Lussier v. San Lorenzo Valley Water Dist.

• Citation: 206 Cal.App.3d 92,253 Cal.Rptr. 470
• Decision Date: 23 November 1988
• Docket Number: No. H002005,H002005
• Court: California Court of Appeals
• Parties: Michael J. LUSSIER, et al., Plaintiffs and Appellants, v. SAN LORENZO VALLEY WATER DISTRICT, County of Santa Cruz, Defendants and Respondents.

Page 470

253 Cal.Rptr. 470

206 Cal.App.3d 92

Michael J. LUSSIER, et al., Plaintiffs and Appellants, v. SAN LORENZO VALLEY WATER DISTRICT, County of Santa Cruz, Defendants and Respondents.

No. H002005.

Court of Appeal, Sixth District, California.

Nov. 23, 1988.

Review Denied Feb. 23, 1989.

Robert H. Darrow, Santa Cruz, for plaintiffs and appellants

Timothy J. Schmal, Gassett, Perry & Frank, San Jose, for defendants and respondents.

CAPACCIOLI, Associate Justice.

STATEMENT OF THE CASE

Plaintiffs Michael and Sally Lussier filed a complaint against, inter alia, the San Lorenzo Valley Water District (the District) seeking to recover for damages suffered when timber, debris, and water washed from the District's land onto plaintiffs' property during a heavy rainstorm in 1982. The complaint asserted five causes of action: (1) negligence, (2) maintenance of a dangerous condition (Gov.Code, § 835), (3) nuisance (Civ.Code, §§ 3479 and 3501; Code of Civ.Proc., § 731), (4) trespass, and (5) inverse condemnation (Cal. Const., art. I, § 19).

At trial, the court granted the District's motion for a nonsuit on the nuisance, trespass, and inverse condemnation causes of action. The jury then returned a defense verdict on the remaining claims, and plaintiffs filed this appeal.

Plaintiffs claim that the trial court erred in (1) giving proximate cause rather than legal and concurrent cause instructions, ¹ (2) granting the District's motion for nonsuit, (3) admitting irrelevant impeachment testimony, and (4) giving the case to the jury too late in the day.

We affirm the judgment.

STATEMENT OF FACTS

The basic facts are undisputed. The District owns watershed land uphill from plaintiffs' house and land. Clear Creek and Sweetwater Creek flow through the watershed. Clear Creek continues onto and across plaintiffs' land, while Sweetwater Creek runs along plaintiffs' border. Both creeks then converge below plaintiffs' land.

In early January 1982, there was an unusually heavy rainstorm that caused severe erosive damage to plaintiffs' house and surrounding property.

At trial, plaintiffs presented evidence to show that the damage was caused by timber and debris on the watershed that had been downed in a freak snowstorm in 1974 and which the District had allowed to accumulate in the creek beds despite knowledge that the accumulation constituted a flood danger to downstream neighbors. According to plaintiffs, the heavy rain in January 1982 caused the creeks to swell and carry the accumulated debris downstream where it battered plaintiffs' house and other structures and clogged the creeks, diverting them onto plaintiffs' land.

The District, on the other hand, presented evidence to show, inter alia, that the downed timber and debris, whatever its origin, posed no foreseeable danger to plaintiffs and/or that plaintiffs' damage was inevitable given the amount of rain that fell.

I. Nonsuit

A motion for nonsuit is tantamount to a demurrer to the evidence and presents a question of law: whether the evidence offered in support of the plaintiffs' case could justify a judgment in the plaintiffs' favor. (Loral Corp. v. Moyes (1985) 174 Cal.App.3d 268, 272, 219 Cal.Rptr. 836.) In reviewing the propriety of the trial court's order granting the District's motion for nonsuit, we must accept plaintiffs' evidence as true, unless it is inherently incredible, and resolve all conflicts and reasonable inferences in their favor. (Ibid; Van Zyl v. Spiegelberg (1969) 2 Cal.App.3d 367, 371-372, 82 Cal.Rptr. 689.)

A. Nuisance

Plaintiffs argue that they presented sufficient evidence to support a finding that the District maintained a nuisance on its property and that it was error not to submit this claim to the jury.

The District claims that nonsuit was proper as a matter of law because under the common law, a possessor of land is immune from liability to those outside the premises for harm caused by natural conditions of the land. (See Prosser & Keeton, Torts (5th ed. 1984) § 57, [206 Cal.App.3d 99] pp. 390-391 (hereafter "Prosser"); Rest.2d Torts, §§ 363, subd. (1), 840, subd. (1); 58 Am.Jur.2d Nuisances, § 27, pp. 589-590.) ²

In response, plaintiffs do not claim that this rule is inapplicable because its damages were caused by an artificial condition; rather they claim that the rule was abolished in Sprecher v. Adamson Companies, supra, 30 Cal.3d 358, 178 Cal.Rptr. 783, 636 P.2d 1121. This claim has merit.

