Pacific Gas & Elec. Co. v. San Mateo County

• Decision Date: 29 March 1965
• Citation: 233 Cal.App.2d 268,43 Cal.Rptr. 450
• Court: California Court of Appeals Court of Appeals
• Parties: , 58 P.U.R.3d 359 PACIFIC GAS AND ELECTRIC COMPANY, Plaintiff and Respondent, v. COUNTY OF SAN MATEO, State of Callfornia, Defendant and Appellant. Civ. 22024.

Page 450

43 Cal.Rptr. 450

233 Cal.App.2d 268, 58 P.U.R.3d 359

PACIFIC GAS AND ELECTRIC COMPANY, Plaintiff and Respondent, v. COUNTY OF SAN MATEO, State of Callfornia, Defendant and Appellant.

Civ. 22024.

District Court of Appeal, First District, Division 3, California.

March 29, 1965.

Keith C. Sorenson, Dist. Atty., James M. Parmelee, Chief Civ. Deputy Dist. Atty., Redwood City, for appellant.

Richard H. Peterson, Edward J. McGanney, San Francisco, for respondent.

BRAY, Justice.*

Defendant appeals from judgment (trial without jury) in favor of plaintiff of $14,149.14 in an action in inverse condemnation.

Questions Presented

1. Sufficiency of evidence to support finding of interference with plaintiff's easement.

2. Was the proper measure of damages applied?

Record

In 1947 or 1949 plaintiff acquired an easement from the Menlo Investment Company (defendant's predecessor in title) for the installation of a gas pipeline. Part of the land subject to the easement was adjacent to Sand Hill Road (Searsville-Menlo Park Road) near Stanford University. The terms of the grant provided that the grantor 'shall not erect, or construct, any building or other structure' within the boundaries of the easement right-of-way. That same year plaintiff constructed a 24-inch, steel gas transmission line beginning at Milpitas and terminating in San Francisco. The line crossed Sand Hill Road, then followed the right-of-way described in the above easement. In this general area the line was covered to a depth of approximately four feet.

Defendant subsequently acquired the land subject to plaintiff's easement and by 1959 had made plans to widen Sand Hill Road. Such reconstruction would have resulted in the placing of an additional ten to twelve feet of fill over plaintiff's gas main. Defendant was informed by plaintiff that such added fill would not be in accordance with its pipeline engineering policies and that it proposed to relocate the main. Defendant's Engineering and Road Department voiced no objection to the relocation, which was then accomplished. In July 1960 the San Mateo County Board of Supervisors denied plaintiff's claim for the cost of relocation. This action followed.

The court found: 'That defendant's plan for placing approximately 12 feet of earch fill over plaintiff's gas main was an interference with plaintiff's right of way and easement in that it would interfere with the proper operation of plaintiff's main, make maintenance and repair more difficult and was in direct violation of plaintiff's easement which provided that no structure was to be placed on the easement strip.'

The court further found that the relocation was in the public interest; that defendant's plan to place 12 feet of earth fill over plaintiff's gas main made the relocation necessary, and that such relocation was not voluntary. Judgment in favor of plaintiff for $14,149.14 followed.

1. Sufficiency of Evidence

It requires no citation of authorities to state the well known rule that in examining the sufficiency of the evidence to support a judgment the reviewing court must accept as true all evidence tending to support the correctness of the trial court's finding, including all inferences which may reasonably be drawn from such evidence.

The evidence amply supports the court's findings. The terms of plaintiff's easement grant specifically enjoined the construction of 'any building or other structure' along the right-of-way. The initial question is thus presented whether defendant's highway project fell within the inhibition. In Armenta v. Churchill, 42 Cal.2d 448, 267 P.2d 303, the plaintiffs' decedent was killed while working on a highway surfacing project. A safety order of the State Division of Industrial Safety was applicable to 'the excavation, construction, alteration, repairing, renovating, removal or wrecking of buildings or other structures.' (Emphasis added.) The court held at page 453, at page 306 of 267 P.2d, that '[t]he repair and resurfacing of a highway would come within the phrase 'or other structures' * * * as a construction project affixed to real property.' No reason exists for applying a restrictive definition to the words 'or other structures' as used in plaintiff's easement, and the finding of the trial court that defendant's plan 'was in direct violation of plaintiff's easement' is clearly correct. (Incidentally, this finding is not disputed in defendant's briefs.)

Defendant argues that plaintiff 'because of its own policies determined to relocate the gas main involved, apparently deciding that the line would be of no value * * * whatsoever' and then contends that 'the reconstruction of Sand Hill Road in no way affected the ability of plaintiff to continue to use the gas main in question in its original location.' To the contrary, the evidence showed that the added fill would seriously deter access to the line, make locating of leaks more difficult, substantially increase the stress to which the gas main would be subjected, and require greater time to reach the line. Moreover, plaintiff has no equipment to dig a ditch of the depth which would be required because of the increased fill. There was testimony that the new stress would be 23 percent higher than that permitted in residential areas by 'Gas Transmission and Distribution Piping Systems', a nationally recognized industry code. ¹

There was contrary testimony to the effect that the possibility of a break even with the added fill would be remote and that the line could be safely operated at the higher stress. However, we are bound by the court's resolving of this conflict. Moreover, it clearly appears that the added strees would make the possibility of a break less remote than if the line were without such added stress. The pipeline carries a large volume of explosive gas through a residential community. Plaintiff in operating such a line must necessarily be concerned with margins of safety. The evidence shows that the margin of safety would be greatly reduced if plaintiff left its line subject to the greater stress. Even defendant's evidence concedes that this margin would be somewhat reduced.

The evidence fully supports the court's finding that defendant's plan 'would interfere with the proper operation of plaintiff's main.'

Defendant seems to contend that plaintiff instead of submitting to defendant's plan to reconstruct the road over plaintiff's easement, should have resisted defendant by bringing an injunction proceeding to prevent the interference with the easement. This would have been an idle act as defendant had the right of eminent domain and eventually the question would have to be decided, as it was in this case, namely whether the proposed improvement would be an interference with plaintiff's easement, and if so, the amount of damages recoverable.

In Pacific Gas & Elec. Co. v. Minnette (1953), 115 Cal.App.2d 698, 709, 252 P.2d 642, 648, the appellants had erected a building on the strip of land over which the respondent had an easement for erecting and maintaining power lines. The court held that this was an encroachment, in violation of respondent's easement, saying, inter alia, 'the situation created by appellants' building might well subject respondent to the alternative of corrective construction of its lines, or the risk of injury to third parties with resultant litigation.' Plaintiff in the instant case was faced with a similar alternative. In the operation and maintenance of its gas main and as the owner of the easement, it had the responsibility of exercising a degree of care commensurate with the dangers reasonably to be apprehended from possible leaks in its main. (See Central Kentucky Natural Gas Co. v. Huls, (Ky.1951), 241 S.W.2d 986, 987, 28 A.L.R.2d 621.)

The extent to which the courts go to protect public utility easements is shown in City of Los Angeles v. Jameson (1958), 165 Cal.App.2d 351, 331 P.2d 1014. There the city had an easement and right-of-way over the property of the defendants for the construction, maintenance and operation of electric power lines. The defendants erected chain link fences around the rear and side boundaries of their respective properties, thus enclosing a substantial portion of the right-of-way. The court found that the fences 'would be a source of delay and extra expense in the event of electrical trouble at the location' (p. 357, 331 P.2d p. 1018), and...