Frustuck v. City of Fairfax

CourtCalifornia Court of Appeals
Writing for the CourtMOLINARI; BRAY, P. J., and SULLIVAN
Citation212 Cal.App.2d 345,28 Cal.Rptr. 357
Decision Date28 January 1963
PartiesElsie FRUSTUCK, Plaintiff, Appellant and Respondent, v. CITY OF FAIRFAX, Defendant, Respondent and Appellant. Civ. 20289.

Page 357

28 Cal.Rptr. 357
212 Cal.App.2d 345
Elsie FRUSTUCK, Plaintiff, Appellant and Respondent,
CITY OF FAIRFAX, Defendant, Respondent and Appellant.
Civ. 20289.
District Court of Appeal, First District, Division 1, California.
Jan. 28, 1963.

Page 362

[212 Cal.App.2d 353] Gardiner, Riede & Elliott, San Rafael, for appellant Frustuck.

Wallace S. Myers, San Anselmo, for respondent City of Fairfax.

MOLINARI, Justice.

This is an appeal by both parties to this litigation. The defendant, City of Fairfax, hereinafter sometimes referred to as the City, has appealed from the judgment and from the order after judgment for partial satisfaction of judgment and permanent injunction. The plaintiff, Elsie Frustuck, hereinafter sometimes referred to as Frustuck, has appealed from the said order after judgment.

212 Cal.App.2d 354

Statement of the Case

The parties to this litigation are generally in accord with the following narrative of facts which are in the record before us. Frustuck owns a parcel of land in the City of Fairfax approximately 49 feet wide by 150 feet long. Said parcel is bounded on three sides by streets of Fairfax; the easterly boundary thereof being coterminous with the westerly line of Sir Francis Drake Boulevard; the southerly boundary with the northerly line of azalea Avenue; and the westerly boundary with the easterly line of Broadway. Sir Francis Drake Boulevard is approximately eight feet higher than Broadway along plaintiff's property. The contour of the land northeasterly from the Frustruck property is upward from Sir Francis Drake Boulevard, over property owned by the Pacific Gas and Electric Company, property owned by the Catholic Church, and thence upward on the same watershed into lands hereinafter referred to as Marinda Oaks.

For many years last past, water falling on Marinda Oaks came down upon the lands of the Catholic Church, from whence a portion of such waters then flowed on down over lands owned by the Pacific Gas and Electric Company to a point on the easterly side of Sir Francis Drake Boulevard at about apposite the northerly end of the Frustuck property.

Many years ago, a 20-inch culvert was placed under Sir Francis Drake Boulevard running from a catch basin at the point on the easterly side thereof, above referred to, to the northeasterly corner of the Frustuck property. Water flowing through said culvert was captured by a ditch on the easterly side of said property. Said ditch was formed by the bed of a railroad track right of way which formerly ran through the approximate center of the Frustuck property. At a point near the center of the property there is a wooden catch basin feeding an 18-inch culvert running at right angles to said ditch across the property to Broadway. Waters which could not be handled by the 18-inch culvert continued

Page 363

along said ditch along the easterly side of the old railroad right of way and across Azalea Avenue.

Drainage problems arose from time to time in this general area, becoming aggravated between 1951 and 1957, when Marinda Oaks was subdivided into five subdivisions and a school development was made on the Catholic Church property. The paving of the streets and the installation of drainage facilities in these subdivisions together with said [212 Cal.App.2d 355] school development caused an acceleration of the flow of water over the Pacific Gas and Electric Company property and ultimately upon Frustuck's land. By 1958, the aforementioned culvert under Sir Francis Drake Boulevard became dilapidated to some extent, and during very heavy storms it would not take all of the surface waters flowing to that point, with the result, that water flowed over said boulevard and upon Frustuck's property.

In September of 1958, the City placed a 24-inch culvert under Sir Francis Drake Boulevard near and parallel with the old 20-inch culvert, the discharge end of said new 24-inch culvert being close to the northeasterly end of Frustuck's property. At or about the same time, the City, purporting to act under an ordinance which permitted it to clean out drainage ditches, but without the express consent of Frustuck, entered into and upon Frustuck's property and cleaned out the aforementioned ditch. While performing said work the City also enlarged the ditch for the full length thereof, and in so doing piled up some of the dirt, debris, rock and rank growth along the lower bank of the ditch to form a sort of berm.

