures around * * * (it) in such manner that the property of the plaintiff will not be endangered or threatened by the existence of such deposits of loose dirt.' Defendant appeals.

It is unnecessary to decide whether in the absence of negligence defendant would be liable for creating on his property an earth fill that presented a continuing threat of injury to the property below. There is evidence that in making the fill defendant did not prepare the natural hillside to hold the dirt he deposited thereon, nor did he make use of available means to compact the earth as it was laid down to prevent it from washing away. Experts testified that proper procedures for making stable fills were not employed. Moreover, defendant was warned during the course of the leveling operations of the hazard being created to the property below. Accordingly, the evidence is sufficient to support the finding that the inundation of plaintiff's property was caused by defendant's negligence in constructing the fill. There is also sufficient evidence to support the finding that the fill constitutes a threat of repetitions of such inundations and will, unless corrected, compel plaintiff to abandon her residence.

On the basis of the foregoing findings it is clear that defendant's fill constitutes a nuisance. Civil Code, § 3479; Katenkamp v. Union Realty Co., 6 Cal.2d 765, 774, 776, 59 P.2d 473; McIvor v. Mercer-Fraser Co., 76 Cal.App.2d 247, 254, 172 P.2d 758. Defendant contends, however, that the trial court erred in allowing damages for the decline in market value of plaintiff's property in addition to damages for the physical injury, particularly in view of the fact that it ordered the abatement of the nuisance, the continuation of which is the cause of the decrease in the market value. Plaintiff, on the other hand, contends that there is in reality no way in which defendant can abate the nuisance and that it was therefore proper for the trial court to award damages caused by the continuing threat of future injury.

In early decisions of this court it was held that it should not be presumed that a nuisance would continue, and damages were not allowed for a decrease in market value caused by the existence of the nuisance but were limited to the actual physical injury suffered before the commencement of the action. Hopkins v. Western Pacific R. R. Co., 50 Cal. 190, 194; Severy v. Central Pacific R. R. Co., 51 Cal. 194, 197; see also, Coats v. Atchison, etc., Ry. Co., 1 Cal.App. 441, 444-445, 82 P. 640. The remedy for a continuing nuisance was either a suit for injunctive relief or successive actions for damages as new injuries occurred. Situations arose, however, where injunctive relief was not appropriate or where successive actions were undesirable either to the plaintiff or the defendant or both. Accordingly, it was recognized that some types of nuisances should be considered permanent, and in such cases recovery of past and anticipated future damages were allowed in one action. Eachus v. Los Angeles, etc., Ry. Co., 103 Cal. 614, 622, 37 P. 750; Williams v. Southern Pacific R. R. Co., 150 Cal. 624, 626-628, 89 P. 599; Rankin v. DeBare, 205 Cal. 639, 641, 271 P. 1050; see, McCormick on Damages, § 127, pp. 504-505.

The clearest case of a permanent nuisance or trespass is the one where the offending structure or condition is maintained as a necessary part of the operations of a public utility. Since such conditions are ordinarily of indefinite duration and since the utility by making compensation is entitled to continue them, it is appropriate that only one action should be allowed to recover for all the damages inflicted. It would be unfair to the utility to subject it to successive suits and unfair to the injured party if he were not allowed to recover all of his probable damages at once. See, McCormick, Damages for Anticipated Injury to Land, 37 Harv.L.Rev. 574, 584-585.

A more difficult problem is presented, however, if the defendant is not privileged to continue the nuisance or trespass but its abatement is impractical or the plaintiff is willing that it continue if he can secure full compensation for both past and anticipated future injuries. To attempt categorically to classify such a nuisance as either permanent or not may lead to serious injustice to one or the other of the parties. Thus, if the plaintiff assumes it is not permanent and sues only for past damages, he may be met with the plea of res judicata in a later action for additional injury if the court then decides the nuisance was permanent in character from its inception. See, Slater v. Shell Oil Co., 58 Cal.App.2d 864, 870, 137 P.2d 713. Similarly, if the initial injury is slight and plaintiff delays suit until he has suffered substantial damage and the court then determines that the nuisance was permanent, the defendant may be able to raise the defense that the statute of limitations ran from the time of the initial injury. See, Phillips v. City of Pasadena, 27 Cal.2d 104, 107-108, 162 P.2d 625. On the other hand, if the defendant is willing and able to abate the nuisance, it is unfair to award damages on the theory that it will continue. See, Meek v. DeLatour, 2 Cal.App. 261, 265, 83 P. 300; cf., Collier v. Merced Irr. Dist., 213 Cal. 554, 566, 2 P.2d 790; Colorado Power Co. v. Pacific Gas & Electric Co., 218 Cal. 559, 567, 24 P.2d 495.

Because of these difficulties it has been recognized that in doubtful cases the plaintiff should have an election to treat the nuisance as either permanent or not. Kafka v. Bozio, 191 Cal. 746, 752, 218 P. 753, 29 A.L.R. 833; see, Restatement, Torts, § 930; McCormick on Damages, § 127, p. 511 et seq.; 4 Sutherland on Damages (4th ed.) § 1046, p. 3874. If the defendant is not privileged to continue the nuisance and is able to abate it, he cannot complain if the plaintiff elects to bring sucessive actions as damages accrue until abatement takes place. Phillips v. City of Pasadena, 27 Cal.2d 104, 107-108, 162 P.2d 625; Strong v. Sullivan, 180 Cal. 331, 334-335, 181 P. 59, 4 AL.R. 343. On the other hand, if it appears improbable as a practical matter that the nuisance can or will be abated, the plaintiff should not be left to the troublesome remedy of successive actions. See, Restatement, Torts, § 930, comment c; McCormick, Damages for Anticipated Injury to Land, 37 Harv.L. Rev. 574, 594-595.

The facts of the present case aptly illustrate the problem involved. As a result of the nuisance created by defendant, plaintiff's property suffered physical injury. There is also evidence that while the nuisance continues its rental value is impaired, an that if the nuisance is not abated its market value will continue to be substantially depressed. There is evidence that would support the conclusion that there is little or nothing defendant can do to abate the nuisance. On the assumption that this conclusion is correct, plaintiff contends that she is entitled to recover the full diminution in the market value caused by the probable continuation of the nuisance. On the other hand, defendant contends that he can and will abate the nuisance. There is evidence that would support the conclusion that corrective measures taken by defendant will prevent further flows of mud. Moreover, since defendant intends to make use of the top surface of the fill it is...