Gillespie Land & Irr. Co. v. Gonzalez

• Decision Date: 27 February 1963
• Docket Number: No. 6919,6919
• Citation: 93 Ariz. 152,379 P.2d 135
• Parties: The GILLESPIE LAND AND IRRIGATION COMPANY, an Arizona corporation, and Gila River Ranch, Inc., an Arizona corporation, Appellants, v. Ruben GONZALEZ et al., Appellees.
• Court: Arizona Supreme Court

Page 135

379 P.2d 135

93 Ariz. 152

The GILLESPIE LAND AND IRRIGATION COMPANY, an Arizona corporation, and Gila River Ranch, Inc., an Arizona corporation, Appellants, v. Ruben GONZALEZ et al., Appellees.

No. 6919.

Supreme Court of Arizona, In Banc.

Feb. 27, 1963.

Rehearing Denied May 14, 1963.

Jennings, Strouss, Salmon & Trask, Phoenix, for appellant Gillespie Land and Irrigation Co.

Snell & Wilmer, Phoenix, for appellant Gila River Ranch, Inc.

Harry A. Stewart, Jr., Phoenix, and Leon S. Jacobs, Phoenix, for appellees. BERNSTEIN, Chief Justice.

On August 19, 1957, a cloudburst occurred in the vicinity of the Sand Tank Mountains south of the city of Gila Bend, Arizona. Water draining from this area flowed down Sand Tank Wash (designated Wash No. 2, on the accompanying diagram) and Washes No. 1 and No. 3 toward the Gila River, which runs north of the city of Gila Bend. Near the city of Gila Bend, Sand Tank Wash and Wash No. 1 intersect the Gila Bend Canal, a waterway system at that time owned by appellant Gillespie Land and Irrigation but since acquired by appellant Gila Riber Ranch. Since 1920 two structures have existed in the Gila Bend Canal for the purpose of conducting water flowing in Sand Tank Wash and Wash No. 1 across the canal and into the natural channels leading to the Glia River. At the intersection of Sand Tank Wash with the canal there is a 'flume and inverse siphon', a combination structure one part of which (the inverse siphon) carries the waters of the canal under the bed of Sand Tank Wash, and another part of which (the flume) acts as artificial bed and banks of the wash to permit waters in the wash to flow over the waters of the canal. At the intersection of Wash No. 1 with the canal there is a 'three barrel culvert' designed to carry the waters of this smaller wash under the bed of the canal. A shallow wash runs parallel to the canal between Wash No. 1 and Sand Tank Wash, and carries the overflow from Wash No. 1 to Sand Tank Wash at about the point it enters the flume over the canal. East of Wash No. 1 lies Wash No. 3 which drains into Wash No. 1 near the point where it enters the culvert.

On the date mentioned water flowing in the drainage system described above formed a pool at the intersection of Sand Tank Wash with the Gila Bend Canal, either because the amount of water coming down the wash was more than could be contained within its natural banks and channel, or because the flume and culvert constricted the flow and caused the waters to back up behind the raised levee of the canal. These waters overflowed the banks of the wash and breached a dike constructed along the west side of Sand Tank Wash at the point of its intersection with the canal, flooding the homes of the appellees, who live in an area south of the canal levee and west of Sand Tank Wash. The appellees, hereafter called plaintiffs, commenced a negligence action for damages resulting from the flood against Gillespie Land and Irrigation, hereafter called Gillespie. They also brought a suit for a mandatory injunction against the present owner of the canal, Gila River Ranch, to require it to alter the conditions they claimed to be responsible for the flooding.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The action against Gillespie was tried to a jury, and the injunction suit against Gila River Ranch to the court. The jury returned a verdict in favor of Gillespie, and the trial court granted a motion for a new trial on the grounds that the verdict was not justified by the evidence. The court also issued an injunction which requires that the Gila River Ranch (1) substantially enlarge the flume at Sand Tank Wash, (2) replace the culvert at Wash No. 1 with a flume, (3) maintain the dike built by Maricopa County along the west side of Sand Tank Wash, and (4) widen the bed of Sand Tank Wash.

Gillespie appeals from the order granting a new trial, while Gila River Ranch appeals from the order granting the mandatory injunction, and from an order denying its petition for relief and to modify the decree.

The Damage Action Against Gillespie

The principal argument of the appellant Gillespie is that the trial court erred in granting a new trial, for the reason that a clear preponderance of the evidence substantiates the verdicts in favor of Gillespie. Gillespie also argues that the court improperly admitted the testimony of the plaintiffs' expert as to the volume of water that could be expected at the flume from rains on the watershed drained by Sand Tank Wash. Finally, it contends that 11 of the 22 plaintiffs are gratuitous licensees of Gillespie, and therefore cannot recover for losses resulting from a condition of the land. We will consider the question of admission of evidence first.

