Imperial Cattle Co. v. Imperial Irrigation Dist.

• Decision Date: 24 April 1985
• Court: California Court of Appeals Court of Appeals
• Parties: IMPERIAL CATTLE COMPANY, a California corporation, Plaintiff and Respondent, v. IMPERIAL IRRIGATION DISTRICT, a Public Irrigation District, Defendant and Appellant. D000636. Civ. 28376.

Page 622

213 Cal.Rptr. 622

167 Cal.App.3d 263

IMPERIAL CATTLE COMPANY, a California corporation, Plaintiff and Respondent, v. IMPERIAL IRRIGATION DISTRICT, a Public Irrigation District, Defendant and Appellant.

D000636.

Civ. 28376.

Court of Appeal, Fourth District, Division 1, California.

April 24, 1985.

As Modified on Denial of Rehearing May 15, 1985.

Review Denied Aug. 22, 1985.

Reeve J. Jacques and Virginia R. Gilson and McInnis, Fitzgerald, Rees, Sharkey & McIntyre, San Diego, and Reginald L. Knox, Jr., and Horton, Knox, Carter & Foote, El Centro, for defendant and appellant.

Lowell F. Sutherland and Sutherland & Gerber, El Centro, for plaintiff and respondent.

WIENER, Associate Justice.

Defendant Imperial Irrigation District (the District) appeals a judgment entered after a jury found it liable to plaintiff Imperial Cattle Company on theories of inverse condemnation and nuisance for approximately $192,000 in damages arising from the flooding of Imperial Cattle's feed lot in 1976 and 1977. Except to the extent that the trial court improperly calculated the amount of prejudgment interest due on the damage award, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Imperial Cattle operates a cattle feed lot next to the northern edge of the City of Imperial. The feed lot is generally rectangular in shape, with the long sides of the rectangle running north-south. The property slopes to the north and east. The District maintains an easement along the eastern boundary of the feed lot which houses the Dolson Drain. The Drain is a water channel 8 to 10 feet deep, 30 feet wide at the top narrowing to 3 feet at the bottom. Water in the Drain flows south to north. The southern end of the Drain is located in a residential section of Imperial. Thereafter, the Drain continues north paralleling the elevated tracks of the Southern Pacific Railroad which lie just east of the Drain. The Drain crosses the Imperial city limits at the southeast corner of the feed lot and continues along the lot's eastern boundary. At the northeast corner of the lot, the Drain turns 90 degrees to the east When constructed in 1947, the Drain was designed to drain irrigation waters from surrounding agricultural fields. Because of the minimal average yearly rain fall in Imperial (2-2 1/2 inches per year), the design of the Drain did not take into account storm drainage. Because there are no longer any agricultural fields south of Imperial Cattle's feed lot, the current function of the Dolson Drain is simply to receive and channel surface runoff from the northern sections of the City of Imperial.

and passes under the railroad tracks through a 36-inch culvert. Also at the northeast corner, a "waste box" and 12-inch pipe allows surface runoff from the feed lot to be discharged into the Drain.

Major tropical storms hit Imperial in the successive years 1976 and 1977. On each occasion, Imperial's combined storm drainage and sewer system was inadequate to handle the large amounts of rain water, which caused rain and sewer water to back out of the sewer system and flood surface streets in the city. Much of this excess water eventually flowed into the Dolson Drain. When it reached the northeast corner of the Imperial Cattle lot, the volume of water exceeded the capacity of the 36-inch culvert under the railroad tracks, causing water and sewage to overflow the banks of the Drain and flood the feed lot. This lawsuit was the result of Imperial Cattle's claim against the District for damage caused by the flooding of the feed lot.

DISCUSSION

The District's arguments on this appeal break down into four general categories. First, contentions are made regarding certain refused jury instructions and the sufficiency of the evidence which relate to liability. Second, the District alleges that certain evidence necessary to prove Imperial Cattle's damages was improperly admitted. Next, the District argues that the interest on the damage award was improperly calculated. And finally, the award of expert witness and attorney fees is challenged. We address each of these categories seriatim. We then consider an issue raised by Imperial Cattle's purported cross-appeal.

