Mohave County v. Chamberlin

• Decision Date: 15 March 1955
• Docket Number: No. 5894,5894
• Parties: COUNTY OF MOHAVE, Appellant, v. Lila CHAMBERLIN, Appellee.
• Court: Arizona Supreme Court

Page 128

281 P.2d 128

78 Ariz. 422

COUNTY OF MOHAVE, Appellant, v. Lila CHAMBERLIN, Appellee.

No. 5894.

Supreme Court of Arizona.

March 15, 1955.

Carl D. Hammond, County Atty., Mohave County, Frank X. Gordon, Kingman, for appellant.

Brice I. Bishop, Phoenix, for appellee.

UDALL, Justice.

Defendant (appellant) County of Mohave, one of the political subdivisions of the State of Arizona, has appealed from a judgment for damages in the sum of $5,000 entered against it in favor of plaintiff (appellee) Lila Chamberlin. The case was tried to a jury and a general verdict rendered. No formal written judgment was entered nor were any special findings made. The parties will be herein referred to as they were designated in the lower court-plaintiff and defendant (or the County).

While the suit was instituted in the superior court in Mohave County, on plaintiff's motion for a change of venue under section 21-106, A.C.A.1939, it was ordered transferred to Yavapai County for trial. Later, by order of court, the City of Kingman, a municipal corporation, was made a party defendant to the action under an amended complaint, but at the close of plaintiff's case the court granted the city's motion to dismiss and they are not a party to this appeal.

The amended complaint undoubtedly states a claim for relief upon the theory of inverse eminent domain and it was upon this theory that the case was tried and judgment entered. It is alleged (a) that without instituting condemnation proceedings and without consent of plaintiff the County did appropriate for its own use and benefit certain lands owned by plaintiff by causing sewage effluent to flow upon said lands and pool around the base of her water well, thus contaminating and rendering unusable for domestic purposes the water therein; (b) that this sewage effluent has since said time polluted the air over said lands with foul odors so that plaintiff is unable to enjoy the use of said lands; (c) that these acts of defendant have caused plaintiff's sole water supply to be of no value and thus rendered the land unfit for occupation, and (d) that by reason of the wrongs committed by the County the plaintiff has been damaged in the sum of $10,000 as and for depreciation in the value of her property.

The defendant's answer claims that the complaint fails to state a claim upon which relief can be granted; it makes certain admissions and denials; and sets up contributory negligence on the part of plaintiff in that she or her predecessors in interest had caused an unnatural depression near the well by the removal of sand and gravel from a pit near thereto and that this act was the direct and proximate cause of the sewage effluent pooling on the lands of plaintiff.

Other than objections to the giving or failing to give certain instructions, the principal assignment of error is in substance that the evidence does not make out a prima facie case justifying the permanent relief granted under the theory of inverse eminent domain. A consideration of this assignment requires a careful recitation of the facts.

Plaintiff, Lila Chamberlin, a resident of Kingman, acquired the property in question from F. E. Buchanan, et ux. on January 7, 1948. This land is a portion of the NW1/4 of Sec. 4, Twp. 20-N., R. 17 W., described by lot numbers, comprising approximately 137 acres, situated about 5 miles southwest of the town of Kingman. The southeast portion of lot 3 and part of lot 4 thereof is traversed by U. S. Highway 66 (both the old and new route) which there parallels the west bound track of the A. T. & S. F. Railway. Plaintiff testified that she had never lived upon the property; that it was not bought for a cattle ranch as she owns no cattle, nor has she ever done any farming thereon-though her predecessor utilized a small garden plot and had raised a few chickens; that it was acquired primarily for its value as frontage property along this heavily travelled highway. During the period in question the only occupant of her holdings was a tenant operating 'Pete's Drive Inn', an eating place conducted in a 20 X 20 foot frame building. The tenant paid a monthly rental of $50 plus $20 for the adjacent small house in which he lived. The source of domestic water for the tenant's use was a well, located in a northwesterly direction approximately one-fourth mile distant, from which it was piped to a nearby water tank.