Frustuck filed a claim against the City for $15,000 damages, for inverse condemnation, anf for trespass. The claim was rejected and Frustuck thereupon filed a complaint against the City in three counts whereby she sought an injunction, damages for inverse condemnation, and damages for trespass. The City answered, denying the allegations of the complaint generally and asserting affirmatively that a public easement for drainage had existed over Frustuck's land from 'time immemorial'; that it was required to enter upon said land temporarily pursuant to ordinance in order to clean out the ditch because plaintiff had permitted the said easement to become clogged with debris, thus impairing the passage of normal drainage over said land; and that plaintiff's claim was barred by the statute of limitations.

In addition to the testimony taken at the trial, the trial court, pursuant to stipulation, viewed the drains and the conformation of the land in the presence of counsel, and viewed and considered official maps and drainage systems as shown thereon. Illustrations were made on a blackboard in connection with testimony regarding drainage areas, but these have not been brought up on this appeal.

The trial court made certain findings pertinent to this [212 Cal.App.2d 356] appeal to which we shall hereafter allude. Pursuant to said findings judgment was entered for the plaintiff for damages in the sum of $150 for trespass, for costs in the sum of $51.25. Said judgment also provided in substance that the plaintiff was entitled to $5,000 damages for inverse condemnation unless, within four months after the judgment became final, the City would divert the flow of water in excess of that which could be carried by a 20-inch culvert, in which event the $5,000 would not be payable, but a permanent injunction would be made enjoining and restraining the City from depositing any such excess waters upon plaintiff's property. 1 Execution of the judgment to said item to $5,000 damages was stayed until the expiration of said four months' period. Thereafter, and within said four months' period, the City moved for an order entering satisfaction of judgment. This motion was supported by an affidavit to the effect that the total sum of $201.25 had been paid by the City to the plaintiff in satisfaction of

Page 364

the $150 judgment and the sum of $51.25 representing the plaintiff's costs of suit; and was supported by another affidavit to the effect that the City had reduced the capacity of the new culvert leading to plaintiff's property to 20 inches and that the City had erected works (which were therein described) which would divert any of the waters in excess of those which could be normally handled by a 20-inch culvert. An affidavit in opposition to such motion was executed and filed by plaintiff's attorney, the purport of which was that the work performed for the purpose of diverting the excess waters was and would be ineffective and that it would prevent ingress to and egress from said property. Upon these affidavits the trial court made an 'Order for Partial Satisfaction of Judgment and Permanent Injunction.' 2 The trial court thereupon ordered, adjudged and decreed that a partial satisfaction in the sum of $201.25 be entered, and that the plaintiff was entitled to a permanent injunction enjoining and restraining the City from depositing any waters on plaintiff's property in excess of those within the capacity of a 20-inch culvert. In said order the trial court reserved 'jurisdiction to grant appropriate relief for any violation of the terms of said Judgment or this permanent injunction.'
212 Cal.App.2d 357

The City's Contentions on Appeal

1. That the trial court erred in awarding damages and an injunction because there is no evidence that the City participated in any diversion of water to the plaintiff's property.

2. That the trial court erred in holding that the City was estopped to assert the defense of the statute of limitations.

3. That there was no substantial damage to the plaintiff's property caused by trespass.

4. That the conduct of the City did not constitute an act of inverse condemnation.

Frustuck's Contentions on Appeal

That the order after judgment should be reversed and vacated because:

1. It digresses from the conditions fixed in the judgment.

2. The order substituting an injunction for the damages awarded for inverse condemnation was improper.

The City's Liability

The City's liability in the instant case, if any, must be predicated upon the liability imposed under article I, section 14 of the California Constitution which provides that '[p]rivate property shall not be taken or damaged for public use without just compensation having first been made to * * * the owner * * *.' The said constitutional provision applies to municipal corporations such as the City of Fairfax. (Archer v. City of Los Angeles, 19 Cal.2d 19, 119 P.2d 1; Beals v. City of Los Angeles, 23 Cal.2d 381, 144 P.2d 839; City & County of San Francisco v. Ross, 44 Cal.2d 52, 279 P.2d 529.) The appropriate action based on section 14 is sometimes designated a proceeding in inverse condemnation (Bauer v. County of Ventura, 45 Cal.2d 276, 282, 289 P.2d 1), and, as such, includes within its purview actions for damages caused by the diversion of water from its natural course (Youngblood v. Los Angeles County Flood Control Dist., 56 Cal.2d 603, 607-608, 15 Cal.Rptr. 904, 364 P.2d 840; Bauer, supra, 45 Cal.2d p. 283, 289 P.2d p. 5; Archer, supra, 19 Cal.2d p. 26, 119...

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