Bess v. Wise

• Decision Date: 28 July 1969
• Citation: Bess v. Wise, 79 Cal.Rptr. 611, 275 Cal.App.2d 158 (Cal. App. 1969)
• Court: California Court of Appeals
• Parties: Thomas L. BESS and Carol A. Bess, his wife, Plaintiffs, Respondents and Appellants, v. Elsie WISE et al., Defendants, Appellants and Respondents. Civ. 25819.

Page 611

79 Cal.Rptr. 611

275 Cal.App.2d 158

Thomas L. BESS and Carol A. Bess, his wife, Plaintiffs, Respondents and Appellants, v. Elsie WISE et al., Defendants, Appellants and Respondents.

Civ. 25819.

Court of Appeal, First District, Division 4, California.

July 28, 1969.

Mahan, Dunn, Harland & Gromala, Fortuna, for appellants and cross-respondents.

Huber & Goodwin, by Norman C. Cissna, Eureka, for respondents and cross-appellants.

RATTIGAN, Associate Justice.

The tenants of land brought this action against the owners and lessors thereof, seeking declaratory relief relative to a sum of money collected by defendants from third parties after the land had been inundated in a flood. After a nonjury trial the court entered a judgment allocating two-thirds of the money to plaintiffs, one-third to defendants. Both groups appeal, each from that portion of the judgment which awarded money to the other.

The evidence generally showed as follows: At all relevant times defendants owned the John Hansen Ranch which lies along the Eel River in Humboldt County. In 1963, they leased a portion of it to plaintiffs for use as a dairy ranch. The written lease describes the leased premises as 'a portion * * * of the John Hansen Ranch * * * described as * * * That real property situated west and south of the railroad track to the edge or beginning of the riverbar * * *' It further states that 'This lease does not cover nor include * * * the riverbar, * * * (nor) * * * logs and timber thereon due to flooding of the Eel River * * * nor * * * the subsurface estate of said JOHN HANSEN RANCH * * *'

Paragraph 1 of the lease provides for plaintiffs' payment of rent according to a schedule of their dairy production on the leased premises. As pertinent, paragraph 7 states: 'In the event of a catastrophe of the same proportions as the 1955 flood in Humboldt County, there will be a moratorium on all payments for a period of one (1) year from the date of said catastrophe, all of said payments to be waived by * * * (defendants) * * * or, at the option of * * * (plaintiffs, they) * * * may declare the lease terminated with no further liability thereunder * * *'

In paragraph 4 defendants, as lessors, agreed 'to furnish the necessary materials to keep the outside * * * fences in good repair.' Paragraph 5 obligated them to repair buildings on the leased premises to the extent that 'extensive repairs' thereto were necessary 'following damage by the elements (forces of nature) (sic) or by an unavoidable accident.' In paragraph 8 plaintiffs, as lessees, agreed to permit defendants or their agents 'to enter onto the dairy ranch at any reasonable time for inspection.' In paragraph 15, plaintiffs agreed that the parties to any oil and gas lease executed to the 'subsurface estate' by defendants 'may enter upon the demised premises' and conduct therein activities associated with oil and gas production.

While plaintiffs were in possession of the leased premises in 1964, the Eel River overflowed under extreme flood conditions. The floodwaters covered the leased premises and the John Hansen Ranch generally, and swept large quantities of logs and wood debris upon both. The logs, which had been washed on the flood from upriver locations, damaged some of the improvements on the leased premises. Many of them were stranded when the floodwaters receded. Some were marked, and were thus idenifiable as the property of various logging and lumber firms (hereinafter the 'lumber companies'). Others were of unknown ownership.

Some of the stranded logs were lodged on a hayfield which was cultivated by plaintiffs and which, the parties agree, was part of the leased premises. The others were left in an area of unimproved bottomland which lay between the hayfield and the normal channel of the river. The bottomland was partially overgrown by willows and was not cultivated. Concerning the extent to which it was 'riverbar' (one of the subjects in dispute in this action), the trial court heard conflicting testimony from several witnesses.

Plaintiffs elected to and did remain in possession of the leased premises after the flood, and received the one-year rental moratorium permitted them in paragraph 7 of the lease. Pursuant to paragraph 5 thereof, defendants spent approximately $900 to repair log damage to a feed barn on the leased premises. It also appears that, pursuant to paragraph 5 of the lease, they provided materials to repair fences damaged by floating logs; this was not clearly shown, and the amount of their expenditure for this purpose was not proved. The hayfield was extensively damaged, principally by heavy equipment used in the log-removal operation hereinafter mentioned. There was no evidence that any damage was caused by floating logs, or by the removal of stranded logs, on the bottomland area between the hayfield and the normal river channel. Plaintiffs received approximately $5,000 in flood-assistance payments, from the federal government, for their expenses in clearing and rehabilitating the leased premises.

