Podesta v. Linden Irrigation District

Decision Date23 April 1956
Citation141 Cal.App.2d 38,296 P.2d 401
PartiesFred PODESTA and Adeline Podesta, his wife, Plaintiffs, Respondents and Cross-Appellants, v. LINDEN IRRIGATION DISTRICT, a public corporation, Defendant and Cross-Respondent, and The Stockton and East San Joaquin Water Conservation District, a public corporation, Defendant and Appellant. Civ. 8788.
CourtCalifornia Court of Appeals Court of Appeals

Jones, Lane, Weaver & Daley, Stockton, for plaintiffs, respondents and cross-appellants.

Neumiller, Ditz, Beardslee & Sheppard, Stockton, for defendant-appellant and defendant and cross-respondent.

VAN DYKE, Presiding Justice.

This action was brought by plaintiffs and respondents, Fred and Adeline Podesta, against two public agencies, one a water conservation district, the other an irrigation district. By their complaint, plaintiffs sought damages claimed to have been suffered by them as landowners when the two agencies took a part of their property for public use without having paid compensation therefor. A general statement of the case is to be found in Podesta v. Linden Irrigation Dist., 132 Cal.App.2d 250, 281 P.2d 905.

The trial court made the following findings of fact: In 1926, the plaintiffs purchased and since have been owners in fee of a parcel of real property referred to in the findings as parcel one, which lies south of the natural watercourse known as the North Slough of the Calaveras River. In 1931, the plaintiffs purchased and have since owned a second parcel lying to the north of said watercourse. In 1935, plaintiffs purchased and have since owned a third parcel, lying partly north and partly south of said slough, and contiguous to the first two parcels. Prior to 1860, North Slough carried a relatively large amount of the water of the Calaveras River. After the year 1860, the mouth of the slough slowly filled with sand as a result of natural processes. The filling of the mouth caused the flow in North Slough to diminish gradually until the greater portion of the water that had formerly entered it was caused to flow into another fork of the river known as Mormon Slough. Mormon Slough branches off from North Slough approximately one mile to the east and upstream from plaintiffs' land. Since about 1900, and until the diversions made by the defendants, North Slough carried only freshets or flood waters in the channel across plaintiffs' land and that only for about four days in any one year. These freshets and flood waters originated in the natural watershed of the Calaveras River. For the rest of the time of each year there was no water in North Slough. Plaintiffs' land is devoted to the extensive culture and growth of fruit and row crops and comprises an area of 610.55 acres. At the height of the fruit-packing season, about 600 men are employed thereon. Except for short periods in the winter months, constant movement of men and equipment across the channel of North Slough is and was required to carry out plaintiffs' farming practices. There is no other reasonable means of access from the south to the land lying north of the channel of North Slough where extensive buildings are located. Prior to the year 1934, it was the custom and the practice of plaintiffs and of their predecessors in interest to use the dry bed of North Slough as a means of passage for horses, persons and farm equipment from one side of the channel to the other, except during the short periods when water was running therein. Three roadways across the bed of the channel were used for this purpose. The channel of North Slough runs one and one-half miles through and across plaintiffs' land. On December 7, 1933, the Linden Irrigation District, hereinafter called irrigation district, commenced work on a project to deepen the mouth and channel of North Slough for the purpose of diverting thereto the water then flowing in Mormon Slough. In order to accomplish this, the irrigation district deepened the mouth of North Slough 9.8 feet so that the elevation of the bottom of North Slough was identical with the elevation of the bottom of Mormon Slough at their point of juncture. The irrigation district also constructed a floodgate in the channel of North Slough about three-fourths of a mile upstream and to the east of plaintiffs' land. As a necessary part of its project, said defendant also entered the land of plaintiffs and excavated the channel of North Slough through said land. The extreme depth of the excavation on plaintiffs' land was 13 feet; the weighted average of the excavation as it existed and now exists along the channel across the land of plaintiffs was 4.9 feet. The excavation was completed about May 24, 1934. Some time in the winter of 1933 or the early months of 1934, plaintiffs, and their predecessors in interest in the parcel last acquired, orally and without consideration consented to the deepending of said channel and the increase of the natural flow therein, so long as the