Admission of Expert's Estimate.

A qualified expert called by the plaintiffs testified that the amount of water that could be expected at the intersection of the canal and the washes once every ten years was 11,219 second feet. This figure was obtained by use of 'the McMath formula', an empirical formula which, the expert testified, is widely used by engineers for estimating the runoff of terrain. The formula incorporates a number of factors and co-efficients, some of which are based upon estimates. ¹

At one point the expert witness was asked:

'Q. So your estimate is based on an estimate which is based on an estimate which is based on an estimate, is that correct?

'A. To a certain extent, it is.'

It is clear that the opinion of the expert was based in part upon predictions of rainfall intensity originating with persons not present at the trial, which predictions are now compiled in 'Technical Paper 24', a publication of the U. S. Weather Bureau. These predictions are inferences which are based upon factual data of past weather occurrences. Official records of the Weather Bureau are generally admitted as prima facie evidence of the facts they report, Riddle v. Baltimore & Ohio R. Co., 137 W.Va. 733, 73 S.E.2d 793, 34 A.L.R.2d 1228 (1952); cases cited annot. 34 A.L.R.2d 1249 (1954). 'Technical Paper 24' however, does not report the record of weather occurrences, but rather reports inferences which have been drawn from records of weather occurrences.

It has been stated that an expert may not base his opinion upon the inferences and conclusions of others, Mt. Royal Cab Co. v. Dolan, 168 Md. 633, 179 A. 54, 98 A.L.R. 1106 (1935); cases cited, annot. 98 A.L.R. 1109 (1935). The purpose of this rule is to prevent the expert from basing his testimony on assumptions which are unknown to the jury and unsupported by the evidence. McCormick, Evidence, § 15 (1954). Here however, the source of the underlying assumption, the Weather Bureau publication, was admitted in evidence and the manner of its preparation was explained by the Arizona state climatologist of the U. S. Weather Bureau. The same characteristics of disinterest and reliability that permit recognized treatises to serve as the foundation of expert opinion apply here. Cf. Boswell v. State, 114 Ga. 40, 39 S.E. 897 (1901); Thompson v. Ammons, 160 Ga. 886, 129 S.E. 539 (1925); McCormick, Evidence § 296 (1954).

In spite of the compounded uncertainties which admittedly inhere in the calculations of the plaintiffs' witness, these weaknesses go to its weight and sufficiency rather than to its admissibility. We cannot say that an engineering calculation in common use, based in part upon government publications purporting to contain the most reliable data available, is so speculative as to be inadmissible. The witness was extensively cross-examined on the methods by which he reached his estimate of 11,219 second feet, and the possible inaccuracies were fully disclosed to the jury. The members of the jury were properly instructed that they should disregard the opinion if they believed it unsound. Admission of this testimony was not error.

Review of Negligence Evidence.

This court has limited power to reverse the action of a trial judge in granting a new trial for the reason that the verdict is not justified by the evidence, Caldwell v. Tremper, 90 Ariz. 241, 367 P.2d 266 (1962); State v. Bogard, 88 Ariz. 244, 354 P.2d 862 (1960). If, however, it is clear that the trial judge granted the new trial because of a misapprehension or mistake of law, this action will be reversed and set aside. Finn v. American Fire & Casualty Co., 207 F.2d 113 (5th Cir., 1953); General American Life Ins. Co. v. Central Nat'l Bank, 136 F.2d 821 (6th Cir., 1943).

This court has previously considered the legal principles which govern rights and liabilities that arise from the artificial alteration of water courses and the resulting changes in water flow. In Southern Pacific Co. v. Proebstel, 61 Ariz. 412, 150 P.2d 81 (1944) we adopted this distinction between flood waters and surface waters:

'Flood waters are distinguished from surface waters by the fact that the former have broken away from a stream, while the latter have not yet become part of a watercourse. The term 'flood waters' is used to indicate waters which escape from a watercourse in great volume and flow over adjoining lands in no regular channel, though the fact that such errant waters make for themselves a temporary channel or follow some natural channel, gully or depression does not affect their character as flood waters or give to the course which they follow the character of a natural watercourse.' 61 Ariz. at 418, 150 P.2d at 83.

One legal effect of this distinction was there stated:

'* * * [O]ne has the right to protect himself against 'flood waters,' that is, waters of the character last described, and for that purpose to obstruct their flow onto his land, and this even though such obstruction causes the water to flow onto the land of another.' 61 Ariz. at 419, 150 P.2d at 84.

In a series of cases culminating in City of Tucson v. Koerber, 82 Ariz. 347, 313 P.2d 411, we considered the liabilities of the City of Tucson resulting...