Plaintiffs intended to claim all the logs which were stranded on the hayfield and on the adjacent bottomland, but defendants informed them that their lease would be terminated if they did so. Thereafter defendants unilaterally negotiated with the lumber companies concerning (1) the payment of damages caused on the John Hansen Ranch by the lumber companies' logs, and (2) the lumber companies' purchase of the unmarked logs stranded there. In consequence, the lumber companies paid defendants $10,819.51 for log damage and $7,538.21 as the purchase price of unmarked logs. With defendants' consent (but not plaintiffs'), the lumber companies subsequently entered the hayfield and the adjacent bottomland, and removed stranded logs from both areas; it was during this activity that the soil in the hayfield was damaged by compaction.

Although the details of defendants' trans-action with the lumber companies were not shown in the evidence, the two amounts paid to defendants, and the respective purposes thereof, are not disputed. It is also undisputed that the log-damage payment was made pursuant to Public Resources Code section 4702. ¹ The parties stipulated at pretrial conference that defendants received and held the full $18,357.72 'in trust.'

Upon this evidence, and as pertinent here, he trial court made the following findings of fact: '* * * 3. Defendants received and accepted as sums payable from the owners of certain logs * * * the sum of $10,819.51 as and for damages as to the Plaintiffs and Defendants as occupants and owners of the property by reason of the logs and lumber coming upon the land and from its removal. 4. Defendants received and accepted as sums due from the sale of other non-identifiable logs the sum of $7,538.21. 5. It is not necessary to determine the total amount damages suffered by the Plaintiffs or Defendants from the logs * * * coming upon the respective premises or the damages suffered by the Plaintiffs or Defendants from the removal of the logs * * * in order to divide the sums the Defendants accepted therefor. 6. Two-thirds of the logs were deposited on leasehold property, and one-third on river bar property excluded from the lease. 7. River bar, as used in the lease, means * * * (that portion of the John Hansen Ranch) * * * covered by willows surrounding the exterior of the ranch proper. 8. Two-thirds of the non-identifiable logs which were sold for * * * $7,538.21 by Defendants were on the leasehold property, and the other one-third was on the river bar property. 9. Plaintiffs' receipt of free rent for one year following the flood is separate and apart from any rights to damages from the logs * * * or their removal or any rights to sums from the sale of other logs on the leased premises. * * *'

Under 'conclusions of law' the trial court stated '* * * 3. That the Plaintiffs have and receive from the Defendants two-thirds of the sum of $18,357.72, to-wit: the sum of $12,238.48, on account of damages to leasehold sustained from logs * * * coming upon the property and from the removal thereof. 4. That the Defendants retain one-third of the sum of $18,357.72, to-wit: the sum of $6,112.29, on account of logs deposited on non-leased premises.' The judgment states in paragraph 1 (the only portion thereof which is involved on the appeals) as follows: '1. That Plaintiffs have and recover from Defendants the sum of $12,238.48 plus interest earned on said sum while held in trust during litigation. The balance of said trust fund is to be retained by defendants.'

The money allocation made in the judgment was derived from the trial court's conclusions of law (numbered 3 and 4) that plaintiffs were entitled to two-thirds of the trust fund, defendants one-third. Those conclusions, in turn, were unmistakably based upon the court's finding (no. 8) that 'Two-thirds of the non-identifiable logs which were sold for the total sum of $7,538.21 by Defendants were on the leasehold property, and the other one-third was on the river bar property.' The judgment thus allocated All of the money on the basis of where Some of the logs (the non-identifiable category) were stranded. ² Making the allocation, the trial court failed to consider the difference between the $10,819.51 and the $7,538.21. Because separate rules apply to each sum, the allocation was erroneous; this requires reversal of the judgment for re-examination of some--but, as hereinafter discussed, not all--of the issues.

We first consider the $10,819.51 collected by defendants, pursuant to Public Resources Code section 4702 (see fn. 1, Ante), as damages caused by floodborne logs. Plaintiffs and defendants both contend that some allocation of this money between them is required, depending upon log damage caused to the fee and to the leasehold respectively. We disagree: as we interpret section 4702 under the circumstances of the present case, only plaintiffs--as lessees in...