Callens v. Orange County

• Decision Date: 30 November 1954
• Citation: 276 P.2d 886,129 Cal.App.2d 255
• Court: California Court of Appeals Court of Appeals
• Parties: Rene L. CALLENS and Virginle Callens, Plaintiffs and Respondents, v. The COUNTY OF ORANGE, Defendant and Appellant. Civ. 5012.

Page 886

276 P.2d 886

129 Cal.App.2d 255

Rene L. CALLENS and Virginle Callens, Plaintiffs and Respondents, v. The COUNTY OF ORANGE, Defendant and Appellant.

Civ. 5012.

District Court of Appeal, Fourth District, California.

Nov. 30, 1954.

Forgy, Reinhaus, Miller & Kogler, Santa Ana, for appellant.

Head, Jacobs, Corfman & Jacobs, Santa Ana, for respondents.

GRIFFIN, Justice.

Defendant and appellant County of Orange, after judgment on a jury verdict for plaintiffs for $8,000 damages, filed this appeal. It is claimed, in one cause of action, that the damage to plaintiffs' property was by reason of defendant's failure to erect a dam or other obstruction sufficient to prevent surface and flood waters from flowing upon plaintiffs' land, and in a second cause of action, that defendant negligently and wrongfully excavated and cut drainage ditches and changed the natural course and flow of surface and flood waters so as to cause them to flow over and upon plaintiffs' land and wash it away and render it unfit for agricultural purposes. Approximately five acres of land, amounting to 3,800 cubic yards of dirt, were washed away.

Defendant entered a general denial with the exception that it admitted certain work was done, and pleaded as an affirmative defense, contributory negligence of plaintiffs, act of God, and that the land owned by plaintiffs constituted a natural swale or water course across it, and that the water, if any, which gathered upon plaintiffs' property was following the natural drainage in the area.

The first question raised on this appeal involves the giving of claimed erroneous and conflicting instructions in regard to the duty of the county in respect to handling surface and storm waters. The two instructions involved are:

'No. 1. You are instructed that the County of Orange in order to protect its streets and highways cannot lawfully through the construction of ditches or gutters collect surface and storm waters at a central point and there leave such waters to spread out over the adjoining private property. Having collected such storm waters, the County of Orange had the duty to provide an adequate method of carrying them away. If you find that the County of Orange failed in this duty as a result of which plaintiffs were damaged, you shall find in favor of the plaintiffs.

'No. 2. A lower-land owner has the lawful right to complain of those who by interference with natural conditions cause surface waters to be discharged in greater quantity or in a different manner upon his land than would occur under natural conditions. If the preponderance of evidence in the present case indicates that the County of Orange interfered with natural conditions thereby causing surface waters to be discharged in a greater quantity or in a different manner upon the land of Rene and Virginie Callens than would occur under natural conditions, you are instructed to return a verdict in favor of the plaintiffs.'

It is claimed that the two instructions given are contrary to the decisions in O'Hara v. Los Angeles County Flood Control District, 19 Cal.2d 61, 63-64, 119 P.2d 23; and House v. Los Angeles County Flood Control District, 25 Cal.2d 384, 392, 153 P.2d 950, contending that as applied to a private landowner he may not obstruct the surface waters that naturally drain across his property from adjoining land but that a governmental agency, in constructing public improvements such as streets and highways may validly exercise its police power to obstruct the flow of surface waters from running in a natural channel without making compensation for the resulting damage, and that the construction of improvements along a stream for purposes of flood control is no less essential to the public health and safety than the grading of streets; and that a governmental agency should no more be liable in one case than in the other for obstructing surface waters; that accordingly the defendant is under no obligation to compensate for the damage caused by the obstruction; that under instruction No. 2, a verdict could be brought in against the County; and that there is no way of telling whether the jury followed this instruction or instruction No. 1.

According to plaintiffs' evidence, with the exception of floods when the Santa Ana River broke from its banks, no water had drained across plaintiffs' lands until January, 1952; that in that year the County Road Department dug so-called gutters extending north and south on Verano Street, Ward Street and Wright Street, the gutters on Verano and Ward stopping at Talbert Road and the gutter on Wright proceeding one-half mile farther south and stopping at Ellis. It also dug a gutter cast and west on Talbert Road, stopping at Wright Street. The ditch on Wright Street was larger than the other ditches and larger than had been dug in previous years. The result was that all water draining into the ditches at Newhope, Verano and Ward Streets drained into Talbert. The water then flowed west on Talbert to Wright Street, the distance from Newhope to Wright being 1 1/2 miles. This added volume of water joined with the water from Wright and it all went south on Wright one-half mile to Ellis. There was no outlet at Ellis Street. This created a new and violent stream across respondents' land resulting in severe damage.

According to defendant's evidence, at the time plaintiffs purchased the land in 1912, there were drainage ditches running from north to south along the roads in the general vicinity of the property. They were from 11 to 15 feet deep and 20 feet wide at the top, and were one-half mile apart. In 1940, the ditches were tiled in and after this work was done a slight depression of approximately 18 inches was left on top of the ground, which came to the corner of plaintiffs' property at Wright and Ellis Streets, but the tiled in ditches under the ground continued on south. After the ditches had been tiled in and prior to the flood of January, 1952, no water came across plaintiffs' property. In 1943 plaintiffs had leveled their ranch to grade north to south, the high end being at the north. Prior to the leveling, plaintiffs had no gullies or drainage areas or stream beds across their ranch. In 1916, the entire ranch was flooded because the Santa Ana River broke over its banks, and in 1952, the County enlarged or dug a ditch on Talbert Road and on Wright Street and came south to plaintiffs' corner and stopped. The ditch was larger than it had ever been before, and in 1952, a heavy rain occurred and water came across the property causing the damage related.

Defendant presented testimony showing that for the past 50 years during the periods of heavy rain when water collected in the vicinity of the property involved, it followed the course taken in January of 1952, and that the water in the general vicinity of plaintiffs' property always flowed in a southwesterly direction. Defendant introduced extensive aerial photographs covering the period from 1927 to the present time, with the idea of showing that water crossed plaintiffs' property at various times following the same general path as taken during the heavy rains of January, 1952. Extensive engineering testimony was taken and documentary evidence was introduced to show the center and gutter lines of Wright Street as they ran south of the intersection of Ellis Street. It is plaintiffs' position that defendant County, during the construction and deepening of ditches, diverted and accumulated surface waters from areas that would not normally drain across plaintiffs' land and then failed to provide an outlet therefor; that the work was done negligently; that this interference with natural conditions resulted in damage to plaintiffs' land, which had previously been free of drainage water.

In California a private landowner may not obstruct the flow of surface waters that naturally drain across his property from adjoining land, but he may discharge them for a reasonable purpose into the stream into which they naturally drain without incurring liability to the lower landowners caused by the increased flow of the stream, and a governmental agency, in constructing public improvements such as streets and highways, may validly exercise its 'police power' to obstruct the flow of surface waters not running in a natural channel without making compensation for the resulting damage. Straightening, widening, or deepening the channel of a stream to improve the drainage entails no diversion of the waters therein. There is no diversion if surface waters, flowing in no defined channel, are for a reasonable purpose gathered together and discharged into the stream that is their natural means of drainage even though the stream channel is inadequate to accommodate the increased flow. O'Hara v. Los Angeles County Flood Control District, 19 Cal.2d 61, 119 P.2d 23; Archer v....