Some 3.6 miles northeast of plaintiff's property there is a sewage disposal plant which is located just within the Kingman city limits. In the early days the Santa Fe Railway Company built a sewer line leading to this plant, to care for the sewage from its properties in Kingman. The plant, which now serves all of the inhabitants of Kingman as well as the Railroad was rebuilt during the depression days of 1932. Beginning in the year 1936 it was operated by Mohave County until the City of Kingman, after being incorporated on January 21, 1952, took over its operation on July 1 of that year. Apparently it is a badly overloaded plant.

Normally the effluent being discharged from the plant ran into an adjacent settling pool and then on into the nearby large arroyo known as 'Railroad Pass Wash' which it followed for a mile or so before disappearing in its sands as the arroyo does not normally carry a living stream-i. e., it only has running water following a heavy rainfall on the water shed. This was the pattern until some time in the Spring of 1952 (March) when a party employed by the County with a grader bladed out two ditches from the settling pool on down the wash to the neighborhood of plaintiff's land.

Thereafter on May 21, 1952 heavy rains fell and flood conditions ensued, causing some of the sewage effluent to flow down the wash and be deposited in a gravel pit within 25 to 50 feet of plaintiff's well. The sanitary engineering division of the State Department of Health learned of this condition and on May 26th their inspector gave to plaintiff a written notice that she was violating the sanitary code. In the blank therein entitled 'Remarks' it was stated:

'Due to sewage effluent pooled within 40 of well, water must be properly treated for human consumption or another source of water supply must be obtained.'

The plaintiff was asked: 'did you ever repair that well?' She answered: 'No sir, I don't expect to.' Apparently the water from this well has not been used since that time.

Plaintiff immediately reported this condition to the Board of Supervisors who promptly diverted the water from the channel running past plaintiff's well into another channel of the wash outside plaintiff's property. The County did offer to bring a bulldozer in and cut the pool by the well, which offer was refused and at no time was the county equipment used on plaintiff's land. To meet the emergency and prevent the temporary closing of the Drive Inn the County further offered to and did haul water to fill plaintiff's tank three times. Thereafter the plaintiff made an unsuccessful effort to obtain water from the Santa Fe. Failing in this she then obtained water, without authorization, from the Health Department from what was known as the 'Lewis Well', located above her property, until October, 1953, when they threatened to stop that use unless she would install an automatic hypochlorinator.

No effort whatsoever was made by plaintiff to recondition her own well as she considered it 'gone'. However there is not a scintilla of evidence in the record that the water from her well had ever at any time been tested to determine whether it was in fact contaminated and therefore unfit for human consumption. Nor do we find any evidence to substantiate plaintiff's contention that as a result of the single occurrence relied upon the well was permanently destroyed or the water therein permanently condemned by the public health officials as a source of domestic water supply.

This well is located within the bed of Railroad Pass Wash 'on a small ridge' at a point where there are a half dozen or more shallow channels (one to two feet deep) which shift as new floods occur. The evidence shows that this wash widens out as it leaves the Canyon and gets down into the valley in which plaintiff's lands lie and where it crosses her property it is 780 feet between banks and covers some seven or eight acres of ground. It further appears that this large arroyo, with its numerous tributary side washes, serves a huge drainage area which includes the ground comprising not only the heavily populated town of Kingman but also the recreational area in the Wallapai Mountains 16 miles distant.

The well itself is a dug well 108 1/2feet deep, imperfectly cased up with oil drums which have the tops and bottoms cut out. A water pipe containing the 'sucker rod' extends to the underground water. Plaintiff's predecessor in interest testified that 'there was 11 inches of water in the bottom of that well and it run very fast. * * * it was running steady. We couldn't pump it out * * *. It was a regular underground current there.' At the surface there is a small pumphouse structure inside which is a cement wall to protect the well. An electric motor controlled from a switch at the Inn, furnishes the lifting power.

The sanitary engineer testified primarily from his own observation that by reason of the well's physical location in the bed of the wash, it being an open well with no specific ceiling connection or topping, contamination was possible in flood time and that 'any surface run off in that wash could contaminate that well.' He further testified:

'Q. Do I understand you that if there were no sewage effluent in that wash it would still be impossible to make a safe source of water? A. I don't believe in its location that well could be made an accepted supply so that you could have dependence on it.

'Q. Would you say even before this all happened that that would be your opinion? A. It would be my opinion no matter what had happened that that...