Salton Bay Marina, Inc. v. Imperial IrrIGAtion Dist.

• Decision Date: 30 September 1985
• Citation: Salton Bay Marina, Inc. v. Imperial IrrIGAtion Dist., 218 Cal.Rptr. 839, 172 Cal.App.3d 914 (Cal. App. 1985)
• Court: California Court of Appeals
• Parties: SALTON BAY MARINA, INC., et al., Plaintiffs and Appellants, v. IMPERIAL IRRIGATION DISTRICT, Defendant and Appellant. D000553, Civ. 26949.

Page 839

218 Cal.Rptr. 839

172 Cal.App.3d 914

SALTON BAY MARINA, INC., et al., Plaintiffs and Appellants, v.IMPERIAL IRRIGATION DISTRICT, Defendant and Appellant.

D000553, Civ. 26949.

Court of Appeal, Fourth District, Division 1, California.

Sept. 30, 1985.

As Modified Oct. 9 and Oct. 30, 1985.

Sutherland & Gerber, Lowell F. Sutherland, Neil Gerber and Michael L. Rood, El Centro, for plaintiffs and appellants.

Jennings, Engstrand & Henrikson, Wallace R. Peck, Paul D. Engstrand, McInnis, Fitzgerald, Rees, Sharkey & McIntyre, San Diego, and Horton, Knox, Carter & Foote, El Centro, for defendant and appellant.

STANIFORTH, Acting Presiding Justice.

After granting of plaintiffs' petition for review(and denial of defendant's) the California Supreme Court retransferred the cause to this court"for reconsideration in light of Redevelopment Agency v. Gilmore(1985)38 Cal.3d 790[214 Cal.Rptr. 904, 700 P.2d 794]."After due reconsideration, we reissue the cause conformable to the principles enunciated in Redevelopment Agency v. Gilmore, supra.

DefendantImperial Irrigation District(the District or IID), in its management of water diverted from the Colorado River for irrigation purposes within its boundaries in Imperial County, uses the Salton Sea Basin as a repository for irrigation run-off waters.PlaintiffsSalton Bay Marina, Inc., et al. ¹(Marina or plaintiffs) own land, homes and businesses surrounding the Salton Sea.Their properties have been flooded, damaged by the rising waters of the Salton Sea.

Marina originally filed suit on December 21, 1976, against the District and Coachella Valley Water District in the United States District Court for the Southern District of California, seeking damages for the flooding of its properties on theories of inverse condemnation, negligence, nuisance and trespass.They filed an identical "protective" complaint in Imperial County Superior Court on January 13, 1977.On March 1, 1980, Marina entered into a settlement agreement with Coachella Valley Water District.On July 2, 1980, during pretrial hearings pursuant to a request by IID, the federal district court invoked the doctrine of abstension on the ground of predominance of state law questions and ordered the case be remanded to Imperial County Superior Court.

Trial was bifurcated and separate juries were impaneled to hear liability and damages issues.The liability phase lasted from February 24 to March 12, 1981.The jury found flooding was caused by the District's negligence and constituted a nuisance and taking of property.On appeal, ² the District does not dispute there was substantial evidence to support the jury's findings but argues it was shielded from liability by agreements signed by Marina or its predecessors-in-interest which allowed the District to flood its property.

The damages phase began on January 14, 1982, and was completed on March 3, 1982.Only 11 jurors deliberated because both alternates had been put on the panel and the 12th juror was excused by the court.The jury awarded damages of $6,959,336.On appeal, the District contends it was wrongfully denied a 12-person jury and the court erred in its instructions as to valuing Marina's property.

Following the trial, Marina requested litigation costs and a permanent injunction.The trial court granted attorney and expert fees and costs but denied the injunction.Marina appeals the denial of the injunction.The District appeals the amount of attorney fees, costs and interest awarded, as well as the trial court's not providing for flooding easements in the final judgments in favor of the District and in ordering the District to deposit the judgment amounts pending appeal.

FACTS

The Salton Sea was formed between 1905 and 1907 when the Colorado River flowed through a levee break into the Salton Basin, an area almost entirely below sea level.The Basin's lowest point is 273.5 feet below sea level.The Salton Sea is now maintained primarily by return flow of water from IID (approximately 1,250,000 feet annually).The Salton Sea also receives water from the Coachella Valley Water District(approximately 120,000 acre feet), the Mexicali Valley in Mexico (approximately 100,000 acre feet) and natural washes (approximately 10,000 acre feet).Rain and ground water contribute an additional eight percent normally.

