Orme v. State of California ex rel. Dept. Water Resources

• Citation: 83 Cal.App.3d 178,147 Cal.Rptr. 735
• Parties: John K. ORME and Edith B. Orme, Plaintiffs and Appellants, v. STATE of California ex rel. DEPARTMENT OF WATER RESOURCES, Defendant and Respondent. Civ. 16581.
• Decision Date: 26 July 1978
• Court: California Court of Appeals

Page 735

147 Cal.Rptr. 735

83 Cal.App.3d 178

John K. ORME and Edith B. Orme, Plaintiffs and Appellants, v. STATE of California ex rel. DEPARTMENT OF WATER RESOURCES, Defendant and Respondent.

Civ. 16581.

Court of Appeal, Third District, California.

July 26, 1978.

Rehearing Denied Aug. 21, 1978.

Hearing Denied Sept. 27, 1978.

Kronick, Moskovitz, Tiedemann & Girard, Sacramento, for plaintiffs and appellants.

Evelle J. Younger, Atty. Gen., Robert L. Bergman, Asst. Atty. Gen., John M. Morrison, Deputy Atty. Gen., Sacramento, for defendant and respondent.

EVANS, Associate Justice.

Plaintiffs, John K. Orme and Edith B. Orme, appeal from that portion of an inverse condemnation judgment which awarded them approximately $67,700 damages and denied interest on the entire award from the date the first damage occurred, and from the order granting the motion of the State, taxing engineering costs and attorney fees.

STATEMENT OF FACTS

The plaintiffs appeal only from post trial decisions of the court rendered after a jury returned a verdict in plaintiffs' favor. The following factual summary is not disputed and has been gleaned from the recitation of facts contained in the parties' briefs.

This is an inverse condemnation action brought by plaintiffs as a result of water damages to their rice-producing property. The real property consists of 147 acres of land located near the west side of the Thermalito Afterbay in Butte County. The Thermalito Afterbay is part of the State of California's water project at Oroville Dam and is used as a reservoir to ensure that despite fluctuations in water flow caused when excess electricity is used to pump water back into the dam, a constant supply of water returns to the Feather River. In support of their claim, plaintiffs present evidence that in 1972, the Thermalito Afterbay, through groundwater percolation, leaked water which saturated the top two feet of soil on their land and caused the loss of a portion of the rice crop growing on the land at that time and resulted in physical damage to the land that required restoration work, which precluded plaintiffs from growing rice in 1973 and 1974 on their land which is the land's highest and best use.

Upon learning of the seepage, the State of California took remedial measures consisting of the application of an impervious blanket on the floor of the afterbay and the installation of a series of wells along its westerly perimeter. The wells were designed to pump water seeping from the afterbay back into the reservoir.

The use of the wells accomplished a reduction in the groundwater level below plaintiffs' property.

Plaintiffs utilized an expert who testified that the rise in hydrostatic pressure of water under plaintiffs' property during 1972 was caused by a malfunction and/or improper operation of well No. 3, which was one of two wells having a significant effect on plaintiffs' property.

The evidence presented by the State of California in defense of the action was that the 1972 saturation causing damage to plaintiffs' property was primarily the result of heavy rainfall, and not because of the functioning of the Thermalito Afterbay or any of its components.

A crucial factual issue at trial was whether water leaking from the Thermalito Afterbay was able to move up through the "hardpan" or "tight" soils and saturate the top two feet of plaintiffs' land.

Plaintiffs' expert (Mr. Gomez) testified that it did; the State's experts (Messrs. King and Begg) testified to the contrary. Plaintiffs' expert testified that when the capacity of well No. 3 was increased after correction of its malfunction, the hydrostatic pressure under plaintiffs' property was reduced to substantially preproject levels.

Plaintiffs produced evidence that as a result of the saturation, rutting of the land occurred during the rice harvest in 1972. The evidence indicated that the rise in hydrostatic pressure in October 1972, coupled with rainfall occurring before and during the harvest, caused the upper two feet of the soil to become nearly saturated which prevented the harvesting of a portion of plaintiffs' 1972 rice crop. As the upper two feet of the soil became saturated, the heavy rice harvesting equipment tended to bog down, causing deep ruts in the soil.

Plaintiffs' inability to plant a rice crop in 1973 and 1974 apparently was not related to the piezometric level or hydrostatic pressure under the property in those years but was rather a consequence of the serious rutting damage which occurred in 1972.

Plaintiffs produced evidence that the loss of the use of the land for rice in 1973 was because the weather conditions in early 1973 did not permit the land restoration and preparation required, as a result of the 1972 rutting, early enough to plant a rice crop in 1973.