I

Two jury instructions proposed by the District were refused by the court. With respect to establishing the cause of action for inverse condemnation, the District suggested the jury be instructed as follows:

"Inverse condemnation occurs when a public project, operating as designed and conceived, proximately causes damage to private property." ¹

In support of the instruction, the District relies on the Supreme Court decision in Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 42 Cal.Rptr. 89, 398 P.2d 129 and its progeny. The question presented in Albers was whether a public entity could be liable in inverse condemnation where a public project unforseeably caused damage to a property owner. (Id., at pp. 261-262, 42 Cal.Rptr. 89, 398 P.2d 129.) Albers concluded that "... any actual physical injury to real property proximately caused by the improvement as deliberately designed and constructed is compensable under article 1, section 14, of our Constitution whether foreseeable or not." (Id., at pp. 263-264, 42 Cal.Rptr. 89, 398 P.2d 129.)

The District contends that the failure to give its requested instruction removed the "deliberate design" requirement from the jury's consideration. ² It points to the evidence establishing that the Dolson Drain was never designed to provide storm drainage and suggests that this fact should preclude a finding of inverse condemnation.

In support of its argument, the District relies on cases in which some aspect of the public improvement malfunctioned, causing the damage. (See e.g., Yee v. City of Sausalito (1983) 141 Cal.App.3d 917, 190 Cal.Rptr. 595; McMahan's of Santa Monica v. City of Santa Monica (1983) 146 Cal.App.3d 683, 194 Cal.Rptr. 582.) Not surprisingly, the argument made in those cases was that the damage was not caused by the project operating "as deliberately designed and constructed" since, presumably, the public projects were not designed or constructed to malfunction.

We need not opine on the correctness of the malfunction type cases. In any event, the proposed instruction would not have aided the District here. The Drain was "designed and conceived" with a 36-inch culvert crossing under the railroad tracks. It is precisely because a 36-inch culvert, "operating as designed and conceived," was inadequate to accommodate rainwater runoff that the flooding of the feed lot occurred.

We note, moreover, that the improper design of a public improvement is a recognized basis for a claim of inverse condemnation. In Granone v. County of Los Angeles (1965) 231 Cal.App.2d 629, 42 Cal.Rptr. 34, for instance, the defendant governmental entities defectively designed a flood control channel which overflowed, flooding plaintiff's property. The court concluded that "the public improvement was not planned and constructed in accordance with good engineering practices ..." and the defendants were therefore liable in inverse condemnation. (Id., at p. 647, 42 Cal.Rptr. 34; see Van Alstyne, Inverse Condemnation: Unintended Physical Damage (1969) 20 Hastings L.J. 431, 437; see also Yee v. City of Sausalito, supra, 141 Cal.App.3d at p. 922, 190 Cal.Rptr. 595.) We recognize that Granone involved a public improvement which was improperly designed for its intended purpose whereas in the present case, the District contends the Drain was not designed to carry rain water. In response, we observe that the testimony by the District witness on this point was not so much that the Drain was not intended to carry rain water but rather that the small amount of annual rainfall in Imperial made that factor insignificant in the District's determination as to what size culvert to install. "Certainly it would been impossible for the District to exclude rain water while allowing surface runoff from other sources to enter the Drain." Furthermore, the District's proferred standard, which allows liability to turn on the subjective intent of the designer, would encourage public entities to hire designers of limited intelligence and minimal foresight. Such a result commends itself neither to common sense nor sound public policy. We accordingly conclude the trial court did not err in refusing the District's proposed inverse condemnation instruction.

Similarly unnecessary was the District's second proposed jury instruction, to the effect that "[a]n irrigation district is not required by law to provide, maintain, or operate flood control facilities." The District suggests that the trial court's failure to give its proposed instruction "left the jury with the erroneous impression the District was responsible for eliminating flooding from plaintiff's property." Other jury instructions given, however, belie any such suggestion. The jury was specifically instructed that "[f]or [the] District to be liable to plaintiff, its project must have resulted in more water than would have otherwise flowed onto plaintiff's land which greater quantity results in damage." (See Tri-Chem, Inc. v. Los Angeles County Flood Control Dist. (1976) 60 Cal.App.3d 306, 311, 132 Cal.Rptr. 142.) Following such an instruction, the jury could not possibly have imposed liability on the District because it mistakenly believed the District was responsible for eliminating the possibility of a flood.

Finally, however, the District claims that liability cannot be imposed even on the instructions as given because the evidence was insufficient to support a finding that the Dolson Drain caused the flooding of the feed lot. More particularly, the District argues the evidence establishes that the same or greater flooding of the feed lot would have occurred in the absence of the Drain. In support of this argument, the District points to testimony indicating that the northeast corner of the Imperial Cattle feed lot is the lowest...