In 1927, the United States Geological Survey conducted a study to determine the probable future extent of the Salton Sea based on development of all irrigable acres in the Imperial Valley (805,000), the Coachella Valley (98,000) and the Mexicali Valley (253,000).The survey predicted the sea would stabilize at the minus 224 foot level.As a result of the survey, the federal government withdrew all government lands below the minus 220-foot contour from settlement.

After 1927, the District engaged in a program of buying private lands below the minus 230-foot level.It spent approximately $350,000 before abandoning the project in the 1930's.The District now owns about 134,000 acres near or under the Salton Sea in Riverside and Imperial Counties.

Imperial County permitted development around the Salton Sea but required property owners to absolve the county and the District from liability for the Salton Sea's rising.Before 1957, this was accomplished through written agreements with property owners.After 1957, the requirement was codified into an ordinance requiring property owners to grant the District a flooding easement before they could obtain a building permit.

From 1964 to 1974, the Salton Sea level stabilized largely due to a water conservation plan initiated by the Secretary of the Interior in order to fill the Glen Canyon dam.Under the program, the District was required to reduce its demand for water by 10 percent.The District allowed its farmers only 10 percent waste and reduced the amount of water supplied to farmers who exceed this amount.During this period, the Salton Sea stabilized at about the minus 231-foot level.

During the 1970's, the District changed its management practices.It increased the waste water allowance to farmers from 10 percent to 15 percent of the water delivered to farmers.Under the "13-Point Program" adopted in 1976, the District no longer enforced water conservation by reducing the water supply to farmers who wasted water in excess of the permitted amount, but rather, supplied all water ordered and initiated a triple-charge for waste water above 15 percent.During this period, the homes, businesses and properties of Marina were flooded by rising waters of the Salton Sea.

A study covering the period from 1967 to 1976 shows 1,132,000 acre feet of the 2,543,000 acre feet the District delivered to farmers was deposited in the Salton Sea.An expert testified a reasonable amount would have been 250,000 acre feet.Of the 1,132,000 acre feet deposited into the Salton Sea, 84 percent (951,000 acre feet) was essentially fresh water which had never soaked into a farmer's fields but had either run across the surface of the fields into a collection ditch ("tailwater") or had run through the District's canals and overspills ("spillwaste").The amount of spillwaste was 556,509 acre feet, or 20 percent of the total amount the District delivered to its farmers.The general manager of the District testified five percent (127,150 acre feet) would be a reasonable amount for operational spill.The District's water manager also testified the District's canals should not reasonably spill more often than once every 10 days or twice a month.Marina produced evidence showing the canals were spilling much more frequently.

DISCUSSION

IFLOODING RIGHTS

All but one of the plaintiffs or their predecessors-in-interest either (1) entered into a written agreement as a condition of subdivision approval by Imperial County"not to sue" the District and not to hold the District "responsible in any manner whatsoever for any damage or injury caused or occasioned by the rising of the Salton Sea,"(2) granted an easement to the District for "a perpetual right to overflow, flood or pond water resulting from changes in the level of the Salton Sea, upon and across any and all part or parts" of plaintiffs' property up to the minus 220-foot level in exchange for a building permit from Imperial County; or (3) in one case, agreed to release the District from liability in a lease of the District's property.

The District argued these easements and agreements were valid and precluded plaintiffs' recovery for flood damage to their property caused by the District.Marina argued the easements and agreements were adhesionary contracts and void for want of consideration and for violating the public policy against waivers of liability.The District asserts the trial court erred in ruling, as a matter of law, the agreements and easements did not relieve the District from the flooding of the land covered by the documents and erred in allowing extrinsic evidence to alter the plain meaning of the documents.Marina asserts the trial court never declared the easements and agreements were invalid but only ruled they were not, in themselves, a bar to an action based upon negligent operation or the deposit of excess waters into the sea.This apparent confusion over what the trial court ruled can be understood by examining the record.

The trial court's ruling on this matter spans nearly 1,800 pages of transcript.Before trial, the court ruled the easements and agreements did not bar Marina's recovery and seemed to construe the documents as shielding the District from recovery only if the flooding was due to natural causes.Later, during trial when the court overruled Marina's objection to the District's introduction of an agreement and Marina sought the basis for the trial court's decision, the court responded "helpfully""I don't have to explain it.I just make the ruling.I think it's part of the total picture."Just before the evidence was...