As a result plaintiffs were limited to planting a crop of oats and wheat in October of 1973. It was then too late to plant the rice crop. The oats and wheat crop was not ready for harvesting until May or June of 1974 which again precluded planting a rice crop for 1974 and resulted in plaintiffs' claim of loss of use for 1974.

The total damages, including loss of use, sought by plaintiffs was the sum of $71,676.89. ¹

The jury decided in plaintiffs' favor and awarded them $67,730.25 in damages. Judgment was entered accordingly.

(The dollar difference between the amount sought by plaintiffs and the amount of the jury verdict (all but $40) may be the result of the jury's acceptance of evidence that the average county yield was 56 sacks of rice per acre in 1972 rather than a yield of 60 sacks per acre as estimated by plaintiffs.)

Following entry of the judgment, plaintiffs filed a memorandum of costs and disbursements which included the sums of $28,993.57 for attorney fees and $12,157.67 for engineering fees. The State of California then filed a motion to tax costs contending that such fees are not recoverable in instances where a plaintiff secures a judgment for a "damaging" of an interest in real property as distinguished from a "taking."

The trial court accepted that contention and struck the attorney fees and engineering costs from plaintiffs' cost bill.

The judgment, when entered on November 17, 1976, did not provide for prejudgment interest. Subsequently, plaintiffs filed a "Motion to Correct or Amend Judgment in Regard to Prejudgment Interest." Plaintiffs contend that the $67,730.25 should draw interest (at 7% Per annum) from October 25, 1972 (the earliest date of damage to the first crop). The trial court amended the judgment to provide that the sum of $25,849.42 would draw interest at seven percent per annum commencing October 20, 1973, the sum of $28,671.48 would draw interest at seven percent per annum commencing October 20, 1974, and the sum of $13,209.35 would draw interest at seven percent per annum commencing October 20, 1975.

I

Plaintiffs first contend that the trial court erroneously granted defendant's motion to tax the costs of attorney fees and engineering costs. This contention has merit.

The trial court reasoned that such costs were not recoverable inasmuch as the land had merely been damaged and not taken within the contemplation of former Code of Civil Procedure section 1246.3. (Now Code Civ.Proc., § 1036.) Former section 1246.3 (present § 1036) provided that engineering costs and attorney fees are recoverable when there has been a "taking of any interest in real property." ²

As it is clear that an interest in real property is involved, ³ our basic determination is whether there has been a taking within the contemplation of the statute.

In order for there to be a taking " '. . . there must be an invasion or an appropriation of some valuable property right which the landowner has to the legal and proper use of his property." (Hilltop Properties v. State of California (1965) 233 Cal.App.2d 349, 355-356, 43 Cal.Rptr. 605, 609.) A taking of property within the constitutional guarantee means more than a physical change of possession; it entails the owner's permanent or temporary deprivation of use. (Pacific Telephone, etc., Co. v. Eshleman (1913) 166 Cal. 640, 664, 137 P. 1119.)

The question arises because the federal Constitution mentions only a taking and not a damaging, thus giving rise to the belief that only the taking or acquisition of an interest in real property may be compensated; however, with the growth of public governmental actions affecting private use of land, the meaning of taking has been extended and broadened to include damage and destruction of land. (Kratovil & Harrison, Eminent Domain Policy and Concept (1954) 42 Cal.L.Rev. 596, 599; see also Note (1953) 66 Harv.L.Rev. 1134; Holtz v. San Francisco Bay Area Rapid Transit Dist. (1976) 17 Cal.3d 648, 654, fn. 4, 131 Cal.Rptr. 646, 552 P.2d 430.)

Evidently to ensure that the harsh federal standard would not prevail in California, the phrase "or damaged" was added to the California Constitution. (See Cal.Const., art. I, § 19.) Defendant argues that since section 1246.3 (present § 1036) does not contain the phrase "or damaged," mere damage does not give rise to the right to recover attorney fees and engineering costs. However, as noted by one commentator, "It is evident that where a court is willing to take a liberal view of 'taking' of 'property,' an 'or damaged' . . . provision is unnecessary." (Kratovil & Harrison, supra, 42 Cal.L.Rev. at p. 601.) The apparent limit and harsh federal constitutional provision has been tempered by the decision in United States v. Kansas City Life Ins. Co. (1949) 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277. The United States Supreme Court there held that a "taking" within the contemplation of the federal Constitution occurred under circumstances similar to those here presented.

In United States v. Kansas City Life Ins. Co., apparently for navigational purposes, the Corps of Engineers maintained the Mississippi River at a high flood level. (Id. at p. 800, 70 S.Ct....