City of Stockton v. Miles and Sons, Inc.

• Decision Date: 31 July 1958
• Docket Number: Civ. No. 7384.
• Citation: 165 F. Supp. 554
• Court: U.S. District Court — Northern District of California
• Parties: CITY OF STOCKTON, a Municipal Corporation, Plaintiff, v. MILES AND SONS, INC., a Nevada Corporation, et al., Defendants.

165 F. Supp. 554

CITY OF STOCKTON, a Municipal Corporation, Plaintiff, v. MILES AND SONS, INC., a Nevada Corporation, et al., Defendants.

Civ. No. 7384.

United States District Court N. D. California, N. D.

July 31, 1958.

Monroe N. Langdon, City Atty., and Jack D. Wickware, Deputy City Atty., Stockton, Cal., and Holloway Jones, Jack M. Howard and John P. Horgan, San Francisco, Cal., for plaintiff.

C. Ray Robinson, Merced, Cal., Eugene A. Mash, San Francisco, Cal., and William J. Adams, Merced, Cal., for defendant, Miles and Sons, Inc., a Nevada Corporation.

HALBERT, District Judge.

This is an action in eminent domain, brought by the plaintiff, City of Stockton, to condemn a portion of certain real property owned by defendant, for the purpose of constructing thereon a public improvement in the nature of a flood control facility. The action was commenced in the Superior Court of the State of California, in and for the County of San Joaquin, and subsequently was removed to this Court on the basis of diversity of citizenship, defendant corporation being a citizen of the State of Nevada. More than the jurisdictional amount being involved, the case is properly before this Court (28 U.S.C.A. § 1332).

Among the issues raised by the pleadings was the issue as to the respective rights, interests and ownerships of plaintiff and defendant in the property taken, plaintiff asserting that the property taken by it was an existing natural watercourse, and defendant asserting that such natural watercourse had been abandoned prior to the taking. Defendant moved, under Federal Rules of Civil Procedure, Rule 56(b), 28 U.S.C.A., for partial summary judgment on that point, which motion was denied.

Plaintiff then moved for severance of the issue of abandonment of the alleged watercourse, and of the issue as to what constitutes the larger parcel and remaining property of defendant for which damages may be claimed by reason of the severance of the portion being condemned. Defendant consented to the granting of this motion; the motion was granted; and the case went to trial on those severed issues in advance of trial of the issue of compensation. Such trial has been had and the case is now before the Court for its decision and determination.

Since the determination of this case must be predicated to a large extent on the factual background developed by the evidence adduced at the trial, a statement of the pertinent facts, as they have been determined by the Court, is not only desirable but necessary. Before discussing the issues of the case and the applicable law, a statement of the controlling facts, somewhat in detail, will first be undertaken.

The Facts

For many years prior to 1913, waters of the Calaveras River watershed, including the Calaveras River and several minor streams, had drained into the Calaveras River east of the City of Stockton, and had flowed through the Calaveras River to the San Joaquin River. About 1860 a channel or ditch, known as Mormon Slough, was dug or deepened running from the Calaveras River at a point immediately downstream from the community of Bellota, to and through the City of Stockton, and ultimately into the San Joaquin River. This channel became the carrier of the major portion of the water of the Calaveras River watershed. In 1913 a project was completed which cut off the flow of water in the westerly portion of Mormon Slough, and from that time forward none of the natural flow of the Calaveras River watershed has entered the City of Stockton. This latter project Illinois by writ of error which was dewas and is a diverting canal and levee, running roughly parallel to the easterly city limits of the City of Stockton, and carrying the waters of Mormon Slough northerly to return those waters to the Calaveras River, whence they continue westerly until discharging ultimately into the San Joaquin River. A continuation of the levee at the southerly terminus of the diverting canal serves as a dam across Mormon Slough. None of the waters carried by Mormon Slough have ever passed over or through this dam, and the dam has effectively served its intended purpose of diverting to the north, all the waters of Mormon Slough which have reached the same since its completion in 1913. Following the completion of this dam, the portion of the old slough which lay westerly of the dam, and which passed through the City of Stockton, came to be referred to and designated as Mormon Channel, as distinguished from Mormon Slough. This terminology was employed at the trial of these issues, and will be followed in this opinion.