irrigation district built and maintained three bridges across the channel. During the year 1934, said defendant district constructed two bridges for plaintiffs and one bridge for plaintiffs' said predecessors in interest. These bridges were designated as Podesta Number 1, Podesta Number 2, and the Lewis Bridge. The Lewis Bridge is located on the land of plaintiffs last acquired. From the year 1934 until the year 1936 the irrigation district diverted water for public use from Mormon Slough into North Slough and down the channel thereof through plaintiffs' land. The district maintained the three bridges from 1934 until 1936; but in the year 1936, it ceased operations and no longer diverted water through plaintiffs' land. From the year 1936 until the year 1949, the mouth of the channel of North Slough again filled up with sand due to natural processes, and the channel returned to its former intermittent flow when freshets or flood waters were carried about four days a year. Plaintiffs resumed their former practice of using the dry stream bed for passage across their land. In the year 1936, the irrigation district ceased to repair and maintain the bridges. Through the years ensuing after the year 1936, these bridges gradually became dilapidated. In 1948, defendant Stockton and East San Joaquin Water Conservation District, hereinafter called the appellant district, was formed. One of its purposes was the resumption of the project of the irrigation district. Appellant district leased the works and head gates of the irrigation district for a term of ten years by a written lease agreement executed December 1, 1948. The lease provided that the appellant district assumed such 'purely legal liability' as the irrigation district had to repair the three bridges located on plaintiffs' land. On or about January 1, 1949, the appellant district again deepened the mouth of North Slough and again excavated the channel through plaintiffs' land; and also at that time constructed a weir in Mormon Slough about one-half mile downstream from North Slough. The weir decreased the flow of water in Mormon Slough and increased the flow of water in North Slough. The weir, the head gates, the deepened mouth of North Slough and the deepened channel through plaintiffs' land were all integral parts of the same project to increase the flow in North Slough for public use, and the project would not otherwise be effective. The effect of the entire project since January 1, 1949, has been to cause water to flow from the main channel of the Calaveras River into North Slough for public use almost continuously throughout the year. Were it not for the completion and maintenance of said diversion project, all of said continuous flow in North Slough as it has existed since January 1, 1949, except for the intermittent freshets and flood flows hereinbefore referred to, would flow in Mormon Slough and not in North Slough. Since January 1, 1949, the appellant district has furnished irrigation water from North Slough without cost to numerous landowners within its boundaries whose lands adjoin North Slough. Plaintiffs' lands are within said district. Plaintiffs, from time to time, have pumped an undetermined amount of water from North Slough. Although the three bridges depreciated and became dilapidated after they ceased to be maintained by the appellant district, they were still capable in some degree of safe use by plaintiffs until May 31, 1953. Since that date, the direct effect of said continuous flow of water through the excavated channel on plaintiffs' land has been to sever the land of the plaintiffs into two separate parcels.

On January 1, 1949, plaintiffs notified both defendant districts that the appellant district would obtain plaintiffs' permission to use said channel to conduct the flow of said increased water only upon the condition that said defendants would build and maintain said three bridges, and on the further condition that the agreement of appellant district to so maintain and repair be put in writing. The defendant districts, however, failed to repair or maintain the bridges after said notice and failed to make or execute any agreement in writing. On April 16, 1949, plaintiffs notified defendant districts that unless the three bridges were repaired and maintained, and unless the written agreement to repair and maintain was executed by appellant district, all permission to use said excavated channel through plaintiffs' land was revoked as of the first day of May, 1949. Both of said districts have failed to make any repairs on the three bridges, have failed to maintain them, and have failed to enter into any agreement so to do. The land of plaintiffs is now severed as aforesaid and has continued to be severed since on or about May 31, 1953. The value of the plaintiffs' land in an unsevered condition on May 14, 1949, and also at the date of trial was the sum of $840,000. Due to the severance, the...

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