In Sprecher, supra, our Supreme Court explained that underlying the rule of absolute immunity was the notion that in the absence of a special relationship, one need not take affirmative measures to protect others and mere possession of land does not create a duty to protect others from a dangerous natural condition thereon. The court observed, however, that this rationale had lost whatever validity it once had in light of cases dealing with the duty of possessor of land to take affirmative steps to protect those coming upon their land from both natural and artificial conditions. (Id. at p. 367-370, 178 Cal.Rptr. 783, 636 P.2d 1121.)

The court also noted that the common law rule was inconsistent with the policy embodied in Civil Code section 1714, namely, that a person should be liable for injuries caused "by his want of ordinary care ... in the management of his property or person." The court opined that this policy outweighed any reason for distinguishing between injuries caused by natural and artificial conditions on land. (Id. at pp. 361-372, 178 Cal.Rptr. 783, 636 P.2d 1121.) Thus, it held that liability could arise from the breach of a duty of care concerning, that is, a negligent failure to correct, a dangerous natural condition of one's land. (Id. at pp. 371-372, 373, 178 Cal.Rptr. 783, 636 P.2d 1121.)

The District claims that because the Supreme Court carefully and expressly focussed its holding on negligence actions, the common law rule still provides absolute immunity from liability in nuisance actions. We disagree.

Civil Code section 3479 defines an actionable nuisance as "[a]nything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway,...."

The basic concept underlying the law of nuisances is articulated in the ancient maxim sic utere tuo ut alienum non laedas, that is, so use your own as not to injure another's property. (Richardson v. Kier (1867) 34 Cal. 63, 73; Kall v. Carruthers (1922) 59 Cal.App. 555, 560, 211 P. 43; Civ.Code, § 3514 ³; 47 Cal.Jur.3d Nuisances, § 1, p. 199; 66 C.J.S. Nuisances, § 8, p. 740.)

More specifically an action for a private nuisance ⁴ is designed to redress a substantial and unreasonable invasion of one's interest in the free use and enjoyment of one's property. (Rest.2d, supra, § 821D and com. a-d, pp. 100-102; Powell on Property (1987) § 704, p. 64-2 (hereafter "Powell"); Prosser, supra, §§ 87 and 88, pp. 619, 626; 7 Witkin, supra, § 91, p. 5314; 66 C.J.S., supra, § 1, p. 729.)

Although the central idea of nuisance is the unreasonable invasion of this interest and not the particular type of conduct subjecting the actor to liability, liability nevertheless depends on some sort of conduct that either directly and unreasonably interferes with it or creates a condition that does so. (Rest.2d, supra, § 822, com. a, p. 109; see 7 Witkin, supra, § 91, p. 5213; Powell, supra, § 704, pp. 64-64(9); 66 C.J.S., supra, § 1, p. 729; Miller & Starr, California Real Estate (1977) § 21.3, p. 513 (hereafter "Miller").) "The invasion may be intentional and unreasonable. It may be unintentional but caused by negligent or reckless conduct; or it may result from an abnormally dangerous activity for which there is strict liability. On any of these bases the defendant may be liable. On the other hand, the invasion may be intentional but reasonable; or it may be entirely accidental and not fall within any of the categories mentioned above. In these cases there is no liability." (Rest.2d, supra, § 822, com. a, p. 109; Dufour v. Henry J. Kaiser Co. (1963) 215 Cal.App.2d 26, 29, 29 Cal.Rptr. 871; but see Prosser, supra, § 87, pp. 619-625 [nuisance liability should be based on only intentional conduct].)

As the Restatement explains, "In early tort law the rule of strict liability prevailed. An actor was liable for the harm caused by his acts whether that harm was done intentionally, negligently or accidentally. In course of time the law came to take into consideration not only the harm inflicted but also the type of conduct that caused it, in determining liability. This change came later in the law of private nuisance than in other fields. Private nuisance was remediable by an action on the case irrespective of the type of conduct involved. Thus the form of action did not call attention to the change from strict liability to liability based on conduct. But the change has occurred, and an actor is no longer liable for accidental interferences with the use and enjoyment of land but only for such interferences as are intentional and unreasonable or result from negligent, reckless or abnormally dangerous conduct." (Rest.2d, supra, § 822, com. b, pp. 109-110; see Prosser,supra, § 4, pp. 20-23.)

In California, it is settled that where negligent conduct, i.e., conduct that violates a duty of care toward another, also interferes with another's free use and enjoyment of his property, nuisance liability arises. (See, e.g., Spaulding v. Cameron (1952) 38 Cal.2d 265, 266, 239 P.2d 625; Granone v. County of Los Angeles (1965) 231 Cal.App.2d 629, 649-651, 42 Cal.Rptr. 34; see also Sturges v. Charles L. Harney, Inc. (1958) 165 Cal.App.2d 306, 317-318, 331 P.2d 1072; Calder v. City Etc. of San Francisco (1942) ...