Subsequent to the completion of the diverting canal, and prior to December 23, 1915, there was but one occasion on which water overflowed Mormon Slough east of the diverting canal, then, after flowing cross-country westerly past the diverting canal, found its way into Mormon Channel. This was prior to 1930, and prior to the construction of another flood control structure known as Hogan Dam. Hogan Dam, constructed by or financed by the City of Stockton, is situated in the mountains east of Stockton, and was designed to regulate the flow in the Calaveras River below the dam, allowing, generally speaking, only so much water to pass down the river as could be successfully carried by the river and by Mormon Slough. Hogan Dam was completed in 1930.

A second and separate watershed, identified at the trial as the Duck Creek and Littlejohn Creek watershed, lies immediately to the south of the Calaveras River watershed. There is no direct connection between this second watershed and Mormon Slough or Mormon Channel; however, testimony at the trial indicated that when the streams of the more southerly watershed became swollen with heavy rains, they occasionally overflowed, and it was stated that flood waters from this watershed had, on occasion, reached as far as Mormon Channel. Since at least 1951, the date of completion of certain flood control projects on Littlejohn and Duck Creeks, none of the flood waters of that watershed reached Mormon Channel until December 23, 1955.

From some time prior to 1930, and until December 23, 1955, the only water which reached Mormon Channel and passed through that channel to its outlet was certain local surface water—rain water, lawn waterings and the like—and intermittent flood waters from Duck Creek.

At least as far back as 1939, the City formulated tentative plans for the filling of Mormon Channel. These plans were given considerable local publicity. On more than one occasion representatives of the City appeared before Congressional Committees considering flood control appropriations, and stated that the City contemplated, as part of the benefits of certain flood control projects, the filling and reclaiming of Mormon Channel. These plans remained tentative, however, until at least 1951, when the Farmington Dam was completed, providing some measure of control over the flow of water in Duck Creek and Littlejohn Creek. After 1951 the City's plans for filling Mormon Channel crystallized. The City Engineer made a thorough engineering study of the maximum amount of local surface waters which could be anticipated, and he designed, and the City installed, a conduit or box culvert sufficient to carry this flow. After the filling of the channel was authorized by the United States Congress, the City took necessary steps to place earthen fills across the channel to replace bridges, which formerly traversed the area. Property owners along the channel began or continued to place fill material in the channel with the full knowledge and consent, and in some cases, at the request of the City. The City Engineer testified that he interfered with the placing of fill material in the channel on only two or three isolated instances—when the material was unsuitable for permanent fill. In 1952 or 1953 the City Engineer requested of a predecessor of defendant that he not complete the filling of his land—the property here in question—until the City completed the installation of its culvert, but informed the then owner of the land that when the culvert was completed he might continue and complete the filling operation. The City's own trucks and crews placed fill material in the channel at some places other than the street crossings. There is some indication that the City's street department crews and trucks actually helped fill in the property of this defendant.

By December of 1955, the character of the channel had been changed in substantial degree. East of the easterly city limits of Stockton, the County of San Joaquin had filled the channel to provide a road crossing at Diamond Street. Within the city limits, the Western Pacific Railroad had filled the channel to provide a crossing for its tracks. The defendant's predecessors in interest had filled the channel for an entire block where it passed through the property here in question. The City of Stockton had completed seven or more substantial fills, each consisting of many thousands of cubic feet of dirt, each about 80 feet wide at the bottom, and topped with an asphaltic surface of permanent appearance. None of the enumerated fills had any facility for allowing water to pass, except for the conduit or culvert installed by plaintiff.

The property owned by defendant, part of which is the subject of this action, covered an area of two city blocks. This property was used by defendant's predecessor as a trucking terminal. Passing through this tract was a city street, Aurora Street.

On December 23, 1955, an unprecedented flow of water in Mormon Slough resulted in the overflow of that watercourse, east of the diverting canal. At the same time, Duck Creek overflowed, and its flood waters worked their way north. The flood waters escaping from these two watercourses mingled and made what might be described as an "end run" around the diverting dam, and found their way into Mormon Channel, within the city limits. All of the various fills...